tions. That the rulings in the exceptions contained in this record, upon the assumption that they were erroneous, (as we have decided them to be,) were injurious to the appellant, cannot admit of doubt, for he was thereby deprived of the privilege of a legitimate cross-examination of his adversary’s witnesses, and we must therefore reverse the judgment and award a new trial.

Before concluding, we may say that the proper course for the court to have pursued, assuming the statements of the certificate to be true, was this: If the exceptions were tendered to the judges for signature after the trial was ended, they should have embodied, or required to be embodied, in them, the facts stated in the certificate before signing them; and, if the exceptions were prepared and tendered for signature and signed, as they purport to have been, immediately after the rulings were made, and before they were reversed, the judges should, after reversing the rulings, have withdrawn or erased their signatures, as they would have had a perfect right to do, and then required others to be prepared embodying such facts.

Judgment reversed, and new trial awarded.

WILDERMAN and another v. Roenas.
(Court of Appeals of Maryland. November 12, 1886.)

1. HUSBAND AND WIFE—JOINT OBLIGATIONS—CHECK—MARYLAND ACT OF 1872, (CHAPTER 270.) '

Under the Maryland act of 1872, (chapter 270,) providing that a married woman may be sued jointly with her husband on a note, bill of exchange, etc., “which she may have executed jointly with her husband,” an action may he maintained upon the joint check of a married woman and her husband.

2. SAME—DUE-BILL.

Although a due-bill executed by a married woman jointly with her husband may not be a formal negotiable instrument, containing an express promise to pay, it'is sufficient to found an action against her under the Maryland statute of 1872. (chapter 270.)

8. SAME—EXECUTION—EVIDENCE. Under the Maryland act of 1872, (chapter 270,) where a suit is brought upon a joint obligation, the plaintiff must show that the cause of action sued on was executed by a married woman jointly with her husband.

Appeal from circuit court, Alleghany county.

Action against a husband and wife as joint defendants. Judgment for plaintiff. Defendants appeal.

Wm. Brace and Benj. A. Richmond, for appellants.

A. Hunter Boyd, for appellee.

ALVEY, C. J. This is an action brought against husband and wife as joint defendants, and the declaration contains three counts. The first of these counts is upon what is alleged to be a joint promissory note of the defendants, whereby they promised to pay to the plaintiff the sum of $115 on demand. The second count is upon what is alleged to be a joint check of the defendants, drawn by them on the Second National Bank of Cumberland, payable to the plaintiff, or order, for $115, which was duly presented for payment, and payment refused by the procurement of the defendants. And the third count is upon what is described and denominated as a joint due-bill, made by the defendants to the plaintiff, for $115, for value received, which amount the said defendants acknowledged, by said due-bill, to be due the plaintifi“, and promised to pay the same on demand, but which they failed to do. There was a demurrer entered to the second and third counts of the declaration, and the demurrer was overruled. The grounds of the demurrer, as we understand them, are that those counts do not set out valid causes of action as against the wife, under the provisions of the act of .1872, (chap— ter 270.) We, however, fail to perceive wherein these counts are subject to the demurrer.

A check, such as that described in the second count, is, at least in a qualified sense, an inland bill of exchange, and hence the cause of action there set out is within the terms of the act of 1872, (chapter 270;) that act providing that “any married woman may be sued jointly with her husband, in any of the courts of this state, on any note, bill of exchange, single bill, bond, contract, or agreement, which she may have executed jointly with her husband,” etc. The check declared on in the second count is clearly embraced within this provision, according to the well-settled definition of that instrument, (Moses v. Franklin Bank, 34 Md. 574; Hawthorn v. State, 56 Md. 530;) and so in reference to the “duebill” declared on in the third count. The instrument there described may not be a formal negotiable promissory note containing terms of express promise to pay, nor does the statute, by its terms, require such to bind the parties; but any note, the import of which is a promise or obligation to pay, is sufficient to gratify the terms of the statute. Story, Prom. Notes, § 14, and notes; 1 Daniel, Neg. Inst. ,5 36. The court below 'was therefore clearly right in overruling the demurrer.

After the demurrer was overruled the defendants pleaded non assumpsit to the whole declaration, and issue was joined; and, in support of the issue thus joined, the plaintiff proved, by himself as witness, that R. M. Wilderman, the husband, came to him to borrow $115, and that it was agreed that the amount would be loaned upon the joint note of husband and wife, and that a few days thereafter the note was brought to plaintifl by Wilderman, upon which the money was loaned, and that the note was in the following form:

“$115. FROSTBURG, MD., August, 1885.

“Due A. A. Rogers, one hundred and fifteen dollars, for value received. “R. M. WILDERMAN.

“M. M. WILDERMAN.”

He also proved that the name of Mrs. Wilderman, purporting to be signed to the note, was on the instrument when it was presented to him by the husband, but he, the plaintiff, did not know her handwriting, and could not say that she had signed it; that afterwards Wilderman came to plaintiff“, and told him that he wanted to pay the note; and that he, the plaintiff, surrendered the same, upon receipt of a check for the amount, drawn on the Second National Band of Cumberland, which was signed, “M. M. WILDERMAN, per R. M. WILDERMAN;” and that the payment of the check was stopped by Wilderman, the husband. The plaintiff then placed Wilderman, the defendant husband, upon the stand, and he testified that the note which he gave to the plaintiff was not signed by his wife, but was signed, “M. M. WILDERMAN, per R. M. WILDERMAN,” in the same manner as the check was signed; that the note did not purport to be signed by him and his wife jointly, but was signed by him alone in the name of his wife. He also testified that he had taken up_ the note with the check offered in evidence, and that he had destroyed the note, and had stopped the payment of the check. He further testified that he was carrying on the business of butchering, as agent for his wife, and that he was in the habit of signing checks and notes in the same way as the check offered in evidence was signed. The bill of exception states that no evidence was offered of an authority in Wilderman to borrow money for his wife, or to sign her name to notes. Upon this evidence the plaintiff rested his case, and thereupon the defendants prayed the court to instruct the jury that the plaintiff had offered no evidence legally sufficient to prove the execution of the cause of action sued on in this case by Mrs. Wilderman, and that their verdict must be for the defendants under the pleadings in the cause. This prayer the court refused to grant, and the defendants excepted.

In our opinion the court below was clearly in error in refusing to instruct the jury in accordance with the prayer of the defendants. It was incumbent upon the plaintiff to prove that the cause of action sued on had been executed by the wife jointly with her husband, as required by the statute; but in this the evidence wholly failed. While the plaintiff himself testified that the note sued on purported to be signed by both husband and wife, he could'not say that the signature of the wife was genuine; and, clearly, the wife could not be bound and be made liable to judgment upon the mere passing of a note or check by the husband, Without proof that such instruments were executed by the wife. The husband, testifying upon the call of the plaintiff, says that neither the note nor the check was signed by the wife, but that he signed both instruments in her name, but not jointly; that the note, as well as the check, was signed by him for her and in her name, be signing only as agent to show by what hand the signature had been made, as in the manner shown by the check produced in evidence. Such being the case as presented by the plaintiff, neither of these instruments was the joint act and obligation of the defendants. If the husband simply acted as agent for the wife, and did not profess to bind himself, then the note and check were not, in any sense, the joint instruments of husband and wife; and, if the note in fact did purport to be signed by both, as supposed by the plaintifi', there ought to have been evidence produced to prove that the instruments sued 011 had been executed by the wife jointly with her husband; as without this the action cannot be sustained against the wife, under the act of 1872, (chapter 270.) Lowekamp v. Koechlt'ng, 64 Md. 95; S. C. 3 Atl. Rep. 35. Thejury should not have been allowed to indulge in mere conjecture without at least some evidence upon which to found their verdict.

Entertaining these views, it becomes quite unnecessary to notice the other two exceptions taken at the trial. Judgment reversed.

APPEAL—RECEIVER—REMOVAL AND DISCHARGE—CODE Mn. ART. 5, §§ 20, 21. Although an appeal is given from an order appointing a receiver, no appeal lies from an order simply refusing to rescind the appointment of or to discharge a receiver, under Code Md. art. 5, §§ 20, 21.1

Appeal from circuit court, Baltimore county. In equity.

Appeal from an order refusing to rescind appointment of receiver. Judgment of lower court affirmed, and appeal dismissed.

Andrew C. Trippe and John A. Yellott, for appellants.

Arthur W. Machen and Wm. H. Moore, for appellee.

ALVEY, C. J. The order appointing the receiver was passed on the second of March, 1886, from which no appeal was taken; but, after filing their answer, the defendants moved to rescind the order of appointment, and on the tenth of April, 1886, the court passed an order refusing to rescind its previous order, whereby the receiver was appointed; and it is from that order of the tenth of April, 1886, that the present appeal has been taken.

The appellee has moved to dismiss the appeal, and it is clear the motion must prevail. The order from which the appeal is taken is in no sense an order in the nature of a final decree; and, while an appeal is given from an order appointing a receiver, no appeal is given from an order refusing to rescind the appointment or to discharge the receiver. Code, art. 5, .§§ 20, 21. There have occurred cases where appeals have been taken, and maintained in this court, from orders appointing receivers, orders granting injunctions and appointing receivers, and orders refusing to dissolve injunctions and discharge receivers, (in all of which cases appeals are authorized by the statute ;) and under which appeals the question of the propriety of continuing the receiver, because necessarily involved, has been considered; as in the cases of Speights v. Peters, 9 Gill, 472, and Voshell v. Hyman, 26 Md. 83. In such cases there was a proper subject-matter of appeal in the order appointing the receiver, or granting or refusing to dissolve the injunction; and it was only in connection therewith, and as being necessarily involved therein, that the question as to the propriety of restraining or discharging the receiver was presented, or could be considered by this court. But we are not aware of any case where it has been held by this court that an apPeal would lie from an order simply refusing to rescind the appointment of or to discharge a receiver.

It is contended that the order appealed from is embraced within the meaning of that clause of section 21 of article 5 of the Code which declares that an appeal shall lie “from an order determining a question of right between the parties, and directing an account to be stated on the principle of such determination.” But it is an established principle that neither the appointment of a receiver, nor the refusal to discharge him before final decree, involves the determination of any right between the parties. As said by this court in Ellicott v. United States Ins. Co., 7 Gill, 307, 320, repeating the language of Chancellor BLAND:

“A receiver is an oflicer of the court. He is truly and properly the hand of the court; but his appointment determines no right, nor does it affect the title of the property in any way. The holding of the receiver is the holding of the court for him from whom the possession was taken.”

The appeal must therefore be dismissed.

NOTE.

An appeal will lie from an order appointing a receiver, Leary v. Graefi‘. (Minn) 16 N. W. Rep. 395; Simon v. Schloss, (Mich) 12 N. W. Rep. 196; but not in Montana, Stebbins v. Savage, 5 Pac. Rep. 278; nor in Kansas, Kansas Rolling-mill CO. v. Atchison, T. & S. F. R. Co., 1 Pac. Rep. 274; nor from an order removing a receiver. Farson Y. Gorham, (Ill. 7 N. E. Rep. 106.

As to what ot er orders are appealable, see Dodd v. Una, (N. J.) 5 Atl. Rep. 170, and note; Hemphill v. Collins, (Ill.) 7 N. E. Rep. 498, and note; W. U. Tel. (30. v. Locke, (1nd.) 7 N. E. Rep. 579, and note; Farson v. Gorham, (111.) 7 N. E. Rep. 104, and note; Daniels v. Daniels, (0010.) 10 Pac. Rep. 657, and note.

DULING v. PHILADELPHIA, W. & B. R. Co.
(Court of Appeals of Maryland. November 12, 1886.)

1. CusTOM AND USAGE—RAILROAD TICKET AGENT—EVIDENCE.

Where plaintiff seeks to prove such a fixed custom by the ticket agent of a railroad company as will prevail over the published notices and time-tables of such company, of which the plaintiff is presumed to have knowledge, the evidence must show that the custom is so prevalent that every one is supposed to know of its existence, and to act with reference to it; and evidence by plaintiff and his witnesses, to the effect that they have individually assumed the custom to exist, and acted upon it, though they have not tested it or heard of it from others, is legally insufficient to establish it.

I. CARRIERS—OF PASSENGERS—TICKETS—PARTICULAR TRAIN

Where, just as a train is coming up. an intending passenger buys a ticket of the agent to a station on the line in the direction in which the train is going, marked, “For this day and train only, ” the selling, at such a time, of a ticket s0 marked, does not of itself, in the absence of express representations to that effect by an agent of the company, imply a contract by it to can such passenger to that station. by that particular train, when the posters an timetables of the company showed that the train did not stop there, and, by the custaom of the company, the ticket is good for any train on that day, 01' till use .

Appeal from circuit court, Cecil county.
Action for damages. Judgment for defendant. Plaintiff appeals.