(108 A.)

of the receipt and the indorsements thereon, as above mentioned, is a cloud upon the title of your orators to said bonds and an obstacle to your orators receiving from the Mapos Central be returned to said company and be ready for Sugar Company the said bonds when they may redelivery, and in the meantime prevents your orators from receiving the income or interest upon said bonds to which they are justly entitled."

The demurrer does not admit the legal con

indorsements.

were informed by him that all four of said [tors, and that the possession by the defendant receipts had been mailed to William H. Evans, and inclosed a copy of a letter from him of August 28, 1915, acknowledging receipt of said receipts. On June 1, 1917, the plaintiffs were informed by the secretary of the sugar company that the defendant had made formal demand upon him "for the coupons of these bonds as they mature, and has sent me a copy made by her or her son of the receipt given by the Mapos Central Sugar Company and indorsements thereon." A copy struction placed by the plaintiffs upon the of these papers were sent to the plaintiffs and by which it appeared that the body of a reThe bonds were pledged by the sugar comceipt from the Mapos Sugar Company to William H. Evans for Mapos bonds par value and that company still holds possession of pany to the West India Finance Company, $20,000, dated August 19, 1915, and the body them. After the date of said indorsements of two indorsements both dated September three semiannual installments of interest up18, 1915, upon said receipt were inclosed in a on said bonds, the same being coupon bonds letter of March 13, 1917, from the defendant to the secretary of the company. The copy Evans. The defendant never made any claim payable to bearer, were paid to William H. of defendant's letter, and of the receipt for the bonds and two assignments, dated Sep-after the death of said Evans. It is alleged: to said coupons or of title to the bonds until tember 18, 1915, indorsed upon the receipt, one an assignment from Evans to the defend- "That the said attempted gift of said bonds ant, and one a reassignment, upon certain by the said William H. Evans to the defendant contingencies from the defendant to Evans, conditionally upon his death, before the return are set out in full in the opinion in Lipson v. to take effect after his death, was imperfect, of said bonds by the said Mapos Company, and Evans, 133 Md. 373, 105 Atl. 312, and there invalid, testamentary in its nature, and conferfore need not be herein inserted. red no right or title to said bonds upon the defendant."

We now quote the allegations of the bill as to the time and circumstances under which the receipt was delivered to the defendant and the indorsements made thereon:

The receipt is a copy, except the signature of the original receipt given by the Mapos Sugar Company to William H. Evans for said $20,000 par value of Mapos bonds, and said receipt was duly signed by the sugar company, and is now in possession of the defendant, but the plaintiffs do not know (8) "That your orators have no knowledge or whether the indorsements thereon were sign-information of the time or circumstances under ed by said Evans. which the defendant obtained possession of said

In the fifth paragraph of the bill it is al- receipt except the fact hereinabove set out as leged:

"That, assuming said indorsements on the back of said receipt to have been signed and sealed by the said William H. Evans and the said defendant respectively, then your orators aver that the legal interpretation or meaning of said indorsements is an attempt on the part of the said William H. Evans to make a conditional donation of said bonds to the said defendant, to take effect upon his death, provided he should die before the said bonds should be returned by the Mapos Central Sugar Company, to which he had loaned them for the purpose aforesaid, and that it was the meaning and effect of the two indorsements and the purpose and intention of the parties that the defendant should have no interest in said bonds or right or title to them during the lifetime of the said William H. Evans, and that, if they should be returned by the said Mapos Central Sugar Company during the lifetime of the said William H. Evans, they should continue to be the property of the said William H. Evans. And your orators upon information and belief aver that the title to said bonds remained in the said William H. Evans up to the time of his death, and upon the appointment and qualification of your orators as his executors devolved upon them, and the title to said bonds is now in your ora

to the relation between the defendant and the said William H. Evans, and the fact as indicated by the letter from the defendant to Charles Heebner of March 13, 1917, and the copies inclosed with said letter, and the further fact that no claim was made upon the Mapos Company for the income on said bonds or claim of title to the said bonds during the lifetime of the said William H. Evans, and therefore they are unable to state whether or not the said receipt was intentionally delivered by the said William H. Evans to the defendant, but upon information which they have, and supposing the indorsement to have been signed, they aver that the signing of said indorsement and the obtaining possession of said receipt by said defendant took place at the same time and all as parts of one transaction."

(9) "Your orators further upon information and belief aver that the defendant, by means of the illicit relation aforesaid between herself and the said William H. Evans, obtained and maintained a great influence over the said William H. Evans which he was unable to resist; that he repeatedly declared his intention of breaking off the illicit relations with the said defendant, but did not do so.

"That at the date of the indorsement upon said receipt, to wit, September 18, 1915, the said William H. Evans was a man 75 years

of age, and your orators upon information and [ an assignment of said bonds to her; and, belief aver that the said defendant obtained thirdly, for further relief. possession of said receipt without any consideration either valuable or good moving from her or to the said William H. Evans, and solely as the result of the influence which she had acquired over the said William H. Evans, and

(135 Md. 87)

(108 A.)

FOUNTAIN v. STATE. (No. 23.) (Court of Appeals of Maryland.. Oct. 29, 1919.)

1. CRIMINAL LAW 116-LEGISLATURE HAS POWER TO MODIFY LAWS TO ENFORCE CONSTI

action and to a new trial thereof in the same manner as if no trial had taken place, and as if such action had been originally instituted in said court."

This application was made, as stated in the petition, upon the provisions of section

TUTIONAL PROVISIONS FOR REMOVAL OF 23 of article 5 of the Code of Public General

CAUSES.

The Constitution confers on the Legislature power to make such modification of existing laws as may be necessary to regulate and give force to its provisions relating to the removal of causes, and in the exercise of the power the Legislature may enlarge the right of removal. 2. CRIMINAL LAW 115-NO CHANGE OF VENUE UNDER STATUTE APPLYING TO CIVIL "ACTION."

In view of Acts 1804, c. 55, §§ 2 and 3, amending the Constitution of 1776, and in view of Const. 1851, art. 4, § 28, Const. 1864, art. 4, § 9, Const. 1867, art. 4, § 8, as amended by Acts 1874, c. 364, Code Pub. Gen. Laws, art. 5, § 23, originally embodied in Acts 1819, c. 149, being confined by its terms to "actions," does not authorize the Court of Appeals, on showing that a fair and impartial trial cannot be had, to remove a prosecution for rape, punishable by death, to the court of some other county or city for trial.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Action.]

Laws of this state, which provides that

"When, on the reversal of a judgment, a new trial shall be awarded, the Court of Appeals, upon suggestion in writing by either of the parties, supported by affidavits or other proper evidence that a fair and impartial trial cannot be had in the court where the judgment So reversed shall have been rendered, shall direct their clerk to transmit a copy of the record to the clerk of the court of some other county or city, with an order to such court, directing them to proceed in such action, and to a new them to proceed in such action, and to a new trial thereof, in the same manner as if no trial had taken place, and as if such action had been originally instituted in such court."

The above-quoted statute, in the opinion of this court, does not apply to a case like the one before us.

The present Constitution of this state, as well as the earlier Constitutions, provides for the removal of cases.

In section 2 of chapter 55 of the Acts of 1804, by which the Constitution of 1776 was amended, it is provided that

* insti

Isaiah Fountain was convicted of rape, and he appealed, and, after reversal and "In any suit or action at law award of new trial, petitions for change of tuted in any county court of this state, the judgvenue. Application denied, and petition dis-es thereof, upon suggestion, in writing, by ei

missed.

Argued before BOYD, C. J., and BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ.

ther of the parties thereto, supported by affidavit, or other proper evidence, that a fair and impartial trial cannot be had in the county court of the county where such suit or action is depending, shall and may order and direct the record of their proceedings in such suit

Eugene O'Dunne, of Baltimore, for appel- or action to be transmitted to the judges of

lant.

Albert C. Ritchie, Atty. Gen., and Ogle Marbury, Asst. Atty. Gen., for the State.

PATTISON, J. Isaiah Fountain was in the month of April, 1919, convicted in the circuit court for Talbot county of the crime of rape and sentenced to be hanged. An appeal was taken therefrom to this court, which was heard at its April term, 1919, and decided on the 17th day of July thereafter. The judgment was reversed, a new trial was awarded, and the case remanded to the circuit court for Talbot county for trial. 107 Atl. 554.

The appellant subsequently on the 23d day of July, 1919, filed a suggestion, supported by affidavit, that he could not have a fair and impartial trial in the circuit court for Talbot county, and prayed that this court "order and direct the clerk of the circuit court of Talbot county to transmit a copy of the record in said cause to the clerk of the criminal court of Baltimore, with an order to such court directing it to proceed in such

any county court within the district for trial," etc.

In section 3 thereof, it is further provided that

"If any party presented or indicted, in any of the county courts of this state, shall suggest, in writing, to the court in which such partial trial cannot be had in such court, it shall prosecution is depending, that a fair and imand may be lawful for the said court to order and direct the record of their proceedings in the said prosecution to be transmitted to the judges of any adjoining county court, for trial," etc.

And by section 4 it is provided that"If the Attorney General, or the prosecutor for the state, shall suggest, in writing, * * that the state cannot have a fair and impartial direct the record of their proceedings *** trial in such court, it shall *** order and to be transmitted to the judges of any adjoining county court for trial."

The General Assembly of Maryland at its January Session, 1819 (Acts of 1819, c. 149),

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

passed what is now section 23 of article 5, upon which the appellant seeks the relief prayed for in his application or petition.

It will be observed that in the above-stated provisions of the Constitution suits and actions at law are treated and dealt with separately and distinctly from criminal prosecutions, and it may well be inferred from such separate classification that section 23 of article 5, which refers only to "actions," was not intended to include criminal prosecutions when no reference whatever is made to them in the statute. Had it been the intention of the Legislature to include within the provisions of the act cases of presentments and indictments, they would have been specially mentioned in the act in view of the provisions of the Constitution.

In each of the later Constitutions of the state is found a similar classification of the cases in which the right of removal exists. In the Constitution of 1851, § 28, art. 4, the right of removal is extended to "all suits or actions at law, issues from the orphans' court, or from any court sitting in equity, in petitions for freedom, and in all presentments and indictments."

a fair and impartial trial cannot be had in the circuit in which it is then pending, that the party making such suggestion shall make it satisfactorily appear to the court that such suggestion is true, or that there is a reasonable ground for the same; while the statute (section 23, art. 5) requires only a suggestion in writing supported by affidavits or other proper evidence that a fair and impartial trial cannot be had in such court, to authorize the removal of the case.

[1, 2] It is true that the Constitution confers upon the Legislature power to make such modification of the existing laws as may be necessary to regulate and give force to its provisions relating to the removal of cases; and in the exercise of this power the Legislature may enlarge the right of removal (Price v. Nesbitt, 29 Md. 264; Downs v. State, 111 Md. 246, 73 Atl. 893, 23 L. R. A. [N. S.] 739, 134 Am. St. Rep. 586), but in the statute before us we can discover no intention on the part of the Legislature to enlarge such right. The statute confines the application of its provisions to actions, and, as we construe it, cases of presentments and indictments, which by the constitutional provision constitutes a class of cases in addition to suits or actions, cannot be regarded as actions within the meaning of the statute, however comprehensive the meaning of the word "actions" might be when otherwise used.

The court being of the opinion that it is without power to grant the prayer of the appellant's petition, his application will be denied.

In the Constitution of 1864, § 9, art. 4, such right of removal is given "in any suit or action, issue, or petition, presentment or indictment." A like classification is found in section 8, art. 4, of the Constitution of 1867, as originally passed; and by the amendment thereto (Acts of 1874, c. 364) the same is made to include specially "issues from the orphans' court or from any court, sitting in equity." It will be seen that at the time of the passage of the act of 1819 (chapter 149), the distinction between suits or actions at law, and presentments and indictments, was clearly defined and recognized by the provisions of the then existing Constitution. Nevertheless, the act then passed made reference only to "actions," and no reference whatever is there- BETHLEHEM STEEL CO. v. DORNBERG.

Application denied, and petition dismissed, with costs.

(No. 10.)

(135 Md. 121)

(Court of Appeals of Maryland. Nov. 13, 1919.)

in made to "presentments" or "indictments"; and, although the Constitutions that followed continued to recognize said classification of cases, no amendment has ever been made to the act of 1819, chapter 149, by which criminal prosecutions should be brought within 1. ASSUMPSIT, ACTION OF 23-CANNOT REthe provisions of the act, consequently, the inference may well be drawn that it was never intended that the provisions of said act should apply to cases of presentments and indictments.

As further indicating that it was not the intention of the Legislature in the passage of the act of 1819, chapter 149, to include presentments or indictments within its provisions, the Constitution of 1867, as amended by the act of 1874, chapter 364, makes it necessary, in all cases of presentments and indictments other than those for offenses which are or may be punishable by death, in addition to the suggestion in writing that

COVER ON IMPLIED AND EXPRESS CONTRACT.

A plaintiff cannot recover in the same action of assumpsit both on an implied and an express contract, and, having alleged both, the thing to be considered is whether the proof shows the express contract alleged, or whether there is a variance.

2. BROKERS 56(3)-RIGHT TO COMMISSIONS

WHEN PERFORMING ALL HE UNDERTOOK.

To entitle a broker to commissions, it is not required that the actual contract shall be made or the purchase consummated by him, although the actual transaction is consummated through the principal, and the broker is entitled to compensation where he has performed all that he undertook to do.

(108 A.)

3. BROKERS 86(1)-INSUFFICIENCY OF EVI- the purchase by the defendants or any of them DENCE OF SERVICES.

In an action for commissions for services rendered in effecting purchase of land, evidence held insufficient to show that the broker, who alleged that he was employed to do preliminary work, etc., conferred with various people including the owners, performed the services which he undertook to perform, and hence no recovery could be allowed.

of a tract of land known as the Gray property on the North Point Road, in Baltimore county, the defendants and each of them agreeing to pay the plaintiff, as compensation, 5 per cent. of the purchase price of the said tract; that the plaintiff undertook to render said services and did render such services and expended various sums of money in connection with the performance by him of his part of the contract, and has performed his part of the contract;

Appeal from Baltimore Court of Common that, notwithstanding the fact that the defendPleas; Robert F. Stanton, Judge.

STOCKBRIDGE, J. This suit was insti

tuted to recover commissions alleged to be due the plaintiff for services rendered by him as a real estate broker, in connection with the acquisition by the Bethlehem Steel Company of a tract of land on Patapsco Neck from William L. Gray, and which resulted in a verdict in favor of the plaintiff for the sum of $4,500 or 5 per cent. on $90,000-the amount paid by the steel company for the property of Mr. Gray.

The record contains but a single bill of exception, and has reference only to the action of the court in its ruling upon the prayers of the defendant. The questions presented are still further narrowed to the first three prayers of the defendant, all of which were rejected. These involve but two questions of law: First, whether there was evidence in the case legally sufficient to require the submission of the matter in controversy to a jury under the proof offered, and the averments of the declaration; and, second, whether there was such a variance between the declaration and the proof offered by the plaintiff as to require the withdrawal of the case from the consideration of the jury.

ants and each of them purchased or caused or procured the purchase of said property, the defendants and each of them have failed and refused to pay the plaintiff the agreed compensation of 5 per cent. of the purchase price thereof, although the plaintiff has demanded the same."

The suit as instituted was against three defendants, the Bethlehem Steel Company, the Penn-Mary Steel Company, and Frederick W. Wood. By the instruction of the court granted at the conclusion of the plaintiff's evidence, the jury was directed to render a

verdict for the defendants the Penn-Mary

Steel Company and Frederick W. Wood, leav-
ing the suit thereafter only as between Mr.
Dornberg, as plaintiff, and the Bethlehem
Steel Company, as defendant.

[1] The first three counts in the declara

tion were the common counts in assumpsit, on an implied contract, while the fourth count sets out a specific contract; and it needs no citation of authorities for the proposition that a plaintiff cannot recover in the same suit upon both an implied and express contract. An express contract being thus alleged, the only consideration is whether the proof tends to establish the same, and, second, whether

there is such a variance between the contract

alleged, and the proof given, as to require an instructed verdict for the defendant.

[2, 3] The contract of the parties as alleged in the fourth count is of a very vague character, the allegations being that the plaintiff was to "visit various places, to confer with various persons, and do other preliminary work in connection with the purchase" of the Gray property.

There is nowhere alleged in terms that the plaintiff as a broker was to make the purchase, and the plaintiff says of the interview with Mr. Wood, at the time when the supposed agreement was made, that "the first conversation was a general talk"; but he further, in answer to questions, speaks of obtaining the amount of acreage of certain tracts, of which the Gray tract was one, and the price or prices at which they could be obtained. He nowhere in his evidence particu"(4) And for that the defendant the Bethle- larizes any other service which he was to ren. hem Steel Company is a body corporate, and der in connection with acquiring the property the defendant the Penn-Mary Steel Company is a body corporate, that the defendants and each for the Bethlehem Steel Company, but in his of them employed the plaintiff to visit various testimony he does claim to have rendered places to confer with various persons and to other services, which found their culmination do otk er preliminary work in connection with in the transfer of the Gray property to the

The first three counts of the declaration were common counts in assumpsit; the fourth count reads as follows:

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