cate from Mr. Wm. L. Marbury and Mr. E. G. Baetjer, two distinguished members of the bar of Baltimore city and of this court, that from an examination of the record and the opinion of this court a fee of at least $3,000 would be a reasonable fee, it being understood that he acted as sole counsel for the infants. On December 24th these same gentlemen filed a paper termed a statement of facts as to said certificate, in which they state that when Mr. Carter requested their judgment in the matter they signed and gave him a certificate that in their judgment $4,000 was a reasonable and proper fee; that subsequently he stated to them that, while he considered the amount named by them as not larger than he should receive, he preferred (without explaining his reasons) that the court by its order should not fix a larger sum than $3,000, and requested them to give a new certificate naming such sum, which they did, stating that in their judgment a fee of at least $3,000 was a reasonable fee. On January 27, 1910, Mr. Carter filed a petition asking to be allowed $4,000, and referring to the statement of facts above mentioned. Mr. Carter's grounds for this petition will be best explained and understood by transcribing here a part of that petition, viz.: "Your petitioner represents that while he would have been satisfied to receive the $3,000 as full compensation for his services, if the same had been paid to him without subjecting him to the labor and annoyance connected with securing the payment of the same by contest, and is still willing to accept the same in full payment of his services, if the same is allowed by the final order of this court, and no appeal is taken from such order to the Court of Appeals; but if his right to be paid said amount for his services out of the property above mentioned is to be further contested, he respectfully claims he is entitled to be allowed the amount of $4,000, which, in the original certificate given to him by Messrs. Marbury and Baetjer, was certified by those gentlemen to be a reasonable amount for his services; and therefore he prays that the sum of $4,000 be al compensation could be made. If, when such counsel were appointed, application had been made to the court for the allowance of a retainer suitable to the labor and responsibility involved, we cannot doubt that the court would have had the authority to grant it, and that it would have exercised such authority; nor can we doubt that, when the appellant's bill in the former case was dismissed by the circuit court, if an application for a trial fee in that court, and a further fee in event of an appeal, had been made, the application would have been granted. [6] The question of compensation to Mr. Carter had not been raised when the opinion of this court in the former case was rendered, and was not dealt with thereby, and we can perceive no reason why the authority of the circuit court existing before should be affected by the opinion of this court which was silent upon that subject. We do not think it necessary, further, to consider the power of the circuit court to allow such a fee, nor to consider at all the attempt to shift the burden of such fee from the fund in controversy and place it upon Mr. Winans, the grandfather of these children. The principle upon which this question should be determined has been indicated in the opinion in the former case. In that case, while determining that the distribution made by the orphans' court must be set aside, and the absolute title to the bonds in question be declared to be in the appellant, that relief was granted only upon condition imposed by it, and founded upon the principle that he who asks equity must do equity. The court there said: "Inasmuch, however, as the appellant did not use the requisite diligence to definitely ascertain his legal rights to the trust fund until after the trustees had in good faith, though erroneously, completed the distribution, and so acted toward them as to lead them to believe that he concurred in thei views, we will not require them to accoun for or refund to him either the costs incurred in or about the distribution, or the commissions allowed to them as administrators in the orphans' court, but will permit Mr. Latrobe to retain his portion of such com-lowed to him for his services, and out of the missions, it being conceded that Mr. Winans gave his portion thereof to the appellant prior to the institution of this suit. For the same reason, we will direct the costs of this case to be paid out of the portion of the fund awarded to the appellant before turning the same over to him." The same principles and considerations which the court then felt justified and required the action above directed we now feel justifies and requires us to direct that a reasonable counsel fee to Mr. Carter must be allowed and paid out of the same fund before it is turned over to him. It only remains to determine whether the fee allowed shall be $3,000 or $4,000. With his original petition for a counsel fee, Mr. property mentioned in his petition filed in this case on the 14th day of December, 1909, unless, at the hearing upon said auditor's account, all exceptions which may in the meantime be filed to the allowance of the said $3,000 be withdrawn." [7] We must assume, as we unhesitatingly do, that in naming $4,000 as a reasonable amount, Messrs. Marbury and Baetjer exercised a real and conscientious judgment, and if their original certificate to that effect had been filed we are persuaded that the learned judge of the circuit court, applying his own careful judgment to the matter, would have hesitated to reduce the amount in view of all the circumstances of this case. The circumstances are unusual as respects the question and we think satisfactorily explained by the statement of Messrs. Marbury and Baetjer, and the reasons assigned by Mr. Carter in his petition of January 27, 1910. We are not disposed in a case of this character to minimize the value of professional services, and after reviewing the record in the former case, and the able and elaborate though unsuccessful brief of Mr. Carter, we do not think that $4,000 was more than fair and reasonable compensation. If it was not, then $3,000 is inadequate now, and in our opinion $4,000 should now be allowed. The decree appealed from must be reversed that a decree may be passed in conformity with this opinion. Decree reversed and cause remanded, the appellant in No. 17 to pay the costs in both cases above and below. (115 Md. 90) MARINE BANK OF CRISFIELD v. (Court of Appeals of Maryland. Feb. 3, 1911.) his account was overdrawn $5,700 at about the time the bank's report was published, which showed total overdrafts, $82.04, and there was evidence in explanation that the defendant did not discover all the plaintiff's checks until afterwards, a copy of the report offered by plaintiff and admitted to be such by the bank's president was admissible. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. § 522; Dec. Dig. § 154.*] 5. EVIDENCE (§ 174*)-ORIGINAL WRITINGCOPY-REPORT OF BANK. Code art. 11, § 12, in some newspaper of the A bank's report published, as required by county in which the bank was located, attested by its president, is not necessarily a copy of the report made to the State Treasurer, and such report is not a copy, in the sense that there is an original which must be produced, instead of the copy, but, if shown to be authentic, is admissible as an original. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 561-569; Dec. Dig. § 174.*] 6. EVIDENCE (§ 376*)-DOCUMENTARY EVIDENCE- BOOKS OF ACCOUNT-DETERMINATION OF ADMISSIBILITY. In a suit by a bank depositor for a balance claimed to be due, the bank offered an inplaintiff's deposit, the account of the deposit dividual ledger showing the account of the In an action by a bank depositor for a and debit charges, which it contended was not slips, and the whole account, deposit entries balance claimed to be due, the plaintiff identi- correct, in so far as plaintiff's checks were fied two bank books as those issued to him, shown, and which by its own evidence showed which when issued contained extracts from the that checks to a large amount were not enby-laws of the bank, one relating to the depos-tered until some time after the clerk who kept itor's right of withdrawal, but which were such record had left its employ, and that checks blank on the line for the bank president's sig: found loose in the bank were afterward ennature thereto, and showed deposits made and tered, though not in due course of business or accepted with reference to the by-laws for two contemporaneously with the transaction. Held, years. Held, that the books were admissible to that there was too much indicating uncertainshow deposits and withdrawals, and the condi- ty and unreliability in the ledger account to tions on which deposits could be withdrawn. permit its admission as evidence per se. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. § 522; Dec. Dig. § 154.*1 2. WITNESSES (§ 287*)- REDIRECT EXAMINATION-SCOPE. Where defendant bank, in an action by a depositor to recover a balance claimed to be due, contended that the plaintiff's account was overdrawn, and undertook to show the amount he had deposited and the amount he had checked out, plaintiff's answer on redirect examination, after cross-examination as to an interview about his deposits, in which he claimed that he had deposited more money than he had been given credit for, is properly admitted. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1000-1002; Dec. Dig. § 287.*] 3. WITNESSES (§ 269*)-REDIRECT EXAMINATION--SCOPE IN GENERAL. Where a bank president had testified, in chief in a depositor's suit for a balance claimed to be due, that the plaintiff at the bank went over a acknowledged every check he had drawn, was shown his deposits, and was told the amount he had overdrawn, and shown the ledger containing his account, he may be asked on cross-examination as to what connection he had with the reports of the bank, and, having testified that plaintiff's overdrafts to a large amount were the result of a number of checks not having been charged against his account, he may also be asked what the bank's capital stock was. [Ed., Note.-For other cases, see Witnesses, Cent. Dig. §§ 949-954; Dec. Dig. § 269.*] 4. BANKS AND BANKING (§ 154*)-ACTION BY DEPOSITOR FOR BALANCE EVIDENCE. In an action by a depositor for the balance of a deposit, where the bank claimed that Cent. Dig. §§ 1628-1646; Dec. Dig. § 376.*] Where an individual ledger offered by a bank, in a suit against it by a depositor, as evidence of accounts with the depositor was excluded as evidence per se, but defendant was permitted to offer all the original deposit slips and checks which it claimed were on the ledger, and witnesses were permitted to compare them with the entries on the ledger and to testify that they were all entered on the ledger, any error in rulings as to the ledger's admissibility was not ground for reversal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4194-4199; Dec. Dig. § 1057.*] 8. APPEAL AND ERROR (§ 1050*)-HARMLESS ERROR-ADMISSION OF EVIDENCE. bank for the balance of a deposit, offered the Where plaintiff, in an action against a bank's published report, which was admitted, and thereafter questioned the cashier, in an effort to show that the statements in the re port could not be correct, if defendant's position taken at the trial was correct, the admission of such questions gave the witness an opportunity to explain some of the statements, which explanation was likely to be helpful to the bank; and hence the admission of the testimony of the cashier was no injury to the bank. [Ed. Note.-For other cases. see Appeal and Error, Cent. Dig. & 4153-4160; Dec. Dig. § 1050.*] 9. TRIAL (8 62*)—REBUTTAL EVIDENCE. Where defendant, in an action for the balance of a deposit, has endeavored to show plaintiff's overdrafts, plaintiff in rebuttal may be asked what he had to say with regard to an overdraft. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 148-150; Dec. Dig. § 62.*] 10. BANKS AND BANKING (§ 154*)-ACTION FOR DEPOSIT-INSTRUCTIONS-CONFUSED OR MISLEADING. In an action by a bank depositor for the balance of the deposit, it is proper to instruct that the burden was upon the defendant to establish its defense of set-off by a preponderance of evidence, and, if the minds of the jury were in an even balance as to whether anything was due the defendant under the set-off, then they should find for the plaintiff; it having no tendency to mislead the jury as to burden of proof. [Ed. Note.--For other cases, see Banks and Banking, Cent. Dig. § 530; Dec. Dig. § 154.*] 11. BANKS AND BANKING (§ 154*)-ACTION BY DEPOSITOR FOR BALANCE BURDEN OF PROOF. In an action by a bank depositor for a balance claimed to be due, where the defense of set-off was based on the claim that the plaintiff had overdrawn his account, the burden of proving the set-off was upon the defendant. [Ed. Note. For other cases, see Banks and Banking, Cent. Dig. §§ 518, 523; Dec. Dig. § 154.*] Appeal from Circuit Court, Wicomico County; John R. Pattison and Robley D. Jones, Judges. Action by William A. Stirling against the Marine Bank of Crisfield. Judgment for plaintiff, and defendant appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, THOMAS, and URNER, JJ., H. L. D. Stanford, for appellant. William L. Rawls and George Weems Williams, for appellee. BOYD, C. J. The appellee sued the appellant to recover a balance due him on his account with the bank in its savings department. The defendant pleaded the general issue, payment, and set-off. The appellee had two accounts in the bank, one in the savings department, and the other being what is spoken of as his "checking account," and the plea of set-off was based on the claim of the appellant that the appellee had largely overdrawn his "checking account," and owed it considerably more than the amount admitted to be deposited in his savings account. There are 17 bills of exception in the record, 16 of which embrace rulings on the admissibility of evidence, and the seventeenth presents the rulings on the prayers. The plaintiff offered five prayers, the first, second, and third of which were granted, and the other two rejected, and the defendant also offered five, the first of which was granted as amended, the fifth was granted as offered, and the others were rejected. The trial resulted in a verdict for the plaintiff for $1,530.21, that being the balance due on the savings account; from the judgment rendered on that verdict, this appeal was taken. The plaintiff had two books in the savings department, but one is a continuation of the other; the balance in book No. 1 having been carried to book No. 2. In those books there is printed what purport to be extracts from the by-laws of the bank. Among other provisions is one that "The book shall also contain such extracts from the charter and bylaws of the bank, signed by the president, as may be interesting to the depositor." At the end of the printed matter is a blank line, with the word "President" under it, but his signature is not in either book. The plaintiff identified the books handed to him on the witness stand, and testified that the entries were made by the officials of the bank, showing a balance of $1,530.21; the last entry being on February 1, 1909. The plaintiff's attorney then offered and read in evidence the entries of deposits and withdrawals shown on said books Nos. 1 and 2. The witness further testified that the printed part of the books was in them at the time they were issued to him, and the plaintiff's attorney undertook to read the printed part of said books to the jury, but the defendant objected, and, the objection being overruled, the defendant excepted. That constitutes the first bill of exceptions. The plaintiff then offered the books in evidence, but the defendand the books and everything in them were ant objected. The objection was overruled, admitted in evidence. That ruling is embraced in the second bill of exceptions. as [1] There was no error in those rulings. It is true that the signature of the president does not appear in the books, but they were issued to the plaintiff, as testified by him and not denied by the defendant. The terms upon which the deposits were made are to be found in them; amongst others, that "Depositors shall have the right to withdraw their deposits at any time, by giving one month's notice of their intention; but this notice may be dispensed with, in the discretion of the officers of the bank, and the same paid on demand." It would scarcely be contended that the appellee could, under that provision, have withdrawn his deposits without giving one month's notice, because the president's signature was not in the books. Nor could it be successfully contended that after such notice was given he could not have withdrawn his deposits, together with interest allowed, under the terms stated, unless, of course, there was some valid reason, other than the absence of the president's signature. If the absence of the president's signature had that effect, the bank could profit by its own wrong or neglect in not having the signature attached, as provided by its by-laws. When the appellee accepted the books, he did so on the terms therein men For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes tioned, and from October 11, 1907, the date | the bank?" That was objected to, and, the of the first deposit, until February 1, 1909, objection being overruled, the fourth excepthe time of the last deposit, both he and the officials of the bank acted under that contract over and over again. It was certainly permissible to offer the books to show the deposits and withdrawals, and, as the terms on which the deposits were made were in the books, we can see no reason for excluding them; but, on the contrary, it was proper to put them in evidence, in order to prove the conditions on which the deposits could be withdrawn. [2] Nor do we find error in permitting the plaintiff to answer the question included in the third bill of exceptions. He had been cross-examined at some length, as to an interview he had had at the bank about his deposits. He had said that it was strange he could not see his deposit slips for all the money he had put in the bank, and on redirect examination he was asked to state what he had said about the amount of his deposits, and replied: "I said, 'It is strange, Mr. Stanford, that I can't see my deposit slips running more than $20 to $120.' I am positive I have put more money in that bank than they have given me credit for. I didn't make out all the deposit slips myself, but part of them were made out by some one else." He was then asked, "What did you say about the deposit slips?" which question was objected to, and the objection was overruled. His answer was: "The ones that I saw? I saw a majority of them, but there was some of them missing. There was some that appeared agreeable to me, but there was a considerable number of them that was so small that I thought it strange. I know I put more money in there than I got credit for, and I don't think I got justice." The theory of the defendant was that the plaintiff's account was overdrawn, and it was undertaking to show the amount he had deposited and the amount he had checked out. The plaintiff, on the other hand, contended that he had deposited more than the deposit slips showed, and under the circumstances we can see no reason why that testimony was not admissible. tion was taken. That was also, in our judg ment, admissible. The doctor having testified that the plaintiff had overdrawn his account, the evident purpose was to ascertain the doctor's connection with the reports which were made by the bank, and the subsequent testimony shows that such was the case, if there was any doubt about it then. In the next exception (the fifth), the doctor was asked, "What was the capital stock of the bank?" The object of that was to reflect upon the controverted question whether there was an overdraft, such as the defendant claimed. It had claimed $6,000 in its plea of set-off, and it contended that there were overdrafts by the plaintiff amounting to $5,700. The theory of the defendant was that the overdrafts were the result of a number of checks not being charged against the plaintiff's account; they being "found loose in the bank," as the doctor had testified. If the bank was a small one, with a capital of only $25,000, such a discrepancy would likely be more easily detected than if it had a large capital and was doing a large business. So we think there was no error in either the fourth or fifth bills of exception. That brings us to the sixth. which further shows the relevancy of those questions. [4] While Dr. Atkinson was still under cross-examination, he was handed a copy of the Crisfield Times, dated December 5, 1908, and testified that he had seen a statement or report of the condition of the Marine Bank of Crisfield published therein, and was asked if he had a copy of that report, to which he replied he had not, and added, “I inquired of the cashier and he said that he had none, except some lead pencil notes, which he could not furnish me; that the original copy was on file at the treasurer's office." Whereupon the plaintiff offered said statement, as contained in the Crisfield Times, to which the defendant objected, but the objection was overruled, and the court permitted it to be admitted in evidence. Before reading the report to the jury, the witness was asked: "Will you look at that report which has been offered in evidence, marked 'B. M. F. J. Is that a copy of the report?" and an [3] In the fourth bill of exceptions, the testimony of Dr. Atkinson, the president of the bank, begins; the plaintiff having rested. The doctor had testified in chief that at in-swered: "Yes, sir; that is a copy of the reterviews at the bank in February, 1909, the plaintiff went over every check that he had drawn, was shown his deposits, and acknowledged every check that was shown him; that he was told the amount he had overdrawn, and was shown the individual ledger containing his account. He further testified that there were a number of plaintiff's checks found loose in the bank, which had not been posted on the ledger or charged against plaintiff's account, which caused the overdraft. Amongst other questions asked him on cross-examination was, "Doctor, what port." It purported to be a report of the condition of the appellant's bank at the close of business November 27, 1908. It stated the resources and liabilities, in the usual form of such publications, purported to be sworn to by the cashier, and was attested by three directors, including Dr. Atkinson. The manifest purpose of the offer was to show that in the published report was the statement, "Overdrafts, secured and unsecured, $82.04." As in February, 1909, the defendant claimed that the plaintiff was overdrawn $5,700, and it was not pretended that all of of the publication of the report and the early | put the deposit tickets on a spindle or file, part of February, about two months, it and he would "post them when he got them." was proper to show that the appellant had He further testified on cross-examination published that the total overdrafts of the that "he did not know anything about certain bank on November 27, 1908 were $82.04. Of checks which were not entered in the said course, it was not conclusive, but the appel- ledger, but that it was witness' intention to lant was at liberty to explain it, and did un- .post every check that came to him, and that, dertake to do so by offering evidence tend- so far as witness knew, the checks were ening to show that the overdrafts were not dis-tered up as they were put upon the spindle, covered until afterwards, because the checks had not been posted. But the plaintiff was not concluded by that explanation, and the discrepancy showed such irregularities as might well have caused the jury to decline to accept the claim of the bank as correct; for, if checks amounting to $5,700 could be loose in the bank, and not entered on the books, the jury might have concluded that the plaintiff was right in saying that he was entitled to more credits than the bank gave him. There was no contention about the plaintiff's account in the savings department, and the burden was on the defendant to establish the overdrafts. 19 Ency. of Pl. & Pr. 800. [5] It is contended, however, that the publication was not admissible, because it was merely a copy. But it is only a summary of the report made to the treasurer which is, by section 12 of article 11 of the Code, required to be published in some newspaper published in the county where the bank is located, and it is not necessarily a copy of the report made to the treasurer. Such publications are intended for the benefit of the public, as Dr. Atkinson well said, and it would be difficult to prove the authenticity of a statement so published in a more definite way than was done in this case, being proven by the president, who had attested it. It cannot be said that such a publication is a copy, in the sense that there is an original which must be produced, instead of the copy, for in such cases every publication shown to be authentic and authorized is an original. We are of the opinion, therefore, that there was no error in the ruling in that (sixth) exception. [6, 7] The seventh, fourteenth, and fifteenth bills of exception will be considered together. In the seventh the defendant offered the account of the plaintiff's deposits, as shown on the individual ledger; in the fourteenth it offered the account of the deposit slips, as shown upon that ledger; and in the fifteenth it offered the whole account, deposit entries, and debit charges of the plaintiff, as shown on the ledger. In each instance the court refused to admit the account. The contention of the defendant was that the individual ledger as kept in the course of business was not correct, in so far as the checks were concerned, and the plaintiff claimed they were not correct as to the deposits. P. H. Lawson, the individual bookkeeper, testified that he did not receive the deposits, which were usually received and that if they had been put on the spindle they would have come into his hands, and that after the deposits were made the deposit slips were put on a spindle and the witness entered them up, and if they had not been put on the spindle he could not have entered them up. In other words if they had not reached him, they would not appear on his books." Mr. Long, the assistant cashier, testified that when Mr. Lawson left the bank he took up his work; that at that time Mr. Lawson was about 11 days behindhand, and when witness posted the individual ledger, and compared it with the balance on the general ledger, he found a difference of about $16,000. He then went over the whole work again, and found a lot of checks which had not been charged to the plaintiff's account, and that plaintiff had made an overdraft of something in the neighborhood of $5,700, "which were the checks that had not been charged to his account, and that those unposted checks were found in Mr. Lawson's drawer or desk at the time he left the bank, and which had not been charged up when he left the bank." He further testified that "the balance on the general ledger was correct, and that the balance on the individual ledger was incorrect, and that such difference was occasioned by the fact that certain checks drawn on the bank had not been charged." It is therefore clear that the individual ledger did not correctly state the condition of the account with the plaintiff, when Mr. Lawson left, and later the unposted checks which were found in the bank were entered in that account, and the balance in the savings account was transferred to it. Without meaning to concede what seems to be the appellee's contention, that an individual ledger in a bank, although shown to contain the entries of deposits and checks and made contemporaneously in due course of business, would not be admissible in evidence to show the deposits, because they are not the original entries, but the deposit slips are the best evidence, we are of the opinion that this particular ledger could not properly have been admitted as independent evidence, regardless of the question whether the individual ledger or deposit tickets are, generally speaking, to be treated as containing the original entries of a bank. The defendant itself proved that the account with the plaintiff at the time of the transactions, as found in that ledger, was not correct, but, on the contrary, according to its contention, checks amounting to $5,700 were not entered |