to enforce the collection of a specific tax or rental assessed, under an ordinance of the city of St. Louis, upon each of a number of telegraph poles of the defendant, erected along the streets of the city; and the right to enforce the collection of such tax or rental was denied by the defendant company upon the ground that such tax or rental was a mere privilege or license tax for the privilege of carrying on its business in the city, and that the assessment and attempted enforcement and collection of such tax were acts in violation of article 1, § 8, pars. 3, 7, of the constitution of the United States. This defense was not sustained by the court. It is true the defendant, as an additional defense, contended that the city, by its ordinance, has contracted with the defendant to permit the erection of certain telegraph poles in the streets of the city, in consideration of the right of the city to occupy and use the top cross arms of any such poles for its own telegraph purposes, free of charge. But the court, upon the facts of the case, refuted that contention, and cited and quoted from certain state decisions relied on by the defendant, only to show they had no application to the case. I do not find that there was anything decided in that case that supports the contention of the appellant here. Nor do I think that the supreme court has in any case established a doctrine that supports the contention of the appellant. I therefore think the motion for reargument should be overruled.

BALTIMORE TRACTION CO. v. WAL LACE.

(Court of Appeals of Maryland. April 21, 1893.)

STREET-CAR COMPANIES - NEGLIGENCE-PERSONS ON TRACK.

1. In an action for injuries sustained by being run over by a street car, evidence that plaintiff, a cripple, stopped to look and listen for a car before crossing the street, that she saw no car approaching, and that the one which struck her came around a curve, and passed over the intervening space to the place of the accident within a minute, warrants the jury in finding that plaintiff was not guilty of contributory negligence, since one minute may not be a sufficient time to enable a cripple, who had started to cross the street, to get out of the way of an approaching car.

2. Where street cars are propelled by agencies capable of attaining a speed of 10 or 12 miles per hour, it is the duty of the gripman, not only to see that the track is clear, but also to exercise a constant watchfulness for persons who may be approaching the track.

3. Even though plaintiff was guilty of contributory negligence in attempting to cross the track, the street-car company is liable for her injuries, if its servants could have avoided the accident by ordinary care after seeing her on the track, or after being able, by the exercise of care, to discover her there, or approaching it under circumstances of peril.

4. Where the evidence shows that, when plaintiff started to cross the street, the car was around the corner and not in sight, an instruction that plaintiff was guilty of contributory negligence if a reasonably prudent person could have seen the car approaching for a distance of one block from the place where plaintiff left the sidewalk is properly refused as irrelevant.

Appeal from Baltimore city court. Action by Charlotte Wallace against the Baltimore Traction Company for per sonal injuries sustained by being knocked down by one of defendant's cars while crossing its tracks. From a judgment in plaintiff's favor, defendant appeals. Affirmed.

Argued before ALVEY, C. J., and BRYAN, ROBERTS, PAGE, McSHERRY, FOWLER, and BRISCOE, JJ.

R. D. Morrison, H. P. Munnikhuysen and N. P. Bond, for appellant. Henry H. Goldsborough and Albert C. Applegarth, for appellee.

BRISCOE, J. Charlotte Wallace, a feme sole, while crossing a track of the Baltimore Traction Company, was knocked down by one of its cars, and sustained serious and severe bodily injuries. She brought suit against the company, and recovered a judgment for $750. The principal questions arising in the case are whether the accident was caused by the negligence of the defendant; and whether there was contributory negligence on the part of the plaintiff. It is necessary to examine the testimony in the record to ascertain what evidence was before the jury on these questions. The plaintiff testified that she was a domestic servant; and that at the time of the accident she was living at No. 827 Druid Hill avenue, aud that about 7 o'clock in the evening she was sent by her employer to get milk for tea, and that she proceeded to cross Druid Hill avenue to go to a store on the other side of the street; that while still on the pavement, close to the curbstone, she looked up and down the street to see if a car was coming, and that she also listened, but, neither hearing nor seeing one, she proceeded on her way across the street; and that she knew nothing more until she found herself lying on the pavement, and learned that she had been struck by a car. She further testified that the accident occurred in the month of February, when it was rather dark at 7 o'clock in the evening, and that there was a curve in the street abont half a block below the place where she lived, and that this curve prevented any one coming out of the house where she lived from seeing a car coming from Paca street until he or she got well out towards the curb, or until it got round the curve; that she was crippled, and could not walk very fast. In coming into Druid Hill avenue the car turned a corner at Paca street. The distance of this corner from the place where the accident occurred is not stated in the record. One of the witnesses testified that it took the car about a minute to run from Paca street to the place where the accident took place. The gripman in charge of the car testified that the full speed of the car was 10 or 12 miles an hour, and that it was going at about half speed,-perhaps a little faster; that he bed commenced to slack up because he was approaching Biddle street. Supposing, then, that the car was running at the rate of 5 miles an hour, it would go more than 146 yards in a minute. It was

a legitimate question, then, for the jury,

are

tiff was not prevented by any omission or neglect on the part of the defendant or its employes from having full opportunity to know of the approach of the car which caused the accident, and that if she had had such knowledge said accident would not have occurred, that then the accident which caused the injury was due to the contributory negligence of the plaintiff, and the plaintiff is not entitled to recover." The terms of this prayer rather misleading. The proper inquiry was whether the plaintiff, by due care, might have seen the approach of the car in time to escape injury. There was no propriety in asking the jury to consider whether the plaintiff could have seen a car at the distance of one block from the point where she left the sidewalk, unless the car was at that distance at the time she did leave the sidewalk. If the car was not at this distance, but was around the corner, in Paca street, this inquiry was irrelevant. If the car was not in sight, it could not be negligence on her part to attempt to cross; and if the car came upon her and caught her in the space of one minute, while she, a cripple, was crossing the track, we could not withdraw the question of contributory negligence from | the jury, and make it a question of law, without a calculation of chances too nice for the court to make. In our opinion the case was properly left to the jury, and the judgment ought to be affirmed. Judgment affirmed.

TYSON et al. v. WESTERN NAT. BANK OF BALTIMORE.

(Court of Appeals of Maryland. March 16, 1893.)

INDORSEMENT FOR COLLECTION-SUBMITTED CASE -JURISDICTION-RENDERING JUDGMENT.

1. An indorsement of a draft to a bank "for collection," accompanied by a credit of the amount of the draft upon the indorser's account with the bank, does not transfer to the bank the legal title to such draft, and a correspondent of the bank, who collects the draft for it, is responsible therefor to the indorser.

2. Where a controversy is submitted to the court upon a case stated, which fails to recite that it is submitted to the court for its opinion on the law, and that it is requested to render judgment in accordance therewith, the court has no jurisdiction to render judgment.

Appeal from Baltimore court of common pleas.

Action by Richard A. Tyson and Samuel S. Rawls, copartners trading as Tyson & Rawls, against the Western National Bank of Baltimore. Defendant obtained judgment. Plaintiffs appeal. Reversed.

Argued before ALVEY, C. J., and ROBINSON, BRYAN, IRVING, MCSHERRY, FOWLER, PAGE, and ROBERTS, JJ.

E. S. Miller and L. Bonsal, for appellants. Schmucker & Whitelock, for appellee.

BRYAN, J. Tyson & Rawls brought suit against the Western Bank of Baltimore. The facts, so far as they are material, are as follows: The plaintiffs, who were bankers in Greenville, N. C., for two

years before the transactions now in qu ́stion, kept an account with Nicholson & Sons, bankers in the city of Baltimore. They from time to time forwarded by mail, to Nicholson & Sons, drafts, checks, and notes of different persons, and they were indorsed in this manner: "For collection for account of Tyson and Rawls, Greenville, N. C." Nicholson & Sons would at once pass to the credit of Tyson & Rawls upon their ledger account, as cash, all checks and sight drafts, and would promptly inform them by mail of the amount of such credit. Tyson & Rawls were entitled to check against such credits as soon as they were entered, and Nicholson & Sons treated and used as their own property the sight drafts and checks so credited, in the same manner as if they had been deposited over their counter in the ordinary way; but Tyson & Rawls did not know, and did not inquire, bow Nicholson & Sons treated and dealt with such drafts and checks. If any of the sight drafts or checks which were credited as cash were dishonored by the parties on whom they were drawn, Nicholson & Sons would charge the account of Tyson & Rawls with them, and give them notice by mail. When promissory notes or time drafts were mailed to Nicholson & Sons they were not entered to the credit of Tyson & Rawls until they had been collected. There was no special agreement between these parties in regard to their relations with each other, except such as arose from their course of dealing. On the 9th of January, 1892, Tyson & Rawls forwarded to Nicholson & Sons a check of P. E. Braswell on the State Bank of Commerce, Hendersonville, N. C., for $400, payable to the order of Jarvis & Blow. They had discounted this check, and they indorsed it for collection for their account. Nicholson & Sons credited it to them as cash, and so informed them by mail, and indorsed it for value to the Western National Bank of Baltimore. The bank collected the check on or about the 24th of February, 1892, and it retained the proceeds as its own property. On the 11th of January, 1892, Tyson & Rawls forwarded to Nicholson & Sons a sight draft of J. C. Cobb & Bros. on Cobb Bros. & Gillian, of Norfolk, Va., for $800. They had discounted this check, and they indorsed it to Nicholson & Sons for collection for their account. Nicholson & Sons credited it to them as cash, and so informed them by mail, and indorsed it for value to the Western National Bank of Baltimore. The bank collected the draft on the 14th of January, 1892, and it holds the proceeds as its own. Nicholson & Sons failed on the 14th of January, 1892, subsequent to their indorsement of the check and draft to the Western National Bank; but they were insolvent at the time they received the check and draft from Tyson & Rawls, and, upon a proper investigation of the business, this fact would have been apparent to the surviving partner, who had charge of the affairs of the firm, but it was not known to Tyson & Rawls nor to the Western Bank. Nicholson & Sons had an account with the Western Bank, in which the check and draft were credit

ed as cash. They overdrew their account, and have never made it good. Tyson & Rawls never checked to the full extent of their credit with Nicholson & Sons, but always kept a balance in their favor, and, at the time of the failure, had a balance greater than the amount of the proceeds of the check and draft in question. It is admitted that both parties to this suit have acted in good faith in all of their dealings in the matters now in issue.

It is well settled that, when a customer of a bank deposits money to the credit of his account, the money becomes the property of the bank. The customer is creditor, and the bank is debtor, with all the ordinary incidents belonging to that legal relation. There is no fiduciary connection between them. The depositor parts with his money, and the bank contracts an obligation to pay such checks as he may draw, to an amount not exceeding the sum deposited. The consideration which the depositor receives for his money is the absolute and unconditional contract by the bank to pay his checks to the extent of his deposit, and the same rule obtains in the case of checks, drafts, and promissory notes, wherever, under the circumstances of the case, it is applicable, that Is to say, wherever the bank becomes the owner of the commercial paper, and the customer acquires the unconditional right to draw for the proceeds. When a check, draft, or promissory note is indorsed in blank, or to the order of the bank, and the proceeds credited to the depositor as cash, the bank becomes the owner of the paper by virtue of the indorsement, and, in case it is not paid at maturity, it has the ordinary remedies which belong to the indorsee of instruments of this character which have been dishonored. In the present case the check and draft were deposited with Nicholson & Sons with an indorsement in these words: "For collection for account of Tyson & Rawls." This indorsement was not adequate to pass to Nicholson & Sons the title to these papers. It has been so held by this court, and the supreme court of the United States, and other courts. In Sweeny v. Easter, 1 Wall. 166, it was said: "The words 'for collection' evidently had a meaning. That meaning was intended to limit the effect which would have been given to the indorsement without them, and warned the party that, contrary to the purpose of a general or blank indorsement, this was not intended to transfer the ownership of the note or its proceeds." In White v. Bank, 102 U. S. 658, it was said: "The plain meaning of it [the indorsement] is that the acceptor of the draft is to pay it to the indorsee for the use of the indorser. The indorsee is to receive it on account of the indorser. It does not purport to transfer the title of the paper or the ownership of the money when received. Both these remain, by the reasonable and almost necessary meaning of the language, in the indorser.' The same meaning was attributed to such an indorsement in Cecil Bank v. Farmers' Bank, 22 Md. 148. It would be superfluous to make further citations on this point. The indorsement did not

pass the title, and no other way has been shown in this case by which it could have been passed. Entering the amounts represented by these papers as cash, to the credit of Tyson & Rawls, is very far from having such an effect. It was the clear understanding that this was not an absolute and unconditional credit, but that it was to be charged back to the depositors in case the paper should not be paid at maturity. The paper was not sent to Nicholson & Sons to be discounted, or to be purchased by them, but it was intrusted to them as agents to collect it; and Nicholson & Sons could not treat it as a discount or purchase, except by making an agreement to that effect with their correspondents. It probably suited their mutual interest and convenience to make these qualified entries. The depositaries probably had sufficient confidence in the pecuniary ability of these depositors to give them a credit for the short time that would intervene before the maturity of sight drafts. It is a very common practice with bankers to deal in this manner with their customers who are in good credit. In the argument, this entry was likened to a collection of the commercial paper by the depositary. It was not in point of fact a collection, nor was it similar in its effects and consequences. When a collection is made, the proceeds are placed absolutely and unconditionally to the credit of the depositor, and he is no longer under any responsibility on account of the paper deposited, as that question has been irrevocably settled by payment. In point of fact, when collected, the paper has lost its vitality by the settlement and satisfaction of all rights which can arise from it. It would have been perfectly competent for Nicholson & Sous to agree with Tyson & Rawls that they would consider this paper as collected, pay them the amount of it, and relieve them from all responsibility on account of it. But no such agreement was made. Their contract was entirely different. If the paper had not been paid at maturity, it would have been charged back to Tyson & Rawls. It would be very unjust to hold Tyson & Rawls responsible for the contingency of nonpay. ment of these instruments, and at the same time to hold that they had lost all interest in them by a sort of constructive and metaphysical collection. It may be objected that, as the check and draft were actually paid at maturity, the contingent responsibility of the depositors has not accrued. But we must judge of legal rights by the state of the facts which exist at the time they arise, and not by events which occur afterwards. One cir cumstance existing at the time will show the value of the cash entry as a consideration for the transfer of the check and draft: Nicholson & Sons were insolvent when the deposit was made, and they knew or ought to have known their pecuniary condition, and, as a matter of course, that the credit entry of cash was a mere delusion.

Upon the whole, it appears to us that the title to these papers did not pass to Nicholson & Sons. There has been much

apparent conflict between the authorities on the questions which we have discussed, but the conflict is more in appearance than in reality. In most, if not all, of the cases which have held that when checks, drafts, and promissory notes have been deposited with a bank, and credited as cash to the depositor, the title to the negotiable paper has passed, it will be found that it was either indorsed in blank or made payable to the banker. On the face of the paper he was owner, and, in case it was dishonored, he had his remedy against the depositor as indorser. The opinion in Bank v. Hubbell, 117 N. Y. 384, 22 N. E. Rep. 1031, contains a very clear and convincing exposi tion of the difference between the rights of the banker in case of such deposit and one where the paper is indorsed for collection; and even in case where a sight draft was deposited, payable to the order of the bank, and was credited as cash, it was held by the supreme court of the United States that the title to the draft did not pass, because the accompanying circumstances showed that it was not so intended; and the court said that "the property in notes or bills transmitted to a banker by his customer, to be credited to the lat ter, vests in the banker only when he has become absolutely responsible for the amount to the depositor," and that “such an obligation, previous to the collection of the bill, can only be established by a contract to be expressly proved, or inferred from an unequivocal course of dealing. Railway Co. v. Johnston, 133 U. S. 566, 10 Sup. Ct. Rep. 390. The terms of the indorsement of the check and draft in this case gave legal notice to all persons receiving them that Tyson & Rawls were own. ers of the papers, and that Nicholson & Sous were merely agents for collection. Cecil Bank v. Farmers' Bank, 22 Md. 148. The Western Bank could therefore acquire no title by the indorsement made to it, and is responsible to Tyson & Rawls for the proceeds collected.

This case was submitted to the trial court upon an agreement signed by counsel, which begins in the following terms: "It is agreed by the plaintiffs and defendant that this case be tried before the court without a jury, and upon the following statement of facts, hereby agreed upon. If this is the substitution of the court for a jury, as the language seems to indicate, the rulings of the court ought to be brought before us by a bill of exceptions, just as they would be in a jury trial. This point has often been decided. Many of the cases on this question are collected in Trustees v. Browne, 39 Md. 160. More recent decisions are McCullough v. Biedler, 66 Md. 283, 7 Atl. Rep. 454, and Jackson v.Commissioners, 66 Md. 459, 7 Atl. Rep. 563. When the court takes the place of a jury, the circumstance that the facts were admitted can make no difference, because facts may be admitted before a jury as well as before a court, and in either case the law requires that the specific point or question to which objection is made must

be shown to us by a bill of exceptions. But parties may make a case stated for the opinion of the court. This is a very old practice, and is quite distinct from the right given by the constitution to try a case by consent before the court without a jury. In the former case the court is in the exercise of its inherent functions to decide questions of law submitted to it. All the facts must be stated, and before the act of 1888, c. 317, the court could not draw inferences from them, unless there was an agreement to that effect. In a trial before the court, sitting, by consent, without a jury, it deals with the facts in all respects as a jury would do. In a case stated it ought affirmatively to appear that it is submitted to the court for its opinion on the law, and that it is requested to render a judgment in accordance therewith. An examination of the numerous cases of this kind which appear in our Reports will show that this is the approved practice in civil cases. We are not now concerned with criminal procedure. In a comparatively recent case in this court,- Brinkley v. Hambleton, 67 Md. 169, 8 Atl. Rep. 904, -the printed volume does not show that this practice was followed; but the transcript of the record shows distinctly that the case was submitted to the court for its opinion, and that it was requested to enter judgment for plaintiff or defendant, according as its opinion might be; and there are other cases in which the printed volume omits this portion of the case stated, although contained in the transcript of the record. It has been adjudged so important that this court in Marine Bank v. Merchants' Bank, 12 Gill & J. 498, held that it was error in the trial court to render judgment without this provision. They say: "There being no provision in the case stated, as to judgment to be entered, after the court's opin ion is expressed on the question subinitted, the court can give no judgment, and_the cause must be remanded. See, also, Burgess v. Pue, 2 Gill, 291, and other cases. It is also customary to state that a right to appeal is reserved to each party, where an appeal is contemplated. From the peculiar form of the statement of facts in this case, we were in some doubt whether we could consider the questions presented, but as the counsel on both sides regarded it as a case stated, and so argued it, and as, although we feel the necessity of maintaining the established methods of procedure, we are always very unwilling to permit justice to be impeded by matters of forin when it can be properly avoided, we have thought that it was appropriate to express our opinion on the matters in controversy, according to the wish of counsel on both sides. Following the precedent in Marine Bank v. Merchants' Bank, we will reverse the judgment, and remand the case. As the parties now know our opinion, they can settle this controversy without further litigation if they elect to do so.

Reversed and remanded.