was due and payable. It was also alleged that the scire facias judgment is void because there was no notice to the defendants, and that they were prevented from having notice by the fact that John B. Brown, Esq., one of their attorneys in the original case, was one of the attorneys in the scire facias for the plaintiff. It is but just to say that the counsel for the appellant makes no imputation against Mr. Brown, and concedes that his action was entirely free from any improper motive or purpose. Mr. Brown testifies that when the scire facias was ordered he had no idea or recollection that he had ever had any connection with the case at any time; that there was no trial of the case, and that the probabilities are that he and the other attorney for the defendants, who is now deceased, were assigned under the rules which then prevailed. The record shows that there was no contest in the case, and that judgment by default was rendered for failure to plead. Mr. Brown also contends that whatever connection he had with defendants was terminated when the final judgment was rendered in the original case. The evidence clearly shows that both of the defendants were perfectly well aware of its rendition.

The circuit court for Queen Anne county is a court of general jurisdiction. It had jurisdiction of the cause and of the parties when the original judgment was rendered, and therefore it cannot be void. If there was error or irregularity in the proceedings, they might have been set aside on application to that court, or by appeal to this court, provided the proper steps had been taken in due time. The scire facias judgment was rendered in the regular course of the court, and according to established practice. The remedies for any errors supposed to exist are the same as in the case of the original judgment. The objections to these judgments made by the appellant cannot be heard and decided on the motion to quash the fieri facias. This is the settled law. We need refer only to a decision made on a motion to quash a writ of venditioni exponas issued under a judgment on a scire facias which revived the original judgment. Hall v. Clagett, 63 Md. 59, it was said: "A motion to quash an execution does not open an inquiry into supposed errors or irregularities involved in the rendition of the judgment. If there be such errors or irregularities, they must be corrected by the proper proceeding for so doing taken in the particular case." In Campbell v. Booth, 8 Md. 113, a motion was made to quash a scire facias because there was an outstanding fieri facias in full force when the writ of scire facias was issued; and, secondly, because the judgment had been paid and satisfied. The court held that these objections could be presented only by pleas, and that, therefore, the motion to quash ought to be overruled. The case came before the court

In

a second time in 15 Md. 569, and, these defenses being pleaded, it was decided that the pleas were bars to the scire facias. These objections were identical with two of those which are made in this case. Since the decision in 15 Md., it has been enacted by the legislature that a plaintiff may have more than one execution outstanding at the same time. The scire facias might have been defeated by the plea of the statute of limitations. It has always been held in this state that this defense must be specially pleaded. The application of this rule of practice to writs of scire facias was recognized in Mullikin v. Duvall, 7 Gill & J. 355,-a case which has been frequently cited and approved, and never questioned. We conclude that the appellant cannot, by a motion to quash, obtain the relief which he seeks. But he is not without remedy. In Starr v. Heckart, 32 Md. 267, a judgment had been rendered against the appellant, who afterwards received his final discharge under the insolvent laws. After his discharge a writ of scire facias was issued on the judgment, and after two returns of nihil a fiat was entered and execution issued. It was shown that the appellant had never assumed to pay the judgment since his final discharge, and that he had no notice of the scire facias and the subsequent proceedings until his property was seized under the execution. The court held that he was entitled to an injunction restraining the execution of the judgment. It was satisfied that he had a good and valid defense, though, without fault or laches, he had had no opportunity to make it, and that he did not have a full and adequate remedy at law. It had been argued that the two returns of nihil operated as constructive notice to the judgment debtor, and that he was as much concluded by the fiat judgment as if he had been summoned, and had waived his plea of discharge. But the court refused to adopt this suggestion,. and said: "If he has been summoned, and a fiat is entered, he may be concluded; but if he has not been summoned, and no opportunity afforded him to plead his discharge, it would be manifestly unjust to deprive him of a defense which he was not allowed to make. In 2 Tidd, Pr. 1185, it is expressly laid down that when a party has a release or other matter which he might have pleaded to the scire facias in his discharge, and, for want of pleading it, execution is awarded upon a scire facias returned, he is estopped forever, and cannot, by any means, take advantage of that matter. But, when execution is awarded on two nihils returned, he may relieve himself by audita querela." The audita querela has been superseded in modern practice by motion to the court. The court said that this would not, as a general rule, afford a full and adequate remedy. Yet if the party chooses to adopt it, in preference to a bill in equity for an injunction, we can conceive of no reason why

he should not be at liberty to do so. In the present case, both of the defendants had removed from Queen Anne county more than 17 years before the issue of the scire facias, and we are satisfied that neither of them knew anything of it until after the execution was issued. The evidence is conflicting The evidence is conflicting about the payment and satisfaction of the judgment, but there is no doubt that the original judgment is subject to the bar of the statute of limitations. Justice requires that the defendants should have an opportunity to plead these two defenses. The court below was right in refusing to quash the execution, but it ought to have ordered a suspension of proceedings under it for a reasonable time, so as to allow the defendants an opportunity to move the circuit court for Queen Anne county to strike out the judgments of fiat, and to give them leave to plead to the scire facias. As we have heard the evidence in the case, there is no necessity that it should be heard again. We are therefore of opinion that when this motion is made the court ought to strike out the judgments of fiat, and give the defendants leave to plead. Order reversed, and cause remanded for proceedings in accordance with this opinion.

ROSE v. BUSHER.

(Court of Appeals of Maryland. Dec. 18, 1894.)

REVIEW ON APPEAL-HARMLESS ERROR-PARTNERSHIP.

1. An instruction is not ground for reversal in that it deprives plaintiff of certain evidence under his plea of payment, where the record does not show that such evidence was offered for any purpose.

2. An agreement between two parties to farm on shares, one of whom is to expend a certain sum in the farming operations, does not constitute a partnership, though one of the parties spoke of it as such.

Appeal from superior court of Baltimore city.

Asumpsit by Charles Busher against John Rose. There was a judgment for plaintiff, and defendant appeals. Affirmed.

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

Rand. Barton, Skip. Wilmer, and Jas. M. Munroe, for appellant. Jas. P. Gorter, Rich. M. Duvall, and Jas. R. Brashears, for appellee.

FOWLER, J. The plaintiff sued the defendant in assumpsit on the common counts in the circuit court for Anne Arundel county. To this action the defendant pleaded payment and set-off, and filed with the latter a bill of particulars. The plaintiff pleaded limitations to defendant's plea of set-off, and upon the suggestion of the latter the case was thereupon removed to the superior court

of Baltimore city, where, after several amendments of the defendant's pleadings, the case was finally tried before a jury on the common counts, to which there was a general issue plea, a special plea of payment as to the fifth count, and a plea of setoff, and the plaintiff's plea of limitations thereto. The verdict of the jury having been against the defendant, he has appealed. The rulings upon the prayers present the only questions for review. The court below granted five of the plaintiff's prayers, namely, the first, third, sixth, seventh, and eighth, and gave an instruction as to to the application of limitations to defendant's set-off. The defendant's first, second, and fifth prayers were each modified, and his sixth was rejected.

1. The first prayer of the plaintiff is not objected to as granted, and, all objections as to the sixth and eighth having been waived, we shall consider only the third and seventh. It will be observed that the third was granted in connection with defendant's fifth prayer, and, this being so, we are unable to see the force of the defendant's objection that he was, by the granting of this prayer of the plaintiff, deprived of the benefit of the evidence offered under the plea of payment. Both prayers inform the jury that the defendant is entitled to a deduction from the plaintiff's claim for all sums of money which they shall find the former paid for the latter by his authority, provided that no deduction shall be made for any of the alleged items of set-off mentioned in the instructions on limitations. The defendant, while conceding that limitations might be a bar to a recovery for the items in the bill of particulars of his set-off, which are mentioned in the court's instruction, suggests that such items cannot be barred when offered under the plea of payment, because limitations cannot be pleaded to payments. Without discussing this proposition, it is sufficient to say that the record does not show that any evidence as to the items excluded by the court's instructions was offered by the defendant for any purpose. may be assumed, perhaps, by reason of the court's instruction, that such evidence was offered in support of defendant's plea of set-off, but there is nothing before us to show that any such evidence was offered in support of the plea of payment. On the contrary, to sustain his plea of payment, the defendant offered an account of payments and disbursements which discloses more of the items contained in his bill of particulars of set-off.

It

2. The first prayer of the defendant was modified, and we think properly so. As offered, it sets forth the proposition that an agreement to farm on shares constitutes a partnership, and that, therefore, there can be no recovery in this case, because there has been no accounting between the plaintiff and defendant of the partnership transac

ant had offered to send a doctor to attend plaintiff, but that plaintiff did not want a doctor. Plaintiff was recalled, and denied the testimony in regard to the doctor. There was a trial by jury, resulting in a verdict for plaintiff for $36.

H. H. Ward, for plaintiff. Harry Emmons, for defendant.

COMEGYS, C. J. (charging the jury). That while, in the case of untamed animals, a person keeping them is liable for any injury they may do to others, yet, where animals have been domesticated,-for example, dogs,the owner of them is only liable in case he knows they are accustomed to bite, or have a ferocious, savage disposition or spirit, which domestication has not subdued. It is not necessary, in order to entitle the plaintiff to recover for the bite of the dog, that he should prove that another person has been bitten, but it is sufficient if he shows by proof that the owner knows him to have a wicked, ferocious spirit, such as renders it dangerous that he should be at large. The fact that he is commonly kept confined by the owner is evidence from which the jury may infer such knowledge on the part of the owner. In all cases, before a plaintiff can recover for injury by a dog from having been bitten, it must be proved to the satisfaction of the jury that the defendant kept the dog, and that he did so knowing he would bite, or was of such a ferocious nature that he had a propensity or was likely to do so. Such knowledge may be shown, as well by circumstances as by positive proof.

The plaintiff was rightfully on the defendant's premises, upon his usual errand for milk, and was in no sense wrongfully there. If the jury should find for the plaintiff, he is

entitled to such damages as necessarily arose from such an injury as he sustained, including nursing, medical attendance, pain, suffering in body, and fear and apprehension of hydrophobia, if such be shown to have been incurred or felt, and also any loss he sustained from having been disabled from pursuing his usual business.

Verdict for plaintiff for $36.

DUKES v. COLLINS et al. (Superior Court of Delaware. April, 1884.) LIMITATIONS-ABSCONDING DEBTOR-RETURN TO

STATE.

Where resident debtors absconded in order to prevent the limitations from running against a clair after the return of one of them, it is necessary that the creditor should have taken some active steps to have ascertained the debtor's whereabouts; and if he could, in the exercise of reasonable diligence, have served process on him, the statute commenced to run on his return, and never stopped afterwards.

Foreign attachment by Littleton H. Dukes, for use of Charles M. Dukes, against Sar

geant Collins and another, lately trading as Sargeant Collins & Bro. Verdict for defendants.

Pennewill and James L. Walcott, for defendJ. Alexander Fulton, for plaintiff. James

ants.

COMEGYS, C. J. (charging the jury). There

are two questions for the jury, the first of which is, did the defendants, as alleged by them upon oath, settle with the plaintiff in

April, 1868, and show him that he was inquiesced? If you believe their testimony, debted to them, in which exhibit he acthey are entitled to your verdict. If, on the contrary, you do not credit it, but give your confidence to that of the plaintiff, and believe that, as sworn to by him, there never was any such settlement, and also believe that his claim of indebtedness by them to him is sustained, then the plaintiff is entitled to recover the amount of

of limitations to bar it. his claim, unless he has allowed the statute of limitations to bar it. This claim is quite sixteen years old. It is what is called a "simple contract debt," as to which the statute provides that suit shall be brought for recovery thereof within three years from the time the right to sue accrues, or not at all. 1 speak of the effect of the act. In this case, as appears by the plaintiff's testimony, the board, etc., which is the subject of the claim, was furnished during part of the years 1867 and 1868, the time ending in April of the latter year. The cause of action, or, which is the same thing, the right to sue the defendants, accrued to the plaintiff at that time, there not appearing any agreement for credit, and there being no usage for such, as far as we are aware, in like cases. Regular

ly, therefore, a suit to recover this claim was

barred by the statute on the 1st of May, 1871. The defendants have pleaded the act of limitations, and, if issue had been taken upon such plea, the statute would have been a flat bar to this action; but the plaintiff has replied two allegations to the plea, the first of which is in effect that, before the cause of action accrued, the defendants left the state, and never afterwards, up to the time of bringing the suit, returned into the state, so that by reasonable diligence they could be served with process. The other is that after the cause accrued, and within three years thereafter, the defendants left the state, and up to the time of bringing this action had not returned, in manner aforesaid. Issue is taken upon these replications, according to the statement upon the record, and upon them the question is, did the plaintiff in this case use reasonable diligence in endeavoring to ascertain whether the defendants had come within the reach of legal process? We say to you that reasonable diligence, in cases of absent debtors, requires that the plaintiff shall at least take some steps, from time to time, to ascertain whether his debtors can

be reached by suit or not. Where a cause of action accrues while a defendant is a nonresident, the law would not require of the plaintiff the same degree of diligence as in a case where the defendant was a resident when it accrued, and went out afterwards, but before the time for bringing suit had expired. In such case it is not unreasonable to require a greater degree of diligence. In the first case, as the plaintiff is not bound to keep a writ running against his debtor, there would be no hardship in requiring that

Whether this testimony is to be credited by you, and there is nothing to gainsay it, it is for you to say. If you take it to be correct, then to hold that due diligence was used by the plaintiff according to the requirement of the statute would be virtually to repeal it. Verdict for the defendant.

MILLER v. LACEY.

of his creditor, so that his presence might be known. But the case is very different where the debtor resided in the state while the cause of action was accruing, or after it had accrued. In such case, in order that the statute may be complied with, it is necessary that something at least like active diligence should be done by the creditor to prevent the act from running. He is not, in such case, to fold his arms and await the coming of his debtor in his immediate neighborhood; but should be prepared to show that he has at least made, at different intervals or periods, inquiry as to the whereabouts of his debtors. He is not required to keep a suit pending against them; but where they have come into the state openly and notoriously, so as to be visible to all that choose to seek after them, resorting to no concealment or other step to prevent their creditor knowing of their presence, and so remained long enough for him, if he had used ordinary means to inform himself of the fact, to find out that they or one of them was present in the state, and also to consult counsel and sue out process which might, by reason of their continued presence, have been served by the sheriff, the act commences to run again from the time of such return and reasonable opportunity for service of process, and never stops afterwards. This suit was brought on the 9th day of February, 1882. If you find that more than three years before that time these defendants, or either of them, was in this state in such manner of openness, notoriousness, before all the people where they were, as that the plaintiff might, if he had been looking after them and his claim as ordinary creditors would, have caused process to have been served upon them, then he was bound to have it issued and served, and, not having done so, he is now barred. The defendants in this case went to Sussex from Frederica, in this county, and that fact was known. You have testimony before you that they returned to Frederica after they left Sussex, and that they or one of them was there most of the time from 1871 to 1874, being sometimes temporarily absent in Philadelphia. It is also in proof that in 1878, in October, Albert Collins came to reside at Woodside, in this county, and engaged in business, and that he resided there or at Canterbury Station, two or three miles off, up to the time of the suit, and now resides there.

FRAUDULENT CONVEYANCES-CONSIDERATION.

A sale of personalty by a debtor in failing circumstances is invalid as against his creditors, unless the goods are sold for a valuable consideration and delivered with such convenient promptness as the transaction warrants, and the purchase is made with no purpose of defeating the claims of the creditors. James K. Miller Judgment for de

Action of replevin by against Thomas T. Lacey. fendant.

James Pennewill, C. H. B. Day, and James L. Wolcott, for plaintiff. J. Alexander Fulton, for defendant.

In

COMEGYS, C. J. (charging the jury). order to make a valid and perfect sale of property, there must be delivery of it at the time of the transaction, or as soon thereafter as the circumstances existing will permit. This is the general law with respect to the subject, recognized and acted upon by the courts throughout the country. In order to fully inform the public mind about the requisites of a valid sale, the legislature of this state re-enacted the principal features of the English statutes of frauds and perjuries, and laid down the law of sales by the fourth section of such re-enactment in the following words (Rev. Code, p. 356): "No sale, whether with or without bill of sale, of any goods or chattels, within this state, shall be good in law, (except as against the vendor) or shall change, or alter, the property in such goods or chattels, unless a valuable consideration for the same shall be paid, or in good faith secured to be paid, and unless the goods and chattels sold shall be actually delivered into the possession of the vendee as soon as conveniently may be after the making of such sale. And if such goods and chattels, so sold, shall afterward come into and continue in the possession of the vendor, the same shall be liable to the demands of all his creditors." To make a sale valid, therefore, in this state, so as to change the property in the articles, and vest it in the buyer, there must be an actual delivery into the hands of the purchaser as soon as conveniently may be after the sale is made. Where articles are capable of delivery by hand, and are present at the time of the sale, they should be at once handed over to the buyer. Where they are not present, they should be delivered without any delay except such as their absence necessarily occasions. Where they are not capable of actual