gers or third parties are to be affected. The public records will be of but little avail, if the private books and intentions of partners are to entirely control and determine the character of ownership of real estate. If property is purchased with partnership funds, and conveyed to one or more of the partners, as individuals, the entries of the firm books would have great-possibly controllingweight as to whether it should be treated as partnership or individual property; but courts should require more than private entries and understandings between partners, to overcome the public records, in cases such as this. No one would suppose, from reading the will of William H. Hoffman, that the property belonged to the partnership. Persons dealing with the individual members would be led to believe, from that will, that they owned the property individually; and, inasmuch as it was once the separate property of the members, we are not prepared to break down all the safeguards and protection intended by our registry acts, by announcing as the law of this state that partners can so change the character of real estate, originally owned by them as individuals, and not in any way derived from the partnership, as to give priority to firm creditors over their separate creditors, simply by making entries in their books, and treating it between themselves as partnership property, without giving some notice, or doing some acts equivalent to notice, to their individual creditors. The agreed statement of facts does not show that the appellant had notice of any facts that should have put its officers on inquiry. The statement is not as full as it might have been. It does not even show what business the firm was engaged in. But from the arguments, and what we gather from the record, we assume that they were manufacturing paper. Nor is it definitely stated whether the business was conducted in one or more paper mills, although it is shown that William H. Hoffman died owning real estate consisting of three paper mills, farm lands, etc. It would certainly have been much more satisfactory if the facts had been fully set out, so as to enable the court to understand the exact character and extent of the use of the real estate by the firm. But it is admitted that the property was acquired under the will of William H. Hoffman, and by the deeds of Mr. Vondersmith and Mrs. Smyser, and that no conveyance was made by the members of the firm to the partnership. As to what uses, if any, this firm, engaged in manufacturing paper, made of the farm, dwelling houses, and other property not necessarily incident to the paper mills, the record is silent; but it is certain that, without some notice that they were treated as partnership property, no one dealing with the individual members of the firm would be expected to so regard it; and the ordinary use of that kind of property, such as cultivating or renting the farms, occupying or renting the houses, etc., would not put creditors on

inquiry, or be sufficient notice that they were treated as partnership property. If the paper mills themselves, and such other real estate as would properly be used in connection with them, were treated by the partners as firm property, and were so used as to give notice to creditors of the individual members of the firm that they had been put into the partnership as part of the common stock, and were entered on the books of the firm in such way as to comply with the statute of frauds, then the partnership creditors might properly be given priority over the separate creditors, to the extent of the proceeds of sales of such property. The record does not disclose such facts as would justify us in determining that question; but, as the decree must be reversed, the court below can authorize testimony to be taken on that subject. We have carefully examined the authorities cited by the counsel for the respective parties, as well as many others, and have found considerable apparent conflict between some of them. But, when the facts of them are carefully examined, it will be found that the most of them are in accord with our conclusions, which might be summarized as follows: (1) That as the farms, houses, and similar property were not purchased with partnership funds, for partnership purposes, but were, as far as the public records show, the separate property of the individual members, and were not incident to the business of the firm, the fact that the partners entered them on the firm books, and treated them as firm property, is not sufficient to change them into partnership property, and the proceeds of sales of them should be applied to the payment of the claims of individual creditors prior to those of the partnership creditors. (2) That if the paper mills, and such other real estate connected therewith as would be necessary for the convenient and proper conduct of the business, were treated by the partners as partnership property, were put into the firm business as part of the common stock, and were so entered in the books of the firm as to comply with the statute of frauds, then the partnership creditors should have priority over the general creditors of the individual partners, in the distribution of the proceeds of sale of such property, provided this class of property was so used as to give notice to the latter that it was treated as partnership property, and was substantially involved in the business of the

firm.

There is still another question to be disposed of. It is contended that the appellant is estopped from claiming that the real estate is individual and not partnership property by reason of its signing a recommendation to the court to ratify its sale reported May 1, 1894, by John B. Ramsay, one of the trustees. Mr. Ramsay and Mr. Schott, the trustees, differed as to the propriety of a sale of the property remaining unsold, at the price which had been offered; the latter thinking that in time a better price could be obtained,

while the former thought it best to sell at Mr. Ramsay reported the sale, and Mr. Schott was required to show cause why it should not be made. The American National Bank, of which Mr. Schott was cashier, was the only creditor opposing the sale, and Mr. Ramsay undertook to secure the concurrence of enough creditors to overcome the opposition of that bank. Accordingly, the National Mechanics' Bank, of which Mr. Ramsay was president, and which was the largest creditor, signified, through its attorneys, who were also attorneys for the trustees, its concurrence in the sale, to the officers of the appellant, which was the next largest creditor, and sought their consent. It was explained to them that by the proposed sale the creditors of William H. Hoffman & Sons would get about 33% per cent. of their claims, and it was thought that the concur rence of two such large creditors would influence the others. It is apparent that appellant fully understood that the 33% per cent. was to come from the sale of the property mentioned in these proceedings. The appellant, the Mechanics' Bank, and another creditor signed a paper requesting the court to ratify the sale, whereupon Mr. Ramsay sent out a circular letter to the creditors of the firm, asking their concurrence in the sale; stating that the proposed sale would pay the creditors about 33% per cent. of their claims, and that these two banks approved of it. It is admitted that the officers of the Union Bank asked the counsel for the trustees and Mechanics' Bank whether the signing of the concurrence to the sale would affect the claim of the Union Bank, and "were told that it would not, and that it only meant an assent to said sale at the price proposed. But nothing was said by either side as to the claim against the property, as individual or firm property." We do not think the facts stated in the record are sufficient to estop the appellant. It is perfectly apparent that the difference between the trustees was as to the price to be obtained for the property,-whether the offer received by Mr. Ramsay should be accepted, or they should wait for a better price. There is not a particle of evidence tending to show that the property did not bring its full value, or that any of the creditors have been injured. The only creditor that filed objections to the appellant's claim on this ground is the Mechanics' Bank, which had concurred in the sale before the appellant did. It could not, therefore, claim that it was misled by the act of the appellant. But, before the officers of the appellant signed the recommendation, they inquired of the attorneys representing the Mechanics' Bank, and the trustees who were seeking their concurrence, whether it would affect the claim of the Union Bank, and were told it would not. There can be no question as to what claim was referred to, as the agreed statement shows that "the claim of the Union Bank was filed, long prior to any sale, against

both the partnership and the indorsers of the notes held by the bank." It would, perhaps, be more equitable to say that the Mechanics' Bank should be estopped from questioning the right of the Union Bank to assert its claim, after having induced it to sign the concurrence by the assurance that such act would not affect its claim. But there is no proof that any creditor was either misled or injured by the action of the appellant, and nothing in the record to justify an inference that such was the case. This court, in Hardy v. Bank, 51 Md. 590, in speaking of the doctrine of an estoppel in pais, said: "It can, therefore, only be set up and relied on by a party who has actually been misled, to his injury; for, if not so misled, he can have no ground for the protection that the principle affords." From what we have already said, it can be seen that we think that an application of the above principle of law to the facts of this case disposes of the question of estoppel. The decree pro forma must be reversed, and the cause remanded for further proceedings in accordance with this opinion. Decree reversed and cause remanded, with costs to the appellant.

BLACK v. HERRING et al. HERRING et al. v. BLACK. (Court of Appeals of Maryland. Dec. 19, 1894.) ACCOUNTING BY EXECUTRIX-ADVANCES-CHARGE AGAINST TRUST ESTATE-REMOVAL OF TRUSTEE

1. The rents and profits of a testamentary trust estate are not chargeable with cash advances made by the executrix after her final account has been allowed and an order of distribution of the trust estate been made, even though the account as allowed showed that the trust estate was indebted to her for such advances, and the court transferred the property subject to the charge.

2. A petition asking that trustees be compelled to give bond or be removed, the allegations in which are denied by defendants, is properly dismissed when there is no evidence to sustain them.

Cross appeals from circuit court of Baltimore city.

Bill by Calvin H. Black against Annie M. Herring and others. From the decree, both parties appeal. Affirmed.

For report on former appeal, see 28 Atl. 1063.

Defendant Annie M. Herring was appointed executrix of her mother's estate. To plaintiff, her son, testatrix left the rents and profits of a trust estate. On September 5, 1887, the executrix filed her account, and distributed all the estate except the trust estate, which she retained, the account showing a balance due her of $151.52 for cash advanced during administration. On October 4, 1888, the court passed her final account, showing the trust property subject to a charge of $77.49 for cash advanced by her, and on the same day the property was transferred by order of the orphans' court to her and her sister, Mrs. Der

ringer, as trustees, subject to this charge. In 1893 the son brought suit for a construction of the will, and for an accounting by the trustees. The cause, having passed through various stages, was finally taken to the court of appeals to determine the principles upon which the accounting should be made.

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

J. J. Wade, for plaintiff. C. D. Barnitz, and Jas. Pollard, for defendants.

BRISCOE, J. These are cross cross appeals from circuit court No. 2 of Baltimore city. When the case was before us at the January term, 1894, on a bill filed to obtain the true construction of the last will of Elizabeth W. Black, the decree of the lower court was reversed, with costs, and the cause remanded for an accounting by the trustees of certain rents received by them from the Lexington street property, and these appeals are from the decree passed on that audit. It was held in the former appeal that the emergency upon the happening of which the Lexington street lot was to be sold had never occurred; and, the personal estate having been finally settled, the defendant trustees by their answer admit that on the 4th of October, 1888, the said lot was, in pursuance of an order of the orphans' court of said city, transferred to the defendant trustees by the executrix, acting in pursuance of the terms of said will, and they continue to hold the same, and have, since the date of said transfer, collected the rents therefrom, paid the expenses thereof, and kept an exact account of both. No necessity has, therefore, arisen requiring the sale of the Lexington street front, and it must, in its present form, be considered as the corpus of the trust, and said trustees must account for the rents or accretions of said property, and settle their account in the court below in accordance with the views herein expressed. It was then setIt was then settled by that appeal that Annie M. Herring and Mary E. Derringer are only liable as trustees for the rents, issues, and profits arising from the Lexington street property from the 4th day of October, 1888; this being the date when the property was transferred to them under an order of the orphans' court of Baltimore city. There is no error, then, in the decree sustaining the exception to this part of the audit filed on the 28th of May, 1894; nor are the rents, issues, and profits thereafter received chargeable with the sum of $77.49, shown to be due the said Annie M. Herring as executrix by her last account, passed in the orphans' court. The Lexington street property had not been sold, and was a part of the corpus of the trust. There is no evidence in the case tending to show that these trustees, who had been appointed by the will of Mrs. Black, should be removed, or should be required to give bond or security for the due execution of the trust. The allegations in each petition

are denied by the trustees, and there was no proof to sustain them. They were properly dismissed by the court. There was no error in

the decree directing the costs of the former appeal to be paid by the trustees individually, as was directed by the former appeal. There being no error, the decree passed on the 25th of June, 1894, will be affirmed, each side to pay one-half the costs of these appeals, the trustees' costs to be paid by them individually, and not from trust fund. Decree affirmed, each side to pay one-half of the costs.

GENCE-QUESTION FOR JURY.

1. An exception to instructions, not signed

She

by the trial judge, will not be considered. 2. In an action against a street railway for personal injuries, it appeared that plaintiff, a woman 77 years of age and very deaf, while crossing a street was struck by the car. testified that she heard no bell. One witness who saw the accident stated that plaintiff was struck by the brass handle in front of the car, and that he did not hear the bell ring; and another that he heard no bell, and that he could have heard it had it been rung. The testimony for defendant was to the effect that the bell was rung; that the street on which the car was running was a wide street, and the car could be seen for a long distance; and that plaintiff never was on the track, but walked into the car, which was not moving at the time. Held, that the question of defendant's negligence was properly submitted to the jury.

Appeal from superior court of Baltimore city.

Action by Elizabeth Coleman against the Central Railway Company of Baltimore. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before BRYAN, MCSHERRY, FOWLER, BRISCOE, PAGE, and ROBERTS, JJ.

T. W. Blackistone and Geo. Blackistone, for appellant. S. P. Campbell, P. J. Campbell, and C. D. McFarland, for appellee.

BRISCOE, J. This was an action brought by the appellee against the appellant for personal injuries alleged to have been sustained by her while crossing Caroline street. in the city of Baltimore. The verdict was for the plaintiff, and the defendant has appealed. At the trial there was a special exception reserved to the granting of the first, second, third, and fifth prayers of the plaintiff, for the want of sufficient evidence to sustain them. This exception is not signed by the judge, and, not being properly before us, the questions raised by the facts cannot be considered by us. In the case of Bank v. Armstrong, 66 Md. 119, 6 Atl. 584, we said: "But we need not decide what would have been our determination of this question, if the facts set out in this certifi

cate were properly before us, because we are all clearly of opinion that we cannot consider them. This court is strictly an appellate tribunal, and, on an appeal in a civil suit like this, the facts of the case and what occurred at the trial can be legitimately certified to us only through the medium of bills of exception taken to the rulings of the inferior court, regularly signed by the judge, and our duty is confined to a review of these rulings. On such an appeal, what is outside of the exceptions is outside of the record. There is no statutory or other legal authority for the certification of facts to this court, in such a case, by means of a certificate like this. In every such case the judgment must stand or fall according as the rulings excepted to are decided to be correct or erroneous, unless it appears that the party appealing has suffered no injury by an erroneous ruling against him, and this must appear solely from the verdict and the rulings and facts embodied in the exceptions." The defendant's second and third prayers were granted in connection with the plaintiff's fifth prayer, but its first prayer was rejected, which asked the court to instruct the jury that there is no evidence in the cause legally sufficient to entitle the plaintiff to recover, and their verdict must be for the defendant. And the sole question And the sole question here is, was the evidence as adduced legally sufficient to show that the plaintiff was injured by the negligence of the defendant or that of its agents? It is the settled law of this state, as well as in England, that the legal sufficiency of evidence is a question of law for the court. The onus of proving that the injury was caused by the negligence of the company is on the plaintiff, and, if there be no evidence legally sufficient for that purpose, there can be no recovery. The evidence here shows that the plaintiff was an old woman, 77 years of age, and very deaf,-so deaf that she could not hear the bells rung upon the cars in the streets adjoining the courthouse, although her attention was called to them. She heard the counsel in the case with difficulty. She testified that on the afternoon of March 28, 1893, "she left her daughter's to start up Caroline street, in the city of Baltimore, the way she had often gone; that she always looked at the crossings; that she walked across, and that was the last;" that she attempted to cross Caroline street above the flagging at Monument street, and was struck by the car on the left side of the nose and face. She could not tell how far she went up Caroline street before she crossed, nor how she fell, nor how she was struck. She heard no bell. The witness Wetmore testified, on behalf of the plaintiff, that he was on the southwest corner of Monument and Caroline streets, and about 20 feet from the place where the accident occurred; that the plaintiff was struck by the brass handle on front of car; that he did not hear the bell ring. The witness Carroll, who was with Wetmore at the time of the accident,

also testified that he heard no bell; that he could have heard it if one had been rung. The testimony on the part of the defendant is to the effect that the bell was rung; that Caroline street is a wide street, where a car can be seen for a long distance; that the plaintiff never was on the track, nor in front of the car, but that she walked into the side of the car, and was struck while walking towards the track; that there was no negligence on the part of the company; that the car was not going when she walked into the car. Now upon this evidence we think the court was right in not withdrawing the case from the jury. The first prayer was in the nature of a demurrer to the evidence, and was a concession of facts, but a denial of their legal sufficiency. It is obvious, that the material facts in this case are conflictng, and the plaintiff was entitled to have the whole evidence passed upon by the jury. In the recent case of Railroad Co. v. Keedy, 75 Md. 324, 23 Atl. 643, we said: "The evidence may not have been of such character as to convince all minds that there was culpable negligence on the part of the appellant's agents, but, if there was any evidence from which a jury might honestly reach a conclusion, then there was no error in allowing the jury to consider it." jury to consider it." There was evidence tending to show that the bell was not rung, and that the plaintiff was not struck by the car, as testified to by the defendant's witnesses. These were material facts, and questions properly left for the jury. We only deem it necessary to cite a few of the leading cases applicable here: Traction Co. v. Wallace, 77 Md. 412, 26 Atl. 518; Kean v. Railroad Co., 61 Md. 167; Tyson v. Tyson, 37 Md. 582; Green v. Ford, 35 Md. 86. We have carefully examined the other prayers granted by the court, and find them correct. They contain the correct principles of law applicable to this case. Traction Co. v. Wallace, 77 Md. 437, 26 Atl. 518. It follows from what we have said that this case was properly left to the jury, and the judgment will be affirmed. Judgment affirmed, with costs.

COMMISSIONERS OF CECIL COUNTY ▾. BANKS.

(Court of Appeals of Maryland. Dec. 19, 1894.) CONSTITUTIONAL LAW-TITLE OF ACT-MANDAMUS -RETURN.

1. Act 1894, c. 25, providing for the election of a treasurer for Cecil county for the year 1895, and appointing one to hold the office in the meantime, is constitutional. Drennen v. Banks (Md.) 30 Atl. 655, followed.

2. Under Act 1894, c. 25, appointing a treasurer for Cecil county until one is elected, and providing that he shall have the custody of all the books and papers of the treasurer's office and of the county commissioners' office, an answer by such commissioners in mandamus by such appointee, admitting that a demand had been made for all books and papers "of which he was, by virtue of said office, custodian," and averring that another was in possession, whom