Action by King W. Riley against the New York, Philadelphia & Norfolk Railroad Company. Judgment for defendant. Plaintiff appeals. Dismissed.

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

Graham & Fitch, for appellant. Miles & Stanford, for appellee.

BOND, J. This action was brought in Wicomico county by the plaintiff against the defendant company to recover for personal injuries received by himself, and for damages to his horse and carriage, occasioned, as alleged, by the negligence of the defendant in causing his horse to take fright and run away while he was in the act of driving across the defendant's track near its station in the city of Salisbury. The wrongful act or negligence charged as the ground of the action is stated in the narr. as follows: "While the defendant's engine was standing still, and within about 15 feet of plaintiff's said horse, the defendant's servant then and there in charge and control of said engine voluntarily, negligently, carelessly, and unnecessarily, suddenly, and without notice or warning to the plaintiff, caused the discharge and escape of steam from the cylinders of said engine, whereupon and whereby the plaintiff's said horse became and was frightened and ran away," etc. The case was removed to, and tried in, Worcester county, with the aid of a jury, and at its close was withdrawn from the jury, upon an instruction from the court, given at the request of the defendant, that there was no legally sufficient evidence upon which the plaintiff could recover. The verdict and judgment being in consequence against the plaintiff, he has appealed, and brought up the single question of the correctness of this prayer.

It appears that the engine in question was lawfully on its track, engaged in shifting cars near its station, and was standing still, about 15 feet from the public street crossing, at the time plaintiff attempted to cross. Under these circumstances, it became the duty of defendant's servants in charge of said engine to exercise reasonable care and prudence to avoid Injury to the plaintiff, as the plaintiff, equally with the defendant, had the right to the use of the street or crossing. It was nevertheless the right of the defendant to make such noise as was usual and incidental to the movement and operation of its engine at the time and place, and in the work engaged. The above statement of the law is well settled. Duvall's Case, 73 Md. 516, 21 Atl. 496; Burkhardt's Case, 83 Md. 516, 34 Atl. 1010.

As the question raised brings before us all the testimony offered by the plaintiff, we will now proceed to examine it. The plaintiff in the first instance offered himself as a witness, and testified as follows: "That he drove to Salisbury, and came to where defendant's railroad track crossed East Church street, near

its passenger station. That as he approached the crossing an engine of the defendant was backing over the road. That, after the engine had crossed the road, it came to a stop about fifteen feet south of the crossing, and he asked a man who was standing at the crossing if it was safe to cross, and the man beckoned to him to come across, and about that time, or before, the engineer had jumped from the cab of the engine, and went to a store near where the plaintiff was sitting in his carriage, and heard him ask the question if he could cross, and told him he could do so. He started to drive across, and his horse took no notice of the escaping steam from the top of the engine, but that just as he got in front of the engine somebody in the engine opened the cylinder cocks, which were situated on the lower side of the engine, and the steam escaped, and hot water, which frightened the horse, and the horse ran away." This is the whole of plaintiff's testimony, as given by himself. The next witness was John A. Parker, who testified "that he heard the plaintiff ask if it was safe to cross, and saw the man beckon him to come over; that he saw plaintiff start over, and his horse did not seem to be scared until he got in front of the engine, and the cylinder cocks were turned on." George R. Bennett, the third witness, saw plaintiff "start over, and heard him ask somebody if he could cross, and that when he started the engine was blowing off steam at the top valve, and continued doing so while the plaintiff crossed over, and that the horse did not seem to be scared at all until he got opposite the engine, when the cylinder cocks were opened." The last witness to the accident was John Whaley, who testified that "the engine was standing still a little south of the street crossing, and that when the plaintiff got on the crossing they opened the side valves, and he saw something go up like that, making a hissing sound, and scared the horse." The only other witness for the plaintiff was Frederick Ridings, who was put up as an expert on engines in general, and testified that for 35 or 37 years he had "been running engines, and was familiar with the construction of locomotives and engines, and that the cylinder cocks of an engine are put there to let the water that condenses in the cylinder out in the cylinder cocks; that the cylinder cocks do not work automatically, but are controlled from the cab on the engine; that there is no particular time when it is necessary to open the cylinder cocks, unless the cylinder gets too much water in it, and you want to empty it; that when the engine is standing still there is no necessity at all for opening it, but when the engine is shifting or moving about there is sometimes necessity for opening the cylinder cocks to let the water out." The foregoing is the testimony in full as offered by the plaintiff. The defendant offered and proved by the engineer, in corroboration of plaintiff's testimony, that he was not in the cab of the engine at the time the accident occurred, and therefore could not have

turned on the cylinder cocks. The fireman testified, also without contradiction, that he did not open the cylinder cocks.

As seen from the testimony set out, the plaintiff utterly failed to show that the cylinder cocks were opened by any of the men in control of the engine, or that they, or any of them, were in the cab at all at the time the accident happened. There is no evidence that any one was in the cab, except from what might be vaguely inferred. Nor has the plaintiff shown that the noise made by the engine at the time was of an extraordinary or even unusual character, and not within its charter privileges. Among many others in this state, the case of Baltimore & O. R. Co. v. State, 71 Md. 599, 18 Atl. 969, very fully states the rule entitling a recovery in cases of this kind: "In matters of proof, we are not justified in inferring from mere possibilities the existence of facts. There must be proof of the essential facts to fix liability upon a party charged with the commission of a wrongful act. And even a scintilla of evidence or a mere surmise that there may have been negligence on the part of the defendant will not justify the court in submitting the case to the jury. There must be, in a case like the present, some reasonable evidence of well-defined acts of negligence, as the cause of the injury complained of; and therefore it is incumbent upon the plaintiff to give some affirmative evidence of the existence of such negligence before he can ask that the case be submitted to the jury. Whart. Neg. § 421, and cases there cited. Or, as clearly stated by the supreme court in Parrot v. Wells, Fargo & Co., 15 Wall. 524, 537, 21 L. Ed. 206: "No one is responsible for injuries resulting from unavoidable accident whilst engaged in a lawful business. A party charging negligence as a ground of action must prove it. He must show that the defendant, by his act or by his omission, has violated some duty incumbent upon him, which has caused the injury complained of. Juries cannot be allowed. however great the deference conceded to their province, to make mere conjecture or speculation the foundation of their verdicts. If there be no evidence upon which a rational conclusion may be based in support of the claim of the plaintiff, the case should be withdrawn from the jury; and to do this is a preliminary duty of the court." We do not think that the plaintiff has by his proof met the requirements of law as above announced, and consequently he must fail in his action, as properly determined by the court below. We think, besides, that the recent case of Burkhardt, in 83 Md., and 34 Atl., as before cited, is conclusive of this. But this appeal must be disposed of on another ground, and must be dismissed as having not been taken within two months from the rendition of the judgment. The judgment was rendered on the 23d day of May, 1899, and the order for appeal filed on the 26th of July, 1899. It follows that the appeal must be dismissed on appellee's motion, as the same was not taken

GIBBONS v. HEISKELL.

(Court of Appeals of Maryland. Nov. 23, 1899.). LIMITATIONS-TOLLING STATUTE.

Plea of limitations, in action against an administrator, is not overcome by allegation that, prior to death of intestate, plaintiff sued him in the district of C., the place of his business residence, on the same cause of action, and that he appeared to said action, and contested the claim by denying it, and that after his death said suit was stricken from the docket by the court, where it appears that, from accrual of cause of action to death of intestate, he lived in the state, in the county of P.

Appeal from circuit court, Prince George county.

Action by Joseph H. Gibbons against Jesse L. Heiskell, administrator of Peter H. Heiskell, deceased. PlainJudgment for defendant.

BOND, J. On the 16th day of January, 1899, the plaintiff, the appellant in this court, filed his declaration in assumpsit in the circuit court for Prince George county, Md., against the appellee, as administrator of Peter H. Heiskell, deceased, to recover for materials furnished, and work and labor performed, as alleged by him, for the defendant's intestate in his lifetime, accompanied by the particulars of the demands. On the same day of the filing of the narr., as appears from the record, the defendant appeared, and filed the three following pleas: (1) That his intestate never promised as alleged; (2) that the alleged cause of action did not accrue within three years before the institution of the suit; and (3) that the defendant had fully administered the goods of his intestate, etc. On the first and third pleas plaintiff joined issue, and replied specially to the second.

As the decision of the case turns upon the sufficiency of the replication, we set it out in full, which is as follows: "The cause of action set forth in the narr. herein first became due and payable in the month of July, 1883, and an action at law was brought thereon by the plaintiff against the said Peter H. Heiskell (now deceased), in his lifetime, on the 10th day of April, 1886, in the supreme court of the District of Columbia, by due personal service of its process on the said Peter in the action No. 26,844, at law, whereby the said court acquired and had full jurisdiction of the said subject-matter, and of the person of the said Peter, and the said Peter thereupon appeared in said court, and submitted to

its full jurisdiction in the premises, pleads to the cause, and joins issue with the plaintiff therein, and such action at law and issues joined still remained in the said court pending at the time of said Peter's death. Thereupon, subsequently, in a proceeding in said cause on behalf of the said plaintiff to have the same revived, and the said Jesse L. Heiskell, administrator of the estate of the said Peter, deceased, brought in as a party defendant, to wit, on the 24th day of February, 1894, the said supreme court of the District of Columbia finally struck from its docket the said action at law No. 26,844, and dismissed the same, for want of power in said court to compel the foreign administrator to come into said court in said cause; whereupon this present action was brought and begun one month and fifteen days after such termination of the former action aforesaid, and thirteen months and twenty-six days after the appointment of the said administrator in this jurisdiction to represent the estate of the said Peter." This replication was followed by a rejoinder, to the effect that "defendant's intestate, at the time of the making of the alleged contract sued on in this case, and the accruing of the alleged cause of action, to wit, August, 1882, was a citizen of the state of Maryland, residing in Prince George county, and continuously thereafter remained such citizen and resident to the time of his death, to wit, in the year 1893." To the rejoinder the plaintiff entered a demurrer, which, upon argument, was overruled, and judgment given in favor of the defendant. It is from this judgment that the appeal was taken, thus presenting purely a question of pleading that we have to decide.

No authorities are needed to the proposition that the effect of a demurrer is to bring before the court all the pleadings in the case, and that judgment will be given for the party who, on the whole, is entitled to it. It goes back to the first error in the pleadings. Hence our duty is to examine and pass upon the sufficiency of all the pleadings. The declaration and pleas are in the usual form, and we find no objection to them. The replication in question comes next in order, and we are clearly of the opinion that it is bad,-without the support of any principle of which we are aware. The most usual replication to the plea of the statute of limitations is a new promise or replication by way of traverse; and, so far as the facts of this case are disclosed to us by the record, no other course of pleading was open to the plaintiff. What are the facts set up by the replication to overcome the statute? Simply that, prior to the death of said Peter H. Heiskell, the plaintiff had sued him in the District of Columbia, the place of his business residence, on the same cause of action, and that he had appeared to said action, and contested the claim by denying it, and that after his death said suit was stricken from the docket by order of court. All the admissions of the record are to the effect that defendant's intestate was, at the

time of the making the alleged contract, in 1882, a citizen of the state of Maryland, and a resident of Prince George county, and that he remained such up to the time of his death, in 1893. There was no time, therefore, from the accruing due of the alleged debt, in July, 1883, he could not have sued in the appropriate court of Prince George county, and carried on his suit to a conclusion. Instead; he selected, of his own choice, another jurisdiction, with the result seen. In this he has no right to complain, since it was his own free act. The cases cited and relied on by the learned counsel for appellant do not, in our view, sustain the state of pleading adopted by him. They refer to an entirely different class of cases, where objection is made to the running of the statute on the ground of fraud of the adverse party, disability, etc. But in this case the plaintiff was under no disability whatever at any time to sue. There was nothing to restrain him, except his own disinclination, from the time he had a right of action. "The principle of law is undisputable that, when the statute of limitations once begins to run, nothing will stop or impede its operation. It never does attach, unless there be some person in being competent to sue, but, when that is the case, the legal bar to the recovery of the money will arise, unless legal steps are adopted to enforce a payment within the period prescribed by law." Ruff's Adm'r v. Bull (Brantly's Ed.) 7 Har. & J. 11; Hogan v. Kurtz, 94 U. S. 773, 24 L. Ed. 317. We entirely agree with the action of the court below, and, for the reasons given, will affirm the judgment. Judgment affirmed, with costs.

GUY v. STATE.

(Court of Appeals of Maryland. Nov. 23, 1899.) CRIMINAL LAW-INTOXICATING LIQUORSWITNESS- PRIVILEGE OF DEFENDANT SELF-CRIMINATING EVIDENCE-CROSS-EXAMINATION-UNITED STATES REVENUE LI

CENSE.

1. A defendant, on trial for selling intoxicating liquor in violation of the local option law, may be asked, on cross-examination, if he has a United States revenue license to sell intoxicating liquor; as defendant, by going upon the stand to testify, waives the right given by Bill of Rights, § 22, and Const. U. S. Amend. 5, to refuse to testify to matters against himself, and that will criminate him.

2. Where accused goes upon the stand to testify in his own behalf, he may be cross-examined as to any matter pertinent to the issue, whether he testified upon that matter in his direct examination or not.

3. In a prosecution for violating the local option law, where defendant testified that he had no United States license to sell liquor, evidence that he had such license is admissible, as Code Pub. Loc. Laws, § 232, art. 13, expressly provides for the admissibilty of such evidence, and as it would be admissible in absence of such section.

Appeal from circuit court, Harford county; James D. Watters, Judge.

George Guy was convicted for unlawfully selling intoxicating liquors, and he appeals. Affirmed.

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

John S. Young and I. I. Archer, for appellant. Gaether, Atty. Gen., W. W. Preston, and Geo. L. Van Bibber, for the State.

FOWLER, J. The defendant was indicted for unlawfully selling intoxicating liquors contrary to the local option law of Harford county. He was tried before a jury, found guilty, and sentenced to fine and imprisonment.

The state offered testimony by a competent witness tending to prove that during the month of March-some three or four months before the trial--the witness purchased whisky from the defendant. The state then rested. In order to meet the case thus made, the de fendant went upon the stand of his own mo tion, and testified in his own behalf, to the effect that he did not sell any whisky as testified to by the prosecuting witness. Upon cross-examination by the state, the defendant was asked if he had a United States government or internal revenue license to sell spirituous or fermented liquors in Harford county. To the asking of this question the defendant objected, on the ground that the answer might criminate him, but his objection was overruled by the court, and the question was allowed to be asked, and the defendant was required to answer it. His answer was that he had not such a license for the sale of either spirituous or fermented liquors in Harford county. This ruling of the court forms the first exception. During the further progress of the trial the state called a witness in rebuttal, who testified that he had been a clerk in the internal revenue office for this state until the fall of 1898, and that the defendant had, at the time inquired of, an internal revenue li cense for the purpose above mentioned. The objection of the defendant to this question was overruled, and the witness was permitted to answer that the defendant had such a license to sell spirituous liquors in Harford county for one year, expiring on the 1st of July, 1899. This ruling constitutes the second exception. The defendant has appealed. We will briefly consider these two exceptions in the order in which they appear in the record.

1. That a witness cannot be compelled to answer a question, the answer to which it reasonably appears "will have a tendency to expose him to a penal liability or to any kind of punishment or to a criminal charge," has long been settled. It is also equally well settled that this "is a personal privilege of the witness, and must be claimed by him upon oath, and that, therefore, neither the party to the cause nor the counsel engaged will be permitted to make the objection." 1 Greenl. Ev. § 451. But while this general rule would undoubtedly control, and is recognized by our courts in the case of a witness who is summoned and compelled to testify (2 Poe, Pl. &

Prac. 278), we do not think it should be allowed to prevail when, in a criminal case, the accused voluntarily testified in his own behalf. To apply the general rule to a case like the one before us seems to us not only contrary to reason, but against the weight of authority as well. In Maryland, as in other states, the person charged with a crime may by statute, at his own request, but not otherwise, be deemed a competent witness. And it would seem but right that, if a person so charged voluntarily becomes a witness in his own behalf, he should be held to have waived the privilege and protection which would otherwise have been afforded him by section 22 of the bill of rights and by the fifth amendment of the constitution of the United States. If he may tell the jury just so much as may make in his favor, and keep back all that may make against him, on the ground that the facts so withheld may incriminate him, the statute which was passed to aid in ascertaining the truth would undoubtedly be used most successfully by criminals to conceal it, and thus enable them to deceive the jury and the court, and to escape punishment. In 8 Enc. Pl. & Prac. 147, it is said that "as a general rule, when the accused takes the stand in his own behalf, he changes his status from that of defendant to that of witness, and is subject to cross-examination as other witnesses. Consequently he waives his privilege of refusing to give evidence against himself as to all matters within the scope of proper cross-examination." This rule prevails in many of the states. It was said in Roddy v. Finnegan, 43 Md. 502, a civil case growing out of an alleged criminal act of one of the parties, although the question of privilege was not there presented, that, where one is both party and witness for himself, he must be held, on cross-examination, as waiving the privilege, as to any matter about which he has given testimony in chief. Having testified, said the court, to a part of the transaction in which he was concerned, he is bound to state the whole. But in Massachusetts, New York, Illinois, and Connecticut the broader, and we think the better, rule has been adopted, namely, that, when the accused voluntarily becomes a witness in his own behalf, "he may be cross-examined concerning any matter pertinent to the issue on trial, regardless of the extent of the direct examination." The object of statutes like ours, permitting the accused to testify in his own behalf, it is said in the case of Com. v. Nichols, 114 Mass. 287, "is not to protect or assist criminals, but to promote the discovery of the truth, so far as can be done without infringing the constitutional rights of the witness.

But if he puts himself on the stand as a witness in his own behalf, and testifies that he did not commit the crime imputed to him, he thereby waives his constitutional privilege, and renders himself liable to be cross-examined upon all facts relevant and material to that issue, and cannot refuse to testify to any facts

which would be competent evidence in the case if proved by any other witness." And to the same effect are the cases in New York. In the case of People v. Tice (1892) 131 N. Y. 651, 30 N. E. 494, annotated in 15 L. R. A. 669, it is said "that, if the constitutional protection can be interposed at any point in the examination, there could be no logical reason why it might not be invoked to protect the accused against answering questions affecting his credibility, and also to prevent an examination as to relevant facts, or, indeed, as to any fact, whether pertaining to his testimony in chief or not." This broad view of the scope of the constitutional protection seems, said the court, "to be the one entertained by Judge Cooley (Const. Lim. [6th Ed.] p. 384), but it is not in harmony with the decisions in this state, and does not seem to us to be sound in principle." "This statute," continues the court, "permits the accused to be a witness. This must mean a witness generally in the cause, and not that he may be a witness as to such matters only as to which he may choose to testify." See, also, Spies v. People, 122 Ill. 255, 12 N. E. 865, and 17 N. E. 898; State v. Griswold, 67 Conn. 290, 34 Atl. 1046, 33 L. R. A. 227, and Clark v. Jones, 87 Ala. 474, 6 South. 362, which also criticise and disapprove of Judge Cooley's view. We refer, without citing them, to a very full collection of authorities in note 5, pp. 147, 148, and note 1, pp. 151, 152, 3 Enc. Pl. & Prac., which latter fully sustain the rule laid down in the text, which we have already quoted, viz. that the accused may be cross-examined concerning any matter pertinent to the issue on trial, regardless of the extent of the direct examination.

That the evidence sought to be elicited from the defendant by the question objected to was pertinent is perfectly clear. The act under which the defendant was indicted, the socalled "Local Option Law of Harford County," (section 232, art. 13, Code Pub. Loc. Laws),expressly provides that it shall be lawful for the state to prove, in prosecutions for the violation of that law, that the defendant has paid a special tax to the United States government, under the internal revenue laws, for a license to sell liquors in Harford county, and that the payment of said license tax, and the application for registry of his business as a retail dealer in liquors, "shall be prima facie evidence that the party so paying and applying is engaged in the sale of intoxicating liquors within the limits of Harford county." But, independent of the statute just quoted, it is said that, in prosecutions like this, "the fact that the defendant has paid a special tax as a retail liquor dealer, under the laws of the United States, is admissible in evidence for the purpose of showing what his business is, or that he keeps liquor for sale, or, generally, the question of intent." Bl. Intox. Liq. 509. It follows, therefore, that the question objected to was proper on the crossexamination of defendant, and that no error

was committed in requiring him to answer it. 2. What we have already said disposes of the second exception, which was taken to the ruling of the court admitting the testimony of the witness Fred W. Baker, who contradicted the defendant, and testified that the defendant had in March, 1899, an internal revenue license to sell liquor in Harford county for one year, expiring 1st July, 1899. The evidence thus offered directly contradicted the statement of the defendant upon a material issue, and was therefore clearly admissible. No objection was made at the trial to the competency of the witness, and no such question can now be considered. Finding no error in the rulings of the court, the judgment appealed from will be affirmed. Judgment affirmed.

RICHARDSON v. STATE.

--

(Court of Appeals of Maryland. Nov. 24, 1899.)
CRIMINAL LAW-IDENTIFICATION EXPERI-
MENTS-IMPEACHMENT-COLLAT-
ERAL MATTER.

1. Where witnesses testified they were sitting on a bench at a station, and five minutes after the shooting, which was at 8 o'clock at night, a person ran down the road, and, as he passed under the street lamp, which was 94 feet from them, they recognized accused, whom they knew well, evidence of witnesses with good eyesight that they were on the same bench 25 days later at 8:45 o'clock on a clear evening, with the same lamp in the same condition, and that two persons known to them passed under the lamp separately, and neither could identify them, and that, in their opinion, it would be impossible to distinguish accused from a witness who had testified that it was he who had passed under the light, instead of accused, was admissible.

2. A prosecuting witness, having denied offering a bribe to other witnesses to induce them to testify or not to testify, may be impeached on such issue, since such denial is not collateral to the issue.

Appeal from circuit court, Washington county; Edward Stake, Judge.

Harold B. Richardson was convicted of assault with intent to kill, and he appeals. Reversed.

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

M. L. Keedy and Jos. W. Wolfinger, for appellant. Atty. Gen. Gaither, C. D. Wagaman, and C. A. Little, for the State.

PEARCE, J. The appellant was convicted in the circuit court for Washington county of assault with intent to kill Arthur L. Towson by shooting him with a pistol. During the course of the trial three exceptions were taken by the traverser to the exclusion of testimony offered by him, and these exceptions present the only questions for our determination. We will state such of the facts as are necessary to a proper understanding of the disposition of these exceptions. The shooting occurred at 10 minutes after 8 o'clock on the evening of May 2d, in a lane in Smithburg, and there was no one present but Towson and