the ratification of said arrest by defendant, and the plaintiff is not entitled to recover unless the jury find from the evidence, as hereinafter set forth, that the defendant had previously expressly authorized or directed said arrest. and "that if the jury find that, when said Henning [the collecting clerk] was about to go to plaintiff's place of business to present the draft referred to, the cashier of defendant, from personal feeling or ill will against plaintiff, or from some unlawful motive, instructed the said Henning or the officer to arrest the plaintiff, and to so arrest him without regard to whether the plaintiff should give any just ground for arrest or not, and without regard to whether or not, in case of arrest, there should first be procured a warrant or not, then the plaintiff is entitled to recover. It is contended by the appellant that there is a total absence of any proof to justify these instructions, in so far as they leave it to the jury to find that the defendant or its cashier authorized or directed the arrest of the plaintiff, and with this view we agree. The officer who made the arrest says he had no orders from the defendant, but that his superior officer ordered him to go to or near plaintiff's place of business, and "see that there were no violations of the law committed." The defendant's collecting clerk says: "The cashier gave me the draft, and told me to present it to the defendant, and not to allow it to go out of my hands, but to present it for payment; to let him see it; to let him see everything that was on it; but to be as polite as possible. That he did not want to have any trouble with defendant. He said there was a detective officer to gu along. He said, 'This man is an officer, and he will protect you.'" And the cashier himself swears he gave no orders or instructions as to arresting the plaintiff. He went to the office of the marshal of police, and informed that officer that he wanted to send the defendant's runner to plaintiff's place of business, and apprehended he might be assaulted by the plain. tiff, and requested that an officer might be sent along to protect the runner. We are unable to find any evidence in the record which measures up to the strict requirements of the settled rule in a case like this, for before the defendant can be held liable "it must be shown, either that there was express precedent authority for doing the act, or that the act has been ratified and adopted." Carter v. Machine Co., 51 Md. 298. The jury were instructed, however, without objection, that there was no ratification in this case, and, as we have seen, there is no evidence of any express precedent authority. If we should assume that the arrest was made by the express authority or order of the defendant, or was subsequently ratified by it, or by some officer having power to bind it, the authorities cited by appellee would have some application. In the case of Warner v. Riddiford, 4 C. B. (N. S.) 202, the defendant took the officer with him to the plaintiff's house, and stood by while the officer made the arrest. In Lynch v. Railway Co., 90 N. Y. 77, it was held that the gate keeper was acting within the scope of his

authority when he made the arrest. Here, however, no officer of the defendant bank, who could bind it without express authority, was present when the arrest was made, for, as we bave said, the court below instructed the jury, without objection, that the runner of the defendant who ordered the arrest had no such implied authority, and, as we have seen, there was no express authority. It follows that the judgment must be reversed, and, inasmuch as the plaintiff has failed to make out any case whatever against the defendant, a new trial will not be awarded.

Judgment reversed without a new trial.

BURK V. MAYOR, ETC., OF CITY OF BALTIMORE.

(Court of Appeals of Maryland. June 20, 1893.) MUNICIPAL CORPORATIONS - ORDINANCE OPENING STREET-REFERENCE TO MAP-EVIDENCE.

1. An ordinance to condemn land and open a street need not describe the proposed street minutely or accurately, but may refer to a plat; and, if there be a variance between the courses and distances set forth in the ordinance and those in the plat, the latter will govern.

2. On a motion to quash proceedings for opening a street in the city of Baltimore, where the ordinance designated a map as the guide for opening the street, the admissibility of the map as evidence is not affected by the fact that it is recorded in Baltimore county instead of Baltimore city.

Appeal from Baltimore city court.

Motion in the city court by Charles Burk against the mayor and city council of Baltimore to quash the proceedings of commissioners in opening a street. The mo tion was overruled, and he appeals. Affirmed.

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

S. J. Harman, for appellant. Wm. S. Bryan, Jr., and Thos. G. Hayes, for appellees.

FOWLER, J. Charles Burk, the appellant, being dissatisfied with the assessments made by the commissioners for opening streets in the city of Baltimore in the matter of the opening of Whitelock street, appealed to the Baltimore city court, where he filed a motion to quash the proceedings. This motion was overruled, and hence this appeal. During the course of the trial two exceptions were taken by the appellant to the rulings of the court on the admissibility of evidence.

It was contended by the appellant in reference to the order overruling his motion to quash-First, that there is a fatal variance between the preliminary notice and Ordinance No. 156 for opening Whitelock street, passed October 22, 1889; secoud, that said ordinance itself is void for vagueness; and, third, that in no event can said ordinance be construed so as to support the return of the said street commissioners. Of course, the giving of the preliminary notice is a condition precedent to the valid exercise of the power given to the appellee to open a street in any given

case; and it is equally well settled that the notice and the ordinance passed in pursuance thereof must conform in substance. Mayor, etc., of Baltimore v. Grand Lodge, 44 Md. 444. And it seems to us from an examination of the notice and the ordinance, that the latter not only substantially, but literally, followed the former.

Whatever may be said as to the vagueness of the ordinance without reference to the plat therein referred to, all ambiguity disappears when that plat is examined, for the exact direction, location, and width of the proposed street therein appear. It was entirely proper, instead of trying to give a minute and accurate description, to provide in the ordinance that Whitelock street should be condemned and opened "as located on said plat." This course was approved in Mayor, etc., of Baltimore v. Bouldin, 23 Md. 871. The ordinance does not undertake to define with accuracy the lines of the proposed street, the plat being referred to for that purpose; and, if there should be any variance between the courses and distances and measurements con. tained in the ordinance and those set forth in the plat, the latter will govern. This is the rule where a plat or map is referred to in a deed, and we can see no good reason why the same rule should not apply bere. It has been held also that when a map or plat is referred to in a deed the effect is the same as if it were copied into the deed. Noonan v. Lee, 2 Black, 500; Mims v. Armstrong, 31 Md. 94. It seems that in this case the ordinance directed the street to be opened "in a southwesterly direction to Division street, as located on said plat, and thence continuing in the direction of said street southwesterly to North avenue." It is admitted that the commissioners followed the lines of the proposed street, as laid down on said plat, in a southerly direction, and not in a southwesterly direction, as described in the ordinance. It appears also that the commissioners followed the measurements of the plat, and laid out the proposed street 66 feet wide, instead of 60 feet wide, from Division street to North avenue, again following the plat rather than the. language in the ordinance. In all this we find nothing fatal to the regularity of the proceedings, for, as we have seen, the plat referred to in the ordinance was the guide to the commissioners, and, if there should be any variance between the ordinance and the plat in measurements, locations, or calls, those set forth in the latter were to govern. M'Iver's Lessee v. Walker, 9 Cranch, 173. It would seem to follow, therefore, that the proceedings of the commissioners are regular, aud that the ordinance is valid.

The first exception is covered by what we have already said, for the ordinance, being read with the plat, is free from obscurity and ambiguity; and the parol testimony offered to explain it was properly rejected. The appellant objected to offering in evidence the plat which was referred to in the ordinance, because it was a record of or recorded in Baltimore county, and was not part of the records of nor recorded in Baltimore city, and this forms his second exception. No authority was

cited to sustain this objection, and it would be difficult, we think, to find any. It would seem, however, to be equally difficult to suggest any valid reason in support of such a view. It is very clear that the proposed street could only be opened, if at all, in accordance with the plat referred to in the ordinance, and therefore when the regularity of the proceedings of the commissioners is attached the map or plat which the ordinance designates as the guide for opening the street must necessarily be admissible for the purpose of showing that the proceedings are in accordance with it, and whether the map be recorded in Baltimore county or Baltimore city would not seem to affect its probative value for the purpose for which it was offered. Judgment affirmed.

HOGG v. JACKSON & SHARP CO. (Court of Appeals of Maryland. June 20, 1893.) ACTION ON CONTRACT-PERFORMANCE-AGENCY

EVIDENCE-INSTRUCTIONS.

1. In an action for the contract price of manufacturing and hanging door and window screens, it is no defense that the screens were not properly hanged, where the work was performed as directed by defendant.

2. Where defendant agreed to so alter the window sash that the screens could be properly hanged, but failed to do so, the fact that such agreement was independent of the written contract will not defeat plaintiff's recovery.

3. Defendant's superintendent testified that, acting under defendant's directions, he had general charge of the "construction and reconstruction of [defendant's] buildings, and the purchase of materials therefor." Held, that such evidence would justify the jury in finding that the superintendent had authority, in contracting for the screens, to also agree that he would have the sash so altered that the screens could be properly put in place.

4. A judgment for plaintiff will not be disturbed because an erroneous instruction given for defendant was inconsistent with a correct one given for plaintiff, where no injury resulted to defendant.

Appeal from circuit court, Cecil county. Action in assumpsit by the Jackson & Sharp Company against T. Edgerton Hogg. Plaintiff had judgment, and deAffirmed. fendant appeals.

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

W. J. Jones, L. M. Haines, and A. Constable, for appellant. C. C. Crothers, for appellee.

MCSHERRY, J. This is an action of assumpsit, which was instituted by the appellee, a body corporate, against the appellant. The declaration contains the money counts, and the plea was nonassumpsit. No questions arise either on the pleadings, or on the admissibility of evidence. The plaintiff presented three prayers, and the defendant nine, for instructions to the jury. Those of the plaintiff, and all of the defendant's, except his fourth and fifth, were granted. To this action of the court the only exception contained in the record was reserved.

It appears that the appellant, through

his superintendent, John C. Lewis, entered into a contract, by written correspondence, with the appellee, by which the latter agreed to manufacture, and to place in the two houses of the former, window and door screens, for a stipulated sum of money That the appellee sent one of its employes to make the necessary measurements before the terms were finally agreed to, or the order was given, and that while these measurements were being made the employe called the attention of the superintendent to the fact that the sash lifts projected about three-sixteenths of an inch beyond the surface of the sash, and stated that unless they were sunk so as to be flush with the surface it would not be possible to make the screens fit sufficiently close to the windows to exclude insects from entering the houses. That the superintendent then promised to bave the lifts sunk as suggested, and that thereafter the estimate of the cost of furnishing and putting the screens in place was made, and communicated to the superintendent, and accepted by him. This proposal made no reference to the sinking of the sash lifts, but related only to the work to be done, and the materials to be furnished, by the appellee. That thereafter the screens were delivered, and a competent workman of the appellee was sent to adjust them, and to put them in place. That, finding the sash lifts had not been sunk, he called attention to the fact, and was directed by the superintendent to hang the screens as best he could, in the condition in which the sash lifts then were, and that he did so, to the satisfaction of the superintendent, and that the price had not been paid. On the part of the defendant it was admitted that the contract set up by the plaintiff had been made, but it was contended that the work had been unskillfully and improperly performed. That the screens utterly failed to secure the purpose for which they had been in- | tended, and that the defendant had finally notified the plaintiff to remove them by a designated time, or that he (the defendant) would have thein taken out. That by the advice of counsel they were not removed, lest an inference might be drawn that the defendant had destroyed, by their removal, the evidence they, in their then position, furnished of their nonadaptability, and that they remained in the mansion house until its destruction by fire, sometime afterwards, and that those placed in the other house were still there at the time of the trial before the jury. No other portions of the testimony need be attended to now.

By the first instruction given at the instance of the plaintiff the jury were told, in substance, that if they found that the defendant directed his superintendent to make the contract set forth in the correspondence, and that the work contracted for had been skillfully performed, and that the materials furnished were proper and suitable, then the plaintiff was entitled to recover the price agreed upon. No objection has been made to this instruction, and we need not, therefore, dwell further upon it.

The second instruction of the plaintiff in

formed the jury that if they found from the evidence that Lewis was the defendant's agent in charge of his property, and had the general charge of the constraction and reconstruction of buildings on the property, and the purchase of materials therefor; that the agreement with reference to the screens was made; that when the measurements of the windows were made the plaintiff's workman called the attention of Lewis to the sash lifts, and informed him that unless they were removed the screens could not be properly placed in position, and that Lewis promised to remove them; that subsequently anotber workman, when sent to adjust the screens, reminded Lewis that the sash lifts had not been removed, and informed him that in consequence a space would be left between the windows and the screens, "and that said Lewis failed to have said lifts removed, and directed or permitted the said workman to proceed with the work of placing said screens, and that he gave directions as to said work, and examined the same from time to time; and further find that said sash lifts did in fact prevent said screens from being placed flush with said windows, in consequence of which a space was left between them, sufficiently large to admit insects, and that said Lewis made no objection on account of said space, but permitted the work to be done as aforesaid, and, when said work was completed, examined the same, and told said workman that the same was satisfactory, as far as he knew, -that then the fact that a space was left between the screens aud sash was no defense to the action, unless the defendant objected to the construction of the work in that manner, and notified the workman not to proceed with it.

The third instruction of the plaintiff announced that if the jury should find from the evidence that Lewis was authorized to employ the plaintiff to put in the screens, and that the plaintiff furnished and put them in, "and the defendant permitted the same to remain in his said houses and enjoyed the benefit of the same, and that they were beneficial to him, that then the plaintiff is entitled to recover what said screens were reasonably worth, even though they may find that there were some unskillfulness in the design or workmanship in placing said screens.

The proposition presented by the second instruction is that the defendant cannot defeat a recovery by the plaintiff on the contract, though the work did not fully answer the purpose for which it was intended, if the defendant himself, or by his agent, directed the contract to be executed in the manner in which it actually was performed. But by the defendant's second instruction the jury were told at the same time that the plaintiff was bound, in the performance of the contract, to place in the doors and windows screens properly constructed and adjusted; and, by his third, that if the screens did not answer the purpose for which they were intended the contract was not performed; and, by bis ninth, that "before the plaintiff can recover in this case it must satisfy the jury, by preponderating evidence, that it has

performed the contract mentioned in the plaintiff's first instruction, and in the manner mentioned in defendant's second instruction."

There is an obvious conflict between the plaintiff's second instruction and the defendant's ninth. If the work, as done, was performed according to the instructions of the defendant or his agent, the plaintiff was entitled to be paid for it, even though it did not fully serve the purpose for which it has been intended, and the jury were rightly instructed to that effect in the second instruction of the plaintiff. But the ninth instruction limited the plaintiff to a recovery upon the contract, if found to have been performed in the manner set forth in the defendant's second instruction. Though the plaintiff's second instruction allowed a recovery under the facts hypothetically stated there. in, notwithstanding the screens might not have answered the purpose for which they were intended, still the jury were told by the ninth instruction that, "before the plaintiff can recover in this case, "-that is, before the jury would be warranted in finding a verdict for the plaintiff at all,they must find, not what the second instruction of the plaintiff puts to them to find, and justifies them in basing a verdict on, but just the opposite, to wit, the fact of the performance of the contract sued on, as interpreted by the defendant's second instruction, which involved the further finding, under the defendant's third instruction, that the screens did answer the purpose for which they had been intended. There was therefore manifest error committed in granting these instructions asked by the defendant.

But there was also error in the granting of the plaintiff's third instruction. It allowed a recovery, though the contract had not been performed, if the defendant permitted the screens to remain in his house, and if they were of benefit to him, whereas, by the defendant's sixth and seventh instructions, the jury were explicitly told that the fact that the screens remained in the house, and were of benefit to the defendant, would not be sufficient evidence to charge him with their value. The inconsistency between these instructions is too apparent to require any comment.

There was no error committed in rejecting the defendant's fourth and fifth prayers. The fourth asked the court to say to the jury that the promise of the superintendent, Lewis, to have the sash lifts sunk so as to allow the screens to fit closely, was outside the contract, as contained in the correspondence, and the failure of the superintendent to comply with that promise could not be relied on by the plaintiff as an excuse for its omission to perform the written contract. But there was testimony before the jury from which they might have found that Lewis had authority to make the promise referred to, and if he was so authorized, while his promise formed no part of the written contract, it related to the performance of an independent act, upon the agreement to do which the estimate and undertaking of the plaintiff were founded. If the promise of Lewis

was authorized, the plaintiff had a right to rely upon its being performed, and the defendant cannot take advantage of its nonperformance.

The fifth prayer asked the court to instruct the jury that, even if Lewis promised to have the sash lifts sunk, such promise would furnish no excuse for the nonperformance of the contract, "unless he had authority from the defendant to make such promise, or the same was made known to and ratified by him," and that there was no evidence of such authority, knowledge, or ratification. There was, as before stated, evidence legally sufficient, it believed by the jury, to warrant them in finding that Lewis had authority, as superintendent, to make the promise alluded to, and it would have been error to instruct the jury that there was no such evidence. The occupation of Lewis was that of superintendent for the defendant. In his own language, he "had general charge of his [the defendant's] estate." "My duties," said he, "were very many. Amongst them were the general charge of everything in connection with Cecil Manor, as superintendent, acting in most cases under Col. Hogg's instructions, verbal or written, and in all cases under Col. Hogg's directions. All buildings, all materials therefor, I mean, in the construction of, and reconstruction of, buildings, and purchase material therefor." These were sufficient facts, if true, to justify the jury in | concluding that Lewis had authority, when he contracted for the purchase and adjustment of the screens, to also agree that he would have the window sash so arranged as that the screens could be properly put in place.

It has been insisted that no injury was done to the defendant by the granting of the erroneous and repugnant instructions to which we have alluded, and that therefore the judgment ought not to be reversed. With respect to the third instruction given at the instance of the plaintiff, this is obviously true. The verdict of the jury was for the exact amount of the contract price, with interest added, and consequently was not founded on a quantum valebant, under this instruction. Inasmuch as the verdict does not depend upon, and was clearly not influenced by, this instruction, the mere fact that the instruction was erroneous would not, of itself, justify a reversal. Railroad Co. v. Pumphrey, 59 Md. 390-402. The third instruction was wholly neutralized by the defendant's sixth and seventh.

The defendant is in no better position to take advantage of the other error which has been adverted to. The instructions which, being granted at his instance, created the repugnancy that he now complains of, were erroneous, and ought to have been rejected. The error was calculated to benefit, and not to be prejudicial to, him. At his own instance the court granted the erroneous instructions, and because, when improvidently granted, they conflicted with others, that were correct, he asks a reversal of the judgment. Had those instructions been rejected, us they should have been, he would have had no reason to ask for a reversal on that

ground. Having been granted, he has certainly no right to complain that they are inconsistent with correct instructions. As both error and injury must concur to justify a reversal, and as no injury has been done to the defendant by the granting of his own erroneous prayers, he is neither entitled to ask, nor in a position to insist, that the judgment be disturbed. As we have found no errors sufficient to justify a reversal of the judgment, it will be affirmed, with costs. Judgment affirmed, with costs in this court and the court below.

SANBORN et al. v. MULLEN et ux. (Court of Appeals of Maryland. June 20, 1893.) ATTACHMENT-JUDGMENT BY DEFAULT-LOCAL AND GENERAL LAWS.

Where an attachment is issued out of the Baltimore city court under Code Pub. Gen. Laws, art. 9, 88 35-41, requiring a writ of summons to be issued against defendant as in actions at law, and directing that the practice and pleadings shall conform as near as may be to those under attachments against nonresident and absconding debtors, and that defendant shall have a right to appear and plead and contest plaintiff's demands according to the ordinary course of proceeding at law, such attachment is not governed by Act 1886, c. 184, applicable to the city of Baltimore alone, and defendant is not, as therein provided, at any time after 15 days from the return day of the writ, liable to a judgment by default for failure to file pleas required by the act, and also the affidavit therein mentioned.

Appeal from Baltimore city court.

Action by Edward F. Sanborn and another against Joseph Mullen and his wife. From an order overruling their motion for a judgment by default, plaintiffs appeal.

Affirmed.

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

E. Otis Hinkley and John T. Morris, for appellants. H. C. Kennard and R. W. Applegarth, for appellees.

BRYAN, J. Sanborn and Mullen, on the 16th day of November, 1892, caused an attachment on original process to be issued out of the Baltimore city court against Joseph Mullen and his wife. A writ of sum. mons was issued at the same time against both the defendants, which was executed and returned. On the 19th of November an appearance was entered for them, and a motion to quash the attachment was filed. A suit on the same causes of action had been brought by the plaintiffs on the 4th day of November, and was pending between the same parties when the attachment proceeding was instituted. The court required the plaintiffs to elect which of these suits they would prosecute; and on December 27th the plaintiffs elected to proceed with the attachment, and dismissed the previous suit. On the next day the plaintiffs moved for a judgment by default for want of a plea. The court overruled the motion for judgment by default, and quashed the attachment. The plaintiffs appealed from the order overruling the motion for a judgment by default.

It will be seen that no appeal has been taken from the order which required the plaintiffs to elect. We shall, therefore, express no opinion upon it. The motion for judgment by default was grounded on the provision of the local law of Baltimore contained in article 4, § 167, Public Local Laws; and, if that section is applicable to this case, the motion ought to have been granted. The attachment proceeding is authorized by the act of 1864, c. 306, now embodied in the Code of Public General Laws, as article 9, §§ 35-41, inclusive. It requires a writ of summons to be issued against the defendants, "as is usual in actions at law;" and by section 41 it is directed that the practice and pleadings shall conform, as near as may be, to those under attachments against nonresident and absconding debtors. A declaration or short note must be filed, expressing the plaintiff's cause of action, and the defendants have a right to appear and plead and contest the plaintiff's demands according to the ordinary case of proceedings at law. If the plaintiff fails to establish his cause of action, the attachment is necessarily quashed. It has always been held that the filing of the declaration or short note is essential to the validity of the attachment. Of course, the defendant's right of defense to the short note is as vital a part of the proceeding as any other. It cannot be taken away; neither can it be restricted or abridged by any embarrassing conditions. In short, it must remain what the statute, according to its uniform construction, has determined that it should be, until the legislature sees fit to amend the law. The act of 1886, c. 184, established for the city of Baltimore a new practice in certain cases. At any time after 15 days from the return day of the writ under the circumstances mentioned in the act the defendant is liable to a judg. ment by default, unless he files such plea as is required by the act, and also the affidavit therein mentioned. This act can by no construction be held to refer in any way to the special proceedings prescribed for attachments on original process. It is not amendatory of the attachment law. and is not to be regarded as incorporated in it. It can have no effect whatever up. on the course of practice under it. That must proceed in the accustomed manner, as if this statute had never been passed. We must affirm the order appealed from.

1. Code, art. 47, § 21, provides that any creditor may file allegations of fraud at any time within two years after the final discharge of an insolvent, and have issues made thereon and tried by a jury, and, if such issues be found against the insolvent, his discharge shall be annulled. Held, that a creditor, with full knowledge of the fraud of an insolvent, and with opportunity to file objections, could not permit the insolvent to be discharged without objection, and then at any time within two years file a petition to annul the order of discharge.