write for it, and did in fact write to Mrs. Lyons a few days thereafter, asking her to return her papers. On the same morning of the day after the will was made the testatrix complained to Cephas Johnson also that Mrs. Lyons had taken away a paper that she should not have taken, and expressed a purpose of writing for the return of it. We have already referred to the testimony of Yates Walsh as to what she said to him on the morning after the making of the will as to the occurrences of the previous evening. On December 23, 1898,-less than three weeks after the date of her will,-the testatrix wrote a long and affectionate letter, which was found among her papers, to her brother, just as if he were still alive; and in the same month she wrote the following remarkable letter to Mr. Condit: "Baltimore, Friday, Dec. 30th, '98. Mr. Condit-Dear Sir: I've not heard from you for a long time. Hope you are well. I am about as usual,-sometimes sick and sometimes well, but never unable to help myself. We are having a lovely winter; at times like spring. About a year ago you wrote you were about making an arrangement for a sale or lease of some of the Jersey Property.' Was it a satis she replied, according to Mrs. Lyons' very positive testimony: "I really don't know, Mr. Denny, that I will have more than enough to pay the bequests. 'Well,' he said, 'if there should be? She said, 'Divide it up in four equal parts between Miss Friedley, Mrs. Schumacher, Miss Belle Fullerton, and yourself' (meaning me)." Mr. Lyons gives substantially the same account of that incident, saying: "Mr. Denny asked what she was going to do with the residue, and she said: 'I don't know that I will have any. I don't know that I will have enough to pay what I have already mentioned.' She said, 'I never have had any statement, or know anything at all, of what I have got, and I don't know.' 'Well,' he said, 'there might be something, and you had better provide for it. What shall it be?' Well, she thought some moments, and she said, 'Oh, well, divide it up among the four,-Felia and Allie or Mrs. Schumacher and Miss Fullerton and Minnie Friedley.' Mr. Denny's own testimony on this subject agrees with that of Mr. and Mrs. Lyons. Two clauses were then added to the will,-one directing the erection of tombstones over the graves of the testatrix and her brother, William, and her sister, and the other appointing Mr. Lyons and Mr. | factory one? And is there any interest comDenny executors. The will was put in final shape at the same interview, and read over to or by the testatrix, and then the attesting witnesses were sent for, and it was formally executed, and was handed by Mr. Denny to Mr. Lyons for safe-keeping, in her presence, without protest or objection from her. After the will had been finished, the parties remained for a short time, chatting around the fire, and the testatrix spoke to them of her brother, William, as if he were still living, when Mr. Denny said to her, "Mrs. Lyons or somebody said, or you certainly told me, that your brother was dead," whereupon she said, "Yes, I know he is dead," or, "Oh, yes, I remember he is dead." On that same evening, after the persons who had been there in connection with making the will had gone away, she said to her companion, Minnie Friedley, that they had a jolly time, more like a wedding than making a will; and that she did not see why she should leave Mrs. Lyons anything; that she had plenty of money, and did not need any of hers; and she expressed a desire to have back the papers Mrs. Lyons had taken away with her. Mrs. Friedley, the mother of Minnie, testified that on the morning after the making of the will she went to see the testatrix, who met her at the door, and said, "I suppose you have heard of the scandal last night?" Mrs. Friedley said, "What is it?" and the testatrix replied: "I don't know. I don't know whether I did anything for your daughter." She further said that Mrs. Lyons had taken the will away with her, whereupon Mrs. Friedley advised her to get the will, and see what disposition she had made of her property. She replied that she would ing to me? I've not heard from brother for a long time. My health is variable, but thus far I've kept along without serious illness. We are having a mild and beautiful winter, and our city is generally healthy. Christmas has passed as usual, and the 'New Year' is near at hand. May we all enjoy it as we can, with good health and fair prospects. Let me hear from you, and if you have anything from my brother please write me. Hoping this will find you in good health, I remain, yours truly, Miss Seaver." Upon the state of facts thus outlined we have arrived at the conclusion, already stated, as to the want of testamentary capacity on the part of the testatrix when she made her will. She made her arrangements for its execution with deliberation, and met Mr. Denny for that purpose at a previously appointed day and hour. She had been not long prior to that time informed as to the nature and extent of her property in New Jersey, and she had occupied the Calhoun street house for more than ten years, and had exclusively owned it for more than two years. Yet when Mr. Denny inquired of what her property consisted she was able to distinctly remember only the $3,000 in the savings bank, which constituted but one-fifth of her estate. Her mind seems to have been completely blank as to the Calhoun street house, and in not much better condition as to the New Jersey property. When she had made legacies amounting to but $1,850 she doubted whether her estate would be sufficient to meet them, and showed an indisposltion to make others; and when Mr. Denny advised her that it would be prudent to add a residuary clause, and inquired to whom she J. Adam Hechter was convicted of receiving stolen property knowing it to be stolen, and he appeals. Affirmed. Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, and SCHMUCKER, JJ. Bernard Carter and Henry Duffy, for appellant. Atty. Gen. Rayner and Robert M. McLane, for appellee. wished the residue to go, she simply said, "Oh, well, divide it up among the four," mentioning the parties to whom she had by the previous clauses of the will limited her bounty to $250 each. Again, when the will was drawn she certainly remembered that her brother and sister were dead, for she directed her executor to erect tombstones at their graves, and yet before Mr. Denny left the room she spoke to him of her brother as still living, although, upon having her attention called to the matter, she remembered that he was dead. During the same month she wrote the letter to her brother as if he were still alive, and, stranger still, wrote the letter to Mr. Condit showing a state of utter mental confusion alike as to the death of the brother and the state of the property which he left her, and of which she had then been in the enjoyment for more than two years. Furthermore, the statements which she made to several of the witnesses on the morning after the will was made as to what she had done on the previous evening greatly strengthen the conviction that she had not that understanding which the law requires of the business about which she was engaged when she attempted to make her will. Then, in addition to these facts, there is the testimony of Dr. Weiner, who was so long her physician, that she was of unsound mind, and he much doubted her capacity to make a will. Mr. Denny, who had never seen the testatrix before that one interview with her, and had no knowledge | tional entry be entered on the docket: "The at all of her property, or of the important facts disclosed by the present record, was evidently misled by her cheerful manner and conversation when in company with her friends Mr. and Mrs. Lyons, to regard her as competent to make her will, but we cannot, with the light now thrown upon the situation, sustain the will. The order appealed from must be reversed. Order reversed, and cause remanded. (94 Md, 429) HECHTER v. STATE. 1. On an indictment charging two offenses,receiving stolen goods, knowing them to be stolen, and being an accessory before the fact to the larceny,-a verdict is good which finds accused guilty of one offense, but is silent as to the other. 2. Where a jury returns a sealed verdict finding accused guilty of one charge in the indictment (of receiving stolen property), but silent as to the other charge (of being accessory before the fact to the larceny), it is proper to permit them, before the verdict is recorded, to add to it a finding of not guilty as to the latter charge. 3. Conceding there was irregularity in permitting the change, it was in favor of accused, and it would not be permitted to defeat the ends of justice. Appeal from criminal court, Baltimore city; Henry D. Harlan, Judge. 50 A.-66 FOWLER, J. The traverser was twice tried in the criminal court of Baltimore city upon an indictment containing four counts. The first and second counts charge him with having received a certain quantity of tin knowing it to have been stolen. The second is the same, except that it names the alleged thief. The other two counts charge that the traverser was an accessory before the fact to the larceny. On the first trial the jury failed to agree, but on the second trial the jury brought in a sealed verdict convicting the traverser of receiving the stolen goods, and recommended him to the mercy of the court. The sealed verdict was as follows: "Guilty on the first and second counts as indicted, and recommended to the mercy of the court; and by request of the jury in open court, after their attention had been called thereto by the court, they desire to add, 'Not guilty on the third and fourth counts.'" On motion of the traverser the court below ordered that the following addi argument of counsel for the state and for the traverser having been concluded on May 23, 1901, the jury withdrew from the court room on said day, in charge of a bailiff, to consider of their verdict, and were locked up in their room for this purpose, and on the evening of said day agreed upon their verdict, and sealed up the same, and thereupon separated, and went to their respective homes, and returned to the court at its opening on the morning of May 24, 1901, and then and there, when asked by the court whether they had agreed upon their verdict, answered that they had; and, being further asked whether it was a sealed verdict, replied that it is, and then and there delivered the same to the judge presiding in said court, and the same was opened and read by him; and after the attention of the jury had been called to the fact that their sealed verdict did not find whether the prisoner was guilty or not guilty on the third and fourth counts, and were asked by the judge whether they desired to add to their said verdict a finding on said third and fourth counts, and their expressing the wish so to do, the court, after the attorneys and counsel for the traverser had objected to any change in or addition to said sealed verdict, allowed the said jury to add to their sealed verdict the words, 'Not guilty on the third and fourth counts.'". A motion to strike out the sealed verdict was then filed, based upon the following grounds: "(1) Because the jury did not, by its sealed verdict, find whether the traverser was guilty or not guilty of the offenses charged in the third and fourth counts of the indictment, and did not find on all the issues upon which they were required to find their verdict. (2) The traverser moved the court to strike out the words added by the jury to their sealed verdict in open court on May 21, 1901; that is to say, the words, 'Not guilty on the third and fourth counts." And to sustain this motion he relied upon the facts contained in the additional entry above set forth. On the same day the traverser filed motions in arrest of judgment and for a new trial, both of which were overruled, the former by the trial judge and the latter by the supreme bench; whereupon the traverser was sentenced to be confined two years in the penitentiary. From this judgment he has appealed. The record presents the following questions: First. Was the sealed verdict, as delivered to the court, before it was amended, sufficient? Second. Were the jury at liberty to amend their sealed verdict in the manner the record shows they did amend it? 1. It may be observed, in the first place, that it is conceded that there was nothing irregular in the fact that the jury were allowed, under the circumstances of this case, to bring in a sealed verdict; but the contention of the traverser is that the verdict is bad, not because it is sealed, but, "inasmuch as the crime charged in the first and second counts (that of receiving stolen goods, knowing them to be stolen) and the crime charged in the third and fourth counts (that of being accessory before the fact to the larceny) are two distinct offenses, and there were thus two distinct issues to be found by the jury, their failure by their sealed verdict to find either guilty or not guilty on the third and fourth counts made said verdict a nullity, and therefore a verdict on which no judgment could be rendered." In support of this position strong reliance was placed upon the case of State v. Sutton, 4 Gill, 494. This case was decided in December, 1846,more than a half century ago,-and it was there held that on an indictment containing two counts, the first charging rape and the second an assault with intent to commit a rape, a verdict of "guilty on the second count," without negativing the first count, was bad. In delivering the opinion of the court, Judge Spence said: "The law seems to be well settled upon authority that, if the jury find but a part of the matters put in issue, and say nothing as to the rest, it is ill." Rex v. Hayes, 2 Ld. Raym. 1521, and 1 Chit. Cr. Law, 641, are cited to sustain this position. Chitty does lay down the law on this question in accordance with the above quotation, but in the following sentence he says: "There are, however, so many instances in which a verdict taking no notice of the aggravation has been regarded as sufficient that it does not seem to be necessary at the present day." And the case of Rex v. Hayes, supra, on which the conclusion reached in State v. Sutton rests, has been discredited, even in England, so far as it was said to support the proposition contended for by the traverser; for in the case of Latham v. Reg., 5 Best & S. 266 (1897) Mr. Justice Blackburn said that the point we are here considering was not passed upon in Rex v. Hayes, supra. And in the case of State v. Hill, 30 Wis. 419, Lyon, J., for the court, said: "It has already been stated that the jury did not find expressly whether the defendant is guilty or not guilty of the charge of forgery contained in three counts of the information, but their verdict was silent in respect thereto." He then proceeds to dispose of the question thus presented. We have not deemed it necessary to examine to any considerable extent the English cases on this subject, but it seems to be the opinion of the court of King's bench in Rex v. Hayes (decided in 1727) 2 Ld. Raym. 1518, that the ancient rule of law was that no judgment could be rendered on such a verdict. On the authority of a single case cited from 1 Aud., 103, both Hawkins and Chitty, when speaking of a verdict which acquits of a higher offense and convicts of an inferior one, state: "If it merely find the defendant guilty of the inferior offense, it will be of no avail." The learned judge then quotes the remark of the author which we have already quoted, to the effect that, even at that time (1816) there were so many instances in which a verdict like the one we are here considering had been held sufficient that it would be unnecessary to make it respond to every count. He then says that on the foregoing authorities the court of appeals of Maryland in State v. Sutton, supra, held that the verdict was bad if there was a finding on one count only, and concludes by holding "that a verdict which finds a defendant guilty upon part only of the counts in an indictment containing several counts, and is silent as to the other counts, is equivalent to a verdict of not guilty upon such other counts, and must be so regarded." The same proposition is supported by the following cases, among others: Egerton v. Com., 5 Allen, 514; Keedy v. People, 84 Ill. 569; George v. State, 59 Neb. 163, 80 N. W. 486; Thomas v. People, 113 Ill. 531; State v. Belden, 33 Wis. 120, 14 Am. Rep. 748; State v. Phinney, 42 Me. 384. But, without further citations, we desire, in conclusion upon this branch of the case, to cite Selvester v. U. S., 170 U. S. 262, 18 Sup. Ct. 580, 42 L. Ed. 1029, which was decided by the supreme court in 1897. The opinion was delivered by Justice White. He says: "The proposition is that the verdict of guilty as to the separate offenses covered by the first three counts was in legal intendment no verdict at all, because the jury stated their inability to agree as to the fourth count, covering a different offense from those embraced in the other counts. Reduced to its ultimate analysis," he continues, "the claim amounts to this: That an indictment, although consisting of several counts, each for a distinct offense, is in law an indivisible unit, must be treated as an entirety by the jury in making up their verdict, and such verdict, in order to be valid, must finally pass upon and dispose of all the accusations contained in the indictment." After tracing this "erroneous theory" to the case of Rex v. Hayes, supra, he cites the case of Latham v. Reg., supra, in which Justice Blackburn said that there was no occasion to decide, and that the court of king's bench did not decide, in that case, that, "no verdict being given on one count vitiates a verdict on another count which is good." The quotation from Lord Blackburn thus continues: "In civil cases there is only one process against the defendant, and therefore, if a new trial is granted on part of the case, it is granted on the whole. But in a criminal case, where each count is, as it were, a separate indictment, one count not having been disposed of no more affects the proceedings with error than if there were two indictments." In conclusion Lord Blackburn said: "Each count is in fact and theory a separate indictment, and no authority has been produced to show that we ought to defeat the ends of justice by such a technical error as this," being the very one here complained of by the traverser. The rule in England thus clearly announced in Latham v. Reg., Justice White says has been applied generally in the American cases; citing Whart. Cr. Pl. & Prac. § 740, and 1 Bish. New Cr. Proc. § 1011, where a number of authorities are cited; Claassen's Case, 142 U. S. 140, 12 Sup. Ct. 169, 35 L. Ed. 966; Dealy v. U. S., 152 U. S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545; Ballew v. U. S., 160 U. S. 187, 16 Sup. Ct. 263, 40 L. Ed. 388; Putnam v. U. S., 162 U. S. 687, 16 Sup. Ct. 923, 40 L. Ed. 1118. While Justices Gray, Brown, and Shiras dissented upon another ground, they concurred with the views of the majority upon the question we have been considering. We conclude, therefore, that the weight of modern authority is opposed to the rule laid down in State v. Sutton, supra, and that we ought not any longer to be bound by it to the full extent there annovaced. Of course, we do not intend by what we have said to criticise, or in any manner challenge, the correctness of the views announced in State v. Flannigan, 6 Md. 167, where it was held that on an indictment containing two counts, both charging murder, a verdict of "guilty of manslaughter," without saying "not guilty of murder," is erroneous; nor those in Manly v. State, 7 Md. 135, where it was held that on an indictment containing two counts, both relating to the same transaction, one charging assault with intent to kill and the other as sault and battery, a general verdict of guilty was good; nor do we intend to deny the correctness of the decision in Weighorst v. State, 7 Md. 442, where it was decided upon an indictment containing one count, charging murder, that the verdict, "Guilty of murder in the second degree," without negativing "murder in first degree" and "manslaughter," is sufficient. State V. Flannigan, supra; Weighorst v. State, supra; Ford v. Same, 12 Md. 514,-were all disposed of under our statute requiring the jury to specify in their verdict the degree. 2. It would seem that if, as we think, the sealed verdict in this case was good before it was amended, it was clearly not rendered bad by the addition or amendment which the court allowed by adding the words, "Not guilty on the third and fourth counts." The circumstances under which the verdict was corrected have already been narrated. Before the jury was asked to harken, and before the verdict was recorded, the correction was made; and, if allowable at all, it was made at the proper time. Thus, in the case of Ford v. State, 12 Md. 546, it is said: "If the jury, through mistake or partiality, deliver an improper verdict, the court may, before it is recorded, desire them to reconsider. They cannot, however, be allowed to make alteration after the verdict is recorded." But it was contended that it would be a dangerous practice to allow sealed verdicts to be corrected or changed after the jury have separated, and have an opportunity to be influenced in an improper and illegal way. In this we entirely agree, and hence we think that the right to amend or correct a sealed verdict should be limited to such correction or amendment as will make the oral verdict given in court correspond substantially with the sealed verdict. In our opinion, such was the result in the case at bar, for, as we have held, the sealed verdict, although it found only on the first and second counts, and was silent as to the third and fourth, must be regarded, as a matter of law, as a verdict of not guilty on them, and hence the additional words "Not guilty on the third and fourth counts" added nothing to the sealed verdict. It is said by Mr. Hockheimer in his work on Criminal Law (page 529) that: "Excepting capital cases, and cases in which the sentence may be imprisonment for life, it has been held to be within the discretion of the court to authorize the jury to separate after agreeing upon signing and sealing a paper in the form of a verdict, and afterwards to return a verdict in open court in accordance with the verdict so stated and sealed up." And so it has been held in a number of cases in Massachusetts. Thus, in Com. v. Tobin, 125 Mass. 206, 28 Am. Rep. 220, Gray, C. J., said that in all misdemeanors, if not in all but capital crimes, a practice has been adopted of allowing juries to bring in sealed verdicts. In criminal cases, however, the oral verdict, he says, which is pronounced by the foreman in open [ court, cannot be received unless it is shown to accord substantially with the form sealed by the jury before their separation. See, also, Com. v. Slattery, 147 Mass. 425, 18 N. E. 399; Com. v. Walsh, 132 Mass. 10; Com. v. Durfee, 100 Mass. 146, etc. It was suggested that, if the whole doctrine of sealed verdicts be applied to criminal cases, a sealed verdict of guilty might be changed into a verdict of acquittal, or vice versa; but as we have limited the application of the rule as applied to criminal cases such a situation could not arise, for the scaled verdict cannot be substantially departed from. Of course, there is always a possibility that one or more jurors may dissent from the sealed verdict in open court. Nor can this be prevented whether the verdict be sealed or not, for in either case a juror may dissent. It is said in State v. Engle, 13 Ohio, 494: "The possibility that jurors may dissent from a verdict of guilty when polled, and cast upon the state the burden of a new trial, furnishes a sufficient reason to make courts cautious in exercising the discretion of allowing jurors to seal up their verdicts." But, whatever may be the objections to sealed verdicts in criminal cases, it must be admitted that the practice has long prevailed in Baltimore city and some of the circuits to allow them, except in capital cases and cases involving imprisonment for life. This is part of the growth of modern practice, in relief of the hardships and inconveniences to which jurors are necessarily subjected; but it cannot be carried beyond the point of reasonable safety to the administration of justice. Kramer v. Kister, 187 Pa. 227, 40 Atl. 1008, 44 L. R. A. 432. The change or amendment of the verdict complained of was in favor of the traverser; and upon the whole case, even if we should concede some irregularity exists, we may say here, as Lord Blackburn said in Latham v. Reg., supra, "No authority has been produced to show that we ought to defeat the ends of justice by such a technical error as this." Judgment affirmed. (94 Md. 353) CAHILL v. ORIGINAL BIG GUN BENEFICIAL & PLEASURE ASS'N OF SOUTH BALTIMORE. (Court of Appeals of Maryland. Jan. 16, 1902.) CORPORATIONS — INSOLVENCY- STOCKHOLDERS-STATUTORY LIABILITY-INDEBTEDNESS BY CORPORATION-SET-OFF. Under Acts 1888, c. 294, providing that the continuance of a certain corporation should be on condition that the stockholders and directors should be liable to the amount of their respective stock for all the debts of the corporation, a stockholder, in an action against him to establish his statutory liability, was entitled to set off a debt owing to him by the corporation. Appeal from Baltimore city court. Action by Winfield S. Cahill against the Original Big Gun Beneficial & Pleasure Association of South Baltimore. From a judgment for plaintiff, defendant appeals. Reversed. Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ. Robert H. Smith, for appellant. Myer Rosenbush and Augustus C. Binswanger, for appellee. BRISCOE, J. This is a suit at law, brought on the 15th of June, 1901, in the Baltimore city court, by the appellee against the appellant. The appellee was a depositor and creditor of the South Baltimore Bank, which was, on the 24th of February, 1898, by a decree of the circuit court of Baltimore city, adjudged to be insolvent, and was dissolved. The appellant, at the time of the failure of the bank, was the owner of 38 shares of its capital stock, and as such owner was a stockholder of the bank to the amount of $950, and one of its directors. The charter of the bank (Acts 1888, c. 294) contains the following provision: "The continuance of this corporation shall be on the condition that the stockholders and directors of this corporation shall be liable to the amount of their respective share or shares of stock in this corporation for all its debts and liabilities upon note, bill or otherwise." The declaration contains several counts, but the object of this suit is to recover from the appellant, as stockholder, an indebtedness of the bank to the appellee on account of the statutory liability of the appellant as stockholder and director under the statute incorporating the bank. The appellant filed four pleas to the declaration. The fourth plea is an equitable plea, and sets forth the following defense on equitable grounds: "And for a fourth plea the defendant, for defense on equitable grounds, says that this defendant paid to William Colton and Simon P. Schott, receivers of said South Baltimore Bank, prior to the institution of this suit, the sum of $2,995, which sum was by an order of the circuit court No. 2 of Baltimore city distributed amongst the creditors of the South Baltimore Bank, the plaintiff being one of said creditors, and having received his dividend out of said sum; and that by such payment the defendant became and is a creditor of said bank in the sum of $1,100, an amount greater than the amount of the shares of stock in said bank alleged to have been owned by him at the time of its failure; and that by reason thereof there is no liability on its part to the plaintiff." A demurrer was interposed to the plea, and from a judgment sustaining the demurrer this appeal has been taken. It will be thus seen that the question rais ed by the demurrer to the plea is whether a stockholder of an insolvent corporation can |