ive, constituting an ulterior or primary cause, the act belongs not to the class of negligent acts, but to that described as accidents. Turnpike Co. v. Case, supra. For a mere accident, unmixed with negligence or fault, no action will lie, even though an injury has been done; and no action will lie because there has been no breach of a duty that was owed, and therefore no negligence. Gault v. Humes, 20 Md. 297; 1 Am. & Eng. Enc. Law (2d Ed.) 272, 273, note 2. If, in a given case, where an injury has happened, and where, by reason of the duty that is owed and the circumstances existing, the presumption of negligence arises from the mere fact of an injury having been sustained, it be shown that the duty which was owed to the party receiving the injury had been performed to the full measure that the law exacts, then there is no breach of duty, and, there being no breach of duty, there is and there can be no negligence. This conclusion must be legally and logically applicable to a case like the one before us, if the carrier is not an insurer of the passenger's safety; and, if the conclusion be applicable, it can only be so because the carrier is an insurer of the safety of the passenger.

The measure of duty which a carrier owes to a passenger is, as we have said, the utmost care and diligence which human foresight can use. If human foresight, with the aid of the most advanced scientific methods yet discovered, is powerless to detect latent defects that are searched for in the appliances used by the carrier, and if proper skill be employed in the construction of those appliances, and if the appliances themselves are appropriate, and still an injury happens, not from negligence in their use, but solely and exclusively from some hidden defects in their structural materials, that adequate and careful inspection, seasonably and faithfully employed, failed to reveal, then such an injury is referable to a nonactionable accident, and not to negligence. There may be negligence predicated of an improper or careless operation or use of a perfectly sound appliance, but that is negligence in the manipulation or employment, and not in the construction, of the thing causing the injury. With that species of negligence the prayer does not deal, and it is consequently not involved in this discussion. The prayer we are considering left it to the jury to find whether the injury sued for resulted solely from a hidden defect in the wire, which defect could not have been discovered by any reasonable examination; and it also left it to them to find whether proper and competent contractors had been employed to erect the structure, and whether suitable materials had been used and a skillful method had been pursued in the work; and it then instructed them, as the legal conclusion from an affirmative finding of these hypotheses, that the appellant had performed its duty to the passenger in so far as that

duty related to the providing of proper appliances that were alleged to have caused the injury; and, of course, it necessarily followed that, if its whole duty in this regard had been done, there was no breach of a duty owed to the passenger, and consequently no negligence of the character charged in the declaration; and, if there was no negligence, there was no cause of action. Under these conditions, the injury was the result of accident. This prayer contained a correct exposition of the law, and the jury ought to have been instructed to that effect. The refusal to do so was error. In addition to the adjudged cases hereinbefore cited, we may, in support of the legal principle announced in the prayer, refer to the following: Crutchfield v. Railroad Co., 76 N. C. 320; Handelum v. Railway Co., 72 Iowa, 709, 32 N. W. 4; Railway Co. v. Locke, 112 Ind. 404, 14 N. E. 391; Carrico v. Railroad Co. (W. Va.) 19 S. E. 571; Libby v. Railroad Co., 85 Me. 34, 26 Atl. 943; Spellman v. Transit Co., 36 Neb. 890, 55 N. W. 270; Simmons v. Steamboat Co., 97 Mass. 361-367.

There was error, also, in refusing to grant the first prayer of the defendant, as offered. The declaration did not count on negligence in the operation of the trolley wire and car; nor did it allege that an injury had resulted from the negligence of the servants in charge of the car, as negligence in the operation of the car involves; but it proceeded exclusively on the ground that the wire was, through carelessness and negligence, out of repair, and, in consequence, broke, and, breaking, inflicted the injury complained of. The defendant clearly had the right to have the jury confined to the issue made by the pleadings, and its first prayer as presented did this; but the modification of that prayer amplified and enlarged the issue. In this there was obvious error.

The second exception brings up a ruling as to the admissibility of evidence. A witness, not an expert, was asked what was the condition of the plaintiff on September 12th, -one month and eight days after the date of the accident. And the witness replied that he "looked very bad; he was lame, and he could scarcely go up stairs," etc. The question and answer were excepted to. The witness was not asked an opinion. She was simply required to describe the plaintiff's physical condition, and this she was competent to do, because it was merely the description of a fact which she had seen. Its weight and value were for the jury. We see no error in the ruling.

The first exception brings up a new question of practice. By section 6 of article 15 of the constitution, a trial by jury of all issues of fact is guarantied to every litigant when the sum in controversy exceeds five dollars, though it is competent, under section 8 of article 4, for the parties to a proceeding to waive that right, and to submit the cause to the court for determination without the

aid of a jury. It was found in actual practice that these provisions resulted in congesting the dockets of the common-law courts in the city of Baltimore, and accordingly an amendment of the organic law was proposed by the general assembly during the session of 1892. This amendment was subsequently adopted by the people. Among other things, it declares that "the general assembly may provide by laws, or the supreme bench [of Baltimore city] by its rules, for requiring causes in any of the courts of Baltimore city to be tried before the court without a jury, unless the litigants or some one of them shall, within such reasonable time or times as may be prescribed, elect to have their causes tried before a jury." This amendment, it will be seen, requires the causes therein referred to, to be tried by the court, unless an election to have a jury trial is made, and produces precisely the converse of the condition which prevailed prior to its adoption. Acting under the authority thus conferred upon it, the supreme bench adopted a series of rules to put the amendment into effect. Those rules provide that all causes standing for trial in the common-law courts of the city shall be tried before the court without a jury unless an election in writing be filed for a trial before a jury. They further declare that such election must be made by the plaintiff not later than 15 days after the filing of the declaration, and that defendants must make such election at or before the time of first filing a plea, but in no event after the time allowed by law to plead. It is also prescribed that "such election shall not be withdrawn except by written consent of all the parties filed in the case." The original declaration filed in this case concluded with these words: "Wherefore he brings this suit, and claims $5,000 damages, and prays a jury trial." Subsequently an amended declaration was filed, and immediately following the claim for damages these words appear: "The plaintiff prays a jury trial." This is the only election made by either of the parties to have the case tried by a jury. When the case was called for trial in the court of common pleas, the appellant filed a motion asking that a trial be had before the court without the aid of a jury, assigning, as a reason in support of the motion, the omission of the plaintiff to file, in the manner and within the time fixed by the rules, an election for a trial before a jury. This motion was overruled, and to that adjudication the first bill of exceptions was taken.

We think there was error in this ruling. There was no election by the plaintiff other than the concluding words which we have quoted from the declaration. These words. were in fact a part of the declaration. A withdrawal of the declaration under leave of court would have withdrawn the election for a trial by jury, notwithstanding the rule forbids a withdrawal of an election without

the consent of both parties. It was the obvious intent of the rule that an election for a trial by a jury should be a separate and distinct act, evidenced by a writing different from the pleadings, so that no change in the latter could affect or interfere with the former. Clearly, the correct practice under the rule is the one just indicated. There is an additional reason: By the same rule it is made the duty of the several clerks, as soon as it is ascertained that a cause will not be tried by a jury, to transfer the same to a separate trial docket, entitled "Non Jury Cases," and the trial shall take place before the judge at large. Now, it was manifestly not the design of the rule that the clerks of the several courts should examine all the pleadings to ascertain whether somewhere among them there might be found a claim for a trial by jury; and, to obviate the necessity for such an examination, the rule plainly provides that the election shall be filed in writing, not later (if filed by the plaintiff) than 15 days after the filing of the declaration. The two things, viz. the election in writing and the declaration, are treated by the rule as distinct and independent; and it is clearly error to combine them in one paper. A declaration is simply the statement of the plaintiff's cause of action, and it has nothing to do with the mode of trial. The election is a mere designation of the mode of trial, and has nothing to do with the thing to be tried. Strictly, the declaration should contain no averments or statements beyond those that are necessary to set forth the cause of action; and hence a distinct step in the case relating only to the mode of trial ought not to be made a part of the declaration, with which it has no concern. What is true of the declaration is true also of the pleas, and the election should form no part of them. For the errors we have pointed out, the judgment must be reversed; and, as the truth of the evidence adduced by the defendant is a matter wholly for the jury, or the court sitting as a jury, to pass upon, a new trial will be awarded. Judgment reversed, and new trial awarded, with costs above and below.

GOLDSCHMID v. MELINE. (Court of Appeals of Maryland. Nov. 17, 1897.) ABATEMENT AND REVIVAL-DEATH OF PARTY-APPEAL AND ERROR-WHEN LIE.

1. The statute allowing an appeal to the court of appeals for reviewing judgments of inferior courts does not authorize an appeal to be taken or entertained in a case where a writ of error was not available at common law.

2. If plaintiff dies before errors assigned, the writ of error abates at common law.

3. Code, art. 5, §§ 73, 74, 76, permitting the prosecution of an appeal in actions at law by the personal representative of a party that has died pending suit, all have reference to cases where the appeal has been taken at the time of the death. Therefore, where a plaintiff against

whom judgment has been rendered dies before entering an appeal, his personal representative cannot enter it.

Appeal from circuit court, Montgomery county.

Assumpsit by Rudolph Goldschmid against Manche H. Meline and another, in which there was a judgment in favor of Manche H. Meline. Plaintiff subsequently died, and Mathilde Goldschmid, his executrix, was made a party plaintiff, and she now appeals. Dismissed.

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

Adolph Wolf, B. F. Waters, and D. W. Baker, for appellant. Robert B. Peter and F. E. Chapin, for appellee.

MCSHERRY, C. J. The appeal in this case must be dismissed. The facts are these: One Rudolph Goldschmid brought suit in the circuit court for Montgomery county against Manche H. Meline and Louis D. Meline in assumpsit on a promissory note. The issues raised by the pleadings were tried, and the trial resulted in a verdict and judgment for the defendant Manche Meline. This judgment was entered on November 17, 1896. On January 12, 1897, the present appellant, claiming to be the executrix of the last will of Rudolph Goldschmid, the plaintiff of record, who had died after the rendition of the judgment, and before an appeal had been prayed, went into the circuit court, suggested the death of the plaintiff, and had herself, in her capacity as executrix, made a party plaintiff. She thereupon, the same day, entered an appeal in the circuit court to this court. A motion has been made to dismiss the appeal thus taken, and the question presented is: Can an executor of a plaintiff, against which plaintiff in his lifetime a judgment had been rendered, enter an appeal after the death of that plaintiff? At the common law, a judgment was reviewable only by writ of error. issued out of the court of chancery, and it brought up to the superior court for review only errors of law apparent on the face of the record, and nothing more. The statute of 2 Westm. 13, Ed. I. c. 31, for the first time authorized bills of exception in civil cases. Rulings of the inferior court, which, under the provisions of that statute, were made the subject of exceptions, were thus spread upon the record, and then brought before the appellate court by writ of error. But now, by acts of assembly, an appeal to the court of appeals has been authorized for reviewing the judgments of inferior tribunals, and this method is "a more convenient and less expensive mode than the writ of error." 1 Poe, Pl. & Prac. § 826. The legislation conferring this right of appeal is quite liberal, but, in the absence of express enactment, no appeal can be taken or entertained in any case where a writ of error could not have been availed of at the common law. Manufacturing Co. v. Owings,

3 Gill, 498; Swann v. Mayor, etc., 8 Gill, 154. By the rule of the common law, if the plaintiff in error dies before errors assigned, the death abates the writ (Carroll v. Bowie, 7 Gill, 34; Harryman v. Harryman, 49 Md. 70), and as, unless specially authorized by statute, an appeal will not lie where a writ of error would abate, it becomes necessary to examine the legislation of this state for the purpose of discovering whether a contingency like the one presented by this record has been provided for. Article 5, §§ 73-76, and article 16, § 8, of the Code, contain all the enactments that have been passed upon this subject, and, unless they cover the pending appeal, it must abide the rule of the common law as applied to writs of error. Section 73 prescribes that "no case in which an appeal has been prayed or writ of error applied for, whether the record shall have been transmitted to the court of appeals or not, shall abate by the death of either of the parties," etc. This section obviously relates only to cases where an appeal has been prayed, or a writ of error has been sued out, during the lifetime of the parties. In such instances, whether the record has been transmitted to this court or not, the cases do not abate by the subsequent death of the parties. Clearly, the section does not apply to the state of facts now presented, because here the plaintiff against whom the judgment was recovered died before any appeal was prayed. Section 74 provides for cases where the plaintiff in an appeal or writ of error-that is, in an appeal that has been taken or a writ of error that has been sued out-dies before the term to which the appeal or writ of error was returnable, and it authorizes the executor or heir at law to appear in the court of appeals, and to suggest the death, for the purpose of prosecuting the appeal or writ of error. This section does not meet the case at bar. Section 75 relates to the death of a party while the case is under rule argument, and has no application to this case at all. Section 76 in express terms has reference only to cases where one or more appellants or appellees, or plaintiffs or defendants in error, shall die after an appeal has been taken, or writ of error has been sued out, and before final judgment in the court of appeals; and this case does not belong to that class. These are all the statutory provisions relating to this subject and respecting appeals and writs of error from courts of law. There is, consequently, no enactment covering a case at law where the plaintiff against whom a judgment has been rendered has died before an appeal has been entered. And so in Harryman v. Harryman, supra, this court said "that, where a party dies before appeal taken, the acts" of assembly then in force, "did not apply, and that in such case the appeal should abide the rule of the common law." The acts of assembly which were in force when the case just cited was decided are the same as those now upon the statute book, with a single exception, and that ex

ception is this: By article 2, § 9, of the Code of 1860 it was provided that "no case pending in the court of appeals shall abate by the death of either of the parties," etc., whereas by section 73 of article 5 of the present Code, embodying the act of 1888 (chapter 42), adopted since the date of the determination of the case of Harryman v. Harryman, "no case in which an appeal has been prayed, * whether the record shall have been transmitted * * or not, shall abate," etc. The section of the Code of 1860 related to cases actually pending in the appellate court at the time one of the parties died, while the act of 1888 (chapter 42) went further, and applies to cases where an appeal had been taken before the death of the party, though the record had not been, in fact, transmitted. Article 16, § 8, of the Code relates to cases in equity, and this provision is broad enough to include a proceeding where one of the parties dies after decree, but before an appeal has been taken. Thomas v. Thomas, 57 Md. 504. This analysis of the statutes is sufficient to show that no provision has been made for the case of a plaintiff against whom a judgment has been rendered, and who has thereafter died before an appeal has been prayed. It is competent to the legislature to supply this omission, but this court has no authority to do so. The result is that the appeal must be dismissed. Appeal dismissed.

PARKER v. DORSEY.

(Supreme Court of New Hampshire. Rockingham. March 15, 1895.)

VALIDITY OF AWARD-UNCERTAINTY.

1. An award, on a settlement of a partnership business, that "D. is to have one-half of the cider now at P., and P. to have the other half," is not void for uncertainty.

2. An award on a partnership accounting giving to one partner one-half of certain property, with the balance to the other, is final, though the actual manual distribution of such property is not provided for.

Action by Wilbur K. Parker against Terrence W. Dorsey on an award.

Facts found by a referee: The plaintiff and the defendant, by an oral agreement, submitted all differences between them growing out of a partnership business they had been engaged in to the determination of an arbitrator, whose decision they agreed should be final. After a hearing, the arbitrator awarded: "That Dorsey pay to Parker the sum of $289.82; Parker to pay from said sum all demands against the firm of Dorsey & Co. owed in Kensington, N. H., whether for apples, barrels, or casks. Dorsey shall keep to his own use all the empty barrels now in his possession. Dorsey to have onehalf of the cider now at Parker's, and Parker to have the other half." Upon the foregoing facts the referee finds in the plaintiff's favor for the amount of the award and interest

38 A.-50

from the date of the writ. Judgment for plaintiff.

H. A. Shute, for plaintiff. C. H. Knight, for defendant.

As

BLODGETT, J. There is no merit in the defendant's objection that the award is uncertain in its provision for "Dorsey to have one-half of the cider now at Parker's, and Parker to have the other half." It is true that the text-books and decisions alike say that an award must be certain, but this means only that it must be reasonably certain. Truesdale v. Straw, 58 N. H. 207, 212; Strong v. Strong, 9 Cush. 560; Caldw. Arb. 109; Wats. Arb. *120; Russ. Arb. *278. In respect to certainty, all that is necessary to a complete award is that it should be in its terms so reasonably certain as not to leave its own meaning open to future controversy. Harris v. Manufacturing Co., 9 R. I. 99. to the cider, the award plainly falls within this rule. There can be no mistake as to its meaning. The respective rights of the parties are definitely determined. Nothing is left to be performed but the mere ministerial act (Russ. Arb. *274, and cases cited) of division by computation or measurement, and the maxim, "Id certum est quod certum reddi potest," justly applies. It is, however, further contended that the award is not final, because it leaves undivided in fact the thing which it purports to divide. But it is not necessary to a complete award that it should execute itself. That is not always possible. It is enough if it leaves nothing to be performed but the mere ministerial acts needed to carry it into effect. Harris v. Manufac turing Co., supra; Coghill v. Hord, 1 Dana, 350. "When it is laid down as a principle of law that an award should be final, the meaning is, not that nothing shall remain to be done to complete the award, but that the thing to be done shall have been determined and defined to a reasonable certainty." Strong v. Strong, 9 Cush. 567. "It may require future ministerial acts to be done by the arbitrators or others, but cannot reserve any judicial act to be done." Russ. Arb. *272; Billing, Awards, *77. Upon this branch of the case, as well as the preceding, Strong v. Strong is directly in point. In that case the arbitrators awarded to each of two partners onehalf of certain grain, crops, farming implements, and logs, and precisely the same objections were made to the award as are now made here; but the court sustained the award, saying (pages 566, 567): "It is true, the arbitrators do not themselves actually sever the things to be divided, whether hay, grain, utensils, or logs. There is nothing in the submission which requires them to effect such actual severance and manual distribution of these things. They adjudge and award that the things shall be divided, and they decide in what proportions. In many cases, no more is possible to be done,-as of

an award for the division of partnership effects, which may happen at the time to be abroad, or otherwise not in the personal possession of either party, and of which the quantity or value is not known; or as in the case of an award concerning objects not in their nature presently divisible, but hereafter susceptible of division, such as the yet immature crop of a fruit tree; or as in the case of joint interests not in their nature capable at any time of material severance, like the property in a ship. All these, and many other examples which readily suggest themselves, would seem to show that an award which purports to divide property between two persons by prescribing a rule of division may well be final, though the property in question be not actually divided; nay, though it be incapable of actual division. If the award give a definite and certain rule for the division, there is no want of power in the law to apply the rule, and enforce its application." To these views nothing need be added. Judgment on the report for the plaintiff.

July 30, 1897.) CITIES WATER COMMISSIONERS--APPOINTMENT BY COUNCIL-TENURE OF OFFICE.

1. Under Laws 1891, c. 143, the town of Somersworth was authorized to construct waterworks, and to place them in the charge of commissioners, appointed by the selectmen. Under Laws 1893, c. 171, Somersworth was made a city, and the council was authorized to elect certain named officers and all other officers necessary, not chosen in ward meetings or appointed by the mayor and aldermen or by law. By Laws 1895, c. 179, the city council were authorized to elect certain named officers, "and all other officers necessary for the good government of the city, who were not chosen in ward meetings or otherwise appointed by law." Some of the officers named under the previous law had been appointed by the mayor and aldermen. Held to authorize the election by the council of water commissioners.

2. Under Laws 1891, c. 143, authorizing the town of Somersworth to place its waterworks under the control of a board of commissioners, but not fixing the tenure of office, and Laws 1893. c. 171, making said town a city and conferring on the city the powers of the town, the common council had a right to appoint commissioners for the term of three years.

Quo warranto by the state against Wimpfheimer and others, who were in possession of the office of water commissioners of the city of Somersworth. Information dismissed.

H. V. Moore, J. S. H. Frink, J. E. Edgerly, and J. Kivel, for the State. Streeter, Walker & Hollis, J. E. Young, and W. S. Pierce, for defendants.

CHASE, J. By chapter 143, Laws 1891, the town of Somersworth was authorized "to

construct, manage, maintain, and own suitable waterworks," for the purpose of supplying the inhabitants of the village of Great Falls with water. It was required to place the works under the control of a board of water commissioners, consisting of three suitable persons, not more than two of whom should belong to the same political party. The selectmen of the town were authorized to appoint the board, and it was to have such powers and duties as were prescribed by the town from time to time. The town was made a city in 1893, and all the powers conferred upon the town by the act of 1891 were transferred to the city. Laws 1893, c. 171, §§ 1, 25; Pub. St. c. 46, § 1. The city councils were authorized to elect a city clerk, board of assessors, city treasurer, chief engineer of the fire department, and assistants, street commissioner, city solicitor, city physician, and "all other officers necessary for the good government of the city who are not chosen in ward meetings, appointed by the mayor and aldermen, or otherwise appointed by law." Laws 1893, c. 171, §§ 17, 18. In 1895, a substitute for section 18 was enacted, providing that "the city councils shall *** elect a city treasurer, chief engineer and assistant engineers of the fire department, a street commissioner, a city solicitor, a city physician, tax collector, city marshal, assistant marshal, such police officers and other officers as may be provided for by ordinance, and elect all other officers necessary for the good government of the city who are not chosen in the ward meetings or otherwise appointed by law." Laws 1895, c. 179, $ 4. Here, in addition to the officers mentioned in the original section, the tax collector, city marshal, assistant marshal, police officers, and other officers provided for by city ordinances are particularly named. As the law previously stood, these officers were appointed by the mayor and al dermen. Pub. St. c. 48, § 15. The water commissioners were also appointed by the same body by virtue of the law making all provisions of the statute relating to the selectmen of towns applicable to the mayor and aldermen of cities, "unless it is otherwise provided by law." Id. § 14. The words, "appointed by the mayor and aldermen," were omitted from the exception, leaving as the only officers excluded from the operation of the section those "chosen in ward meetings," such as the supervisors of the check list (Laws 1893, c. 171, § 4), the moderators, ward clerks, aldermen, common councilmen, and selectmen (Id. §§ 10, 12); and those "otherwise appointed by law," such as the clerk of the police court (Laws 1895, c. 179, § 4), the president and clerk of the common council (Pub. St. c. 48, §§ 8, 9), the president and clerk of the board of supervisors (Laws 1893, c. 171, § 4), and the clerk of the board of assessors. Weeks v. Dennett, 62 N. H. 2. In other words, the substituted section made it the duty of the city councils to elect all of