of his assignor, free of any right to a set-off in favor of the defendant, whose claim against the assignor did not come into existence until after the assignment, and until he was required to pay assignor's note by virtue of his liability thereon as indorser. Fidelity & Deposit Co. v. Haines, 78 Md. 454, 28 Atl.

he could, of course, upon payment of the note on which he was liable as indorser any time before the trial of the case, have set off the amount so paid by him against his debt due to the agency. Clarke v. Magruder, 2 Har. & J. 77; Colton v. Drovers' Bldg. Ass'n, supra. Before he paid the note, and thereby acquired a claim against the agency, however, the agency assigned its claim against him to the plaintiff, who took it for the benefit of the creditors of the agency, subject to only such equities as then existed.

claim against the defendant was not yet due, I did not exist, and therefore the assignee the court held that the defendant was en- took the claim against the defendant in favor titled to set off his claim, and said: "Had the position of these parties been reversed so that Henderson's (intestate's) debt to Houston (defendant) was not due and payable at Henderson's death, but Houston's debt to Henderson was then due and payable, the application of the same principle would have prevented Houston from setting off his debt | 393, 23 L. R. A. 652. But for the assignment against Henderson in an action by Henderson's administrator, because, at Henderson's death, there was no right of set-off, and the right of action passed to the administrator unaffected by the right of set-off." In the case of In re Hatch, 155 N. Y. 401, 50 N. E. 49, 40 L. R. A. 664, the Court of Appeals of New York reviews at length the previous decisions in that state, dealing with the right of set-off where the claims of the assignors or insolvents or the claims of creditors of such insolvents are not due, and holds that a creditor of the insolvent, whose claim is due at the time of the execution of an assignment for the benefit of creditors, is entitled to set off his claim against a debt from himself to the insolvent, which had not matured at the time of the assignment; but, where the claim of the creditor of an insolvent was not due at the time of the assignment, it cannot be set off against the claim in favor of the insolvent due at the time of the assignment. Both of these cases are cited and relied on by this court in Colton v. Drovers' Bldg. Ass'n, supra. See, also, 25 Am. & Eng. Ency. of Law (2d Ed.) 545, 546, and cases cited in notes.

Regardless of any question as to the sufficiency of the allegation of insolvency of the agency, to entitle the defendant to an equitable set-off on that ground, and without considering whether the facts set out in the fourth plea (assuming that they entitled the defendant to set off his claim) should have been pleaded as a defense on equitable grounds, we must hold on the authorities cited that the demurrer to the third, fourth, and fifth pleas was properly sustained.

The evidence excepted to in the first exception was a statement made by the defendant from the books of the agency, including his account with the agency. Without hav

Most of the cases holding a contrary viewing laid any foundation for the admission of are the decisions to the effect that a bank the books themselves, a statement made from has the right to apply to the payment of a the books, though shown to be correct acdebt not yet due held by it against an insol-cording to them, was not admissible. Clarke vent money on deposit in the bank belong- v. Magruder, supra; Hoogewerff v. Flack, ing to the insolvent at the time of his assign- 101 Md. 371, 61 Atl. 184. But when taken in ment for the benefit of creditors. The banks connection with the evidence in the second are held to have a lien upon deposits in their bill of exception, to the effect that the dehands to secure debts due them by their de- fendant stated to plaintiff that the statement positors, and may as against an attaching was correct except as to two items contained creditor, or the assignee of an insolvent own therein, which the plaintiff had deducted er of such deposits, apply such deposits to from the claim against him, the statement the payment of any claim they may have was admissible as an admission of the deagainst such depositors, though its claim may fendant (Gittings v. Winters, 101 Md. 194, 60 not be due at the time of such attachment or Atl. 630), and the defendant was not injured assignment. 2 Am. & Eng. Ency. of Law (1st by the ruling in the first exception, while Ed.) 97; Miller v. Farmers' & Mechanics' the evidence, excepted to in the second exBank, 30 Md. 392; Farmers' & Merch. Bank ception, to show when the statement was v. Franklin Bank, 31 Md. 404; Colton v. made, was properly admitted. Drovers' Bldg. Ass'n, supra. In some states, however, where the banks are held not to have any such lien upon the moneys of a depositor, they are denied the right in a suit by the assignee of an insolvent depositor to set off against the claim of the assignee the amount of any unmatured claim held by the bank against the depositor. Chipman v. Ninth National Bank, 120 Pa. 86, 13 Atl. 707. In this case, at the time of the assignment,

Plaintiff's first prayer is as follows: "If the court, sitting as a jury, shall find from the evidence that the defendant is indebted to the plaintiff's assignor in any sum of money, then the court, sitting as a jury, shall assess the damages in such a sum of money as the court, sitting as a jury, shall find from the evidence the defendant is actually indebted to the plaintiff's assignor, together with interest at the rate of 6 per cent. per annum

the discretion of the jury." And defendant's | struction to assess the damages in such sum prayer is as follows: "The court instructs of money as it found from the evidence the itself, sitting as a jury, that if it finds from defendant was so indebted. The court, sitthe evidence that the defendant was employ- ting as a jury, should have been instructed ed in or about February, 1895, by the Mary- as to the law applicable to the facts of the land State Grange Agency of Baltimore city case, leaving it to the court, sitting as a to do special work on certain books and ac- jury, to find the facts necessary to entitle counts, as testified to, and it was agreed at the plaintiff to recover, which this prayer the time that he should be paid for such fails to do. Thomas, Prayers and Instrucwork a reasonable and fair compensation, tions, § 31; B. & O. R. R. Co. v. Resley, 7 in addition to his regular salary, if the court Md. 297; Roth v. Shupp, 94 Md. 55, 50 Atl. so finds, and the defendant performed all 430; Hobbs v. Batory, 86 Md. 68, 37 Atl. the work that it was agreed he should do, 713. There is no evidence in the record from and it was further agreed that the amount which the court, sitting as a jury, could have of the compensation therefor should be sub- found that the defendant waived or abandonmitted to the board of directors of the said ed his claim to compensation for the extra Maryland State Grange Agency of Baltimore services rendered by him to the agency. The city, to be adjusted and agreed upon between only evidence in the case bearing upon the the said agency and the said defendant, and question was the testimony of the defendant if the court further finds that the matter that he rendered the extra services with the was referred to the said board of directors, understanding with the agency that he would but that up to the 27th day of February. be paid for them, and that he had repeated1908, it had failed to consider and adjust the ly demanded payment, but that without any same, but has never disputed or denied its denial of his right to compensation the agenliability therefor, and that, upon said date cy had from time to time postponed the adit made a deed of trust for the benefit of justment of the matter. The mere fact that creditors to the plaintiff, then the court in- he had not collected his claim for such servstructs itself, sitting as a jury, that the de-ices up to the time of the assignment would fendant is entitled to a credit of such a sum of money as it may find a fair and reasonable compensation for the work done and performed by him to be entered as a credit in the account current between him and the said agency." This prayer was granted by the court after modifying it by adding thereto, "unless the court, sitting as a jury, shall further find that the defendant before the institution of this suit waived or abandoned all claims for such compensation." The defendant specially excepted to this modification on the ground that there was no evidence in the case that the defendant had ever waived or abandoned its claim for compensation for the extra work done by him, but the court overruled the exception.

By plaintiff's prayer the court, sitting as a jury, was authorized to find that the defendant was indebted to the plaintiff without being told what facts were necessary to be found in order to ascertain whether such indebtedness existed, and the prayer not only failed to instruct the court, sitting as a jury, | in regard to the law, but submitted to the court, sitting as a jury, questions of law as well as questions of fact. Moreover, the evidence shows that the account against the plaintiff was made up of a number of charges against him, and a number of credits in his favor, and the prayer, without any reference to the credits to which defendant was entitled, submitted to the court, sitting as a jury, to find the amount to which the defendant was indebted to the plaintiff, with the in

not justify a finding that he had waived or abandoned the claim. 29 Am. & Eng. Ency. of Law (2d Ed.) 1087, 1105.

While a set-off must be specially pleaded, and evidence in support of it is not admissible unless so pleaded (1 Poe, P. & P. [3d Ed.] § 613; Burch v. State, 4 Gill & J. 444; Sangston v. Maitland, 11 Gill & J. 297; 19 Ency. P. & P. 738–742), when such evidence is produced without objection, and the right to recover is not confined by the prayers to the pleadings and evidence, the jury or the court sitting as a jury may find the set-off in favor of the defendant. And in considering a prayer granted which does not refer to the pleadings, and which is not affected by any other prayer referring to the pleadings, this court cannot consider the pleadings, but must determine the correctness of the prayer with reference to the evidence. South Baltimore Co. v. Muhlbach, 69 Md. 395, 16 Atl. 117, 1 L. R. A. 507; Home Friendly Society v. Robinson, 100 Md. 88, 59 Atl. 279.

As the evidence in this case did not justify the addition to defendant's prayers made by the court, there was error in granting the prayer as modified, and in overruling de fendant's special exception to such modification, and for such error, and the error in granting plaintiff's prayer, the judgment will be reversed and the case remanded for a new trial.

Judgment reversed, with costs, and cas remanded for a new trial.

(104 Me. 554) cover damages for alleged libels published by MACURDA v. LEWISTON JOURNAL CO the defendant company "of and concerning the plaintiff." The defendant company filed

(two cases.)

(Supreme Judicial Court of Maine. Dec. 16, a general demurrer to each declaration. The presiding justice, pro forma, overruled the demurrers, and the defendant excepted.

1. PLEADING (§ 18*)

TAINTY.

1908.)

-

DECLARATION CEB

It is a general rule of pleading that the declaration must allege the gravamen-the grievance complained of-with such precision, certainty, and definiteness that the defendant may know what to answer by his pleading and proof. [Ed. Note.-For other cases, see Pleading, Cent. Dig. 39; Dec. Dig. § 18.*]

2. PLEADING (§ 20*)-ALTERNATIVE ALLEGA

TIONS.

When material facts are stated in the alternative, so that it cannot be determined upon which of several equally substantial averments the pleader relies for the maintenance of his action, the pleading is bad for uncertainty. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 43; Dec. Dig. § 20.*] 3. DISJUNCTIVE ALLEGATION.

A disjunctive allegation as to the essence of the cause of action is as pure an example of uncertainty as can well be found, for it completely conceals from the defendant the ground upon which a recovery is claimed.

4. PLEADING (§§ 20, 48, 205*)—DISJUNCTIVE ALLEGATIONS-GENERAL DEMURRER.

The disjunctive form of allegation as to the essence of the cause of action has been uniformly regarded as fatally defective.

If from the declaration the cause of action does not sufficiently appear, the pleading is defective in substance.

When a declaration is defective because of the

disjunctive form of allegation used, the defect can be reached by general demurrer.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 43, 105; Dec. Dig. §§ 20, 48, 205.*]

5. PLEADING (8 20*)-DISJUNCTIVE ALLEGATIONS DECLARATION-SUFFICIENCY.

The plaintiff brought two actions against the defendant to recover damages for alleged libels. In one action the publication of the alleged libelous matter was stated as follows: "Said defendant did * * falsely and maliciously compose, print, publish and circulate, or cause to be composed, printed, published and circulated in a certain public newspaper * a certain scandalous and malicious libel of and concerning the plaintiff." In the other action the publication was stated as follows: "Said defendant did * * * falsely and maliciously compose and publish, or cause and prepare to be composed and published * * in a certain newspaper a certain malicious libel of and concerning the plaintiff." The defendant filed a general demurrer in each action. Held, that the declaration in each case was defective because of the disjunctive form of allegation used.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. 43; Dec. Dig. § 20.*]

(Official.)

The cases are sufficiently stated in the opinion.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, CORNISH, KING, and BIRD, JJ.

Arthur S. Littlefield, George C. Wing, and George C. Wing, Jr., for plaintiff. Symonds, Snow, Cook & Hutchinson, for defendant.

KING, J. Each action is to recover damages for an alleged libel, and is before the law court on a general demurrer to the declaration. In the first action the publication of the alleged libelous matter is stated in this form:

"Said defendant did * falsely and maliciously compose, print, publish and circulate, or cause to be composed, printed, published and circulated in a certain public newspaper a certain scandalous and malicious libel of and concerning the plaintiff."

In the other action the publication is stated in this form:

"Said defendant did * * falsely and maliciously compose and publish, or cause and prepare to be composed and published in a certain newspaper

* *

a certain scandalous and malicious libel of and concerning the plaintiff.”

It is a general rule of pleading, too well settled to need the citation of authorities, that the declaration must allege the gravamen-the grievance complained of-with such precision, certainty, and definiteness that the defendant may know what to answer by his pleading and proof.

A disjunctive allegation as to the essence of the cause of action is as pure an example of uncertainty and indefiniteness in pleading as can well be found, for it completely conceals from the defendant the ground upon which a recovery is claimed.

Such form of allegation has been uniformly regarded as fatally defective.

"A pleading is bad under any system of practice when it states material facts in the alternative, so that it is impossible to determine upon which of several equally substantive averments the pleader relies for the maintenance of his action or defense." 6 Ency. Pl. & Pr. p. 268; Chitty on Pl. (16th Two actions by Charles L. Macurda against Am. Ed.) p. 260; Stephen on Pl. 340; State the Lewiston Journal Company. Judgment. Singer, 101 Me. 299, 64 Atl. 586. for plaintiff, and defendant excepts. Exceptions sustained.

Exceptions from Supreme Judicial Court, Androscoggin County.

Two actions on the case brought by the plaintiff against the defendant company to re

In the last case cited this court recently decided that such form of charging in the disjunctive, in an indictment for libel, violates the rule of certainty in criminal pleading,

and is fatal on general demurrer. It is there taken as prima facie evidence of the facts resaid: cited, but not conclusive.

Writ of entry by the Washington County Railroad Company against the Canadian 2. MORTGAGES (8 374*)-RECITALS IN TRUS- Colored Cotton Mills Company. Case reportTEE'S DEED-CONCLUSIVENESS. While the power of sale given in a trusted to the law court for determination. Judgdeed or mortgage must be strictly followed in ment for plaintiff. all its details, the recitals in a trustees' deed to the effect that the conditions and terms of a sale prescribed in the instrument of trust have severally been complied with are to be

The declaration in the plaintiff's writ is as | dirt, and hand cars, tools, fixtures, and mafollows:

|