Mr. Hamburger for rent of the property, | Mrs. Slingluff. On July 5, 1905, Mr. Felgner which he claims was to be applied to the received the purchase money for the portion principal. The letter of Mr. Slingluff of of the property sold to the Western Maryland March 1, 1902, admitted that there was inter- Railroad Company, and Mr. Slingluff then est due, which would seem to corroborate Mr. asked for a statement. Mr. Felgner replied Dillehunt. In that letter Mr. Slingluff made on November 17, 1905: "Your favor of the a proposition to make a deed for the proper- 15 inst. addressed to Mr. H. B. Dillehunt was ty which Mr. Dillehunt was to hold until handed to me. In compliance with same, you April 1st, and if the interest was in the mean- will please find inclosed a statement of your time paid, the deed was to be returned; and, account, which I hope you will find correct. if it was not paid, they were to surrender The calculations were made to July 5th, the possession. No deed was then made, but the date of the settlement of the Western Maryinterest was paid on April 4, 1902, to Novem-land Railroad for the rest of the property." ber 1, 1901. On June 30th Mr. Dillehunt That statement is headed, "Mr. H. Slingluff wrote to Mr. Slingluff that he would adver- in acct. with E. L. Felgner," and begins with tise the property in the next issue of the amount of mortgage of May 1, 1901 (which is Maryland Journal, but it was not done, and stated to be $29,095), and concluded with an on July 14th he wrote again, saying that Mr. interest charge as of July 5, 1905, credits him Felgner would wait until September 1st for with various amounts including cash, life inthe interest, which was that due on May 1st. surance, rent, interest from C. D. Fitzgerald, Then on October 11th he wrote the letter in- cash from Fitzgerald on March 10, 1905, of closing the deed for execution, which we have $27,120, and cash sale to Western Maryland quoted above. That deed was not executed, and Railroad of July 5th, $5,812.50. It is imposthe property was advertised for sale in No-sible to understand why he would thus have vember, but was withdrawn. Some time during the fall of 1902 Mr. Slingluff commenced negotiating with Dr. Geer, who was desirous of purchasing the property for use as a sanitarium. Those negotiations continued during that fall and winter, and Dr. Geer agreed to pay $30,000 for the house and 64 acres of ground. The Slingluffs, who still occupied the property, moved out about June 15, 1903, and Dr. Geer took partial possession, but residents of the neighborhood objected to a sanitarium being there, and Dr. Geer was un-charges and credits there was still a balance, able to consummate the sale. Mr. Dillehunt testified that Dr. Geer and Mr. Felgner executed an agreement for the sale of that part of the property, and negotiations were. then pending with the Western Maryland Railroad Company for the part it subsequently purchased.

written to Mr. Slingluff and have kept the account with him if the agreement was not such as the plaintiff contends. It was doubtless kept in the name of H. Slingluff by reason of the fact that the original mortgage stood in that name, and not in that of Mrs. Slingluff. There certainly could be no reason for charging the Slingluffs with interest up to the day the last purchase money was received if the understanding was not such as that claimed by the plaintiff. According to his

which he carried forward, as follows: "1905, July 5, Balance due me $1,409.46"—showing that he claimed that they then only owed him that amount, and not the balance found in the audit, as now relied on in this case. We are satisfied that there was an agreement such as was contended for by the plaintiff,

of the property doubtless induced the Slingluffs to assign the policy of life insurance, to spend money and time in making it more salable, to subject themselves to many annoyances, and finally to make a deed for it. We will now consider the items in controversy.

Mr. Dillehunt also testified that Mr. Sling-and the expectation of getting something out luff had nothing to do with the property after the Geer sale fell through, but Mr. Slingluff denies that, and said that he was negotiating with Mr. Allan McLane at the time Mr. Dillehunt sold the house and 64 acres to Mr. Fitzgerald, which was in November, 1903. Of course Mr. Slingluff had nothing to do 6. The first one we will consider is the with the property after that. But in addition Hutzler rent. The theory of the bill is to the testimony of the Slingluffs, and some that when the mortgage of May 1, 1901, was strong corroborating facts, such as their oc- given, the plaintiff had paid the rent receivcupation of the property after the deed was ed from Mr. Hutzler in 1900, which amountinade (and after the foreclosure proceedings ed to $1,400, and hence the mortgage should also), until the middle of June, when they sur- have been $29,095, instead of $30,495. Mr. rendered it to Dr. Geer, as the expected pur- Slingluff testified that he received the $1,400 chaser, and the admission by Mr. Dillehunt in four equal monthly payments of $350, and that he did make the agreement to take effect that he indorsed three of the checks so if the Geer sale was consummated, the books received over to Mr. Dillehunt, and afterof Mr. Felgner show that he kept the account wards gave him his individual check for the in the name of H. Slingluff down to July 5, other $350. Mr. Dillehunt positively denies 1905. The defendant filed as an exhibit a having received them, or either of them. copy of the account, and as late as July 2, But Mr. Slingluff also testified that he did 1906, Mr. Dillehunt furnished a statement of not question the correctness of the amount

defendant should be charged with interest on the amount received on the life insurance policy for one year. It was not actually received until March 4, 1904, but it was due in December, 1902, on a policy which had been made payable to the Slingluff trustees and Mr. Felgner. There was no valid reason for delaying the collection of it so long, and it could with ordinary diligence have been readily arranged in two months. Interest on the $3,574.15 should therefore be added to that sum as a credit to the plaintiff.

Interest on the balance found to be due the plaintiff in accordance with this opinion should be allowed from November 17, 1905, the date of Mr. Felgner's letter inclosing the account in response to the request of Mr. Slingluff for a statement, instead of from June 1, 1906, as allowed by the lower

court.

"Fitzgerald Adjustment of Taxes & Insur. | testimony as to them, although as at present 130.58," which should be deducted, and which | advised, we would allow both of them. On leaves a balance on those items of $179.52. the other hand, we are of opinion that the We think that sum, and not $135.46, should be charged against the plaintiff, making a difference of $44.06. We are also of opinion that Mr. Felgner should have credit for $145.36 insurance paid through Mr. Dillehunt, but omitted from the account rendered to Mr. Slingluff because it was overlooked. An item of $46.50 charged in the account as of January 21, 1903, for advertising should also be allowed, as the evidence shows that sum was paid for advertising sale which was withdrawn at the request of the mortgagors. There are two items which seem to us should have been charged to the plaintiff, but as the record is not clear as to them, the court below can direct further testimony to be taken, if necessary by reason of the failure of the parties to agree, which, so far as we can see, ought readily to be done. They are the items of $148.30 charged in the account of Mr. Felgner under date of May 12, 1903, for "Watchman 148.30," and that of $120, included in the item in the statement by the lower court of amount of sale to Fitzgerald. Mr. Dillehunt said in answer to the question what the first-named item was for "caretaker up there, but that bill must have been paid, and that bill was paid." He was then interrupted by counsel, and his testimony is left in some doubt as to what he meant by that answer, or who paid the bill. Then he went on to say that Mr. Slingluff moved out in June, 1903, and did not say when the bill was paid. There was apparently no occasion for a watchman in May, 1903, or prior thereto, as the house was occupied. We are therefore left in doubt as to that item, but if a watchman was properly put there for the protection of the property, or to prevent the insurance policy from becoming invalid, it should be allowed. In reference to the $120 spoken of, we understand that the principal paid by Mr. Fitzgerald was $27,500, but the court below and counsel for Mrs. Slingluff speak of it as $27,620. The account filed as "Defendant's Exhibit No. 2" shows that some interest was

included in the $27,120 received March 10, 1905, and the two interest payments credited in that account, as well as the other one rendered to Mr. Slingluff, were each for $540, which is 4 per cent. on $27,000 for six months; $500 having been paid on account of principal November 14, 1903. These two items, therefore, would seem to be proper charges against the plaintiff; but, as there may be some question about them, we will authorize the lower court to take further

We think the method followed by the judge correct, under the circumstances of this case; that is to say, of allowing interest to November 14, 1903, the date of the sale to Mr. Fitzgerald, and making other charges, and allowing credits to that time, so as to ascertain the balance. What we

have already said will relieve us of further discussing that question. If Mr. Felgner proposed to charge Mrs. Slingluff with 6 per cent. interest on the amount of the deferred least have consulted her about his arrangepurchase money until paid, he should at ment with the purchaser.

We have thus at great length discussed many of the points raised, and have given

the whole case due consideration. Inasmuch as the amount due under the conclusions we

have reached, and whether there will be any material change from the amount fixed by the decree below, are left in doubt until the two items above left open are settled, we will remand the case, without reversing or affirming the decree, for further proceedings in accordance with this opinion. We will require the administrators of the estate of Edward L. Felgner to pay two thirds of the costs in this court, and Mrs. Slingluff to pay the remaining third; the costs below to be determined by the lower court.

Cause remanded for further proceedings in accordance with this opinion, without re versing or affirming the decree, the administrators of the estate of Edward L. Felguer to pay two thirds of the costs in this court (including the transcript and printing of the record) and the remaining third of said costs to be paid by Ann M. Slingluff; the costs below to be determined by the lower court.

(Court of Appeals of Maryland. Jan. 13, 1909.) pacity B. was acting when he assaulted a pas

count, charged that while the plaintiff was, in the waiting room, throw him upon the in the waiting room of the defendant on the floor, and place his knee upon his breast; night of March 5, 1907, for the purpose of that he stepped over to Baldwin and asked taking passage on one of the defendant's him what Moore had done and what he was trains to Elkton, Md., "an officer or agent of going to do to him, and that Baldwin, withthe said defendant, and in its employ, vio-out replying, struck him over the shoulders lently assaulted the plaintiff, and falsely ar- with an officer's club, knocking him to the rested and imprisoned the plaintiff in the jail | floor; that he got up, went back to his of the city of Havre De Grace aforesaid, in seat, and sat down; that afterwards, while consequence whereof the said plaintiff suf- standing in the station with his hands in his fered great distress of mind and severe bod-pockets, Baldwin directed Richard Kelley, a ily harm and injury, and his reputation in deputy sheriff of Havre De Grace, to arrest the community where he lives has been great- him; that Kelley did arrest him and handly injured thereby." The defendant demur- cuff him to Moore, and both he and Moore red to each of these counts. The court over- were taken by Baldwin and Kelley to the ruled the demurrers, and issue was joined up- jail in Havre De Grace, and locked up; that on the defendant's plea of not guilty, and the Baldwin had the key to the lockup, and percase proceeded to trial, which resulted in a sonally placed plaintiff and Moore in the cell; verdict and judgment in favor of the plain- that the cell in which they were confined tiff for $1,000. The defendant has brought was cold, wet, and uncomfortable, and that this appeal. they were detained therein until the afternoon of March 6th, when they were discharged; that in consequence of the wet and unfit condition of the cell the plaintiff contracted a severe cold, and was confined in his house for several days in charge of a physician. The evidence offered in behalf of the plaintiff tended to show that he was not smoking in the waiting room, and that he was conducting himself in a proper manner, and that the treatment to which he was subjected by Bald. win was utterly unwarranted and was a gross outrage upon him. The evidence on the part of the defendant tended to show that while the members of the troupe were in the station or waiting room on the night mentioned, waiting for a late train to take the to Elkton, the plaintiff and Earnest Moore began smoking cigarettes in the main waiting room, in violation of the rules and regulations of the railroad company; that these rules were indicated by "No Smoking" signs hung upon the walls of the room; that the plaintiff and Moore were warned by Baldwin not to smoke, and upon the refusal of Moore to stop smoking Baldwin attempted to eject him from the room; that Moore assaulted Baldwin and was placed under arrest; that the plaintiff seized Baldwin by the shoulders and got upon his back to prevent him from putting Moore out of the room, and for the assault and interference Baldwin caused the arrest of the plaintiff and placed him in the lockup, where he remained until the next day. Baldwin was an employé of the defendHe had formerly had charge of the

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The record contains four bills of exception reserved by the defendant during the course of the trial. Two of these relate to the admission of evidence, one to the action of the court in striking out certain testimony, and one to the ruling of the court upon the prayers and certain special exceptions submitted at the close of the whole testimony. The record contains more than 500 pages of testimony, and upon the vital questions of fact involved is very conflicting. We are not required to enter upon a minute examination and analysis of this irreconcilable testimony for the purpose of discovering the real facts of the occurrence to which it relates, or of deciding upon which side is found the preponderance of the proof. It was exclusively within the province of the jury to determine these questions. It is sufficient, in order to dispose of the legal questions raised on the record, to give a general outline of the evidence adduced by the parties to sustain their respective contentions. The plaintiff offered evidence tending to prove the following facts: That he was a member of an amateur dramatic club, composed of young people of both sexes of the town of Elkton, formed for the purpose of giving entertainments to raise funds for the benefit of Washington Camp of the Patriotic Order Sons of America; that on the 5th of March, 1907, about 24 members of this club went from Elkton to Havre De Grace by defendant's train, and gave an entertainment at night in the opera house at that place; that after the ant. close of the exhibition the plaintiff, with oth-flower gardens along the line of the road er members of the company, went to the station of the defendant about 10 o'clock p. m. to take a train back to Elkton; that while he was occupying one of the benches in defendant's waiting room, and behaving in a quiet and orderly manner, he observed Milton Baldwin, an officer of the defendant, approach Earnest Moore, another member of the theatrical troupe, seize him and pull him

from Philadelphia to Washington, and later was put in charge of the freighthouse at Havre De Grace. A few months before the matters complained of in this case he was appointed night watchman at the new passenger station of the defendant at Havre De Grace. He had charge of the grounds, station, furnace, and baggage at night. He had strict orders to stop smoking in the waiting room,