fusal of the court to grant the first, second, fifth, and seventh prayers asked for by the appellants. The main question in the case was whether any evidence had gone to the jury sufficient to show there was a sale and delivery of the lumber set out in the declaration, and the court was asked to instruct that there was no such evidence, and that therefore the verdict must be for the appellants; and, incidental to that, it was also contended by the appellants, and the contention is embodied in their seventh prayer, and in their first, second, and third exceptions, that certain conversations between Frank R. Davis and the Gilberts should not be received, because there was no evidence of the agency or authority of Davis to speak or act for the appellants. These will be considered in their order.

Later on,

The proof shows that the appellants, being about to construct additional stories on their warehouse, on plans prepared by Davis & Bro., their architects, entered into a contract with one Flaggs, a builder, to erect the same. A copy of the contract is in the record, and it is in form and substance the usual one between builders or contractors and owner. It seems to be clear that the appellees furnished the lumber, and that all so furnished was used by the appellants and went into their building. The contract for furnishing the lumber was made in the name of Flaggs, but the contention of the appellees was that it was in fact sold directly to the appellants, through the agency of the Davises, and that Flaggs was not in fact the real contractor, but a mere sham. To maintain this, they offered evidence tending to show that Flaggs was without means, and therefore not in a position to claim or expect an extensive credit from any one. There was also evidence tending to show that Gilbert Bros. made a bid to Flaggs for the lumber, but this bid was not accepted. however, according to the evidence of Gilbert, Henry R. Davis asked Gilbert, "Why don't you figure on the job?" Witness said, "We can't sell Flaggs that quantity of lumber." Davis then said, "Take Flaggs out, and you figure for Swindell to pay the bill;" and witness said "he would-now this is to be charged to Swindell Bros." "No," Davis replied, "you charge it to Flaggs and get your orders, and we will pay the bill." "And on those conditions only," proceeded the witness, "did we furnish the lumber-that Swindell Bros. were to pay the bill." There was also evidence that this bill was added to on the order of Davis on the 14th of April, 1902, without the knowledge and consent of Flaggs. Flaggs also testified that he first gave the job for the lumber to Thomas Matthews, but afterwards turned him down and gave it to the Gilberts. That he had met Gilbert in Davis' office, and at that time Gilbert cut his original bid, but he, Flaggs, "Can't tell how Gilbert got there; but, however, I got the lumber from Gilbert to build

the building with, after he had shaded his price in some way or other." There was also evidence tending to show that Swindell Bros. carried out the arrangements made with Davis as to payments. The checks were made out to Flaggs, but he was required to indorse them before they passed from hands of the Swindells, who then delivered them to the Gilberts without their ever having been in the possession of Flaggs, who would have been entitled to them according to his contract with the Swindells, unless the latter had ignored him. In addition to this, it was contended that the Swindells had recognized their liability to the Gilberts, when, on demand for the payment of the $5,000 note to Flaggs, they paid $2,500 to them, without consultation with or the knowledge of Flaggs. Moreover, one of the Swindells testifies that "he had to have Flaggs' consent, but if Davis had told him to draw a check that would insure Gilbert getting the money, and, Flaggs not getting it, 'the chances are he would.' We left the matter of ordering material or work in the hands of the architect," but "he didn't think the architects had any authority to order any material or work not included in Flaggs' contract."

It does not appear to be necessary to devote further time to this branch of the case. There is much evidence in the case which tended to deny or explain the evidence we have referred to, but it is not within our duty now to express any opinion as whether such effort ought to have been successful. The only question before us now is, was there any evidence from which, if true, the jury could have found as they did? The prayer of the appellants concedes the truth of the evidence, but denies the right of the plaintiffs to recover upon that hypothesis of fact. County Com'rs v. Wise, 75 Md. 43, 23 Atl. 65. Here was evidence tending to show that Flaggs was a nonentity in the business, was ignored in the purchasing of the material and in the payments made therefor, and also in the changes of the amount of material, and the whole matter apparently left in charge of the appellants or their agent. And, if the jury believed this, they might have found that Flaggs was in fact only a figurehead. But it was contended at the trial and at the argument there was no evidence from which the jury could find the authority or agency of Davis to bind the appellants. This was a matter for the jury to find. In addition to what has already been said that is applicable to this particular inquiry, it may also be added that if the jury found that Flaggs was only a sham, and that not he, but Davis in fact, made the contract and conducted all the dealings with the Gilberts, and that the Swindells accepted the full benefit of Davis' acts in and about the matter in receiving the material and dispos ing of it to their own use, and in making the payments according to the arrangements

made by Davis, with knowledge thereof, then from these facts alone, if not explained away or contradicted, the jury might have found the agency. "The authority of an agent need not be proved by writing; it may be inferred from facts and circumstances and from the permission and acceptance of his services, and subsequent adoption and ratification of his acts will suffice." "When evidence of facts in pais, tending to show the relation of principal and agent exists, has been offered directly or circumstantially, it is then the province of the jury to determine whether there is or not such proof of agency as to make declarations of the supposed agent binding on the principal." Rosenstock v. Tormey, 32 Md. 182, 3 Am. Rep. 125; National Mechanics' Bank of Baltimore v. National Bank of Baltimore, 36 Md. 21. It follows from what has been said we find no error in the ruling on the prayers or in the second exception.

The first exception was to the admission of a letter to the Gilberts from one of the Swindell brothers, in which the following passage occurs, viz.: “We have favored you with our patronage during the past year, and I ask you to reciprocate by giving me an advertisement in the paper." It was for the jury to find what was referred to by the words "our patronage." It was shown that In 1902 the Swindells had purchased a small bill of the Gilberts, and, if it referred to that bill, there would be no pertinency to the case; but whether it did have such reference, or to the lumber, was a matter for the decision of the jury.

With reference to the third and fourth exceptions, all that is necessary to be said is that, whether the rulings were correct or not, the appellants were not injured thereby. One of the Davises was asked if he did not tell the Baltimore Brick Company that Swindell would pay the bill, and the reply was in the negative. In the fourth exception the witness was asked if the brick company or Mr. Griffiths did not say to him that he had bought their brick for Swindell, and the witness in his answer denied that either "made such a speech." So that, even if it was error to allow such questions to be asked (which we do not decide), there would be no reversible error, because the answer was not, and could not be, injurious to the appellants.

Finding no error in the rulings of the court, the judgment must be affirmed.

Judgment affirmed; the appellants to pay the costs.

(100 Md. 381)

COLLIER v. CARTER et al. (Court of Appeals of Maryland. Jan. 19, 1905.)

ELECTIONS-CORRECT REGISTRY-JURISDIC

TION.

Acts 1896, p. 341, c. 202, § 20 (Code Pub. Gen. Laws 1904, art. 33, § 21), provides that the board of registry shall note for erasing from the register all names of persons suspected of not be

ing entitled to remain thereon. Section 21 (§ 22) provides for notice to such persons of intended action by the board. Section 22 (§ 23) provides for the hearing of the persons interested and final revision of the registry. Section 23 (§ 24) provides that any person aggrieved by such action of the board may file a petition in court setting forth the grounds, and ask to have the registry corrected, that the "cases shall be heard de novo," and that the costs in all "such appeal cases shall from the passage of this act be one-half of those provided for under existing law." Held, that an original action does not lie to require the board of registry to strike from the registry the name of a person alleged to be disqualified to vote.

Appeal from Court of Common Pleas; John J. Dobler, Judge.

Action by William E. Collier against Charles H. Carter and others, constituting the board of supervisors of election of Baltimore City, and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Argued before MCSHERRY, C. J., and FOWLER, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ.

Thomas Ireland Elliott, for appellant. Wm. S. Bryan and W. Starr Gephart, for appellees.

JONES, J. The decision of this case has already been made by this court in its per curiam announcement of its conclusions therein on the day the case was argued. The reasons leading to these conclusions will be here briefly given. The case was brought here on appeal from the action of the court of common pleas refusing and dismissing a petition filed in that court by the appellant to have stricken from the registration lists of the Fourteenth Election Precinct of the Fourth Ward of the city of Baltimore the name of one Daniel J. B. Brady, who was at the time borne upon the said lists as a qualified voter. The petition in question stated that the appellant was "a qualified voter of Baltimore City," and then, to quote the language of the petition, that "he be lieves, and therefore charges, that Daniel J. B. Brady, who is registered as a qualified voter in the Fourteenth Election Precinct of the Fourth Ward from 620 East Pratt street, does not reside at the dwelling house given in the entries relating to him on the registration books, and is not a resident of the said precinct. Wherefore he prays the court that the name of the said Daniel J. B. Brady be stricken from the registries of said elec tion precinct." It will be observed that the petition contains no suggestion of having for its object a review of any action taken or judgment rendered elsewhere, but simply asks of the court in which it was filed that it should revise and correct, to the extent indicated, the registry of voters which the law provides shall be made in the various election districts and precincts in the state. What authority has been or could be conferred upon the court to exercise such a function is preliminary to all other inquiry. And this inquiry is not to be made here as though

we were considering the question suggested upon a demurrer to the petition, for the fact is, as the record discloses, that prior to the filing of the petition in question in the court below no other tribunal had been called upon or given the opportunity to consider and determine the question which it raised, or to adjudicate the rights of the parties concerned. The jurisdiction to be exercised by the courts in the administration of the law relating to the registration of voters is conferred in section 23 of Acts 1896, p. 344, c. 202 (now section 24 of article 33 of Code Pub. Gen. Laws 1904), in. the following terms: "Any person who feels aggrieved by the action of any board of registry in refusing to register him as a qualified voter, or in erasing or misspelling his name, or that of any other person on the registry, or in registering or failing to erase the name of any ficti- | tious, deceased or disqualified person, may, at any time, either before or after the last session of the board of registry, but not later than the Saturday next preceding the election, if in the city of Baltimore, and not later than the Tuesday next preceding the election, if in the counties, file a petition, verified by affidavit, in the circuit court for the county, or if the cause of complaint arises in Baltimore City in any court of Baltimore City, setting forth the ground of his application, and asking to have the registry corrected." Then are prescribed the proceedings which shall be had upon the petition so authorized to be filed, and, among other things, it is provided "the entries made in such registration books shall not be considered by the court as evidence of any fact therein stated, but the case shall be heard de novo." Further on in the section, in making provision for costs, occurs this language: "The cost of proceedings in all such appeal cases shall from and after the passage of this act be one-half of those provided for under existing law."

The nature and extent of the jurisdiction conferred upon the courts by the foregoing provision of the article of the Code embracing the law in regard to elections and registration would seem to plainly appear from the language and terms employed in so conferring it. It is a jurisdiction that is special, limited, and peculiar, and is to be exercised within the limits prescribed by the statute which confers it, and strictly in conformity with the authority given thereby. Boarman v. Patterson et al., 1 Gill, 372 (Brantly's Ed. 283). The basis of the authority conferred upon the courts to strike off names from the registration lists appears from the terms of the provision of the section of the Code Just quoted plainly to be the "failing to erase the name of any fictitious, deceased or disqualified person" by the board of registry. The party who is authorized to invoke the jurisdiction of the court is one who has been "aggrieved by the action of any board of registry." Such board could not take action without having something before it to be

made the subject of action. Looking to the objects for which the official body in question exists, the taking of action by it is inseparable from the making up of a judgment as the basis of such action. The doing or the refusing to do a particular thing to which its judgment has been applied would be action, but the mere not doing something which it is authorized to do or not to do upon applying its judgment, but to which its judgment has never been applied, could in no proper sense be said to be action. We take it, therefore, that the terms "refusing" and "failing," as used in section 23 of article 33, in question, necessarily have reference to what may be termed negative action in cases that have been specifically brought under the judgment of the board of registry. This is enforced from what has been noticed as occurring later in the section of the Code referred to here. When it is said that cases arising under the section that may be brought into court "shall be heard de novo," there is the implication that they have been already once heard before being heard by the court. If they have never before been heard, they are necessarily heard de novo; and in that case it would be inappropriate to expressly and specifically provide that they are to be so heard by the court.

Equally significant is the reference to these cases in the provision in regard to costs, where they are termed "such appeal cases"; thus signifying that in the contemplation of the law they are cases in which the judgment of another tribunal is to be reviewed. In the three sections of article 33 of the Code immediately preceding section 23-being sections 20, 21, and 22—and now in section 25 as amended and re-enacted by Act 1904, c. 254, p. 435, and made applicable particularly to the city of Baltimore, are provisions directing that the boards of registry, when sitting for revision of the registration lists, shall of their own initiative, or at the instance of other persons of the description designated therein, note for erasing from these lists all names of persons which for any reason are known, supposed, or suspected not to be entitled to remain thereon; and prescribing how notice of intended action by the board of registry in the cases so noted shall be given, how said boards are to proceed to obtain all practicable information in reference to such cases as a basis of action thereon, and how said boards shall then proceed to take action upon the same. It is further provided (section 22) that the boards of registry shall, at the same time that they return to the supervisors of elections the registers of voters made by them, as they are required to do, return also "the alphabetical list of the names, color, and addresses of the persons registered and erased by them." which lists are to be printed and posted by the supervisors of election in prominent places in the respective voting precincts, and copies

thereof printed, sufficient to supply all demands for the same, and to be sold at five cents per copy. It seems quite evident from a reading of the sections of the Code relating to registration, last referred to, and from the nature of the provisions they contain, that to the boards of registry was assigned the duty of inquiring into, and making the subject of their action, all cases of persons not entitled to remain upon the registration lists in their respective jurisdictions; and that with that duty performed by them there was, in the contemplation of the law relating to registration, an end of all original inquiry into such cases. Careful provision is made for giving, as far as practicable, to parties to be affected in these cases, notice of intended action by the boards of registry as preliminary thereto; and, after action taken, means are prescribed to notify it to all who may be affected by it or may desire to call it in question. Section 23, enacted in immediate connection with the provisions of article 33 which have been referred to, was intended, by providing an appeal to the courts, to give to those who might be aggrieved by error in the action of the boards of registry under the said provisions the means of redress. In the case at bar nothing was done during the sittings of the board of registry in the voting precinct mentioned in the appellant's petition looking to action therein by the board of registry; no notice of any kind was given or attempted to be given to the party whose name the petition here seeks to have erased from the voting lists; and no action of any sort was taken, or attempted to be taken, by or before the board of registry in the precinct in which the voter was registered. The petition in the case was not filed until the 29th of October, some time after the final sitting of the board of registry, and after the close of the whole work of registration. It therefore was not, and could not be, based upon any action of the board of registry by which the appellant was aggrieved, and the court was without jurisIdiction to entertain it.

Other considerations, more general in character, might be suggested as going to enforce the views herein expressed; but it seems clear from the more specific reasons which have been assigned that the order of the court below must be affirmed.

Order affirmed, with costs to appellees.

(26 R. I. 520)

HAGGELUND v. OAKDALE MFG. CO. (Supreme Court of Rhode Island. Dec. 16,

1904.)

NEW TRIAL- PETITION OMISSION ΤΟ FILE TRANSCRIPT OF EVIDENCE -"ACCIDENT OR MISTAKE-NEGLECT-POWER TO GRANT NEW TIME FOR FILING TRANSCRIPT.

1. Where an attorney applied for an extension of time for the filing of a transcript of the evidence on a petition for new trial, and was

informed by the court that the statute did not permit an extension of the length desired, in spite of which he made a memorandum for the filing of the evidence on the date to which he had originally asked the extension, the resulting failure to file the evidence in time was the result merely of neglect, and not of accident, mistake, or unforeseen cause, so as to authorize the granting of a new trial under Gen. Laws 1896, c. 251, § 2.

2. The Supreme Court has no jurisdiction to hear a petition for a new trial unless presented as provided by law.

3. Under Pub. Laws 1903, p. 47, c. 1111, authorizing the trial justice to extend the time for filing the transcript of the evidence on petition for new trial, and providing that the appellate division of the Supreme Court may, on motion, grant a further extension, the Supreme Court is not authorized to grant a new time for the filing of the transcript after the time already granted has expired.

Action by John Haggelund against the Oakdale Manufacturing Company. On dePetition fendant's petition for new trial. denied.

Argued before TILLINGHAST, C. J., and DOUGLAS and DUBOIS, JJ.

John W. Hogan and Philip S. Knauer, for plaintiff.

DOUGLAS, J. The defendant in this case, in which a trial was had in the common pleas division after verdict for the plaintiff, duly filed his notice that he intended to file a petition for a new trial; and upon his application Mr. Justice Wilbur, who had sat in the case, extended the time for filing the transcript of the evidence to April 25, 1904. On that day the stenographic clerk delivered the transcript to the defendant's attorney, bearing upon it a memorandum that the 25th day of April was the last day for filing. The attorney, at the time of his application to Mr. Justice Wilbur, asked that he should be given until May 2d, but was informed that April 25th was the last day which the statute allowed. On returning to his office he says that, having the date May 2d in his mind, he set it down upon a memorandum as the prescribed date of filing. On April 26, 1904, the defendant filed in the common pleas division his statement of the evidence, and on April 28th a petition for a new trial setting forth certain specific grounds therefor. On the same day--April 28th-he filed in this division a petition setting out the travel of the case, and that the neglect to file the transcript of evidence was due to the mistake of the attorney in relying upon his erroneous memorandum, and praying, first, for a new trial; or, secondly, that the petition for a new trial be heard upon its allegations; or, thirdly, that this division now grant an extension of time wherein to file the transcript and petition, that it may come up for hearing in due time.

The prominent scope of section 2 of chapter 251, Gen. Laws 1896, is to remedy the effect of accident, mistake, or unforeseen cause which has occurred previous to or during the progress of a trial and has occasion

In Martin

ed error in the judgment itself. v. Hutchens, 21 R. I. 258, 43 Atl. 70, the court extended the application of the section to include an occurrence which prevented the party from completing the steps he had begun towards prosecuting a petition for a new trial. The peculiar hardship of the case -the party having been killed by a burglar -disposed the court to construe the statute as liberally as possible. If we admit the conclusion of that case, we find no circumstances in this one to justify the application of the remedy. The case seems to us to be liable to the comment which we made in McDermott v. The R. I. Company, 60 Atl. 48, where we said: "The affidavit filed by the defendant in this case fails to show any statutory ground for its petition for leave to file a petition for a new trial. Noth ing which the law recognizes as 'accident, mistake, or any unforeseen cause' is shown to have occurred, but simply neglect, by reason of forgetfulness, to take the necessary steps to file a petition for new trial in the common pleas division within the time limited by statute." So in the case at bar. The time asked for was one beyond the limitation of the statute, and the counsel was so told by the justice to whom he applied. Notwithstanding this, he misled himself by making an erroneous memorandum. This was mere carelessness. Again, he neg lected to read the notification on the transcript of evidence. which correctly stated the day prescribed for filing it. This is not such misfortune as the statute contemplates or relieves from where the party has once had his day in court. In cases of default, which are the cases primarily dealt with in this section, the court has exercised a very broad discretion in granting trials, even where the mistake has not been entirely excusable; but after one full trial of a cause with all the formalities prescribed by law we do not feel warranted in granting a review unless the petitioner has lost his opportunity to apply for it by some substantial misfortune. Such are the cases cited by the petitioner. Densereau v. Saillant, 22 R. I. 500, 48 Atl. 668; Miller v. McCormick, Ex. No. 3,502.

The second prayer cannot be granted. We have no jurisdiction to hear a petition for a new trial unless presented as provided by law. Bristow v. Nichols, 19 R. I. 719, 37 Atl. 1033; Martin v. Hutchens, 21 R. I. 258, 43 Atl. 70; Blaisdell v. Harvey, 25 R. I. 572, 57 Atl. 371; Dillon v. O'Neal, 26 R. I. 87, 58 Atl. 455. The principle is the same as in the case of appeals. Brayton v. Dexter, 16 R. I. 70, 12 Atl. 132; Vaill v. Town Council of New Shoreham, 18 R. I. 405, and cases cited at page 407, 28 Atl. 344.

Neither do we think that we have any power now to grant further time within which the record may be filed. It is provided by a recent statute (Pub. Laws 1903, p. 47, c. 1111) that the time within which the statement of evidence may be filed may be

extended by the justice who tried the cause not exceeding six weeks from the end of five days after verdict or decision, unless the six weeks terminate in vacation, and that "in case of the sickness or other disability of the stenographic clerk who made such statement of the evidence and the rulings thereon, and for other causes, the appellate division of the Supreme Court may, on motion therefor by the party ordering such statement of the evidence and the rulings thereon, for cause shown and after notice to the other parties to said cause, grant a further extension in its discretion." We find here no power to grant a new term; only an extension of a subsisting one. The whole proceeding is designed to be diligently prosecuted. The provision is part of a plan to render the work of the stenographic clerks more efficient, and to hold parties to prompt action. Delay, unless for cause, is not to be granted; and then only when seasonably applied for. After the allotted term has once expired, it cannot be enlarged or added to. The review of a case on petition for a new trial by this method is treated not as a right, but as a privilege, which can be obtained only by compliance with strict conditions.

The petition must be denied and dismissed.

(77 Conn. 628) CUNNINGHAM LUMBER CO. v. NEW YORK, N. H. & H. R. CO. (Supreme Court of Errors of Connecticut. March 9, 1905.)

GARNISHMENT-PROPERTY SUBJECT TO-DEBT.

A contractor agreed with a railroad company to repair a wharf for a specified sum by a fixed date. He abandoned the work before it was completed. Two partial payments were made, based on the estimated value of the work done, less 10 per cent. A third estimate of the work done up to a certain date was made, but was not paid. The estimates and payments were made at the request of the contractor, and as a favor to him. Held, that the contract, providing, in effect, for payment when the work was done, did not become a contract to make periodical payments as the work progressed, and the company was not indebted to the contractor within Gen. St. 1902, § 880, providing that, where a debt is due a defendant, plaintiff may garnishee the debtor.

[Ed. Note. For cases in point, see vol. 24, Cent. Dig. Garnishment, §§ 78-82.]

Appeal from Superior Court, New Haven County; William S. Case, Judge.

Action by scire facias by the Cunningham Lumber Company against the New York, New Haven & Hartford Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

James H. Webb and Arnon A. Alling, for plaintiff. John W. Bristol and Samuel H. Fisher, for defendant.

SHUMWAY, J. The plaintiff in this action of scire facias brought a civil action against Frederick P. Mayo by a writ and