the clause, if for no other reason than tuat | held that the production by the insurance their right depended upon the willingness company of the policy and the premium reof the company to recognize them, which it was not bound to do, and that it was plain that the beneficiary designated was the insured's estate. ceipt book and the receipt of a daughter of the insured constituted a complete defense against a claim of the beneficiary named in the application for the policy; a condition of the policy being that payment might be made to the beneficiary or an executor or administrator, husband or wife, or relation by blood or connection by marriage. While the plaintiff was named as beneficiary in the application, there was no contract in the policy to pay such beneficiary; the contract being to pay the person or persons named in condition 5 of the policy, just recited. Furthermore, it would appear, though it is not stated, that the suit, which was brought by the plaintiff named in the application, was brought after payment made to the daughter, who was one of the class to whom payment might be made. This must certainly be true In Golden v. Met. Life Ins. Co., 35 App. Div. 569, 55 N. Y. Supp. 143, suit was brought by the person named as beneficiary in two policies of insurance, and, as the company had not paid the amount of the insurance to any of the persons named in the clause providing for the facility of payment, it was held that the plaintiff was entitled to recover. In Wokal v. Belsky, 53 App. Div. 167, 65 N. Y. Supp. 815, suit was brought by the administrator of a decedent against a life insurance company and an adverse claimant under a policy of insurance containing a facility of payment clause. The court held, at page 170 of 53 App. Div., page 817 of 65 N. Y. Supp., that such a clause is for the pro--that is, payment must have been made tection of the company to enable it to discharge its obligation by payment to any one of the class designated without requiring administration, and that the only effect of the clause is to provide the company with a defense in case it has paid thereunder, and that it neither grants nor takes away from any person a cause of action. before suit brought-for this case of Met. Life Ins. Co. v. Schaffer was cited and referred to in Brooks v. Met. Life Ins. Co., ubi supra, in which last case it was held that the question of timely payment was left undecided. The complainant had a right to file its bill of interpleader in this cause, because the question arising upon the adverse claims of the defendants had not been adjudicated in this state, but, on the contrary, had been left expressly undecided in a case in the Supreme Court in which it was mooted, and the complainant was therefore embarrassed by hostile claims and could not with safety pay either of the claimants. As the whole controversy between the parties was submitted upon the hearing, namely, the right of the complainant to bring interpleader and the right of the defendants to the fund as against each other, there will be a decree that the complainant pay the moneys into court, out of which it will be entitled to its taxed costs and a reasonable allowance for counsel fee, which fee will be fixed upon notice to the defendant Godfrey, administrator, to whom the balance of the fund will be directed to be paid. In Thompson v. Prudential Life Ins. Co., 119 App. Div. 666, 669, 104 N. Y. Supp. 257, 259, the court held that it seemed that if payment had been made by defendant, prior to notice of the plaintiff's claim as administratrix, to a person chosen from one of the classes designated in provision 2 (a facility of payment clause), in the due exercise of the discretionary power of selection reserved to it by that provision, that fact would be a complete defense to the action, and (at page 670 of 119 App. Div., page 260 of 104 N. Y. Supp.) that under the terms of the policy the plaintiff, as administratrix, could recover only in the event that the defendant had not paid the insurance to some person in pursuance of the facility of payment clause. My judgment is that the complainant had a right to pay any one of the persons named in the facility of payment clause in the policy under consideration, up to the time that suit was brought by the person entitled to payment under the contract, namely, the administrator of the insured, and that such pay- PHILADELPHIA, B. & W. R. CO. v. DIFment would be a complete defense to the administrator's action; but, not having made (Court of Appeals of Maryland. such payment, the right of the administrator under the contract upon suit brought was complete, and that a plea by the company of subsequent payment to one of the class mentioned would not operate to bar the administrator's suit. This view, as I understand it, does not conflict with the decision in Met. Life Ins. Co. v. Schaffer, 50 N. J. Law, 72, 11 Atl. 154. In that case it was FENDAL. 1909.) (109 Md. 494) March 24, WITNESSES (§ 255*) EXAMINATION RE A railroad employé, testifying as to the time when a freight car arrived at his station and was delivered to a connecting carrier, may refresh his memory by referring to the record made by him at the time of the occurrence, and which he knows to be correct. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 875; Dec. Dig. § 255.*] On motion for reargument. Motion overruled. For former opinion, see 72 Atl. 193. WORTHINGTON, J. The appellant has filed a motion for a reargument in this case, and assigns as its chief reason in support thereof that the evidence of Hugh R. Scott, an employé of the initial carrier, as to the time when the car containing the peaches reached Fulton station, was improperly admitted. Scott testified that his record showed that the car arrived at 6:30, and was delivered to the defendant about 8:20, Sunday, October 1st; that he was on duty at that time, and delivered all cars; that he saw this particular car backed over to the defendant's road. He further testified that he refreshed his memory by referring to his book, and that he would have to refer to his record in order to state the time when the car arrived and when it was delivered to the defendant. The witness also stated that of his own personal knowledge, outside of his record as near as he could tell, the car was delivered to the defendant about 8:20, Sun day, October 1st; but, of course, his testimony on cross-examination, as already indicated, shows that he was obliged to refresh his recollection from his book, and this is all the law requires. (Court of Appeals of Maryland. Jan. 20, 1909.) 1. APPEAL AND ERROR (§ 628*) RECORD TIME OF FILING-DELAY-BURDEN OF EXPLAINING DELAY. Under Code Pub. Gen. Laws 1904, art. 5, 840, prohibiting the dismissal of an appeal be- Error, Cent. Dig. § 2750; Dec. Dig. § 628.*] Code Pub. Gen. Laws 1904, art. 5, § 33, requires all transcripts of record on appeals from equity courts to be transmitted to the Court of Appeals within three months after the appeal is prayed, and section 40 prohibits the dismissal of an appeal for failure to transmit in time, if the delay was caused by the neglect, etc., of the clerk or appellee; but such neglect, etc., shall not be presumed, but must be shown by appellant. An equity appeal was entered April 15th, and the record was not received by the clerk of the Court of Appeals until October 1st. Appellant's affidavit to explain the delay showed that on June 12th appellant's counsel, who resided in Baltimore, wrote to the clerk of the trial court, residing at Leonardtown, inclosing a stipulation with appellee's counsel as to what the transcript should contain, the trial court then having the papers, which were not returned to the clerk's office until several weeks later, and, on July 13th, appellant's counsel wrote the clerk requesting the clerk to let him see the record before sending it up, and it was and returned to the clerk September 24th, and forwarded to him at Baltimore, September 9th, forwarded to the clerk of the Court of Appeals October 1st. Held, that as it did not appear that the record could not have been transmitted during the first two months after appeal taken, and because of the further delay from counsel's request to inspect the record, and that caused by his residence away from the place of trial, the affidavit did not show that by diligence the If the witness swears that he made the entry or memorandum in accordance with the truth of the matter, as he knew it to exist at the time of the occurrence, of which he is at the time of the trial still convinced, he may use such memorandum to refresh his recollection. Even where the memorandum does not awaken in the memory of the witness any recollection of anything contained in it, but nevertheless, knowing the writing to be genuine, his mind is so convinced that he is on that ground unable to swear positively to the fact, the testimony will be received. Martin v. Good, 14 Md. 398, 74 Am. Dec. 545. Where the witness, after consulting the memorandum, remembers the facts, and testifies from his own recollection of the same, it is of no consequence whether the paper used is the original memorandum, or a copy thereof. 8 Ency. Pl. & Pr. p. 140; Bullock v. Hunter, 44 Md. 416. It would certainly be highly unreasonable to expect the employé of a rail-record could not have been transmitted in time. road company, at one of its stations or terminals, to remember the day and the hour when every car arrived there, and when it departed, or was delivered to the connecting carrier, wholly independent of the records kept for that purpose. We think the lower court was entirely right in permitting this witness' testimony to go to the jury for its consideration. The question of the measure of damages having been considered fully in the opinion already filed in this case, no further discussion on that point is deemed necessary. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2750; Dec. Dig. § 628.*] 3. APPEAL AND ERROR (8 628*)-RECORDTIME OF FILING-DELAY-EXCUSE-STIPULATION. A stipulation between appellant's and appellee's counsel as to what the record should contain did not amount to an agreement for delay in transmitting the record. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2756; Dec. Dig. § 628.*] 4. APPEAL AND ERROR (§ 628*)-RECORD CONTENTS. Appellant could direct what papers should be copied into the record, and what should be Where it did not appear that by proper diligence the record could not have been made up and transmitted to the Court of Appeals within three months after appeal prayed, as required by Code Pub. Gen. Laws 1904, art. 5, $ 33, the appeal will be dismissed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2744; Dec. Dig. § 627.*] 6. COSTS (§ 256*)-APPEAL-TRANSCRIPT. The cost of copying and printing certain papers inserted in the record at the request of one interested in the property in controversy and not by appellant, which formed no part of the record, should not be taxed against appellant upon affirmance, but against the person inserting them. [Ed. Note.-For other cases, see Costs, Cent. Dig. 968; Dec. Dig. & 256.*] Appeal from Circuit Court, St. Mary's County; J. Parran Crane, Judge. Action by Philemon H. Tuck against Margaret Estep and others. From a judgment for plaintiff, defendants appeal. Appeal dis missed. following day, June 13, 1908. It further appears that, at the time this letter was received, the papers in the case were in the hands of the lower court, and were not returned to the clerk's office until several weeks later. In the meantime, further correspondence took place between the attorney and the clerk, and in one of the letters that passed between them, dated July 13, 1908, but which was not received by Mr. Abell until July 22, 1908, Mr. Farber says: "Before making up the record, kindly let me know precisely what you propose to put in it, and before sending it up, kindly let me see it, as I wish to make copies of certain papers for my own files." The record seems to have been finally completed on September 9, 1908, for it was then forwarded to Mr. Farber at Baltimore for his inspection. It was returned to Mr. Abell on September 24, 1908, with instructions from H. B. Stimpson, writing for Mr. Farber, to eliminate there from a certain affidavit of Mr. Tuck, co tained therein, and to include certain of the rules of the circuit court for St. Mary's county, sitting in equity. Section 40, art. 5, of the Code of Public Argued before BOYD, C. J., and BRIS- General Laws of 1904, provides that no apCOE, PEARCE, SCHMUCKER, BURKE, peal shall be dismissed because the record THOMAS, HENRY, and WORTHING- has not been transmitted within the time TON, JJ. prescribed, if it appears to the Court of Appeals that such delay was occasioned by the appellee, "but such neglect, omission or inaneglect, omission, or inability of the clerk or bility shall not be presumed, but must be shown by the appellant." So far as the af WORTHINGTON, J. In this case a motion to dismiss the appeal has been filed up-fidavit shows, the first letter from Mr. Faron the ground that the record was not transmitted to this court within the time prescribed by article 5, § 33, of the Code of Public General Laws of 1904, relating to appeals from courts of equity. By that section it is provided that "all transcripts of records on appeals from courts of equity, shall be made and transmitted to the Court of Appeals within three months from the time of the appeal prayed." The appeal in this case was entered on April 15, 1908, and the record was received by the clerk of this court on October 1, 1908, or 51⁄2 months after the appeal prayed. The cause for the delay is sought to be explained by an affidavit, filed on behalf of the appellants, setting forth certain correspondence that passed between Mr. Farber, attorney for appellants, residing in Baltimore, and the clerk of the circuit court for St. Mary's county, residing at Leonardtown. From this correspondence it appears that on June 12, 1908, Mr. Farber wrote the clerk, inclosing an agreement or stipulation, signed by himself and Mr. Bansemer, attorney for one of the appellees, as to what the transcript of record should contain. This letter was received by Mr. Abell, the clerk, on the ber to the clerk was dated June 12, 1908. Nearly two months, therefore, were allowed to pass before any steps were taken by him to have the record made up, and then, before it was made up, the clerk was requested to advise counsel at Baltimore what he intended to put in the record, and to send the transcript to him for inspection before transmitting it to the Court of Appeals. Neither negligence, omission, nor inability is to be presumed against the clerk for not making up the record promptly after the appeal prayed on April 15, 1908, and the delay, at least until June 12th, must be attributed, in the absence of any explanation, to the fault of the appellants. Subsequently, for several weeks, the papers seem to have been in the hands of the court, but Mr. Farber's request to let him know precisely what it was proposed to put in the record before it was made up, and to send it to him for inspection before it was transmitted to the Court of Appeals, tended further to unduly delay its transmission to this court. "Where it is not shown that the failure to transmit the record in time was owing to the omission of the clerk of the court below, it will be presumed to be the fault of the appellant." Mason v. Gauer, 62 Md. 263. The burden of proof is on the appellants to show some sufficient cause for the unauthorized delay, and they must make it affirmatively appear that such delay was not caused by their own default, but by the neglect, omission, or inability of the clerk or appellee. Willis v. Jones, 57 Md. 362; Ewell v. Taylor, 45 Md. 573. The fact that the attorney for one of the appellees on June 12, 1908, signed the stipulation as to what the record should contain, does not amount to an agreement for delay in transmitting the record. If no such stipulation could have been promptly obtained, the appellants had the right to direct forthwith what papers should be copied into the record, and what should be omitted, in order to avoid delay. Ewell v. Taylor, supra. For aught that appears in the affidavit, the transcript of record could have been made up and transmitted during the first two months after the appeal was taken, had the appellants used due diligence in notifying the clerk what they desired the record to contain. Having failed to do this, even if they had thereafter exercised the utmost diligence, they might not have been able to repair the loss of time which their laches had already occasioned, and their appeal, coming too late to this court, could not, under such circumstances, in the face of a motion to dismiss, be entertained. But much of the further delay in the case was no doubt occasioned by the fact that the attorney in charge of the appeal resided in Baltimore, while the appeal itself was pending at a distance in the circuit court of St. Mary's county, so that all communications concerning the matter were necessarily conducted by means of correspondence through the mails. Had the details of the appeal been left to an attorney of the court where the case was pending, much of the delay in making up and transmitting the record could doubtless have been avoided. As it does not satisfactorily appear, from the affidavit and correspondence filed with the court, that by proper diligence a correct record could not have been made up and transmitted in time, the appeal must be dismissed. Ewell v. Taylor, 45 Md. 573; Steiner v. Harding, 88 Md. 343, 41 Atl. 799. authority from the appellants. These cover several pages of the record, and the cost of copying and printing the same should not be borne by them, but by Mr. Whiting. Appeal dismissed, with costs to the appellees, except as to the cost of copying and printing agreement and affidavit in record, which is to be taxed by the clerk of this court and paid by George A. Whiting. (110 Md. 47) KENDRICK & ROBERTS, Inc., v. WARREN BROS. CO. (Court of Appeals of Maryland. Feb. 10, 1909.) 1. CORPORATIONS (§ 657*)—FOREIGN CORPORATIONS-FAILURE TO COMPLY WITH REQUIREMENTS-EFFECT ON CONTRACTS. Code Pub. Gen. Laws 1904, art. 23, § 139, providing that any person who shall act as agent of a foreign corporation or maintain an office for the transaction of its business, before it shall have complied with the requirements of section 137 and obtained a certificate from the Secretary of State, shall forfeit a certain sum for each day he may so act or occupy such office, does not avoid a contract made by a foreign corporation before it has complied with the law, but imposes a penalty merely by way of fine on its agents who transact business before such compliance. Cent. Dig. §§ 2537, 2540; Dec. Dig. § 657.*] [Ed. Note.-For other cases, see Corporations, 2. WORDS AND PHRASES "MAINTAIN." The word "maintain" has been defined as meaning to support that which has already been brought into existence. [Ed. Note.-For other definitions, see Words 7712.] and Phrases, vol. 5, pp. 4277-4281; vol. 8, p. 3. CORPORATIONS (§ 661*)—FOREIGN CORPORA TIONS-FAILURE TO COMPLY WITH REQUIREMENTS-RIGHT TO SUE. Code Pub. Gen. Laws 1904, art. 23, § 140, be permitted to maintain an action in any court providing that a foreign corporation shall not of the state until the requirements of section 137 have been complied with, does not operate but merely suspends the prosecution thereof unto end an action otherwise regularly instituted, til compliance with section 137. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2542, 2544; Dec. Dig. § 661.*] 4. BANKRUPTCY (§ 418*)—DISCHARGE-EFFECT -JUDGMENT on Bond. vent the taking of a judgment against the bankA discharge in bankruptcy does not prerupt, with a perpetual stay of execution, so as to preclude enforcement of the judgment against him, on a bond to dissolve an attachment levied more than four months before the bankruptcy proceedings, for the purpose of enabling the attachment creditor to proceed against the sureties on the bond. Dec. Dig. § 418.*] [Ed. Note.-For other cases, see Bankruptcy, We deem it only proper to say, however, that we have carefully examined the record in the case, as well as the briefs of the coun-5. sel, and we are all of the opinion that if the appeal could be entertained the decree of the lower court would be affirmed. JUDGMENT (8 230*) — FORM JUDGMENT. Code Pub. Gen. Eaws 1904, art. 26, § 14, providing that the court shall give judgment according as the very right of the cause and garding matters of mere form, authorizes the rendition of a special or qualified judgment, to wit, a judgment with a perpetual stay of execution. The affidavit of Mr. Tuck, and the agree-matter in law shall appear to it, without rement between certain parties in regard thereto, form no part of the record on this appeal, and were included in the transcript at the request of Mr. George A. Whiting, the pur- [Ed. Note.-For other cases, see Judgment, chaser of the mortgaged property, without Dec. Dig. § 230.*] 6. APPEAL AND ERROR (§ 1078*)—BRIEFS- | note case is in assumpsit and contains the ABANDONMENT OF EXCEPTIONS. Exceptions abandoned by appellant in his brief will not be considered. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4256-4261; Dec. Dig. 1078.*] 7. CONTRACTS (§ 324*)-ACTIONS-FORM. Where work was not finished within the time specified, suit was properly brought by the person performing the same in assumpsit and not in covenant. Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1467-1475; Dec. Dig. § 305.*] 9. ATTACHMENT (§ 122*) AMENDMENT OF PLEADINGS. Under the express provisions of Code Pub. Gen. Laws 1904, art. 9, § 28, the affidavit, short note, declaration, voucher, pleadings, and all other papers in attachment proceedings may be amended in the same manner and to the same extent as the proceedings in any other action. [Ed. Note. For other cases, see Attachment, Dec. Dig. § 122.*] 10. CONTRACTS (§ 305*)-TIME FOR PERFORMANCE WAIVER. Where a party is permitted to finish work after the time fixed for completion, all right to object on that ground is waived, and the law implies a promise to pay what it is reasonably worth. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1467-1475; Dec. Dig. § 305.*] 11. CONTRACTS (§ 353*) — ACTIONS-INSTRUC TIONS. Prayers offered by defendant on the theory that a sealed contract between the parties was the cause of action were not applicable in an action of assumpsit on the implied contract, which had become substituted in its place, and were properly rejected. [Ed. Note.-For other cases, see Contracts, Dec. Dig. 353.*] Appeal from Superior Court of Baltimore City; Thos. Ireland Elliott, Judge. Assumpsit by Warren Bros. Company against Kendrick & Roberts, Incorporated. Judgment for plaintiff, and defendant appeals. Affirmed. six money counts. The verdict and judgment, after trial in the short-note case, was in favor of the plaintiff, and the defendant has appealed. At the trial of the case, the appellant reserved seven bills of exception. Five of these relate to the rulings of the court upon the admissibility of testimony, one to the action of the court in permitting an amendment to the plaintiff's voucher filed in the case, and the seventh to the refusal of the court to grant the appellant's prayers. The principal questions in the case arise upon the rulings of the court on the pleadings, and we find it more convenient to consider them here. The amended declaration, it will be seen, contains six counts, and to this the defendant pleaded five pleas. The fourth and fifth pleas are those chiefly relied upon by the defendant corporation as a bar to the action, and they are as follows: "Fourth Plea. And for a fourth plea the defendant says that the plaintiff is a foreign corporation, and at the time of the institution of this sult in this court the said foreign corporation had not filed in the office of the Secretary of the State of Maryland, accompanied by a deposit fee of $25, a duly certified copy of the charter, certificate, or act of incorporation under which it claimed the power to transact business a corporation, together with a sworn statement from the president or other chief executive officer of such corporation, under its official seal, setting forth the amount of its capital stock authorized by law, and the amount actually issued, the as amount of its assets and liabilities, the character of the business to be transacted in this state, designating the place or places of its principal office or offices, and the name or names of its agent or agents to reside in this state, with the place or places of their residence, upon whom legal process issued out of any court of this state may, at any time, be served in any action, at the suit of the state of Maryland or of any county or incorporated city or town of this state, or of any citizen or citizens of this state, or of any corporation organized under the laws of this state. "Fifth Plea. That on or about the 13th day of September, 1905, the defendant was by the District Court of the United States Charles F. Harley, for appellant. Thomas for the Eastern District of Pennsylvania, at G. Hayes, for appellee. BRISCOE, J. On the 2d of November, 1904, the appellee, a West Virginia corporation, sued out a nonresident attachment against the appellant, a Pennsylvania corporation. The attachment was laid in the hands of the trustees of the Johns Hopkins Hospital, and sufficient funds were attached to cover the appellee's claim. Subsequently the appellant gave bond, and the attachment was dissolved. The declaration in the short a session thereof held at the city of Philadelphia, in the said district, on the day and year aforesaid, regularly declared and decreed and adjudicated a bankrupt according to the true intent and meaning of the laws of the United States. And the defendant says that the said supposed indebtedness alleged in the declaration, if any such ever did accrue, accrued before the defendant so became a bankrupt as aforesaid, and was provable under said bankruptcy against the said defendant, and that the said plaintiff was duly and |