of these rulings. The ruling complained of in the third exception is not open to objection. The appellees produced a witness who had made a sketch or painting of the scene, showing location "of the bridge, the mill-dam, and country adjacent;" and after proving that the witness was an artist and draughtsman, but that he had never seen the bridge, offered the sketch in evidence, and the court admitted it. As it would have been perfectly competent for the jury to have gone in person to inspect the locality, (Act 1886, c. 415,) it is not perceived how any error was committed in submitting to them a correct representation of what they would have seen had they gone upon the premises. The question passed on in Railway Co. v. Green, 56 Md. 84, was entirely different.

caused by the careless and unskillful location | to the unskillful location of the bridge, and of the same structure when properly put to- the inadequacy of its span. For the reasons gether. The construction of a bridge at a we have given there was no error in either place totally unsuited for it, because calculated to occasion an injury like that complained of, cannot be skillful in any sense of the term. It is undeniably true that a municipal corporation has no more authority than a private person to create a nuisance. Noonan v. City of Albany, 79 N. Y. 470. It has consequently no right to build its works in such a manner, and at such a place, as will inevitably cause injury to another. Inhabitants of West Orange v. Field, 37 N. J. Eq. 600; Railroad Co. v. Town of Norwalk, 37 Conn. 109. Where the injury resulted from the narrowness of the span of a bridge, it has been held to be due to a defect in construction. Perry v. City of Worcester, 6 Gray, 544. If it be occasioned by the insufficiency of the size of a sewer it is likewise such a defect in construction as will render the corporation liable. Hitchins v. Mayor, etc., 68 Md. 100, 11 Atl. Rep. 826; White Lead Co. v. Rochester, 3 N. Y. 463. If it be a result of the bridge or sewer being placed at such a locality as to produce the damage actually inflicted, it cannot be said that the construction was other than negligent and unskillful. Skillful construction means something more than skillfully putting suitable materials together. It involves putting them together in a proper manner, upon a site adapted to the structure built. In determining whether a structure has been skillfully erected, the place upon which it has been built cannot be overlooked or disregarded. No building located upon ground incapable of supporting it can in fact be skillfully constructed. No bridge erected at a point where it will certainly be washed away by high waters, either because of the narrowness of its span, its want of elevation, The fifth exception presents the rulings of or because of a bend in the stream, is skillfully the court on the prayers. The first and third or carefully built. The location necessarily instructions, granted at the instance of the enters into and is a part of the construction. appellees, submitting the question of the negThere can be no construction without a loca-ligence, location, construction, and condition tion. There can be no skillful construction of the bridge to the jury, were, for the reaupon an improper location. The manner of sons hereinbefore fully stated, correct; and building the thing, and the place where it is the action of the court in rejecting the fourth built, must both be considered in determin- and ninth prayers of the appellants, withing the question of care and skill in its con- holding from the jury the question of negstruction. The fixing of the location, there-ligence in the location of the bridge, and infore, as part of the actual construction, is a ministerial act. If any injury be produced by a negligent location of a bridge, the person aggrieved is not, and ought not to be, without remedy. In our opinion it was competent to show by evidence that the bridge in question had been negligently located, and that the injury sustained by the appellees was the direct result of such negligence.

Turning now to the exceptions, we find that the first was taken to the ruling of the court allowing a witness, from his knowledge of the stream, extending back to 1844, to state whether the span and height of the bridge were sufficient to enable the water to pass; and the second exception brings up the action of the court in admitting evidence as v.18A.no.1-3

The appellees proved by Charles B. McClean that he was a surveyor and civil engineer; that he had been a bridge superintendent, and was familiar with the building of bridges; that about two years after the flood of 1885 he examined the remains of the abutments, the foundations under them, and the mortar found in them, and he stated his judgment to be that the work was inferior and unskillful. To this the appellants excepted. The witness was undoubtedly competent to give an opinion, based on what he saw, and the mere fact that he did not inspect the abutments until some time after the disaster did not disqualify him from forming a judgment as to the character of the work, and the fitness of the materials used. Turnpike Co. v. Crowther, 63 Md. 568, 1 Atl. Rep. 279. We discover no error in the fourth exception.

The

structing them that the appellees were estopped from objecting to such location, was consequently without error. The appellants' fifth, sixth, seventh, and eighth instructions distinctly submitted to the jury this identical question of the proper location of the bridge, and, taken in connection with those of the appellees, fairly and fully presented the law to the jury on this branch of the case. appellants' fourth and ninth prayers are wholly inconsistent with its fifth, sixth, seventh, and eighth. Having induced the court to grant the latter, it cannot complain because the fourth and ninth were rejected. Groff v. Hansel, 33 Md. 161. We do not think the appellees' first and third instructions are open to the criticism that they ig

v. Pitcher, 61 Md. 510. But we think the venue is sufficiently laid, and the body of the declaration distinctly shows that the place where the injury was done was Harford county. Where the proper venue is laid in the body of the declaration, the county in the margin may be rejected as surplusage. 1 Chit. Pl. (18th Amer. Ed.) 274. After verdict a motion in arrest of judgment was interposed, and the reason assigned was that the verdict rendered was for the plaintiff, and not for the plaintiffs. The verdict was a sealed one, and though in the body of the paper the singular "plaintiff" is used, the caption sets forth in full and at length the names of both the plaintiffs, and it thus sufficiently appears that the verdict was for the plaintiffs. motion was properly overruled. A motion was made in this court to dismiss the appeal, but we have not thought it necessary to consider it. Finding no errors in the rulings of the court of common pleas, its judgment will

nore the non-liability of the appellants if the injury proceeded from the accident of a flood, unmixed with negligence on the part of the county commissioners. Under the phraseology of these instructions a recovery was only possible provided the damage complained of resulted directly from the negligence of the defendants. The jury were explicitly told in the sixth instruction of the appellants that the plaintiffs could not recover if the proximate cause of that injury was the flood mentioned in the evidence. There was no error in granting the second instruction of the appellees, especially as qualified by the eleventh instruction given by the court as a substitute for the appellants' tenth prayer. The mill was owned by Mrs. Wise. Her husband, the other plaintiff, carried on business at the saw-mill on his own account, while the gristmill was operated by him and one Shannon. The second instruction allowed the jury to award damages for the injury to the property and business of the plaintiffs, and the elev-be affirmed. enth excluded as an element of damages the injury done to the business in which Shan- JACOB DOLD PACKING Co. v. G. OBER & non was interested. There was no inconsistency between them as in Railroad Co. v. Blocher, 27 Md. 277. The tenth prayer.

which eliminated the loss of business at the saw-mill, and restricted a recovery to the damage done to the mill, the dam, and the roadways, was entirely too narrow, and was properly rejected. The court was right in rejecting the appellants' first and second prayers. These prayers sought to withdraw the case from the jury upon the assumption that there was no legally sufficient evidence from which they could find that the injuries complained of resulted from the negligence of the appellants, or that the appellants were guilty of any negligence towards the appellees. There was evidence before them from which the jury could legally find that the bridge, when it was washed from its abutments, to which it had never been fastened, was swept against and upon the dam with a "thud," and caused it to give way, the timbers of the dam having been discovered, after the high waters abated, inter-locked with the iron of the bridge, and the bridge having been found some distance below the site of the dam. There was also evidence legally sufficient to show that the bridge was dislodged because unskillfully located and built, and because the water-way was made too narrow by the abutments. Assuming the truth of this evidence, it was sufficient when taken in connection with the other facts in the case, to justify a verdict for the plaintiffs. The third prayer was properly refused, because it denied the right to recover for any injury sustained by the appellees if Shannon had any interest in the grist-mill business. There was a demurrer filed, which the court properly overruled. It has been insisted that it should have been sustained, because the declaration, so it is alleged, does not disclose any venue. The omission of a venue may be availed of by demurrer. Crook

SONS CO.

The

(71 Md. 155)

(Court of Appeals of Maryland. June 12, 1889.)

BILLS OF LADING-NOTICE.

Act. Md. 1876, c. 262, makes bills of lading negotiable, so as to pass title to the property named in them, to the same extent as promissory notes, and expressly provides that the title shall inure to and vest in the bona fide holder for value, unaffected by the rights and equities of all other parties, of which he had no "actual notice" at purchase. Goods, at the request of the purchaser, were consigned to a third person. After shipment, the purchaser, who was the consignor, assigned the bills of lading to the assignees of the seller to secure the purchase price, and the assignees communicated with the consignee by telegraph concerning the goods. Held, that the assignees of by the statute, of the interest of the consignee, at the seller had the "actual notice," contemplated the time of the assignment. ALVEY, C. J., BRYAN and IRVING, JJ., dissenting.

and

Appeal from superior court of Baltimore city.

Argued before ALVEY, C. J., and MILLER, ROBINSON, BRYAN, STONE, MCSHERRY, and IRVING, JJ.

Saml. D. Schmucker and Geo. Whitelock, for appellant. Fielder C. Slingluff, for appellee.

IRVING, J.

The facts of this case are settled by an agreed statement of them, upon which the lower court heard and decided the case without the intervention of a jury. This appeal grows out of an attachment suit instituted by James Hough Cottman v. Sigmund Kapy, a non-resident of the state. The property attached was certain tankage, to which both appellant and appellee interposed a claim. The court below decided the property attached was not the property of the defendant in the suit, but was the property of the appellee. The appellant contends that the court erred in rejecting certain prayers offered on its behalf, and in granting certain propositions of law submitted by the appellees, and in declaring certain legal

honor a draft for the price of the goods. This telegram clearly shows that Dold & Son thought the tankage was really for Ober & Sons, who were notable fertilizer manufacturers, and most likely so known to be by Dold & Son. It is true this occurred after the transfer of the bills of lading to Dold & Son, and it does not appear that their infor

propositions of its own motion. The con- the direction of Jacob Dold & Son had three troversy in this court is entirely between columns. The first was headed, "Marks and the claimants of the property attached, and Consignees;" the second, "Articles;" and the neither the plaintiff below nor the garnishee third was marked, "Actual Weights." In are represented in this court, neither of them the column headed "Marks and Consignees" having appealed. Cottman, the plaintiff, in these entries appear: "Account and order the summer of 1888, agreed to buy of Sig-Jacob Dold & Son. To order of S. Kapy & mund Kapy, of Kansas City, certain tankage, Co. Notify G. Ober & Sons Co., Locust including that made by the appellant. In Point, Balto., Md." The goods were therethe latter part of September, 1888, Kapy tel-fore consigned by his direction to G. Ober egraphed to Cottman that he was ready to & Sons Co.,-and Dold & Son knew they had ship four car-loads of tankage. Cottman im- some interest in the goods. What that inmediately sold this tankage to G. Ober & terest was, if he did not already really know, Sons, the appellee, and intended Kapy to Dold could have ascertained by asking Kapy. "ship" the tankage direct to G. Ober & Sons That he did know by inquiry from Kapy, or Co. Kapy bought the tankage of J. Dold so suppose from the order to send to G. Ober & Son, who, according to direction, for- & Sons Co., is evident from the fact that, warded the same to G. Ober & Sons Co., after getting the bills of lading transferred Baltimore, by the Chicago, Rock Island & to himself, Dold telegraphed Ober & Sons Co. Pacific Railroad, from which it was trans-that they could have the goods, if they would ferred to Baltimore & Ohio Railroad, and was brought to its destination, Baltimore. Kapy was given a receipted invoice and bill of lading. Before the bills of lading had been forwarded by Kapy to Ober & Sons it was discovered that some of Kapy's checks for the tankage were dishonored and were not paid, and Kapy had been arrested for forging bills of lading. Thereupon the ap-mation which led to this telegram was acpellant, which is a corporation, successor to and assignee of Dold & Son, induced Kapy to assign the bills of lading to it in part payment of his indebtedness to Dold & Son. Having secured this transfer, appellant telegraphed G. Ober & Sons that they could have the tankage, if they would honor a draft on them for the price. This was declined, and the goods were claimed as theirs by purchase from Cottman. Cottman had made large remittances to and acceptances of drafts from Kapy, and, discovering that he had been paying on forged bills of lading, he attached this tankage as soon as it arrived in Baltimore. The court ruled that the tankage had passed away from Kapy, and was not his to be the subject of attachment, and no appeal was taken on behalf of the plaintiff in the attachment; so that the question is, does it belong to appellant or appellee?

The statute of this state 1876, c. 262, § 1, makes bills of lading negotiable so as to pass title to the property mentioned in them to the same extent as promissory notes. The closing words of the statute are that the title to the property mentioned therein shall "inure to and be vested in each and every bona fide holder thereof for value, altogether unaffected by any rights or equities whatsoever of or between the original or any prior holders of or parties to the same, of which such bona fide holder for value shall not have had actual notice at the time he became such." The appellee contends that the appellant had such information as put him on inquiry, and was equivalent to actual notice, and the learned judge of the superior court sustained this view, and so ruled. A majority of the court think that ruling was right. The bills of lading issued by the railroad by

quired before or at the time of the transfer of the bills of lading, but if he had not the knowledge then he could have had it before the transfer; and if he had inquired he would have gotten the knowledge, and would have been told of the sale to Cottman, and by him to Ober & Co., and the direction to ship to Ober & Co. direct, and to send papers to him, (Cottman.) He would have learned also of the sale-notes which were sent to Kapy & Co. by Cottman. It appearing that he had enough to put him on inquiry with respect to the interest Ober & Co. had in the goods, it needs no citation of authority that such notice was equivalent to actual knowledge; and if he did not follow up the inquiry, and learn all about the transaction, it was his own fault, and he has no right to complain. It follows from what we have said that the rulings of the lower court appealed from must be affirmed. This is the view of the majority of the court, but Judges ALVEY, BRYAN, and the writer of this opinion do not think that the appellant had such notice of the appellee's claim or interest as rendered the transfer of the bills of lading ineffectual to pass the property to the appellant. Judgment affirmed.

(71 Md. 248)

DOUGHERTY et al. v. MOORE et al. (Court of Appeals of Maryland. June 12, 1889.) GIFTS INTER VIVOS.

Where a husband makes a written statement in credited to him in the book to his wife, but continhis bank pass-book that he gives all the money ues to draw on his own account from the same fund, there is no delivery sufficient to constitute a valid gift of the fund.

Appeal from circuit court of Baltimore city.

Argued before ALVEY, C. J., and MILLER, | the consent of the donor, and with the intent IRVING, STONE, BRYAN, MCSHERRY, and on his part to relinquish all right and interest ROBINSON, JJ.

F. S. Hoblitzell, for appellants. E. O. Hinkley, E. Story, and W. Pinkney Whyte, for appellees.

ROBINSON, J. This is a controversy in regard to the title to two funds, or sums of money held on deposit by the Eutaw Savings Bank of Baltimore and the Savings Bank of Baltimore, and claimed, respectively, by the administrator of the wife and the administrator of the husband. McDonald, the husband, opened an account in the Eutaw Savings Bank in 1864, and running down to 1887, when he died. The account was opened in his own name, and so continued till 19th February, 1868, when the name of his wife was added; and thereafter the entry in the pass-book of the bank and in ledger of the bank read: "Laurence McDonald. Sarah

McDonald and the survivor, subject to the order of either." On the 4th of January, 1876, the following entry was also made:

"In consideration of my natural love and affection for my wife, Sarah McDonald, I give to her all the money belonging to me credited or to be credited in this book, and I direct the same be paid to her, and her receipt shall be good for the same.

his

"LAURENCE X MCDONALD."

mark.

in the subject of the gift, and making it the property of the donee. These are familiar principles, about which there can be no contention. "If the thing be not capable," says Chancellor Kent, "of actual delivery, there must be some act equivalent to it. The donor must part not only with the possession, but with the dominion, of the property." 2 Kent, Comm. 439. Here the subject of the gift is money on deposit in a savings bank. and it is admitted that there was no actual delivery of the money itself by the husband

to the wife.

If so, the question, then, is whether the act or acts of the husband are in a legal sense equivalent to an actual delivery of the money. We shall not stop to consider whether an assignment in writing and delivery to a donee of a pass-book of a savings bank by the donor, with the intention to give and vest in the donee the immediate right

and interest in the money held on deposit, will constitute a valid gift of such deposits. In

some states it has been held that such an as

signment and delivery will vest in the donee a valid title to the money. It is sufficient to say there was no delivery by the husband to the wife of the pass-book of the bank in this case, with the intention on his part of renouncing all interest in the deposits, and of transferring to her the absolute title to the same. In the first place, there was no delivery of the pass-book itself to the wife. It After these entries were made, McDonald was kept, it appears, both before and after continued to make deposits from time to time, the entries of 19th February, 1868, and 4th and to draw money on account of the same as January, 1876, in the bureau drawer in the his wants or convenience required; the sum dining-room, within the reach and under the of $600 being drawn by him two days only control of the husband. Much less is there before he died. His wife also drew money any proof of its delivery to the wife with from time to time, upon her presenting the the intention on the part of the husband of pass-book to the bank, and having the several renouncing all interest in the money. On amounts credited thereon as required by the the contrary, years after the entries, and in rules and regulations of the bank. The hus-fact during his life, he continued to draw sand and wife died on the same day, the wife surviving her husband little more than one hour.

The question, and the only question, it seems to us, is whether there was a valid gift by the husband to his wife of the money held on deposit by the bank. All agree that, to constitute a valid gift between living parties, or gifts inter vivos, as they were distinguished by the civil law, there must be a delivery of the subject-matter of the gift, with the intent on the part of the donor to transfer the right of property to the donee, or to some one for his use. The donor must renounce, and the donee must acquire, the title and interest in the property given. So long as there is a locus penitentia in the donor, the right to change his mind, to modify, or revoke it, the gift is incomplete. As was said by GIBBS, C. J., in Bunn v. Markham, 7 Taunt. 224: "There is no case which decides that the donor may resume the possession and the donatio continue;" nor will the mere fact of possession in itself be sufficient, but it must appear that such possession was acquired with

money and appropriate it to his own use, showing beyond question that he never meant to relinquish his right and dominion over the deposits. Now, if there was a complete gift of the money to the wife, if in fact it belonged to her, then he had no right to appropriate it to his own use. One cannot give property to another, and then take it back. Once establish the gift and the property belongs to the donee, but there can be no gift in law so long as the donor retains the control and dominion over the subject of the gift. A mere promise to give, however explicit, will not be sufficient, for the reason that, the promise being made without consideration, it cannot be enforced. Pennington v. Gittings, 2 Gill & J. 208; Murray v. Cannon, 41 Md. 466; Taylor v. Henry, 48 Md. 550.

Although the husband in this case did not mean to relinquish his right to use the money on deposit during his life, he did mean that whatever remained in the bank at the time of his death should go to his wife if she survived him. But these entries cannot operate

as a testamentary disposition of property, be- | lar cases. Here the boy killed was 19 years cause they are not executed as the law re- and seven months old, and he met his death quires. We are of opinion, therefore, that under peculiar circumstances. We gather the money held on deposit by the Eutaw Sav- from the record that in October, 1888, the ings Bank belongs to the administrator of the defendant held a fair on its grounds at Hahusband, and not to the administrator of the gerstown. Among the exhibitions offered for wife. The claim of the administrator of the the amusement of visitors were balloon aswife to the money on deposit in the Savings censions and trapeze performances in the air. Bank of Baltimore rests on no better ground. The preparations for these were in a circular The entry in the pass-book here reads: inclosure in a part of the fair-grounds, and "Laurence McDonald, subject also to the or- several large poles were planted by which der of Sarah McDonald.' In other words, the balloons could be stayed and held while the money deposited belonged to him, but they were in process of inflation and made was subject to the order of himself or his ready to be sent up. One of those poles, which wife. She had the authority to draw money, it is alleged was insecurely fixed in the and all checks drawn by her were, it appears, ground, fell upon the boy, and killed him. signed, "SARAH McDonald, for LAURENCE He had a ticket as keeper of stock which adMCDONALD." The subsequent entry of 4th mitted him to the fair-grounds free of charge, January, 1876, "in consideration of my but with all the privileges of an ordinary natural love," etc., is precisely the same as visitor. There was the usual conflict of tesin the pass-book of the Eutaw Savings Bank, timony as to negligence on the part of the the effect and operation of which we have defendant, and as to contributory negligence already considered. For the reasons already on the part of the deceased, but on this part assigned, we are of opinion there has been no of the case little need be said. We find no valid gift by the husband to the wife of the error warranting a reversal in the instrucmoney on deposit in the bank, and the de- tions on these subjects given to the jury by crees below must therefore be affirmed. De- the learned judge before whom the case was crees aflirmed. tried, in granting the plaintiff's third and fifth prayers, and the defendant's third, fourth, eighth, ninth, and tenth prayers. The defendant's fifth, sixth, and seventh prayers on the same subject were properly rejected, because those granted fully covered the law. as to this branch of the case. The multiplication of prayers substantially the same on subjects about which the law has been thoroughly well settled is a practice much to be deprecated.

(71 Md. 86)

AGRICULTURAL & MECHANICAL ASS'N OF
WASHINGTON COUNTY . STATE, to Use of
CARTY

(Court of Appeals of Maryland. June 11, 1889.)

DEATH BY WRONGFUL ACT-DAMAGES. In an action by a father for the death of his minor son, alleged to have been caused by defendant's negligence, brought under the Maryland neg: ligence act, which allows such suits for the benefit "of the wife, husband, parent, and child" of the But the question most earnestly argued person killed, no expectation of pecuniary benefit arises upon the rulings as to the measure of to plaintiff from the continuance of the child's life damages. The judge was clearly right in after minority can be considered in estimating instructing the jury that in estimating the damages, though the child had been emancipated by plaintiff two years before his death, and had damages they were confined to the pecuniary since voluntarily paid part of his earnings to plain- damages sustained by the plaintiff. The tiff, and had promised that he would "help" plain-authorities all agree that in suits under Lord tiff after he became of age.

Campbell's act, and similar statutes in this Appeal from circuit court, Washington country, pecuniary damages only can be recounty; A. K. SYESTER, Judge.

covered. Nothing can be given the father Action for damages by the state of Mary-as a solatium for the bereavement suffered land, to use of Samuel Carty, against the Agricultural & Mechanical Association of Washington county. Judgment for plaintiff, and defendant appeals.

by the loss of his child. The statute does not deal with the priceless value at which a father holds the life of his child, and only professes to compensate him for the pecunArgued before MILLER, ROBINSON, IRV-iary loss he may sustain by his death. But ING, STONE, BRYAN, and MCSHERRY, JJ.

Frederick F. Comas, Edward Stake, and Alexander Neill, for appellant. Henry H. Keedy and J. Clarence Lane, for appellee.

the court told the jury, that, in estimating such damages, they could allow the father what they may believe, from all the evidence in the case, will be an adequate compensation "for the loss of his son's life," and refused MILLER, J. This suit was brought under to instruct them that they could only give the negligence law, by a father to recover such as they may believe from the evidence damages for the death of his minor son, will be an adequate compensation for the loss caused, as it is alleged, by the negligence of of his son's services "until he should arrive the defendant. Many actions have been at the age of twenty-one years." So the brought under this statute, and they seem to question is fairly raised whether, in a suit by be daily increasing in number. The legal a father under this statute to recover dam. principles which govern them are familiar, ages for the death of a minor child, the jury but there is always more or less difficulty in should be allowed to take into account any the application of these principles to particu-expectation of pecuniary benefit to the plain