reserved, no appeal would lie from that rul-account is merely attached. The case is siming; and, in the second place, that the exten-ilar in this respect to the case of Councilman sion of time for pleading was a matter rest- v. Towson Bank, 103 Md. 469, 64 Atl. 358, in ing wholly in the discretion of the trial court, and that no appeal will lie from the action of the court, where the matter is one within the discretion of the trial court. which case the suit purported to be brought on a promissory note, and a copy of the note, not the original, was attached to the declaration. The office and effect of a bill of par[1, 2] Section 2 of article 5 of the Code ticulars has nowhere been more tersely and (1912) gives the right of appeal from any clearly stated than in the case of Cairnes v. judgment or determination of a court of law, Pelton, 103 Md. 44, 63 Atl. 107, wher this by which is meant a final judgment or deter-court, speaking through Judge Burke, said: mination; it does not lie from matters inter- The office and legal effect of a bill of particlocutory in their character. Griffee v. Mann, ulars is to inform the opposite party of the 62 Md. 253. But on appeal from a final judg-precise nature and extent of the claim which ment rulings of the lower courts upon mat- the plaintiff intends to rely upon under each ters of law may be reviewed without any and every count of the narr. and to confine special exception taken; a frequent example his evidence to the claim thus stated." To of which arises in the case of the ruling of the same effect, see Parks v. Griffith & Boyd the trial court upon demurrer, and in such a Co., 117 Md. 494, 83 Atl. 559, and Lyell v. case it has been held that no bill of excep- Walbach, 111 Md. 610, 75 Atl. 339. The last tion or writ of error is necessary to bring up case well illustrates the class of cases in for review the action of the trial court. which the plaintiff is relieved from filing a Kendrick v. Warren, 110 Md. 76, 72 Atl. 465. bill of particulars. The narr. contained but With regard to the second ground, namely, a single count, that for money found to be due the discretion of the court as to granting or on an account stated, and the claim was inrefusing an extension of time to plead, the serted in and constituted a part of the decstatute provides that, upon such demand be-laration itself, but on page 613 of 111 Md. ing made, the court may, for good cause shown, extend the time to plead. If the defendant was entitled to make a demand for a bill of particulars in this case, he was then entitled to such extension as in the discretion of the court might be requisite for him to prepare proper pleas. That time might be longer or shorter, according to the character of the claim as disclosed in the bill of particulars filed in response to a demand therefor; taking up the case as presented in the record, the proper determination is very readily reached by adhering to well-established rules of pleading, and can be briefly stated. will be found an admirable statement of what a bill of particulars must contain, and its legal effect. [5] The account which was filed with the narr. in this case was as full, complete, and specific as the defendant was entitled to in response to his demand for a bill of particulars, if recovery was sought only for those items, and it would have been a sufficient compliance with the demand to have adopted that account as the bill of particulars, or include it as a part of the declaration in the case; yet, since that account was not a part of the pleading, the parties, if the defendant [3, 4] The account which is filed with the had filed pleas, would have been in a very declaration forms no part of it (Universal different legal position, a position which is Life Ins. Co. v. Bachus, 51 Md. 28), any more stated with exceptional clearness in the case than does the affidavit which is filed when of Williar v. Nagle, 109 Md. 75, 71 Atl. 427, it is desired to bring a suit under the Rule 16 Ann. Cas. 982, which was a suit like the Day Act. A suit brought on the common present one, brought under the Practice Act counts is very general in its terms, and does of Baltimore City. The court there said: not apprise the defendant at all as to the "When the defendant appears in such an acreal nature of the demand which the plaintiff¦tion, and complies with the requirements of is making, and therefore it is provided by the statute, the case is then placed on the the Code (article 75, § 24, subd. 107) that "ei-, trial docket and is governed by the ordinary ther party may require a bill of particulars where the pleading is so general as not to give sufficient notice to the opposite party of the evidence to be offered in support of it." In some of the cases which have been be-missible under his plea. The plaintiff is not fore this court, the declaration itself in one or another of its counts set out the account upon which the plaintiff's claim was based, and if there were no other counts but such an one in the case, the declaration has been held sufficient, and a bill of particulars not demandable. Lyell v. Waibach, 111 Md. 610, 75 Atl. 339. In those cases, however, the account was, by being incorporated in the narr., made a part of the pleadings of the case rules of procedure in actions ex contractu. The plaintiff can claim anything recoverable under his declaration, and the defendant can avail himself of any defense or evidence ad contined to the cause of action originally filed with the declaration, and he and the defendant are not bound or prejudiced by the atdavits originally made under the practice act, except in so far as the respective averments of these affidavits may strengthen or weaken the other testimony of the party making the affidavits." In other words, the filing of the pleas in conformity with the act would take the case out of the operation of the act. [Ed. Note.-For other cases, see Railroads, rule is presented in Crook v. N. Y. Life Ins. I to definitely locate the precise route before the Co., 112 Md. 284, 75 Atl. 388, where a suit company is incorporated. had been brought upon a paid-up policy of insurance, and the question arose whether under the common counts and a cause of action of such a character interest would be allowed. It cannot be regarded as other than unfortunate that when an account, as complete as the one in this case, is attached to the narr., it should not be a sufficient statement of a plaintiff's claim, and confine the plaintiff in his proof to the items so set out; but the remedy for this must be found in legislative modification of the present law, rather than in a judicial wrenching of clearly established principles. It follows that the action of the trial court is this case in refusing the demand for a bill of particulars, and of an extension of time to plead thereto, was error, prejudicial to the defendant, and the judgment below must be reversed, and the case remanded that the pleadings may be properly made up, and a new trial had. Cent. Dig. 88 27-30; Dec. Dig. § 14.*] 3. JURY (§ 19*)-JURY TRIAL-ISSUES-CERTIFICATE OF INCORPORATION-DETERMINATION OF VALIDITY. In condemnation proceedings by a railroad against a city, where the only question was the validity of the charter of the railroad, the sufficiency of the designation of the termini therein, the court properly refused defendant's request for a jury trial; the determination of such question being for the court. [Ed. Note.-For other cases, see Jury, Cent. Dig. $8 104-133: Dec. Dig. § 19.*] ROR-PLEADING. 4. EMINENT DOMAIN (§ 262*)-HARMLESS ERIn condemnation proceedings by a railroad against a city, error, if any, in refusing to permit defendant to amend its answer, so as to plead an order of the Public Service Commission, was harmless, where it was later permitted to file the order. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 681-686; Dec. Dig. § 262.*1 5. EMINENT DOMAIN (§ 196*) -DETERMINATION OF VALIDITY OF CHARTER-EVIDENCE. In condemnation proceedings by a railroad seeking to condemn an easement over a city street, wherein the city contested the right of the railroad to condemn because its charter was invalid in that it failed to properly designate termini within the state, the court properly permitted the officers of the railroad company to explain the route and to give the apHY-proximate distances between the different points designated. Judgment reversed, and new trial awarded; costs to be paid by the appellee. (122 Md. 6C0) MAYOR AND COMMON COUNCIL OF ATTSVILLE v. WASHINGTON, W. & G. R. CO. (No. 13.) (Court of Appeals of Maryland. Feb. 25, 1914.) [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 529-534; Dec. Dig. § 196.*] 6. EMINENT DOMAIN (§ 192*)-PROCEEDINGSINABILITY TO AGREE WITH OWNER. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 519-521; Dec. Dig. § 192.*1 7. EMINENT DOMAIN (§ 56*)-RAILROADSNECESSITY FOR EXERCISE OF POWER. In condemnation proceeding, wherein 1. Railroads (§ 14*)-RAILROAD COMPANIES-railroad sought to condemn an easement over CERTIFICATE OF INCORPORATION-DESIGNAa city street, the answer of the city contestTION OF TERMINI. Though Code Pub. Gen. Laws 1888, art.ing the railroad's right to condemn, and the 23. § 159 (Code Pub. Civ. Laws, art. 23, § fact that the proceedings had been in court for over 18 months, was sufficient to show that 261), providing that the certificate of incorpora- the parties were unable to agree. tion of a railroad company shall specify the names of the termini, and the county or counties, city or cities, through which the road will pass, requires the termini to be fixed between points within the state, yet where a charter described the route, "The termini of said railroad are Washington, D. C., and Gettysburg, Pa., and its main line is to run through the counties of Montgomery, Howard, Frederick, and Carroll, Maryland," it was sufficient as designating termini within the state, treating the termini as the points of crossing the two state lines, since, in order to pass from Washington to Gettysburg through the counties and cities named, the road must cross the state lines within such reasonable distances as to render those points sufficiently definite to be treated as termini within the state. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 27-30; Dec. Dig. § 14.*] 2. RAILROADS (§ 14*)-RAILROAD COMPANIES CERTIFICATE OF INCORPORATION-DESIGNATION OF TERMINI AND ROUTE. That a railroad could have adopted another or other routes to have reached the termini designated in its charter did not show that no necessity existed for taking property along the route selected. since, if it had adopted another route, the owners of property along that route could have made the same contention. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 147-160: Dec. Dig. § 56.*] 8. EMINENT DOMAIN (§ 198*)-RAILROADSNECESSITY FOR EXERCISE OF POWER-QUESTION FOR JURY. Whether it is necessary for a railroad to condemn any particular property is for the court and not the jury, excepting in so far as the Public Service Commission may pass upon that question under Code Pub. Civ. Laws, art. 23, § 438. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. 88 525, 526, 528, 535-539; Dec. 'Dig. § 198.*] 9. EMINENT DOMAIN (§ 169*)-PROCEEDINGSEFFECT OF ORDER OF PUBLIC SERVICE COMMISSION. Under Code Pub. Gen. Laws 1888, art. 23, § 159 (Code Pub. Civ. Laws, art. 23, § 261), providing that the certificate of incorporation of a railroad company shall specify the names of the termini, and the county or counties, city or cities, through which the road shall pass, the termini and route is only required to be designated and fixed with reasonable cer- The Public Service Commission could not, tainty, since it would be practically impossible a year after passing an order permitting and approving the construction of a railroad and the exercise by it of franchises to cross public highways, etc., by suspending such order stop condemnation proceedings actually pending in the court having jurisdiction over them. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 461; Dec. Dig. § 169.*] 10. RAILROADS (§ 94*) - POWER OF PUBLIC SERVICE COMMISSION. Under Code Pub. Civ. Laws, art. 23. § 438. providing that no common carrier, railroad. etc., shall begin the construction of a railroad, etc., or exercise any franchise or right, etc., without first having obtained the permission and approval of the Public Service Commission, the Commission can determine whether a railroad shall cross a public highway at, above, or under grade. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 266-273; Dec. Dig. § 94.*] Appeal from Circuit Court, Prince George's County; Fillmore Beall, Judge. attorneys for the appellee that those lines were coextensive, and it was for that reason that they were referred to. The testimony taken after the case was remanded does not sustain that contention. It may be true that there is but one government for the whole district, including the city of Washington, but the limits of the city seem to be well established and are practically the same they have been for many years, excepting Georgetown is now a part of Washington. If Washington and Gettysburg had been within the state of Maryland, naming them as the termini of the railroad would have been sufficient, without stating from what part of the one the road was to begin, and at what part of the other it was to terminate. The theory upon which we remanded the case, therefore, was that if it could be shown that a railroad constructed from the one place to the other, and passing through the counties and by or near the towns named, would cross the state lines within such dis "To be officially reported." Condemnation proceedings by the Washington, Westminster & Gettysburg Railroad Company against the Mayor and Common Council of Hyattsville. From a judgment for plain-tances on those lines as made those points of tiff, defendants appeal. Affirmed and re manded. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. Vincent A. Sheehy, of Washington, D. C., for appellants. T. Howard Duckett, of Washington, D. C. (Marion Duckett, of Washington, D. C., on the brief), for appellee. crossing reasonably certain and fixed, then those points could be accepted as the termini of the road. It was determined in Union R. Co. v. Canton R. Co., 105 Md. 12, 65 Atl. 409, that it was not necessary under our statute that a railroad company shall have its termini at or in a city, town, or village; and in the charter involved in P. & C. Ry. Co. v. Speelman, 67 Md. 260, 10 Atl. 77, 293, the description of one terminus was: "Beginning BOYD, C. J. [1] This case was before us at a point in Allegany county, in said state, several terms ago, and the conclusions then opposite to the junction of the West Virginia reached by us are reported in 120 Md. 128, Central & Pittsburg Railway Company with 87 Atl. 828. The question which then gave the Baltimore and Ohio Railroad Company us most difficulty was whether the termini above Piedmont, in West Virginia." Therewere sufficiently described to comply with fore reference to a point at either state line our statute. After considering the various on a road to be built from Washington, D. C., points presented, we said: "In our judgment, to Gettysburg, Pa., would answer the requirethen, the general railroad law of this statement of the statute, if such point could be requires the termini to be fixed in this state, and naming two cities out of the state as the termini would not ordinarily be sufficient to show a compliance with the statute in that respect. But we are also of the opinion, as indicated and explained above, that if it be shown by evidence that a road running | termini definitely ascertained and fixed so as from Washington, D. C., to Gettysburg, Pa., through the counties, and at or near the towns mentioned in this charter, will cross the state lines within such distance that the points of crossing can be said to be fixed with reasonable certainty, in the light of the decisions above referred to and of what we have said, such points can be treated as the termini in this state, and hence, if such be the case, the description of the termini in this charter must be treated as a substantial compliance wtih the requirement of the statute. And, if it be shown that the lines of Washington and of the District of Columbia are coextensive, that is suflicient for the southerly terminus." It was contended in the former case by the made sufficiently definite. It was said in Union R. Co. v. Canton R. Co., supra, that: "In requiring that the termini shall be specified in its act of incorporation, it would seem that the only reasonable intent to be imputed to the law is that the railroad shall have such to indicate its general direction and location." That there can be no objection to a railroad being chartered in this state with the view to connect with and in effect form part of a road chartered by another state was decided in P. & C. Ry. Co. v. Speelman, and the conditions shown in that case still exist, just as in the part of the Western Maryland System east of Cumberland, where the road crosses and recrosses the Potomac river a number of times. We said in the former opinion that, if the lines of Washington were coextensive with those of the District, a point on the dividing line between the District and Maryland "would be sufficient for the southerly term nus, for if, for example, one terminus of a land and the state of Pennsylvania, and run railroad was Baltimore city, it would not be through or near the towns of Thurmont and necessary to name the particular street or Emmittsburg, in said Frederick county, and part of the city to or from which it ran." We to extend from Frederick City southerly spoke of the fact that there were a number through Frederick and Montgomery counties of special charters in this state in which one to the boundary line of the District of Columor both of the termini were more uncertain bia, or to such point in Montgomery county and indefinite than those in this charter, if as may, by said directors, be deemed most we treat the termini in this state as the expedient to connect with some railroad enpoints where the route crosses the state lines tering said District of Columbia." Other from Washington and Gettysburg, and we special charters might be cited; and, while referred to Speelman's Case and that of we do not mean to say that the Legislature Union R. Co. v. Canton R. Co. to show that could not by a special charter grant some this court had in effect placed railroads char- special powers which the general law does tered under the general law on the same not, such designations of termini as those we basis as those having special charters, in re- have mentioned reflect upon the intent of the spect to their termini and routes. The Balti- Legislature in reference to them. We will more & Ohio Railroad was not only one of repeat what we quoted in the other opinion the first built in this country, but its charter from the case of Union R. Co. v. Canton R. has been the guide in this state in granting Co., in speaking of the provisions of the charters to other railroads, in reference to general law as to termini. It was there said: the description of routes, the exercise of emi- "The language of the provisions in question nent domain, and in other respects. Chapter may be somewhat lacking in clearness, but 158 of the Acts of 1830 was the original act the question here is not one of philological by which what is known as the Washington accuracy in the expressions employed therein Branch of that company was authorized, be- but of legislative intent upon a view of the ing entitled "An act to promote internal im- whole statute and of the object of it. This provement, by the construction of a railroad court has said that the statute in question is from Baltimore to the city of Washington." of remedial character and to be liberally conThat company was empowered and author- strued. Piedmont & Cumb. Ry. Co. v. Speelized to construct that railroad "from such man, 67 Md. 260 [10 Atl. 77, 293]. Its object point or place on that part of the Baltimore is to promote and facilitate the organization & Ohio Railroad already constructed, and in of corporations for the building of railroads use, not exceeding eight miles from the city and supplying means of transportation as the of Baltimore, as the said company may deem necessities and convenience of any communmost convenient, to the line of this state ad-ity in the state and its industrial and comjoining the District of Columbia in a direc-mercial development may require. Where tion toward the city of Washington, along doubt may be suggested as to the constructhe most direct and suitable route that may tion of the law, it ought to be resolved be reasonably and conveniently practicable." with a view of bringing the practical operaThe precise point of crossing the state or tion of the law into harmony with its purDistrict line was certainly as indefinite in the pose." route of a road from the beginning named to [2] In determining the sufficiency of the dethe District line "in a direction towards the scription of the termini in this charter, we city of Washington" as the point of crossing must be controlled by the former decisions such line would be in the route of a road of this court, and particularly by what we befrom the city of Washington to Gettysburg, lieve the Legislature intended to require. through the counties and at or near the towns Some cases in other jurisdictions have, it named in this charter. It is true that was a seems to us, announced stricter rules in refspecial charter, but, in view of what was erence to the description of the termini than said in the cases above referred to, we would are necessary for the protection of the pubnot be at liberty to strike down this charter lic or those interested in railroad companies. merely because the precise point of crossing It is generally conceded that the precise the line was not fixed, when the general di- route between the termini must, to a great rection and location of the railroad are indi- extent, be left to the discretion of the comcated by the description given, and that spe- pany; it may be above or below, or partly cial charter, moreover, does show that the above and partly below, or close to or some Legislature of this state did not deem it distance from a direct line between the ternecessary to fix in advance the precise point mini, unless otherwise fixed in the charter, of crossing state lines. Chapter 634 of Acts and yet some authorities would seem to limit of 1900, which changed the name of the Fred- the termini to very circumscribed spaces. erick, Thurmont & Northern Railway Com- The better rule it to require them to be despany to the Washington, Frederick & Gettys- ignated and fixed with reasonable certainty, burg Railway Company, authorized that com- and what is reasonable certainty must depany to construct a railroad from some point pend upon circumstances. It might be well in Frederick City "to some point at or near to require a map or maps to be filed of the whether or not the lines of Washington and the District were coextensive, etc. Nor do we think that any of the other questions of fact suggested by the appellant were at issue at the time the jury was asked for. [4] The second exception was taken to the refusal of the court to allow the appellant to amend its answer so as to plead, as matter of defense, an order of the Public Service designated time after a charter is taken out, further proof is required to show that the but it would be practically impossible to def- | persons who signed the articles and applied initely locate the precise route before the for the charter have accepted it than their company is incorporated, as that must de-compliance with the provisions of the statpend upon circumstances which may arise ute. Glymont Co. v. Toler, 80 Md. 278, 30 after the company is chartered, and we have Atl. 651. For the reasons stated in the opinquoted above from Union R. Co. v. Canton, ion in the former appeal, we deem it proper R. Co. to show the intent of the law in re- to have evidence, so that the court could dequiring the termini to be fixed in the charter. termine the sufficiency of the description of But, having already held that, if the lines the termini in the charter, as without the of Washington are coextensive with those of evidence it was not satisfactorily informed the District, that would be sufficient for the as to where the proposed road would cross southerly terminus, it would seem that logi- the state lines, but it was not intended that cally the District line should be held to be a jury should pass on such questions, as suflicient. No greater distance is covered by whether there was such a corporation, the it as the District line than would have been distance from the point where the proposed if it had been found to be a line of Washing-road crossed the state line to Gettysburg. ton city. The map of the route of the railroad is now in the case, and that not only shows the point on the District line, but the route of the road to the Pennsylvania line. In order to pass through Prince George's, Montgomery, Howard, Carroll, and Fred-¦ erick counties, by what would approach any thing like a direct line to Gettysburg, the road must cross the District line and the Pennsylvania line within such reasonable Commission, passed since the pleadings in distances as satisfy us the termini so fixed are a sufficient compliance with our statute Westminster is almost due north of Sandy Springs, and the route from the District to Westminster, via Sandy Springs, is about as direct as a railroad usually is in such a country as this passes through, especially where there are other railroads to be taken into consideration. The distance from West- [5] In the third, fourth, fifth, sixth, sevminster to the Pennsylvania line is a little enth, eighth, ninth, tenth, eleventh, twelfth. over 16 miles, and from that line to Gettys- thirteenth, fourteenth, fifteenth, sixteenth, burg a little over 13 miles, according to the and seventeenth exceptions there were no reevidence of the general manager of the road, versible errors. Some of them are wholly who said it was practically an air line. immaterial, as they relate to the question without pursuing the subject further, we are whether the lines of the city and the District satisfied that, treating the termini in the were coextensive, and we have already said charter as the points of crossing the two we are satisfied they are not. It was propstate lines, they are sufficiently designated. er to have the officers of the company ex[3] It only remains to consider the excep- plain to the court the route of the proposed tions presented by the record. The first was road, and there could be no valid objection to the refusal of the court to have a trial by to the use of maps by way of illustration in jury. At the time the appellant filed its elec- doing so. It was competent for the officers tion for a trial by a jury, the pleadings did, to give the distances between Westminster not raise any issue of fact which a jury could and the state line, and between the latter pass on. It was for the court, and not for a and Gettysburg. It must be remembered that jury, to determine whether the charter was all of that character of testimony was ina valid one, and the evidence to be offered | tended to enlighten the court as to the apon that subject was for the court. If the ter-proximate distances between those points, mini were sufliciently described, a copy of the and it was not essential to prove the exact charter, duly certified by the Secretary of distances. So, this case were filed, whereby said Commis- State, is made evidence of the existence of The eighteenth exception embraces a praythe company (section 261 of article 23); ander in which the appellant asked the court to by section 262, when the provisions of section enter judgment for the defendant and to dis261 have been complied with, the persons miss the petition for 11 reasons set out in named as corporators in the certificate are the prayer, which we will consider in the orauthorized to carry into effect the objects' der named: named therein, and they and their associates, successors, and assigns shall thereafter be deemed a body corporate, etc. When a cor (1) There is no merit in the first ground, as the interests of the other parties were not contested, and the proceeding was contipnea |