the side ditch, at the end of the bridge. The bridge, according to the evidence, and to actual measurement, was wider than the bed of the road as the latter approached the bridge. According to the terms of the instruction, the jury might have inferred that the defective condition of the bridge formed an element and was ground for holding the defendant liable for the injury to the plaintiff. The instruction should have been more explicit in confining the attention of the jury to the supposed defect in the road that occasioned the accident.

There does not appear to have been error in any of the other rulings of the court. The first, second, and third prayers of the defendant were properly rejected, as being inconsistent with the principle embodied in the first prayer of the plaintiff, which was adopted by the court. The defendant's fourth, eighth, and ninth prayers, which were granted, would seem to have been as liberal to the defendant as it could in reason ask. The seventh prayer of the defendant asked the court to instruct the jury that the plaintiff could not recover unless they should find that the defect in the road was of such a nature that a criminal indictment would lie against the defendant for such defect. It is enough to say of such prayer that it was properly rejected; if for no other reason, that it required the jury to determine, as matter of law, when and for what defect an indictment would lie. But we know of no such criterion for determining the private civil rights of a party to recover for an injury suffered as that propounded by this prayer. We shall reverse the judgment for the error pointed out in the first prayer of the plaintiff, and award a new trial. Judgment reversed and new trial awarded.

SENTMAN v. GAMBLE et al.

(Court of Appeals of Maryland. March 14, 1888.)

1. APPEAL-REVERSAL-SECOND APPEAL.

A verdict was rendered for the exact sum paid into court by defendant as due plaintiff. The court regarded it as a verdict for plaintiff, but on a writ of error sued out by defendant the judgment was reversed, and judgment rendered against plaintiff. Held, that an appeal by plaintiff on the day the judgment against him, ordered by the appellate court, is rendered, will not be dismissed.

2. SALE-ACTIONS FOR PRICE-FRAUDULENT REPRESENTATIONS.

Plaintiff made a written contract with defendants, agreeing to sell them all the wood which he had purchased of a certain party, and defendants gave their notes therefor. There was no statement in the contract as to the boundaries of the tract containing the wood. Held, that misrepresentations concerning such boundaries, made by plaintiff to defendants, constitute no defense in an action on the note unless they can be shown to have been fraudulent; defendants having continued to avail themselves of the contract after discovering that they had cut beyond the proper limits.

Appeal from circuit court, Cecil county.

For former appeal in this case, see 11 Atl. Rep. 584.

This is the second appeal in this case. After it was remanded on the former appeal, judgment was entered for the defendant, and the plaintiff appealed. At the trial the plaintiff offered in evidence a promissory note for $300, dated February 22, 1886, made by the defendants, and payable to the order of the plaintiff six months after date. The defendants proved that the note was given in payment for the wood on a tract of land which had been purchased from the plaintiff by the defendants Gamble and Logan, the defendant Hammond being merely the surety on the note, and then offered in evidence the contract by which the wood was purchased. This contract was under the hands and seals of the plaintiff and Gamble and Logan. By it the plaintiff sold all the wood, with certain reservations and exceptions, which he had purchased from T. Snowden Thomas on a tract of land lying north of the east and west road, connecting the road from Bayview to north-east with that from Bayview to Charlestown, except a few acres on the west of the Bayview and

Charlestown road, adjoining the land of L. P. Maffitt. The defendant further proved that before the contract was signed Gamble and Logan went with the plaintiff several times to examine the tract; that they walked over the land and examined the wood, and that the plaintiff pointed out to Gamble and Logan the boundaries; that he told them that the eastern boundary between the Thomas tract and the land of J. L. McDaniel was marked by an old fence; that neither Gamble nor Logan knew where the boundaries of the Thomas tract were, and that, relying on said representations of the plaintiff in regard to the eastern boundary of the Thomas tract, they signed the contract; that the true line of the eastern boundary of the tract was westward of the old fence, and that between this fence and the true eastern boundary there were about 12 acres; that they cut on these 12 acres about 101 cords of wood, which they were obliged to leave there, and that McDaniel had sued them for the trespass. The defendants also proved that they had cut other wood on the tract, and sold some of it, and had made some of it into charcoal; that they had sold about 9,000 bushels of charcoal. It was also proved that a few days after the note in suit became due Gamble and Logan tendered to plaintiff $160, which he refused to accept. The plaintiff then testified that prior to the contract with Gamble and Logan he had been in negotiation with Thomas for the purchase of the chestnut rail and post timber; that he had no use for the cordwood on the tract, but that Gamble and Logan told him that if he would buy all the wood on the tract, they would buy from him all the cord-wood for $300, and that he could reserve the chestnut rail and post timber; that he knew nothing of the lines of the tract himself, but that Thomas, the owner, walked with him over said tract, and pointed out what he said were the boundaries; that he pointed out the old fence as the eastern boundary between himself and McDaniel; and that afterwards, he, the plaintiff, walked over the tract with Logan and Gamble, and told them that Thomas told him that the fence was the eastern boundary of the tract; that he did not profess to know anything about the lines himself, but merely repeated to Logan and Gamble what Thomas had told him, and told them that Thomas had so told him; that after he had walked over the tract with Logan and Gamble he bought the wood on the tract from Thomas by written contract. The tract is described in this contract in the same terms as those used in the contract with Logan and Gamble. Plaintiff further proved that he acted in perfect good faith in making the representations to Logan and Gamble in regard to the eastern boundary of the tract, and that he made them solely on Thomas' representations to him, as he told Logan and Gamble at the time. Defendant offered evidence by Thomas that he had never pointed out the old fence to the plaintiff as the boundary line. The plaintiff offered five prayers, all of which were rejected by the court, and the defendant offered one prayer, which the court granted. In this court the plaintiff waived his second, third, and fourth prayers. His first and fifth prayers are as follows: "First. If the jury find that the plaintiffs and defendants executed and delivered the within contract between them, dated the 26th of February, 1886, and that, in pursuance of the stipulations therein contained, the defendants executed and delivered the promissory note sued on, and that said note has not been paid, then plaintiff is entitled to recover in his action, unless the jury further find that the defendants were induced to sign said contract of 26th February, 1886, by the fraud of the plaintiff." “Fifth. If the jury believe that the plaintiff made certain representations to the defendants prior to the signing of the written contract of the 26th February, 1886, which has been offered in evidence in regard to the location of the divisional line between the lands of T. Snowden Thomas and J. L. McDaniel, which representations were in point of fact untrue, but that the plaintiff believed them to be true, and acted bona fide and honestly in making them, and because the owner of the said tracts, namely, T. Snowden Thomas, had told him prior to that time that they were true, and he, the plaintiff, believed him,

then such representations will be no bar to a recovery in this case, unless the jury further believe said representations were recklessly or negligently made." The defendant's prayer is as follows: "If the jury believe from the evidence that the defendants Gamble and Logan were induced to enter into the contract of the 26th of February, 1886, by the representation of the plaintiff that he was the owner of the wood on the tract of land mentioned in the evidence, up to the fence laid down on the plat offered in evidence, and that but for such representation the defendants would not have entered into said contract; and if the jury further believe that the plaintiff was not the owner of said wood beyond the red divisional line on the east, laid down on said plat,—then the defendants are entitled to a deduction from the amount of the note offered in evidence, to the extent of the value of the wood on the portion of land between said fence and division line, and such reasonable expenses, if any, as the jury may find the defendants incurred in cutting the wood on said portion of land: provided, the jury further find that said representation was made by the plaintiff either fraudulently or falsely in point of fact." The red divisional line mentioned in defendant's prayer was the eastern boundary of the Thomas tract as shown by a plat made by a surveyor. Plaintiff excepted to the ruling of the court; and, the verdict and judgment being against him. he appealed.

A. Constable, for appellant. pellees.

Wm. S. Evans and J. Wesley Falls, for ap

BRYAN, J., (after stating the facts as above.) A motion was made to dismiss this appeal. The verdict was rendered on the third day of February, 1887, and was regarded by the circuit court as a verdict for the plaintiff. Judgment was accordingly entered in his favor. As a matter of course the plaintiff could not be required to appeal from a judgment in his own favor. This court reversed the judgment on a writ of error sued out by defendant, and decided that judgment should be entered for him. This judgment was accordingly entered on the 5th day of January, 1888, and the appeal was prayed by plaintiff on same day. Appeals are allowed in courts of law from final judgments, and not from matters interlocutory. The plaintiff appeals from the final judgment against him on the very day of its rendition. The motion to dismiss the appeal must be overruled.

It must be considered as settled in this state that where fraud has occurred in obtaining or in the performance of contracts, or where there has been a failure of consideration, total or partial, or a breach of warranty, fraudulent or otherwise, all or any of these facts may be relied on in defense by a party when sued upon such contracts, and that he shall not be driven to assert them either for protection or as a ground for compensation in a cross-action. We have quoted the language of the court in Groff v. Hansel, 33 Md. 161. In the same case it was held that all these defenses might be made in actions on promissory notes between the original parties. These defenses are allowed in order that circuity of action may be avoided. The ground of objection to the plaintiff's recovery is the averment that the tract of land contains 12 acres less than he represented it to contain, when he sold the cord-wood on it to two of the defendants. Let us first look at the contract of sale. It does not mention the boundaries of the tract; nor does it make any statement of the number of acres; nor make any reference to either of these subjects; nor can the conversation between the parties previously to the time when it was executed have the effect of varying in any particular the written contract. The writing, and nothing else, must stand as the authentic memorial of the contract of the parties. This rule has been universally recognized by the highest authorities known to the law. Greenleaf lays it down in very emphatic terms: "When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object

or extent of such engagements, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing; and all oral testimony of a previous colloquium between the parties, or of conversations or declaration at the time when it was completed, or afterwards, as it would tend in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected." 1 Greenl. Ev. § 275. As there was no contract making any stipulations about the number of acres contained in the tract of land, or about its boundaries, no breach of contract is shown, or can be shown, by evidence on these points. But, nevertheless, the conversations between the parties previous to the contract are of importance for another purpose in the cause. If the representations are shown to be of such a character as to maintain an action against the plaintiff, the defendant may rely on them by way of defense. The nature of the representations which will sustain an action ought not to be the subject of doubt. On this question the courts have for a long time accepted very fully, and with great unanimity, the doctrines declared in the leading case of Pasley v. Freeman, 3 Term Rep. 51. A quotation from the supreme court of the United States will be sufficient for the present purpose: "The gist of the action is fraud in the defendants, and damage to the plaintiff. Fraud means an intention to deceive. If there was no such intention; if the party honestly stated his own opinion, believing at the time that he stated the truth, he is not liable in this form of action, although the representation turned out to be entirely untrue. Since the decision in Haycraft v. Creasy, 2 East, 92, made in 1801, the question has been settled to this effect in England. The supreme court of New York held likewise in Young v. Covell, 8 Johns. 19. That court declared it to be well settled that this action could not be sustained without proving actual fraud in the defendant, or an intention to deceive the plaintiff by false representations. The single fact of making representations which turn out not to be true, unconnected with a fraudulent design, is not sufficient. This decision was made 40 years ago, and stands uncontradicted, so far as we know, in the American courts." " Lord v. Goddard, 13 How. 211. The same views have been expressed by this court in McAleer v. Horsey, 35 Md. 439, and Buschman v. Codd, 52 Md. 202. It follows, then, that unless the representations made by the plaintiff were both false and fraudulent, they would not furnish matter of defense to this action. The first and fifth prayers of the plaintiff ought to have been granted, and the defendants' prayer should have been refused.

We have laid out of our view the class of cases which show the circumstances under which a contract may be rescinded for misrepresentations honestly made, with a full belief in their truth, because, where a contract is rescinded there must be a restitution in integrum. The state of things which existed before the contract must be restored. And in the present case the defendants have held onto the contract, and accepted the full benefit of it, as far as they could, and have not made any restitution to the plaintiff. Where a party has not, by his conduct, affirmed a contract, he may rescind it, if he can show that he entered into it on the faith of a false representation made by the other party touching the essence of the contract, whether the representation were the result of fraud or mistake. Doggett v. Emerson, 3 Story, 700. The same doctrine as to the effect of a misrepresentation was held in Joice v. Taylor, 6 Gill & J. 54.

Judgment reversed, and new trial ordered.

Appeal of DELAWARE COUNTY.

(Supreme Court of Pennsylvania. March 5, 1888.)

1. INJUNCTION-TO RESTRAIN OFFICIAL ACTS-COUNTY COMMISSIONERS.

The county commissioners cannot be restrained by injunction from the performance of official acts, unless it appears that they are proceeding without lawful authority.

2. BRIDGES-DAMAGES FROM BUILDING-REMEDY.

The county commissioners of defendant county laid out a bridge near complainant's mills. The bridge and its approaches were wholly within the public highway as laid out years before. Held, that complainant's only remedy for damages resulting from building the bridge was by action on the case.

Appeal from court of common pleas, Delaware county; THOMAS J. CLAYTON, Judge.

Bill for injunction restraining the county commissioners of Delaware county from rebuilding a bridge over Chester creek, in said county, near the mills of Samuel Riddle, the complainant. The creek at this point is the boundary between Middletown and Aston townships, Riddle's mills being on the Middletown side. The first bridge over the creek had a span of 80 feet. A freshet having carried it off and changed the main channel of the creek to the Aston side, the new bridge was extended 60 feet on the Aston side, making a bridge 140 feet long; the main channel being under the 60-foot extension. In 1884 the appellants determined to rebuild the bridge, but without any action on the part of the grand jury or court of quarter sessions. They determined to make the new bridge an 80-foot span, and fill in the roadway on the Middletown side as the old bed of the creek on that side had been dry for many years. Riddle was notified of the intention, and raised no objection. Several weeks later, when the engineer came to lay out the bridge, it was found that Riddle had dug a tail race, or channel, out of the old bed of the creek to allow the flow of tail water from the wheel in his mills. The appellants notified him to protect the race by an arch, as they intended to fill in that portion of the creek bed as an approach to the new bridge. Riddle brought the present bill, and a preliminary injunction was granted. The bill claimed that the commissioners were building the new bridge on the complainant's lands, and also damaging his property by restricting the flow of water through the bridge, endangering his property in time of high water. The question of the authority of the commissioners to build the bridge without action on the part of the grand jury or court of quarter sessions was not raised. On the hearing, it appeared that even with the 140-foot span of the old bridge, complainant's mills had on several occasions been flooded by high water, and it was claimed that the 80-foot span, especially with the solid roadway leading out into the old bed of the creek, would be insufficient to vent the waters of the creek. The master reported that the new bridge was wholly within the limits of the public road laid out many years before, and did not encroach upon complainant's lands in any manner, but he found that there was increased danger of the mills being flooded and damaged with the new bridge. On this finding the court made the injunction perpetual, and the county commissioners appeal.

H. C. Howard, for appellants.

The bill contains no allegation that defendants have not legal authority to rebuild the bridge. If there were nothing else in the case, except the matter of obstructing the raceway, there would be no ground for an injunction, as the plaintiff's rights, in this respect, could be readily settled by an action at law. Railroad Co. v. Duquesne Borough, 46 Pa. St. 223; Township's Appeal, 36 Leg. Int. 384. A bill for an injunction cannot be sustained where the plaintiff has a full and adequate remedy at law. The defendants being a county and its commissioners, they cannot be interfered with, in the exercise