offense, an issue vitally involved under the act in question, so that one fact in issue is found by the verdict of the jury, and another fact in issue is found by the court in its sentence, not that it is true in the professed form of a verdict, but of the essence of the verdict."

There is, it is true, some broad language used in the concluding portions of the opin

Reg. v. Willis, L. R. 1 C. C. 363; Plumbly v. Com. [2 Metc. (Mass.) 413; Wilde v. Com.] 2 Metc. [Mass.] 408; 3 Whart. C. L. § 3417; 1 Bish. C. L. §§ 961, 963. And this averment of a prior conviction can only be sustained by the production of the record, or a duly authenticated copy of it, sustained by proof of the identity of the person on trial with the one described in the former indictment. Reg. v. Clarke, E. L. & Eq. 582; 1 Bish. C. L. §ion which the appellant has relied on to 963; 3 Whart. C. L. § 3417. But such an averment of a prior conviction does not charge an offense. As said by Lord Campbell in Reg. v. Clark, supra: 'It is only the averment of a fact which may affect the punishment. The jury do not find the person guilty of a previous offense; they only find that he was previously convicted of it, as an historical fact.'"

Tested by this rule, the indictment alleged a prior offense and conviction as fully as need be and informed the appellant of the accusation against her with sufficient particularity to enable her to prepare for her defense.

strike down the whole of section 14; but, when that language is read and applied to the precise question before the court, it is obvious that it never was intended to have the effect contended for. This is manifest from the judgment which remanded the case for the imposition of the penalty provided by the act for a first offense. "A statute may be good in part, while other parts are invalid. If a portion be unconstitutional, the court is not authorized, for that reason, to declare the whole void." Davis v. State, 7 Md. 151, 61 Am. Dec. 331. In Commonwealth v. Hitchings, 5 Gray (Mass.) 482, where the same rule of construction was adopted, the court said: "The constitutional and the unconstitutional provision may even be contained in the same section and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is, not whether they are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance." Hagerstown v. Dechert, 32 Md. 369.

All that was decided in the Goeller Case with respect to the validity of the Act of 1908, c. 179, was that the provisions of section 14, which empowered the court, from an inspection of its dockets in connection with evidence, to declare the traverser guilty of a second offense, was unconstitutional. What has been said disposes of the only two questions presented by the appeal, and, finding no error in the rulings of the lower court, the judgment will be affirmed. Judgment affirmed, with costs.

[4] The contention that section 14 of the act of 1908, quoted above, is unconstitutional is evidently based upon a misapprehension of the scope and effect of the decision in Goeller v. State, supra. In that case the traverser was convicted for selling liquor on Sunday in Baltimore county. The indictment did not charge a second offense. There was a general verdict of guilty, and the court, basing its action on that clause of section 14 which declared, "And on conviction a second time, which fact the court may ascertain from the dockets of the court, in connection with evidence," imposed a fine provided for a conviction as for a second offense. Judgment was reversed upon the distinct ground that it was not within the power of the Legislature to authorize the court to ascertain the fact of the former conviction in the manner prescribed by section 14. Judge Pearce, who delivered the opinion, said: "It may safely be declared, therefore, that, if our declaration of rights requires all former convictions to be alleged in the indictment, there is no other proper manner in which any former conviction can be brought forward in aggravation of the punishment; and Judge Alvey in fact has so declared in Maguire's Case in saying that the very course of procedure was not in accord with the established practice in such cases; and it could not be if, as he had also said, the previous conviction must be alleged in the indictment. In the case before us we have the anomaly pointed out by Judge Alvey in Maguire's Case, supra, viz., a divided verdict, part rendered by one tribunal and part by another. The jury demanded by the traverser and impaneled to try every issue involved passed upon a single issue only, the fact of the sale charged in the indictment, while the court passed upon another issue, the fact of a conviction of a previous similar For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

(121 Md. 397)

COTTEN v. TYSON et al.

(Court of Appeals of Maryland. Nov. 12, 1913.) 1. CORPORATIONS (§ 182*)-RIGHTS OF STOCK

HOLDERS.

A stockholder, as such, is not the owner of any portion of the corporate property and, apart from his stock, has no interest in its assets capable of assignment.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 686-690; Dec. Dig. § 182.*] 2. CORPORATIONS (§ 180*) - ACTS STOCKHOLDER-Effect.

OF SOLE

tion, the corporation is bound by his acts in refWhere one owns all the stock of a corpora

erence to corporate property.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 665-673; Dec. Dig. § 180.*]

timore Chrome Works in the sale of the entire capital stock of the corporation. There were expressly reserved from the sale certain assets of the Chrome Works, including its accounts and claims against the Tyson Mining Company and the Elizabeth Mining Company. These assets were to be transferred to a trustee selected by the vendor stockholders. The transaction was duly reported to the court and was later ratified by the same order which approved of the agreement of June 2, 1902, for the settlement of the claims of the Richard W. Tyson estate against the original trustees. The assets reserved from the sale of the stock of the Baltimore Chrome Works were assigned by that corporation and its stockholders to the Safe Deposit & Trust Company for conversion into cash and distribution to the vendors of the stock according to their respective interests. The stock held by the Richard W. Tyson trust amounted to one-eighth of the whole issue which passed under the sale. In the assignment of the reserved assets it was accordingly provided that oneeighth of their proceeds should be paid to Jesse Tyson and the Safe Deposit & Trust Company, trustees under the will of Richard W. Tyson. This stipulation was followed by the statement that the distribution should be "subject to the legal operation and effect of an agreement dated June 2, 1902, between Jesse Tyson and the beneficiaries under the will of Richard W. Tyson and others; the said Safe Deposit & Trust Company and the devisees of Richard W. Tyson insisting, however, that such agreement does not in any aspect or to any extent whatever affect their right to one entire eighth part of the property hereby covered without deduction or abatement."

James W. Tyson died, and the Safe Deposit joined with the other stockholders of the Bal& Trust Company succeeded him, as cotrustees of Jesse Tyson under both wills, by appointment of the court below, whose jurisdiction had been invoked for the trusts in the early period of their existence. As a result of the investigation, a claim on behalf of the Richard W. Tyson trust was preferred against Jesse Tyson and the estate of his deceased cotrustee for a proportionate part of the estate of Isaac Tyson, Jr., with which they appeared to be still chargeable, and for losses alleged to have occurred through mismanagement of the trust properties and interests. After some negotiations between Jesse Tyson and those entitled under the will of Richard W. Tyson, they entered into an agreement in writing, dated June 2, 1902, described in its caption as a "memorandum of terms of settlement of all claims of the widow and children and grandchildren of Richard W. Tyson, and of the trustees under his will, against Jesse and James W. Tyson, as executors and trustees under the will of Isaac Tyson, Jr., and under the will of Richard W. Tyson, and individually, and in every other capacity, and of all claims of Jesse Tyson and the executors of James W. Tyson against them, and against the estate of Richard W. Tyson." The agreement provided for a settlement to be made by Jesse Tyson to the amount of $90,625 upon which interest should begin to run as of June 1, 1902, and as to $18,000 of which it was contemplated that he should receive contribution from the estate of James W. Tyson, deceased. It was agreed also that: "The estate of Richard W. Tyson shall transfer, assign, and convey to Jesse Tyson, to be received by him as his own property, all the interest, estate, title, claim, and demand of every description of said estate to Richard W. Tyson in the capital stock and shares of stock, property, and assets of every description of the Tyson Mining Company, the Mineral Hill Mining Company, and of the Elizabeth Mining Company, and in the Elizabeth Mines, appurtenances, and ores, and in all mines and mining rights belonging to the estate of Isaac Tyson, Jr., or to his executor or trustee, and in all the undistributed estate of Isaac Tyson, Jr. (excepting Rose mont Farm), and in all undivided cash claimed to belong to the trust estate of Richard W. Tyson or to the estate of Richard W. Tyson." It was stated in the agreement that upon its performance the trust estate of Richard W. Tyson would consist of the obligations of Jesse Tyson given under the terms of the settlement, certain real estate investments, and “the 375 shares of stock of the Baltimore Chrome Works, now held by the trustees of said trust estate."

In 1909 the Safe Deposit & Trust Company, by virtue of the assignment just mentioned, received dividends aggregating $105,329.94 on the claims of the Baltimore Chrome Works against the Tyson Mining Company and the Elizabeth Mining Company. The share of this fund to which the Richard W. Tyson trust was entitled, after the payment of commissions and other expenses, was $12.956.43, which has been increased by the addition of interest to $13,758.68. During the year in which these dividends were received, the trust under the will of Richard W. Tyson was terminated by the death of Mrs. Julia McH. Tyson, the beneficiary for life, and shortly afterwards the Safe Deposit & Trust Company, as the sole remaining trustee, filed a petition in the court below seeking direction as to the final distribution of the estate. The petition referred specifically to the amount realized for the estate from the Subsequently to the date of the agreement, reserved assets of the Baltimore Chrome but before the settlement for which it pro- Works, which were stated to be subject to the vided was consummated, the trustee under right, if any, which the executrix of the will the will of Richard W. Tyson, after obtaining of Jesse Tyson, then deceased, might have

Ed. 473; Wheelock v. Moulton, 15 Vt. 519;
Spurlock v. Missouri Pac. Ry. Co., 90 Mo.
199, 2 S. W. 219; Williamson v. Smoot, 7
Mart. O. S. (La.) 31, 12 Am. Dec. 494; Mick-

118, 42 Am. Dec. 103; Burrall v. Bushwick R. Co., 75 N. Y. 211; Sellers v. Greer, 172 Ill. 549, 50 N. E. 246, 40 L. R. A. 589; Home Fire Ins. Co. v. Barber, 67 Neb, 644, 93 N. W. 1024, 60 L. R. A. 927. 108 Am. St. Rep. 716; 10 Cyc. 373, 374; Thompson on Corporations (2d Ed.) vol. 4, § 3465.

tlement of June 2, 1902. The executrix was German Savings Inst., 175 U. S. 40, 20 Sup. made a party defendant and answered the Ct. 20, 44 L. Ed. 65; Humphreys v. McKispetition, contending that the interest reserv-sock, 140 U. S. 304, 11 Sup. Ct. 779, 35 L. ed to the Richard W. Tyson estate, as a stockholder of the Chrome Works, in the assets excepted at the time of the sale of the stock, was transferred to Jesse Tyson by the assignment for which the agreement provid-les v. Rochester City Bank, 11 Paige (N. Y.) ed, covering "all the interest, estate, right, title, claim, and demand of every description" held by the assignor estate "in the capital stock and shares of stock property, and assets of every description" of the Tyson Mining Company and the Elizabeth Mining Company. This contention was answered and op- | posed by the Safe Deposit & Trust Company [2] Where one person is the owner of all as trustee under the will of Richard W. Ty- the capital stock of a corporation, it has been son. The auditor to whom the case was re- held bound by his acts in reference to its ferred, upon a careful consideration of the property. Pott v. Schmucker, 84 Md. 552, 36 oral and documentary evidence offered, re- Atl. 592, 35 L. R. A. 392, 57 Am. St. Rep. ported adversely to the claim of the execu-415; Swift v. Smith, 65 Md. 428, 5 Atl. 534, trix and awarded to the trustee the balance 57 Am. Rep. 336; Hoffman Steam Coal Co. of the fund remaining for distribution after v. Cumberland Coal & Iron Co., 16 Md. 456, allowance had been made for the costs of 77 Am. Dec. 311. the proceeding. Exceptions to the report were filed by the executrix, but, as they applied only to the disposition of the residue of the fund, the audit was in other respects formally ratified. Upon final hearing the court below overruled the exceptions, confirmed the distribution as reported, and charged upon the executrix the costs of the litigation. From this order the exceptant has appealed.

[3] But it is entirely clear upon reason and authority that a stockholder of a corporation, while retaining his stock ownership, cannot assign the interest represented by his stock in any particular class of the corporate assets. Such an attempted alienation would not only be incompatible with the retention of title to the stock in the assignor but its enforcement would be altogether impracticable. The stockholder himself could not require the corporation to segregate and distribute a specific portion of its property, and certainly he could not create and confer such a right by assignment.

[4] The agreement to be construed in this case, however, does not even purport to provide for the transfer of an interest in the corporate assets of the Baltimore Chrome Works from which the funds in controversy have been realized. It refers only to the assignment of the interest of the estate in the stock, property, and assets of other com

It is apparent from the record that the title to the fund in controversy must depend upon the construction of the agreement of June 2, 1902, in the light of the conditions then existing. The settlement as eventually and actually made was by express reference based upon the terms of the original agreement. When it was executed and delivered, the sale of the stock of the Baltimore Chrome Works was not contemplated, and there was accordingly no provision for the reservation of the assets from which the money now in question has been derived. In order, therefore,panies in which the former corporation was to sustain the contention of the appellant, we Should have to hold that the assignment of all the right, title, and interest held by the Richard W. Tyson trust in the capital stock and assets of the Tyson Mining Company and the Elizabeth Mining Company effected the transfer of the interest of the estate as ation of his corporation, such a result could stockholder of the Baltimore Chrome Works in the claims of that corporation against the mining companies. This view would necessarily disregard the accepted theory of a stockholder's status with respect to the corporate property, and it is opposed to the evident intent of the parties as expressed in the agreement.

[1] The principle is elementary that a stockholder, as such, is not an owner of any portion of the property of the corporation and, apart from his stock, has no interest in its assets which is capable of being assigned.

concerned simply as an unsecured creditor. The description of the subject-matter of the transfer, therefore, could not be held to embrace such a right as the one here asserted. Even if a stockholder could effectively assign an interest in the choses in ac

obviously not be accomplished by a mere assignment of his interest in the assets of its debtors.

There is a stipulation in the memorandum of settlement to the effect that Jesse Tyson, the retiring trustee, to whom the assignment was to be made, should not sell his individual stock in the Baltimore Chrome Works without giving an opportunity to the life beneficiary of the Richard W. Tyson trust to sell its stock in that corporation at the same rate. It thus appears affirmatively that, according to the understanding of the parties,

Md.)

the Baltimore Chrome Works should not be capital stock, were transferred to the Safe If Deposit & Trust Company, the assignment affected in any way by the settlement. the assignment had been intended to have recognized the existence of a difference of the effect of separating and transferring opinion between Jesse Tyson and the bene from the stock of the trust the interest it ficiaries of the trust from which he was rerepresented in the large proportion of the tiring as to whether he was entitled to the assets of the Chrome Works included in its interest of the trust in the proceeds of the claims against the mining companies, it assets by virtue of the agreement of settleThe issue we have had to determine would have been absolutely inconsistent and ment. futile to provide for a future sale of this in this case was thus presented upon the stock upon an equal basis of value with face of the instrument under which the Safe other holdings to which the agreement did Deposit & Trust Company received the renot apply. It is to be further observed that served assets and reduced them to cash for the conditions which brought about the segre- distribution, and the proceeding to have the gation of the assets from which the funds question adjudicated was not instituted by for distribution have been derived did not the appellant but by the trust company, come into existence until after the agreement whose administration of the estate, in view of settlement had been executed and deliv- of this conflict of interests, could not be ered. At the time of the agreement, the sale safely completed without a judicial construcof the capital stock of the Chrome Works, tion of the agreement to which the controwith a reservation of the assets in question, versy refers. had not been proposed or anticipated. this sale had not been made, or if it had not excepted the designated assets, the issue now before us could not have been presented. It is evident, therefore, that the appellant's claim was made possible only by a contingency which has occurred subsequently to the agreement now invoked and for which it made no provision.

In view of all these circumIf stances we think the costs are properly chargeable against the fund as provided in the audit.

The considerations to which we have thus referred are in our judgment conclusive of the question to be decided, and we can have no hesitation in concurring with the court below in the view that the assignment made in pursuance of the agreement of settlement did not vest in the assignee any right or interest upon which the claim of the appellant can be sustained.

[5] The appeal also presents for review the direction contained in the order below as to It is urged on the payment of the costs. behalf of the appellant that she ought not to be subjected to this burden for the reason that the issue involved in the case was raised by petition of the Safe Deposit & Trust Company as trustee, filed for the purpose of having the agreement in question construed and the rights of the respective claimants of the fund determined, and also because the auditor's report, in so far as it charged the costs of the proceeding to the trust estate, was finally ratified without objection by any of the parties interested. It appears from the record that the order ratifying the audit, except as to the award of the balance for distribution, was passed in June, 1912, and that it authorized the trustee to make the payments of costs as allowed out of the fund reported. The order overruling the excep tions and requiring the appellant to pay the costs was passed in the following January, long after the first order disposing of the costs had become enrolled. It has been noted that when the reserved assets of the Bal

The order under review will accordingly be affirmed as to its ruling upon the exceptions, but it will be reversed as to its disposition

of the costs.

Order affirmed in part, and reversed in part, and cause remanded; the costs above and below to be paid out of the fund.

(121 Md. 608)

CHAPMAN et al. v. NASH. (Court of Appeals of Maryland. 1913.)

1. TRIAL (§ 178*)

Nov. 12,

MOTIONS FOR DIRECTED VERDICT-CONSIDERATION OF EVIDENCE. When a prayer for a directed verdict is offered by defendant at the end of all the evidence, the court must consider the whole evidence, and not that of the plaintiff alone, as that offered by defendant may supply any defect in plaintiff's proof.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 401-403; Dec. Dig. § 178.*] 2. TRIAL (§ 178*) - MOTIONS FOR DIRECTED

VERDICT-CONSIDERATION OF EVIDENCE.

On a prayer by defendant for a directed verdict at the close of all the evidence, the court must assume the truth of the facts adduced in support of plaintiff's case, and consider such other facts as have been proved and not contradicted or denied by plaintiff. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 401-403; Dec. Dig. § 178.*1

3. MALICIOUS PROSECUTION (§ 56*)-BURDEN

OF PROOF.

In an action for malicious prosecution, plaintiff, in addition to proving that he was prosecuted and acquitted, must show that he was prosecuted at defendant's instance, and that such prosecution was malicious and without probable cause.

[Ed. Note.-For other cases, see Malicious Prosecution, Cent. Dig. §§ 112-116; Dec. Dig. $ 56.*]

4. MALICIOUS PROSECUTION (§ 71*)—QUESTIONS OF LAW OR FACT.

In an action for malicious prosecution, the