84 Am. St. Rep. 517; Frederick County v. Frederick City, 88 Md. 654, 42 Atl. 218; Simpson v. Hopkins, 82 Md. 478, 33 Atl. 714; and other cases that might be cited.

Order affirmed; the appellants to pay the costs.

(97 Md. 148)

FARMERS' & MECHANICS' NAT. BANK OF WESTMINSTER v. HUNTER. (Court of Appeals of Maryland. April 1, 1903.)

ACTION ON NOTE-DENIAL OF SIGNATUREDEFENSE OF FORGERY-WAIVER OF PROPER PLEA - EVIDENCE ADMISSIBLE UNDER GENERAL ISSUE.

1. In an action on a note, brought under Acts 1890, c. 136, § 16g, providing that in any suit in the circuit court of Carroll county, if there shall be filed with the declaration any paper purporting to be signed by defendant, the genuineness of such signature shall be deemed admitted unless the affidavit shall further state that the affiant knows or has good reason to believe that such signature was not written by, or by the authority of, the person whose signature it purports to be, an affidavit to the plea, expressly stating that defendant knew that the note was not signed by him or by his authority, was a sufficient denial of the signature to admit the defense of forgery, though Code Pub. Gen. Laws, art. 75, § 23, subsec. 108, provides that, whenever the execution of any written instrument filed in the case is alleged in the pleadings, the same shall be taken as admitted, unless denied by the next succeeding pleading of the opposite party.

2. Plaintiff in an action on a note, by joining issue on defendant's pleas, and electing to go to trial on the issues thus made up, waived the right to move for judgment for the want of a proper plea.

3. In an action on a note, evidence that the signature thereto was a forgery, was admissible under the general issue.

Appeal from Circuit Court, Carroll County; Wm. H. Thomas, Judge.

Action on a note by the Farmers' & Mechanics' National Bank of Westminster against Daniel Hunter. From a judgment for defendant, plaintiff appeals. Reversed.

Argued before McSHERRY, C. J., and BRISCOE, BOYD, PEARCE, and SCHMUCKER, JJ.

James A. C. Bond and F. Neal Parke, for appellant. J. Guy W. Steele, for appellee.

BRISCOE, J. The material question in this case relates to the proper construction of a local law for Carroll county (section 16g of chapter 136 of the Acts of 1890), known as the "Local Practice Act" for that county. The plaintiff below, who is the appellant here, brought a suit in the circuit court for Carroll county against the defendants Jesse B. Powder, Clara B. Powder, and the appellee, Daniel W. Hunter, upon a promissory note dated the 2d day of July, 1901, and payable six months after date to the plaintiff, for the sum of $350, payable at its banking house in Westminster, Md., and purporting to be signed by the defendants with the following indorsement thereon:

2. See Pleading, vol. 39, Cent. Dig. §§ 1376, 1378.

"Feb. 26th, 1902. By cash on account $50.00 and interest paid to July 2nd, 1902." Two of the defendants were returned non est, and the case was tried against the defendant Hunter before the court sitting as a jury, and on the 13th day of December, 1902. a judgment was entered in favor of the defendant, from which the plaintiff has appealed.

It appears from the record that the plaintiff's declaration was filed under the local act (Acts 1890, c. 136) applicable to Carroll county, and contained the usual counts, and a count upon the promissory note, and the affidavit, as required by the act. Hunter, the defendant, appeared on the 12th day of August, and pleaded, first, that he never was indebted as alleged; second, that he never promised, as alleged. To these pleas he made the following affidavit: That each of them was true as pleaded; that no amount of the plaintiff's claim or demand was admitted to be due or owing; that the whole amount of the claim or demand, and each and every part thereof, was disputed; and he knows that the paper or promissory note filed with the declaration was not signed by him or by his authority, and that the signature or name thereto purporting to be his was not written by him or by his authority. The plaintiff, at the trial of the case, to maintain the issue joined, offered the note in evidence, which, upon objection, was admitted, subject to exception, and closed its case. The uncontradicted dence upon the part of the defendant as to the signature to the note was admitted subject to exception. The defendant testified that he never signed the note or any other note, for Jesse Powder, except one five years ago for $20, and the signature to the note was not in his handwriting. This testimony as to the signature to the note was stricken out at the close of the case upon motion of the plaintiff, but a motion to strike out the note as evidence on the part of the defendant was denied by the court. There was no exception to the action of the court upon this ruling, but, as the question is directly presented on the exceptions to the prayers, and as its determination disposes of this case, we shall consider it here.

evi

The ground of the action of the court in striking out the evidence of the appellee as to the denial of the signature is stated to be because the signature of the note was not denied by the defendant's plea, and was, therefore, admitted under subsection 108, § 23, art. 75, Code Pub. Gen. Laws, which provides that whenever the execution of any written instrument filed in the case is alleged in the pleadings in any action or matter of law, the same shall be taken as admitted for the purposes of the action or matter, unless the same shall be denied by the next succeeding pleading of the opposite party. But it will be seen by reference to the declaration that the suit in this case

was brought under section 16g, c. 136, of the Acts of 1890, supra, which provides that in any suit in the circuit court for Carroll county, if there shall be filed with the declaration in the cause any paper purporting to be signed by any defendant therein, the fact of the genuineness of such signature shall be deemed to be admitted for the purposes of the cause, unless the affidavit shall further state that the affiant knows, or has good reason to believe, that such signature was not written by, or by the authority of, the person whose signature it purports to be. The effect of this act is to permit the defendant, in suits brought under the act, to deny in the affidavit to the plea the genuineness of the signature of any paper purporting to be signed by the defendant, and, if this is done, the signature thereto will be put in issue, and not be deemed as admitted for the purpose of the suit. The affidavit to the plea in this case expressly states that the defendant knows that the paper or promissory note filed with the declaration in said cause was not signed by him, or by his authority, and that the signature or name thereto purporting to be his was not written by him or by his authority. We are of the opinion that this was a sufficient denial of the signature to admit the defense of forgery relied upon by the defendant, and was in accordance with the express terms of the act.

The case of Laubheimer v. Naill, 88 Md. 174, 40 Atl. 888, cited by the appellant, is unlike this. There the court held that the defendant's affidavit was defective, and the case stood for trial as if the rule day act had no existence. But, aside from this, the plaintiff joined issue upon the defendant's pleas, and elected to go to trial upon the issue thus made up. This was a clear waiv-. er of the right to move for judgment for the want of a proper plea, and the evidence was admissible under the general issue. Laubheimer v. Naill, 88 Md. 174, 40 Atl. 888; Hutton v. Marx, 69 Md. 252, 14 Atl. 684; McSherry v. Brooks and Barton, 46 Md. 103; Traber v. Traber, 50 Md. 1.

The effect of the ruling of the court as made in the exclusion of the defendant's evidence was to admit the signature of the note, when in fact it was denied by the affidavit, and when the evidence showed the signature was a forgery.

There were two exceptions reserved during the course of the trial to the ruling of the court-the first to the overruling of a special exception to the granting of the defendant's third prayer, as modified by the court; and, second, to the rejection of the plaintiff's seven prayers, and to the granting of the defendant's third prayer as modified by the court. There was error in granting the defendant's fifth prayer, and the plaintiff's exception thereto should have been sustained. There was no evidence upon which such a prayer could be based, even if the

legal proposition submitted thereby should be conceded to be correct. In fact. the exclusion of the evidence offered upon the part of the defendant to establish the defense of forgery practically left the case without evidence at all to support the finding of the court for the defendant and the judgment entered thereon. The plaintiff's prayers were properly rejected.

For the errors indicated, the judgment will be reversed, and a new trial awarded. Judgment reversed, and new trial awarded, with costs.

(97 Md. 19)

SHRIVER v. HERING, State Comptroller. (Court of Appeals of Maryland. April 1, 1903.) STATE SCHOOL TAX-DISTRIBUTION-STAT

UTES-CONSTRUCTION.

1. Code Pub. Gen. Laws, art. 77, § 98, provides: "The Comptroller shall apportion the sum appropriated for the support of the colored schools of the several counties and the city of Baltimore in proportion to their respective population between the ages of five and twenty years; said apportionment to be made at the time he apportions the levy for the white schools." Section 102 provides that when the Comptroller shall have received from the city of Baltimore and the several counties returns of the state school tax levied in each county and the city of Baltimore, he shall apportion the amount "to the several counties and the city of Baltimore in proportion to their respective population between the ages of five and twenty years." Held, that the word "their," which in each section precedes the words "respective populations," relates to their immediate antecedents "the several counties and the city of Baltimore," and that, though it had been the Comptroller's practice to make the distribution under section 98, according to the "colored" ponulation, the court would not compel him to make the distribution under section 102, according to the "white" population.

Appeal from Circuit Court, Anne Arundel County; I. Thomas Jones and Wm. H. Thomas, Judges.

Mandamus by Robert Shriver against Joshua W. Hering, State Comptroller. From an order refusing the writ, petitioner appeals. Affirmed.

Argued before McSHERRY, C. J., and BRISCOE, BOYD, PEARCE, and SCHMUCKER, JJ.

A. A. Doub, for appellant. Atty. Gen. Rayner, for appellee.

PEARCE, J. Robert Shriver, a citizen and taxpayer of Alleghany county, on May 15, 1902, filed a petition in the circuit court for Anne Arundel county against Joshua W. Hering, Comptroller of the State of Maryland, praying for a writ of mandamus commanding said Comptroller, in the distribution to be made December 15, 1902, and at each succeeding quarterly distribution, to apportion the state school tax levied in each county and in the city of Baltimore for the support of public schools, therein in proportion to their respective white population between the ages

of 5 and 20 years, instead of apportioning the same according to their respective entire population between said ages, as had always been the method of apportionment since the institution of the public school system in 1865. The defendant answered, alleging that the method of apportionment pursued was that required by the statute regulating the same, and that he proposed to observe the statute as heretofore. The petitioner demurred to this answer. Issue was joined on the demurrer, and after argument the writ was refused, and the petition dismissed, from which order this appeal was taken.

The case was very earnestly and zealously argued in behalf of the petitioner, but we do not think there should be any hesitation in affirming the order of the circuit court. Counsel upon both sides unite in stating that the question at issue is simply the construction of sections 98 and 102 of article 77 of the Code of Public General Laws, which are as follows:

"Sec. 98. The Comptroller shall apportion the sum appropriated for the support of the colored schools of the several counties and the city of Baltimore, in proportion to their respective population between the ages of five and twenty years; said apportionment to be made at the time he apportions the levy for the white schools."

"Sec. 102. As soon as the Comptroller shall have received from the city of Baltimore and the several counties, returns of the amount of the state school tax, levied in each county and the city of Baltimore, he shall immediately thereafter apportion the amount of the whole levy to the several counties and the city of Baltimore, in proportion to their respective population between the ages of five and twenty years."

The petitioner's counsel was explicit in his oral argument in declaring that these sections of the law are valid and constitutional enactments, and in his brief says they "are word for word the same, and the plaintiff merely asks that they be given the same construction." The construction for which the petitioner thus asks we must understand to be purely a judicial construction, since that is the only one we have the power to make, and such construction must be made upon the language of these sections, and not upon the practice which may have been pursued by the Comptroller in the absence of a previous judicial construction. Now, looking to the language of these two sections as they stand, it cannot be doubted that they should and must receive the same construction, and that the only construction that can be placed upon them by a court, which is precluded from the exercise of legislative power, is that placed by the Comptroller upon section 102. The word "their," which in each of these sectons precedes the words "respective population," grammatically and logically can only relate to their immediate antecedents "the several counties and the city of Baltimore."

No sound argument to the contrary can be based upon anything to be deduced from either of these sections, and accordingly the petitioner has been forced to resort to what he regards as equitable grounds for a different construction of section 102, based upon alleged unequal and unfair results from the method of distribution directed therein. But, however his proposition may be disguised in the fervor or argument, it resolves itself, when analyzed, into this: that the court should read the word "white" into section 102, and this we cannot do. The petition alleges, and the answer admits, that in distributing the sum appropriated to colored schools it has been the Comptroller's practice to make the apportionment to the respective colored population of the several counties and the city of Baltimore between the ages of 5 and 20. This the petition does not ask us to change, and, if we should grant the writ prayed for here, we should be compelled, in order to give the same construction to the same language in both sections, to read into section 98 the word "colored," and thus to impose an erroneous judicial construction upon both these sections, because another department of government, possessing no power to make a judicial construction, had adopted, in its administration of its functions, an erroneous construction of one of these sections. The answer to the whole argument of the petitioner is that the question argued by him is a question of policy, while the question we have to decide is one of construction of the law as it stands. An examination of the legislation of this state upon the subject will render it clear, moreover, that the Legislature meant exactly what it has said in these two sections.

Acts 1865, p. 298, c. 160, for the first time established a uniform system of free public schools in Maryland. It provided that the state school tax should be distributed "to the boards of school commissioners of the city of Baltimore and of the several counties in proportion to their respective population between the ages of five and twenty years," conforming thus to the requirement of section 5 of article 8 of the Constitution of 1864; and that language has remained unchanged in both the repealing and re-enacting acts since that time, viz., Acts 1868, p. 766, c. 407, and Acts 1872, p. 651, c. 377. As respects colored schools, Acts 1865, c. 160, provided that "the total amount of taxes paid for school purposes by the colored people of any county and the city of Baltimore, together with any donations that may be made, shall be set aside for the purpose of founding schools for colored children, to be established under the direction of the school commissioners"; and the law to-day requires that these sources of income "shall be devoted to the maintenance of schools for colored children." The Acts 1872, p. 650, c. 377, provided for the estab lishment of one or more public schools in each election district for colored children, and di

rected the sum appropriated for colored schools to be apportioned according to their respective colored, population. The first appropriation for that purpose was made by chapter 252, p. 421, of Acts 1872, the amount being $50,000, which has been increased from time to time until it is now $150,000. The original apportionment of the amount appropriated for colored schools was, therefore, correctly made according to the respective colored population, though the distribution of the residue of the state tax was still required to be apportioned according to the entire respective school population of the several counties and of the city of Baltimore, thus emphasizing the intention there to provide different modes of apportionment. When the Code of 1888 was framed and adopted, the word "colored" was omitted in providing for the apportionment of the amount appropriated to colored schools, thus making the mode of apportionment uniform. Whether this was deliberate or inadvertent we do not know in fact, but the legal presumption is it was deliberate, and, in any event, the adoption of the Code is conclusive upon the court. The adherence by the different Comptrollers to the former mode of distribution among the colored schools may have been from inadvertence, or it may have been due to tender consideration of the comparative poverty of that race.

Certain it is, however, that no effort has been made to disturb this arrangement by any one, while it was conceded at the argument that repeated fruitless efforts had been made to induce the Legislature to make the change now sought to be effected by mandamus. Elaborate tables were filed with the petition, to show the alleged injustice done by this method of apportionment to the counties having small colored population, but with these considerations our judgment is not concerned.

There are, however, obvious difficulties in adopting any method of distribution which will produce equality of burden and participation while insuring a system of approximate uniform execellence throughout the state. Counties are separate organizations established for public political purposes, connected with the administration of government, chiefly for purposes strictly local in character and interest; but the youth of all the counties are the wards of the state, and it is for the Legislature to determine how its bounty, extended for this paramount purpose, shall be apportioned so as to work the greatest good to the greatest number, irrespective of locality. Speaking of the rights of counties in the case of the State, Use of Washington County, v. B. & O. R. R. Company, 12 Gill & J. 436, 38 Am. Dec. 319, the court said: "She [Washington county], as a member of the political family, has a right to participate in the legislative councils of the country; but the will of the majority, when expressed according to the forms of the Constitution, is binding and obligatory upon her, and to that

(Court of Appeals of Maryland. March 31, 1903.)

DIVORCE-ADULTERY-ACTS

SUBSEQUENT TO SUIT-SUPPLEMENTAL BILL.

1. In a suit for divorce for adultery, a supplemental bill setting up, as a ground for relief, acts of adultery occurring subsequent to the institution of the suit, and with persons not specified in the original bill, is improperly allowed.

Appeal from Circuit Court of Baltimore City; Henry Stockbridge, Judge.

Bill by Flora O. Schwab against Leon H. Schwab. From an order striking from the files plaintiff's supplemental bill, she appeals. Affirmed.

Argued before McSHERRY, C. J., and BRISCOE, BOYD, PEARCE, SCHMUCKER, and JONES, JJ.

Isidor Rayner and Lewis Putzell, for appellant. M. R. Walter and L. J. Cohen, for appellee.

SCHMUCKER, J.

The appellant on August 5, 1901, filed a bill in the circuit court of Baltimore City against the appellee for a divorce a vinculo upon the ground of adultery. The bill, as originally filed, did not name the person or persons with whom the adultery was alleged to have been committed; but it was afterwards amended, by leave of the court, so as to name the participant in the alleged offense, as well as the times and places of its commission. The appellee answered the bill categorically, denying that he had committed the adultery with which he was charged in the bill, or that he had ever committed that offense. Issue was joined, and the appellant took some testimony, which does not appear in the record, in support of her case, and then, on October 3, 1902, filed a petition averring that she had just discovered that the appellee had committed repeated acts of adultery since the filing of the bill, and asking leave to file a supplemental bill in order to offer evidence of those recently discovered acts. The court granted the leave asked for, and the appellant filed a supplemental bill charging the appellee with committing adultery at different dates since the filing of the bill, with two women other than the one named as the participant in the acts charged in the original bill. The appellant thereupon moved the court to rescind the order granting leave to file the supplemental bill, and to strike that bill from the files, and to quash the writ of subpoena issued thereunder because the alleged acts of adultery set up in that bill were therein charged to have been committed after the institu

1. See Divorce, vol. 17, Cent. Dig. §§ 330, 335.

tion of the suit, and that they therefore constituted in themselves new and distinct causes of action, having no relation to or connection with those set up in the original bill. The court passed an order sustaining this motion, and rescinding the leave theretofore granted to file the supplemental bill, and striking that bill from the files, and quashing the subpoena issued under it. From that order the present appeal was taken.

It is apparent from what we have said that the question raised by this appeal is whether a plaintiff who has filed a bill in equity for a divorce a vinculo, charging the defendant with the commission of adultery with one person, should be permitted to file a supplemental bill in the same suit charging him with the commission of the same offense with other persons after the filing of the original bill. The nature and function of a supplemental bill in equity were recently stated by us in our opinion in the case of Schwab v. Schwab, 93 Md. 382, 49 Atl. 331, 52 L. R. A. 414, when the parties to the present record were before us in a suit for a divorce a mensa et thoro upon the ground of cruelty and abandonment. It is not necessary to repeat in full what we there said upon that subject. It is sufficient to say that, a supplemental bill being an addition to the original bill, its allegations must have relation to the original cause of action, and must be supplemental in their nature, and not independent and subsequent, and must not be such as would, when considered separately, be sufficient in themselves to constitute an independent cause of action. It may set up transactions which happened before the filing of the original bill, but were not discovered by the plaintiff until afterwards, or those which have occurred pendente lite, if their nature be such as to affect the form of relief to which the plaintiff is entitled under his original cause of action, or to render it necessary to bring new parties into the suit.

We do not understand the appellant to question the conclusions reached by us in her former case, or to ask us to reverse or modify them. She admits the general rule regulating the use of supplemental bills to be as stated by us; but she contends that suits for divorce upon the ground of adultery constitute an exception to the general rule, in so far that in such cases the plaintiff is not confined to the allegations of the original bill, but may set up by supplemental bill further acts of adultery committed after the bringing of the suit, and may obtain a decree for divorce upon such subsequent acts. She relies in support of her contention upon the practice formerly prevailing in the English ecclesiastical courts in divorce suits, and also upon a few cases in which American courts have followed the English precedents. The practice in the ecclesiastical courts in such cases was very flexible. Either party

could obtain relief against the other, and either could set up by supplemental proceedings acts of adultery committed by the other pending the litigation, and a decree might be obtained thereon. Middleton v. Middleton, 2 Hag. Supp. 134; Webb v. Webb, 3 Eng. Ecc. R. 152; Barrett v. Barrett, 3 Eng. Ecc. R. 16. But later English divorce cases seem to observe a much less liberal rule. Ashley v. Ashley, 2 Swab. & T. 388; Lapington v. Lapington, L. R. 14 P. D. 21; Borham v. Borham, L. R. 2 P. & D. 193. None of the American courts have, as far as we are aware, followed the precedents of the ecclesiastical courts to the extent of allowing the defendant in divorce suits to obtain a decree against the plaintiff for a divorce, although a few of our courts have permitted the plaintiff to introduce proof of subsequent acts of adultery under a supplemental bill, or an amendment of the original one, and obtain relief thereon. McCrocklin v. McCrocklin, 2 B. Mon. 370; Irwin v. Irwin (Ky.) 49 S. W. 432: Adams v. Adams, 20 N. H. 301, 302, 51 Am. Dec. 219; Scoland v. Scoland, 4 Wash. 118, 29 Pac. 930; Davis v. Davis, 19 III. 334. But see Embree v. Embree, 53 Ill. 394. The majority, however, of the American courts which have had occasion to pass upon the question, apply the principles of equity practice to divorce cases, and refuse to permit subsequent acts of adultery by the defendant to be set up by the plaintiff, except as hereinafter stated, and never allow such subsequent acts to form the ground of relief. Thayer v. Thayer, 101 Mass. 111, 100 Am. Dec. 110; Milner v. Milner, 2 Edw. Ch. 114; Faass v. Faass, 57 App. Div. 611, 68 N. Y. Supp. 509; Steele v. Steele, 35 Conn. 48; Lutz v. Lutz, 52 N. J. Eq. 241, 28 Atl. 315; Hill v. Hill, 10 Ala. 527. The exception to which we have referred is this: When the defendant has been guilty of subsequent acts of adultery with the same person who is named as particeps criminis in the bill, the subsequent acts may be shown, as tending to explain or corroborate evidence already taken in reference to the acts originally charged, as was the case in Thayer v. Thayer, supra. Or where a condonation of the adultery alleged in the bill had been set up in defense of the action, when acts of adultery committed by the defendant pendente lite were permitted to be set up by supplemental bill because they operated to revive the original cause of action, as was the case in Lutz v. Lutz, supra. But this exception does not go to the extent of permitting a decree for divorce to be founded upon the subsequent acts set up by the supplemental bill. The prevailing doctrine and practice of the American courts on this subject is well stated in Browne on Divorce and Alimony, pp. 57-8, where, after stating that testimony as to acts of adultery by the defendant after suit brought is inadmissible, the author says: "This rule cannot, in most states, be evaded by amendment or supple