portions, and bring them before a court of justice for adjudication in successive suits." In Barrick v. Horner, 78 Md. 258, 27 Atl. 1111, 44 Am. St. Rep. 283, Judge Page said: "This rule includes also whatever, under the pleadings in the former proceeding, might have been brought forward 'as a part of the subject of contest.'" And in Rogers v. Bank (reported in the Daily Record of July 26, 1901; Md.) 49 Atl. 843, where the conclusiveness of an auditor's account was denied, Judge Briscoe said: "The audit, when ratified and confirmed, had the effect of an adjudication in rem, and the distributions contained in it are res adjudicata." We think the present case falls within the principles thus established. It was certainly within the power of the appellees to file objections to the allowance of these taxes in account A upon any of the grounds now urged. If they had done so, and the decision had been in their favor, it would have protected them, unless reversed on appeal. If adverse to them, they could have brought it here for review. They have had their day in court. If it be said that the real estate had not then been sold, and it could not, therefore, be known whether it would sell for enough to pay these taxes, and that, in any event, the fund then in hand was primarily liable for these taxes, the sufficient answer would be that, if either or both of these positions had been accepted as correct, the court, either upon its own motion or on proper application, would, in allowing these taxes, elther have suspended payment by the trustees until sale of the real estate, or would have so framed the order of ratification as to provide for reimbursement to the general creditors out of the proceeds of the real estate.

It was suggested by the appellees that the rule establishing a res adjudicata should be limited in its application to the receivers and their sureties, and should not be extended to a question between classes of creditors; but we can, upon principle, see no satisfactory basis for this distinction, which is not recognized by any authority brought to our attention. On the contrary, it was considered and decided adversely to the contention of the appellees in Corcoran v. Canal Co., 94 U. S. 741, 24 L. Ed. 190, where it was said by Judge Miller that in chancery suits it has long been settled that adverse rights as between codefendants may be determined, and, if the parties have had a hearing, and an opportunity of asserting their rights, they are concluded by the decree so far as it affects rights presented to the court, and passed upon by its decree. From this review of the authorities and of the principles upon which they repose, we are constrained to the conclusion that the ratification of audit A precludes the further consideration of any question relating to the payment of these taxes.

This view of the case renders it unneces

sary to consider the other grounds of argument on either side.

Order reversed, and cause remanded, that account may be ratified as stated; costs to be paid by the appellees.

(94 Md. 147)

WHEELER v. HARRISON et al. (Court of Appeals of Maryland. Dec. 5, 1901.) CONTRACTS-CONSTRUCTION-ATTORNEYSEMPLOYMENT-CHAMPERTY-EVIDENCE-OBJECTIONS.

1. Defendant, together with other subscribers to stock in a corporation, signed an agreement by which the plaintiff was to institute and defend suits, and take such other action as might seem necessary to relieve defendant from his subscription: and, if he should be saved from such payment, defendant agreed to pay plaintiff 8 per cent. of the amount from which he was released, and a sum 2 per cent. of his subscription to be applied first to expenses and costs incurred by plaintiff, and any balance to plaintiff in compensation for services. Held, that such agreement was a contract of employment, and not a mere offer to pay, under which plaintiff must act within a reasonable time, in order to bind defendant.

2. Plaintiff, being employed by defendant and others to relieve them from subscriptions to the stock of a corporation, performed work in suits brought against other subscribers, though none was brought against defendant, and also took depositions over a large extent of country, and did other legal work, and prepared to resist all demands against defendant, and after several years procured a release. Held, that the evidence of performance was sufficient to entitle plaintiff to a recovery on the contract of employment.

3. The contract was not tainted with champerty or maintenance.

4. General objections to testimony a part of which was admissible were properly overruled.

5. Error in admission of evidence which causes no injury is not ground for reversal.

Appeal from court of common pleas; Henry Stockbridge, Judge.

Action by W. Roy Stephenson and Thomas W. Harrison and Richard E. Byrd, trading as Harrison & Byrd, against John D. WheelFrom a judgment for plaintiffs, defendant appeals. Affirmed.

er.

On the 1st day of January, 1892, John D. Wheeler was a subscriber to the stock of the Equity Improvement Company of Winchester, Va., to the amount of 1,000 shares, of the par value of $5 per share, and his liability, therefore, was $5,000 to said corporation. On this liability he had actually paid only $250, so that he was indebted to said corporation in the sum of $4,750. Under these circumstances, he entered into a written contract with Messrs. W. Roy Stephenson and Thomas W. Harrison and Richard E. Byrd, copartners trading as Harrison & Byrd, "to represent and for me and in my name to institute and conduct for me, such suit or suits, and to defend me in any suit or suits, and take such other action for me as may seem to my said legal counsel proper and necessary to defend me against the payment and release me from the payment of my subscription to the capital stock of the

Equity Improvement Company of Winchester, Virginia." And, in consideration of such services to be rendered him, the defendant furthermore promised and agreed “to pay to them on demand a sum to equal in amount two per cent. (2%) of the par value of all the stock of said Equity Improvement Company of Winchester, Virginia, subscribed to by me, and now standing in my name; and I further agree that if I shall be saved and released, by the efforts of my said attorneys, or either of them, by suits instituted or defended by them, or either of them, or otherwise, from the payment of my said subscription, or part thereof, or in case I shall hereafter compromise or settle with said Equity Improvement Company of Winchester, Virginia, for its claim against me for said subscription, in either event I agree to pay to my said attorneys a compensation for their services, to be divided equally, namely, one-half (%) to said firm of Harrison & Byrd, and one-half (1⁄2) to said W. Roy Stephenson, the further sum equal to eight per cent. (8%) of the amount from the payment of which I shall have been saved or released as aforesaid, or by said compromise. The said two per cent. (2%) shall be applied, as far as it will go, by my said attorneys, to the payment first of such expenses as may be properly incurred by them, or either of them, in my behalf hereunder, then to costs of such suit or suits, and any balance thereof remaining in part compensation for their services equally as aforesaid; no part thereof to be returned to me." Argued before McSHERRY, C. J., and FOWLER, PEARCE, SCHMUCKER, and JONIS, JJ.

R. B. Tippett & Bro. and Wm. S. Bansemer, for appellant. Charles W. Field, for appellees.

MCSHERRY, J. The Equity Improvement Company was incorporated by the legislature of Virginia in 1890, and in March of that year it opened books in Winchester for subscriptions to its capital stock. The company was one of many development enterprises which sprang up about that period, and flourished for awhile, and then disintegrated. Amongst those who became shareholders was the appellant. He subscribed for 1,000 shares of the capital stock, of the par value of $5 per share. During the year 1890 he paid to the company five calls, of $50 each, leaving a balance due of $4,750. It was not long after the company's organization that dissensions crept into the management, and many subscribers refused to pay the installments called for on their subscriptions. A number of suits were then brought by the company to recover those called installments, and the appellees were employed by the dissident shareholders to defend them. Amongst those dissidents there were at least 18 who resided in Baltimore, some of whom were sued, and some,

including the appellant, were not sued. When it became apparent that considerable litigation confronted the dissatisfied shareholders, it was thought that a combined and concerted resistance on their part to the demands of the corporation would be more efficacious than the separate and individual defenses of the several defendants might probably be; and accordingly an agreement was prepared, which was to be signed, and ultimately was signed, by the persons who proposed to contest the exactions of the company. This agreement, which will be fully set out in the reporter's statement of the case, was signed by the appellant in January, 1892. By that agreement the appellees were employed to institute and conduct and defend for the signers such suits and to take such other action as might seem to the appellees proper and necessary to relieve the signers from the payment of, and to release them from, their subscriptions to the capital stock of the Equity Improvement Company; and each of the signers of that agreement stipulated that if he should be saved and released by the efforts of the appellees from the payment of his subscription, either as a result of suits instituted or defended by them or "otherwise," then he would pay to the appellees a sum equal to 8 per cent. of the amount from the payment of which he might thus be saved or released; and each signer further agreed that upon executing the agreement he would pay to the appellees a sum equal to 2 per cent. of the total face or par value of all the stock of said company subscribed for by him. The sum represented by the 2 per cent. was directed to be applied by the appellees to the payment of such expenses as might properly be incurred by them under and in virtue of their employment, and then to the costs of suit; and the balance, if any, was to be retained by the appellees in part compensation for their services. Various proceedings were had in the Virginia courts, but none of the suits there ever came to trial on the merits. Finally they were abandoned by the company in 1899. The suits in Baltimore were also abandoned, and during the year last named releases were procured by the appellees from the company for all the clients they represented. A release in due form was tendered to the appellant, but he declined to receive it, and he also declined to pay the 2 and the 8 per cent. compensation stipulated for in the contract. His refusal to pay was based upon the grounds to be hereafter stated. Suit was then brought against him to recover the 2 and the 8 per cent. The case was tried in the court of common pleas before the judge at large, without the intervention of a jury. During the progress of the trial four exceptions were reserved. Three of them were taken to the refusal of the court to exclude certain evidence, and the fourth to the rulings on the prayers for instructions. A judgment

was entered for the appellees for 8 per cent. on the sum of $4,750,-that being the amount of the appellant's unpaid subscription,-but the 2 per cent. on the total $5,000 subscribed was disallowed, because barred by the statute of limitations. From that judgment the appeal now before us was taken.

The main question in the case arises on the appellees' fifth and the appellant's first prayer. A discussion and consideration of the latter will dispose of the former. As the appellant's prayer is a demurrer to the evidence, and challenges the right of the appellees to recover, because of their being no evidence legally sufficient to entitle them to a verdict, it will be more convenient and will tend to brevity if we proceed to examine it first. There are two grounds upon which it has been contended that the evidence is insufficient to entitle the appellees to recover, and these are: First, that the agreement between the dissident shareholders and the appellees was a mere offer, which, not having been performed by the procurement of a release until after the expiration of seven years from the time the offer was made, was no longer binding on the appellant; and, secondly, because the agreement is void by reason of being tainted with champerty and maintenance.

It is scarcely necessary to remark that, in dealing with a demurrer to the plaintiff's evidence, the truth of that evidence must be assumed. Its truth cannot be controverted though distinctly contradicted, for it is not the province of the court to weigh its credibility when considering merely its legal | sufficiency. If, upon the assumption that the evidence is true, it be legally sufficient to sustain a verdict, then, no matter how flatly it may be contradicted, it cannot be withdrawn from the jury on the ground of being legally insufficient to justify a recovery, so we must lay aside all that was deposed to by the president of the company to the effect that he was not influenced in any way in executing the releases by anything that had been done by stock subscribers in defending suits brought against them, that he was not influenced by any apprehension that the subscribers could not be made to pay their subscriptions, and that his individual action in this case was certainly not induced by anything that was done at any time or anywhere by the appellees. We are then brought to inquire what the agreement between the appellant and the appellees was, and whether the evidence shows that anything was done by the appellees under it. If the instrument relied on as an agreement was in fact no agreement at all, but was simply an offer, under which nothing was done by the appellees within a reasonable time after its execution, there can be no recovery, and the court would have done right had it granted the appellant's prayer. If, on the other hand, the instrument was a valid agreement, the appellees could not re

cover on it, had there been no evidence adduced to show that they had in one or the other of the designated ways secured the release of the appellant from liability on his subscription to the company's capital stock. And, finally, if the instrument, though more than a mere offer, was a contract tainted with champerty or maintenance, no action could be maintained upon it in any event. There can be no doubt about the legal principle that an unaccepted offer does not constitute a contract. The authorities cited by the learned counsel of the appellant fully sustain that principle, and we need not pause to consider them, because we have no fault to find with them. The difficulty lies not with the principle, but with its application to this case. Does the paper writing of January, 1892, which was signed by the appellant, and upon which the appellees found their right to recover, amount merely to an offer on the part of the appellant to pay a sum of money upon the procurement of a release by the appellees,-an offer not binding until accepted by the appellees, and until consummated by performance within a reasonable time? We do not so interpret it. In terms, it unequivocally employs the appellees in their professional capacity as lawyers, to perform certain legal services for the appellant; and it fixes the rate at which, and the contingency upon which, their compensation is to be paid. The specific purpose for which they were employed was to procure the release of the appellant from paying to the Equity Company the remaining amount due by him on his stock subscription. This was not an offer to pay them provided they performed certain services. It was a distinct agreement to pay a stipulated compensation upon their securing a particular result, whether that result-the procurement of a release-were accomplished by the agency of suit instituted or defended for the appellant "or otherwise." The agreement was therefore not an offer, in the sense in which that term is used in the cases cited. As, for instance, in Mitchell v. Abbott, 86 Me. 338, 29 Atl. 1118, 25 L. R. A. 503, 41 Am. St. Rep. 559, where a reward was offered for the apprehension of an offender, who was not arrested until 12 years afterwards. The court very properly said such an offer is a proposal merely. And so in Morse v. Bellows, 7 N. H. 549, 28 Am. Dec. 372, where the proposal was, "If you get me a discharge from those creditors, I will pay you what I am bound to pay them." It was held that, to entitle the plaintiff to recover, there must have been a compliance with the proposal, and a compliance within a reasonable time. But the agreement involved in this proceeding is an unconditional employment to do a specific thing. There being no time mentioned within which the specific thing was to be done, even if it be conceded that a reasonable time is implied by law, what is a reasonable time must depend on the circum

stances of each case; and, when the facts have all been proved, that becomes a question of law. Loring v. City of Boston, 7 Metc. (Mass.) 409.

The work behalf of the clients

The evidence shows, and shows in quite a satisfactory way, that the appellees performed a large amount of professional labor in behalf of the clients they represented, in the controversies arising out of the efforts of the Equity Company to collect the unpaid subscriptions. Whilst no suit was ever brought against the appellant, the work done by the appellees in the suits which were brought, and the other efforts made by them to procure releases, was work done and were efforts made in behalf not only of those who had been sued, but of others similarly situated who had not been sued, but were liable to be sued. done and the efforts made in some inured to the benefit of all whom the appellees represented. As stated by one of the appellees in his deposition: "After our employment by 'a number of subscribers to the capital stock of the Equity Improvement Company, the plaintiffs in this suit entered upon the discharge on our part of the services and undertakings which we had agreed to perform for Mr. Wheeler and other clients similarly situated." During the period covered by these services the company proposed to settle with the dissident subscribers for 30 per cent. of their subscriptions, but this offer was rejected by the appellees. It would serve no useful purpose to narrate all that the appellees did in fulfillment of their engagement. They took depositions in Scranton, Pa., to be used in the trial of the Virginia and the Maryland cases. They examined into the regularity and good faith of the company's organization, and, according to the undisputed evidence, thoroughly prepared themselves to resist every demand upon the clients they represented. In many of the cases they filed elaborate pleas, and, though those pleas were held bad, exceptions were reserved, so that the rulings might be reviewed in the court of appeals of Virginia. By persistent efforts in striving to force the Virginia cases to trial, they finally drove the company to abandon those suits, and ultimately procured formal releases for all their clients, including the appellant. This labor extended over six or seven years, and during no part of that time were the appellees ever advised by the appellant that he considered his agreement as no longer binding, because not performed within a reasonable time. If, in point of fact, the instrument sued on had been only an offer, and if the appellant had desired to revoke it, he should have notified the appellees, because they were entitled to consider the offer unchanged until a revocation was communicated to them. Wheat. v. Cross, 31 Md. 99, 1 Am. Rep. 28. But the evidence does not show an unreasonable delay in procur

ing the release. As we have stated, the litigation stretched over a considerable space of time, and over a wide territory. It has not been proved that the final result could have been accomplished any earlier, and we cannot say, in the face of all the facts disclosed by the record, that, as matter of law, there was unreasonable delay in procuring the release. Suppose the appellees had negligently suffered a judgment to be recovered against the appellant by the Equity Company; can it be doubted that they would have been liable to him in an action for damages if by reason of that negligence he had been compelled to pay his stock subscription, when there was a valid defense which the appellees could have made, and which, if they had made, would have protected the appellant completely? They would have been unquestionably liable. And they would have been liable because under the contract of employment they were bound to use their skill in defending him. There was a duty on their part, and obviously, therefore, the instrument signed by the appellant was not a mere offer, as he now contends. We read the contract to mean an absolute and unqualified employment of the appellees to do certain designated professional work for the appellant, their compensation being made contingent upon the procurement of a release. In that view of it, it becomes quite immaterial whether there was much or little delay in securing the release.

We find nothing to justify the contention that the agreement was tainted with champerty or maintenance. In defining "maintenance," Mr. Greenleaf says: "This crime is said to consist in the unlawful taking in hand or upholding of quarrels or sides, to the disturbance or hindrance of common right. It is of two kinds, namely, ruralis, or in the country, and curialis, or in the courts. The former is usually termed 'champerty,' and is committed where one upholds a controversy under a contract to have part of the property or subject in dispute. The latter alone is usually termed 'maintenance,' and is committed where one officiously and without just cause intermeddles in and promotes the prosecution or defense of a suit in which he has no interest by assisting either party with money or otherwise." 3 Greenl. Ev. § 180. Under neither classification does the contract sued on fall. The appellees were not upholding a controversy under a contract to have part of the property or subject in dispute. They undertook to defend the appellant and others against what were considered unlawful demands made by the Equity Company, and their compensation, which was contingent, was to be a percentage of the amount from the payment of which they should succeed in releasing their clients. The specific appropriation of the 2 per cent. named in the contract to the payment of costs and

expenses was an appropriation of the clients' own money, and can in no sense be treated as indicating that the appellees, without just cause, were promoting the defense of a suit in which they had no interest, and promoting it by assisting the defendants with money.

The views we have thus far expressed are sufficient to indicate that there was no error committed in granting the prayers of the plaintiffs, or in rejecting that of the defendant. The only remaining questions are those presented by the first, second, and third bills of exception. These relate to the admissibility of evidence. All of the testimony objected to was taken under a commission. The objections filed to the admissibility of some parts of it were very general, and did not indicate with precision the exact interrogatories and answers which the appellant sought to exclude. Portions of the testimony to which the objections applied were admissible, whilst other parts might not have been; but when an objection is general, and includes the admissible as well as the inadmissible, it must be overruled. Burgeon v. Bixler, 55 Md. 389, 39 Am. Rep. 417. Upon that ground alone the objections were properly overruled. But, even if the inadmissible testimony had been improperly admitted, its admission did no injury, and, where no injury has been done, no reversal will be ordered, though there has been error; for error and injury must both concur, to warrant a reversal. Williams v. Higgins, 30 Md. 404.

Upon a review of the whole record, we find no injurious errors, and the judgment appealed against will therefore be affirmed. Judgment affirmed, with costs above and below.

1. An order removing a trustee unless cause be shown to the contrary within one month was not an appealable order.

2. Where pending proceeding for the removal of a trustee under a will a creditor of the estate paid a large sum belonging to the trust fund into court, the trustee, who had been a resident of the state, by leaving it, and instructing his attorney not to accept service of petitions and orders in the case, could not deprive the court of jurisdiction over the trust fund and to remove the trustee; and it might proceed under Code, art. 16, § 105, and Acts 1896, c. 38, giving jurisdiction in matters concerning a trust within the state, and providing a method of service on nonresident defendants.

3. Where, subsequent to an appeal taken in proceedings relating to a trust created by will, a new petition was filed, and money belonging to the trust fund was paid into court, and no appeal bond was given, the appeal did not affect the power of the court to make further orders for the protection of the trust.

Appeals from circuit court No. 2 of Baltimore city; J. Upshur Dennis, Judge.

Bill by Philip C. Clarke and others against Thomas C. Chappell, trustee, to enforce a trust. From various orders defendant trustee prosecutes four appeals (Nos. 19-22), and Fannie Chappell Clarke, one of the plaintiffs, files three appeals (Nos. 23-25). Dismissed as to the trustee's first appeal, and as to all the others affirmed. Argued before McSHERRY, C. J., and FOWLER, BOYD, SCHMUCKER, and JONES, JJ.

W. D. Davidge, for appellant Fannie Chappell Clarke. Thos. C. Chappell, in pro. per. Gans & Haman and Wm. J. O'Brien, Jr., for appellees.

BOYD, J. There are seven appeals in this record, four of which were taken by Thomas C. Chappell, trustee, and the others by Mrs. Clarke. The orders appealed from were passed in the same case that is reported in 92 Md. 98, 48 Atl. 36 (Chappell v. Clark). The original bill was filed by Mrs. Clarke and her husband, Mr. and Mrs. Stiles, and the three infant children of Mr. and Mrs. Clarke, by their father, as next friend, against Thomas C. Chappell, trustee. They prayed that the court assume jurisdiction over the trust created by the will of Philip S. Chappell, which left $60,000 to Thomas C. Chappell in trust for Fannie Chappell (now Mrs. Clarke) during her life, and after her death "to divide said trust property and the remaining proceeds thereof equally, per stirpes, and not per capita, among her children and their descendants, if she shall have left any, and, if she shall have left no children or descendants, then to the absolute use of the said Thomas C. Chappell," etc. It further prayed that the trustee be required to file an account, and to give security for the faithful administration of the trust reposed in him and that he be enjoined from receiving or investing any of the funds of said trust estate until the court had assumed jurisdiction, and the defendant had filed a bond. A subpoena was issued for the defendant, which was returned, "Summoned." An order was also passed assuming jurisdiction of the trust, requiring the trustee to give bond, and enjoining him, until he did so, from receiving, collecting, or in any manner taking into his hands or under his control any more of the trust funds, etc. Calvin T. Davison filed a petition on the 11th day of May, 1900, asking permission to pay the sum of $20,000 which his firm owed the estate into court, and an order was passed authorizing him to do so. The case was reversed by this court because copies of the will and of the mortgage were not filed, as required by Code, art. 5, § 120, before the orders were passed, and the cause was remanded. The copy of the will was filed on May 14, 1900, and subsequently a copy of the mortgage referred to in the previous