ciary capacity, and having personal property in his possession or under his control. If this fund differs in any degree from moneys which may be said to be held by one as administrator it falls within the broader classification of the act of 1891.

It is suggested that the imposition of the tax on the administrator will be a hardship, because the mortgage, as drawn, requires the interest to be paid directly to the widow by the mortgagor. If it is susceptible of that construction, the administrator is at fault, for the order of the orphans' court directed him to pay the interest to the widow annually for life. Upon collection of the interest the taxes paid by him could be retained. Such result would follow from principles laid down in Holcombe v. Holcombe. By the act approved March 2, 1883 (Supp. Revision, p. 1019), the legislature has given express authority to one holding such a fund to pay the taxes, and to use the tax receipt in payment of the income to the life tenant. This act was in force when the mortgage was drawn, and if it has been so drawn that the prosecutor may not avail himself of its provisions, this court cannot relieve him of a tax rightfully imposed. The tax complained of must be affirmed.

MERRIAM et al. v. WHITE. (Supreme Court of Rhode Island. Nov. 26, 1894.)

SUIT AGAINST MARRIED WOMAN-RECOVERY FOR GOODS SOLD-NONJOINDER OF HUSBAND.

1. Under Pub. St. c. 166, § 4, as amended by Pub. Laws c. 1204, § 1, providing that "any married woman may make any contract whatsoever, the same as if she were single and un married, and with the rights and liabilities," an action may be maintained against a married woman to recover the price of goods sold to her, without joining her husband.

2. Pub. St. c. 166, § 16, as amended by Pub. Laws c. 1204, § 2, providing that in all actions relating to the "property" of any married woman the husband and wife shall be sued jointly, does not apply to an action to recover the price of goods sold to the wife.

Assumpsit by C. S. Merriam & Co. against Mary E. White. The case was certified from the common pleas division for hearing on demurrer. Demurrer sustained.

E. C. Pierce, for plaintiffs. M. D. L. Mowry, for defendant.

MATTESON, C. J. This is an action of assumpsit to recover $41.27, which the plaintiffs claim to be due to them on book account, for wall paper and picture molding sold and delivered to the defendant. It was originally brought in the district court of the Sixth judicial district. On the day of the entry of the action in the district court the defendant claimed a jury trial. Thereupon the district court certified the case to the common pleas division of this court. The defendant pleaded (1) in abatement, the

coverture of the defendant, and (2) the general issue. The plaintiffs demurred to the plea of coverture, and the common pleas division certified the case to this division for hearing on the demurrer.

The demurrer presents the question whether suit can be brought and maintained against a married woman for the recovery of the price of goods which she has purchased without joining her husband as a defendant. This depends on the construction of Pub. St. R. I. c. 166, §§ 4, 16, as amended by Pub. Laws R. I. c. 1204, §§ 1, 2. Section 4, as amended, is as follows: "Any married woman may make any contract whatsoever, the same as if she were single and unmarried, and with the rights and liabilities." Section 16, as it stood prior to the enactment of chapter 1204, was as follows: "In all actions relating to the property of any married woman, secured to her by this chapter, the husband and wife shall jointly sue and be sued, except in case a trustee of the same be appointed as hereinafter provided, and except in actions upon such contracts as she is authorized to make by section six of this chapter, in which last case the wife may sue and be sued alone." By section 2 of chapter 1204, section 6 of chapter 166 was repealed, the effect of which was to eliminate from section 16 the last exception contained in it, and to leave it to stand as follows: "In all actions relating to the property of any married woman, secured to her by this chapter, the husband and wife shall jointly sue and be sued, except a trustee of the same be appointed as hereinafter provided." We are of the opinion that section 4, as amended, authorizes the bringing of a suit in the circumstances mentioned against a married woman without joining her husband. There can be no question that a single woman could purchase goods and render herself liable to be sued for the recovery of the price if she did not pay the purchase money. As the statute authorizes a married woman to make any contract whatsoever, the same as if single and unmarried, and with the same rights and liabilities, it must necessarily follow that she. too, may make a contract for the purchase of goods, and thereby bind herself for the payment of the price on delivery of the goods, and render herself liable to be sued if she does not pay, precisely as if she were single and unmarried; otherwise her liability on such a contract would not be coextensive with that of a single woman, and, if not coextensive, not the same, as the statute declares it shall be. It will be observed that section 16, as it stands, and has stood since the passage of chapter 1204, is limited to actions relating to the property of a married woman. It does not purport to extend to her contracts. A debt which a married woman owes is not her property, and therefore section 16 can have no application to such a suit as the present. Demurrer sus

PER CURIAM. The declaration in this case shows merely that the defendants negligently omitted to sufficiently shore up the roof of their mine, in consequence of which the plaintiff's intestate was killed, by the falling upon him of a mass of graphite. As the intestate was killed, no action for damages lies at common law. Pub. St. R. I. c. 204, § 20, provides an action in cases in which death ensues from injury inflicted by the wrongful act of another, and in which an action for damages might have been maintained at common law had death not ensued. But this statute does not extend to an action against a defendant who is charged with a mere passive neglect or omission of duty. Bradbury v. Furlong, 13 R. I. 15. The verdict is set aside, and the case remitted to the common pleas division, with direction to dismiss, unless the plaintiff is able to amend his declaration so as to bring the case within the provision of the statute, and, on motion, shall obtain leave for such amendment.

SMITH v. SMITH,

(Supreme Court of Rhode Island. Nov. 23, 1894.)

PARTNERSHIP-ACCOUNTING-INTEREST.

1. On an accounting as to a partnership conducted for the purchase and sale of horses, the value of horses that died during the continuance of the business should be deducted from the profits.

2. Where a partner failed to seek an accounting until after the lapse of 15 to 20 years, and the means of showing the true state of the account have been lost, equity will not allow him to recover interest on the balance due him. Bill by Thomas P. Smith against Henry S. Smith for an accounting between plaintiff and defendant as partners. The report of the master was in favor of plaintiff, and defendant filed exceptions thereto. Report modified.

George J. West, for complainant. C. F. Baldwin, Benj. N. Lapham, and Amasa M. Eaton, for respondent.

PER CURIAM. In the absence of the usual data for taking an account, and after the lapse of 15 to 20 years since the transactions of the partnership to which the account refers, it is extremely difficult to arrive at a satisfactory conclusion respecting the true state of the account. Such books of account as were kept by the parties not being accessible for the reasons set forth in the testimony, the master was obliged to proceed largely on the uncertain recollections of witnesses concerning matters which occurred many years prior to their testimony, and to reach his conclusion by reasoning from averages and inferences instead of from clearly established, definite facts and amounts. He appears to have taken a moderate and conservative view of the testimony before him in estimating the volume of the partnership business and its profits. Though we cannot resist the feeling that the amount found due to the complainant is much larger than he is probably entitled to, we cannot say that the finding is not warranted by the testimony, except that no allowance is made for the loss of four horses by death. Assuming that these horses were worth on an average $125 each, which we think may fairly be assumed on the testimony, there should have been deducted from the profits as ascertained, viz. $33,500, the sum of $500. The master evidently regarded the barn and lot standing in the name of Henry S. Smith as his individual property. We think that he was justified in so doing. As the partnership extended only to the purchase and sale of horses, we think that the use of the horse by Sheffield Smith, and the keeping of the horse during the period he was so used were matters between him and Henry S. Smith individually, and not partnership transactions, and hence that the master properly took no account of these items. The master, though he has computed the interest on the complainant's share of the profits as ascertained by him, has neither allowed nor disallowed it, but has left the question to be determined by us. Ordinarily, interest on the balance found due to a partner at the dissolution of a partnership will be allowed from the date of the dissolution, or from such a date as would afford a reasonable opportunity to close up the partnership business (Allen v. Woonsocket Co., 13 R. I. 147), because ordinarily such allowance is equitable; but when, as in the present instance a complainant has allowed his claim to lie till it has become stale and antiquated, and through the lapse of years the means of showing the true state of the account has been lost, such allowance may be very inequitable. In Hunt v. Smith, 3 Rich. Eq. 520, the chancellor remarks: "In the allowance or disallowance of interest all the circumstances are properly taken into consideration, and the character of the claims, as well as the vigilance or

laches of the party insisting on the payment of interest, are always prominent features in directing the judgment of the court. *** It is not to be denied that great and almost unprecedented delay took place in prosecuting the litigation. In no inconsiderable measure this was attributable to the plaintiffs. Although the claims have been preserved, the demand of interest upon them seems obnoxious to many of the principles which influence the court." And see, also, Pettus v. Clawson, 4 Rich. Eq. 103. We think that the remarks of the chancellor in Hunt v. Smith, quoted above, apply with peculiar force to the present case, and that, in the circumstances, the allowance of interest would be grossly inequitable. The exceptions, except so far as sustained herein, are overruled, and the master's report, as modified hereby, is affirmed.

FOWLER, J. The record in this case is very unsatisfactory, and does not properly, if at all, present the question which was argued, inasmuch as it does not appear whether the appellant was injured by the ruling complained of. The only exception taken by him, so far as the record discloses, is to certain questions addressed during cross-examination to the witness Jacob Lutz. These questions were asked for the purpose of discrediting the witness; and in answer to them he admitted that he had been tried and sentenced by a magistrate, within a month preceding, to serve a short term in jail for drunkenness. The only evidence set forth in the bill of exceptions is contained in an extract from the cross-examination of the witness. What his testimony in chief was we are not informed, and it is impossible to say whether it was relevant and material or not. If not, the appellant was not injured by the

ruling of the court. For aught we can see, the testimony in chief may have been of no value whatever to the appellant, and its entire exclusion may have been beneficial, rather than injurious, to him. In order to justify a reversal, as we have often said, there should be a concurrence of error on the part of the court and injury thereby resulting to the appellant, and this must be apparent from the record. As the case was fully argued, we will briefly consider the question which was intended to have been presented. We have seen there was no injury, and we think it is clear the court below committed no error.

The appellant contends that, by the ruling complained of, irrelevant testimony was introduced on the cross-examination of his witness, which damaged his case before the jury, and that, even if the appellee had the right to show that the witness had been convicted of drunkenness in order to discredit him, it was error not to produce the best evidence thereof, namely, the record of conviction. We think, however, that the case of Smith v. State, 64 Md. 25, 20 Atl. 1026, fully disposes of any doubt as to the relevancy of the evidence brought out on cross-examination, and the propriety of the question by which it was elicited. The question in the case just cited was, "State if you have ever been confined in the Baltimore city jail;" and the question here was, "Have you ever been in jail?" which was followed by the question, "What were you sent there for?" In Smith v. State, supra, we held that the theory upon which such inquiry has been allowed is that the credibility of a witness is

always in issue, and therefore anything

which will tend to throw light upon his character in that regard may always be inquired into; and we cited Real v. People, 42 N. Y. 270, quoting the following language of the court of appeals of New York: "A witness, upon cross-examination, may be asked whether he has been in jail, the penitentiary, or the state prison, or any other place that would tend to impair his credibility." The object of the question here asked was the same as that in Smith v. State, namely, to impair the credibility of the witness, and, the question having been ruled proper in that case, it is equally so here.

But it is contended that, conceding (and this concession is necessary since the ruling in Smith v. State) that, even if the appellee had the right to show the witness had been convicted, it was error not to produce the best evidence thereof, viz. the record of conviction. While there is some conflict in the authorities and text-books, as well as reported cases, upon this subject, we think the more reasonable and practicable rule is that which does not demand the production of the record when the object, as here, is solely for the purpose of discrediting. In commenting upon this question, Mr. Thompson, in his book on Trials (section 467), says: "There is

a confusion in the authorities as to whether a witness may be asked, on cross-examination, whether he has been arrested, indicted, or convicted upon a criminal charge. One of the difficulties grows out of the question whether such a matter can be proved by secondary evidence,-even by the admission of the witness, who must, of all men, be certain of the fact if it existed. The strain about secondary evidence in such a case is a mere quibble, destitute of common sense." In Clemens v. Conrad, 19 Mich. 174, Cooley, C. J., clearly lays down the rule and the reasons on which it is based: "The right to inquire of a witness, on cross-examination, whether he has not been indicted and convicted of a criminal offense, we regard as settled in this state by the case of Wilbur v. Flood, 16 Mich. 40. It is true that in that case the question was whether the witness had been confined in the state prison, not whether he had been convicted; but confinement in prison presupposes a conviction by authority of law, and to justify the one inquiry and not the other would only be to uphold a technical rule, and at the same time point an easy mode of evading it without in the least obviating the reasons on which it rests. We think the reasons for requiring the record evidence of conviction have very little application to a case where the party convicted is himself upon the stand, and is questioned concerning it, with a view to sifting his character upon cross-examination. The danger that he will falsely testify to a conviction which never took place, or that he may be mistaken about it, is so slight that it may almost be looked upon as purely imaginary, while the danger that worthless characters will unexpectedly be placed on the stand, with no opportunity for the opposite party to produce the record evidence of their infamy, is always palpable and imminent." To the same effect is also section 474, Whart. Cr. Ev. See, also, State v. O'Brien, 81 Iowa, 93, 46 N. W. 861; State v. Miller, 100 Mo. 622, 13 S. W. 832, 1051; and State v. Taylor, 24 S. W. 449. In the case last cited, the supreme court of Missouri say: "In this country there has been some hesitation in permitting a question, the answer to which not merely imputes disgrace, but touches on matters of record; but the tendency now is, if the question be given for the purpose of honestly discrediting the witness, to require an answer." Judgment affirmed.

BURK et al. v. TINSLEY. (Court of Appeals of Maryland. Nov. 22, 1894.) ATTACHMENT-INSUFFICIENT VOUCHER.

In an action on a money claim, a voucher stating the amount of the claim, but not on what account contracted, is insufficient to support an attachment.

Appeal from superior court of Baltimore city.

Action by William Burk and Louis Burk, partners trading as William Burk & Bro., against S. L. Tinsley on a money claim. From an order quashing an attachment leyied by them, plaintiffs appeal. Affirmed.

Argued before BRYAN, FOWLER, BRISCOE, ROBERTS, and PAGE, JJ.

Aug. Paper and S. J. Harman, for appellants. S. S. Field, for appellee.

PAGE, J. This appeal is from the order of the court below striking out the judgment of condemnation and quashing the attachment. The order of the court is "that the judgment of condemnation in this case be, and it is hereby, stricken out, and the writ of attachment be and hereby is quashed, on the ground of the insufficiency of the voucher: provided the defendant enters his appearance to the short-note case."

The voucher thus declared by the court to be insufficient is as follows:

Philadelphia, Oct. 17th, 1892. S. L. Tinsley, Dr., Wm. Buck & Bro. Oct. 12. Cash....

Dr.

1,978 50

1,558 00 $ 420 50

Now, while the voucher or evidence of debt is not required to be produced qua testimony, yet it ought to show the real nature and extent of the claim as set forth in the affidavit. Hoffman v. Reed, 57 Md. 375. In that case an account, "To professional services, as per agreement, $200," was held insufficient, because "it does not give to the debtor, or other persons interested, any certain notice or information as to the real nature and character of the claim." So in Thillman v. Shadrick, 69 Md. 529, 16 Atl. 138, where the voucher was, "To a balance due on purchase money of nine houses," etc., the court said: "The correctness of the balance depends upon the accuracy of the debits and credits. It is impossible for the defendant to state, as his defense, what part of the plaintiff's claim is admitted, and what denied, where no information as to the particulars of the indebtedness is given. And as it was the object of the act of assembly to narrow the questions in issue, between the parties as much as could practicably be done, it seems clear, upon principle, that such a statement as that filed by the appellee is very far from being what the statute exacts." In Stewart v. Katz, 30 Md. 346, the account was declared sufficient because "it was certain in its items and details," and "is made out in the mode usually adopted by merchants engaged in extensive business, and is perfectly intelligible." In Cox v. Waters, 34 Md. 461, the account.

"To cash loaned at sundry times on call," was held sufficient because it gave the debtor the real nature and character of the claim. In that case a distinction is made between "an account for goods bargained and sold at sundry times," which would not be sufficient, and the one they then had under consideration. The former embraces elements of quantity and prices, and unless these were set out no information as to the real nature of the claim could be given; but the case of "cash loaned" is more simple, and, if the aggregate is stated, dates and quantities of the several sums loaned are not essential to make the matter perfectly intelligible. In Bartlett v. Robbins, 53 Md. 501, "each of the items is set forth, the building for which they were furnished is specifically referred to, and the time during which the appellee was employed in doing and in superintending the work is stated."

From this brief review of the principal cases in Maryland on this subject, the rule to be applied here is, does the account filed in this case furnish such certain information as to make clear to the defendant what is the real nature and character of the claim? The item charged is "cash." Now, if the account was for "cash loaned," it would have been clear that the suit was to recover for money which the plaintiff had loaned the defendant. But the claim, as it stands, means simply that the defendant owes the plaintiff $1,978.50 (the dollar mark, when the whole account is examined, may be supplied); but on what account--whether for goods sold, or money loaned, or otherwise-the account entirely fails to show. It therefore leaves the defendant entirely uninformed as to the "real nature and character of the plaintiff's claim," and is wholly insufficient to support the attachment. Other reasons for quashing the attachment were argued in the briefs of counsel, but, inasmuch as what we have said disposes of the case, we will not consider them. Order affirmed.

MARYLAND LAND & PERMANENT HOMESTEAD ASS'N OF BALTIMORE COUNTY v. MOORE et al. (Court of Appeals of Maryland. Nov. 22, 1894.)

VENDOR'S LIEN-ENFORCEMENT AGAINST PURCHASER OF LAND-NOTICE.

Where a deed of land acknowledges receipt of the full purchase price, though notes were given for a part thereof. the grantor cannot, as against a subsequent purchaser without notice that the price is not all paid, claim a vendor's lien.

Appeal from circuit court, Baltimore county; in equity.

Bill by Benjamin P. Moore, trustee, and others, against the Maryland Land & Permanent Homestead Association of Baltimore County, to foreclose a vendor's lien on land. Judgment was rendered for plaintiffs, and defendant appeals. Reversed.

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

Gans & Haman, for appellant. A. W. Machen and Benjamin P. Moore, for appellees.

ROBINSON, C. J. The question raised on this appeal is whether the appellees are entitled to a vendor's lien on a lot of ground containing 13 acres, which was sold and conveyed by the Woodberry Land Company to the Maryland Land & Permanent Homestead Association of Baltimore County, the appellant corporation. The undisputed facts are these: On the 9th of April, 1842, John Clark and wife conveyed to John Roberts a tract of 107 acres of land adjoining the village of Woodberry, in trust for Thomas R. Mathews and Ann, his wife, the trusts being fully set forth in the deed. Upon the death of Roberts, Gerard H. Reese was appointed trustee in his place, and, in the exercise of the power contained in the deed of trust, Reese, trustee, on the 1st July, 1873, sold the entire tract of 107 acres to Elias B. Sandford for the sum of $104,312.50, of which $5,000 was paid in cash, and for the balance of the purchase money Sandford gave six promissory notes to the trustee. By bond of conveyance duly executed and recorded, Reese, trustee, agreed that upon the payment by Sandford to said trustee of the sum of $1,500 for each and every acre sold by Sandford lying south of a certain line drawn across the tract, and of the sum of $1,250 for each and every acre so sold by him lying north of said line, he, Reese, trustee, would execute to him, or to whomsoever he might designate, a deed in fee simple for so much of the land as had been paid for in accordance with terms of the bond of conveyance. On the 6th December, 1873, Sandford sold and conveyed the entire tract of 107 acres to the Woodberry Land Company of Baltimore city, a corporation of which he was president, for the sum of $200,000, the said sale being subject to all the provisions, agreements, and covenants contained in the bond of conveyance from Reese, trustee, to Sandford. On the 19th August, 1874, Reese, trustee, conveyed to the Woodberry Land Company 13 acres, part of the 107 acres; and the deed, after reciting the provisions of the bond of conveyance, declares that the "parties of the third part have paid to the parties of the first and second parts the sum of $20,925 for the land hereinafter described, the receipt whereof the parties of the first and second parts do hereby acknowledge." Here, then, is an absolute conveyance by Reese, trustee, to the Woodberry Company of the 13 acres, and a declaration in the deed by him that the entire purchase money had been paid according to the terms of the bond conveyance. Having the legal title, the Woodberry Company sold the property to the appellant for $27,900, and,