should govern himself accordingly. Later in the same day it wired him that it would "most likely reinsure in Hartford." On the 13th it wrote him a letter, saying in effect that everything was in confusion; that they were trying to straighten matters out; that they were not broke, and were trying to get the best terms for reinsurance. On the 23d the company wired to Tuttle: "Home cannot protect policy holders." During the days immediately following the fire the company received from Tuttle a number of unpaid telegrams. The banks being closed, and the company's funds locked up in the fire ruins, its officers refused to pay for the telegrams, and therefore their contents are unknown, but the fact that they were sent shows an effort on the part of Tuttle to communicate promptly with the company. As soon as the receiver got well into the saddle, he began to send requests to Tuttle to remit the balance in his hands to the credit of the company, but got no reply from him until March 26th, when he wrote to the receiver as follows: "Replying to your letter asking for a remittance, beg to advise that it has been utterly impossible for us to make any collections since the Baltimore Fire. In fact, every agent has a claim against the Home for more than the amount of their balances, and my claim against the Home will be an exceedingly large one, just the amount I will advise you as soon as I can get in the canceled policies and make an account."

Early in May, 1904, the receiver sent Mr. Thos. E. Bond, an experienced accountant and insurance adjuster, to Syracuse to procure from Tuttle a statement of his accounts with the company. On May 9th Mr. Bond reached Syracuse and went to Tuttle's office to see him about the matter. Tuttle assigned as the reason for not having already sent the accounts that he had been very busy and that there was a large volume of claims for return premiums, some of which were still coming in, and he insisted that, when they had all come in, the balances of the account would be in his favor. He without any objection, at Mr. Bond's request, not only gave him access to his books of account, but permitted him to take such of them as he desired overnight to the hotel at which he was stopping. Tuttle also referred him to the bookkeeper of the agency and she gave him such assistance as he asked for. Mr. Bond found that the ledger and others of the books had not been brought down to date, but he made up a statement of the account, as well as he could, according to which Tuttle was largely in debt to the company. He went with it to the office of Tuttle and showed it to him. Tuttle expressed great surprise, and said Bond had evidently not gotten all of the return premiums, that they could not have been put on the books, and promised to meet Bond that afternoon and take the matter up with him and give his whole time to it. When Bond went to Tuttle's office in the

afternoon, he was informed that the latter had been unexpectedly called to New York City, and would be gone for some days. Mr. Bond then returned to Baltimore. In the latter part of May, or some time in June, Tuttle sent to the receiver a statement showing a balance against himself of $3,561.19. This was followed at a later day by another statement, claiming an additional credit of $3,810 for alleged special services and expenses of himself and two special agents and a clerk during the two weeks following the Baltimore fire in visiting subagents in his territory, and otherwise attempting to hold the business together until the company could arrange to reinsure its risks.

The defendant filed a bill of particulars in the shape of an account with its eighth plea, which by way of equitable defense alleged that upon a proper accounting the balance of accounts between the company and Tuttle was in his favor. This bill of particulars charged Tuttle with the same monthly balances, within a few dollars as those charged against him in the account filed with the declaration, but it claimed credits in his favor mainly for return premiums, unpaid agents' balances, and the special services already mentioned, amounting, in the aggregate, to more than the total debits and showing a balance in his favor.

or

The evidence for the plaintiff, of which we have stated the substance, was not in our opinion legally sufficient to prove dishonest acts on the part of Tuttle amounting to larceny embezzlement. It is clear that under both the agreement and course of dealing between him and the company he was entitled to "a credit" of three months on his monthly balances. The ascertainment of the monthly balance under their course of dealing did not prove that the amount of the balance has actually come to his hands. It merely made him liable under the contract to pay that sum at the end of three months thereafter, subject, however, to the contingency of its being wiped out in whole or in part by the subsequent return by him to policy holders of unearned premiums. The company by the grant to him of this three months' credit established the relation of debtor and creditor between it and him, and authorized him to apply to his own use during that time so much of the balance charged against him as came to his hands, and relied upon his obligation under their contract to repay to it a like amount at the end of the period for which the credit was given. Milwaukee Theater Co. v. Fidelity Co., 66 N. W. 361, 92 Wis. 412; McElroy v. People, 202 Ill. 473, 66 N. E. 1058. If, at the end of the three months, he was unable to pay or simply failed to pay what was due, that fact without proof of some fraudulent disposition of the money animo furandi would not have sufficed to convict him of larceny or embezzlement of it. If the company had required him to deposit the money to its cred

it and draw upon it as its agent and for its use, and thus intrusted him with the mere custody or possession of it, and he had applied it to his own use, the case would have been different. The mere failure to pay a debt without compulsion even by one having the financial ability to pay it is neither larceny nor embezzlement. Tuttle neither concealed nor denied the amount of the "balance" prima facie due by him. He admitted them, and freely gave the company's accountant access to and temporary possession of his books of account for examination, but asserted that his claims against the company exceeded his debits. Nor are the claims made by him, whether excessive in fact or not, of such nature that their assertion affords prima facie evidence of fraud on his part. Such of the claims as are for return premiums, and they constitute the greater part of them, do not suggest fraud, for they were contemplated and provided for by the agreement between the parties, and the failure of the company after the fire made it practically certain that the amount of those claims would be unprecedentedly large in the aggregate. The claim made by Tuttle for special services and expenses incurred in an alleged effort to hold the business together after the fire are unusual in their nature, but the unusual severity of the Baltimore fire and the uncertainty for a time as to its effect upon the continued existence of the company present a situation under which the assertion of claims of that character does not raise a prima facie presumption of dishonesty amounting to larceny or embezzlement. Tuttle was undoubtedly dilatory and perhaps indifferent in sending in his accounts after the fire, and the failure on his part to keep his engagement- with Mr. Bond at Syracuse was discreditable to him, but, in view of the fact that he then asserted and still asserts the right to credits for returned premiums and expenses in excess of the balances against him, those circumstances, if they had been found by the jury, would not have been legally sufficient to warrant the finding of a verdict for the plaintiff under the bond sued on in this case. The learned judge below, in our opinion, committed no error in granting the defendant's prayer.

We will not add to this opinion, already long enough, a discussion in detail of the rulings on evidence brought up by the other exceptions. It is sufficient to say that we find no reversible error in them. The evidence referred to in the first and second exceptions, which was excluded because it tended to vary the terms of the letter of April 4, 1900, from G. Harlan Williams to Tuttle, which the court below treated as the written contract between him and the insurance company, should have been admitted, as Mr. Williams himself testified that the letter was not intended to constitute a contract, and the other evidence corroborated him in that respect. We do not, however, regard the court's ac

tion on these exceptions as presenting reversible error, as we have treated that evidence as properly in the case, and have considered it in arriving at the conclusions. to which we have given expression in our opinion.

The motion made by the appellee to dismiss the appeal because the order extending the time for signing the bill of exceptions was not passed until after the expiration of the term cannot prevail. It appears from the affidavits of the counsel for the appellant and the certificate of the trial judge that the counsel for the appellee, when the bills of exception were presented to them after the expiration of the term, examined them and made sundry changes in them, and were present in court when they were signed, and participated with appellant's counsel in discussing them before the judge who allowed further changes to be made in them at the request of the appellee's counsel, and that no protest or objection was then made on behalf of the appellee to the signing of the bills. Under these circumstances, it is too late for the appellee to raise for the first time in this court the objection that the exceptions were signed too late. Thomas v. Ford, 63 Md. 346, 52 Am. Rep. 513; Edelhoff v. Horner-Miller Mfg. Co., 86 Md. 605, 39 Atl. 314.

The judgment appealed from must be affirmed.

Judgment affirmed, with costs.

BRISCOE, J. On October 22, 1903, the wife (appellee) filed a bill in circuit court No. 2 of Baltimore City against the husband (appellant) for divorce a mensa et thoro, on the ground of desertion and cruel treatment. To this bill an answer was filed by the husband, denying the allegations set out therein, and charging the wife, since her marriage with him, with the crime of adultery. On the 9th of January, 1904, the husband filed a cross-bill against the wife for a divorce a vinculo matrimonii, for adultery with one Michael J. Dellahunty of Baltimore City, between the 1st day of August and the 11th day of October, 1903, and with divers other

men who are unknown to him. The bill also charged illicit carnal intercourse with other men unknown to the plaintiff at the time of the marriage. These allegations were denied by the wife in an answer to the bill. A replication was filed to each bill, and the case was heard on the bills, answers, and proof. Both bills were dismissed by the court below, and from the decree dismissing the cross-bill an appeal has been taken.

There is no appeal from the decree dismissing the original bill. The rules of law applicable to this class of cases cannot admit of dispute, as they have been settled by numerous decisions of this court. They are clearly and fully stated in Kremelberg v. Kremelberg, 52 Md. 553, and Shufeldt v. Shufeldt, 86 Md. 529, 39 Atl. 416. The proof in the case at bar is quite voluminous, and, as usual in these cases, is somewhat contradictory. It would not aid the conclusion we have reached to review it in detail, or to prolong this opinion by attempting to reconcile the glaring conflicts in the testimony of some of the witnesses. The sole question on the appeal is whether the charge of adultery alleged in the cross-bill is supported by the testimony, and we shall state only the material parts of the testimony bearing on this question.

The appellant and appellee were married on the 15th day of January, 1903, and on the 22d of October of the same year a bill for divorce was filed by her. They lived together as man and wife until the 11th of October, 1903, when he left his home, and took with him his household effects. The basis of the suit rests upon certain letters which the busband found on his wife's bureau, on his return home on the 11th of October, 1903. Two of the letters were from Dellahunty to the appellee, dated October 1, 1903, signed "Del," and addressed the wife as "dearest." They contain expressions of the following import: "I, however, will be at the meeting place designated Saturday evening. I would much prefer to be with you, and you alone. I wish you would get away to-morrow evening, Friday, but I suppose you can't, for I want to see you and be with you more than I can tell you. Let me know by return messenger if you can see me to-night, if only for a moment, as per our arrangement of last evening. Let me know where and the exact time. Will send you flowers this afternoon, accept them with my fondest hopes for the future." The wife's letter to Dellahunty, is dated the 11th of October, 1903, was sealed, and contains such expressions as, "Dearest Della. Sweet letter received. Meet me at our same place (M. & N.) at 8 p. m." "Excuse hasty note this time as it might be dangerous." "Do not fail to come." "Lots of Love, I am, Yours, Leonore." In addition to these letters, there was testimony by the wife that she had met Dellahunty on September 30th, in the afternoon and again that night, and on the 1st of October. There was also proof that the

appellee allowed men to visit her home in the absence of her husband, and that she had been seen with men in the bedrooms on the second floor, and in the parlor of the house, under circumstances that conclusively established her guilt. Police Officer Pease testified that he knew the appellee before her marriage, that she lived with her sister, and they entertained men in their bedroom at night, drinking and otherwise carousing. In answer to the question, What conclusion did you form as to the character of the appellee and her sister?" he said: "Well, I would not think very much of the appellee, knowing her sister was a kept woman and she knew it, at the time." It is not necessary to state here with any further particularity the proof contained in the record which supports the appellant's case.

It is sufficient to say that the letters heretofore referred to, in connection with the other proof in the record before us, sustain and establish the charge of adultery against the appellee. It is impossible, as was said by this court in Kremelberg v. Kremelberg, 52 Md. 553, to reconcile the testimony before us with the innocence of the appellee, and we must therefore infer her guilt. In Shufeldt v. Shufeldt, 86 Md. 528, 39 Atl. 416, it is said: "It is not necessary in cases of this character that there be any one act proven which is conclusive of guilt; but the court must consider the opportunity for the commission of the act, the conduct of the parties and all circumstances, and then determine from the whole testimony whether it should convince unprejudiced and cautious persons of the guilt of the parties." And in Burgess v. Burgess, 4 Eng. Eccl. 529, it is said: "It is not necessary to prove the fact of adultery at any certain time or place, modo et forma, loco et tempore. It will be sufficient if the court can infer that conclusion, as it has often done between persons living in the same house, though not seen in the same bed, or in any equivocal situation." In the case at bar, the conduct of the parties, the secret correspondence between them, lead to the fair inference and conclusion that the relations between them were not innocent, apart from the positive testimony of the witnesses Handy and Geddes, as to improper relations between the wife and other men. We find no sufficient evidence to support the charge of infidelity on the part of the husband which would constitute a bar to the relief now asked by him. The testimony upon this branch of the case is too uncertain and contradictory to establish an inference of guilt. On the contrary, it is positively denied by the testimony of the husband, and not sustained by the facts and circumstances of the case. Nor do we find the contention of the appellee that there has been forgiveness or condonation of the wife's guilt by the husband supported by the evidence. He abandoned his wife as soon as the letters were discovered, and did not again return to her.

We are therefore of the opinion, after a careful consideration of all the testimony in the record, that the charge of adultery against the wife has been established, and, for the reasons stated, the decree of the circuit court No. 2 of Baltimore City will be reversed, and the cause remanded, to the end that a decree granting a divorce a vinculo matrimonii to the husband may be passed.

Decree reversed, and cause remanded; costs to be paid by the appellee.

(79 Conn. 676)

BLAKE v. BROTHERS. (Supreme Court of Errors of Connecticut. May 1, 1907.) OFFICERS

MODERATOR-PER

ELECTIONS
SONAL LIABILITY FOR OFFICIAL ACTS-RE-
JECTION OF VOTE.

A moderator of an electors' meeting being a quasi judicial officer is not personally liable in damages to an elector for any error in rejecting his ballot; no malice or bad faith being shown.

[Ed. Note. For cases in point, see Cent. Dig. vol. 18, Elections, § 53.]

Appeal from Superior Court, New Haven County; Milton A. Shumway, Judge.

Action by Henry T. Blake against Frederick J. Brothers. From a judgment for defendant, plaintiff appeals. No error.

Action for damages against the defendant for depriving the plaintiff of his rights as an elector brought to the superior court for New Haven county. The complaint states the following facts: The plaintiff at the state election held November 6, 1906, secured an official ballot, duly issued by the Secretary of State in blank, and wrote thereon in his own handwriting the names of those persons for whom he desired to vote for Governor and other state officers, each under its appropriate title. He sealed the ballot up in an official envelope duly indorsed, as the statute requires, and deposited it upon the ballot box in the First Ward in the city of New Haven, where he was entitled to vote, and it was received by the moderator and duly placed in the box. During the counting of the ballots, after the polls were closed, the defendant, who was moderator of the meeting in said ward, discovered that the plaintiff's ballot had upon it certain identifying marks (in addition to the plaintiff's handwriting) within the meaning of the statute which makes ballots void therefor. No explanation was offered or suggested with regard to said marks. The defendant, as such moderator, on account of said marks and also because said ballot was in writing and not printed as required by law, refused to count it or permit it to be counted, and rejected it as a void ballot, and caused it to be placed in a package of rejected ballots and sealed up and deposited with the town clerk as the law requires concerning rejected ballots. This action of the defendant is alleged to have deprived the

plaintiff of his rights as an elector, to his damage. The defendant demurred to the complaint (1) because it appears from the complaint that the plaintiff's ballot was not printed, but was wholly in his own handwriting; (2) because it appears that the ballot had upon it, in addition to the handwriting of the plaintiff, certain other identifying marks within the meaning of the statute making ballots void therefor; (3) the defendant is not liable to the plaintiff in damages because it appears from the complaint that in rejecting the plaintiff's ballot the defendant was acting in accordance with the statutes relating to the conduct of elections and prescribing the moderator's duties as to the counting and rejecting of ballots; and (4) because in rejecting the plaintiff's ballot the defendant was acting in a judicial or quasi judicial capacity, and therefore is not liable in an action for damages, no malice or bad faith on his part being alleged.

The court, Shumway, J., sustained the demurrer and rendered judgment for the defendant. The plaintiff appealed assigning as error the sustaining of the demurrer.

error.

No

Henry T. Blake and George D. Watrous, for appellant. Leonard M. Daggett, Livingston W. Cleaveland, and Clarence W. Bronson, for appellee.

THAYER, J. (after stating the facts). The complaint does not allege, and the plaintiff in his brief states that it is not claimed, that the defendant acted maliciously or that he overstepped the duties imposed upon him by statute. The plaintiff's contention is that the statute under which the defendant acted violates the Constitution of the state in several respects, and especially in that it deprives the duly qualified elector of the right of free suffrage, including the right to vote a written ballot and the right to otherwise so mark his ballot that it may indicate who cast it, and that being thus in violation of the Constitution the statute is no protection to the defendant, although he acted in good faith and without malice.

The duties which the statute imposed upon the defendant as moderator of the elector's meeting were of a quasi judicial nature. He was called upon to determine a variety of important and difficult questions, involving judgment and discretion and some of which might require the hearing of testimony. An examination of the numerous cases referred to in the plaintiff's brief, in which some of these questions were brought before this court by parties claiming to have been aggrieved by rulings of such moderators, show the importance and difficulty of the questions upon which the defendant was called to rule as well as their quasi judicial character. The defendant was therefore acting as a quasi judicial officer in doing the acts now complained of by the plaintiff. In Perry v. Reynolds, 53 Conn. 527, 535, 3 Atl. 555, we held that such