his province to say what weight may be given to it.

It is contended that the facts found by the commissioner do not show any indebtedness from the defendant to his wife. We think otherwise. He finds that she let him have money from time to time, some of which he had not repaid her. This is finding that the husband received it as her money, and not as belonging to him by marital right. He also finds that the defendant used this money for his own purposes, and converted it to his own use; "but I find that there was an agreement that the husband should pay the money back to her." He also says the money so had and not repaid amounted to $1,500, January 1, 1892. The fair construction of all his findings is that the husband's agreement to pay the money so received was made at the time he received the money, because he received it as her money. Hence, on the facts found, the husband owed the wife a debt, for the payment of which the property in the trustee's hands could be holden.

As the case must go back for further findings in reference to whether the trust was for the payment of the wife's debt, the other points made in argument are of minor importance. No claim is made that the trustee can be held for the real estate conveyed. We do not think the facts found show that any of the personal property came into the trustee's hands, except what he turned over to his tenants, Salter & Son. The trustee was not a purchaser or consumer of any of this personal property, nor is it found that he had converted any of it into money. No money judgment could be rendered against him for it. At most, the judgment should be that he should deliver to the sheriff the specific articles, to be sold on the execution against the defendant. The corn, corn fodder, and India wheat raised in the summer of 1891 had been fed to the stock, some, if not all, of which would be delivered to the sheriff if the trustee is liable therefor. The trustee never became indebted to the defendant in any way for any of this property. It is only through the rights of the defendant-except for his fraud, if there was fraud, in the conveyance-against the trustee that the plaintiffs can hold any of the property. the conveyance is void because of fraud, the trustee holds the personal property as naked depositary. After service he would be bound to care for and use the personal property deposited in his hands with reasonable care and prudence. If, in the exercise of such prudence, any of it should be converted into money, it would be the duty of the trustee to receive and account for the money. that extent a money judgment could be rendered against him. But the case does not show that the trustee had converted any of the personal property received into money. Judgment reversed, and cause remanded.

If

To

(85 Me. 519)

WALTON, J. The plaintiff has obtained a verdict for $413.82 against the Maine Central Railroad Company for injuries to a pair of horses and a pair of harnesses and a sled. occasioned by a collision with a passenger train of cars at a highway crossing.

The collision occurred February 12, 1891, at a place known as the "Pulp Mill Crossing," on the east side of the Kennebec river, in Augusta. The plaintiff's teamster undertook to drive across the railroad with a pair of horses and a sled, and a load of green hemlock logs. The load weighed probably not less than three tons, and the crossing had no snow on it, and, the moment the sled struck the bare planks between the rails, it stuck as fast as if it had been bolted down, and no efforts of the horses, not even with the assistance of four men lifting at the load with pries, could move it further.

While this load of green hemlock logs lay thus stalled directly across the railroad track, one of the regular passenger trains from Bangor came round a curve north of the crossing, and before it could be stopped it collided with the plaintiff's sled, and caused the injuries already mentioned.

The plaintiff claims that this accident was caused solely by the negligence of the railroad company. He does not admit that there was the slightest want of ordinary care in driving onto the bare crossing with a load of green hemlock logs so heavy that the horses, with the assistance of four men, could not haul it off, and at the very moment, too, when a passenger train of cars was due. He does not admit that there was the slightest degree of negligence in attempting to drive

over the bare crossing with such a load (weighing probably not less than three tons) without first throwing some snow upon it. He insists that the collision was caused by the negligence of the railroad company alone, and without the slightest degree of contributory negligence on the part of himself or his teamster.

For the present we will pass over the question of contributory negligence, and consider the question of the alleged negligence of the railroad company.

We concede at the outset that, notwithstanding railway companies are entitled to a clear and unobstructed track for the running of their trains, still it is their duty to keep a sharp lookout to avoid collisions at their crossings; that, if they see that a team has become stalled on or so near to their track as to be in danger of being struck by a passing train, they must be prompt and energetic in their efforts to stop the train in season to avoid a collision. It is true that all that is required of them in such cases is the exercise of ordinary care. But such a lookout and such efforts are no more than ordinary care. Purinton v. Railroad Co., 78 Me. 569, 7 Atl. Rep. 707.

Assuming such to be the measure of care required of railway companies, we have examined the evidence bearing upon the conduct of those in charge of the train with which the plaintiff's team collided, and we are unable to see that they were in any way in fault. Their train was not moving at an unreasonable rate of speed. The engineer was on the lookout, and saw the plaintiff's team as soon as the train had rounded the curve far enough to bring it within the line of his vision. As soon as the engineer became aware that the team was stuck, he employed every means within his power to stop his train in season to avoid a collision, but was unable to do so. That he would be prompt and energetic in his efforts to avoid a collision may very reasonably be presumed. A collision with a load of green hemlock logs might result in very serious consequences. Confronted by such a danger, the presumption that he would act promptly and energetically is very strong; and the evidence leaves no doubt that the engineer did so act. He put on the air brakes, reversed his engine, and poured sand on the rails. There was nothing else he could do.

It is urged in behalf of the plaintiff that the engineer was negligent in not sooner comprehending the fact that the sled was stuck. That was a fact not to be ascertained by the sense of sight alone. He could see the load, and he could see that it was not moving. But he could not see that it was stuck and could not move. That was a fact to be ascertained by inference. It could become an ascertained fact only by a process of reasoning; and a principal factor in the process would be the length of time that the

load should remain stationary. At first he thought it was moving. A little later, and he saw that it was not moving. A little later still, and he saw the men, standing by, waying their caps. Then the evidence was complete, and the inference that the sled was stuck became a fixed fact in his mind. But all this took time, and the whole transaction occupied but a few moments. After the catastrophe has happened, it is easy to look back and find fault, and point out in how many ways it could have been avoided. But it should be remembered that in sudden emergencies the judgment will not always arrive at correct conclusions in an instant. Men do not often drive onto a railroad track with a load which their horses cannot haul off, and we do not think that in this case the engineer was in fault for not sooner comprehending the fact that the plaintiff's teamster had been guilty of such an imprudent act.

Our conclusion is that the alleged negligence of the railway employes is not proved, and that the evidence produced at the trial in the court below was not sufficient to justify the jury in finding that it was proved; and, however much we may admire the ability of counsel who can obtain a verdict upon such evidence, we cannot for a moment doubt that it is the duty of the court to set it aside.

This conclusion renders it unnecessary to consider the question of the plaintiff's negligence. We rest our decision on the entire absence of proof of the defendant's negligence.

Verdict set aside.

1. Under Const. art. 14, providing that amendments to the constitution to be proposed by the general assembly shall be embraced in a separate bill, embodying the article or section as it will stand when amended and passed by three-fifths of the members of each house by yeas and nays, to be entered on the journal with the proposed amendment, it is not necessary that such bill be set out verbatim on the journals of the two houses, when it is fully and clearly identified thereon by its title, and the statement of the legislative action is distinctly associated therewith.

2. Under Const. art. 14, declaring that the votes on a proposed amendment to the constitution be returned to the governor, and that he, if satisfied that it received a majority of the votes, shall prociaim its adoption, the ac tion of the governor in that regard is not subject to review by the courts.

3. The amendment of Const. art. 7, § 1, submitted to popular vote in November, 1891, and providing for the election of county commissioners on a certain day in the month of

November, "commencing in the year 1891," and that their numbers, compensation, and terms shall be as prescribed by law, is applicable to commissioners elected in November, 1891, though the amendment was not proclaimed as part of the constitution till December in that year.

Appeal from circuit court, Frederick county.

Petition by one Worman and others for mandamus to compel one Hagan and others, supervisors of election, to place petitioners' names as candidates for county commissioners on the official ballot. From an order dismissing the petition, petitioners appeal. Affirmed.

Argued before ROBINSON, BRISCOE, McSHERRY, FOWLER, and BRYAN, JJ.

Wm. P. Maulsby, Jr., W. H. Hinks, Hammond Urner, and John C. Motter, for appellants. Charles V. S. Levy, I. Roger McSherry, and I. E. R. Wood, for appellees.

BRYAN, J. The counsel on both sides requested that the court would hear this cause in advance of the time when it would have been reached in the regular course of the docket. The great public interests involved in a prompt decision of the questions presented by the record required that we should accede to the request. We will explain the manner in which the case arises. The appellants, having been nominated by the convention of the Republican party in Frederick County as candidates for county commissioners in said county, desired that their names should be placed on the official ballot to be prepared by the supervisors of election. The appellees were the supervisors for Frederick county. Passing by some matters not material to be mentioned, we inay state that the candidates filed in the circuit court for Frederick county a petition for a mandamus requiring the supervisors to place their names on the official ballot. After answers, the court passed a pro forma order dismissing the petition.

The act of 1892, c. 283, provided as follows: "There shall be five county commissioners of said county, and those who were elected at the general election in November, A. D. 1891, shall hold their office for six years from the time of their said election, and the term for which county commissioners of said county shall hereafter be elected shall be for six years." This act was passed on the assumption that the amendment to section 1 of article 7 submitted to the popular vote in November, 1891, is legally a part of the constitution of the state. That amendment is in these words: "County commissioners shall be elected on general ticket of each county by the qualified voters of the several counties of the state, on the Tuesday next after the first Monday in the month of November, commencing in the year eighteen hundred and ninety-one; their number in each county, their compensation, powers, and duties shall be such as now or may be hereafter pre

scribed; they shall be elected at such times, in such numbers, and for such periods, not exceeding six years, as may be prescribed by law." If this amendment was validly adopted, and if the act of assembly was authorized by it, there was no vacancy in the county commissioners' office, and the names of the candidates above mentioned could not properly be placed on the official ballot. Let us then consider these two questions. The fourteenth article of the constitution prescribes the mode in which it may be amended. It declares that "the general assembly may propose amendments to this constitution; provided that each amendment shall be embraced in a separate bill, embodying the article or section as the same will stand when amended and passed by three-fifths of all the members elected to each of the two houses, by yeas and nays, to be entered on the journals with the proposed amendment." We find that the legislature, by the act of 1890, c. 255, proposed an amendment to section 1 of article 7, and that the act was passed by three-fifths of all the members elected to each house. It was stated on the journal of each house that "an act to amend section one of article seven of the constitution of this state" was passed, and the yeas and nays are set forth, being more than threefifths of all the members elected to each house. The requirements of the constitution were in all respects observed, unless it is necessary, as maintained by the appellants, that the act should be set out verbatim on the journals. Each house had the bill in its possession when it passed it, and the bill was fully and clearly identified by its title. There would have been no greater certainty if every word of it had been recited. We must give a reasonable construction to the words of the constitution. There was but one bill with this title. The entries on the journals of the two houses that this bill had been passed by the yeas and nays, which were stated, described their legislative action as distinctly as it could be expressed. The yeas and nays were associated as closely as possible with the enactment contained in the bill,-that is to say, with the proposed amendment. It was not in the power of any person to mistake the meaning of the entry. In the amendments of the constitution, heretofore passed, the same form of entry was adopted. The act of 1874, c. 364, proposed the amendment regulating and restricting the right of removal of causes for trial, and the act of 1880, c. 417, proposed the amendment respecting the election of judges. In each case the entries on the journals of the two houses were in the same form as in the present instance. When, however, they were ratified by the people and proclaimed by the governor, they were accepted by all departments of the government as validly adopted. Under their authority, ever since their adoption, causes have been removed for trial from one court to another, and all judicial elections have

been held. We should do immeasurable evil if we should now express an opinion which should throw doubt on their validity.

The fourteenth article of the constitution also requires that the proposed amendment shall be submitted to the qualified voters of the state for adoption or rejection in a form to be prescribed by the general assembly. This form was duly prescribed in the act of 1890. It is also required, when two or more amendments are submitted to the voters, that each amendment shall be voted on separately. Several amendments were proposed by the legislature of 1890. It is made the duty of the governor to make publication of the bills which propose amendments. The votes cast for and against them must be returned to him, and, if it shall appear to him that a majority has voted in favor of an amendment, he is directed by his proclamation to declare that it has been adopted by the people, and thenceforth it becomes a part of the constitution. Now, by his proclamation of December 3, 1891, the governor did declare that the amendments submitted to the vote of the people had been voted on separately, and that certain of them, including the one now in question, had received a majority of the votes cast, and had been adopted by the people as parts of the constitution. It will be seen that the constitution confides to the governor exclusively the power and duty of ascertaining the result of the vote from an examination of the returns made to him; and, on his proclamation that a proposed amendment has received a majority of the votes cast, it be comes eo instanti a part of the constitution. There is no reference of the question to any other officer or to any other department. It is committed to the governor without qualification or reserve, and without appeal to any other authority. Most certainly no jurisdiction is conferred on this court to revise his decision. It may be asked what is to be done in case the governor should violate his duty, and wrongfully proclaim an amendment as adopted which in point of fact had been rejected. It would not be becoming in this court to suppose that such a contingency would ever happen. The courtesy due to the executive department forbids us to entertain such a conjecture. But if, unhappily, in future times, it ever should occur, assuredly a sufficient remedy will be found. The resources of a free government are ample, and will always be found adequate to punish and redress offences against its sovereignty. Having neither the means nor the jurisdiction to determine the result of the voting on the amendment, we disclaim all intention to investigate the question; but nevertheless we will advert to a suggestion made on this subject. A sample ballot has been filed in the cause showing how the amendments were voted on in Frederick county, and we shall assume, for the purposes of the argument, that the same ballot

was used in all the counties which voted under the Australian system. In this ballot, under the head of "Constitutional Amendments," this amendment is described in these words: "Chapter 255 of Acts of 1890, entitled 'An act to amend section one of article seven of the constitution of this state.' Increasing the term of office of county commissioners. Described in the governor's proclamation as 'Amendment Number Four."" It has been argued for the appellants that these words do not adequately describe the amendment. It is difficult to see how it could be designated more definitely. And it is said that the words "increasing the terms of office of county commissioners" convey an untrue account of its nature. The other words used designate with absolute certainty the amendment to be voted for, and therefore these words would not be misleading, even if not entirely accurate. The proposed amendment would confer on the legislature the power to lengthen the terms of county commissioners, and it could hardly be said that they could be shortened, inasmuch as they were to be elected on a general ticket, and therefore their election could not occur more than once in two years, and so the existing term of two years could not be shortened. But there were nine counties not subject to the Australian law. If all the votes cast under the Australian system should be rejected, we are not informed how the counties voted which were not subject to this system. This consideration alone will show how futile would be the attempt on the part of this court to determine the state of the vote on this amendment.

It has been said that the terms of this amendment direct an election to be held in November, 1891, whereas it was not proclaimed until December of the same year, and could not become a part of the constitution until proclamation was made. It is insisted, therefore, that something incongruous and impossible is commanded, to wit, in December it is ordered that an election shall take place on a day which is already passed. It must be admitted that the diction of this amendment might be easily improved. But we are not engaged about a question of verbal criticism. We must determine the meaning of the words employed according to the intention of the legislature which proposed this section, and of the people who adopted it. The exist ing section was to be obliterated from the constitution, and the new section was to be substituted in its place. When the amend ment went into effect, the new section was the only part of the constitution which gave the legislature the power to determine the number of county commissioners, the times at which, and the periods for which, they should be elected. If the section be construed without subtlety, it is not difficult to see the practical purpose which it was in

tended to accomplish. Its obvious meaning is that the commissioners elected in November, 1891, were to be subject to its provisions in case it should be adopted. When they were elected, it was not known how long they were to hold their offices. If the amendment should be rejected, they would hold for two years under the existing section, but, if it should be adopted, their terms would be for such periods, not exceeding six years, as might be determined by law. The act of 1890, c. 255, provided that the commissioners elected for Frederick county should hold their offices for six years from the time of their election, and that the term of those hereafter elected should be six years. This, to be sure, is a local law, applicable only to Frederick county; but the grant of power to the legislature is general, and there is no requirement that the length of the terms should be uniform throughout the state, any more than that the numbers should be the same in each county.

It will be seen that we think that the amendment in question was validly adopted as a part of the constitution, and that the act of assembly which we have mentioned is constitutional. A question was made whether there had been such a demand on the supervisors, and such a refusal by them, as would entitle the appellants to a writ of mandamus; and there were other questions debated at the bar of much interest and importance. We think it best to pass over them, and rest our decision exclusively on the constitutional questions which we have been considering. They will put an end to this case, and the public interest requires that they should be settled.

1. Defendant, (the owner of a farm and canning factory,) his tenant, and a certain firm agreed that the latter should, for a certain year, furnish defendant cans and money to enable the tenant, who was notoriously insolvent, to conduct the canning business; that defendant should pay the money to the tenant as needed; that the goods, as canned, should become defendant's property; and that he should hold them to reimburse such firm, to which they were to be shipped, to be sold by it on commission. A similar arrangement was made for the following year. The tenant induced plaintiff to grow corn and vegetables on his farm for the factory by assuring him that defendant would pay all bills therefor which the tenant approved. Defendant paid for all products delivered by plaintiff and by other farmers during the first year, and signed a number of contracts with farmers other than plaintiff for the second year. The latter did not sign one because the contract presented to him was mutilated, and the tenant assured him that they were only for the new planters, and that

he would be paid as before. Defendant also paid plaintiff's bills the second year, until late in the season, after he had delivered a large quantity of corn and vegetables, when defendant informed him he would not pay therefor. Held, that defendant obtained possession of plaintiff's property by such tenant's false representations, which defendant enabled him to make, and was liable in trover for its conversion, though not personally guilty of any intentional fraud in the transaction.

2. Plaintiff did not in such case, by first bringing the action in assumpsit, elect to affirm the contract of sale with full knowledge of all the facts.

3. Where plaintiff seeks to recover as damages the value of the property only, and not it and other property of like kind with which it had been mixed, it is immaterial whether such tenant acted with fraudulent design or not.

4. Where defendant had notice of the conversion, and an opportunity to restore or pay for the property, but refused, before the action was commenced, he cannot claim that he was entitled to demand.

5. The fact that plaintiff was employed at the canning factory when his goods were converted cannot affect his right to recover. where it appears that he did not know the tru character of such tenant's representations unul after such employment ceased.

6. It was not error to admit evidence, in such case, as to the written contracts made by defendant with farmers other than plaintiff.

Appeal from Baltimore city court.

Action of trover by Henry M. Clagett against Charles J. Bonaparte for the conversion of certain personal property. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before BRYAN, MCSHERRY, FOWLER, BRISCOE, and ROBERTS, JJ. Wm. Reynold, for appellant. Wm. L. Marlbury, for appellee.

ROBERTS, J. On March 5, 1889, the appellee commenced his action in the court below by filing against the appellant a declaration in assumpsit upon the six common counts. On March 23, 1891, by leave of the court, the form of action was changed from assumpsit to trover, and an amended declaration filed containing four counts, but in consequence of the instructions of the court the right of recovery was limited to the third count, which reads as follows: "And for that the defendant converted to his own use and deprived the plaintiff of the possession of the plaintiff's goods, to wit, a large quantity of canned tomatoes, together with the cans in which said vegetables were packed, lying and being on the premises known as 'Weston,' in Prince George's county, Maryland, and being the whole of the canned goods upon said on the first day of October, 1888." The testimony in the record discloses that the appellant, having a mortgage on the farm of Thomas Clagett, of Weston, in Prince George's county, foreclosed the same, and at the sale thereof became the purchaser, On April 29, 1887, the appellant rented the farm to said Clagett as a monthly tenant. There was a canning factory on the farm, and Clagett proposed to

* *