der for temporary alimony should not be set aside because of the manner in which the notice of application for it, and of the proceedings therein, were served. Under all the facts now shown, service of notice of the application at the residence of his father was the best notice which could have been given, and the notice which the court would have directed, had the facts now shown been proved.

As to setting aside the service of the subpoena, the application for this purpose was not strictly within the terms of the leave and special appearance; but this was, no doubt, due to oversight, and the petition, which includes the application to set aside the service of the subpoena, was not objected to on this ground at the hearing. The question of the legal service of the subpœna was fully argued, and decision of this question comes up regularly on this branch of the petition. The subpoena, under the statute, must be served at the "dwelling house or usual place of abode." This means, as the courts construe these statutes, the place of actual abode at the time of the service, not a legal domicile. Stout v. Leonard, 37 N. J. Law, 492, 495. The evidence shows, in my opinion, that his father's residence was not, at the time of the service, the actual place of abode of the defendant, for the reason that he had left the state with the intention of remaining out of it for an indefinite time, and that his father's residence, after his departure, ceased to be legally, within these statutes, his dwelling house or place of abode. Had the absence been merely in order to escape service of process for a time, and then return, such departure would not, according to many authorities, have changed his residence or place of abode, under statutes providing for serving process at a residence or place of abode. Reg. v. Farmer [1892] 1 Q. B. 637, 641; Reg. v. Webb [1896] 1 Q. B. 487. But the absence of any intention to return again after a definite time prevents the rule in these cases from being applied. The service of the subpoena must therefore be set aside, and proceedings should be taken to bring in the defendant as an absent defendant. These, in the language of the chancery act (section 18, 1 Gen. St. p. 405, par. 172), are defendants "who are out of the state or cannot on due inquiry be found herein, or who conceal themselves within the state." An order will therefore be advised setting aside the service of subpoena, but denying the prayer of the petition to set aside the order for alimony pendente lite, and the proceedings and the proceedings thereon.

The leave to enter a special appearance was granted in this case without terms, but, as a matter of practice, it should be stated that the more correct practice seems to be to require, as a condition of granting such leave, that there be inserted in the order an undertaking or stipulation that the de

fendant would submit without further process to the orders of the court if the point should be decided against him. Romaine v. Insurance Co. (Hammond, J., 1886) 28 Fed. 625. The plain reason is that the special leave, without such condition, places the defendant in the position of drawing the opinion of the court without any risk; for if the court has no jurisdiction, by reason of failure to serve process, its decision that it has such jurisdiction does not settle this question, so that it may not be questioned after judgment, and in any court. Unless, therefore, the defendant agrees to come in if the decision on the point of jurisdiction is against him, he should, as a general rule, be left to question the jurisdiction of the court in a forum where all parties will be bound. The application, in this respect, is on an altogether different footing from one in which a defendant appearing generally in the cause, and submitting to the jurisdiction of the court, applies to set aside an order for irregularity, or to be heard on the merits, for decisions on such applications will be finally settled in the cause itself.

GOLDSBOROUGH v. LLOYD, Judge.

(Court of Appeals of Maryland. Nov. 17, 1897.) DISTRICT ATTORNEYS-FEES--MANDAMUS TO JUDGE.

1. Under Const. art. 15, § 1, providing for compensation of certain officials (among others, state's attorneys), and allowing them to retain for their remuneration fees received to the amount of $3,000, Loc. Acts 1894, c. 213, limiting the compensation of state's attorney in the county of Dorchester to $1,200, is unconstitutional, if the fees actually earned according to the rates fixed by law amount to more than the sum total specified in the act.

2. Mandamus will not be granted by two of the judges of a judicial circuit to compel a third judge of such circuit to approve the accounts of the district attorney of such circuit, such judge entertaining an opinion variant from that of the other judges as to the amount of fees payable.

Appeal from circuit court, Dorchester county.

Application of Philip L. Goldsborough for writ of mandamus to Henry Lloyd, judge. From an order refusing the same, relator appeals. Affirmed.

Argued before McSHERRY, C. J., and BRISCOE, BRYAN, RUSSUM, BOYD, FOWLER, and ROBERTS, JJ.

Alonzo L. Miles, for appellant. John R. Patterson, for appellee.

services rendered as prosecuting attorney of the county named. The petition is addressed to the judges of the circuit court for Dorchester county, and Judge Lloyd is himself one of those judges. By section 10 of article 36 of the Code of Public General Laws, all state's attorneys are allowed an appearance fee of $10 in cases where the punishment for the crime charged is death or confinement in the penitentiary, and in all other criminal cases the appearance fee is, by the same section, fixed at $3.33. The Public Local Laws of Dorchester County (article 10, § 286) authorize the judges of the circuit court to allow, in addition to these appearance fees, such trial fees to be paid by the county commissioners to the state's attorney as the judges may deem just and proper. The local act of 1894 (chapter 213) provides that the judges of the circuit court for Dorchester county may allow to the state's attorney such compensation, not exceeding $150 per year, as they may think just and proper for services rendered before committing magistrates in preliminary examinations. The same act further provides that for all trials in criminal cases before justices of the peace the same fees shall be allowed to the state's attorney as are now allowed in similar cases before the circuit court, "provided that the compensation so allowed, together with the total of the fees received, shall not amount to more than twelve hundred dollars in any one year." Judge Lloyd construed this statute to mean that the state's attorney was restricted to only $1,200 a year in full compensation for his services, even though in point of fact the fees actually earned by him exceeded that sum. Accordingly, the judge refused to certify and approve the appellant's account for fees actually earned over and above that amount. The general statute which requires the judges of the several circuit courts to approve the accounts of the state's attorneys, and which imposes upon the county commissioners of the various counties the duty to pay the accounts as certified, will be found in section 21 of article 10 of the Code, and the local law as applicable to Dorchester county in the act of 1892 (chapter 259). Upon the refusal of Judge Lloyd to approve the appellant's account for a sum greater than $1,200, the pending petition for the writ of mandamus was filed, asking that the judge be required to approve and certify the account which had been presented to him. We shall not pause to consider whether the construction placed by the learned judge upon the act of 1894 is correct or not, because there are other questions at the very threshold of the case that of themselves are decisive of this controversy, without regard to the meaning and effect of this particular statute. It must be borne in mind that the state's attorneys are officers who are paid by fees. The constitution of the state fixes no salary for them, and they belong to that class of officials the maximum of whose compen

By

sation is limited by section 1 of article 15 of the constitution to the sum of $3,000. this section, state's attorneys, together with other officers embraced therein, are allowed to retain for their remuneration the fees received by them up to the amount of $3,000, while all sums in excess of that figure and the expenses of the office are required to be paid into the state treasury. Now, this being so, it is perfectly obvious at the outset that no act of assembly can validly limit the amount of fees which a state's attorney may receive to $1,200 or to any other sum less than $3,000, though it would be perfectly competent to the general assembly to make no provision for any fees in cases before justices of the peace. Indeed, there is no limitation on the power of the legislature to adopt such a schedule of fees as it may see fit, even although the result might be to reduce the ag gregate for the year far below the sum of $3,000: But, the constitution having fixed the maximum of compensation at $3,000, no act of assembly can validly prescribe a lower sum, if the fees actually earned, according to the rates fixed by law, aggregate or reach the designated maximum or amount to more, within that maximum, than the sum total specified in the act. So, then, it becomes immaterial to inquire what the real meaning of the act of 1894 is, because, if it undertakes to limit to $1,200 the amount which the state's attorney can receive, when the constitution permits him to retain out of the fees of his office more than double that sum, should the fees aggregate so much, it is obviously and palpably in conflict with the con-. stitution, and therefore invalid; and, if it does not so limit the amount which he may receive, it interposes no obstacle to the approval of the account presented to the judge. But, however this may be, there cannot be a serious contention that a writ of mandamus may be issued by the other judges, or by either of the other judges, of the First judicial circuit, to compel Judge Lloyd to do an act which the other judges were equally authorized to do themselves, either without his concurrence or against his dissent. It would certainly be an anomaly in judicial procedure for one judge of a circuit, who happens to entertain a different view as to the meaning of a statute from his colleagues, to be coerced into conforming to their opinion under a writ issued by the others. As the Code requires the accounts of the state's attorney to be certified to the county commissioners by the judges, it obviously means by a majority of the judges; and, if Judge Lloyd entertained an opinion variant from that of his colleagues as to the quantum of fees payable to the appellant, the remedy for the appellant lay in having the other judges certify to his account. Certainly, it was not by an application to compel the dissenting judge to unite with the others. Mandamus is not a writ that will lie where there is another appropriate remedy. The remedy here, as just

We have not deemed it necessary to say anything in this opinion as to whether the statutes requiring the judges of the several circuits to approve the accounts of the state's attorneys are or are not constitutional, and we are not to be understood as passing upon that question at all. Do these statutes impose a duty on the judges which is not judicial in its character, and, therefore a duty which they cannot be required to discharge? Do they deprive the county commissioners of the right to dispute an account actually certified, and thus preclude them, without a hearing, from contesting a claim against the county that they may, in the exercise of an honest judgment, believe to be excessive? These are questions we leave untouched, because their solution is not necessary to the decision of this case. We think the circuit court was right in refusing to issue the writ of mandamus. Order affirmed, with costs above and below.

BALDWIN v. MITCHELL. (Court of Appeals of Maryland. Nov. 17, 1897.) ADMINISTRATOR PENDENTE LITE-APPEAL-DIS

MISSAL.

1. Where an administrator is appointed under Code, art. 93, § 68, he has power to discharge the debts of the decedent, though without power to make distribution of the residue.

2. Under the sixteenth rule of the supreme court, an appeal will not be dismissed because the transcript has not been filed in time, where it appears by affidavits that the delay was that of the register of wills, in failing to prepare the transcript in time, for which act the appellant or his counsel was not responsible.

Appeal from orphans' court, Harford county.

Silas Baldwin, administrator of William Baldwin, appeals from the settlement of the accounts of Noble L. Mitchell, administrator pendente lite of said William Baldwin. Reversed.

Argued before McSHERRY, C. J., and BRISCOE, ROBERTS, BOYD, FOWLER, RUSSUM, and PAGE, JJ.

S. A. Williams, for appellant. Geo. L. Van Bibber and Wm. H. Harlan, for appellee.

PAGE, J. This appeal comes from the orphans' court of Harford county. It appears that pending a controversy as to the validity of the will of William Baldwin, deceased, Noble L. Mitchell was appointed administrator pendente lite. The time at which he was so appointed does not appear in the rec

ord. He possessed himself, however, of the assets, and paid certain debts of the deceased. On the 9th day of December, 1896, the orphans' court passed a decree setting aside the will, and ordering the costs of the contest to be paid out of the estate. Silas Baldwin was then appointed administrator, to complete the settlement of the estate. On the 14th day of December, Mitchell, the administrator pendente lite, filed his account. He charged himself with assets to the amount of $2,867, and claimed allowances for the expenses of his administration, including commissions, the costs of the litigation, and for certain payments on account of the debts of the deceased. The appellee objected to the confirmation of the account, and from the action of the court in overruling his objection this appeal is taken. The objection extends only to the item of $500, "To Joseph E. Ashton, per agreement."

It is contended that Mitchell, being only an administrator pendente lite, had no power, virtute officii, to pay any of the debts of the deceased. In this state letters of administration pendente lite are granted, at the discretion of the orphans' court, where the validity of a will is or shall be contested. Code, art. 93, § 68. They confer authority only during the contest, and are to be regarded as revoked by the granting of letters testamentary or of administration. Section 69. There are no provisions in our statutes defining the powers of such an administrator, or establishing particular and exceptional rules for the discharge of his duties, as in the case of an administrator ad colligendum. Sections 61-64. The intention of our law, therefore, seems to be clear that he must be subject to the same general rules as control control general administrators. Within 12 months from the date of his letters, he must render his first account, and, if necessary, an additional account every six months thereafter. If his letters be revoked before the 12 months expire, he must then exhibit his account without delay, and hand over to the executor or new administrator all the property of the decedent in his hands. He may sue for the recovery of the assets, and be sued for debts due from the decedent; and, if such suits are still pending when his letters are revoked, the new administrator may prosecute or defend them. Section 69. With powers and duties such as these, no sufficient reason can be assigned why he shall not be required to discharge the decedent's debts, as other administrators are required. We are of opinion, therefore, that our statutes do not contemplate such an administrator as having been appointed for the special purpose only of taking care of the assets. The contest over the will creates the necessity for a temporary administrator, but it by no means follows from this that it was intended that the assets of the estate should be locked up for the indefinite period during which the