his subsequent examination he saw one had been performed. We are not concerned with the weight of this testimony, which is always for the jury; but it certainly tends to show that the alleged assault might have been the cause of the injury, that the medical and surgical attention was made necessary thereby, and that his capacity for manual labor and his efficiency as a telegraph operator might be diminished thereby. If there was any evidence of any other cause to which the injury could be rationally attributed, or if they thought all the plaintiff's testimony unworthy of belief, the jury could have so indicated by a verdict for defendants; but, in the face of the testimony we have mentioned, the court could not properly have sustained this special exception.

Plaintiff and defendants each offered eight prayers. Of these, the plaintiff's seventh prayer was granted as offered, the eighth was modified and so granted, and the third was modified and so granted in connection with defendants' fourth prayer. Of defendants' prayers, the third and fourth were granted, and all the others were rejected. The fourth exception was taken to these rulings upon the prayers. It follows from what we have said in reference to the special exception to the plaintiff's eighth prayer as modified that we think it was correctly granted; it having been too often approved by this court, when supported by legally sufficient evidence, to require any citation of authorities.

Plaintiff's seventh prayer instructed the jury that the burden of proof was on defendants to show by preponderance of evidence all the matters alleged in their pleas of confession and avoidance, and it was correctly granted. The rule has been well stated in Blake v. Damon, 103 Mass. 199, thus: "If plaintiff alleges acts which if proved, and not justified, will sustain his action, and the defendant seeks to justify them, the burden is upon him to prove his justification." And this rule was well illustrated in St. John v. Eastern Ry., 1 Allen, 544, where it was said: "Where plaintiff was a passenger on a railroad, and defendant, by its agents, assaulted him, if the assault is proved the burden of justifying it rests upon the defendant, as in ordinary cases."

Upon the same principle, defendants' third prayer, relating to the burden of proof on plaintiff to establish the assault and the resulting injury, was properly granted. The defendants' first prayer asked that the jury be instructed that there was no evidence legally sufficient to entitle the plaintiff to recover under the pleadings as against Robert Sellman. This is upon the theory that Alonzo B. Sellman, as postmaster, ejected the plaintiff, as authorized by the postal laws and regulations read in evidence, and that in this act of expulsion Robert Sellman did not participate directly or indirectly, and he therefore incurred no liability, even if undue

force was used by Alonzo Sellman. But this would ignore the plaintiff's testimony that the difficulty originated with Robert Sellman, who cursed him and called him a liar and a thief when he came to see England about the car he had ordered; that, as soon as Alonzo Sellman appeared upon the scene, Robert Sellman called to throw plaintiff out, which was immediately done by Alonzo B. Sellman. If the jury believed this testimony, Robert and Alonzo Sellman were jointly liable for the wrong done, and this prayer, therefore, was properly refused.

The defendants' third prayer, as modified and granted, covers everything properly embraced in the second prayer, and there was no error in the rejection of the second prayer for this reason. Moreover, the attempt to distinguish in the second prayer between damages which would, and those which would not, entitle the plaintiff to a verdict, was sufficient to justify its rejection. The plaintiff's third prayer, as modified by the court, was granted in connection with defendants' fourth prayer-the court indorsing on the plaintiff's third prayer an instruction that it was to be read in connection with defendants' fourth prayer; and these prayers, we think, fairly and fully covered the law of the The plaintiff's third prayer requires the jury to find all the facts necessary to constitute an assault by both defendants. The authorities abundantly support the proposition that all persons actually present, aiding. abetting, or counseling an assault, are guilty, as principals. Thus in Com. v. Hurley, 99 Mass. 433, it was held that evidence that one of a noisy crowd near a policeman cried out "kill him," about the time when others knocked the officer down, was sufficient to convict of an assault upon the offi

case.

cer.

Defendants' fourth prayer set forth all the facts of justification, which, if found by the jury, would relieve the defendants from legal liability. These two prayers, taken together, as required by the instruction to that effect, were, in substance, a direction that notwithstanding the jury, upon the plaintiff's evidence, might find an assault by the defendants, yet if, upon defendants' evidence, they should find the assault justified, their verdict must be for defendants, or, in other words, that, if they found the facts stated in the third prayer, they must give a verdict for the plaintiff, unless they found the additional facts stated in the fourth prayer, in which event they must render a verdict for the defendants; and it is not possible to suppose that the jury could have been in any way misled or confused by such instructions. This practice has been frequently approved, as in Deford v. Dryden, 46 Md. 256, and in Garey v. Sangston, 64 Md. 38, 20 Atl. 1034. Under these instructions the jury could determine from all the evidence whether the plaintiff was ejected, without undue violence, in a bona fide attempt by Alonzo Sell

man to exercise his lawful authority as postmaster, or whether the defendants intended from the first to commit a wrong, with the purpose then or subsequently formed to set up Alonzo Sellman's legal authority as postmaster as a cover for their joint illegal conduct. Taylor v. Jones, 42 N. H. 35.

Defendants' fifth, sixth, and seventh prayers contain no proposition of law which was not embraced in their fourth prayer, and the court cannot be required to repeat and reproduce the same legal proposition with a mere difference of phraseology. Such prac tice has been condemned, as tending to confusion and uncertainty, in Green Ridge R. R. v. Brinkman, 64 Md. 61, 20 Atl. 1024, 54 Am. Rep. 755, and in Spencer v. Trafford, 42 Md. 21.

It follows from what we have said in regard to the first and second exceptions that there was no error in rejecting defendants' eighth prayer, which asserts that there was no legally sufficient evidence to show that the necessity for the operation upon plaintiff was the result of his ejection from the store by defendants.

Finding no error in any of the rulings, the judgment will be affirmed.

(95 Md. 738)

BROWN et al. v. BROOKE et al. (Court of Appeals of Maryland. 1902.) OFFICERS-TERM OF OFFICE-ABRIDGMENT.

1. Const. art. 7, § 1, as amended in 1890 (Acts 1890, p. 277, c. 255), providing for the election of county commissioners, declares that "they shall be elected at such times, in such numbers, and for such periods, not exceeding six years, as may be prescribed by law." Respondents were elected commissioners of a certain county under Acts 1892, p. 637, c. 442, which fixed their term of office at six years. Acts 1901, p. 41, c. 13, provided for the election in that year of county commissioners for such county to hold office for two years, and declared that upon their qualification the term of office of the commissioners then in office should "cease and determine as fully as if when elected they had only been elected to serve until that time." Held constitutional by divided court.

Appeal from Circuit Court, Anne Arundel County; Revell, Judge.

Mandamus by Samuel Brooke and others against William H. Brown and others. Writ awarded, and respondents appeal. Affirmed by divided court.

Const. art. 7, § 1, formerly read as follows: "County commissioners shall be elected on general ticket of each county by the qualified voters of the several counties of this state, on the Tuesday next after the first Monday in the month of November, 1867, and on the same day in every second year thereafter. Their number in each county, their compensation, powers and duties shall be such as are now or may be hereafter prescribed by law." This section

1. See Constitutional Law, vol. 10, Cent. Dig. I 257; Officers, vol. 37, Cent. Dig. § 71.

was amended by Acts 1890, p. 277, c. 255, adopted by vote of the people on November 3, 1890, so as to provide as follows: "County commissioners shall be elected on general ticket of each county by the qualified voters of the several counties of the state, on the Tuesday next after the first Monday in the month of November, commencing in the year 1891; their number in each county, their compensation, powers and duties shall be such as are now or may be hereafter prescribed by law; they shall be elected at such times, in such numbers and for such periods, not exceeding six years, as may be prescribed by law." Acts 1892, p. 637, c. 442, provided for the election in November, 1893, of three county commissioners for Anne Arundel county, to hold their offices for the terms, respectively, of six, four, and two years, as the governor should designate, and that at the expiration of their respective terms of office their successors should be elected for the term of six years.

The appellants (respondents) were in office as county commissioners of Anne Arundel county under this act (their terms being unexpired) when Acts 1901, p. 41, c. 13, was passed. This repealed the act of 1892, and provided that at the general election to be held in November, 1901, seven county commissioners should be elected for Anne Arundel county to hold office for two years, and that, upon the qualification of the seven county commissioners then elected, "the terms of the present county commissioners of Anne Arundel county shall cease and determine as fully as if when elected they had only been elected to serve until that time." The persons elected county commissioners under this act in November, 1901 (the appellees in this appeal), applied for a writ of mandamus directing the respondents to surrender to them the offices in question. The respondents denied the constitutional power of the Legislature to abridge the terms of office for which they had been elected under the act of 1892. The circuit court ordered the writ of mandamus to be issued as prayed in the petition. Upon appeal the order was affirmed April 1, 1902, because this court was equally divided-there being four judges in favor of affirmance, and four in favor of reversaland consequently no opinion was filed.

E. C. Gantt, for appellants. Jas. R. Brashears, for appellees.

(69 N. J. L. 65)

ADAMS v. WIESENTHAL et al. (Supreme Court of New Jersey. Feb. 24, 1903.)

REPLEVIN-REDELIVERY BOND-ACTION

PLEA.

1. An averment in a plea that the defendant tendered the goods "in as good condition as the same were at the time of signing the bond" is no answer to an alleged breach of the condition of the bond that the said defendant would

deliver the goods and chattels "in as good condition as the same were at the time of making the claim of property therein."

2. A plaintiff in replevin is under no duty to demand a return of the goods redelivered to the defendant in replevin by the sheriff, after a judgment in the replevin suit in his favor, and an assessment of his damages for the taking and detaining of the goods, before he can sue upon the bond given to the sheriff by the defendant.

(Syllabus by the Court.)

Action by Israel G. Adams against Isaac Wiesenthal and Lewis Evans. Demurrer to plea. Sustained.

Argued November term, 1902, before the CHIEF JUSTICE, and VAN SYCKEL, FORT, and PITNEY, JJ.

Thompson & Cole, for the demurrer. G. A. Bourgeois, opposed.

FORT, J. This was a suit upon a replevin bond given by a defendant in replevin to the sheriff, with a claim of property, under section 9 of the replevin act (Gen. St. p. 2772, § 9). The condition of the bond was, "If the said S. S. S. shall deliver the said goods and chattels in as good condition as the same were at the time of making such claim to the said I. G. A. * * then this obligation to be void," etc.

There were three pleas: (1) Non est factum. (2) Actio non, because before suit the defendants tendered to the plaintiff the goods and chattels mentioned in the bond, "in as good condition as the same were at the time of signing said bond." The plea concludes with a verification, and prays judgment if the plaintiff ought to have or maintain his action, etc. (3) Actio non, because the said plaintiff did not demand a return of the said goods and chattels mentioned, from S. S. S., before instituting the suit. This plea concludes to the country.

The demurrers are to the second and third pleas. Each of these pleas has a defective conclusion. The second plea should have concluded to the country, and the third plea with a verification. But both pleas are otherwise deficient. The second, because the statement that the plaintiff tendered the goods "in as good condition as the same were at the time of signing the bond" is no answer to the alleged breach of a condition that "the said S. S. S. would deliver the said goods and chattels in as good condition as the same were at the time of making the claim of property therein." Where a declaration on a bond with condition sets out conditions, and specially assigns breaches, the plea, to be good, must traverse the breaches as laid, and conclude to the country. Dime Savings Inst. v. American Surety Co. (N. J. Sup.) 53 Atl. 217. The third plea is bad because the facts alleged in it, if true, are no defense. The plaintiff in replevin is under no duty to demand a return of the goods redelivered to the defendant in replevin by the sheriff upon the delivery to

him by the defendant of a bond under the statute. Upon the determination of the suit in replevin in favor of the plaintiff, and an assessment of his damages for the taking and detention of the property, he may at once sue upon the bond given to the sheriff, which has been assigned to him. Both demurrers are sustained.

(69 N. J. L. 86)

SENSFELDER v. STOKES et al. (Supreme Court of New Jersey. Feb. 24, 1903.)

NEW TRIAL-RULE TO SHOW CAUSE THEORY OF LAW.

1. Upon a rule to show cause, a verdict cannot be supported upon a theory of the law contrary to that upon which the case was submitted to the jury.

(Syllabus by the "Court.)

Action by Elizabeth Sensfelder against Ezra Stokes and John G. MacElroy. Verdict for plaintiff. Rule to show cause. Verdict set aside.

Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.

Howard Carrow, for plaintiff. John W. Westcott, for defendants.

PITNEY, J. This is an action of tort to recover damages for alleged fraudulent misrepresentations made by the defendants to the plaintiff. The plaintiff having obtained a verdict, a rule was granted requiring her to show cause why the verdict should not be set aside and a new trial granted, on the ground, among others, that the verdict is contrary to the weight of the evidence.

The gist of the plaintiff's case is that she was the owner of a hotel property of considerable value, and that the defendants induced her to exchange it for $1,100 in cash and $11,000, par value, of the stock of the Investors Company (a corporation owned and controlled by the defendants), by falsely and fraudulently representing to her that the company owned certain lands of large value, had cash assets, and had been paying substantial dividends; that these representations were false, and known by the defendants to be so; and that the stock received by her in exchange for the hotel property was entirely worthless. The plaintiff did not claim to have rescinded the transaction. On the contrary, the action was based on an affirmance of the exchange of properties as valid and binding; the plaintiff claiming damages simply for the deceit. It was on that basis that the trial judge undertook to submit the case to the jury. At the same time it appeared in evidence that some time after the plaintiff conveyed her hotel to defendants, and received from them the stock in exchange, some negotiations took place between her and the Investors Company, or its

1. See New Trial, vol. 37, Cent. Dig. § 20.

representatives, looking towards a surrender to that company of her shares of stock in exchange for some of the lands owned by that company. The great weight of the evidence showed that this exchange had been carried into effect; the plaintiff having transferred her stock to the company, and having received, through an agent, deeds of conveyance made by the company to her. This transaction was closed before the commencement of the suit.

The trial judge ordered an amendment of the pleadings, by directing that the defendants file a special plea setting up that before the bringing of this suit the plaintiff had parted with all right, title, and interest in her shares of stock, and ordered that the trial proceed upon that issue. And in his charge to the jury the judge instructed them that, before considering the proofs upon the question of fraudulent misrepresentations made by the defendants to the plaintiff, the jury must "consider another question which has become one of the issues in this case, and with respect to which during the trial the court has said that the pleadings are to be considered as amended, because the action has been tried fully on both sides; and that is whether the plaintiff had not parted with her $11,000 worth of stock voluntarily before she brought this suit. It is needless to say that, if she was not the owner of this stock-if she had no interest at all in it-at the time that she brought this suit, she cannot have any damages with respect to what had happened before she parted with her stock, because she can only be a plaintiff in this suit on the theory that she is or was the owner of the stock at the time she brought the suit." And after referring to the evidence upon the question of the transfer of the stock from the plaintiff to the Investors Company, the judge proceeded to charge the jury that, "if you believe that this transfer took place as these men testify that It did, then your verdict must be for the defendants, for the simple reason that the plaintiff has no interest in the stock that she then parted with. If she parted with it, in fine, she has no longer any interest in this suit."

Plaintiff's counsel did, not assent to this instruction, but, on the contrary, noted an exception thereto. The ground of this protest, doubtless, was that, inasmuch as the plaintiff was not seeking to rescind the exchange made between her and the defendants, she was not obliged to hold herself in readiness to restore to them that which she had received from them in the exchange; that, as she had affirmed the exchange, she was entitled to deal with the stock as her own for all purposes, and, if she had subsequently transferred it to the Investors Company for a consideration, she was only doing what she had a right to do with her own property, and did not thereby disable herself from recovering damages from the defendants for their fraudulent representations.

With this contention of the plaintiff it would not be difficult for us to agree. But that consideration cannot move us to sustain the present verdict. For it is well settled that a verdict cannot be supported upon a theory of the law contrary to that upon which the case was submitted to the jury. Hays v. Pennsylvania R. Co., 42 N. J. Law, 446; Marts v. Cumberland Ins. Co., 44 N. J. Law, 478; Halsey v. Lehigh Valley R. Co., 45 N. J. Law, 26.

Because the verdict of the jury is contrary to the great weight of the evidence upon an issue that the trial judge instructed them must be controlling, the verdict will be set aside, and a new trial granted.

(69 N. J. L 54)

LANGSTAFF v. METROPOLITAN LIFE INS. CO.

(Supreme Court of New Jersey. Feb. 24, 1903.)

LIFE INSURANCE-CONSTRUCTION OF POLICY. 1. A policy upon the life of L., insuring the payment of a sum of money to A. in case of the death of L., declared upon its face that "no obligation is assumed by the company until the first premium has been paid, nor prior to this date, nor unless upon this date the insured is alive and in sound health." Held, that such a policy did not become binding by a tender or payment of the premium while L. was ill, and before the delivery of the policy to L.

(Syllabus by the Court.)

Action by Lydia Langstaff against the Metropolitan Life Insurance Company. Verdict for defendant. Rule to show cause discharged.

Argued November term, 1902, before the CHIEF JUSTICE, and VAN SYCKEL, FORT, and PITNEY, JJ.

Voorhees & Booraem, for plaintiff. Willard P. Voorhees, for defendant.

FORT, J. The decision of this case is controlled by the case of McClave v. Mutual Reserve Fund Life Association, 55 N. J. Law, 187, 26 Atl. 78. It is impossible upon principle to distinguish that case from this. The application for the policy sued upon in this case contained this clause: "I further agree

*that the contract of insurance, if one be issued, * * shall not be binding upon the company unless upon its date and delivery the insured be alive, and in sound health." The policy issued reads as follows: "No obligation is assumed by the company until the first premium has been paid, nor prior to this date, nor unless upon this date the insured is alive, and in sound health." Conceding the payment of the premium to a clerk in the office of the agent of the company at New Brunswick to be proven that it was good as against the company, still it is an unquestioned fact in the case that at that time the insured was not in sound health. The agent of the defendant com. pany, who knew of the illness of the insured