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operations, land held as James Canby held for religious bodies as well as land held by the land in question, and to relate only to ecclesiastical officers. The section would land held by an ecclesiastical officer, which read: Canby, as trustee, surely was not. This is "That any real estate dedicated," etc., "and the contention of the defendant, who urges i also real estate which has been heretofore grantthat it applies only to conveyances thereto-ed,” etc., “to any ecclesiastical officer,” etc. fore made to an ecclesiastical officer by the
This is open to objection, as is the prior designation of his office, and certainly does suggestion, in that it changes the verbiage of not include grants to laymen as trustees for the act. an unincorporated religious society. If this
(3) By the use of the words "or otherwise," be true, then in 1858 on the death of James the section applies to real estate transferred Canby (whose conveyance in 1856 was inef- to persons other than ecclesiastical officers fectual under section 2) the title did not es- for the use of a religious society, and makes cheat to the state and did not pass to the the section apply to the matters referred to complainant by the deed of the Secretary of in section 1 and section 2 of the act. The State. The consequences of so holding were section makes three classes of persons when bewildering even to the solicitor for the de
read thus: fendant, who made what was even to him a ated, or intended to be dedicated or appropriat
"That any real estate dedicated or approprivery unsatisfactory explanation as to the ed, to purposes of religious worship for the use devolution of the beneficial title on the death of any congregation or society, and which has of James Canby. It leaves the question in a been heretofore granted, devised or demised to hopelessly confused and incomplete condition.office (2) by the designation of such office (3) or
any person or persons (1) in any ecclesiastical The most reasonable view of section 3, and otherwise, shall be deemed to be held in trust the one adopted, is this: Section 3 relates for the benefit of the congregation or society to all land dedicated or appropriated, or in- using the same, etc. tended to be dedicated or appropriated, to
Section 1 of the act mentions transfers (1) purposes of religious worship for the use of to or for any person in any ecclesiastical any congregation or society, whether the office and (2) to or for any person by the desdedication or appropriation be made to lay- ignation of any ecclesiastical office, and secmen as trustees in trust for the society, ortion 3 includes both of these as shown above. whether it be transferred to any person in The words "or otherwise" must refer to any ecclesiastical office by the designation of something else than ecclesiastical officers or such office or otherwise. It was intended to ecclesiastical offices. Naturally, it relates to apply to matters referred to in section 1 and transfers to laymen for the benefit of the section 2. This is obviously the purpose of society. This view of the act is consistent the act. It was not to pull down, confuse or with the general purpose of the act, and its invalidate rights in land, but to secure them adoption does not involve the substitution or for the use of the religious society or congre- addition of words. For these reasons it gation, and also subject the land to certain seems correct, and is adopted in interpreting existing restrictions. This purpose was ef- the section. fected by treating the act in one or the other
The result would be that by section 2 no of several ways, and so far as the particular title to lot A vested in the new trustees as case in hand is concerned it is unimportant grantees of the deed made in 1856 by James which one of several inconsistent views is Canby, but he continued to hold the same uncorrect, so long as by some the title is con- til his death in 1858, and as at that time the sidered good. Three interpretations of this religious society using, occupying and enjoysection are urged:
ing the real estate was then unincorporated, (1) The complainant urges that the word the title escheated to the state of Delaware “or” be substituted for the word "and” where under section 4, and by the deed of the Secreit first occurs in the section, so that it would tary of State vested in the complainant by read thus:
virtue of section 5 of the act. "That any real estate of the description nam
Lot B. The deed from Dure to trustees for ed in the second section of this act, or which the Society being made subsequent to 1855 has been heretofore granted," etc.
was clearly within the prohibition of section There is authority for such substitution in 2 of the act of that year, and no right, title some cases in construing laws in deference to or interest vested in the persons the grantees the meaning of the context, the popular use therein, but remained in the grantor, and on of the words “or” and “and” being so loose his death passed under his will. Upon the and frequently inaccurate. 2 Lewis on Statu- incorporation of the Society in 1913 the legal tory Construction, $ 397. This is plausible and equitable title thereto either passed unand perhaps correct, but is not as satisfactory der section 5 of the act of 1911, or was conan interpretation as another to be hereafter veyed by the deed to the corporation from considered.
the heirs and devisees of Dure. It is conced(2) The insertion of the words "also realed by the solicitor for the defendant that a estate” after the word “and” where first used good title to this relatively small part of the would be in harmony with the general pur- land was conveyed by the deed from the devpose of the act, and would make the section isees of Dure. apply to real estate held by laymen in trust In view of the conclusions stated above,
and because of the facts of this case, it is ration, which will thereupon be vested with not necessary in this case to consider the the title to the property. bearing and effect on either branch of the The complainant is entitled to a decree for title of section 5 of the act of March 14, 1911 specific performance of the contract. (chapter 89, volume 26). This act was sub- Let a decree be entered accordingly. stantially a re-enactment of the very old statute constituting chapter 39 of the Revised Code; but being enacted subsequent to the act of 1855, with its stringent and radical
(123 Md. 497) provisions, it may have an important bear- FITZJARREL V. BOYD. (No. 5.) ing, and perhaps a controlling influence, on (Court of Appeals of Maryland. June 25, 1914.) titles to land granted, devised and demised to 1. ACTION (8 8*)—INDEMNITY INSURANCE or for religious societies before and perhaps
RIGHT OF ACTION. after 1855. Its provisions were not relied Where plaintiff, while a guest in defendon by the complainant, or much discussed, by ant's automobile, was injured through defendhim and not at all by the solicitor for the ant's negligence, and defendant was protected
by liability insurance, that the insurance comdefendant. The need to invoke the benefft of pany was ultimately liable and would have to the act to obtain the legal title did not here reimburse defendant for any recovery against arise, because there were actual conveyances him does not deprive the court of jurisdiction of both branches of the title made to the com- though it might not have been brought but for
of an action by plaintiff against defendant, plainant as a corporation by the holders of the fact of the insurance, and would affect the the legal title under James Canby or Henry rights of insurer, who was not a party. F. Dure, or by the Secretary of State.
[Ed. Note.-For other cases, see Action, Cent. The conclusion reached as to the effect of Dig. $$ 9, 41; Dec. Dig. $ 8.*] the act of March 1, 1855, on title to land for 2. NEGLIGENCE (8 4*)-AUTOMOBILE-DUTY OF religious societies are these: (1) Section 2 of
The owner of a motor car who invites a that act applies to grants, conveyances, de- guest is liable for injuries received by the guest vises and leases of real estate made after the through his negligence; such guest being entipassage of the act of real estate dedicated tled to demand the exercise of ordinary care. prior to the passage thereof to religious wor
[Ed. Note. For other cases, see Negligence, ship. (2) Section 3 applies to such real es
Cent. Dig. § 6; Dec. Dig. § 4.*] tate so granted, conveyed, devised or leased
Appeal from Superior Court of Baltimore before the passage of that act, whether the City; Chas. W. Heuisler, Judge. transfer be made to an ecclesiastical officer,
"To be officially reported." or to laymen as trustees for the congregation
Action by J. Cookman Boyd against Harry or society, or otherwise.
A. Fitzjarrel. From a judgment for plainTransfers made to a person after 1855 of tiff, defendant appeals. Affirmed. real estate theretofore or thereafter dedicat
Defendant's prayers 2 and 7 are as ed or appropriated to purposes of public wor
follows: ship for the use of any congregation or society were made ineffective to vest any title
(2) The defendant prays the court to rule, as in the person to whom the transfer was contradicted evidence in this case that the plain
a matter of law, that it appears from the unmade, but all such were valid if made to a tiff does not intend to enforce the collection of religious corporation created under the par- any judgment against defendant, and it further ticular law relating to such corporations. appearing that it is not the object or purpose
of this suit to have adjudicated by this court But the beneficial use of real estate which be- any rights as between the plaintiff and the defore the act was passed had been so dedicated fendant, and it being undisputed that the object and appropriated, was preserved for the so- and purpose of this suit is solely and entirely ciety or congregation until it became incor- to determine and fix the liability on a corpora
tion, which is not a party to this proceeding, porated. This applied to real estate whether that therefore this court has no jurisdiction over it had been theretofore transferred to a per- the subject-matter, and the verdict of the court son in an ecclesiastical office, or to a person shall be for the defendant. (Refused.) by the designation of such office, or to lay- a matter of law, that if it shall believe from the
(7) The defendant prays the court to rule, as men or trustees, or otherwise. In all such evidence that the plaintiff has brought this suit cases the persons holding the title transferred against the defendant with the purpose and to them prior to 1855 could thereafter trans-object of attempting to fix the liability of some fer it only to a religious corporation so in corporation not a party to this suit, and if the
court shall find that there is no controversy becorporated, but during their lives held it in tween this plaintiff and this defendant with retrust for the congregation or society using it. gard to the sum sued for, and that the plainIf no such transfer be made in the lifetime of tiff has no intention of making the defendant the transferee the property at the death of pay any verdict which may be rendered against
, of suit the transferee would vest in the religious yond the jurisdiction of this court, and the corporation, if there be one, and if not, then verdict of the court shall be for the defendant. it escheats to the state. If the congregation
(Refused.) occupying and enjoying the property after- Argued before BOYD, C. J., and BRISCOE, wards becomes incorporated, the Secretary of BURKE, THOMAS, PATTISON, URNER, State could convey the property to the corpo- I STOCKBRIDGE, and CONSTABLE, JJ. *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
Walter L. Clark, of Baltimore, for appel-, fendant's second and seventh prayers, offerlant. Peter J. Campbell, of Baltimore, fored at the conclusion of the whole evidence. appellee.
The motion was overruled, and the two pray
ers were refused. As these prayers will be BRISCOE, J. This is an action brought set out by the reporter in his report of the by the appellee against the appellant to re-case, and will be hereafter discussed by us, cover damages for injuries sustained while they need not be set out here in extenso. riding in the defendant's automobile, as nis
It appears that, prior to the alleged acciguest, caused by the alleged negligence of the dent, the Maryland Casualty Company had defendant. The case was tried in the su- issued to the defendant a policy of automoperior court of Baltimore city, before the bile insurance, indemnifying him from and court sitting as a jury, and, from a judgment against loss on account of suits for personal in favor of the plaintiff for $1,750, the de- injuries similar in character to the present
suit, according to the conditions and provifendant has appealed.
sions of the policy. The policy contains, The declaration contains but one count,
among others, the following provisions: and it is as follows:
“In consideration of one hundred and seventyThat the defendant on or about the 16th day six dollars ($176.00), the Maryland Casualty of October, 1912, was the owner of and operat; Company, of 'Baltimore, herein called_the comed an automobile in the city of Baltimore and pany, agrees to indemnify Harry A. Fitzjarrel, in Howard county, Md. That this plaintiff, of Baltimore, state of Maryland, herein called at the invitation of the defendant, entered the the assured, 'against loss from liability imposed automobile for the purpose and with the inten- by law upon the assured for damages on account tion of being carried therein to Laurel, Md. of bodily injuries, including death resulting That while riding in the automobile, and while therefrom, accidentally suffered, or alleged to exercising due care and caution on his part, have been suffered, by any person or persons the same was caused to skid and strike against and caused by the automobile vehicles owned a telegraph pole and overturn, and this plain- or operated by the assured.
No actiff was thereby thrown from the automobile, tion shall lie against the company to recover his left arm was broken between the shoulder for any loss under this policy unless it shall be and elbow, his left ankle was sprained, his brought by the assured personally for loss achead was severely cut, his left forearm was tually sustained and paid in money by the asbadly bruised, he received severe bruises and sured in satisfaction of a final judgment after contusions all over his body, he was severely in- trial of the issue; nor unless such action is jured in the left groin, he suffered from general brought within (90) days after such judgment shock to his system, and was further caused to by a court of last resort against the assured suffer great physical pain and mental anguish. has been so paid and satisfied.” As a result thereof he was put to great cost for medical services, surgeon fees, and hospital
While it may be conceded in this case that charges; he was prevented for a long space of the result of the litigation will necessarily time from attending to his usual avocation, as affect the interest of a third party, the an attorney at law, and thereby sustained great casualty company, who is not a party of recmonetary loss, and other great, serious, and permanent wrongs and injuries were by him there ord, it does not follow because this is so that by sustained. That the said automobile was the suit is collusive and fictitious, as alleged. caused to skid, strike said telegraph pole and if the real and primary object of the suit overturn by reason of the recklessness, want of is to redress the grievance of the plaintiff, care, default and negligence of the defendant, and there is an actual controversy, involving his servant and employé, in attempting to pass a vehicle upon the road on which they were real and substantial rights between the par traveling at a high rate of speed and against the ties to the record, the suit would not be disprotest of this plaintiff made to said defendant missed. It is only when the sole object of immediately before the happening thereof and the suit is to affect third parties, and when in time to have avoided the same.
the interest of the parties to the suit is not The record contains a single exception, adverse, and when there is no real and suband that is to the ruling of the court upon stantial controversy between those who apthe defendant's prayers.
pear as adverse parties, that the principles The plaintiff offered no prayers, but the invoked by the appellant here apply. defendant presented eight. Two of these This case is clearly distinguishable in its were granted, and six were refused. The facts from those cited and relied upon, in the exception to the fifth and sixth prayers is appellant's brief. 2 Ency. of P. & P. 312, and waived by the defendant in his brief, so the cases there cited. questions for our consideration are presented
If the defendant is primarily liable for the by the rulings of the court upon the defend- negligence that caused the injury, then it ant's first, second, seventh, and eight prayers. seems clear that the plaintiff would have a
 The defendant relies upon two grounds right of action for such negligence against as a basis of defense: First, that the court the defendant, notwithstanding the fact that has no jurisdiction, because the proceeding the casualty company would be ultimately is amicable and pretended and only for the liable. Eyler v. Co. Com’rs, 49 Md. 257, 33 purpose of affecting the rights of strangers Am. Rep. 249; Ches. & Ohio Canal Co. v. not parties to the suit; and, second, because Allegany Co., 57 Md. 201, 40 Am. Rep. 430; there is no evidence of actionable negligence, Balto. & Ohio R. R. Co. v. Howard Co., 111 on the part of the defendant.
Md. 180, 73 Atl. 656, 40 L. R. A. (N. S.) 1172. The objections to the jurisdiction were Such being our view of the law, the motion raised by a motion to dismiss and by the de- to dismiss this suit was properly overruled, and there was no error in refusing the sec- be liable for injuries to plaintiff resulting ond and seventh prayers.
from driving the automobile recklessly.  The second proposition, as to what duty The reasoning in Foote's Case, supra, was the owner of an automobile owes to his guest adopted and followed in the Kentucky deciwho accepts an invitation to ride with him, sion. The cases of Pigeon v. Lane, 80 Conn. is raised by the defendant's eighth prayer. 237, 67 Atl. 886, 11 Ann. Cas. 371, Birch v. The prayer is as follows:
City of New York, 190 N. Y. 397, 83 N. E. The defendant prays the court to rule, as a 51, 18 L. R. A. (N. S.) 595, Mayberry v. Sivey, matter of law, that it appears from the uncon- 18 Kan. 291, and Lochhead v. Jensen (Utah) tradicted evidence in this case that the plaintif was traveling
as an invited guest in the private 129 Pac. 347, are also in point and to the automobile of the defendant, and that, unless same effect. The rule announced in these the court shall believe from the evidence that the cases, we think, is the true and correct rule, plaintiff was injured by reason of the gross or and is controlling on this appeal. willful negligence of the defendant, the verdict of the court shall be for the defendant.
The rule of gross or willful negligence While the reported cases upon the legal sought to be applied by the defendant's eighth status of a guest who voluntarily accepts an prayer was not the correct rule applicable invitation to ride with the owner of an to the case, and this prayer was properly
refused. automobile are somewhat limited, the rule adopted by the later decisions as to the de
The defendant's first prayer was a demurgree of care required is against the appel-rer to the evidence, and, as the evidence was lant's contention in this case.
legally sufficient to show actionable negliMr. Huddy in his work on Automobiles, & gence, it was properly rejected. 113, says:
Finding no error in the rulings of the court, “Although he pays nothing for riding, he is, the judgment will be affirmed. nevertheless, in the care and custody of the Judgment affirmed, with costs. owner or driver of the machine and is entitled to a reasonable degree of care for his safety. If the driver has negligently run into some ob
(123 Md. 628) stacle on the highway and thereby injured the BARTLETT v. CALVERT BANK. (No. 34.) guest, undoubtedly the owner and the driver would be liable to civil suit for damages. One
(Court of Appeals of Maryland. June 25, who voluntarily accepts an invitation to ride
1914.) as a guest in an automobile does not relinquish PRINCIPAL AND AGENT ($ 100*) POWER OF his right of protection from personal injury ATTORNEY-CONSTRUCTION. caused by carelessness, and it should be under
A power of attorney executed by a stockstood by owners of motor vehicles that they holder, whereby he transfers the stock and apassume quite a serious responsibility when they points an attorney to sell, hypothecate, or invite others to ride with them, especially per- dispose of in any manner and for any purpose sons who by reason of weaknesses are subject assign and transfer, empowers the grantee in to injury from slight causes."
the power to pledge the stock, not only for a In Patnode v. Foote, 153 App. Div. 494, 138 debt evidenced by a note contemporaneously N. Y. Supp. 221, the Supreme Court of that executed by the grantee, but also empowers the
grantee to pledge the stock for other debts, state held, as stated in the syllabus of the in the absence of any notice by the creditor of case, where in an action to recover for per- any restrictions placed by the stockholder on sonal injuries to the plaintiff resulting from the grantee. defendant's negligence it appears that the de- and Agent, Cent. Dig. ss 262–273, 345, 364,
TEd. Note.-For other cases, see Principal fendant invited the plaintiff, who was a wit- 368-373; Dec. Dig. $ 100.*] ness in an action to which he was a party,
Appeal from Superior Court of Baltimore to ride with him to the place of trial in an City; Chas. W. Heuisler, Judge. open buggy drawn by one horse driven by
"To be officially reported.” himself, that the defendant drove at a reckless speed, against the plaintiff's protest, and calvert Bank. From a judgment for defend
Action by J. Kemp Bartlett against the that a collision with another wagon which threw the plaintiff violently to the ground
ant, plaintiff appeals. Affirmed. was the result of defendant's careless driv- The following is plaintiff's first prayer: ing, a judgment for the plaintiff should be If the court, sitting as a jury, shall find that affirmed. The plaintiff was a licensee, and the plaintiff delivered to one Edgar M. Noel
the certificate for 30 shares of stock of United it was the duty of the defendant to use States Fidelity & Guaranty Company standing ordinary care not to increase the danger of in the name of and belonging to the plaintiff, riding with him or to create any new danger. offered in evidence, and that at the time of said In Beard v. Klusmeier, 158 Ky. 153, 164 plaintiff and the said Noel that Noel was not to
delivery it was distinctly agreed between the S. W. 319, decided by the Court of Appeals borrow upon the said certificate from the defendof Kentucky, on March 20, 1914, where the ant a sum exceeding $3,000, and that at the facts are very similar to those in this case, time of said delivery and presentation to the the court held that it was the defendant's court, sitting as a jury, shall so find, the assign
defendant of said certificate by said Noel, if the duty, upon inviting plaintiff to ride as a guest ment and power of attorney appearing upon the in defendant's automobile, to use ordinary back of said certificate was not filled in but care not to increase plaintiff's danger or to merely signed in blank by the plaintiff, and that
the defendant loaned to said Noel $3,000 upon create any new danger, such as by fast and the said certificate as collateral therefor, with reckless driving, so that defendant would I actual knowledge that the said certificate was not the property of said Noel but of the plaintiff, | defendant, the plaintiff has taken this apand that subsequently the said original certifi- peal. cate for 30 shares was split up into two certifi
*For other cases see same topic and section NUMBER in Dec. Dig. & Ani. Dig. Key-No. Series & Rep'r Indexes
During the trial two bills of exception were cates, one for 20 shares and the other for 10 shares, the latter certificate being returned to taken by the appellant, one to the granting of the plaintiff and the former being retained by the defendant's motion to strike out certain the defendant, and that the plaintiff subsequent- testimony which had been admitted subject to ly, after the maturity of said loan, and while the said certificate for 20 shares was still in exception, and the second to the ruling of the the possession of the defendant, tendered to court, in rejecting the plaintiff's first prayer, the defendant $3,000 and all accrued interest and in granting the defendant's
defendant's second unpaid thereon, and thereupon demanded a re
prayer. These two exceptions bring up for turn of said certificate, and that the defendant refused to return the same unless the plaintiff review the only questions presented by the made a payment also on account of an indebted record, and which will now be considered ness of the said Noel to the said defendant by us. contracted subsequent to the making of the said $3,000 loan, and that the plaintiff had not
As the plaintiff's second exception conauthorized the pledge of said certificate as se- tains the rulings upon the prayers, and as curity in whole or in part of said second loan of these present the substantial questions in the said Noel, then the verdict must be for the case, we will consider it first. the plaintiff.
The defendant's second prayer, which was The following is defendant's second prayer: granted by the court, we think, correctly If the court, sitting as a jury, find that the states the law of the case. It ruled as a matplaintiff signed the power of attorney dated March 20, 1912, attached to the certificate for ter of law, under the facts of the case, that 20 shares of stock of the United States Fideli- the legal effect of the delivery by E. M. Noel ty & Guaranty Company offered in evidence, and of the stock, and the power of attorney atdelivered said power of attorney and certificate tached thereto, and the collateral note, was of stock to E. M. Noel, and that the same were delivered by E. M. Noel to the Calvert Bank, to pledge the stock not only for the $3,000 together with the collateral note of July 23, mentioned in the collateral note of July 23, 1912, offered in evidence, and that said note 1912, but also for any other indebtedness was 'signed by E. M. Noel and delivered to said then or thereafter owing by E. M. Noel to the Calvert Bank for a valuable consideration, then the court rules, as a matter of law, that the le- defendant bank. gal effect of the delivery by E. M. Noel of said The plaintiff's first prayer was the converse stock and said power of attorney attached there of the defendant's second prayer, and was to and said collateral note was to pledge said stock not only for the $3,000 mentioned in said properly rejected. The Reporter will set out collateral note of July 23, 1912, but also for any these two prayers in his report of the case. other indebtedness then or thereafter owing by The substantial facts of this case are practhe said E. M. Noel to said Calvert Bank. And tically undisputed, and may be thus stated: if the court sitting as a jury find that, at the time of said delivery of said collateral note of The record discloses that some time in July, July 23, 1912, and said power of attorney and 1908, the plaintiff loaned Edgar M. Noel 30 certificate of stock, the said E. M. Noel was in- shares of the capital stock of the United debted to the Calvert Bank upon another note States Fidelity & Guaranty Company, befor $3,000, dated July 1, 1909, and that both said notes, with certain interest thereon, remain longing to him. Noel subsequently secured a unpaid, then the court rules, as a matter of loan of $3,000 from the defendant bank by law, that the tender made by the plaintiff to pledging the stock as collateral security for defendant, as testified to by him, was not suffi- the loan. This loan was renewed from time cient to entitle the verdict
of the court, sitting to time; the last renewal note being dated as a jury, should be for the defendant.
Argued before BOYD, C. J., and BRISCOE, July 23, 1912. The note which was delivered BURKE, THOMAS, PATTISON, URNER;
to the bank and signed by E. M. Noel is as
follows: and CONSTABLE, JJ.
Baltimore, July 23, 1912. Edgar Allan Poe, of Baltimore, for appel.
"Four months after date I promise to pay to lant. S. S. Field, of Baltimore, for appellee. the Calvert Bank or order, at the banking house
of said bank, three thousand xx-100 dollars, for BRISCOE, J. This action was brought by value received, having deposited as collateral sethe appellant against the appellee bank, in 20 shares U. S. F. & G. Co.
: the superior court of Baltimore city, to re
... agree that the above-named securicover the possession of a certificate dated ties, and any others needed to or substituted for May 20, 1912, for 20 shares of stock of the them, all cash at any time to the credit of our May 20, 1912, for 20 shares of stock of the account, and all notes and drafts deposited by United States Fidelity & Guarantee Com- us for collection, and all other property of the pany, which had been pledged to the appellee undersigned in said bank, may be held as collatbank by one Edgar M. Noel, now deceased, as eral security for all the obligations and liabilicollateral security for certain loans, made hereof, due to the said bank or to become due,
the by the bank to Noel, in his lifetime. The or that may hereafter be contracted, with the certificate of stock belonged to the appellant understanding that a margin of
per but had been loaned to Noel, for the purpose curity shall be maintained on demand, and if
on seof pledging it to the appellee bank, as colo said demand for margin is not promptly met, lateral security, under a blank power of at- or said obligations and said liability are not torney dated the 20th day of May, 1912. The promptly paid at maturity, ...... hereby au
thorize said bank or its president or its cashier case was tried before the court, sitting as a
to sell the collateral security, or the property jury, and, from a judgment in favor of the represented by the same, either at private or