or employés on the said respective lands as to which is the line between the plaintiffs' and defendants' lands"; and we think there was no error in the legal proposition asserted. Such evidence was allowed in Redding v. McCubbin, 1 Har. & McH. 368, and in Howell v. Tilden, 1 Har. & McH. 84. It was not admitted in Medley v. Williams, 7 Gill & J. 67. though the court said it should be received "where more certain and positive evidence is not likely to exist." In Tyson v. Shueey, supra, it was objected that the lines, boundaries, and location of Greyhound Forest could not be established by general reputation; but the court overruled the objection, saying that the decisions cited to sustain the objection were prior to Acts 1852, c. 177 (now section 22, art. 75, Code Pub. Gen. Laws 1904), providing that lands may be described in declarations of ejectment or trespass by any name acquired by reputation, and the court added: "If a party may declare upon the name which the land has acquired by reputation, by what possible means, or by what species of evidence, can be sustain the allegation except by resorting to proof of that very reputation which established the name?" The weight of authority in this country, both in the state and federal courts, is strong to the same effect. 5 Cyc. 957, 958; Boardman v. Reed. 6 Pet. 328, 8 L. Ed. 415; Clement v. Packer. 125 U. S. 321, 8 Sup. Ct. 907, 31 L. Ed. 721; Ayers v. Watson, 137 U. S. 596, 11 Sup. Ct. 201, 34 L. Ed. 803. And the reasons given in Tyson V. Shueey, and elsewhere, for the rules, are sound and satisfactory.

line has no given distance, and its only call is for the main horse road, the location of which is the very thing here in controversy, and the reasoning of the prayer goes in a circle. Moreover, the reference to the Porter's Lodge lot as a terminus of the southwest line is a sufficient reason for refusing the prayer, since that lot is nowhere located, and it is impossible for the jury to know or even to conjecture where its north or south line is to be found.

There was error also in granting the defendants' fourth prayer. There was no paper title or color of title shown by the defendants in the place of trespass; but the plaintiffs did produce an unbroken paper title to the place of trespass if it lies within the lines of Godfrey's deed to Mrs. Peters. Hence the possession of the place of trespass by the defendants or their predecessors in title must have originated in tort, and this prayer permits tort-feasors to tack their wrongful possessions so as to constitute adverse possession, and it is settled that this cannot be done. This prayer also permits the jury to find adversary possession of the place of trespass by the defendants from "acts of user and ownership over the same in selling and cutting timber therefrom"; but this is not evidence of adversary possession. Waterman on Trespass, vol. 2, p. 9 (1st Ed.). note on cutting timber. Gent v. Lynch, 23 Md. 65, 87 Am. Dec. 538. In that case Judge Bartol said: Cutting and selling wood from time to time "are mere successive acts of trespass, nothing more." And so in Parker v. Wallis, 60 Md. 19, 45 Am. Rep. 703, where the acts relied on were to dig and sell sand from time to time, the court said: "The entries thereon for that purpose were but successive acts of trespass against the true owner if he was not owner himself."

We shall request the reporter to set out the defendants' fourth and sixth prayers in full, that their discussion may be more readily understood.

For the errors indicated, the judgment must be reversed.

We think defendants' sixth prayer ough not to have been granted. Its theory is that if the east line of plaintiffs' land, being the southwest line from "A" to the main horse road, ended at the north side of the Porter's Lodge lot, and did not cross over and extend to the south side thereof, then the location of the main horse road made by the plaintiffs is not the true location of that road; but the vice of that prayer is that Porter's Lodge lot is nowhere located on the plat, and there is nowhere in the record any evidence of its outlines or dimensions. The evident purpose of the prayer is that, if the jury find this southwest line stops at "U" on the plat, and does not extend to "B," then the plaintiffs' location of the main horse road is not the true location; but this is merely McGAW v. ACKER, MERRALL & CONDIT saying, if the southwest line only runs to the defendants' location of the main road, then the plaintiffs' location cannot be the correct one. That proposition might be tenable, if

Judgment reversed, with costs to the appellants above and below, and new trial awarded.

CO.

(111 Md. 153)

(Court of Appeals of Maryland. June 30, 1909.) 1. TRIAL (§ 252*) — INSTRUCTIONS-EVIDENCE TO SUPPORT.

A prayer for instructions not supported by the evidence is properly refused.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 596-612; Dec. Dig. § 252.*]

this southwest line called for a distance marked by a well-defined and well-established visible object such as a marked stone, or notable tree, and if that distance, when it reached that object, should locate the object upon the line of the main road as loThe general rule is that costs and expenses cated by the defendant; but that southwest of litigation, other than the usual and ordinary For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

2. DAMAGES (§ 73*)-COSTS AND ATTORNEY'S

FEES.

Appeal from Superior Court of Baltimore Baltimore of the plaintiff; and it further City; Alfred S. Niles, Judge.

Plaintiff's granted prayers, referred to ir the plaintiff received notice that the said the opinion, are as follows:

Plaintiff's fourth prayer: "The plaintiff prays the court to instruct the court sitting as a jury that, if it find that the defendant, George K. McGaw, occupied the position of local manager in the city of Baltimore of the plaintiff, and was a director of the company at the time he procured the lease in his own name on the 25th day of October, 1905, as set forth in the first prayer, if it so find, and it further find that under the facts as recited in said prayer said McGaw assigned the lease to the plaintiff, and after the said assignment the said McGaw failed to make any effort whatever to secure or procure the consent of the lessors to said assignment, but on the contrary, authorized Messrs. Warden and Hopper to use his name as a guarantor of an offer of a higher rent made by the said Warden and Hopper to the said trustees, if the jury so find, and that by reason of the said action on the part of the said McGaw, the trustees having the said higher offer, guaranteed as aforesaid, declined to assent to the said assignment, but required the plaintiff to pay a higher rent, then in that event the plaintiff is entitled to recover."

the said McGaw said excess of rent so agreed | causes of action contained in the declarato be paid, together with such reasonable tion in the former case, and the third count costs and expenses as the jury may find the assigns a new ground of action. Briefly statplaintiff incurred in procuring a new lease ed, the causes of action relied upon in the of the said premises." respective counts of the narr. in this case are: First, that the defendant committed an actionable wrong in taking the lease in his own name, when he could and should have taken it in the name of the plaintiff; secondly, that he refused to make any effort to procure the consent of the trustees to the assignment of the lease to the plaintiff, but permitted himself to be used as a guarantor for an increased offer of rent for the premises made by Hopper and Warden; thirdly, that it was the duty of the defendant to aid the plaintiff in procuring the assent of the trustees to the assignment of the lease, and that he refused to aid them, whereby loss accrued to the plaintiff. The first and sec ond counts set out causes of action identical with those contained in the declaration which appeared in the record on the former appeal. In the trial of that case the lower court directed a verdict for the defendant, upon the ground that there had been no evidence offered legally sufficient to entitle the plaintiff to recover. We held that there was legally sufficient evidence to support both causes of action upon which the plaintiff relied in that case, which, as we have stated, are set out in the first and second counts in the declaration appearing in this record. Upon the new trial the plaintiff recovered a judgment, and the defendant has brought this appeal. The record contains no exceptions to the ruling of the court upon questions of evidence. At the close of the whole case the plaintiff offered 7 prayers, and the defendant 14, for instructions. The defendant filed special exceptions to the plaintiff's first, third, and fourth prayers. The court overruled the special exceptions, and granted the plaintiff's first, second, third, and fourth prayers, and rejected its fifth, sixth, and seventh. The defendant's twelfth prayer was conceded, and all its other prayGeorge Weems Williams and Frank Gos- of the court upon his prayers and special exers were refused. He excepted to the ruling nell, for appellant. John E. Semmes, for appellee.

And the defendant's twelfth prayer, as referred to in the opinion, was as follows:

Defendant's twelfth prayer: "That unless the court sitting as a jury shall find from the evidence that damage was caused the plaintiff corporation by the defendant's taking the lease of the premises known as No. 220-222 North Charles street in his own name, or by his failure to promptly assign said lease (if the court sitting as a jury shall find such failure), the verdict of the court sitting as a jury should be for the defendant."

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, THOMAS, and HENRY, JJ.

ceptions, and this constitutes the only exception before us.

BURKE, J. By this appeal the pending The reporter will set out the plaintiff's case is brought before us for the second granted prayers, and also the defendant's time. The first case is reported in 106 Md. twelfth prayer. The defendant's first, sec536, 68 Atl. 17. The declaration in that ond, third, fourth, sixth, eighth, thirteenth, suit contained two causes of action incor- and fourteenth prayers concluded in some porated in one count. It was alleged that instances against the right of the plaintiff the defendant had committed two breaches to recover, and in others denies his right of duty which he owed to the plaintiff, to recover upon certain counts of the decwhereby in each instance it suffered loss. laration. They raised practically the same This defect in the declaration was noticed questions presented by the special exceptions in the opinion of this court; and, as the to the plaintiff's prayers. judgment was reversed and the case remand- The court was asked by the defendant's ed, it was said that the declaration could be fifth prayer to tell the jury that, inasmuch amended before the retrial of the case. It as the uncontradicted evidence showed that was accordingly amended. The narr. in the all relationship between the plaintiff and present case contains three counts. The the defendant terminated on the 8th of Defirst and second counts declare upon the two cember, 1905, the defendant was not liable

for anything he did, or omitted to do, after | true, he must be held liable for such loss as that date. This prayer was not supported the plaintiff thereby incurred.

by the evidence, and was properly refused. Mr. McGaw did not sever his relation as a director of the plaintiff corporation until January 13, 1906, and for any actionable breach of duty committed by him as such director he was liable. The defendant by his seventh prayer asked the court to rule, as a matter of law, that there was no evidence legally sufficient to show that when the defendant secured the lease in his own name, he could have secured a similar lease for the plaintiff corporation at the same rental. This prayer was properly rejected for reasons which will be presently stated. His eleventh prayer asserts, but states no legal conclusion, that the uncontradicted evidence shows that the defendant was at no time authorized to take the lease of the premises in the name of the plaintiff corporation. While it is true the defendant was not ex

pressly told to rent the premises and take the lease in the plaintiff's name, there is ample evidence from which a jury might have found that he had authority to do so.

The prayer was not only indefinite and inconclusive, but was misleading, and it tended to divert attention from the real issues made by the pleadings. The evidence produced in support of the plaintiff's case is substantially the same as that contained in the record on the former appeal. It is in no essential particular different. Assuming that the court was right in rejecting the defendant's ninth and tenth prayers, a ref

erence to the statement of facts contained

The plaintiff's second prayer is said to be objectionable because it allows the recovery of such reasonable and necessary costs as the plaintiff was put to in procuring the new lease.

These costs consisted of a counsel fee of $250 paid Mr. Steele, and certain expenses incurred by officials of the plaintiff company in procuring the leasehold title to the premises. The counsel fee and costs which the court allowed the plaintiff to recover are not the counsel fees and costs involved in this litigation, but such only as were incurred in securing the new lease in its name after the defendant had, as alleged, wrongfully secured in his own name a lease of the property. These expenses were paid by the plaintiff and proven at the trial, and it is not denied that they were reasonable, and there seems to be no doubt that they were necessarily incurred. The general rule is that costs and expenses of litigation, other than the usual and ordinary court costs, are not recoverable in an action for damages, nor

are such costs even recoverable in a sub

sequent action; but, where the wrongful acts of the defendant have involved the plaintiff in litigation with others, or placed him in such relations with others as make it necessary to incur expense to protect his interest, such costs and expense should be treated as the legal consequences of the dence be true, it was about to lose possession original wrongful act. If the plaintiff's eviof the premises by the wrongful act of the in the opinion in the former case, and to defendant, and it was obliged to employ the conclusion reached by the court, is suffi- professional aid and incur expense to retain cient to show that the trial judge committed possession of the premises to which, as beno error in granting the plaintiff's first and tween itself and the defendant, it was enfourth prayers. Those prayers are based titled, and the necessary expenses it incurred upon the first and second counts of the to regain the possession is an element of the amended declaration, which set up the pre-injury. Hadley v. Baxendale, 9 Exch. 341; cise causes of action alleged in the narr. in Furstenburg v. Fawsett, 61 Md. 191, 192; the former case, and we there said that the City Passenger Railway Co. v. Kemp, 61 Md. evidence was legally sufficient to be submit- 75; Webster v. Woolford, 81 Md. 329, 32 Atl. ted to a jury in support of both causes of 734; 1 Sutherland on Damages (2d Ed.) § 58. action. We, therefore, hold that the deci- The other objection to this prayer is disposed sion in the former case is conclusive of all of by what we have said in passing on the questions raised by the special exceptions first prayer of the plaintiff. and prayers of the defendant to take the case from the jury for lack of legally sufficient evidence to support either of these counts.

The evidence produced on behalf of the defendant.on the retrial of the case consisted of that of Mr. McGaw, Frank W. Hopper, and certain extracts from the minute book of the plaintiff corporation. We find nothing in this evidence to induce us to hold that the principles announced in the former case should not be applied to this. It is fair to say that Mr. McGaw was not conscious of any intentional wrongdoing, and that he believed he had a perfect right to do what he did do; but, if the facts stated either in

It clearly appears that the defendant was not injured by the granting of the plaintiff's third prayer. That prayer is based upon the third count of the declaration, and it is shown that the verdict and judgment were entered under the first count, and that the court would not have found for the plaintiff under either of the other counts. If, therefore, there were error in granting that prayer, and we are not to be understood as so deciding, it was not reversible error, as no harm whatever was done to the defendant, and this is likewise true of the asserted inconsistency between the defendant's twelfth prayer, which, being conceded, became the law of the case (Gans Salvage Co. v. Byrnes,

272), and the third and fourth granted pray- | cy, and the M. lodge refused them because it ers of the plaintiff.

The defendant's ninth prayer asked the court to declare that upon the uncontradicted evidence in the case the trustees of the estate of John and James Gregg participated in the defendant's wrongful act in securing the lease in his own name. It is argued that, as the trustees, with full knowledge, participated in the defendant's violation of duty, a resulting trust was thereby created in favor of the plaintiff, which it could have enforced against the trustees and Mr. McGaw, and therefore there was no necessity for the pay ment of the increased rent. The defendant's tenth prayer rests upon the same proposition. It may well be conceded that Mr. McGaw held the lease of October 26, 1905, as trustee for the plaintiff, and that it could have compelled him to assign it; but the uncontradicted evidence does not show that the trustees knew that the defendant was violating his duty to the plaintiff at the time they executed the lease, or that they participated in any breach of duty which may have been committed by the defendant. On the contrary, it tends to show that their conduct was in all respects fair and proper. There is certainly nothing in the conduct of the trustees that would authorize the court to hold, as a matter of law, that the defendant was thereby relieved of liability in this suit.

We find no reversible error in any of the rulings of the trial court, and the judgment appealed from will be affirmed. Judgment affirmed, with costs.

(111 Md. 95)

DAGUE v. GRAND LODGE BROTHER-
HOOD OF RAILROAD TRAINMEN.

(Court of Appeals of Maryland. June 29, 1909.)
1. INSURANCE (§ 754*)-MUTUAL BENEFITS-
FORFEITURE-PAYMENT OF DUES.

Plaintiff's dues for January were sent by mail, as was the custom of absent members, and the letter was taken to the house of the financier of the subordinate lodge. The house was found locked, and the letter was taken back to the post office, and notice sent to the financier, who did not call for it until January 15th. In the preceding month of December plaintiff had been transferred to another lodge, which thereafter refused his dues because it had not accepted the transfer, and the transferring lodge thereafter refused his dues because of his alleged delinquency. Held, that the default was due to the negligence of the local officer, and the company could not avail itself thereof to evade payment under the certificate.

had not accepted the transfer. The officer of the C. lodge told him that a mistake had been made in suspending him, and that he thought the lodge would readmit him, and he filled out and returned a blank given him for readmission. He was notified to attend the C. lodge not stated, and his work carried him to a dison a certain date, but the reason therefor was tant city on the date mentioned. Afterwards he attempted to join another lodge, but was rejected for physical disqualification, and he wrote a letter requesting that the dues which had been received after his expulsion be refunded. Held that, as plaintiff did not know what his rights were, and was pursuing such course as he was rights, he had not waived the illegality of his advised was proper for the restoration of his expulsion.

[Ed. Note.-For other cases, see Insurance, Dec. Dig. § 747.*]

3. INSURANCE (§ 825*)-EXPULSION-WAIVER -QUESTION FOR JURY.

Where the question whether a member of an insurance order had waived the illegality of his expulsion, depended on parol evidence of facts and circumstances it should be determined by the jury.

[Ed. Note. For other cases, see Insurance, Dec. Dig. § 825.*]

4. INSURANCE (8 805*)-MUTUAL BENEFIT RIGHT OF ACTION-CONDITIONS PRECEDENT.

Where defendant in a mutual benefit insurance society denied its liability, disallowed the board, insured had a right to bring suit, and declaim, and refused appeal to the beneficiary fendant was estopped to rely on the provisions of the constitution relating to appeal, or to proofs of loss.

[Ed. Note.-For other cases, see Insurance, Dec. Dig. § 805.*]

Appeal from Circuit Court, Allegany Coun. ty; M. L. Keedy, Judge.

Action by Harry D. Dague against the Grand Lodge Brotherhood of Railroad Trainmen. From a judgment for defendant, plaintiff appeals. Reversed.

Argued before BOYD, C. J., and PEARCE, SCHMUCKER, BURKE, WORTHINGTON, and THOMAS, JJ.

Walter C. Capper, for appellant. Austin A. Wilson, for appellee.

BURKE, J. The appellee is a voluntary incorporated organization doing business in this state. It consists of a grand lodge, with headquarters located at Cleveland, Ohio, and subordinate lodges holding charters granted by the Grand Lodge. The object of the organization is to unite the railroad trainmen, and to promote their general welfare. It issues three classes of beneficiary certificates known as Classes A, B, and C. The constitution provides that each class shall be evidenced by a beneficiary certificate, to be issued under the hands of the grand master and grand secretary and treasurer, Plaintiff sent his dues by mail to the C. and in the name and under the seal of the lodge, of which he had been a member, but they Grand Lodge. Each certificate shows the were not received because of the absence of the class in which it is issued, and provides for local officer. In the preceding month plaintiff. the payment, in accordance with the constiwithout his knowledge or consent, had been tution of the order, of the full amount of transferred to the M. lodge. The C. lodge refused his dues because of his alleged delinquen- such class upon the death of the insured For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

[Ed. Note. For other cases, see Insurance, Dec. Dig. § 754.*]

2. INSURANCE (§ 747*)- EXPULSION-WAIVER -ILLEGALITY.