rel." This answer was, on motion, also stricken out. There was no error in either of these rulings. In both, the opinion of the witness was excluded. The question at issue in the case was for the jury, or for the court dealing with the legal sufficiency of the evidence, to determine, and not for the witnesses to decide. It was for the jury, if the case went to them, or for the court in dealing with the question as to whether there was legally suf draft is paid, and stipulates that it must be surrendered in order to obtain the delivery of the goods, does not pass title to them or entitle the person for whom they were sent to their delivery by the carrier without surrendering the bill of lading, although the bank refuses to surrender it to him, or accept his tender of the amount of the draft. (December 6, 1899.) ficient evidence to be considered by the jury, APPEAL by plaintiff from a judgment of the Baltimore City Court in favor of defendants in an action brought to obtain The facts are stated in the opinion. Messrs. R. B. Tippett & Bro. and William S. Bansemer, for appellant: to say from the facts in evidence whether the captain acted with appropriate prompness, and it was not the province of the wit-possession of certain flour placed in defendnesses to determine this matter at all. ants' possession for transportation to plainTucker v. State use of Johnson, 89 Md. 471, tiff, which defendants refused to deliver 46 L. R. A. 181, 43 Atl. 778, 44 Atl. 1004. without bill of lading. Affirmed. The first and fourth grounds of error are one. They both involve the ruling which excluded from the jury proof of the rules or instructions prohibiting gambling on the boats. These rules or instructions were irrelevant. Had they been introduced they would not have thrown any light on the matters at issue. If the captain really violated any rule in permitting gambling on the steamer, that fact was no evidence of negligence which contributed to the injury unless it can, either universally and invariably, or, at least, with reasonable probability, be predicated of every act of gambling that it will end in such an act of violence. The argument is this: The shooting followed the blow that was struck; the blow followed the use of the abusive epithet; the epithet followed the quarrel, and the quarrel grew out of the game of cards; therefore the game of cards produced the shooting, and as the game of cards was prohibited by the company's rules, the company's servants were negligent in allowing it to be played. But this is neither sound reasoning nor actual fact. Until you can predicate of a game of cards as its necessary result an assault, you have nothing but speculation; you may have a sequence of events which are purely accidental in their relation but are not inherently or necessarily the successive results of preceding causes. As there was no error in entering judgment for the defendant, the steamboat company, that judgment will be affirmed. Judgment affirmed, with costs above and below. William L. HOPKINS, Appt., The defendant in the replevin suit need, by no means, be the party setting up a claim of possession and ownership adverse to the plaintiff. The party in the possession is the only proper defendant. Herzberg v. Sachse, 60 Md. 433. The action is properly brought against the person who is in actual, physical possession of the property involved, although he may be keeping it for another. Flatner v. Good, 35 Minn. 395; Rose v. Cash, 58 Ind. 281; Stevenson v. Taylor, 2 Mich. N. P. 95; Cobbey, Replevin, p. 432; Wells, Replevin, p. 134. The carrier cannot defeat this action of replevin upon the plea that if the plaintiff prevails it will be liable for a breach of contract in allowing the goods to go out of its possession without the production of the bill of lading. The common carrier is exonerated from his obligation to his bailor, when the property of the latter is taken by legal process. Ohio & M. R. Co. v. Yohe, 51 Ind. 184, 19 Am. Rep. 727; Burton v. Wilkinson, 18 Vt. 190, 46 Am. Dec. 145; Kohn v. Richmond & D. R. Co. 37 S. C. 1, 24 L. R. A. 100, 16 S. E. 376; 4 Elliott, Railroads, pp. 1461, 1537; Bliven v. Hudson River R. Co. 35 Barb. 191, Affirmed in 36 N. Y. 403. The duty of the carrier is merely to notify his consignor of the proceedings. He is not bound to defend the suit. Stiles v. Davis, 1 Black, 101, 17 L. ed. 33; Pingree v. Detroit, L. & N. R. Co. 66 Mich. 145; Van Winkle v. United States Mail S. S. Co. 37 Barb. 122; Edson v. Weston, 7 Cow. 280; Hutchinson, Carr. pp. 396, 398; SchouJohn K. COWEN et al., Receivers of Balti-ler, Bailm. p. 428; 5 Am. & Eng. Enc. Law, incre & Ohio Railroad Company, Respts. v. 2d ed. p. 240. The carrier cannot object to the proceeding on the ground that the unproduced bill of lading will be negotiated to some bona fide holder, without notice, because in the attempt to negotiate it the bill itself would give actual notice of Hopkins' rights. Co. v. Burlington & M. R. Co. (Neb.) 40 L. R. A. 534 and Kentucky Refining Co. v. Globe Refining Co. (Ky.) 42 L. R. A. 353. Jacob Dold Pkg. Co. v. Ober, 71 Md. 164, | Globe Refining Co. 20 Ky. L. Rep. 778, 42 L. 18 Atl. 34. R. A. 356; Seal v. Zell, 63 Md. 360. Even if the draft be accepted, the property is still wholly under control of shipper. Hall v. Richardson, 16 Md. 414, 77 Am. Dec. 303. To effect a sale, it is only necessary that the parties fully agree with respect to a thing capable of identification, that for an agreed price the title to the thing shall pass from the vendor to the vendee. Cheney v. Eastern Transp. Line, 59 Md. 565; Hall v. Richardson, 16 Md. 413, 77 Am. Dec. 303; Farmers' Phosphate Co. v. Gill, 69 Md. 545, 16 Atl. 214. Messrs. John T. Mason, R. and Charles S. Hayden, for appellees: To maintain replevin, right of possession at time of issuing the writ must be in the plaintiff. Lamotte v. Wisner, 51 Md. 561; Seldner v. Smith, 40 Md. 613; Rogers v. Roberts, 58 Md. 522; McGuire v. Benoit, 33 Md. 186; Cumberland Coal & I. Co. v. Tilghman, 13 Md. 83; Clary v. Frayer, 8 Gill & J. 421. And if the right of possession be in the defendant, the action must fail, and judgment be for defendant. McKinzie v. Baltimore & O. R. Co. 28 Md. 174; Cumberland Coal & I. Co. v. Tilghman, 13 Md. 83; Clary v. Frayer, 8 Gill & J. 421; Farmers' Pkg. Co. v. Brown, 87 Md. 7, 39 Atl. 625. The replication of plaintiff alleging title in himself threw the whole burden of proof on him. Lamotte v. Wisner, 51 Md. 561; Horsey v. Knowles, 74 Md. 604; Smith v. Wood, 31 Md. 297. The carrier can only deliver on surrender of the bill of lading properly indorsed, when the same is issued in name of the shipper. Hutchinson, Carr. ¶ 130; Pennsylvania R. Co. v. Stern, 119 Pa. 29; Sohn v. Jervis, 101 Ind. 582; Kentucky Refining Co. v. Globe Refining Co. 20 Ky. L. Rep. 778, 42 L. R. A. 356. The bill of lading is the symbol of title, and issuing it to the order of the shipper plainly imports an intention on his part to retain the jus disponendi. Emery v. Irving Nat. Bank, 25 Ohio St. 360, 18 Am. Rep. 299. The carrier is not called upon to know what, if any, contract is binding between the shipper and party to be notified, or whether purchase money is due. The bill of lading announces, in a mandatory way, "the goods belong to the shipper; don't deliver to anyone without bill of lading." Kentucky Refining Co. v. Globe Refining Co. 20 Ky. L. Rep. 778, 42 L. R. A. 356; Libby v. Ingalls, 124 Mass. 505. The business interests of the community demand that a consignor in a distant part of the country should have the right to ship property to be delivered to the purchaser only upon the condition that the purchaser first actually pay for the same. The established and well-known method of doing this is by a draft, bill of lading attached, to be surrendered on payment of draft. Dows v. National Exch. Bank, 91 U. S. 618, 23 L. ed. 214; Kentucky Refining Co. v. Shipment subject to order of consignor plainly imports the intention on part of the shipper to retain title, which governs. Berger v. State, 50 Ark. 23, 6 S. W. 15; Alabama G. S. R. Co. v. Mt. Vernon Co. 84 Ala. 177, 4 So. 356; McCormick v. Joseph, 77 Ala. 236; Benjamin, Sales, 399. The title carrying with it the right of possession does not vest under such circumstances until actual delivery of the bill of lading. Alabama G. S. R. Co. v. Mt. Vernon Co. 84 Ala. 177, 4 So. 356; Berger v. State, 50 Ark. 20, 6 S. W. 15. The sending by the shipper of an invoice of the goods to the consignee is in itself no evidence of title in the consignee in the pres. ence of the overbearing manifestation of a contrary intent by having the bill of lading to order of consignor. Dows v. National Exch. Bank, 91 U. S. 618, 23 L. ed. 214; Pennsylvania R. Co. v. Stern, 119 Pa. 29, 12 Atl. 756. Page, J., delivered the opinion of the court: The appellant in this case sued the appellees in replevin to recover the possession of 210 sacks of flour. The pleas are property in the appellees and property in the Winnebago City Mill Company. At the trial, the appellant, to sustain the issues on his part, offered to prove that he had been engaged in purchasing flour from the Winnebago City Mill Company for a number of years; that on January 11, 1898, he ordered from the company the flour in question, "without any agreement as to the terms of payment," and that "the flour was subsequently shipped by the said company to the appellant at Baltimore city;" that the course of dealing at and before that time was as follows, viz., the mill company (whose place of business is in Winnebago city, Minnesota), at the time of shipment, would draft for the value of the shipment and attach thereto the bill of lading and these drafts usually arrived a few days before the goods, and the appellant, as he needed the flour, would call at the banks where the drafts were placed by the company and were payable, and "take them up;" that all of the flour so shipped "was booked by the mill company as an absolute sale." dence of other sales and shipments by the Included in the appellant's offer was evimill company, showing the general course of dealing between the parties, and also copies of the letters and telegrams of the parties respecting such sales, and of the checks of the appellant in payment of the several drafts of the mill company on the appellant. There also appears in the proceedings the bill of lading and the draft attached thereto, which the parties agree may be considered by this court, as if included in the offer of the appellant, and incorporated in the bill of exceptions. The court below rejected this offer, and the verdict and judgment being for the appellees the appellant has appealed. The action being in replevin, the burden is upon the appellant to prove an immediate right to the possession of the goods, and inasmuch as the appellees have pleaded property in the Winnebago City Mill Company they must show a title superior to that of the company. Lamotte v. Wisner, 51 Md. 561. The question therefore, now before the court is, to determine whether the facts contained in the offer would be sufficient, if properly proved, to enable a jury, or the court sitting as a jury, to find that the title or the right of possession has passed from the mill company, and become vested in the appellant. The flour in dispute was shipped from Winnebago city on January 21, and about the same time the mill company forwarded by mail to the appellant an invoice, with the following words appended thereto, viz.: "We have drawn on you at arrival of goods for the proceeds, with railroad receipt at tached to the draft." By reference to the "receipt," or bill of lading, it appears that the flour was consigned to the company itself. Over the name of the consignee, the mill company, is written the word "order," and below, the words "Notify W. L. Hopkins;" without any other condition or limitation. One of the conditions of the shipments, as appear's printed on the bill of lading, is that, "if the word 'order' is written thereon before or after the name of the party to whose order the property is consigned without any condition or limitation other than the name of the party to be notified of the arrival of the property, the surrender of this bill of lading, properly indorsed, shall be required before the delivery of the property at destination." The bill of lading, with draft attached, was sent by the mill company to the Western National Bank at Baltimore, whose duty it was to retain possession of it until the appellant had paid the draft. whereby the title to the property became vested in the appellant; (2) that the agree ment necessarily implied amounted to a complete contract of sale, "with the stipulation that delivery of possession is dependent upon payment or tender of purchase price; and (3) that when the appellant tendered his check in payment of the draft (having sufficient funds in bank to meet it) he had the right to the immediate possession of the flour. The general rule, applicable to the passing of title to personal property, has been well stated in Dixon v. Yates, 5 Barn. & Ad. 313. In that case, it was said by Parke, J.: "Where there. is a sale of goods generally, no property in them passes till delivery, because until then the very goods sold are not ascertained; but when, by the contract itself, the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel, and to pay the stipulated price, the parties are then in the same situation as they would be after a delivery of goods in pursuance of a general contract. The very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel, and to pay the price, is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the bargainee." The fundamental principle upon which this rule rests is, to carry out the intention of parties who have agreed "with respect to a thing capable of identification, that for an agreed price the title to the thing shall pass from the vendor to vendee." Cheney v. Eastern Transp. Line, 59 Md. 565. When the contract is express, there can be no difficulty; but when the evidence with respect to it is meager, courts must endeavor "to ascertain the intent of the parties and apply that test as a controlling principle." Hall v. Richardson, 16 Md. 412. So, also, where the agreement is for a sale of the property, and the performance of other things, it must be ascertained whether the performance of any of those things is meant to precede the vesting of the title in the vendee. Blackburn, Sales, 151, cited in 3 Benjamin, Sales, chap. 3. Accordingly, it is held that where a buyer purchases a specific quantity of goods to be shipped to him from a distant place, and the seller segregates and appropriates to the contract the specified quantity by delivering them to a carrier, the law presumes that to be equivalent to delivery to the vendee (16 Md. 412, supra) : and in such case the goods become the property of the vendee, although they are to be paid for on arrival. Farmers' Phosphate Co. v. Gill, 69 Md. 545, 1 L. R. A. 767, 16 Atl. 214, the carrier being regarded as the agent of the vendee to receive them. When such payment was made the appellant was entitled to receive the bill of lading, and, upon proper indorsement, by the terms of the bill itself and according to the usual course of dealings between the parties, the appellant was in a position to demand the possession of the goods. The flour arrived in Baltimore in due time, and the appellant was notified thereof by the railroad company. He made no effort, however, to pay the draft until the 4th of May. On that day he tendered his check, but the bank refused to accept it, and notified him that it had received notice on the previous day from the mill company not to accept payment of the draft from him. It also refused to deliver to him the bill of lading, although both the bill and the draft were then in its posses-livery himself at a distant place, the carrier sion. It is contended, on the part of the appellant, that all the facts, as we have stated them, establish the following propositions, viz.: (1) That a sale had been effected between the mill company and the appellant, But if the vendor undertakes to make de becomes the agent of the vendor, and the property will not pass until delivery is made. In both such cases, the inference arising from the facts stated may be rebutted by other circumstances which tend to show what the interest of the parties really was. Dows ▼. National Exch. Bank, 91 U. S. 618-637, 23 | to give a description and cost of the goods; it was not a bill of sale nor evidence of a sale. Dows v. National Exch. Bank, 91 U. S. 618, 23 L. ed. 214; Sturm v. Boker, 150 U. S. 328, 37 L. ed. 1100, 14 Sup. Ct. Rep. 99. And even though in some cases it may be useful in connection with other facts to show the intent of the parties, yet in this case no or change the intent inferable from the circumstances already stated, for the reason that, appended to the invoice, as a part of it, was the explicit statement that the mill company had drawn on the appellant at arrival for the proceeds, "with railroad receipt at tached to the draft." In the case last cited, where the goods had been consigned to the vendee, after stating the general rule that a bill of lading operates as a transfer of the property to the party in whose favor it is drawn and to whom it is delivered, the court remarks that "if the vend-inferences can flow from it tending to alter ors in this case had wished to prevent the property from passing and to retain the right to deal with it after shipment and while in transitu, they should by the bill of lading have made the cargo deliverable to their own order, and have forwarded the same to an agent of their own with directions to retain it until the cargo had been finally delivered, weighed, tested, and paid for in Baltimore." In Kentucky Refining Co. v. Globe Refining Co. 20 Ky. L. Rep. 778, 42 L. R. A. 358, the court said, citing from Alderman v. Eastern R. Co. 115 Mass. 233, "that when goods are consigned deliverable to the order of the consignor, and the bill of lading, with a draft for the price drawn on the purchaser of the goods attached, is forwarded for collection, the purchaser has no title to the goods until the draft is paid, and the bill of lading is indorsed to him." In Merchants' Nat. Bank v. Bangs, 102 Mass. 291, it was said that a vendor "may take the bill of lading or the carrier's receipt in his own or some agent's name, to be transferred on payment of the price, by his own or his agent's indorsement to the purchaser; and in all cases when he manifests an intention to retain the jus disponendi the property will not pass to vendee." Hardy v. Munroe, 127 Mass. 64; Emery v. Irving Nat. Bank, 25 Ohio St. 360, 18 Am. Rep. 299; Pennsylvania R. Co. v. Stern, 119 Pa. 29, 12 Atl. 756. In this case the mill company consigned the goods, deliverable to its own order. It forwarded the bill of lading, with the draft attached. All parties understood that the former was not to be given up by the bank until the latter had been paid; and by the terms of the bill of lading it was provided that the flour was not to be delivered until the bill of lading, properly indorsed, was presented to the carrier. We find nothing in the offer that can be effectual to modify the legal inferences to be drawn from these facts. It is stated that the appellant ordered the flour "without any agreement as to the terms of payment." But it is plain that it was accepted upon the terms that had characterized their entire dealing, which were that the flour should remain in the possession of the carrier, subject to the order of the mill company, until the draft had been paid. The whole course of these dealings shows that the mill company was to prepay the freight and deliver the flour in the city of Baltimore, and that the appellant was not to be entitled to possession until after the draft had been paid. The invoice cannot have the effect of modifying the contract, which the facts so clearly imply. The purpose and effect of that was Upon the whole offer, it seems to us clear that it was not the intent of the parties that the title to the flour should pass to the appellant until the draft had been paid. The judgment must therefore be affirmed. Peter A. LION, Appt., บ. BALTIMORE CITY PASSENGER RAIL 1. 2. 3. (........Md.........) Changing the accustomed flow of surface water on a street, and concentrating it in underground drains and a vault, where but part of the water formerly had flowed on the surface, is done at the peril of providing adequate means to discharge the water so gathered, and to discharge it in a way that will not be injurious to others. The employment of a competent engineer to direct a work is not the fulfilment of a duty to avoid doing injury to another, when, notwithstanding the engineer's competency, the work as constructed does cause injury. Notice to the original wrongdoer of injury caused by a structure made by him is not necessary to make him liable to the owner of property injured thereby, although the latter became the owner thereof after the construction of the work which did the injury. (December 6, 1899.) APPEAL by plaintiff from a judgment of the Baltimore City Court in favor of defendant in an action brought to recover damages for injuries to property by water overflowing from a receptacle constructed by defendant under a street to permit the laying of its tracks. Reversed. The facts are stated in the opinion. NOTE. The question as to the necessity of notice of injury to an original wrongdoer in order to make him liable to one who subsequently became the owner of the injured property seems to be somewhat novel. As to the necessity of notice to a subsequent owner of property on which a nuisance has been created in order to make him liable, see Philadelphia & R. R. Co. v. Smith (C. C. App. 3d C.) 27 L. R. A. 131; and Willitts v. Chicago, B. & K. City R. Co. (Iowa) 21 L. R. A. 608. Messrs. J. Southgate Lemmon and Robert W. Beach, with Mr. C. Baker Clotworthy, for appellant: Poole v. Falls Road Electric R. Co. 88 Md. 533, 41 Atl. 1069; Hodges v. Baltimore Union Pass. R. Co. 58 Md. 619; Peddicord Having obstructed the natural flow, and v. Baltimore, C. & E. M. Pass. R. Co. 34 Md. having gathered the water into this vault, 363; Hiss v. Baltimore & H. Pass. R. Co. 52 for its own purpose, the defendant was Md. 242, 36 Am. Rep. 371; Booth, Law of bound to provide proper means or drains Street Railways, § 127; Short v. Baltimore for its escape without injury to the prop-|City Pass. R. Co. 50 Md. 73, 33 Am. Rep. erty of others, and its failure to do so was 298. in itself negligence, for the consequences of which the defendant was liable. The duty of the defendant was to exercise ordinary care and prudence. Short v. Baltimore City Pass. R. Co. 50 Md. 84, 33 Am. Rep. 298. There is a vast difference between showing an error of juugment on the part of a professional man and showing negligence. Philadelphia, W. & B. R. Co. v. Davis, 68 Md. 281, 11 Atl. 822; Baltimore Breweries' Co. v. Ranstead, 78 Md. 501, 27 L. R. A. 294, 28 Atl. 273; Baltimore & P. R. Co. v. Reaney, 42 Md. 117; Gilluly v. Madison, 63 Wis. 526, 52 Am. Rep. 299, 24 N. W. 137; 2 Dill. Mun. Corp. §§ 1045, 1046, 1051, 1051a; Gray v. McWilliams (Cal.) 21 L. R. A. 593, 595, 596, note C; Lynch v. New A question of engineering or the proprieYork, 76 N. Y. 60, 32 Am. Rep. 271; Hitch-ty of an engineering plan adopted by a muins Bros. v. Frostburg, 68 Md. 110, 11 Atl. 826. While municipal corporations have been held exempt from liability for bad planning, or from failure to repair, until notified of defects in city sewers, this theory has never been extended to private corporations interfering with the public highway for their own purposes, and has been restricted within proper limits of care and watchfulness even as to public authorities. Todd v. Troy, 61 N. Y. 509; McCarthy v. Syracuse, 46 N. Y. 197; Rowe v. Portsmouth, 56 N. H. 299, 22 Am. Rep. 464. No request was necessary, since the estate of the original creator of the nuisance continued. Case LVII., Jenkins Exch. Rep. p. 260; Watler v. Wicomico County Comrs. 35 Md. 385; Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 9 L. R. A. 737, 20 Atl. 900; Baltimore v. Fairfield Improv. Co. 87 Md. 352, 40 L. R. A. 494, 39 Atl. 1081; Scott v. Bay, 3 Md. 432. Messrs. Arthur W. Machen and William S. Bryan, Jr., for appellee: McClain v. Brooklyn City R. Co. 116 N. Y. 460, 22 N. E. 1062; Altvater v. Baltimore, 31 Md. 462. nicipality (or by a quasi-public corporation like a street-railway company, whose plans must be approved by the public officials having charge of the streets) is not a fit question to submit to a jury. Johnston v. District of Columbia, 118 U. S. 21, 30 L. ed. 76, 6 Sup. Ct. Rep. 923; Child v. Boston, 4 Allen, 41, 81 Am. Dec. 680; Mills v. Brooklyn, 32 N. Y. 489; 2 Dill. Mun. Corp. § 1046, and notes. When it appears from the plaintiff's evidence that the injury sued for may have been caused by one of two independent agencies, for one only of which the defendant is responsible, the jury will not be permitted to surmise or conjecture as to which is the cause of the injury. Harford County Comrs. v. Wise, 75 Md. 42, 23 Atl. 65; Baltimore & P. R. Co. v. Reaney, 42 Md. 136. of the court: Baltimore City Passenger Railway ComLegislative permission was given to the laid in 1892, long before the plaintiff bought tem it became necessary for the company to The drains of the defendant having been pany to use the cable system for the propulsion of its cars. In constructing that syshis house, the plaintiff, when he subsequent-build the cable conduit under open gutters ly bought the property, took it "subject to wherever it intersected them. the inconvenience," and could not, of course, and Ashland avenue intersect each other Ensor street recover for any injury that had already nearly at right angles. been done to the property. The plaintiff, having bought the property "subject to the inconvenience," could not recover for any injury worked by the continuance of the nuisance without first giving notice to the railroad company. Pickett v. Condon, 18 Md. 412; Conhocton Stone Road v. Buffalo, N. Y. & E. R. Co. 51 N. Y. 573, 10 Am. Rep. 646; Wood, Nuisances, § 838; Woodman v. Tufts, 9 N. H. SS; Noyes v. Stillman, 24 Conn. 15; Nichols v. Boston, 98 Mass. 39, 93 Am. Dec. 132. When there is proper legislative sanction for the construction of a cable or other street railway, such railway is not a new servitude, but is an ordinary use of the street for street purposes. to say in going north along the former In going from one to the other-that is and curving therefrom east into the latter side of Ensor street where it crossed Ash-the open gutter formerly along the east impossible for the conduit with its open slot land avenue, had to be passed, and as it was to be built under the surface gutter, the gutter was changed to a closed sewer and sunk by the railway company under the conduit. To provide for the water carried off by the surface gutter a 20-inch drain pipe was laid by the company some feet below the grade or level of Ashland avenue, from a point north of the northeast corner of Ensor street and Ashland avenue to a point south of the southeast corner of the same street. At this latter point there was a vault built, and |