to article 23, § 367 et seq., Code Pub. Gen. Laws, and examine the General Laws of the state regulating the proceedings for the forfeiture of corporate charters, we find it distinctly provided, in section 374, that either party may appeal from any judgment or determination of the court had on petitions filed for forfeiture, under this article, within 30 days from the date of the judgment or determination of the court. The motion to dismiss the appeal must therefore be overruled.

For the reasons mentioned in this opinion, the order appealed from must be affirmed. Order affirmed.

(105 Md. 581)

SHARP v. SHARP. (Court of Appeals of Maryland. April 4, 1907.) DIVORCE-Grounds-CRUELTY.

In an action for divorce a mensa et thoro, the evidence showed that defendant repeatedly struck plaintiff, threatened to kill her, pointed a loaded pistol and threatened to shoot her, threw her over a chair, while she was in a delicate condition, so that she fell to the floor, threatened to kill her so repeatedly that she believed he would do so, and also kill her child, struck her and her child one night in bed, and repeated the blows in the morning. Plaintiff had often forgiven him, but finally felt that the safety of herself and child required that she should leave him, which she did. Held, that the cruelty of treatment warranted a decree.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Divorce, §§ 62-83.]

Appeal from Circuit Court No. 2 of Baltimore City; Pere L. Wickes, Judge.

Action by Emma O. Sharp against John N. Sharp. From an order dismissing the bill, plaintiff appeals. Reversed and remanded.

Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, and BURKE, JJ.

James P. Gorter, for appellant. S. S. Field, for appellee.

BRISCOE, J. This is a bill in equity filed by the wife, Emma O. Sharp, against her husband, John N. Sharp, to procure a divorce a mensa et thoro, on the ground of alleged cruelty of treatment and excessively vicious conduct. The defendant answered the bill of complaint, and neither admitted or denied its allegations, but asked for full proof thereof. The parties were married on the 29th of January, 1902, in the city of Baltimore, and had two children. They lived together at various places until April 13, 1904, when they separated, and she went to the home of her parents, where she has since resided. The bill was filed on the 14th of April, 1904, and the principal question for our consideration is one of fact; that is: Does the proof disclosed by the record sustain the charge of such cruel treatment or excessively vicious conduct on the part of the husband, within the meaning of section 37, art. 16, Code Pub. Gen. Laws, as to entitle the wife

to a divorce? The case was heard on bill, answer, and proof, in the circuit court No. 2 of Baltimore City, the wife was denied the relief sought, and the bill was dismissed.

We cannot concur in the conclusion reached by the court below. We are of the opinion, after a careful review of the whole testimony, that the conclusion there announced is against the decided weight of the testimony, and the decree of the court below must be reversed.

We will now state the reasons which require us to make this decision. In the case of Hawkins v. Hawkins, 65 Md. 104, 3 Atl. 749, this court said, in stating what state of facts will authorize the granting of a divorce a mensa et thoro for cruelty of treatment and excessively vicious conduct: "The rule to be gathered, from all the authorities that furnish safe guides upon this delicate subpect, is that the ground of complaint must be grave and weighty, showing to the entire satisfaction of the court the existence of such state of things as render it impossible that the duties of the married life can be discharged. Where the complaint is of cruel treatment, the mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention, even occasional sallies of passion, if they do not threaten bodily harm, do not constitute such cruelty of treatment as to warrant the court in pronouncing a decree of separation; but a series of acts of personal violence, or a menace to the safety of life, limb, or health, or any determined threats of serious bodily hurt, have always been held sufficient ground for a separation by the common law, and that is the law to which we must appeal upon this subject."

In the case now under consideration, the evidence is clear and convincing as to the charge of cruelty of treatment and excessively vicious conduct on the part of the husband on various occasions, to entitle the wife to a decree of separation. The wife testified that at various times her husband struck her, was excessively cruel to her, and that his cruel treatment consisted of repeated blows, threats to kill and shoot her, and other vicious conduct. On one occasion, he struck her in the back with his fist. At another time, he pointed a loaded pistol and threatened to shoot her. He threw her, when in a delicate condition, over a chair, and she fell to the floor. She further testified that he repeatedly threatened to kill her, and his threats became so frequent she believed he would do so, and also kill her child; that he struck her and the child on the night of the 12th of April, and repeatedly struck her when in bed; and that he repeated the blows on the morning of the 13th of April. She also testified that she had often forgiven him for his treatment, but after the night of the 12th of April and the following morning she felt that her safety and that of her child required, she should leave him, and seek protection in the home of her parents. The testimony of the

wife, as above stated, is fully corroborated by other witnesses produced on the part of the appellant, and by the admissions of the husband himself. Mrs. Dora Hugo testified that Mr. Sharp admitted that he had beaten and struck his wife, and this was the cause of her leaving him; that he blamed it on his bad temper. We have also the admissions of the husband, in the presence of the witness John Hugo, and to the father and mother of the wife, that he had repeatedly struck her. "It is all my fault." "It is all my accursed temper. Then I don't know what I am doing." Mr. and Mrs. Laubheimer further testified that the wife was almost a physical and mental wreck when she came to their home, and in this they are corroborated by the testimony of Dr. Charles E. Brack, who was called to render medical aid to Mrs. Sharp, who was then suffering from extreme nervousness, the result of ill treatment by her husband. But, apart from this, we have the letters of the husband to the wife, dated the 13th and 23d of April, 1904, after she had left him, wherein he asks forgiveness and practically admits the cruel way in which he had treated her. These letters, in connection with the other evidence in the case, fully establishes the charge of cruelty of treatment alleged in the wife's bill.

The principles and rules of law upon which this and similar cases must rest are fully stated by this court in Hawkins v. Hawkins, supra, and in Barrere v. Barrere, 4 Johns. Ch. (N. Y.) 189. Mr. Nelson, in his work on Divorce and Separation (293), says: "It is not necessary to wait until an injury has been inflicted, for the law will, in a proper case, interfere to prevent an injury which will probably be inflicted. The court interferes not so much to punish an offense already committed, as to relieve the party from an apprehended danger. Assuredly, says Lord Stowell, the court is not to wait until the hurt is actually done. If a husband threatens to shoot his wife, and shows a disposition to do so, the court will interfere, without waiting until he has shot her or attempted to do so. Nor is it necessary to wait until the defendant has attempted to execute his threats, since that would be folly in most

cases. Where from evidence of hatred, malice, high temper, violent conduct, habits of intoxication, and lack of self-control, the court apprehends that injury to the plaintiff's health will follow, then it will interfere. Where violence has been inflicted and threats are made, the court should not hesitate to interfere, as the past, when considered with the attitude of the defendant, makes it clear that the violence will be repeated."

Applying and adopting the principles of law announced in the adjudicated cases and text-writers to the facts of this case, there can be but one conclusion for us to reach; and that is that the wife is entitled to a decree for separation. We have examined with some care the very able and carefully prepared brief submitted by the learned counsel for the appellee and the authorities there cited; but we are unable to agree that they apply to the facts of this case. While we agree that the conduct of the wife is not entirely free from censure, yet it was not such as to call for or justify such inhuman and cruel treatment as the evidence in the case shows was repeatedly inflicted by him. In this case, as in Hawkins v. Hawkins, supra, "the charge of cruelty of treatment is fully made out, and that entitles the plaintiff to a decree for a separation." It will be seen, however, that by section 37 of article 16 of the Code it is provided that, in all cases where divorce a mensa et thoro is decreed, it may be revoked at any time thereafter by the court granting the same, upon the joint application of the parties to be discharged from the operation of the decree.

For the reasons we have given, we are of the opinion that the court below was in error in dismissing the plaintiff's bill, so the decree of the 28th of September, 1906, will be reversed, and the cause remanded, to the end that a decree may be passed in accordance with the foregoing opinion; the wife's property rights, alimony, and the care, education and custody of the children to be subject to the future order of circuit court No. 2 of Baltimore City.

Decree reversed, and cause remanded, with costs in this court and the court below.

(6 Pen. 288) REMINGTON MACH. CO. v. WILMINGTON

CANDY CO.

(Supreme Court of Delaware. May 6, 1907.) 1. EVIDENCE-HEARSAY-MEMORANDUM.

In an action for breach of warranty of a machine for the manufacture of ice, slips showing the amount of ice used in the business were offered in evidence. They were made by plaintiff's bookkeeper, in one instance on information from plaintiff's ice cream man, and in the other on information from plaintiff's soda man, verified by the ice cream man. The bookkeeper and the ice cream man each testified that the entries were correct at the time they were made. Held, that the slips were admissible as auxiliary to the testimony of the witness who made them, supported by the testimony of the witness upon whose information the ice entries thereon had been made, abové defendant's objection that they were hearsay.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 1445.]

2. SAME-DOCUMENTARY

EVIDENCE-PRIVATE

MEMORANDA AND STATEMENTS.

Entries made on slips of paper by the bookkeeper, on information furnished him by the ice cream man and the soda man, as to the amount of ice used, were entries made in the usual course of business by a person who had no purpose to misstate what had occurred, and were admissible in evidence, where verified and adopted by the person who made them.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 1445.]

8. SALES WARRANTY BREACH -EVIDENCE-ADMISSIBILITY.

ACTION

In an action for breach of warranty of a machine for the manufacture of ice, the issue was one concerning the capacity of the machine. Slips were admitted in evidence to show the amount of ice bought, so that the amount of ice actually made by the machine could be shown by the difference between the ice consumed and the ice bought. Held, that the slips, connected with the testimony promised to be introduced, tended to show the amount of ice made by the machine, and hence were conditionally relevant and admissible..

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, § 1273.]

4. TRIAL-OBJECTIONS TO

DRAWAL FROM JURY.

EVIDENCE-WITH

Where evidence introduced was only conditionally relevant in connection with other evidence which plaintiff promised to introduce, and the failure of plaintiff to make good its promise rendered the evidence irrelevant and inadmissible, the court did not err in failing to withdraw it from the jury, where defendant made no application therefor.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 239.]

5. SAME-OBJECTIONS-TIME TO OBJECT.

In an action for breach of warranty of a machine, an objection that it was not operated in accordance with defendant's instructions during the period covered by plaintiff's evidence of the incapacity of the machine, made after the evidence was admitted, was too late.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 185.]

Error to Superior Court, New Castle County.

Action by the Wilmington Candy Company against the Remington Machine Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before NICHOLSON, Ch., and SPRUANCE and BOYCE, JJ.

66 A.-30

J. Harvey Whiteman and Victor B. Woolley, for plaintiff in error. John F. Neary and John W. Brady, for defendant in error.

BOYCE, J. This was an action of assumpsit, brought by the Wilmington Candy Company against the Remington Machine Company upon an alleged breach of the warranty contained in a contract between the parties for the manufacture, erection, and installment of a refrigerating and icemaking machine and plant. The warranty was in the following words, to wit: "We guaranty this plant to be first-class in every respect; that it will be capable of doing an amount of work equal to the melting of six tons of ice per day of 24 hours, when operated in ac cordance with our instructions; and that, while running 12 hours per day, it will be capable of making one ton of ice in the tank supplied, and cooling the rooms, while in operation, to the temperature required." The plaintiff prevailed in the court below, and the defendant, taking bills of exceptions, has filed in this court an assignment of five errors. The first charges that the court improperly admitted, on behalf of the plaintiff, certain documents, called "time slips," and designated as "Plaintiff's Exhibit No. 4." The second, being directed against the admission of other time slips, designated as "Plaintiff's Exhibit No. 5," is otherwise the same as the first. The third charges that the said Plaintiff's Exhibit No. 4 was erroneously admitted, "for the purpose of proving the incapacity of the plant to make ice in the quantity warranted." The fourth, being directed against the admission of the said Plaintiff's Exhibit No. 5, is otherwise the same as the third. The fifth charges that the said Plaintiff's Exhibits Nos. 4 and 5 were erroneously admitted, "showing the quantity of ice consumed by the plaintiff below in its business, which said ice was proved to have been obtained from two sources, namely, ice made by the ice plant and ice bought from ice dealers, for the purpose of proving the incapacity of the plant to make ice in the quantity warranted."

The issue raised by the pleadings was one of fact, affecting the question of the capacity of the said machine and plant to conform to the warranty contained in the contract under which the defendant had installed it for the plaintiff. At the trial the plaintiff introduced evidence for the purpose of showing (1) that the said machine and plant had not met the requirements of the said warranty, and (2) that it could not meet them, because of defects in its construction and design. It was under the first branch of the plaintiff's testimony that the said time slips were admitted in evidence. Before seeking to introduce them, it appears that counsel for plaintiff had shown that a daily record of the amount of ice made by the machine had been kept in the usual course of its business, that the person whose duty it

was to keep such record had not at that time been located, and that the record so kept had been mislaid or lost; and it was attempted to prove by means of certain other regular entries made by the plaintiff's employés, in the usual course of their employment, the amount of ice made daily by the said machine, from and after June 29, 1903-the plant having been started on May 12 preceding (1) by showing the daily amount of ice used by the plaintiff in its business; (2) by showing that all the ice so used was not made by the machine, but had been derived from two sources, namely, ice made by the machine and ice bought from dealers; and (3) by showing the amount of ice bought daily. The purpose of this method of proof was to show that the amount of ice actually made daily by the machine was the difference between the amount of ice consumed and the amount of ice bought daily. It was in this connection that the said time slips were offered and admitted in evidence. While it appears at another stage of the case that there were some expressions of uncertainty respecting the purpose for which the slips were admitted, it is manifest that the purpose for which they were offered was well understood, and that they were admitted for the purpose of showing the amount of ice consumed by the plaintiff.

The circumstances under which the ice entries on the said time slips were made by the person who made them, the objections urged against their admissibility, and the object of their admission may now be stated. Smith, the ice cream maker for the plaintiff, testified, in substance, that he received daily all the ice made by the machine from the ice tank down the chute to his department; that he marked on a slip of paper, kept on a nail for that purpose, each cake of ice made as it come to him; that be marked on the same slip the amount of ice bought, as it was delivered to him; that he was not only required to do this, but was also required to keep a daily slip, called a "time slip," showing the amount of goods made by him each day; that Mr. Griffenberg, the bookkeeper, in the usual course of getting the day's reports, would come every evening and take the time slip and ask for the amount of ice he had used that day, which he would report to Griffenberg, and that the latter would mark it down on the time slip in his presence; that all the entries on the time slips, except those relating to the ice, were made by him, and that Griffenberg, in his presence and upon his information, made the ice entries on the time slips. Both Smith and Griffenberg testified as to the manner in which the slips were kept respecting the ice entries, and each testified that they were correct. Griffenberg was on the stand when the slips known as "Exhibit No. 4" were first offered in evidence. Counsel for the defendant objected, and, so far as the record discloses, for the following rea

sons:

"The man who has testified as to receiving this ice is Smith, that he kept his account of the original amount, so many hundred pounds per day, and recited what he and this witness would do when they met. We contend that those slips are nothing more than memoranda for the refreshment of the memory of this witness upon a matter which is clearly hearsay testimony. Smith is the only man that knows, between these two men, as to the amount of ice that came down the chute. Smith told this gentleman, and this gentleman can only testify as to what Smith told him. Therefore his testimony is hearsay, and is not relevant, especially in view of the fact that we have had the testimony of Mr. Smith himself directly upon the point." The offer was rejected, and Smith was recalled and re-examined at length as to the mode of keeping the account of all the ice which came to his department, whether made by the machine or bought, and the manner of accounting for the same to Griffenberg; and, in answer to the question, "Do you say that the figures on each one of those slips represent the correct amount of ice consumed?" he replied, "Yes, sir." Griffenberg, being recalled, was asked, among other things, “Are those entries, as made by you, accurate with respect to the reports given you by Mr. Smith as to the ice?" and he replied, "Yes, sir." The offer was renewed, and counsel for the defendant again objected, and, so far as the record discloses, for the reason "that the slips were hearsay evidence, contending that the ability of the defendant to cross-examine with respect to the slips was curtailed by reason of the fact that the witness now upon the stand knows nothing about the slips, except what he heard from Smith, who, being off the stand, cannot now be cross-examined by the defendant." The slips were admitted in evidence "for the purpose of showing the quantity of ice."

The slips, designated as "Plaintiff's Exhibit No. 5," were taken up for the purpose of showing the amount of ice used and charged to the "soda man," who was not produced as a witness. Smith and Griffenberg were examined. The general result of their examination shows that Griffenburg, to obtain daily reports from the soda man, as he did from Smith, went to the former for the slips which he was required to keep, and obtained from him information concerning the ice used by him, and then went to Smith to ascertain whether the information thus obtained was correct. The entries on these slips were brought under the inspection of Smith. If the latter found any errors, Griffenberg made correction in the entries from information given him by Smith. Upon this testimony the said slips were offered in evidence, and it is said in the record that they were objected to "as hearsay; the contention being that the slips were made up in this case from the hearsay evidence of two men, Smith and an unknown man, the soda man." The offer

was rejected. Further testimony respecting the mode of keeping the slips having been introduced, the offer to admit them in evidence was renewed. Objection was made on the ground as before stated-as hearsay evidence; it being contended that the witness had said he made up these slips from two sources, from Smith and the soda man, and the soda man is not here to be cross-examined. It being suggested that Smith was the man charg ed with the keeping of the account of the ice received and ice used in the plant, the slips were admitted in evidence on the same footing as those first admitted. On further crossexamination of Griffenberg, it was shown that he did not have any knowledge of the accuracy of the entries upon the slips respecting the ice used, except such as he had obtained from Smith and the soda man.

Counsel for the plaintiff then sought to show the amount of ice bought each day, during the period covered by the said slips, by offering in evidence successively (1) the bills rendered to the plaintiff for ice bought; (2) the receipts, showing payments for ice bought; and (3) the plaintiff's book entries of the ice bought. But each, in turn, was objected to and excluded. It was at this stage of the case that the expressions respecting the purpose of the admission of the said slips, to which we have alluded, were made. The amount of ice which the machine could make, under the conditions required by the warranty, was a pertinent fact to the issue, because such a fact would tend to throw light upon the capacity of the machine. It was to show the amount of ice made by the machine-by an indirect method, it is true that the slips were offered in evidence. Primarily, they were offered for the purpose of showing the amount of ice used by the plaintiff, not, however, as an independent, unassociated fact, but in connection with another fact, promised to be shown, at the time the offer was made, namely, the amount of ice bought during the period covered by the slips; it being claimed that, with both of these facts established, the amount of ice actually made by the machine could be easily ascertained, it being the difference between the amount of ice used and that bought. But the plaintiff failed to show the amount of ice bought, and necessarily failed to show the capacity of the machine by the method of proof it had pursued. It therefore became necessary to proceed in a different method, which it did, but with which we are not concerned; the errors assigned in this case being confined to and directed against the admission of the said time slips under the circumstances substantially as stated.

Counsel for the defendant contended that the said exhibits were not admissible for two reasons. We can, perhaps, at this point better consider and dispose of the second of these, before taking up the several branches contained in the first. The second reason is: "If it be granted for the purposes of the ar

gument that the matter and thing recorded upon the time slips was a proper subject-matter of evidence, then it was not competent to prove the same by the time slips themselves, but only by the person who was the original source of such information, and the time slips could be legally used for no other purpose than to refresh the memory of the witness." Assuming, for the present, that the said time slips, so far as they related to the ice used by the defendant, were relevant and material, were they themselves admissible in evidence as auxiliary to the testimony of the witness who made them, supported by the testimony of the witness upon whose information the ice entries thereon had been made, or should they have been used only to refresh the memory of the witness? The question presented, affecting, as it does, the admissibility of entries made in the regular course of business or employment, is, in a measure at least, of first impression in this court. And, because of the conflict and want of harmony among the decisions, we have experienced considerable embarrassment in arriving at a conclusion based upon some sound principle. We have for this purpose examined into the origin and expansion of the principle of the hearsay exception applicable to this question as thoroughly, and stated our review as briefly, as we well could, in view of the citations it has been deemed essential to incorporate. In pursuing this course, we have necessarily gone outside of the question immediately before us, in order to show the origin and development of the principle which should control our judgment in determining the question under consideration.

In the argument our attention was directed to some of the rules respecting the admisslbility of parties' books of account. Such books have been and are received in evidence under the decisions of courts or by express legislative enactments. In this state the subject is regulated by a statute too familiar to require further notice. The principle recognized and adopted for the admission of such books, in the absence of a statute, like that applied to questions similar to the one before us, had its origin, it is true, among the hearsay exceptions; and in that sense the two were related-were analogous-but were never identical. We must, therefore, look beyond the shop-book rule for the solution of the question now presented. We find it generally held, in this country and in England, that entries made in the regular course of a person's business or employment are admissible in evidence on proof of the handwriting of the entrant after his death. This principle was recognized and adopted early in this country. The two leading cases are Welsh v. Barrett, 15 Mass. 380, and Nicholls v. Webb, 8 Wheat. (U. S.) 326, 5 L. Ed. 628. Parker, C. J., in the first of these cases, said: "The principle seems to be founded in good sense and public convenience. What a man has said when not under oath may not in