a defendant has been summoned, and fails to appear on the return day, the justice shall fix subsequent day for trial, not less than 6, nor more than 14, days from the return day, does not apply to attachment proceedings.

3. An application for a writ of certiorari to review attachment proceedings, on the ground that no bond was given, must show that the attachment was based on fraud, since in that case, only, is a bond necessary.

Appeal from circuit court, Prince George's county.

Action by Thomas B. Lewis against George B. Weed and others. Judgment for plaintiff. From an order denying a writ of certiorari, defendants appeal. Affirmed.

Argued before ROBINSON, C. J., and ROBERTS, PAGE, BOYD, FOWLER, and MCSHERRY, JJ.

Wm. A. Meloy, for appellants. J. S. Rogers, for appellee.

MCSHERRY, J. This is an appeal from

order of the circuit court for Prince George's county, refusing to issue a writ of certiorari. The facts alleged in the application for the writ are substantially these: On the 22d day of June, 1894, the appellee caused a writ of attachment and summons to be issued by a justice of the peace of Prince George's county against the appellants, under which attachment certain property of the appellants was seized, and they were notified to appear before the justice on July 16th, at 10 o'clock a. m., the return day named in the attachment. They failed to appear on the return day, and the justice entered judgment of condemnation of the property seized. In eight days thereafter the application for the writ of certiorari was made. The application was based upon the assumption that the justice of the peace ought on the return day, and upon the failure of the defendants to appear, to have continued the case for not less than 6, nor more than 14, days for trial, and also upon the alleged irregularity that no bond had been given before the attachment was issued.

In the recent case of Gaither v. Watkins, 66 Md. 576, 8 Atl. 464, it was contended that a certiorari ought not to issue in any case where a party has a remedy by appeal or writ of error; but this court said: "We are not prepared to go to this extent. This much, however, we may say: That, as it is a matter resting in the legal discretion of the court, the writ ought not to be granted in any case where the party has a right of appeal, except for the purpose of testing the jurisdiction of the tribunal below." Now, the Code of Public General Laws gives to justices of the peace jurisdiction to issue attachments by way of execution (Code, art. 52, § 67); also, against nonresident or absconding debtors (Id. § 39); and also for fraud (Id. §§ 6, 45),-when the amount claimed in any of

these instances does not exceed $100. It does not appear by the petition for the writ of certiorari to which class of attachments the one complained of belonged; but if it belonged to any, and the amount claimed was not in excess of $100, the justice had undoubted jurisdiction of the subject-matter. If, having jurisdiction of the subject-matter, he subsequently proceeded irregularly or erroneously, this in no manner affected his jurisdiction, and the appropriate and only remedy was by an appeal from his judgment to the circuit court, for which appeal the law makes ample provision. Code, art. 5, § 83. This proposition was also distinctly decided in Gaither v. Watkins, supra. As there are no averments in the petition for the writ showing that the justice had no jurisdiction to issue the attachment in question, the circuit court was right in refusing to issue the certiorari. So far as the petition, which is the only thing before us, discloses the facts, there were no irregularities committed by the justice. As stated, the two grounds set forth in the petition are the failure of the justice to continue the case beyond the return day for trial on some subsequent date, and the failure of the justice to require a bond from the plaintiff before issuing the attachment. The first ground is founded on the assumption that section 21 of article 52 of the Code applies to writs of attachment. That section provides that when a defendant is returned summoned, and fails to appear on the return day, the justice shall fix a subsequent day for trial; not less than 6, nor more than 14, days from the return day. It is clear we think that this provision has no relation to attachments, but applies only to ordinary suits or actions instituted before a magistrate. Section 42 of the same article directs that, if the defendant or the garnishee shall not show cause to the contrary, the justice may condemn the property; and section 44 requires this cause to be shown by the garnishee on the return day of the attachment; and no other provision exists giving the defendant any other or different day to appear except section 43, which has no application as the case now stands. The other objection is equally untenable. A bond is required in attachments for fraud. The petition does not disclose that the attachment complained of was such a proceeding, and we are not warranted in assuming that it was. It is thus apparent that nothing has been set forth on the face of the petition to show that the justice of the peace had no jurisdiction in the premises; and, as the writ of certiorari will only be issued where it is alleged, and appears, at least in a prima facie manner, that the inferior tribunal is without jurisdiction, the circuit court was right in refusing the writ, and its order will be affirmed. Order affirmed, with costs above and below.

JACKSON v. BENNETT et al. (Court of Appeals of Maryland. Nov. 22, 1894.)

LOCATION OF OYSTER BED-VALIDITY-APPEAL FROM CIRCUIT COURT.

Under Code, art. 72, § 39, providing, in regard to the appropriation of waters for bedding oysters, that, if the appropriator be charged with wrongfully locating a natural bed of oysters, the question may be submitted to the circuit court, whose decision, after notice to parties interested, "shall be conclusive evidence" in regard to the title to the waters appropriated. the jurisdiction of the court being a special jurisdiction, and no appeal being expressly granted, its decision is not appealable.

Appeal from circuit court, Dorchester county.

Proceedings by William C. Bennett and others against Elihu E. Jackson to determine the validity of an appropriation of waters for the purpose of bedding oysters. From a judgment against defendant, he appeals. Affirmed.

Argued before ROBINSON, C. J., and BRISCOE, MCSHERRY, FOWLER, ROBERTS, PAGE, and BOYD, JJ.

Toadvin & Bell and J. R. Pattison, for appellant. P. L. Goldsborough and Alonzo L. Miles, for appellees.

ROBINSON, C. J. Section 39, art. 72, of the Code provides that any owner of lands bordering upon any of the waters of this state shall have the right to locate and appropriate in any of the waters adjoining his lands one lot of five acres, for the purpose of protecting, preserving, and bedding of oysters, and any male citizen of the state shall have the power to locate and appropriate one lot of five acres, and no more, in any of the waters of the state; provided 30 days' notice, in writing, shall be given to the owner or occupaut of land bordering on said waters, and provided, however, that no natural bar or bed of oysters shall be so located and appropriated. And the Code further provides that if any one shall be charged with locating any natural bar or bed of oysters, contrary to the provisions of the statute, the question may be at once submitted by any person interested to the judge of the circuit court of the county where such questions shall arise, who, after having given notice to the parties interested, shall proceed to bear testimony, "and his decision shall be recorded, and shall in all cases be conclusive evidence of title in regard thereto." Upon the petition of sundry citizens of Dorchester county entitled to take oysters within the waters of said county, the learned judge of the circuit court of that county, to whom the question was submitted, being of opinion that the lot located by the appellant was a natural bar or bed of oysters, adjudged that the appellant acquired no title to the lot in question, and ordered that the location thus made by him be set aside; and from this judgment this appeal is taken.

No principle is better settled than, where a tribunal exercises a special jurisdiction conferred by statute, its judgment is final and conclusive, unless the statute provides for an appeal. Rundle v. Mayor, etc., 28 Md. 356; Page v. Mayor, etc., 34 Md. 558; George's Creek Coal & Iron Co. v. New Central Coal Co., 40 Md. 425. In the statute now under consideration no provision is made for an appeal from the judgment of the judge of the circuit court, upon whom this special jurisdiction is conferred. On the contrary, it provides that his decision in the premises shall be final and conclusive as to the title of the lot in question. And, this being so we have no power to review the judgment rendered by him. Appeal dismissed.

LOOMIS v. DEETS.

(Court of Appeals of Maryland. Nov. 23, 1894.)

ACTION BY PARENT-DEPRIVATION OF CHILD'S SERVICES-EVIDENCE-INSTRUCTIONS.

1. In an action by a father for depriving him of the control and services of his son, it appeared that the son was by the father hired to defendant, for whom he worked for three years; that the father went to collect some wages of the son, and defendant stated that he had paid the money to the boy; and that the father said the son should go home with him, to which defendant consented, but the boy refused to go. Defendant declined to let plaintiff go into his house to get the boy's money and clothes, and then went away, and, when he returned, the boy was gone. The boy testified that defendant never advised him as to how to act towards his father. Held, that there was no evidence that defendant, intending to deprive plaintiff of the control and service of his son, harbored him, and refused to allow plainff to get possession and control of him.

2. In such a case a charge that if the jury believed that the son left defendant's employment and went away to escape from the control of his father, and to prevent him from collecting his wages; that the boy's conduct was caused by the father's threat to have him arrested; that defendant did not influence or persuade him to act as he did, and did not harbor him after he had so acted,-their verdict should be for defendant, was proper.

Appeal from circuit court, Harford county. Bi by Lorenzo B. Loomis against Samuel Deets for depriving plaintiff of the control and services of his son. Judgment was rendered for defendant, and plaintiff appeals. Affirmed.

Argued before ROBINSON, C. J., and McSHERRY, FOWLER, PAGE, ROBERTS, and BOYD, JJ.

Jas. J. Archer and W. W. Preston, for appellant. Gco. L. Van Bibber, for appellee.

BOYD, J. This suit was instituted by the appellant against the appellee. There are two counts in the declaration. The first alleges that the defendant unlawfully, wrongfully, and unjustly enticed, persuaded, and procured the infant son of the plaintiff to leave and absent himself from the service and control of the plaintiff, well knowing

him to be the infant son and servant of the

plaintiff, etc. The second alleges that this

son refused to submit to the lawful authority and control of the plaintiff, and left his service without his consent and against his will; that the defendant, knowing the premises, and intending to deprive the plaintiff of the control and service of his son and. servant, received, harbored, detained, and kept the said infant, and refused to allow the plaintiff to obtain possession and control of him, etc. The only exception taken was as to the ruling of the court on the prayers, three of which each side offered. The court granted the plaintiff's first and third, and rejected his second. The defendant's first and second were granted, and his third rejected. The verdict being for the defendant, the plaintiff appealed to this court. The plaintiff's first prayer was as to the right of recovery under the first count of the declaration, and the second was confined to the second count.

The jury was instructed by the defendant's first prayer that there was no evidence to entitle the plaintiff to recover under the second count. The defendant's first and the plaintiff's second prayer can therefore be considered together. The testimony of the plaintiff himself shows that he hired his son, Lorenzo, to the defendant in August, 1889; that the defendant agreed to pay him four dollars a month with board, washing, etc. In January, 1890, it was increased to five dollars per month, and in April, 1891, the defendant agreed to give him six dollars. In the spring of 1892 the defendant sent Lorenzo to the plaintiff, saying that he was willing to increase his wages to eight dollars a month on April 1st. The plaintiff agreed to this, "as his son seemed to like the place.' On the 11th or 12th of July, 1892, the plaintiff went to the defendant for twelve dollars, when he was informed that the defendant had paid his son the money. He then said his son would have to go home with him, "and the defendant told him to take him if he wanted him." The boy refused to go, and the father threatened to have him arrested. The defendant and his son laughed when the boy refused to go, and the defendant declined to let the plaintiff go into his house to get the boy's money and clothes. The defendant went to his mill shortly after the plaintiff left, and, when he returned, he found the boy had gone, which he says was without his knowledge or advice; and in this he was not contradicted, but was confirmed by the boy, who testified that "Mr. Deets never advised him to leave, or how he should act about his father." The evidence is conclusive that the son remained with the defendant from August, 1889, until the 11th or 12th of July, 1892, the day he left, with the knowledge and consent of the plaintiff. The record wholly fails to sustain the allegation in the second count that the son left the service of the plaintiff with

out the consent and against the will of the

latter, up to the day in July, 1892, when he

left the defendant's house, and the plaintiff's own evidence shows the contrary. There is no legally sufficient evidence that the defendant received, harbored, detained, and kept the son, and refused to allow the plaintiff to obtain possession and control of him. While questions of fact are ordinarily for the jury, it is for the court to say whether there is any legally sufficient evidence to be submitted to them. That rule has been established over and over again by this court, and a careful application of it is not only proper, but often necessary, for the ends of justice. After July, 1892, this boy was at the house of the defendant one night; but it would scarcely be contended that the defendant had rendered himself liable for damages because he permitted him to remain there overnight, unless there was some evidence that it was his intention to thereby aid the son in his effort to resist the control of his father. If the evidence of the plaintiff is applicable to any part of the declaration, it is to the first count; and, as the evidence relative to that count was submitted to the jury with the instructions of the court, the plaintiff has not been injured by the granting of the defendant's first, or the rejection of the plaintiff's second, prayer.

The defendant's second prayer fairly presented to the jury the facts contained in it. If the jury believed that the son left defendant's employment and went to Montgomery county to escape from the control of his father, and to prevent him from collecting his wages; wages; that the boy's conduct was caused by the threat of the plaintiff to have him arrested; that the defendant did not influence or persuade him to act as he did, and did not harbor and conceal him after he had so acted,-then their verdict would properly be for the defendant under the evidence in the case, although the jury may have found that the defendant disapproved of plaintiff's conduct towards his son, and so expressed himself. There was no evidence tending to show that the boy had ab sented himself from the control and service of the plaintiff until he left in July, 1892, and went to Montgomery county. On the contrary, as we have already said, he was at the defendant's house under the agree ment between the plaintiff and defendant. Even if it be admitted that the defendant was exerting improper influence over the boy while he was with him, which, finally resulted in his leaving in 1892, that was left to the jury by this prayer to determine. One of the material questions left for them to find was whether Dects did influence or persuade Lorenzo to act as he did. The per suasion and influence of the defendant woul.1 not be actionable unless the plaintiff was thereby injured; and he certainly was not injured before July, 1892, when his own son left his service, or, what amounted to the

same thing, the service of the one to whom he had hired him.

We are not called upon to determine in this case whether the plaintiff is entitled to any of the boy's wages under the agree ment. If the defendant wrongfully paid the boy his wages, the plaintiff has his remedy, but not in this case. We think the plaintiff got the benefit of all the law he was entitled to, and the judgment must be affirmed. Judgment affirmed, with costs to the appellee.

DEVOE et al. v. SINGLETON. (Court of Appeals of Maryland. Nov. 22,

1894.)

REVIEW ON APPEAL-RULINGS ON EVIDENCE-DEFECTIVE RECORD.

1. The admission of the answer to a certain question is not ground for review, unless the answer is set out in the record.

2. The admissibility of testimony of a witness on cross-examination cannot be determined on appeal, where the record does not contain the testimony in chief.

Appeal from circuit court, Harford county. Action by Mary O. Devoe (by her husband and next friend, Thomas B. Devoe) and H. G. Wheeler against Martha M. Singleton to contest the purported will of defendant's husband. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

Argued before ROBINSON, C. J., and BRYAN, BRISCOE, MESHERRY, FOWLER, ROBERTS, PAGE, and BOYD, JJ.

yet officially reported) 28 Atl. 101. In the case last cited, we held that the refusal to allow a proper question to be answered is, in itself, a reversible error. "If the question was, in itself, a proper and pertinent one," says Robinson, C. J., who delivered the opinion of the court, "it was quite unneces sary for the defendant to state the purpose for which it was offered. The record does not, it is true, show what would have been the answer to the question, and this the record could not show, for the reason that the witness was not allowed to answer." And these remarks apply to the second exception. The court below refused, on cross-examination, to allow the same witness, Micheal, after the will was read to him, to answer the question as to whether he thought the disposition of the property thereby made by the testator was an intelligent and proper one. Perhaps this question would have been proper on cross-examination, if there were any testimony in chief on which to base it; but, so far as the record shows, there was none whatever, and the court committed no error in refusing to allow the witness to answer. What we have said in regard to the first bill of exceptions applies also to the third, for it appears that the witness was allowed to answer the question objected to, but the answer it not set forth in this record. Rulings affirmed.

JONES et al. v. CONCORD & M. R. R. et al.

J. M. Street, for appellants. Geo. Y. Maynadier and J. Royston Stifler, for appellee.

FOWLER, J. Issues involving the validity of the will of the late William L. Wheeler were sent from the orphans' court of Harford county to the circuit court thereof, to be tried before a jury, and during the trial three exceptions were taken by the plaintiffs to the rulings of the court below as to the admissibility of certain testimony. In regard to the first exception, it is sufficient to say that even assuming that there was error in allowing the witness Micheal to answer the question as to whether the testator was competent, in the opinion of the witness, to execute a valid deed or contract at the time of the execution of the will, yet the answer is absent from the record, and it is therefore impossible for us to know what it was. It may have been either injurious or beneficial to the plaintiffs. The answer of the witness not having been set forth in the bill of exceptions, it does not appear that the plaintiffs were injured thereby. In order to justify a reversal, there must be both error and injury apparent from the record. Lawson v. Price, 45 Md. 123; Turnpike Co. v. Crowther, 63 Md. 558, 1 Atl. 279; Baltimore & Y. T. Co. v. State, 63 Md. 578, 1 Atl. 285; and Commissioners v. Gantt (not

borough. July 29, 1892.) RAILROAD COMPANY-INCREASE OF CAPITAL STOCK INJUNCTION BY STOCKHOLDER LEGISLATIVE AUTHORITY-NOTICE OF MEETING ESTOPPELLEASE OF RAILROAD-VALIDITY.

1. Where a corporation whose stock is divided into several classes is allowed by statute to increase its capital, the stockholders may, at a meeting called to take action on the proposed increase, provide that the new stock shall be apportioned among all classes of stockholders who may subscribe therefor at par in proportion to their respective holdings, if the only distinction between the several classes of stock is the right to share in the earnings and savings of the corporation.

2. Laws 1889, c. 5, § 10, authorizing an increase of the capital stock of the C. & M. R. R., is a valid grant, and in so far as it is repugnant to Gen. Laws, c. 158, §§ 8, 9, prohibiting the increase of the capital stock of any railroad corporation without the consent of the legislature, and prohibiting the issuing of certificates after the number of shares specifically limited under the charter of such company shall have been issued, unless authorized by the legislature after its charter and before the issue, is a repeal of that act.

3. Where a corporation whose stock is divided into preferred and common shares is authorized by statute to increase its capital, and nothing is said in the act as to the class to which the increased stock shall belong, the inference is that it is to be common stock.

4. Where, under a resolution of the stockholders of a corporation, each stockholder is given the right to purchase increased stock at par in proportion to his holdings, a stockholder who is unwilling or unable to take the stock at

the terms offered cannot complain that the stockholders taking the stock gained an advantage over him, as his right to take the stock may be the subject of a sale.

5. A notice to stockholders, which states that the object of a meeting is "to see if the stockholders will adopt chapter 3 of the Laws of 1891, authorizing an increase of the capital stock of the corporation, and vote to increase the capital stock to the amount within the limits authorized by existing laws, and to pass such other votes relating to the increase of capital stock as the stockholders may desire," is sufficient, it not being necessary to specify the object of the proposed increase of stock.

6. Where the legislature authorizes a railroad company to increase its capital stock to a certain amount for a certain purpose, the courts will not, in an action by a stockholder to enjoin the issue of the increased stock, inquire into the necessity of the increase.

7. A stockholder of a railway company, who has joined in procuring a grant from the legislature empowering the company to purchase another road and build an extension thereof and to increase its capital for that purpose, cannot, after the company has expended money on the extension with his acquiescence, claim that it has no right to issue the increased stock till it has agreed to buy the road to which the extension is being built.

8. Where a cor.templated distribution by a corporation of increased stock is beneficial to the stockholders generally, an individual stockholder cannot have the issue of the stock enjoined on the ground that some other distribution thereof would be more profitable to him.

9. The right of the stockholders of a railway company to lease its road under Pub. St. c. 156, § 21, authorizing stockholders of a railway company to lease its road to another company, is not affected by the fact that before the submission of a lease to the stockholders the directors of the company had agreed on the terms thereof.

Bill by Frank Jones and John W. Sanborn against the Concord & Montreal Railroad and the directors of that corporation for an injunction restraining defendants from issuing shares of new capital stock and from carrying out the terms of a lease of the New Boston Railroad Company. Bill dismissed.

O. E. Branch and C. B. Gafney, for plaintiffs. Bingham & Mitchell and F. S. Streeter, for defendants.

SMITH, J. By an act of the legislature (Laws 1891, c. 3) the Concord & Montreal Railroad was authorized to "increase its capital not exceeding $3,000,000, to be issued from time to time for the purpose of aiding an extension of the Whitefield & Jefferson Railroad, and of such other branches or leased roads of the Concord & Montreal Railroad as it is or may be authorized to construct, and for the purpose of providing additional depots, yards, and other terminal facilities at Nashua, Manchester, Portsmouth, Concord, Laconia, Lake Village, and elsewhere on the lines of its railroad; of providing additional tracks, wharves, and coal and other storage facilities at tide-water in Portsmouth; of changing the line and improving the terminal facilities at Groveton village; and for providing additional equipment for its railroad and for the improvement of its railroad and other property own

ed or leased by it." At a meeting of the corporation held May 19, 1892, the stockholders voted to accept the act of 1891; also to increase the capital stock $1,200,000, and to authorize the directors to issue the same at such times as in their judgment may be needed to meet the expenditures for which new capital was authorized by law, and that all classes of stockholders should have the right to subscribe for and take the new stock at par, in proportion to their respective holdings. At the same meeting the stockholders voted to ratify a lease of the New Boston Railroad Company to the Concord & Montreal Railroad for a period of 99 years, the terms of which had been previously agreed upon and signed by the directors of the respective companies. The plaintiffs, stockholders in the defendant company, allege that the proposed increase of capital is to be used for illegal purposes (named in the bill), and to be illegally distributed to holders of stock in classes 1, 2, and 3, as well as to those in class 4, in violation of the charter contract, and that the proposed lease is illegal. They pray that the Concord & Montreal Company may be enjoined from issuing any part of the 12,000 shares of new stock, also from distributing the same among the holders of classes 1, 2, and 3, and from carrying out the terms of the New Boston Company lease. There is also a prayer for general relief.

1. In the former case-Jones v. Railroad, (N. H.)1-it was held that the right to take new stock belongs to the shareholders in all the classes in proportion to the number of shares held by each shareholder. The decision went upon the ground that the distribution of new stock is a partial division of capital; that there is no legal distinction between a total and partial distribution; and that on a division of the capital or entire property of the corporation the shareholders in each of the four classes having contributed to it the sum of $100 per share were, in the absence of any stipulation for a different division, entitled each to his proportionate share. He is entitled to this, "not merely because the issue may affect his right to dividend, but also because the new stock includes an undivided part of the road, of every part of which he is an owner, and because every shred of his title is as indefeasible as the whole of it would be if he were the sole unincorporated owner of the road." Every shareholder's proportional ownership is fixed with exactness in the charter contract; and we said that the fact that it "does not expressly provide for a transfer of any part of his share to his partners on a total or partial division of capital is evidence tending to show that no such transfer was intended, and the weight of this evidence can hardly be overestimated." If each share owner is not entitled to a pro

1 Not reported.