Y. 252. The authorities remove all doubt in regard to the admissibility of parol evidence to prove a mistake in regard to the execution of an instrument of writing. Busby v. Littlefield, 31 N. H. 193; Canedy v. Marcy, 13 Gray, 373; McKinney v. Springer, 6 Ind. 452.

The evidence in this record is such as to leave no reasonable doubt on the mind of any one, who carefully examines it, that Henry Bussard did not intend to release the mortgage which had never been paid, and that the release was the result of a mistake. Such fact being established, it follows that the plaintiff was entitled to the relief asked for in the bill of complaint, and the court below erred in refusing to grant such relief. The order dismissing the bill should therefore be reversed, and the cause remanded, so that a decree may be passed in conformity with what has been said in this opinion.

Order reversed, and cause remanded, with costs to the appellant.

ROBB, Register, etc., v. CARTER.

(Court of Appeals of Maryland. May 27, 1886.)

1. MUNICIPAL CORPORATIONS-OFFICERS-EXPIRATION OF TERM-CONTINUANCE IN OFFICE-CITY OF BALTIMORE.

In the absence of any express provision authorizing them to continue in office, officers appointed for a stated term are entitled, on the expiration thereof, to remain in office, and fulfill the duties until their successors have been duly qualified, and are entitled to the payment of their salaries during such continuance.

2. SAME-SALARIES-WARRANT FROM COMPTROLLER-MANDAMUS.

Where a plaintiff has a warrant from the city comptroller directed to the register, and requiring him to pay the amount therein mentioned out of the appropriation for salaries, he is entitled to a writ of mandamus to enforce payment, as the duties of a treasurer are merely ministerial, if the warrant be perfect on its face.

YELLOTT, J. In the court of common pleas of Baltimore city a petition was presented by the appellee asking for the issuance of a peremptory writ of mandamus requiring the appellant, who is the register of said city, to pay to the petitioner the salary claimed to be due him for the performance of the duties of city solicitor during the month of March, 1886. An ordinance of the city requires that "the mayor, by and with the advice and consent of the convention of the two branches of the city council, shall annually, in the month of February, appoint a member of the Baltimore bar to be the city counselor, and another member of the same bar to be the city solicitor." The terms of office commence on the first day of March immediately following the appointments, and continue for one year, and there is no express provisions in any ordinance that the persons so appointed shall hold until the appointment and qualification of their successors. The appellee had been appointed solicitor in February, 1885, and the present mayor having nominated him in February, 1886, the nomination was rejected by the city council. On the fifteenth day of March, 1886, he was again nominated by the mayor, and rejected by the council; and, there having been no appointment subsequently made, he has continued to perform the duties of the

office, and claims the regular monthly compensation payable to the city solicitor. This appeal is from an order pro forma that the peremptory writ of mandamus issue as prayed.

The first question properly before this court, and now to be determined, relates to the right of the appellee to continue in office until another person has been appointed to succeed him; the appointment being for one year, and there being no express provision authorizing him to hold over until his successor has been duly qualified, and is prepared to enter upon the performance of the duties appertaining to the office. In an effort to arrive at a clear comprehension of this question, the inutility of seeking for information from the reported decisions of the English courts must be obvious. In England offices are usually designated as incorporeal hereditaments, "granted by the crown, and the subjects of vested or private interests;" and, anterior to the enactment of the statute of 5 & 6 Edw. VI. c. 16; could, with some few exceptions, be sold and transferred like any other property. 2 Bl. Comm. 37. In this country a public office cannot be the property of the incumbent, because it belongs to the sovereign people who created the government. In the declaration of organic principles, prefixed to the instrument creating the government of this state, those holding the most important offices are declared to be "the trustees of the public." The same designation necessarily applies to all public functionaries. Therefore every office created either by the constitution, or by the laws authorized by that instrument, is a public trust, created for the public benefit. Where an office is of statutory creation, the legislative department of the government may deem it unnecessary, and may abolish it; but courts must presume that every office in existence is necessary; that the public welfare is promoted by the performance of the duties attached to it; and that those duties should be discharged, without intermission, while the office continues to exist.

The office being a trust created for the public good, it follows that a cessation of the benefits derived from it ought not to be sanctioned because of a failure to make an appointment by those whose duty it is to appoint. No such failure should be permitted to cause a temporary extinction of the trust. To guard against this evil, there is usually a provision for holding over until the appointment and qualification of a successor; but it has been held in some of the states that, in the absence of any such provision, the incumbent should hold over until another person has been appointed and qualified, and it is intimated that he may reasonably presume that it is his duty to do so; for it must be borne in mind that an official is frequently the custodian of important books, papers, and other property, the care of which ought not to be abandoned, and which he cannot properly surrender to any one not legally authorized to assume control. People v. Tilton, 37 Cal. 614; Kreidler v. State, 24 Ohio St. 22.

But authorities, introduced from exterior sources, seem to be wholly unnecessary when the question has been determined by domestic adjudication. In the case of Thomas v. Owens, 4 Md. 221, the right of the

incumbent to hold over, in the absence of any provision authorizing him to continue in office until the appointment and qualification of his successor, was ably argued on both sides by some of the most eminent counsel then at the bar, and in the opinion of the court, delivered by the late Chief Judge LE GRAND, is found the following exposition of principles applicable to the question then presented, and decisive with respect to that now involved in controversy. The learned chief judge said that although it is not anywhere expressly said in the constitution that he shall continue in his office until his successor has been duly elected, commissioned, and qualified, yet it is obvious to us that, looking to the spirit and policy of the constitution, as manifested in its provisions affecting the other officers of the government, in regard to whom it is provided they shall continue in office until superseded by their qualified successors, that it was not the design of the framers of the constitution there should be an interregnum in the office of comptroller, and thereby suspend for the time the whole operations of the treasury department of the state.

It has been urged in argument that this decision is applicable only to offices created by the constitution; but it is impossible to perceive the validity of this objection. Every office, when not directly created by the constitution, originates in some statute or ordinance sanctioned by the organic law of the state. The office exists because the public good requires its existence, and it is necessary that the duties assigned to the incumbent should be performed. Therefore, unless there is some clearly expressed and positive prohibition which, by its terms, operates as an ouster, the person filling the office should continue to discharge those duties until a successor is qualified, no matter whether the office is created by the constitution, by an act of the general assembly, or by a municipal ordinance. Ubi eadem est ratio, eadem est lex.

It has been contended, with much urgency, in argument, that the mayor, by his failure to nominate some one who has not already been rejected by the city council, may continue the present incumbent in office for an indefinite period. In this appeal it does not become the duty of this court to suggest remedies which must be invoked by the institution of other proceedings; nor can the court now undertake to adjudicate and determine matters in controversy between the executive and legislative departments of the municipality, although, as was said in the case just cited, "it is the pride and boast of our political institutions that no man is above or irresponsible to the law, and it is emphatically the province and duty of the judicial department to say what the law is." Until the contrary is made apparent by proper procedure, it must be assumed that those who have been intrusted with the control of the two departments of the city government honestly differ, and that, actuated by motives impelling them to the promotion of the public good, they will speedily arrive at a satisfactory solution of a question relating to the expediency of an appointment. But if the present condition of affairs should cause a continuance in office of the eminent member of the legal profession who was appointed by the predecessors of the present

mayor and city council, it may reasonably be presumed that no evils would ensue so serious as those which might possibly befall a large and populous city if this court should, by a solemn adjudication, establish a principle which, under certain circumstances, by no means impossible, might cause a vacancy in nearly every office, and a suspension of business in the various departments of the municipality. The principle enunciated in Thomas v. Owens controlled the decision of the court in Sappington v. Scott, 14 Md. 40, and it was there distinctly declared that there could be no interregnum in the office of register of wills, although there was no provision expressly authorizing that officer to hold over until a successor was qualified. In the case of Smoot v. Somerville, 59 Md. 84, the question in controversy was whether a vacancy had occurred which authorized the exercise of the appointing power, and the casual expression in the opinion of the court was not introduced for the purpose of deciding any question then presented for adjudication.

It follows from what has been said that the appellee is entitled to the payment of his salary, if he has resorted to the proper remedy.

The eminent counsel who appeared in behalf of the appellant declined to argue this question, and left it to be decided by the court from the authorities to be found on his brief. It is sufficient to say that the appellee had a warrant from the comptroller, directed to the register, and requiring him to pay the amount therein mentioned out of the appropriation for salaries. It was decided in Thomas v. Owens that the duties of a treasurer are merely ministerial, if the warrant is perfect on its face, and that all that he has to do is "to count out the money." The appellee held this warrant, by virtue of which he had the right to demand payment of the appellant. An application for the writ of mandamus was therefore proper, as there was no other remedy by which the same adequate relief could be obtained. Thomas v. Owens, 4 Md. 189. It is true that the appellee might have abandoned his claim founded on the warrant, and sued the city for the sum alleged to be due him. But this would have been no remedy as against the appellant; nor would it have afforded the same specific relief. The order of the court below from which this appeal has been taken should therefore be affirmed. Order affirmed, with costs to appellee.

LEWIN v. UZUBER.

(Court of Appeals of Maryland. May 27, 1886.) MALICIOUS PROSECUTION-PLEADING-ARREST-WRIT.

Where the plaintiff, in an action for malicious prosecution, alleged that the defendant caused his arrest upon “a writ issued by” a justice of the peace, and the alleged writ was shown by the evidence to be a mere narration of a complaint signed by the justice, but without any precept or authority to arrest, held, that the plaintiff had offered no sufficient evidence of an arrest under a warrant as alleged in his declaration.

Appeal from circuit court, Carroll county.

MILLER, J. This is an action for malicious prosecution. The declaration contains three counts. The first charges that the defendant, on the fifteenth of January, 1880, falsely, maliciously, and without any

probable cause whatsoever, caused the plaintiff to be arrested, by a writ issued by MORDECAI ALBAN, a justice of the peace, upon the charge of larceny, and that the justice, after an investigation of the charge, required the plaintiff to give bail for his appearance before the circuit court for Baltimore county; that he did give bail as required, and the charge and accusation were duly dismissed by the grand jury for said court. The second and third differ from the first only in the statement of the termination of the prosecution, and in this respect the second avers that, though nine successive terms of court have passed since he entered into the recognizance, yet no action whatever has been taken in his case by the grand jury; while the third avers that nine successive terms of court passed after the plaintiff was required to enter into the recognizance without the grand jury taking any action whatever in his case, and that this omission to act on the part of the grand jury was set forth by the plaintiff in a petition to the court, and that on this petition the court passed an order dated the seventh of July, 1882, whereby he was discharged from said recognizance. The case was tried before a jury upon issue joined on the plea of not guilty, and the result was a verdict and judgment for the plaintiff, from which the defendant has appealed. In the course of the trial 11 exceptions were taken to the rulings of the court upon questions of evidence, and 15 prayers were offered by the plaintiff, and 17 by the defendant, some of which on each side were granted by the court, and others rejected; but in the view we have taken of the case it is not necessary to review these several rulings in detail.

The general features of the case are these: A controversy arose between the parties in reference to a boundary line between their lands. The defendant had been for many years the owner of a farm, and the plaintiff recently bought land adjoining thereto on one side. Between them was an old fence, which had been standing in its then location for nearly 60 years. After his purchase the plaintiff, supposing that his land extended up to this old fence, cut some trees along its line, and on his side of the fence. The defendant contended that the true line of his land was some eight or ten feet beyond and outside of this fence, and sued the plaintiff in trespass before a magistrate for this cutting. To this suit the plaintiff appeared, and made oath that the land on which the cutting was done belonged to him, and this, of course, ousted the jurisdiction of the magistrate, and the case was dropped. After this, an attempt was made at a compromise by having the line run and located by the county surveyor. This was done, and the county surveyor, by his running, located the line according to the claim of the defendant. The latter insisted that this was a final settlement of the dispute, and that the plaintiff had agreed to abide by it, but the plaintiff denied that he had ever made any such agreement, and, being dissatisfied with this location, called in another surveyor, who, by his running, located the line differently, and nearly on the line of the old fence. The defendant then moved the fence out to the line located by the county surveyor, and the plaintiff, shortly afterwards, proceeded to move it back again to the line as located by his surveyor. At this stage of the quarrel the defendant took the step which brought about this action. He went to a