rule-day act (Acts 1894, p. 229, c. 173); and the defendant never having been summoned, and this act never having been called into operation in this case by seeking a judgment by default, the appellants cannot be prejudiced in this proceeding by anything in that account. McSherry v. Brooks, 46 Md. 122; Laubheimer v. Naill, 88 Md. 174, 40 Atl. 888.. The rule-day act can have no effect whatever upon proceedings under the attachment law. Sanborn & Mann v. Mullen, 77 Md. 480, 26 Atl. 872.

The third objection is that the claim is not liquidated, and therefore will not sustain an attachment proceeding such as that before us. Upon this point, Mr. Rood, in his recent work on Garnishment (section 148), thus states the law: "Demands, the amount of which cannot be ascertained by computation, but only by the verdict of a jury, or in other similar manner, are not included in the terms of statutes declaring what property and debts may be attached by garnishment." And Mr. Poe, in his work on Practice (section 415), says: "As the result of the authorities, it may be stated that the claim, in order to be within the act, must be one for an ascertained amount of liquidated indebtedness to which a plaintiff can safely and properly swear; and the cause of action which must be filed with the declaration must be one which either on its face shows the liability of the defendant, and the amount of such liability, or which itself furnishes the standard or means of arriving at such liability." Mr. Poe is speaking here of the practice under the special rule-day act, but he had just said in section 414: "It is to be observed that the requirements of the act in respect of the cause of action are identical with those of the attachment law against nonresidents, and the decisions upon the latter are therefore applicable to the former." And he is supported in this by the decision in State, Use of Bouldin, v. Steibel, 31 Md. 37. Before the act of 1888, c. 507, now section 43 of article 9 of the Code, unliquidated damages could not be recovered by attachment in this state, except where the action was for illegal arrest, false imprisonment, or violations of certain articles of the Bill of Rights, and the provisions of the Code relating to the writ of habeas corpus; but that act now allows attachments in cases arising ex contractu where the damages are unliquidated, and in actions for wrongs independent of contract, but requires a declaration setting out in detail the breach of contract or tort complained of, verified by affidavit, and a bond similar to that required in attachments on original process for fraud. In the absence of these essentials, the attachment could not be sustained under that act; and it is apparent that the proceedings were instituted under the theory that the damages claimed are recoverable under the general attachment law applicable to nonresident and absconding debtors,

although the claim is upon a quantum meruit -in other words, that the damages are liquidated. The rule stated by Mr. Poe for determining whether damages are liquidated or unliquidated is sustained by many cases in Maryland and elsewhere, and among these is the leading case of Fisher v. Consequa, 2 Wash. C. C. 382, Fed. Cas. No. 4,816, where the process of attachment was said to be applicable only to "a demand arising ex contractu, the amount of which was ascertained, or which was susceptible of ascertainment by some standard referable to the contract itself, sufficiently certain to enable the plaintiff by affidavit to aver it or a jury to find it," and that such a demand "might be the foundation of a proceeding by way of foreign attachment, without reference to the form of action, or the technical definition of debt, the expression used in the law." This rule has nowhere been more clearly expressed than in Smithson & Owens v. United States Telegraph Co., 29 Md. 166, where it was said: "The rule upon the subject of liquidated and unliquidated damages we take to be that where a precise sum for damages is not agreed upon, and is not of the essence of the contract between the parties, the quantum of damages is unliquidated, and it is for a jury to assess them; but, where the precise sum has been fixed and agreed upon between the parties, that sum is the ascertained and liquidated damages, and the jury must assess that amount-no more and no less." As was said by the judge at the trial of the case now before us: "There is no agreement alleged by which the defendant bound himself to pay any particular sum, and the value of these services is put at what the plaintiff himself assumes that they are worth. This is by no means the real test of their value. The real test is what they are reasonably worth, and that must be determined by a jury after testimony." In one of the earlier American cases, where the question was one of set-off under a statute excluding unliquidated damages (Butts v. Collins, 13 Wend. 139), it was said: "Unliquidated damages are such as rest in opinion only, and must be ascertained by a jury. They are damages which cannot be ascertained by computation or calculation-as, for instance, damages for not using a farm in a workmanlike manner, for not skillfully amputating a limb, for unskillfully working raw material into a finished fabric, and other cases of a like character where are no data given for computation, or any mode of calculation." So, in Hepburn v. Hoag, 6 Cow. 613, damages for breach of covenant to provide proper medicine and medical attendance were held unliquidated; and in Eastman v. Thayer, 60 N. H. 575, damages arising from nonperformance of covenants in a lease were held not attachable for the same reason, the court saying: "The ascertainment of defendant's claim requires the exercise of judgment, discretion, and opinion, and not mere calcula

The

use of a diamond ring, which one William B. Linthicum had mortgaged to them. mortgage is dated the 27th of October, 1900, and was given to secure the sum of $120, payable in weekly installments of $2 per week. Linthicum had paid the appellees $68, and the verdict was for only $52, being the balance due. On the 11th of December, 1900, Linthicum obtained $65 on the ring from the appellant, who was a pawnbroker, and on September 20, 1901, a new ticket was issued for that sum, which was payable in six months. There are six bills of exception in the record, the first five presenting rulings of the court below on the admissibility of testimony, and the sixth embracing the prayers.

1. The first was to the ruling of the court in admitting the mortgage in evidence, to which the defendant objected because (a) the description of the property in the mortgage is too indefinite and uncertain; (b) a ring, being an article of personal adornment, cannot be the subject of a chattel mortgage; (c) there was not annexed to the mortgage an affidavit of the mortgagees that they did not require the mortgagor to pay the tax levied upon the interest, etc. These objections were based on the theory that the appellant claimed to be (and the record does not show the contrary) in the position of an innocent purchaser for value, without actual notice of the mortgage, and he does not contend that the mortgage would not be valid between the parties. We must therefore consider the question from the standpoint of an innocent third person who had no notice of the mortgage, except such constructive notice as results from the recording of it. If the appellant is right in his position that a ring cannot be the subject of a chattel mortgage, that will end the controversy, and we will therefore first consider it.

The general rule is that all personal property capable of being sold can be mortgaged. 5 A. & E. Encyc. of L. (2d Ed.) 974, 6 Cyc. 1037. Our testamentary law contemplates jewelry being included in the appraisement of a decedent's estate (section 217, art. 93, Code Pub. Gen. Laws), and we have no statute that in any wise interferes with the owner mortgaging or making other disposition of it. A "chattel" is defined in Bouvier's Law Dictionary to be "every species of property, movable or immovable, which is less than a freehold"; and the same definition is given, in substance, in Devecmon v. Devecmon, 43 Md. 347. In Bouvier it is also said that "personal chattels are properly things movable, which may be carried about by the owner, such as animals, household stuff, money, jewels, corn, garments, and everything else that can be put in motion and transferred from one place to another." As a diamond ring is manifestly within the definition of a chattel, there would seem to be no valid reason, in the absence of a statute prohibiting it, why such property cannot be the subject of a chattel mortgage. Under our statute a

Any

mortgage of personal property must be recorded in the county or city where the mortgagor resides within 20 days from its date, or, if he resides out of the state, it must be recorded in the county or city where the property is located (sections 44, 45, art. 21, Code Pub. Gen. Laws), and the statute was complied with in that respect in this case. one dealing with that class of property takes more or less risk, but he can protect himself to some extent by making inquiries of the owner and examining the records where he lives, etc. So, without further extending the discussion of that question, we are of the opinion that a diamond ring may be the subject of a chattel mortgage.

The description given in the mortgage is: "The following property and chattels: One single stone diamond ring, Tiffany setting, diamond weighing 7-8 1-64 karats 6583 Iahs." It also provided "that the aforesaid chattels shall until default be retained by the mortgagor in the city of Baltimore, state of Maryland, at No. 703 Portland Street, and they shall not be removed without the written consent of the mortgagees." In 6 Cyc. 1022, it is said, in an article by Mr. Jones, the wellknown author on this and other subjects, that "as against third persons the mortgage must point out the subject-matter so that the third person may identify the property covered by the aid of such inquiries as the instrument itself suggests," and many cases are cited in the notes. In 5 A. & E. Encyc. of L. 956, the rule is stated thus: "If the description in a chattel mortgage is such as will enable third persons to identify the property, aided by the inquiries which the mortgage itself indicates and directs, the mortgage, when recorded, is constructive notice to parties purchasing in good faith and for a valuable consideration." The description of this ring, as given in the mortgage, was certainly "such as will enable third persons to identify the property, aided by the inquiries which the mortgage itself indicates and directs." The appellant testified that there were no marks of identification on the ring, and that the only way he could determine the weight would be to remove the stone from the setting, and weigh it on a diamond scale; that any other judgment would be only guesswork. He also explained that by Tiffany setting is meant one that was first made by Mr. Tiffany of New York, and it had taken its name from him, "but every jeweler in the United States manufactures that setting." That was perhaps rather a broad statement, but, if it be correct, it would seem to be difficult to describe a ring like this more accurately than was done in this mortgage. In answer to a question by the court as to whether a witness, who was a clerk of the appellant, could suggest any way by which a fuller description could be made, he replied: "I think the ring could have been distinguished as a Tiffany setting, giving the weight of the thing complete as it was, and giving the finger size of

the ring, which would be a more accurate description. Even that would not be sufficient to identify the ring after it had been away probably three months from the original owner." The means of identification suggested by this witness do not seem to be much if any more accurate than those adopt-❘ ed by the appellees; indeed, when it is remembered that the number of the residence of the mortgagor on Portland street, in the city of Baltimore, is given, together with the other description, it would be difficult to make it more accurate. The record does not explain the meaning of “6583 Iahs," but it was shown that the ring pawned by Linthicum is the same one that was purchased from the appellees, and if the appellant had examined the records he would have received such information as to put him on inquiry to further identify the ring. This case differs materially from that of Fersner v. Bradley, 87 Md. 488, 40 Atl. 58. There the bill of sale simply described the property as "onehalf interest in eight horses," without saying where they were or giving any other description of them. We said: "Property of that character should be described with at least reasonable certainty. The age, color, name, some distinctive mark, or something by which the animal could be to some extent identified, should be given." And so the vehicles there referred to were capable of more definite description than was given. But in this case, as the only description that could reasonably be expected was given, and that was ample to put persons dealing with the ring on inquiry, the mortgagees should not be made to suffer. It is not pretended that the appellant was misled by the description that was given, and if he had read the mortgage, and had seen that Wm. B. Linthicum, who lived at 703 Portland street, in the city of Baltimore, had undertaken to secure the appellees by mortgaging a ring such as is described, it would have been utterly inexcusable in him to accept such a ring from the same Wm. B. Linthicum. Any person of ordinary intelligence would be warned by the information given in the mortgage not to accept such a ring as is therein described from Linthicum, and, after all, that is the great object in recording chattel mortgages. Pawnbrokers might protect themselves, as well as owners of property and mortgagees, from the fraudulent conduct of those pawning goods by making more thorough inquiries than seem to have been made in this case. The ticket issued by the appellant, which is made transferable on its face, gives a much more indefinite description than is found in the mortgage. We are of the opinion that the description was sufficient, and the recording of the mortgage was constructive notice to the appellant.

Nor do we think that the failure to annex to the mortgage an affidavit of the mortgagees that they did not require the mort

gagor to pay the tax levied upon the interest, etc., invalidates it. There is no covenant to pay any interest in the mortgage. It was given to secure the payment of the purchase money, which was payable in installments. Section 146A of article 81 (Acts 1898, p. 885, c. 313) requires mortgagees to "annually pay a tax of eight per centum upon the gross amount of interest covenanted to be paid each year to said mortgagee or his assigns by the mortgagor." Section 146D of that article (Acts 1898, p. 819, c. 275), as in force when the mortgage was given, provided for any person lending money on mortgage upon property in this state making affidavit "to the effect that he has not required the mortgagor, his agent or attorney, or any person for the said mortgagor, to pay the tax levied upon the interest warranted to be paid in advance, or will he require the same to be paid by the mortgagor or any person for him during the existence of said mortgage." The word "warranted" was evidently intended to be "covenanted," and this section, as amended by Act 1902, p. 33, c. 26, uses the latter term. There was no interest provided for in this mortgage, and hence the provision requiring the affidavit is not applicable. We do not mean to say that, if interest was included in these payments, the statute could not be applied merely because the parties covered it up by putting it in the form of principal, although it was in fact interest; but there is no evidence of that, and, so far as the case is presented by the record, it was simply a mortgage to secure the purchase money, payable in installments, and does not provide for the payment of any interest. It is therefore unnecessary to consider Acts 1902, p. 124, c. 102, which is "An act to make valid mortgages and assignments of mortgages defectively sworn to and recorded since the tenth day of April, in the year nineteen hundred," or other questions affecting this branch of the case.

2. The second and fourth bills of exception can be considered together. The defendant offered to prove by Linthicum, the mortgagor, that in June, 1901, one of the mortgagees agreed with him that if he would give them the pawn ticket for the ring they would pay the amount advanced thereon by the defendant, that the mortgage should be considered settled, the transaction extinguished, and that he (Linthicum) did in fact give the pawn ticket to one of the mortgagees. The same testimony was offered to be proven by Mrs. Linthicum, and on objection the court refused to allow that evidence to be given, and its rulings are presented by these two bills of exception. It is difficult to understand upon what theory that testimony could have been admissible under the circumstances of this case. There can be no doubt that at that time Linthicum was in default under the terms of the mortgage, and the appellees were entitled to the pos