not require that the witnesses by which the plaintiff expects to establish his case should be disclosed in the bill of particulars. The office and legal effect of a bill of particulars is to inform the opposite party of the precise nature and extent of the claim which the plaintiff intends to rely upon under each and every count of the narr., and to confine his evidence to the claim thus stated. Carter v. Tuck, 3 Gill, 250; Hall v. Sewell, 9 Gill, 147; School Commissioners v. Adams, 43 Md. 356. In the case of Schaumloeffel v. State (decided at the last term of this court) 62 Atl. 803, we had occasion to consider the question as to whether a witness, whose name did not appear upon the bill of particulars furnished by the state's attorney in the case where the defendant had been indicted for false pretenses, was competent to testify. Code Pub. Gen. Laws, art. 27, § 440, provides that the state's attorney, upon application to him by the defendant in an indictment for false pretenses, shall furnish a bill of particulars wherein "the names of the witnesses and a statement of the false pretenses intended to be given in evidence shall be furnished the defendant." We held, Judge Briscoe delivering the opinion of the court, that: "The statute requires the list to be furnished, but does not restrict the state's attorney to the list, nor does it control or affect the competency of the witness." We therefore hold that the court was clearly right in permitting Miss Plato to testify.

Nor do we find any error in the ruling of the court on the second and third exceptions. The offer of testimony contained in both of these exceptions did not tend to shed any light upon the issue made by the pleadings, nor affect in any way the credibility of any witness examined in the case. Indeed, the third exception seems to have been practically abandoned, as there is no reference to it in the brief, nor was it mentioned in argument by the appellant's counsel, who expressed his doubts as to whether the second exception ought to be sustained.

We come now to the ruling of the court upon the prayers. The plaintiff offered two, and the defendant six, prayers. The court granted the plaintiff's prayers and also granted the defendant's first, second, third, fourth, and sixth prayers, and rejected her fifth. To the granting of the plaintiff's prayers and the refusal of her fifth prayer the defendant excepted, and this constitutes the fourth exception. By the common law no verbal defamation, no matter how vile, affecting the chastity of a female, whether married or unmarried, would constitute slander per se, and the object of the slander could not recover for the defamatory words, unless she alleged and proved that some actual or special damage resulted to her from their publication. But this harsh and severe rule was changed in this state as to unmarried women by Acts 1838, c. 114; and by Acts 1888, p. 723, c. 444, a further change in the

law upon this subject was made. That act declares that: (1) All words spoken falsely and maliciously touching the character, or reputation for chastity of any woman, whether single or married, and tending to the injury thereof shall be deemed slander and shall be treated as such in the several courts of law in this state. (2) Any woman, whether single or married, whose character or reputation as a woman of chastity may be traduced or defamed by any person, may sustain an action of slander in her own name against such person. It would therefore seem to be clear that under the terms of the statute the plaintiff's declaration set out a slander which is per se actionable, and upon proof of such a cause of action the plaintiff is entitled to recover without proof of actual or special damages. The defendant relying upon the general issue plea, and there being no plea of justification in the case, and no claim of privilege relied upon or shown in the evidence, a prima facie case for the plaintiff was made out when she offered testimony tending to show, as she did by the evidence of Mrs. Dempster and Miss Plato, that the defendant uttered to a third person of and concerning the plaintiff the defamatory words set forth in the declaration. In such a case and upon such a state of pleadings the law presumes the words are both false and malicious, and the making known the statement to any person other than the object of the slander is publication in the legal sense. These principles are elementary, and need the citation of no adjudged cases to support them. They have been announced in many decisions of this court, among which are the cases of Long v. Eakle, 4 Md. 454; Padgett v. Sweeting, 65 Md. 404, 4 Atl. 887; Lewis v. Daily News Company, 81 Md. 473, 32 Atl. 246, 29 L. R. A. 59; Fresh v. Cutter, 73 Md. 91, 20 Atl. 774, 10 L. R. A. 67, 25 Am. St. Rep. 575. The plaintiff's first prayer told the jury, if they found from the evidence that the defendant uttered the slanderous words of and concerning the plaintiff set forth in the declaration in the case, then their verdict must be for the plaintiff. Under the pleadings and facts in the case, this prayer was properly granted.

The second relates to the measure of damages. By this the jury were instructed that if they should find for the plaintiff "they may find such damages as will compensate the plaintiff, and adequately punish the defendant for uttering the slanderous words, and in finding such damages they may consider the means and wealth of the defendant." We find no error in this prayer. It is supported by the cases of Wilms v. White, 26 Md. 380, 90 Am. Dec. 113, and of Padgett V. Sweeting, supra. The principle upon which it rests was recognized as sound in the case of Fresh v. Cutter, supra, although it was found to be inapplicable under the facts in that case.

There was no prejudicial error in the re

jection of the defendant's fifth prayer, because in her sixth prayer, which was granted, she got the full benefit of all she was entitled to in respect to the subject-matter of the rejected prayer.

It follows that the judgment appealed from must be affirmed.

Judgment affirmed, with costs to the appellee.

(102 Md. 573)

MERCHANTS' NAT. BANK OF BALTIMORE v. BALTIMORE, C. & R. STEAMBOAT CO. OF BALTIMORE CITY. (Court of Appeals of Maryland. Jan. 11, 1906.) 1. CARRIERS BILLS OF LADING NEGOTIA

BILITY.

Certain bills of lading provided that every service should be subject to all the conditions written and printed thereon, which were agreed to by the shipper as owner or agent for the owner; that if the word "order" be written immediately before or after the name of the party to whose order the property is consigned, a surrender of the bills should be required before delivery; and that no alteration should be valid unless made or assented to by the carrier's agent. The bills provided that the goods should be delivered to the consignee's order, and the words "Not negotiable" were printed across the face thereof. Held, that under Code Pub. Gen. Laws, art. 14, § 1, providing that bills of lading are negotiable, unless provided in express terms to the contrary on the face thereof, such bills were nonnegotiable, and a transfer thereof operated only to transfer title to the goods subject to existing equities between the parties.

2. SAME-SURRENDER OF BILLS.

Where bills of lading provided for a delivery to the consignee "or order," and in express terms declared that in such event a surrender of the bills should be required as a condition to delivery, the carrier was guilty of a breach of duty in delivering the goods without requiring a surrender of the bills.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 308–313.]

BILLS OF

4. ALTERATION OF INSTRUMENTS LADING-CHANGE OF DATE-MATERIALITY. A change of the date in bills of lading constituted a material alteration invalidating the bills.

5. CARRIERS-BILLS OF LADING-ALTERATION -TRANSFER-RIGHTS OF TRANSFEREES.

Where the holder of bills of lading for goods deliverable to order fraudulently altered the same in a material particular after having obtained the goods from the carrier without surrendering the bills, and then pledged the bills to plaintiff to secure an indebtedness, plaintiff, though a bona fide purchaser for value, could not maintain an action against the carrier for damages based on such bills. 6. CUSTOMS AND USAGES-EFFECT.

A custom to change and alter dates on bills of lading, at the time of and prior to the issuance thereof, whenever necessary to make the date on the bills presented to the carrier for

issue conform to the true date of issue, is ineffective to support a fraudulent alteration of "spent" bills for other purposes than to make them conform to the date of issue.

7. SAME-WRITTEN CONTRACT-ALTERATION.

A custom to change or alter dates on bills of lading, at the time of and prior to the issuance thereof, to make the date on the bills conform to the true date of issue, is inadmissible, where its application would effect an alteration of the date of the true instrument.

Appeal from Superior Court of Baltimore City; Thomas S. Baer, Judge.

Action by the Merchants' National Bank of Baltimore against the Baltimore, Chesapeake & Richmond Steamboat Company of Baltimore City. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before McSHERRY, C. J., and BOYD, PAGE, PEARCE, SCHMUCKER, JONES, and BURKE, JJ.

J. Southgate Lemmon and Hugh L. Bond, for appellant. John Prentiss Poe and Bernard Carter, for appellee.

PAGE, J. This suit was brought by the ap-. pellant against the appellee on the 12th of April, 1902, for the wrongful conversion of certain bales of cotton, and for damages arising from the negligent conduct of the appellee in performing its contract, as set forth in the bills of lading, one of which is filed with the pleadings. The facts of the case, about which there is little, if any, dispute, briefly stated, are that prior to October 1, 1899, the appellee issued 34 order bills of lading for bales of cotton, each drawn to the order of the shipper, notify Messersmith & Co. order subject to the special conditions on their back and face; that the cotton therein mentioned was promptly delivered to the said Messersmith & Co., at that time the owners of the property and the holders of the bills of lading, who received the goods without surrendering to the appellee the bills, as by the ninth condition on the bills should have been required; that after the delivery of the goods Messersmith fraudulently altered the dates of the bills, and corruptly used them by transferring them to the appellant as collateral for loans and advances made previously thereto; that the fraud of the said Messersmith was later on discovered, and he was tried and convicted therefor. This suit was brought upon the bills of lading to recover the value of the cotton, or damages for the negligence of the appellee in not requiring the surrender of the bills of lading, whereby the appellant was induced to accept the bills. From the judgment rendered, the appellant has taken this appeal.

The pleadings are carefully drawn and quite voluminous, and as it appears from the very able and exhaustive arguments of counsel made at the hearing or on brief, that most, if not all, the decisive points in the case are presented by them, a more extended reference to the pleadngs will be made than is usual. The first and second counts in the declaration

are in trover for the conversion of 2,436 bales of cotton. Subsequently the appellant added a third count. This third count, as amended, sets out, in substance: That the appellee, being a common carrier, received the cotton and issued bills of lading therefor, the printed form of which is made an exhibit. That the same was consigned, as set out in the bills of lading, "to the order of the several shippers thereof, with directions to notify Jno. K. Messersmith & Co. of Baltimore; the word 'order' being written on the several bills of lading immediately after the name of the consignee thereof, according to the course of trade followed in such cases, without any condition or limitation other than the name of the party to be notified of the arrival of the property at its destination." That the several bills of lading had prominently printed thereon the following words: "If the word 'order' is written immediately before or after the name of the party to whose order the property is consigned, without any condition or limitation other than the name of a party to be notified of the arrival of the property, the surrender of the bills of lading, properly indorsed, shall be required before the delivery of the property at destination." There was the further condition, printed and set forth in the bills of lading, that if the cotton therein described should not be called for within 24 hours after the arrival thereof it would be stored by the carrier at the expense of the owners, that by mense indorsements for valuable considerations, paid, etc., by the appellant to the holders of the bills of lading upon the delivery of the said bills and upon the faith of the conditions in the said bills, said cotton would not be delivered to any one without the surrender of the bills of lading, and that the cotton would be held and stored for account of the true owner until the said bills were surrendered, properly indorsed, for cancellation, but that after the appellant had paid and delivered its consideration upon the faith of the said bills and the appellant made demand upon the defendant to deliver to it the said cotton, and presented the said bills, properly indorsed, for cancellation, the appellee could not and did not deliver the said cotton, because prior thereto the appellee had parted with the possession of the same, wherefore, by reason of said negligence in failing to hold and store the said cotton until the said bills of lading were surrendered, etc., the appellant was put to great loss, etc.

To this count the appellee pleaded eight pleas, viz.: By the first three pleas limitations, by the fifth that the said bills of lading, after they had been issued, were fraudulently altered in a material particular, to wit, that the dates were changed, fraudulently and wrongfully, by Messersmith & Co. into whose hands they had come, or by some person or persons at their instance and request, and so the said bills by reason thereof the appellee "denies the genuineness" of these. The seventh plea is a general traverse to the aver

ments of the third amended count in the declaration. The eighth plea sets out the alleged alterations, and, further, that by the terms of the bills the same were "nonnegotiable," and that the same, while in the possession of Messersmith & Co., were duly presented by them, to whom the cotton was deliverable, and therefore the cotton was delivered to them, wherefore the appellee performed and satisfied all the obligations of the said bills, and the same became, and thereby were, wholly "spent and exhausted," and that afterwards the said Messersmith & Co. fraudulently, etc., and without the knowledge of the appellee, changed, or caused to be changed, and assigned the said, "nonnegotiable and spent and exhausted bills" to the appellant, etc. The appellant demurred to the fifth, sixth, and eighth pleas, and pleaded specially to the other pleas. So that the first questions that arise to be considered on this appeal are: (1) Are the bills of lading in this case, nonnegotiable? (2) Are the alleged alterations material to the contract, and, if so, do such alterations have the effect of rendering the contract, evidenced by the bills of lading, void?

By the common law a bill of lading was not, in an unrestricted sense, a negotiable instrument like a promissory note, but was, as this court has repeatedly stated, quasi negotiable only. But even that restricted common-law negotiability may be limited and still further qualified by the insertion of appropriate terms wholly destroying all negotiability, and it seems to be generally agreed that such a result may be accomplished by simply stamping or printing across the face of the instrument, the words "not negotiable," as was done in this instance. Bank of Bristol v. B. & O. R. Co., 99 Md. 675, 59 Atl. 134; Tiedeman v. Knox, 53 Md. 615, 616. The former case further decides that a bill of lading is of consequence "only in so far as it is the evidence of a title to something in somebody." Its transfer is the transfer of the title to the thing described in it, and whatever equities exist between the parties to it with respect to the title of the parties which it purports to represent will follow that property into the hands of the assignee of the bill of lading, unless some other legal or equitable principle intervenes to preclude the assertion of a prior right as against a bona fide assignee for value. In Maryland bills of lading are now made negotiable instruments and securities, “unless it be provided in express terms to the contrary on the face thereof," etc. Article 14, § 1, Code Pub. Gen. Laws. It seems to be clear, therefore, that the bills of lading in this case, having the words "not negotiable" printed across the face of them, are nonnegotiable instruments or securities, and as such passed to the appellant, subject to such equities as existed between the parties to them at the time of the assignment, unless there is some legal or equitable principle which intervenes to pre

clude the assertion of the prior right as against a bona fide assignee for value, or unless there are appropriate terms in the bills themselves that limit or destroy such features. It is said, however, that these bills of lading cannot be wholly nonnegotiable, because of those clauses which provide for the effect of the word "order," and also of those which impose upon the carrier certain duties after the arrival of the property at its destination, or of those clauses referred to at argument as the order clause, the assignee clause, and the alteration clause.

The bills provide that every service shall be subject to all the conditions written or printed thereon, all of which are agreed to by the shipper as owner or agent for the owner, and accepted for himself and his assigns as just and reasonable, etc. By the ninth condition, and in the body of the instrument, it was provided that, if the word "order" is written immediately before or after the name of the party to whose order the property is consigned, the surrender of the bill of lading shall be required before the delivery, etc. The surrender clause, which is the ninth, when read in connection with other clauses, seems to have been intended to give security to all persons dealing with the bills or the property. It requires the surrender of the bills of lading whenever the word "order" is placed immediately before or after the name of the consignee upon the surrender of the property. To neglect this provision would unquestionably constitute a breach of duty, but we do not think the clause, properly understood, affects the nonnegotiability of the bill of lading. While not negotiable, the bills could be transferred, and such transfer carried with it certain rights to the transferee, as was held in the case of the Bristol Bank, supra. It was probably inserted as well for the protection of the carrier as for that of persons dealing with the property. The consignee is presumptively the owner of the goods, and may be treated by the carrier as the absolute owner, as well as by other persons who have had no notice to the contrary. Sweet v. Barney, 23 N. Y. 335; Lawrence v. Minturn, 17 How. 100, 15 L. Ed. 58. If, therefore, the carrier is guilty of negligence in not enforcing this "order clause,' and such neglect is the proximate cause of injury to one innocently dealing with the property, such negligence would furnish a valid ground for a recovery in damages. Coventry v. Great Eastern R. R. Co., 11 Q. B. D. 767; London & N. W. Ry. Co., 10 C. P. 307.

But it is also alleged that after the delivery of the goods to Messersmith & Co., the then holders and owners of the bills, before they passed into the hands of the appellant they were fraudulently altered by Messersmith changing the dates thereof. It was said in Wood v. Steele, 6 Wall. 80, 18 L. Ed. 725: "It is now settled, in both English and American jurisprudence, that a material

alteration in any commercial paper, without the consent of the party sought to be charged, extinguishes his liability. The materiality of the alteration is to be decided by the Court. * * The grounds of the discharge in such cases are obvious. The agreement is no longer the one into which the defendant entered. Its identity is changed. Another is substituted without his consent, and by a party who had no authority to consent for him. If the instrument be under seal, he may well plead that it is not his deed, and if it be not under seal, that he did not so promise. In either case the issue must be found for him. To prevent and punish such tampering the law does not permit the plaintiff to fall back upon the contract as it was originally. In pursuance of a stern, but wise, policy, it annuls the instrument as to the party sought to be wronged." Burrows v. Klunk, 70 Md. 460, 17 Atl. 378, 3 L. R. A. 576, 14 Am. St. Rep. 371; Lehman v. Central R. R. Banking Co. (C. C.) 12 Fed. 596; Getty v. Shearer, 20 Pa. 12; Bigelow v. Stilphen, 35 Vt. 521.

But it is contended that this well-established doctrine has no application in this case, because, among other things, the eighth condition of the bill provides that "any alteration, addition, or erasure in the bill of lading, which shall be made without the special notation hereon of the agent of the carrier issuing the bill, shall be void." But we cannot agree to this. The clause seems to be designed to avoid unauthorized alterations, but it can have no reference to fraudulent alterations made after it has been issued by the carrier. It is more reasonable to construe it as having reference, as was said by the learned judge below, only to such "alterations" as may be "properly suscepti ble of special notation by the carrier's agent." It would be most unreasonable to hold that the intent of the condition was to do away with the well-settled law that a material alteration, fraudulently made by the holder, vitiates the instrument, and so leave it unprotected from the devices of the unscrupulous. Burrows V. Klunk, supra; Wood v. Steele, supra. It was perfectly allowable for the parties to make any contract they chose to agree to, and to limit or modify their respective rights with respect to the place or mode of delivery and in many other particulars; but, in order that there should be no misunderstanding, this provision was made in this clause, that no alteration, addition, and erasures in the bill should be valid, if made without the notation of the agent of the carrier issuing the bill.

The alterations shown by the proof were the changing of the dates of the bills of lading. Whether such alterations are of a material character is a matter for the court to decide. It seems on principle, as well as authority, that the change of the date of any commercial instrument is a material change. Here the date not only indentifies the in

strument, but is important because of the duties devolving on the parties after the property has reached its destination. "The duty to deliver within a reasonable time is one engrafted by the law upon the principal contract, which is to carry safely." Hutchinson on Carriers, § 328. It is important, also, in reference to the application of the statute of limitations, and also in the rule by which the loss or damage is to be computed in cases where the carrier is liable, depending, as it does, by the third condition of the bill of lading, upon the "value of the property at the place and time of shipment," etc. In the case of Stephens v. Graham, 7 Serg. & R. 507, 10 Am. Dec. 485, where the alteration in a promissory note was in the date from the 25th to the 26th, it was contended the change was not material, as the 26th came on Sunday, and by the custom of merchants the note became payable on the 25th, the preceding day; and the court, in holding that the date was a material part of the note, said: "It does not depend on the accelerating or extending the day of payment, or increasing or decreasing the sum, but upon the identity. To insure the identity and prevent the substitution of one instrument for another is the foundation of the rule, and it is a wise rule, as it prevents al! tampering with written instruments." To the same effect is Getty v. Shearer, 20 Pa. 12. In McCormick v. Lauber, 7 Kan. App. 730, 52 Pac. 577, where the alteration was of a note, the court said. It was well settled in this state that the change of a date is a material alteration and "vitiates the note without regard to whether the maker is prejudiced or benefited, or whether the time of payment is hastened or delayed. It is not the contract which he executed." 2 Am. & Eng. Ency. of Law (2d Ed.) 236, 237; Tiedeman on Commercial Paper § 394; Newman v. King, 54 Ohio St. 277, 278, 43 N. E. 683, 35 L. R. A. 471, 56 Am. St. Rep. 705; Master v. Miller, 4 Term, 120. In Wood v. Steele, 6 Wall. 82, 18 L. Ed. 725, the court citing the above case, said: "It is now settled, in both English and American jurisprudence, that a material alteration in any commercial paper, without the consent of the party sought to be charged, extinguishes his liability." There was no error, therefore, in overruling the demurrers to the third and fourth pleas to the third count of the declaration,

By its replication to the fifth, sixth, and eighth pleas the appellant set up that the defendant was estopped from pleading prior delivery to Messersmith, because the alleged alteration was done at a time when the bills were wrongfully permitted by the appellee to remain in the possession of Messersmith. There seems to be abundant authority for the proposition that if the property had been delivered while the bills which contained the "order clause" were still intact, without requiring their surrender by Messersmith,

whereby the latter was enabled to fraudulently obtain advancements from an innocent third party, the carrier would be responsible. This would be the case because by the terms of the bill of lading the carrier was under obligations, and therefore owed it as a duty to all persons, not to deliver the goods to a third party, when the bills contained the "order clause," without requiring the surrender of the bills. In such case the violation of the duty would be negligence, which would work an estoppel, and prevent them from denying the rights of the holder of the bills. Coventry v. Great Eastern Ry. Co., 11 Q. B. D. 776. Seton v. Lafone, 19 Q. B. D. 69. This point has already been referred to in this opinion, and we refer to the authorities then cited. Wichita Savings Bank v. Atchison, T. & S. F. R. R., 20 Kan. 520; Forbes v. Boston & Lowell R. R., 133 Mass. 154; Walters v. R. R. Co. (C. C.) 56 Fed. 369; Midland Bank v. Mo. R. R. Co., 132 Mo. 508 et seq., 33 S. W. 521, 53 Am. St. Rep. 505.

The demurrers to the fifth, sixth, and eighth pleas having been overruled, the appellant filed five replications thereto, of which the second and fourth raise the question of estoppel, and the third and fifth allege that Messersmith, in altering the bills of lading, acted as the agent of the appellee.

The theory upon which the estoppel is claimed is founded upon the duties which the appellee owed to all persons dealing with the bills of lading or the property represented by the bills, especially its duty under the order clause and the storage clause, not to deliver the goods without requiring the surrender or indorsement of the bills of lading. But this theory, as applicable to this case, entirely ignores the fraudulent alteration of the bills, which thereafter had the effect of changing the identity of the bills and substituting therefor another instrument. Wood v. Steele, 6 Wall. 80, 18 L. Ed. 725, where it was said: "The law regards a security after its alteration as an entire forgery with respect to the parties who have not consented, and, so far as they are concerned, deals with it accordingly." The bills came into the hands of Messersmith complete instruments, and were such at the time of the delivery of the goods to them. The appellee should have required the surrender of the bills, or at least the production of them; and a failure to make such requirement was negligence, for which, if the result was to cause injury to another party dealing with the goods, who had a right to suppose the property was still in the possession of the carrier and was himself, without negligence on his own part, the company would be liable. If loss and injury occur by reason of the neglect of the carrier to require the surrender of the bill of lading, and by reason of the fact a person without notice for value become the transferee of the bills upon the presumption that the goods are still in the possession of