H. M. Talbott and Wm. H. Talbott, for appellant. H. W. Talbott, C. W. Pretty man, and H. O. Claughton, for appellee.

FOWLER, J. The plaintiff sued the defendant to recover a sum of money which he claims to be due on an alleged agreement between himself and the defendant to cooperate in the sale of certain mill property, and to divide commissions. It appears that Messrs. Lydane, Jones & Co. were the owners of the property in question, called the "Derwood Mill," and that they had employed the defendant to sell the same. The defendant, acting as the agent and broker of the owners, offered their said mill property to the Gaithersburg Milling & Manufacturing Company, either in person or through a subagent, for the sum of $16,000. But the price was considered too large by the Gaithersburg Company, and some time in October or November, 1892, the plaintiff, who, being a member of the bar, had, since the formation of this company, been its legal adviser, and who was also a stockholder therein, being present at a meeting of the directors of the company, at which they were discussing the purchase of the Derwood Mill, was informed that the property had been offered to them by one Ernshaw for $12,000, but that, while they considered that price too large, they thought it advisable to buy at $10,000, if the property could be bought for that price. The plaintiff was at the same time informed by the directors that they would be very glad to have him make something out of it. The plaintiff at once sought the defendant, and asked him how Ernshaw had been able to offer the mill for sale to the Gaithersburg Company. After giving the plaintiff a satisfactory answer, the defendant affirmed their contract to co-operate in the sale and divisions of commissions. On the same occasion there was some further conversation between the plaintiff and defendant as to the price at which the owners would be willing to sell. One of them (Mr. Jones), the defendant said, would not take less than $12,000; that another member of the firm said he would take $10,000; and the defendant thought he would take less, as he was very tired of it. After asking the defendant to see the owners, and get from them their authority to sell at a fixed price, and have the question of commissions settled and put in writing, the plaintiff suggested to the defendant that, if possible, he should get them to agree to take eight or nine thousand dollars for the property, net, so plaintiff and defendant could make something out of it. The plaintiff never told the defendant, nor does it appear he ever told any of the owners, that the Gaithersburg Company was willing to buy at $10,000. On the contrary, Mr. Jones, one of the owners, had a talk with the plaintiff about a week before the sale, but the plaintiff did not tell him what had been offered by the Gaithersburg

Company. The result of the negotiation, however, appears to have been that the property was sold to the plaintiff company for several hundred dollars less than it was willing to pay for it, and if the plaintiff had been able to knock down the price to the figure he suggested, namely, $8,000, the owners would have lost nearly $2,000, instead of about $200, which loss clearly could not in any way benefit them, but was suggested by the plaintiff, as he himself testifies, so that he "and defendant could make something out of it." thing out of it." The view we The view we feel constrained to take of this case renders it unnecessary to make a more extended statement of the facts given in evidence.

When the plaintiff closed, the defendant asked the court to instruct the jury "that if they believed from the evidence that the plaintiff was a stockholder in the Gaithersburg Milling & Manufacturing Company, the purchaser of the property, then it is against public policy for the plaintiff to act as the agent of the sellers of said property to the said company, and the jury must find for the company." This prayer is defective in two particulars, at least: It fails to submit the question of the good faith on the part of the plaintiff, and does not leave to the jury to find whether the vendor had knowledge that the plaintiff was a stockholder of the vendee corporation. We think, however, it is not necessary now to discuss further the legal proposition presented by the defendant's prayer, for we are all of opinion that the jury should have been instructed that the testimony offered by the plaintiff was not legally sufficient to entitle him to recover. The plaintiff, while claiming to act for the owners and vendors, did not communicate to them the fact that his company was willing to give $10,000 for the property. This alone-and we do not desire to comment further upon the facts of this case-is, in our opinion, sufficient to prevent a recovery. It seems to us that such a transaction as is here disclosed must be condemned by the law. And, therefore, notwithstanding the error committed in granting the defendant's prayer, we shall be compelled to affirm the judgment appealed from, because it appears from the whole record, as we have already said, that the plaintiff cannot recover. Judgment affirmed.

JENKINS v. STATE. (Court of Appeals of Maryland. Nov. 22, 1894.) ASSAULT WITH INTENT TO KILL-ACT AND THREATS OF PERSON ASSAULTED-EVIDENCE.

1. On a prosecution for an assault with intent to kill, defendant cannot, for the purpose of showing that he knew he was dealing with a dangerous man, after giving evidence of the general reputation of the man assaulted as a dangerous man, show that he pointed a gun at a third person on a former occasion.

2. Where there was no proof of any overt attack on defendant, or that, at the time he

was shot, he was in any apparent imminent danger, he could not justify by showing threats, on the preceding day, of the person shot.

Appeal from circuit court, Montgomery county.

John Jenkins was convicted of assault with intent to kill, and appeals. Affirmed. Argued before ROBINSON, C. J., and BRYAN, MCSHERRY, BRISCOE, and

BOYD, JJ.

Thos. Anderson and W. Veirs Bouic, Jr., for appellant. Attorney General Poe and Ed. C. Peter, for the State.

BRISCOE, J. This is an indictment in the circuit court for Montgomery county, for assault with intent to kill. The traverser was convicted, and sentenced to an imprisonment of five years in the penitentiary. At the trial he reserved two bills of exception to the rulings of the court upon the admissibility of testimony, and these form the basis of this appeal. In the first bill of exception it is stated that the traverser, after having proved that Smith, the party upon whom the assault was made, was a dangerous man, and had been tried and convicted, on several occasions, of various offenses, asked him, on cross-examination, "if he had not within the last year leveled his gun on Mr. William Barlow Vincent with the intention of shooting him"; offering, at the time, to follow it up by showing that the traverser, at the time of the shooting, had knowledge of Smith's act, the alleged purpose being to show to the jury that the traverser knew that he was dealing with a dangerous man, who had, the day previous, drawn his revolver upon him, and threatened to kill him. This proposed testimony was entirely irrelevant, and was properly excluded by the court. The witness was not bound to answer the question put to him, because the answer manifestly tended to criminate himself. But, independent of this, the fact that Smith, the prosecuting witness, had pointed a gun at a third party on a former occasion, would not justify the traverser for assaulting Smith; nor would it tend to reduce the offense to a common assault, or entitle the party to an acquittal. Specific acts of violence were not admissible. The general reputation of the party assaulted as a dangerous man had been introduced, and was before the jury. Gaither v. Blowers, 11 Md. 552.

The second exception of the appellant was to the refusal of the court to allow the prisoner to give in evidence what he understood Smith, the prosecuting witness, to mean by the words, "I have your age in my pocket," in connection with his act of immediately placing his hand in his hip pocket, the day before the shooting, while at the traverser's brother's house. The object of the question was stated, at the time, to place in evidence before the jury that the traverser knew, by said declaration and act, that Smith intended to kill him, and that it was this

understanding and belief that induced him to say, when he saw Smith coming, that he would have to shoot him rather than let him shoot him. The rule as to the admissibility of such evidence is stated by this court in the case of Turpin v. State, 55 Md. 475, to be "that unless proof be first given that there was an overt act of attack, and that the defendant, at the time of the collision, was in apparent imminent danger, such evidence is inadmissible. In the case now under consideration there was no proof given of any overt act of attack, nor any evidence that the appellant was, at the time of the shooting, in any apparent imminent danger. On the contrary, it is obvious from the testimony that the shooting was premeditated and without provocation. There was no proof of any hostile demonstration on the part of the prosecuting witness on the occasion of the shooting, the sole reliance of the defense for a justification being alleged threats on the day preceding the assault. It was entirely competent for the traverser to testify as to his intent, and that was in evidence. The intent was a necessary allegation in the indictment, and a fact material to the issue. Roddy v. Finnegan, 43 Md. 501; Spencer v. State, 69 Md. 46, 13 Atl. 809; Fenwick v. State, 63 Md. 239. The traverser had the berefit of this, and it was for the jury to pass upon its credibility. It was also in evidence that the prosecuting witness had said to the traverser that "I have your age in my pocket," and that the traverser had told "Long Tom Jenkins that he would have to shoot Smith." Jenkins remonstrated with him, but the traverser replied, "I might as well shoot him as to have him shoot me." In the face of this testimony it is clear that the evidence offered in the second bill of exception was inadmissible. There is no evidence in the record tending to show that the traverser acted in self-defense when he made the assault. He had the benefit of all the evidence he was legally entitled to, and, there being no error in the rulings of the court, they will be affirmed. Judgment affirmed, and cause remanded.

WHITE et al. v. PITTSBURG NAT. BANK OF COMMERCE. (Court of Appeals of Maryland. Nov. 14, 1894.) ASSIGNMENT FOR BENEFIT OF CREDITORS-FAILURE TO FILE BOND-ATTACHMENT. Under Code, art. 16, § 205, requiring a trustee for the benefit of creditors to file a bond, and providing that "no title shall pass" to such trustee "until such bond shall be filed," the property is subject to attachment by creditors of the assignor until such bond is filed.

Appeal from circuit court, Allegany county. Attachment by the Pittsburg National Bank of Commerce against John K. White and another. There was a judgment for plaintiff, and defendants appeal. Affirmed.

When

The issue prayed on the part of the peti tioner was a clear statement of the question in controversy. There is no reason why it should not have been granted. The issues which were granted present an inquiry about the marriage of Isabella Parsons, when no person bearing that name is mentioned in the pleadings. It may be surmised that the petitioner is the person who is meant, but nevertheless the issues ought to be framed concerning the persons named and the matters set forth in the petition and answer. Supposing that these issues relate to Isabella Richardson, the second and third are in effect the same, and are merely repetitions of the issue proposed by the petitioner; and the third presents the question of marriage between the parties, and also the additional inquiry when, where, and how it was celebrated. In this state there cannot be a valid marriage without a religious ceremony, but a marriage may be competently proved without the testimony of witnesses who were present at the ceremony. It would work very cruel injustice in many instances if the law were otherwise. The witnesses might be dead, and competent written evidence of the ceremony might be unattaina ble. It would not follow, however, that the union between the parties would be considered illicit and the children illegitimate. The law has wisely provided that marriage may be proved by general reputation, cohabitation, and acknowledgment. these exist, it will be inferred that a religious ceremony has taken place, and this proof will not be invalidated because evidence cannot be obtained of the time, place, and manner of the celebration of the marriage. On this point we think it unnecessary to do more than quote from Redgrave v. Redgrave, 38 Md. page 97: "Where parties live together ostensibly as man and wife, demeaning themselves towards each other as such, and are received into society and treated by their friends and relations as having and being entitled to that status, the law will, in favor of morality and decency, presume that they have been legally mar ried. 1 Tayl. Ev. §§ 140, 517; Hervey v. Hervey, 2 W. Bl. 877; Goodman v. Goodman, 28 Law J. Ch. 745; Jewell v. Jewell, 1 How. 219, 232. Indeed, the most usual way of proving marriage, except in actions for criminal conversation and in prosecutions for bigamy, is by general reputation, cohabitation, and acknowledgment. Sellman v. Bowen, 8 Gill & J. 50; Boone v. Purnell, 28 Md. 607." The issue prayed by the petitioner presented the question with great simplicity, while the issues granted by the orphans' court were unnecessary reduplications of the same matter. This court has said (Sumwalt v. Sumwalt, 52 Md. 348): "In our opinion, the correct rule to be observed, and the one which will best subserve the purposes of justice, is to grant no more than one issue presenting the same substantial question;

and, secondly, not to multiply the issues unnecessarily, and to grant such only as distinctly present the real questions in dispute." For error in refusing the issue prayed by the petitioner, and in granting the other three, the order of the orphans' court must be reversed, and the case remanded for further proceedings in accordance with this opinion. Reversed and remanded.

KEENE et al. v. CORSE et al. (Court of Appeals of Maryland. Nov. 14, 1894.) PROBATE OF WILL-FILING CAVEAT.

Under Code, art. 93, §§ 328, 329, requiring that, before the admission of a will to probate, notice shall be given to the next relations of the deceased, and if, after such notice is given, no objection shall be made, probate of the will may be taken, the filing of a caveat, before an order has been signed admitting the will to probate, arrests all further proceedings until the caveat has been disposed of.

Appeal from orphans' court, Baltimore county.

Action by John Henry Keene, Jr., Robert Goldsborough Keene, and Sallie A. Craig, in the nature of a caveat interposed to the admission to probate of the will of John Henry Keene, Sr., deceased, on the motion of his executors, George F. Corse and David H. Carroll. From an order admitting the will with its codicils to probate, caveators appeal. Reversed.

Argued before ROBINSON, C. J., and BRISCOE, MCSHERRY, FOWLER, ROBERTS, PAGE, and BOYD, JJ.

John I. Yellott and O. I. Yellott, for appellants. D. G. McIntosh and John W. H. Fry, for appellees.

McSHERRY, J. After the death of John H. Keene, Sr., and before his executors propounded his will for probate, two of his sons filed in the orphans' court of Baltimore county a written objection to the probate of the will. Later on, the will was filed, but no notice appears to have been given that upon a specified day it would be probated. On the contrary, on the same day that it was filed, the proof of two of the attesting witnesses seems to have been taken. Some days later, and before any order had been passed by the orphans' court admitting the will to probate, a formal caveat was interposed, and the executors were duly summoned to answer it. Subsequently, and without disposing of the caveat at all, though a motion had been made for the executors to answer, so that issues might be framed, the orphans' court signed an order admitting the will to probate, and granting letters testamentary to the execu tors named therein. From that order this appeal was taken by the caveators.

The question thus presented is free from any difficulty. By sections 230 and 323 of article 93 of the Code the orphans courts

are given jurisdiction to admit wills to probate. Under sections 322, 328, and 329 the method of doing this is prescribed. Notice Is required to be first given to such of the next relations of the deceased as may conveniently be served therewith, as to the time of exhibiting the will for probate; and if, after such notice has been given, no objection shall be made, or no caveat shall be filed, the court is authorized to proceed and take the proof of the execution and. publication of the will. The authority to thus proceed and admit the will to probate, obviously and in terms, depends upon the giving of the notice and the absence of an objection or a caveat. Orphans' courts are tribunals of limited jurisdiction. Their proceedings, when assailed on appeal, must show a compliance with the provisions of the statutes conferring jurisdiction upon them, and those proceedings must be in conformity with, and not repugnant to, the statutes. Now, in the case before us, the plain letter of the statute, as well as its manifest purpose and intention, permits the orphans' courts to admit a will to probate only after notice has been given, and if there be no objection or no caveat filed. The filing of a caveat at any stage before an order has been signed admitting the will to probate arrests all further proceedings until the caveat has been disposed of. If this were not so, the very questions put at issue by the caveat would be prejudged by the orphans' court ex parte. These tribunals have no discretion when issues are demanded. "The duty of the orphans' court to make up and transmit issues to a court of law, when required, is imperative." Price v. Taylor, 21 Md. 363. The orphans' court of Baltimore county erred when, in the face of the pending caveat, it admitted the will to probate, and its order will be reversed, and the cause will be remanded, that issues may be made up and transmitted to the circuit court for trial. Order reversed and cause remanded.

RICHARDSON v. SMITH.

(Court of Appeals of Maryland. Nov. 22, 1894.) LETTERS OF ADMINISTRATION-PROCEEDINGS TO REVOKE-ISSUES.

1. A petition to revoke letters of administration on the estate of R., granted to S., deceased's aunt, alleged that the petitioner was a sister of R., who died unmarried and intestate, leaving no father, mother, brother, nor other sister, him surviving, etc. S., by answer, denied petitioner's right to letters, and also that there "ever was any other offspring than said decedent of any marriage of his father, W. R., deceased, or of any marriage of his mother, L. R., deceased." Held, that it was error to refuse the issue whether petitioner was the sister of R., deceased.

2. It was error to grant an issue as to whether petitioner was "the daughter, born of wedlock, of W. R., deceased, and I. P.; and, if yea, when and where was" she born?

3. It was also error to grant an issue whether petitioner was "the daughter, born out of wedlock, of W. R.. deceased, and I. P.; and, if yea, did said W. R. and said I. P., after the birth of" petitioner, "intermarry, and did said W. R., after said marriage, if any, acknowledge" petitioner "to be his child by said I. P."?

Appeal from orphans' court, Baltimore county.

Petition by Caroline Richardson to revoke letters of administration on the estate of Samuel Richardson, deceased, granted to Eliza A. Smith. From an order refusing to grant an issue prayed by petitioner, and granting issues prayed by such administratrix, petitioner appeals. Reversed.

Argued before ROBINSON, C. J., and BRYAN, BRISCOE, McSHERRY, FOWLER, ROBERTS, PAGE, and BOYD, JJ.

Charles E. Hill and F. P. Ross, for appellant. W. Hall Harris, Wm. Colton, and Geo. R. Willis, for appellee.

BRYAN, J. This appeal is taken from an order of the orphans' court of Baltimore county, which refused to grant an issue prayed on the part of the appellant, and instead thereof granted two others, prayed on the part of the appellee. Caroline or Carrie Richardson filed a petition containing the following statement: "That she is a sister of Samuel Richardson, late of Baltimore county, deceased, who died unmarried and intestate, leaving no father, mother, brother, nor any other sister, him surviving, and that she is entitled to letters of administration upon his estate, in preference to any other person; but, without notice to your petitioner, application has been made and letters of administration granted by this honorable court to Eliza A. Smith, an aunt of the deceased." The petition prayed a revocation of the letters of administration, and general relief. Eliza Smith answered the petition, and admitted the grant of letters to her, and that she was an aunt of the decedent. She denied the petitioner's right to letters, and averred, that she was fully aware of the application for them, and the grant of them to the respondent. She also made this statement in her answer: "That she admits the death, intestate, of said decedent, and that he left, him surviving, neither parent, brother, or sister, or descendant, but she denies that there ever was any other offspring than said decedent of any marriage of his father, William Richardson, late of said Baltimore county, deceased, or of any marriage of his mother, Lucy Richardson, also lare of said county, deceased." This is an argumentative denial that the petitioner is a sister of the decedent. Of course, in considering this traverse, we have no reference to the exceptional cases of the rights conferred on illegitimate children by the 134th section of article 93 of the Code. There is no averment of illegitimacy, either in the petition or answer, and it would be irrelevant to con