brings exceptions. Motion to dismiss defendant's bill of exceptions. Motion denied. Waterman, Curran & Hunt, for plaintiff. Lyman & McDonnell, for defendant. the superior court may, on motion therefor, and with or without notice, grant an extension of time for filing a transcript of the evidence and rulings beyond the period of forty days allowed by the preceding section." Section 490 of the court and practice act of 1905, fixing the procedure to be taken by a person or party in prosecuting a bill of exceptions to the Supreme Court, among other things, prescribes that "within such time as the court shall fix, not later than fifty days after filing notice of intention to prosecute a bill of exceptions, or within ten days after the expiration of such extended time as is provided by section 72 for filing a transcript of the evidence, he shall file in the office of the clerk of the superior court his bill of exceptions." SWEETLAND, J. Heard on motion to dismiss defendant's bill of exceptions. Upon a trial before a jury in the superior court in Washington county, a verdict was returned in favor of the plaintiff. The defendant duly filed a motion for a new trial. On December 30, 1908, said motion for a new trial was denied by the justice. of the superior court who presided at the trial. On January 6, 1909, the defendant filed in the clerk's of fice of the superior court in Washington county notice of its intention to prosecute a bill of exceptions to the Supreme Court, together It is urged by the plaintiff that the power with a written request to the court ste- given to the superior court under section 72, nographer for a complete transcript of the tes- Court and Practice Act, to grant an extension timony, and deposited with the clerk the es- of time for filing a transcript is restricted to timated fee for transcribing the testimony. the extension of a period of 40 days or less, Thereupon the justice of the superior court which has been previously limited by the who presided at the trial made and signed court under the provisions of section 71. It the following order: "Transcript of evidence, is further urged that the proceedings for a etc., to be made and delivered by stenograph-review of the action of the superior court by er to party ordering the same or his attorney of record and to be filed in clerk's office on or before February 23, A. D. 1909. Bill of exceptions to be filed in clerk's office on or before March 4, A. D. 1909." The first ground of the motion to dismiss is that "the time limited by the court for filing the transcript in said case was later than 40 days from the filing of the written request to the court stenographer therefor by said defendant." The third ground of the motion to dismiss is that "the said defendant did not, not later than fifty days after filing a notice of intention to prosecute a bill of exceptions, file in the office of the clerk of the superior court the bill of exceptions." These two grounds of the motion attack the power of the justice of the superior court, in the first instance, to fix a period of 48 days within which the defendant might file a transcript of the evidence and to fix a period of 57 days within which the defendant might file its bill of exceptions. Section 71 of the court and practice act of 1905, among other things, provides that the court stenographer shall make a transcript of the whole or any part of the stenographic report of the proceedings in the trial of an action "upon the written request, filed with the clerk by either party to such action or proceeding, and when completed, and within the time limited by the court for filing the same, but not later than forty days from the date of such request, except as provided in section 72, shall immediately deliver the same to the party ordering it or to the attorney of record of said party." Section 72 of the court and practice act of 1905, is as follows: "Sec. 72. In case of sickness or other disability of the court stenographer who made the report of the evidence and rulings, or for other causes, bill of exception is a privilege, and that the provisions of the statutes relating thereto should be most strictly construed. If by use of the word "privilege" it is claimed that a review by bill of exceptions is something less than a right, such claim shows a misconception of the provisions of the Constitution and of the purpose of the statute. This court under the Constitution is given jurisdiction to review the proceedings of inferior tribunals and the right of litigants who observe the procedure fixed by statute to come to this court upon a bill of exceptions is as indubitable as is their right to be heard in the superior court. The provisions of the statute with regard to the procedure upon bills of exceptions should not be considered as so many traps and obstacles prescribed by the General Assembly to prevent the litigant from obtaining a special privilege, but rather as reasonable rules to be observed in perfecting a right provided under the Constitution. The construction contended for by the plaintiff is not a reasonable one, and, whenever in this procedure two different constructions of a provision are possible, the harsher and less reasonable should not be the one to receive judicial sanction. The plaintiff appears to be of the opinion that the time within which the transcript of evidence must be filed, if there be no extension of time, is not later than 40 days from the date of the written request to the stenographer, and there is a warrant for this conclusion from the consideration of sections 71 and 72 alone. But considered in connection with the provisions of section 490, Court and Practice Act 1905, as was pointed out by this court in Baker v. Tyler, 28 R. I. 155, 66 Atl. 65, if there be no extension of time, the time for delivery of the transcript by the stenographer to the party or his attorney must be within the time fixed | 4, 1909, in accordance with the order of the for the party to file it, in no case later than justice of the superior court. It, however, 40 days from the filing of the written request, but the time for filing the transcript, together with the bill of exceptions in the clerk's office, may be fixed by the court as late as 50 days after filing notice of intention to prosecute a bill of exceptions. It will generally occur in practice that an extension of the time for filing the transcript of evidence will be sought after a period of 50 days or less has first been fixed by the court, and of necessity before the expiration of the period so fixed. But, if at the time of filing the notice of intention to prosecute a bill of exceptions it appears to the superior court that for any cause the transcript cannot be made and delivered within 40 days from the date of the written request for the same, it would be an unreasonable provision to require the superior court to first fix a time for filing the transcript and bill and then to require the court immediately by an other order to extend the time so fixed. A reasonable construction of sections 71 and 72 does not require such procedure. The expression "grant an extension of time" in section 72 may be construed to mean an extension or enlargement of a period previously fixed by the court, and with equal reason this expression may be held to mean an enlargement or extension of the time referred to in section 71, namely, the ordinary period contemplated by the statute. Section 72 empowers the superior court in its discretion to make either extension of time as the circumstances of the case may require. This view of the provisions of section 72 has been adopted by this court in Baker v. Tyler, supra. In considering the question there involved, which was the effect of the failure of a justice of the superior court to fix a time for filing the transcript and bill, the court says: "In the case at bar the application of the party was duly made to the court, and thereupon the court, instead of fixing the time for filing the bill of exceptions and the transcript of evidence, or extending the time for filing the transcript, which would have automatically fixed the time for filing the bill of exceptions, filled out an order to stenographer to deliver the transcript to the party at a certain day." clearly appears by the affidavits of one of the defendant's attorneys and of his clerk, and of the stenographic clerk of the superior court, all of which affidavits were filed in the superior court and are a part of the record in the case, that the following proceedings were had with reference to an extension of the time for filing the transcript of evidence. And this is also evidenced by a statement of the justice of the superior court, dated March 22, 1909, and filed among the papers in the case, and is further established by the allowance of the transcript of evidence and the bill of exceptions by said justice. From said affidavits it appears that on the 19th day of February, 1909, four days before the expiration of the time fixed for filing the transcript of evidence, the stenographic clerk notified the attorney for the defendant that she would be unable to prepare said transcript of evidence to be filed on or before February 23, 1909, as ordered by the justice of the superior court; that thereupon the attorney for the defendant upon said 19th day of February, 1909, prepared and presented to said justice a motion asking for an extension of time within which such transcript should be filed; that on said 19th day of February, 1909, said justice entered an order upon said motion extending the time for filing said transcript in the clerk's office to March 15, 1909. After obtaining said order for extension from said justice, the duty of the defendant's attorney was performed. But, apparently because the justice was sitting in Providence county at the time of making the order, the attorney further undertook to forward said order for said justice to the clerk in Washington county, and on said February 19th, by direction of the attorney for the defendant, said motion and the order made thereon was sent by mail postpaid, addressed to the clerk of the court in Washington county at his usual address. It further appears that said order was lost in transmission, and has never reached the files of said superior court. The transcript of evidence was filed in the clerk's office on the 13th day of March, 1909, and the bill of exceptions was filed in the clerk's office on the 22d day of March, 1909, and The first and third grounds of the motion both the transcript and bill have been duly to dismiss are without force. The second ground of the motion to dismiss is that "the superior court did not within 40 days from the date of filing a written request to the court stenographer for a transcript of the testimony, etc., grant an extension of time for filing the same beyond the period of 40 days allowed by section 71 of the court and practice act." The record in the case discloses that the transcript of evidence was not filed in the clerk's office of the superior court on or before February 23, 1909, and that the bill of exceptions was not allowed by said justice. These circumstances present no ground for dismissal of the bill of exceptions. The order for the extension of time, which is the necessary and vital step, was made by the justice of the superior court before the expiration of the period first fixed, and the fact that said order was lost cannot be allowed to prejudice the rights of the defendant, who has in all matters acted with expedition and care. The case at bar presents a different aspect from that of McCotter, Appt., v. Town Council of New Shoreham, 21 R. I. 425, 44 Atl. 473. In that which had been deposited in the mail, and which by means of delay in transmission did not reach the clerk within the period for filing prescribed by law, did not perfect a valid appeal. In that case it was essential to the validity of the appeal that the appellant should file his bond on or before a certain date. If by neglect or accident said bond was not filed, the appeal was not complete. In the case at bar, the essential requirement for the extension of time was that the justice should make the order for extension within the period first limited. The justice made such order. The subsequent loss of the order does not affect the validity of the extension. Plaintiff's motion to dismiss the bill of exceptions denied and dismissed. The cause will stand for hearing upon the defendant's bill of exceptions. (110 Md. 441) SMITH v. WOMAN'S MEDICAL COLLEGE (Court of Appeals of Maryland. March 24, 1. PLEADING (§ 49*)—Form of ACTION AS DETERMINED BY DECLARATION. A declaration which concludes as a narr. in assumpsit with a claim of $1,000 damages, but which sets forth that defendant "by its writing obligatory under seal" promised to pay, etc., would seem to be intended as a declaration of debt on specialty. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 107-111; Dec. Dig. § 49.*] 2. WORDS AND PHRASES-"WRITING OBLIGATORY." The words "writing obligatory" imply a written contract under seal, and it is a term seldom, if ever, applied to simple contracts. [Ed. Note.-For other definitions, see Words and Phrases, vol. 8, p. 7543.] 3. PLEADING (§ 100*)-OBJECTION TO PLEAS -PROPER METHOD OF TESTING SUFFICIENCY. Where, in an action under the practice act of Baltimore City (Laws 1886, p. 304, c. 184), plaintiff moved for judgment by default for want of a sufficient plea and affidavit of defense, and, on denial of the motion, refused to join issue, he pursued the proper course to test the sufficiency of defendant's pleas, for, had he joined issue thereon, he would have withdrawn the case from the operation of the practice act and placed it on the footing of a suit at common law. [Ed. Note.-For other cases, see Pleading, Dec. Dig. § 100.*] 4. APPEAL AND ERROR (§ 78*)-DECISIONS RE dent and secretary, and having its corporate seal affixed at the bottom, but making no refand having nothing on its face to indicate that erence thereto in the body of the instrument, it was intended to be issued as a specialty, must be considered a simple contract obligation. [Ed. Note.-For other cases, see Corporations, Dec. Dig. 8 455.*] 6. CORPORATIONS (8 455*)-WRITTEN CONTRACT AS SPECIALTY. To render a written contract of a corporation to which its seal is attached a specialty, it must appear on its face that it was intended to be executed as such. [Ed. Note. For other cases, see Corporations, Dec. Dig. § 455.*] 7. DEBT, ACTION OF (§ 12*)-SUFFICIENCY OF PLEAS JUDGMENT FOR REFUSAL TO REPLY. Pleas filed by defendant to a declaration in debt on a specialty, "that it never was indebted as alleged," and "that it did not promise as alleged," are bad, and it was error to enter judgment for refusal to reply thereto. [Ed. Note. For other cases, see Debt, Action of, Dec. Dig. § 12.*] 8. PLEADING (§ 348*)-JUDGMENT ON PLEADINGS-INSUFFICIENCY OF PLEA. Where plaintiff improperly framed his declaration in debt on specialty, instead of on a simple contract obligation, and defendant filed pleas of "never indebted" and "did not promise," plaintiff was not entitled to judgment by default for want of a sufficient plea and affidavit of defense. [Ed. Note. For other cases, see Pleading, Dec. Dig. § 348.*] 9. ACTION (§ 34*)-CONTINUANCE OF COMMONLAW FORMS. simplified by the Code, the forms of action have Though the forms of pleading have been been preserved and kept distinct. [Ed. Note. For other cases, see Action, Dec. Dig. § 34.*] Appeal from Superior Court of Baltimore City. Action by Joseph T. Smith against the Woman's Medical College of Baltimore City. From a judgment for defendant, plaintiff appeals. Reversed. The case: following is the declaration in the "Joseph T. Smith, M. D., by Thomas Mackenzie, his attorney, sues the Woman's Medical College of Baltimore City, a corporation duly incorporated under the laws of the state of Maryland for money payable by the defendant to the plaintiff: For that the said defendant, by its writing obligatory under seal, dated June 1, 1900, promised to pay to the plaintiff the sum of $452 within two VIEWABLE-FINALITY OF DETERMINATION. years dating from June 1st following the A judgment for defendant, entered on plain-time at which he leaves the said board after tiff's refusal to join issue on the denial of his his removal or resignation from the board of motion for judgment by default for want of a trustees of the said college, with interest at sufficient plea and affidavit of defense, is a final judgment as to plaintiff, from which an the rate of 6 per cent. per annum payable appeal will lie. July 15th of each year. And the said plaintiff resigned from the said board of trustees on the 5th day of September, 1902, and interest on said note was paid up to and including the 15th day of July, 1904; but the defendant hath not paid any further interest, nor hath it paid the principal sum due or any [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 78.*] 5. CORPORATIONS (§ 465*)-CONTRACT TO PAY MONEY-WRITING AS SIMPLE CONTRACT OR SPECIALTY. A written promise of a corporation to pay money to one of its trustees, signed by its presi part thereof. Second count. And for that, and that the defendant admitted none of the the said defendant, by its writing obligatory plaintiff's claim to be due and owing, but under seal dated June 1, 1900, promised to disputed it all, etc. Subsequently the plainpay to the plaintiff the sum of $452 within tiff moved for a judgment by default for want two years dating from June 1st following the of a sufficient plea and affidavit of defense; time at which he leaves the said board after but the court overruled the motion, and, as his removal or resignation from the said the plaintiff refused to join issue upon the board of trustees of the said college, with in- defendant's pleas or either of them, judgment terest at the rate of 6 per cent. per annum, for the defendant for costs was entered. payable July 15th of each year. And the From this judgment the plaintiff has appealed. said plaintiff resigned from and left the said board of trustees on the 5th day of September, 1902, whereupon the principal of the said writing obligatory became payable on or before the 1st day of June, 1905, but the defendant hath not paid the same or any part thereof. And the plaintiff claims $1,000 damages." Argued before BOYD, O. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, THOMAS, and HENRY, JJ. H. Findlay French and Thomas Mackenzie, for appellant. John L. G. Lee, for appellee. For WORTHINGTON, J. The action in this case was commenced, under the practice act of Baltimore City, on the 7th day of November 1907, returnable to the November return day, upon the following instrument of writing, which was attached to the declaration: "$452. Baltimore, Md., June 1, 1900. value received, the Woman's Medical College of Baltimore promises to pay to Joseph T. Smith, M. D., within two years, dating from June 1st following the time at which he leaves the board, after his removal or resignation from the board of trustees of the said college, or in case of his death, promises to pay, within the time above noted, to his executors or personal representatives, the sum of four hundred and fifty-two dollars ($452). It is understood and agreed by the holder hereof that this note is nonnegotiable and nonassignable except as herein set forth, and that it shall bear interest at the rate of 6 per cent. per annum, payable July 15th of each year. Richard Henry Thomas, M. D., President. Joseph T. Smith, M. D., Secretary. [Corporate Seal Woman's Medical College of Baltimore.]" Ten-cent internal revenue stamp affixed. Attached to the declaration was an affidavit as required by Acts 1886, p. 304, c. 184. Although the declaration (which we will request the reporter to set out in full in the report of this case) concludes, as a narr. in assumpsit, with a claim of $1,000 damages, yet it seems to have been intended as a declaration in debt on specialty, for it sets forth that the defendant "by its writing obligatory under seal" promised to pay, etc. The words "writing obligatory" themselves imply a written contract under seal. It is a term seldom, if ever, applied to simple contracts. 2 A. & Eng. Ency. 758. To this declaration the defendant pleaded "that it never was indebted as alleged," and "that it did not promise as alleged," with an affidavit to The plaintiff pursued the course heretofore approved by this court, to test the sufficiency of the defendant's pleas, for, had he joined issue thereon, he would thereby have withdrawn the case from the operation of the practice act, and placed it upon the footing of a suit at common law. Traber v. Traber, 50 Md. 1; Hutton v. Marx, 69 Md. 252, 14 Atl. 684; Laubheimer v. Naill, 88 Md. 177, 40 Atl. 888. "From such a judgment an appeal will lie, for as to the plaintiff it is a final judgment." Henderson v. Insurance Co., 90 Md. 47, 44 Atl. 1020. The appellee's motion to dismiss the appeal must therefore be overruled. The main question presented to this court is whether the lower court was right in refusing the plaintiff's motion for judgment by default against the defendant. In considering this question, it will be helpful to determine, first, whether the paper writing sued on is a specialty or a simple contract. It will be observed that, while the corporate seal of the defendant corporation is affixed at the bottom of the paper, no reference is made to the seal in the body of the instrument, nor is there anything on the face of the paper to indicate that it was intended to be a bond or specialty. In the case of Jackson v. Myers, 43 Md. 452, this court, speaking through Judge Alvey, said: "The symbol or printed representation of the seal, if it be conceded to be a sufficient representation of a seal, was not printed on the note to restrain its negotiability, nor to change it into a specialty, but rather as a mark of genuineness. The note in no manner depends upon the seal for its validity, but derives its entire authenticity from the signatures of the officers authorized to execute it." In Muth v. Dolfield, 43 Md. 466, the same learned judge said: "There is nothing on the face of the notes to indicate in the slightest manner that this type or emblem of the seal was intended to authenticate the notes or to be any part of their execution." In Hamburger v. Miller, 48 Md. 317, this court, speaking by the same judge, said: "It (the note) appears to have had the impress of the corporate seal affixed at the foot of the note, but there is no reference made to the seal in any part of the instrument itself, and there is nothing appearing to indicate the purpose of affixing the seal. The note must be taken as a negotiable promissory note, and that, too, without regard to extrinsic facts." The same view was For the reasons assigned, the judgment will be reversed, and a new trial awarded. Judgment reversed, with costs, and a new trial awarded. livered by Judge Briscoe in the case of Met- | affect the case as now presented, and are not ropolitan, etc., v. Anderson, 79 Md. 375, 29 before us for review. Atl. 606. In 4 Thompson on Corporations, § 5053, the propriety of using the corporate seal on simple contracts is thus stated: "While it is not necessary, it is not improper, to refer to the ancient rule of the common law, by using the corporate seal as a means of evidencing its assent to a simple contract." And in 2 Cook on Stock & Stockholders & Corporation Law, § 761, the author says: "A note given under the seal of the corporation is not necessarily a sealed instrument, inasmuch as the seal is the old mode of signature by a corporation." As no reference is made in the body of the instrument sued on in this case to the corporate seal impressed thereon, and as there is nothing on the face of the paper to indicate that it was intended to be issued as a specialty, we think that unquestionably, under the previous decisions of this court, as well as upon the authority of the text-writers quoted above, the instrument must be considered a simple contract obligation, and not a specialty. This view does not conflict with the decision of this court in the case of Trasher v. Everhart, 3 Gill & J. 246, relied upon by the appellant. In that case the instrument involved was executed by individuals in their private capacity, using a scroll at the end of their names as seals, and it was held that the scroll seal of the obligors rendered the instrument a specialty without any reference to the seal being made in the body of the instrument. Here we are dealing with an instrument executed for and in behalf of a corporation, which, according to the ancient rule of the common law, could execute no contract apart from the instrumentality of its common seal; and, while this ancient rule has been greatly modified, yet, in order to render the written contract of a corporation to which the seal of the corporation is attached a specialty, it must appear upon the face of the instrument that it was intended to be executed as such. Jackson v. Myers, supra; 4 Thompson on Corp. §§ 5051, 5053-5078. The declaration in this case being framed in debt on specialty, the pleas filed thereto are not good pleas, and therefore we think the learned judge in the court below erred in entering judgment against the plaintiff for his refusal to reply to such pleas; but, on the other hand, as the plaintiff misconceived his form of action, he was not entitled to a judgment by default under the practice act. Although the forms of pleading have been simplified by the Code, the forms of action have been preserved and kept distinct. Canton v. Weber, 34 Md. 670. The several additional pleas of the defendant, filed apparently after the rule day to plead, and without the order of the court extending the time for filing such pleas, do not (110 Md. 286) SIMPSON v. LEAGUE et al. LEAGUE et al. v. SIMPSON. (Court of Appeals of Maryland. March 24, 1909.) 1. GIFTS (8 49*)—VALIDITY-EVIDENCE-DE GREE OF PROOF. A mere gift, without substantial considerher entire estate, will be closely scrutinized, ation, by an aged and ignorant person, of almost and, unless it be clearly shown that the donor possessed the requisite legal capacity, and acted freely and without undue influence or restraint in making it, will not be upheld. Dig. §§ 95-98; Dec. Dig. § 49.*] [Ed. Note.-For other cases, see Gifts, Cent. 2. GIFTS (8 48*)-VALIDITY EVIDENCE. In determining the validity of a mere gift, without substantial consideration, by an aged and ignorant person, of almost her entire estate, the court will consider, not only the condition of the donor at the time of the gift, and the circumstances surrounding the gift, but also the donor's previous life, habits, and relations to others, so as to ascertain the natural or probable objects of her bounty, and especially to discover any settled purpose she had in regard to the disposal of her estate. [Ed. Note.-For other cases, see Gifts, Dec. Dig. § 48.*] 3. GIFTS (8 47*)-FIDUCIARY RELATIONSBURDEN OF PROOF. Where fiduciary relations existed between the parties to a gift, the donee has the burden of establishing satisfactorily the facts necessary to uphold the gift. [Ed. Note.-For other cases, see Gifts, Cent. Dig. §§ 83, 86; Dec. Dig. § 47.*] 4. GIFTS (§ 36*)-RESCISSION. but a person of sound mind having voluntarily There having been no fraud or imposition, made and completed a gift, it will not be set aside because of his changing his mind, or because his act appears absurd or improvident. [Ed. Note.-For other cases, see Gifts, Dec. Dig. § 36.*] 5. CANCELLATION OF INSTRUMENTS (§ 55*)— GIFTS-EXTENT OF RELIEF. Where it appears, in a suit to set aside gifts of practically all the donor's estate, that while there was no undue influence or fraud, and the donor was competent, and so far as concerned the gifts of land, fully understood the force and effect of the deed thereof, so that good title thereto was vested in the donee, that the donor failed to appreciate the real signifibank deposit, first from one in her own name cance of the successive changes made in her to one to the joint credit of herself and the donee and the survivor, and then to the credit of the donee and his wife and the survivor, the donor, while not entitled to an entire rescission of the transfers of the account, is entitled to a modification thereof, so as to carry out her original intention of making the gift of the though, so far as with the knowledge and withmoney subject to her own life estate therein, out objection of the donor the donee drew mon |