ant's lauds as so pointed out by R., and that if in fact there was a trespass, it was due to the acts and statements of said R. The mistake was denied by the M. C. Co. On appeal from an order dissolving a preliminary injunction which had been granted, it was held (1) that in such a case as this, averring a mistake to have been made in the deed of exchange, and setting up a verbal contract differing from the deed (which expressed the consideration to be the exchange of the lands described therein), and asking a specific performance of the verbal contract, the law was well settled that the terms of the contract must be accurately stated in the bill, and the proof must in every essential particular correspond with the terms of the contract thus set up. Semmes v. Worthington, 38 Md. 318. It is also well established that any agreement to merit the interposition of a court of equity to enforce it must be certain in all its parts and mutual; to correct a mistake by one of the parties as to what the contract was, is not the ground of such interposition, but a mistake in the execution of an agreement clearly understood and entered into by both parties. Griffith v. Frederick Co. Bank, 6 G. & J. 424; Gelston v. Sigmund, 27 Md. 334; Shepherd v. Shepherd, 1 Md. Chan. Dec. 244; 1 Story Eq., §767. The contract set up by the appellant is not, we think, upon the proof, in the light of the principles recognized by the authorities cited, satisfactorily made out. (2) A court of equity has no inherent power to ascertain the amount of damages sustained by reason of tortious acts unattended with profits to the wrong-doer. Kerr on Inj. (Eng. ed.) 221. There must be some joint interest or interest in common of the parties in the property for a court of equity to assess the damages. In a case of trespass where no such relations exist, we are aware of no ground upon which a court of equity can set up any other rule of damages than that which prevails at law. The rule for trespass in mining coal is well settled in Maryland. The right to maintain the action of quare clausum fregit exists in this State, whether the defendant committed the trespass unwittingly (as the complainant claims to have done) or willfully and wantonly. The owner of adjoining property is held to know the boundaries between him and his neighbor, If he has made a mistake bona fide as to his title or boundaries in mining coal, the lowest measure of damages applicable is the value of the coal immediately upon its conversion into a chattel without abatement of the cost of severance. If the trespass has been committed through negligence or design, punitive damages in addition may be recovered. Barton Coal Co. v. Cox and Cox Ex'rs, 39 Md. 1; Franklin Coal Co. v. McMillan, 49 id. 549; Blaen Avon Coal Co. v. McCulloh, 59 id. 403. An unwitting trespasser, merely as such, could not change the amount of his liability by simply changing the forum. No lower measure of damages for trespasses, not negligent nor willful, could be substituted in equity for that fixed at law, on general principles, for such trespasses. If a lower measure could be there applied merely because the trespasser was honestly mistaken, all such trespassers would seek the courts of equity when sued, and thus evade the rule established as applicable to them in the aforegoing authorities. Atlantic, etc., Coal Co. v. Maryland Coal Co. Opinion by Ritchee, J.

TRUST AND TRUSTEE-INVESTMENTS-GOOD FAITHDISCRETION.-The general rule applying to discretionary trusts is, that if trustees exercise discretionary powers conferred on them in good faith and without fraud or collusion, courts of equity will not undertake to control their discretion. Perry on Trusts, §§ 510 and 511. And the learned author cited says this is so, notwithstanding the court has taken jurisdiction of the trust, for it to be executed under its eye. In re

spect to the rule regulating the investment of trust funds, the same author says in sectious 452 and 460, that if there are special directions in the instrument creating the trust as to the kind of securities in which trust funds shall be invested, those directions must be followed; but that in the absence of such directions and powers the trustee must be governed by the statute law or rules of the court in the State where the trust is to be executed; and if there be no such law or rules of court, then they are to be guided by sound discretion and fair dealing or good faith. The authorities cited are all English, and this court has declared that the English rule has never been adopted in this State; because there is no law or rule of court of general operation which regulates the matter. Gray v. Lynch, 8 Gill, 405; Evans v. Iglehart, 6 G. & J. 192. In section 459, of Perry on Trusts, it is also stated that the rule he laid down was not adopted in Maryland. The learned judge, who decided this case below, certifies a general rule of that court respecting trusts administered in it, but he adds that the court was in the habit of ordering investments in other securities than those named in the rule certified. The general rules for equity practice recently promulgated by this court, under constitutional authority, make no provision on the subject. In Gray v. Lynch, 8 Gill, 419, the question was whether the trustees should be held liable for investments in bank stock of the United States Bauk, which failed; and the court held they were not auswerable for the loss; and that it would be grossly inequitable to charge them with it. The court said such investment was aualogically justified by the act of 1831, ch. 315, respecting investments by administrators and guardians under order of the Orphans' Court, which authorized investment in "bank stock or any other good security.' That provision still exists and forms the 237th section of article 93 of the Code, and supplies the same analogical justification in this case, of the investment made in gas stock, which when bought was probably deemed quite as safe and profitable an investment as any which could have been selected. We have had no suggestion that at that time it was not so regarded. Too much caution cannot be exercised by trustees in the investment of funds confided to their management, but wheu a discretion is clearly given, and its exercise is conceded to have been honest and with fairest intent, a court of equity will not charge such trustee, who is really faultless, with the results of an honest mistake in judgment. McCoy v. Hortirtz. Opiniou by Irving, J. [See ante, 188.]

CRIMINAL LAW.

"

CHALLENGE TO ARRAY-IRREGULARITY BEER" PRESUMED INTOXICATING.—(1) A challenge to an array of jurors ought not to be sustained on account of mere irregularities in the drawing of the jurors, or mere informalities on the part of the officers charged with the drawing of the same; yet where the statute specifi cally prescribes the class or list of persons from which the jurors are to be selected, the failure on the part of the officers to draw the jurors from the class or list prescribed is a sufficient ground to sustain a challenge to the array. State v. Yordi, 30 Kaus. 221; Thomp. Mer. Juris., § 143; Jones v. State, 3 Blackf. 37; Baker v. Steamboat, 14 Iowa, 214; Anon., 1 Browne (Pa.), 121; McCloskey v. People, 5 Park. 308. (2) In the absence of evidence to the contrary, beer will always be presumed to be an intoxicating liquor. Beer, according to Webster, is a fermented liquor made from any malted grain, with hops and other bitter flavoring matter. "When therefore the word 'beer' is used in court by a witness, the court will take judicial notice that it means malt and intoxicating liquor, or such

meaning will be a presumption of fact, and in the meaning of the word itself there will be prima facie proof that it is malt or intoxicating liquor that is meant." State v. Teissedre, 30 Kans. 477, 479, 484. When the defense is made that the beer sold is spruce beer, or ginger beer, or any other non-intoxicating beer, evidence thereof is competent; but the mere fact that under some formula a non-intoxicating liquor may be made, which is sometimes called beer, is wholly irrelevant, in the absence of proof that the liquor or beer sold was made from the formula. Sup. Ct Kans. State v. Jenkins. [ (2) See 46 Am. Rep. 621.] (32 Kans. 477.)

EX-J

GOSSIP FROM NEW YORK.

6,000 00

2,000 00 5,000 00 4,000 00 3,500 00 2,500 00

X-JUDGE FULLERTON has been the recipient of many congratulations on the subject of the suc cessful production at the Empire Theatre, London, of his son's comic opera, "The Lost Locket." The exjudge is as much surprised as those who did not know he had a musical sou. I went to see him on Saturday to find out if he could give me some particulars concerning the work. "I dont know any more about it," he said, "than what the cablegrams in the papers say. My son came to me about five years ago and told me he wanted to go to Europe. As he'd been a good deal of a home-boy I thought it might do him good to knock around the world a little, so I told him if he had the money he could go. I think he studied music pretty thoroughly in Germany and then went to London, where he seems to have made some valuable connections. I don't know any thing about music and don't care for it, and always thought he was wasting time over it, so in his letters he's said very little about his

operetta." When I told Judge Fullerton that Duff of the Standard thought of bringing out the operetta next fall, he instantly became interested. "We'll have to protect the copyright," he said, at once. Lucky composer to have your good father a good lawyer!

A batch of cases of considerable importance to admiralty lawyers are expected to come up in the United States District Court in a short time. They all grow out of the burning of the Inman Pier two winters ago, The legal questions are complicated by the fact, that while the goods for whose value various importers are suing, were destroyed by fire on the Inman Pier, many of them were unladen from the Egypt, of the National Line, and were shipped under National Line bills of lading; and further by the fact that owing to an accident to the City of Brussels, of the Inman Line, many cases of goods intended for that steamer were shipped from Liverpool on the Egypt under Inman bills of lading. Some plaintiffs have sued the latter line, some the National. As many legal questions of the same nature will be raised in all the suits, and much of the evidence will bear upou the whole batch, Judge Browne has ordered that they be tried together. Whatever Judge Browne's decision may be the cases will undoubtedly be carried to the Supreme Court, as many questions of vital importance to merchants and steamship companies are involved. Certainly every clause in the bills of lading limiting the liability of the companies will have to be passed upon. The plaintiffs propose to press a novel point very strongly, viz. : That the goods were illegally on the wharf at the time the fire occurred, the so-called "lay permit" of the collector, granting to the steamship companies permission to allow the discharged goods to remain on the wharf forty-eight hours, being contrary to law. It is claimed that the duties of the collector are defined and limited by statute; that there is no statute authorizing the issue of the "lay permit," and that the simple instructions of the secretary of the treasury (Sherman) to the collector that he might issue such perinits did not give him the necessary legal authority to do so.

One of our judges is known among the younger members of the profession as "the weak sister," because he is more frequently reversed than any other judge of his court. The other day I was discussing with a friend of mine, a motion which he was to argue the next morning before "the weak sister." "There's only one disadvantage under which our side will have to labor," he said, "but it's a great disadvantage." "What's that?" I asked. "We're in the right!" Aud he was beaten.

Roscoe Conkling has not been in court very frequently of late, which in one sense is a pity. For however greatly opinions as to his legal abilities may differ, there is no doubt of his ability to entertain the court, counsel and spectators. He does not confine himself to witticisms in his native tongue, but will even encroach upon the sacred precincts of the ancient lauguages. I once heard him make a Latin pun, which has not yet, that I am aware of, found its way into print. During the taking of some testimony he had been indulging in several Latin phrases, when in some way one of the counsel was led to remark, "What's sauce for the goose is sauce for the gauder; " he added, "The Senator cannot translate that, because he does not know the Latin for sauce." "Not know the Latin for sauce!" exclaimed Mr. Conkling; "why, it's mentioned twice in half a line of Virgil-'gravi jampridem saucia cura."

The counsel of Mr. Paul Bauer, the Coney Island pool seller, who has been pining for the ocean breezes the past week during an inforced occupation as nurse in Raymond street jail, Brooklyn, is protesting against Judge Moore's sentence on Mr. Bauer, not because it

is too long, but because it is too short. By the time your readers see this Judge Platt will have decided whether or not there is any thing in this protest. Meanwhile racing men will doubtless have been bestirring themselves to get the law authorizing pool-selling and betting generally on race-tracks through the Legislature. Their strong argument is that it is good for a country to have a fine breed of horses; that racetracks encourage the breeding of fine horses, and that without the patronage of those who are drawn to the races by the excitement of betting, racing associations could not support themselves. To this however it might be answered that if gambling on race-tracks were suppressed, the breed of "sports" might be improved. For at present as between the race-horses and the majority of the men who gather to see them run, the horses are by far the finer animals.

The other day I came in upon a theatrical manager as he was writing the following advertisement: "Wanted-A lawyer who can draw up a contract between a manager and an actor which the latter can't break." When I asked him in what paper he intended to insert it, he said: "It's a gag for the new burlesque I'm going to bring out. You don't suppose I'd advertise for such a contract. Why, it would be money thrown away. There's no such thing as a contract an actor can't break; at least not in this world. I never knew a contract yet that was proof against a case of big head." A case of big head arises when an actor who makes a success in a small part immediately considers himself entitled to all the privileges of a star. GUSTAV KOBBE.

NEW YORK, March 18, 1885.

CORRESPONDENCE.

"ENJOIN."

Editor of the Albany Law Journal:

Are you quite correct in your approval of Mr. Gilbert M. Tucker's criticism on the word enjoin as used by lawyers, and have they so perverted the meaning as to reverse it completely? According to Webster's Dictionary this verb is defined in its legal use "to prohibit or restrain by a judicial order or decree; and there is quoted, as an authority, a sentence from Kent in these words: "This is a suit to enjoin the defendants from disturbing the plaintiffs." So in Burrill's Law Dictionary a similar definition is given: "To command a person from doing a thing; to prohibit or restrain by express command." In the same work will be found the law French verb "enjoyndre," from which enjoin is derived, and reference is made to the use of that word by Britton over two centuries ago, and it has been followed up and used in that sense to the present day by judges and commentators of the law, whose pure English has never before been questioned. You rightly advise Mr. Tucker to go for the barbarians who use 66 'garnishee" as a verb; but do enjoin him to spare the lawyers who use that forcible word enjoin, which is almost a necessity in certain judicial proceedings. If age and usage are to be regarded in establishing the proper use of the English language, the word enjoin has a fixed and definite signification in our legal lore; and it is unnecessary to displace it by having recourse "to the vilest newspaper slang, injuncted," or substituting any other word in its stead.

ready before the Court of Appeals and its steadily increasing calendar, there seems to be a view of this subject that your correspondents have overlooked.

In our zeal to relieve that very worthy body of its onerous duties we should remember that our State is the largest in commercial importance of any, and contains the monetary center of the continent, hence it is no apology for us to refer to the courts of last resorts in other States, or to lament the larger amount of our legal business, and still impair the rights and opportunities of suitors to find a remedy.

Let us look for a moment at some branches of the courts; to illustrate, take the Surrogate Court of any county of New York State, and assume that we found the present Surrogate Court unable to hear and determine all cases that came before it. Would we restrict men from leaving estates, or prohibit dying? And still a large number of the cases in the Court of Appeals come up from that court. Another illustration might be drawn from the United States Patent Office. Many worthless inventions are patented. Can we say that a device must be rejected because the cost of the same and the interests it affects are small? By no means; to do so would cripple the industries of our whole country.

If we have sufficient business for twenty-one judges, why not employ them, and let them work in three sections, but in harmony with each other, and so classify them that while all do not hear the argument, the opinion in every case embodying any new question, or wherein the entire seven judges who hear the argument are not unanimous, or any case wherein they deem that justice will be promoted thereby, shall be read before all the judges, and concurred in by a majority, thus seven judges would hear and decide every case, and cases involving close questions and such as are of especial magnitude, would receive the scrutiny and thought of twenty-one.

Since the writer of this has been connected with the courts of this State the amount has substantially been made to determine in many cases the merits of the coutroversy by making only those cases involving a certain amount or upwards appealable to that court; this together with the compulsory stipulation for judgment absolute, renders it upon the border line of discrimination in favor of restricting appeals to the few, a practice in my judgment most pernicious, and unworthy the great Empire State.

These are but suggestions, which we hope may call out the thoughts and opinions of other and abler minds upon both sides of this important subject.

In the meantime we await with much interest any elaboration that "will amount to satisfactory demonstration" that a class of counsel for the Court of Ap peals and for work in banc will ever be of very much service to suitors (who are really the parties whose necessities are greatest) in facilitating their rights or interests.

ROCHESTER, March 9, 1885.

THE

COURT OF APPEALS DECISIONS.

K.

HE following decisions were handed down Tuesday, March 17, 1885:

Judgment reversed and judgment on case ordered for defendant-Theodore H. Benediot and another, respondents, v. William H. Webb, appellant.-Judg ment affirmed with costs-Sylvia A. White, respondent, v. William Law, executor, appellant; George S. Allison, respondent, v. Rosa Schmitz and others, appellants; Margaret Parker, administratrix, respondent, v. Ulster and Delaware R. Co. Judgment reversed, new trial granted, costs to abide the eventMayor, etc., of New York, appellant, v. Hannah A. Kelly, administratrix, etc., respondent. -Order affirmed with costs-William Custer, respondent, V. Green Point Ferry Co., appellant. -Orders reversed with costs-Mary Emma Wyckoff, respondent, v. Seth W. Scofield and others, appellants.- -Motion for restitution denied, $10 costs-Ambrose S. Murray, etc., respondent, v. Robert H. Bedell and others, appellants. Motion for restitution granted, $10 costsMargaret C. Wallace, eto., respondent, v. Robert H. Rerdell, appellant.