papers and from what he had heard, if, as he had already declared in answer to the questions put to him by the court, his mind was perfectly free and clear from all prejudice or bias of any kind that might prevent him from rendering a proper verdict. But, in addition this view, it appears manifest to us that the question was improper, for, conceding that the juror had formed an opinion that there was such an unlawful assembly, it by no means follows that he necessarily had an opinion upon the guilt or innocence of certain persons charged with participating therein, any more than a juror would be disqualified in a capital case because he has formed an opinion that a person has been killed. One who believes that a person has been killed does not necessarily have an opinion upon the guilt or innocence of the accused. Thomp. & M. Jur. p. 231, 217. If, on the other hand, the juror had formed an opinion that there never had been such an unlawful assembly, the defendants could not have been injured; for, if there was no such assembly, the defendants could not have been convicted.

2. But, in the second place, it was contended that the defendants were entitled to ask this question to test the juror's mind, and to inform themselves so that they could act intelligently in the selection of a jury, and in exercising their right to strike from the panel four names. If we are correct, however, in what we have already said, the question asked was not proper nor pertinent to determine the qualification of the juror; nor do we think it was proper or pertinent to enable the defendants to strike from the list. If, as we have said, it is immaterial to a fair trial of the issue that the juror had an opinion that there was an unlawful assembly, it was not necessary for a fair trial that the defendants should ascertain the juror's opinion on that fact, any more than his opinion on many other facts that have no necessary relation to the issue to be tried, to wit, whether the defendants were guilty of an unlawful assembly. If, on the other hand, the juror had so formed an opinion that there was no such unlawful assembly, and had so answered, he would clearly have been disqualified, if that opinion had been a fixed and deliberate one, for such an opinion would have been equivalent to a judgment in favor of the innocence of the accused. In other words, the question is susceptible of only two answers, either that a fixed opinion had been formed that there was, or that such an opinion had been formed that there was not, an unlawful assembly. The first answer embodies a fact immaterial to the issue, and the second, in effect, declares that the juror believed the accused to be innocent. In neither case will the accused be heard to complain, for they have no right to ask a question the answer to which is immaterial, nor to object to the swearing of a juror who declares his belief in their innocence. But, 48 A.-3

without further elaboration of this question, it is sufficient to say that, conceding the right of the accused to ask pertinent and proper questions on the voir dire in order to exercise intelligently and legally (Hamlin v. State, 67 Md. 337, 10 Atl. 214, 301) their right to strike from the list, we are all of opinion that, for the reasons given, no error was committed by the ruling complained of.

3. The remaining exception relates to the admissibility of certain testimony which was admitted by the court below against the objection of the defendants under the following circumstances: The defendant Warner, having testified on examination in chief to the effect that the crowd which was assembled at Lonaconing on the occasion mentioned in the indictment was neither angry nor unruly, and that he had not used certain language derogatory to the character and habits of the speaker who addressed the meeting nor of his audience, he was asked by the state whether he had not written a report or a letter describing the meeting, which was printed in a newspaper published in Indiana. He replied that he had made such a report to the newspaper indicated, and that the printed letter or report which was then offered in evidence for the purpose of contradicting him was no doubt the letter he wrote to the paper mentioned, but that he could not tell whether it was correct word for word, because he did not preserve a copy of the original. It is perfectly apparent-indeed, it is conceded-that this printed letter contradicts the witness flatly, but the contention is that the original which was sent by the witness out of the state "was not produced, its loss was not accounted for or even alleged, and that the newspaper statement was not shown to be a correct copy." This position, however, entirely ignores the testimony of the witness to the effect that the printed letter offered in evidence was substantially a correct reproduction of what he had written, and that the original was not in his possession, but beyond the jurisdiction of the court. It is clear, therefore, that, independent of the question as to whether the original letter written by the witness was correctly reproduced in the printed copy, the latter was admissible to contradict him, he having admitted its correctness, and that, inasmuch as the original was conceded not to be in his possession, but beyond the jurisdiction of the court, it would have been folly to give him notice to produce it. Nor was it possible in a criminal case to get possession of the original letter, either by commission or otherwise. Young v. State, 90 Md. 588, 45 Atl. 531. The printed letter, therefore, was admissible for the purpose for which it was offered, namely, to contradict the witness, and a general objection to it was properly overruled. Nutwell v. Tongue's Lessee, 22 Md. 443; Pegg v. Warford, 7 Md. 607. Judgment affirmed.

(92 Md. 62)

MAYOR, ETC., OF CITY OF WESTMINSTER v. WESTMINSTER SAV. BANK. (Court of Appeals of Maryland. Dec. 7, 1900.)

TAXATION - SAVINGS

BANKS SECURITIES STATUTES-FRANCHISE TAX-RECORD.

1. Code, art. 81, § 86, requires every savings bank to pay an annual franchise tax of onefourth of 1 per cent. on the total amount of deposits held by such bank, and provides that "no other tax shall be laid on such bank institution or corporation in respect to such deposits," but that its real estate shall be liable to taxation. Acts 1890, c. 491, which is made a part of section 86, as section 86a, prescribes that nothing in section 86 shall be construed as granting exemption from taxation to any property which is legally taxable, because of its ownership by a savings bank. Previous to the passage of section 86 the total amount of deposits of savings banks to be taxed had been ascertained by deducting from the gross amount of deposits the portion of the same invested in nontaxable securities. A bank had paid the tax of onefourth of 1 per cent. on its deposits, and a tax on its realty, but not a tax levied by a municipality on its securities. Held, in an action to collect the municipal tax on securities purchased with the deposits, that Acts 1890, c. 491, and Code, art. 81, § 86, must be construed together, and hence savings banks were liable to a franchise tax of one-fourth of 1 per cent. on the total amount of their deposits, without any deduction for the portion invested in nontaxable securities, and therefore the tax on the securities was void.

2. Where the record shows that a savings bank has capital stock which is subject to taxation, no recovery of the tax can be had where the record does not show that the assessment and levy were such as the law required.

Appeal from circuit court, Carroll county. "To be officially reported."

Action by the mayor and common council of the city of Westminster against the Westminster Savings Bank to collect the municipal tax levied on the bank's securities. From an order sustaining a demurrer to the replication, plaintiff appeals. Affirmed.

Argued before McSHERRY, C. J., and FOWLER, BOYD, PAGE, PEARCE, and SCHMUCKER, JJ.

Chas. E. Fink and John M. Reifsnider, for appellant. Chas. T. Reifsnider, E. Oliver Grimes, and Bond & Parke, for appellee.

SCHMUCKER, J. The appellant is a municipal corporation having power under its charter to tax for municipal purposes all property within its corporate limits which is subject to assessment for state and county taxes. In the attempted exercise of this power the appellant levied a tax for the years 1896, 1897, and 1898 upon the real estate of the appellee, which is a savings bank, and also upon its securities, consisting of stocks, bonds, bills receivable, and judgments in its favor. The appellee, having paid the tax of one-fourth of 1 per cent. on the total amount of its deposits imposed on it by section 86 of article 81 of the Code, also paid the municipal tax on its real estate, but refused to pay that levied upon its securities. The appellant thereupon brought the present suit to recover the municipal tax levied upon

the securities. The appellee demurred to the declaration, and, its demurrer having been overruled, it set up by pleas, as a defense to the action, the payment by it of the tax of one-fourth of 1 per cent. on its deposits, and of the municipal tax on its real estate, and its pleas averred that the securities which the appellant sought to tax consisted of investments purchased with the deposits, on which it had already paid the tax of one-fourth of 1 per cent. To these pleas the appellant demurred, and, its demurrer having been overruled, it filed replications, asserting that the levy of the taxes sued for was not based or made upon the amount of deposits in the appellee's custody, or upon such deposits invested, and denying that the securities assessed represented solely investments of deposits, but insisting that a portion of the securities assessed represented investments of $10,000 of capital stock and $16,514 of surplus. The appellee demurred to these replications, and the court sustained the demurrer, and this appeal was taken from the order sustaining the demurrer.

The main question presented by the record is whether the payment by the appellee of the tax of one-fourth of 1 per cent. on its total deposits relieved it from liability to taxation upon the securities in which these deposits were invested. Section 86 of article 81 of the Code requires every savings bank to pay annually what is there designated as a "franchise tax," "to the amount of one fourth of one per centum on the total amount of deposits held by such savings bank," and declares in unequivocal language that "no other tax shall be laid on such bank institution or corporation in respect to such deposits," but provides that its real estate shall be liable to assessment and taxation. Section 86a of article 81, which is Acts 1890, c. 491, contains the provision that "nothing in section 86 of this article relating to savings banks or savings institutions or corporations shall be construed as granting exemption from taxation to the shares of any bank or other corporation or to any other property taxable under the laws of this state by reason or on account of its ownership by a savings bank, institution or corporation of this state." No such provision appeared in the law prior to the passage of the act of 1890. Section 86 of article 81 originated in Acts 1847, c. 266, and ever since the date of that act the state has pursued the uniform policy of accepting the total amount of interestbearing deposits held by savings banks as the true measure of value of the property, exclusive of real estate, on which it has required those institutions to pay taxes. During all of that long period the law, with some variations in its details, has required the savings banks to annually report to an appropriate state officer their total deposits, and the amount so reported has been treated as an assessment, and the tax levied thereon. This method of taxation of savings banks received

the careful consideration of this court in the case of State v. Sterling, 20 Md. 502, and it was upheld and declared to be in conformity with both the letter and spirit of the thirteenth article of the declaration of rights. In that case, in an able and exhaustive opinion, it was held that this system of taxation "proceeds upon the theory that deposits in a savings bank, for which interest-bearing certificates have been issued, without regard to the character or form they may have as sumed by investment, belong to the depositors, *" and that the law, "in providing for the taxation of that species of property, necessarily assumes such deposits and the investments, from the revenue of which the interest is payable, to be one and the same thing.". Sterling's Case has been cited and relied upon in several more recent decisions. A savings bank does not permanently retain its deposits in the form in which they are received, but it invests them, for the purpose of producing a revenue with which to pay interest to its depositors, and thereafter the securities in which the investments have been made represent the deposits. When, therefore, a tax, such as the one now under consideration, is levied upon the securities so purchased by the savings bank, it is, in substance and essence, a tax upon its deposits, and falls obviously within the description "tax in respect to deposits," as used in section 86. In State v. Central Sav. Bank, 67 Md. 292, 10 Atl. 290, 11 Atl. 357, the majority of the court inclined to the view that the tax of one-fourth of 1 per cent. of gross deposits imposed on savings banks was to be regarded as a franchise tax, rather than as one upon the property in which the deposits were invested. After the decision in that case was made public, section 86 was so amended by Acts 1888, c. 242, as to call that tax a "franchise tax," but it is apparent that the legislature still regarded it as a tax in respect to deposits; for the same act introduced for the first time into section 86 the proviso that no other tax in respect to deposits should be laid upon savings banks. It thus becomes apparent that, whether the tax of one-fourth of 1 per cent. on the deposits is to be regarded, in the strict sense, as imposed upon the deposits, the franchise, or the investments, it also is a tax in respect to the deposits, within the meaning of section 86. It therefore follows that to permit the appellant to collect from the appellee the tax now in question, which was levied upon the securities in which its deposits are invested, would amount to a violation of the proviso contained in section 86, that no other tax shall be laid on savings banks "in respect to such deposits." Prior to Acts 1888, c. 242, which designated the tax of one-fourth of 1 per cent. on the deposits as a "franchise tax," it had been the practice, in ascertaining the amount of deposits of savings banks to be taxed, to allow to the bank a deduction from the gross amount of deposits equal to the

portion thereof invested in nontaxable securities, and the propriety of making such deduction under the law as it then stood was upheld by both Sterling's Case and that of the Central Savings Bank. The legislature passed Acts 1890, c. 491 (now section 86a), for the purpose, as declared in its preamble and in its enacting clause, not of repealing section 86, but of adding a section thereto. This new section contains the proviso which gives rise to the present controversy. This proviso, which we have already quoted in full, declares, in substance, that nothing in section 86 shall be construed as granting exemption from taxation to any property which is legally taxable, because of its ownership by a savings bank. The appellant contends that the purpose of this proviso was to render savings banks which have paid the one-fourth of 1 per cent. tax on the whole amount of their deposits liable also to state, county, and municipal taxation upon the securities in which the deposits are invested. We say state, county, and municipal taxation, because the appellant is authorized by its charter to tax only such property as is already liable to taxation for state and county purposes. We cannot give our support to this contention, because, if upheld, it would not only emasculate the exemption from other taxation granted to savings banks by section 86, but would also reverse the policy which the state has for more than half a century pursued towards this useful and valuable class of institutions, and would load them with heavier burdens than are imposed upon any other portion of the community. Section 86a does not repeal section 86, and therefore the two sections must, if possible, receive such construction as will enable them to stand together. This can be done without violence to either section by interpreting them, when taken together, to intend that savings banks must pay the franchise tax of one-fourth of 1 per cent. on the total amount of their deposits, without any deduction for such portions of the deposits as are invested in property which is nontaxable, or upon which other persons or corporations are required by the laws of this state to pay taxes, and that such other persons or corporations as are required by law to pay the taxes on those investments shall not be entitled to exemption therefrom by reason of the ownership of the property by a savings bank. Familiar illustrations of classes of property falling within this description are stocks of corporations chartered by this state, upon which the law requires the corporation to pay the taxes; also, ground rents, in reference to which the law requires the owner of the leasehold estate in the lot out of which the rent issues to pay the taxes upon the entire assessed value of the property, including both the leasehold estate and the reversion. Prior to Acts 1888, c. 242, it was held, in the Central Sav. Bank Case and in Sterling's Case, that such taxation would be double

taxation on the same property. That act was apparently passed, defining the tax paid by the savings banks as a franchise tax, as distinguished from a tax directly upon the property, in order to remove the objection of double taxation in reference to the classes of property which we have last mentioned. The passage of Acts 1890, c. 491, was simply another step taken in the same direction by the legislature.

Mention is made in the record of capital stock to the extent of $10,000 and a surplus of $16,514 belonging to the appellee. Its charter is not in the record, nor does it appear what the facts in that connection are. If these funds are in fact true capital stock and surplus, separate and apart from, and in addition to, the deposits held by the appellee, they are liable to taxation on the $10,000 of capital, in the same manner as the capital stock of other corporations chartered by this state, and the surplus will be taken into consideration by the state tax commissioner in estimating the assessable value of the stock. But, as the record in the present case does not show such an assessment and levy as the law requires in reference to the stock of corporations chartered by this state, there can be no recovery of that tax in this suit. From what we have said, it follows that the order appealed from must be affirmed.

1. Under Code, art. 16, § 120, providing that no order shall be issued on any bill until all exhibits referred to as part thereof are actually filed with the clerk of court, it was error to enter a decree on a petition alleging a trust under a certain will before a copy of the will was filed.

2. On a petition alleging that plaintiff had executed a certain mortgage to a trustee, which was due, but that on plaintiff's tendering payment the trustee refused to execute a release in proper form, and praying that plaintiff be allowed to pay the money into court, it was error to issue an order restraining the trustee from foreclosing, where plaintiff had not yet filed a copy of the alleged mortgage with the clerk of court.

3. Where plaintiff executed a mortgage to a trustee, which was due, but the trustee, on beIng tendered payment, refused to execute a release in proper form, plaintiff was entitled to pay the money into court and enjoin the trustee from foreclosing.

Appeals from circuit court of Baltimore city; Henry Stockbridge, Judge.

"To be officially reported."

Bill by H. Lee Clarke and others against Thomas C. Chappell, individually and as trustee. From the decree in plaintiffs' favor, defendant prosecutes two appeals in one record. Reversed.

Argued before MCSHERRY, C. J., and JONES, PEARCE, FOWLER, and SCHMUCKER, JJ.

Bernard Carter, for appellant. Wm. J. O'Brien and Gans & Haman, for appellees.

MCSHERRY, C. J. This record brings up two appeals from two orders of circuit court No. 2 of Baltimore city. The proceedings which resulted in the passage of these orders were commenced by a bill of complaint filed by the appellees against the appellant. The bill asked the circuit court to assume jurisdiction of a certain trust, and it prayed that Thomas C. Chappell be required to give bond as trustee, and that he be restrained from receiving or investing any of the funds of the trust estate until he first filed a duly-approved bond. The trust is alleged to have arisen under the will of Philip S. Chappell. An extract from the will is quoted in the bill of complaint, but a certified copy of the will was not filed with the bill, though leave was asked to file one later on. On the same day that the bill was filed the court took jurisdiction of the trust, and passed an ex parte order requiring the trustee to give bond in the sum of $100,000, and granted the injunc tion prayed for. The appellant demurred to the bill, and then entered an appeal from the order granting the injunction and requiring the bond. It is apparent that the proceedings were hurriedly carried through, and the well-known litigious character of the appellant may have induced the court to act with unusual promptness; but there was an error committed in directing any process to be issued before the exhibits referred to in the bill had been actually filed. The fourth equity rule, which is now the statute law of the state (Code, art. 16, § 120), provides that "no order or process shall be made or issued upon any bill, petition, or other paper, until such bill, petition, or other paper, together with all the exhibits referred to as parts thereof, be actually filed with the clerk of the court." In the face of this explicit declaration, it was obvious error to pass the or der requiring a bond and directing an injunction to be issued. The order must therefore be reversed, but, as the exhibit has been now filed, a new writ may be issued as soon as the record reaches the court below.

By a petition filed in the cause two days after the bill had been filed, it was alleged that a co-partnership of which the petitioner was the surviving member had some five years previously executed a mortgage for $20,000 to Thomas C. Chappell, trustee, upon certain real estate lying in Anne Arundel county; that the mortgage was due and payable; that the petitioner had tendered the money to Chappell, who had refused to execute a release of the kind demanded by the petitioner; and that Chappell had thereupon proceeded to advertise the mortgaged property for sale. The petitioner then prayed for leave to pay the $20,000 into court, and asked that an injunction might be issued, restraining Chappell from proceeding to foreclose the mortgage. An order was forth.

with passed granting the relief so prayed. The petition makes no exhibit of the mortgage. To this petition a demurrer was also interposed, and an appeal was taken from the order. There was error in passing this order. There was no copy of the mortgage exhibited with the petition, and the circuit court was not warranted in granting an injunction to restrain the foreclosure of the mortgage without having a copy of that mortgage before it. The right of the petitioner to pay the mortgage, the amount which he was obliged to pay, and the date of the maturity of the debt were all matters which could have been determined by an inspection of the mortgage. It was obviously incumbent on the petitioner to have filed such an exhibit. Though the order must be reversed, the peti. tion can be amended, and the relief sought can then be granted. The mortgage debtor has a right to pay the money into court if the trustee refuses to execute a proper release of the mortgage, and he has equally a right to restrain the sale of the property after the money has been paid into court. These orders are reversed upon purely technical grounds. The errors which constrain us to direct a reversal are errors which undoubtedly resulted from the haste with which the papers in the case were prepared, but they do not go to the merits of the controversy. Because these appeals involve none of the merits of the contention between the parties, we shall not put the costs incurred in this court upon the appellees, but will order them to await and abide the final result. Orders in both appeals reversed, and cause remanded; the costs to await and abide the final result.

(92 Md. 47)

THISTLE MILLS CO. OF BALTIMORE COUNTY v. BONE et al. (Court of Appeals of Maryland. Dec. 7, 1900.) SPECIFIC PERFORMANCE OPTION TO BUY RIGHTS OF HOLDER-EVIDENCE-EQUITY. 1. Plaintiff asked for specific performance of a contract for sale of land to it, and showed a receipt for a part of the price, which was unconditional in terms, and which plaintiff's agent who received it testified was given by defendant unconditionally. Defendant testified positively that it was given on condition that a conveyance would follow, provided a certain party who had an option on the land did not exercise it. It appeared that plaintiff knew there was an outstanding option. Held, that the evidence did not sufficiently establish that the transaction was unconditional.

2. Where plaintiff made payment on a contract for sale of land to it, and took a receipt therefor, knowing that the vendor had given an option to some party to purchase the land, which was still outstanding, and it appeared that such party had decided to exercise his option, and attempted to notify plaintiff at the time it made its payment, the third party had such equity that plaintiff was not entitled to specific performance, independent of whether plaintiff's contract with the vendor was conditioned on the nonexercise of the option or not, or whether such third party's contract was enforceable.

Appeal from circuit court, Baltimore county, in equity; David Fowler and N. Charles Burke, Judges.

"To be officially reported."

Bill by the Thistle Mills Company of Baltimore County against John M. Bone and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Argued before McSHERRY, C. J., and BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ.

Barton, Wilmer, Ambler & Stewart, for appellant. C. B. Slingluff, Jesse Slingluff, and Wm. L. Marbury, for appellees.

JONES, J. This is an appeal from a decree of the circuit court for Baltimore county dismissing the bill of the appellant, a corporation, which was filed in that court, to have enforced the specific performance of a contract which the appellant alleged it had made with the appellee John M. Bone for the sale to it by the said Bone of certain real property referred to in the bill. The alleged contract was evidenced by a written paper, which was set out in the appellant's bill, and is as follows: "Ellicott City, Md., 18, '99. Received of Thistle Mills Company, through Robert P. Deal, check for two hundred and fifty dollars as deposit on sale of mill, water power, land in Howard county, and houses below mill, the sum of six thousand dollars being purchase price. [Signed] John M. Bone." After alleging the making of the contract set out therein, the bill states that shortly after the making of the same the appellant was notified by letter from the appellee Bone that he had sold the property referred to in the contract to other parties, and would be unable to carry out the agreement made with the appellant; and that when the letter conveying this notification was received the appellant "was preparing to examine the title to the said property, and, upon finding the same clear and unincumbered, to make payment to the defendant Bone of the balance due under said contract of sale." bill was filed on the 24th of November, 1899, against John M. Bone as sole defendant. On the 5th of December following the appellee James H. Gaither intervened by petition in the case, alleging that on the 18th day of November, 1899, he had purchased from the appellee John M. Bone property which included that mentioned in the bill of complaint in the cause for the sum of $14,000, and had paid $250 as part of the purchase price. For the terms of his contract of purchase and the circumstances under which it was made he referred to the answer of the appellee Bone, which was filed on the same day as the petition. He then asked to be made a party defendant in the cause with leave to answer and make defense for the protection of his rights. He was accordingly made defendant by order of the court. The answer of John M. Bone denies "that he ever

The