as to the decree? With sincere respect for the distinguished counsel of defendants whose zeal and ability is so often displayed in this court, we are unable to agree with their contention. The opinion of the court we think was a definite, present ascertainment of the amount for which the defendants were responsible to the plaintiffs, and that as the court, instead of passing its own final decree for payment of that amount, remanded the cause that the circuit court might pass such decree, the passage of such decree by that court was a further proceeding in strict conformity with the decree of this court, and we find no error in the decree of the circuit court in this respect. The plaintiff's appeal is from so much of said decree as adjudges him to be entitled to interest only from the date of the decree, and not from the date of Mr. Winter's death, which occurred January 21, 1905.

It is argued for the plaintiff that, inasmuch as this court found that, under the agreement between Mr. and Mrs. Winter, the proceeds of her securities were to be reinvested as her property and in her name, though he was to be allowed the income during his life, therefore both the principal sum derived from the sale of said securities and all the increment therefrom, except the life estate in the income, always continued to be her property, and that it necessarily follows from this that her executor was entitled to the interest from the cessation of his life estate in the income. This is based upon the theory that interest is a mere incident, or integral part | of the debt. This is true where there is an express contract for payment of interest, and in such case interest is recoverable as such as a matter of right up to the time of breach, but not after. 16 Amer. & Eng. Enc. (2d Ed.) p. 999. In the leading case in this state (Newson's Adm'r v. Douglass, 7 Har. & J. 453, 16 Am. Dec. 317) it was held that on bonds, or contracts in writing to pay money on a day certain, or where the money claimed has been actually used, interest is recoverable as matter of right, but that in all other cases the question should be referred to the jury, who may allow it or not in the shape of damages, according to the equity and justice appearing between the parties. In Frank v. Morrison, 55 Md. 409, it was held that a subscription for stock in a corporation to be paid for in installments, at such times as should be called for, did not fall within that class of contracts upon which, under the rule in Newson's Adm'r v. Douglass, supra, interest was recoverable as of right. Equity allows interest in all cases where, under like circumstances, it might be recovered at law. Hammond v. Hammond, 2 Bland, 370. The allowance of interest therefore is discretionary with the court in equity cases where the court takes the place of the jury, unless in the given case interest is recoverable as of right. In the present case, Mr. Winter was using the proceeds of sale of his wife's se

curities, with her consent during his life, not only to such use, but to the retention by him of the income therefrom. The time of his death could not be known, and until then his use and retention of the income was rightful. When this suit was brought, he defended upon the ground that the securities were an absolute gift to him. His executors must be taken to believe that this defense was made in good faith, and they could not be expected to pay such a sum as here is involved, until the matter was determined adversely to the estate by a court of last resort. To have done so would be a dereliction of duty on their part, the thought of which cannot be imputed to them. Until the decree of this court was made, the right of her executor to recover at all was not established, nor was the amount recoverable definitely ascertained, so that his executors, before the passage of that decree, could not know what sum to pay, if they had desired to pay, nor could her executor have known what sum he was entitled to demand. In Lewis v. Rountree, 79 N. C. 122, 28 Am. Rep. 309, the court said: "It is a rule which may be gathered from the cases that, whenever a debtor has notice, or ought to know that he owes a certain sum, and when he is to pay it, if he fails to pay it, he ought to pay interest. In the present case, although we may assume that the defendant had notice by the commencement of the action, that he was looked to for the payment of damages, yet, as a fact, not only was the amount technically unliquidated, but, owing to the unsettled state of the law, it was uncertain. He could not safely and without risk pay any sum, until it was ascertained by a judgment which he might expect it speedily would be." We think this sound reasoning and applicable to the case before us. Moreover, the opinion of this court ascertained the amount due as $29,000, and said nothing about interest, and in passing its decree the circuit court certainly conformed literally to the opinion and decree of this court in allowing interest only from the date of its own decree. Had it allowed interest from the date of Mr. Winter's death, there can be small doubt that his executors would have appealed upon that ground as not in conformity with the opinion and decree of this court. We find no error in the decree in this respect.

Decree affirmed; costs to be paid by the executors of Henry Winter.

doubtful, it may become necessary to look to contemporaneous circumstances, the evil to be redressed, and the object of the law.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Statutes, § 291.]

2. STATES-APPROPRIATIONS-FORFEITURE.

Acts 1902, p. 912, c. 625, §§ 5, 6, appropriated $5,000 for the maintenance of buildings at the agricultural experiment station, the printing of bulletins, etc., and authorized the Comptroller to issue his warrant upon the treasury of the state for the sums appropriated, which should be payable to and expended by the board of trustees of the Agricultural College, and directed the first payment to be made during the fiscal year ending September 1, 1902. Acts 1904, p. 951, c. 557, § 4, appropriated the sum of $6,000 per annum for the formation and support of farmers' institutes, authorized the Comptroller to issue his warrant annually upon the treasury of the state for such sum of money, and declared such sum payable to the order of the Agricultural College on or after the 1st of October of each fiscal year, the first payment to be made during the year ending September 30, 1904. Held, that the appropriations payable during any year were not forfeited by failure to draw the same before the expiration of the fiscal year for which they were appropriated, and, if not drawn during that year, they could be drawn subsequently.

Appeal from Circuit Court, Anne Arundel County; Thomas Jones and Wm. H. Thomas, Judges.

Mandamus proceedings by the Maryland Agricultural College against Gordon T. Atkinson, Comptroller. From an order dismissing the petition, petitioner appeals. Reversed.

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

Charles H. Stanley, for appellant. Atty. Gen. Bryan and Thomas A. Whelan, Jr., for appellee.

BURKE, J. This is an appeal from an order of the circuit court for Anne Arundel county dismissing a petition for a writ of mandamus to be directed against the appellee requiring him to draw his warrant upon the treasury of the state for the payment of the sums of money specified in the petition.

The Maryland Agricultural College was incorporated by Acts 1856, p. 114, c. 97. The purpose of its creation was the instruction of young men in those arts and sciences indispensable to successful agricultural pursuits. The people finding that industry greatly neglected, and believing it to be the duty and within the power of the Legislature to encourage and promote the farming interests of the state, by the act above mentioned constituted the plaintiff an agricultural college, whose duty it should be, in addition to the usual course of scholastic learning, to instruct young men attending the college, theoretically and practically, in those arts and sciences which, with good manners and morals, should enable them to become intelligent, successful, and scientific farmers, and elevate the state to the position its advantages in soil and climate and the moral and mental

capacities of its citizens entitle it to occupy. By the act of incorporation $6,000 per annum. was appropriated to the payment of salaries of professors, and for such other purposes as should be found reasonably necessary to promote the welfare and success of the college. The legislation of the state indicates that the people have manifested a deep and abiding interest in the welfare of the college, and have aided its work by generous appropriations, and by other measures calculated to increase its efficiency, and to enable it to accomplish more fully the useful and beneficent purpose of its foundation. Under Acts 1864, p. 109, c. 90, the state board of educafion became ex officio members of the board of trustees of the college. By Acts 1866, p. 103, c. 53, the state purchased a one-half undivided interest in the college property. By Acts 1868, p. 573, c. 320, the Governor, the Comptroller, the Treasurer, the President of the Senate, the Speaker of the House of Delegates, and the Attorney General of the state became ex officio members of the board of trustees, and represented the state's interest in said board, which consists of 18 members. This board is constituted as follows: The six state officials mentioned above, five members elected by the private stockholders of the college, one person from each congressional district of the state, appointed by the Governor by and with the advice and consent of the Senate, and the United States Secretary of Agriculture. The state holds a mortgage of $15,000 on the stockholders' onehalf interest. The college is controlled by the state, and is practically a state institution.

In pursuance of what appears to be a settled policy on the part of the state to contribute to the support of this institution, the General Assembly passed Acts 1902, p. 911, c. 625, and Acts 1904, p. 950, c. 557. The first of these acts set apart various sums for the use of the college, but in this case we are concerned only with sections 5 and 6 (page 912) of that act. These sections read as follows:

"Sec. 5. In order to provide for the maintenance, repairs and improvements of the buildings of the experimental station, to provide for the printing of bulletins, showing the results of the work, and also to provide for the investigation in the tobacco crop, meat production, and irrigation, an appropriation of five thousand dollars ($5,000.00) is hereby provided for and made.

"Sec. 6. The Comptroller be and he is hereby authorized to issue his warrant upon the treasury of the state for the several sums hereby appropriated, the same to be paid out of any funds not otherwise appropriated; that said sums of money shall be payable to the Maryland Agricultural College, and shall be expended under the direction of the board of trustees of said institution, and the first payment shall be made during the fiscal year ending September 1, 1902."

By Acts 1904, p. 951, c. 557, § 4, it was provided as follows: "That the sum of six thousand dollars per annum be and the same is hereby appropriated for the formation and support of farmers' institutes in this state; and that the Comptroller be and he is hereby authorized to issue his warrant annually upon the treasury of the state for said sum of money out of any funds not otherwise appropriated; that the said sum shall be pay. able to the order of the Maryland Agricultural College on, or after the 1st of October of each fiscal year, and that the first yearly payment shall be made during the fiscal year ending September 30, 1904."

It is admitted that the work contemplated to be done by the college by Acts 1902, p. 912, c. 625, § 5, has been done by its officers, but the appropriation therein made has not been paid. It is also admitted that $2,000 of the appropriation of $6,000 made by Acts 1904, p. 950, c. 557, remains unpaid. It is further admitted that said sum of $5,000 and said sum of $2,000, appropriated by the acts aforesaid, are in the treasury of the state, and not appropriated for any other purpose. On July 17, 1905, demand was made by the Maryland Agricultural College upon Hon. Gordon T. Atkinson, Comptroller of the Treasury, for the payment of said several sums of money. Upon the advice of the Attorney General, the Comptroller declined to pay the money, whereupon the petition for mandamus was filed. The respondent, instead of answering the petition, filed a general demurrer, which the court sustained, and dismissed the petition. By agreement of parties, all errors in pleading have been waived. The Comptroller rested his refusal to pay these sums upon the ground that neither of these sums, or any part thereof, could be lawfully drawn from the state treasury after the expiration of the fiscal year for which they were appropriated, and, as it appeared that these sums were not paid during the fiscal year for which the appropriation was made, there was no warrant of law by which they could now be paid. This contention raises the question of the proper construction of the acts of assembly hereinbefore mentioned under which the appropriations were made. If the position of the respondent is not well founded, and if the allegations of the petition could be supported by evidence, it must be admitted that the writ of mandamus should issue as prayed. Upon a question of statutory construction the principles which should guide the court have been repeatedly declared by decisions in this state, and elsewhere. The underlying principle of all construction is that the intent of the Legislature should be sought in the words employed to express it, and when found it should be made to govern, not only in all proceedings which are had under the law, but in all judicial controversies which bring those proceedings under review. Beyond the words employed, if the meaning be plain and

intelligible, neither officer nor court is to go in search of legislative intent; but the Legislature must be understood to intend what is plainly expressed, and nothing then remains but to give the intent effect. If the words of the law seem to be of doubtful import, it may then, perhaps, become necessary to look beyond them in order to ascertain what was the legislative mind at the time the law was enacted; what the circumstances were under which the action was taken; what evil, if any, was meant to be redressed; what was the leading object of the law, and what the subordinate and relatively unimportant objects. Cooley on Taxation (2d Ed.) 264; Gill v. Cacy, 49 Md. 243; Smith v. State, 66 Md. 215, 7 Atl. 49; Hooper v. Creager, 84 Md. 195, 35 Atl. 967, 36 Atl. 359, 35 L. R. A. 202; Commercial Building Ass'n v. Mackenzie, 85 Md. 132, 36 Atl. 754.

There is no general law which declares that money not drawn in the fiscal year for which it has been appropriated cannot be drawn thereafter; but it is argued that it was the intention of the Legislature that these appropriations should fail, unless drawn during the time mentioned in the acts. It was undoubtedly within the power of the General Assembly to have provided that the money should not be paid after the expiration of the fiscal year. That it did not so declare in express or unquestionable terms must be conceded, but it is contended that this intention is manifest: First, because the appropriations were annual; and, secondly, because the first payments were directed to be made during the fiscal years named. It is to be noted that there is no duty imposed by either act upon the Maryland Agricultural College to make application for the payment of the appropriations within a specified time, but the authority is given to the Comptroller to draw his warrant upon the Treasurer for the payment of the several sums appropriated to the order of the college, and he is directed to draw his warrant for the first payment during the fiscal years named. This direction, given in express terms in the act, was not followed, and it is difficult to say how the failure to pay the money in the manner and at the times provided should operate to defeat the plain and evident intent of the Legislature respecting these appropriations. It is clear that the Legislature intended that the college should receive each year from the state treasury, out of any funds not otherwise appropriated, the several sums mentioned for the purposes specified in the act, and it indicated the time in which it became the duty of the financial officers of the state to see to the payment. To construe these directions as to the time of payment to be a limitation or a denial of the power to pay after the close of the fiscal year would be to frustrate the leading and evident purpose of the acts under consideration, as manifested by their language, and as gathered from the

foundation, the history, and the relation and settled policy of the state respecting this college.

We are therefore of opinion that the court committed an error in dismissing the petition. The order of the lower court will be reversed, and the case remanded for further proceedings in accordance with this opinion. Order reversed, and cause remanded, with costs to the appellant.

(102 Md. 689)

MYLANDER v. BEIMSCHLA. (Court of Appeals of Maryland. Jan. 11, 1906.) 1. APPEAL REVIEW INSTRUCTIONS NECESSITY FOR OBJECTION AT TRIAL.

By the express provisions of Code Pub. Gen. Laws, art. 5, § 9, no instruction given is deemed defective on appeal, because of any assumption of fact, or because of the insufficiency of the evidence to sustain it, unless the record shows that an objection for such defect was taken at the trial.

[Ed. Note. For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 1309, 1313.] 2. SAME-INSTRUCTIONS REFUSED.

The statute does not apply to a rejected instruction.

3. LANDLORD AND TENANT-REPAIRS-LANDLORD'S DUTY TO REPAIR.

A landlord is not obliged to make repairs during a tenancy, unless he has agreed to do so. [Ed. Note. For cases in point, see vol. 32, Cent. Dig. Landlord and Tenant, § 536.] 4. SAME-NEGLIGENCE AS TO PREMISES AFFECTING ADJOINING PREMISES ACTION-INSTRUCTION.

In an action for defendant's negligence in permitting a rain spout to remain in such a condition as to throw water against plaintiff's building, the evidence showed that at the time when the conditions complained of first existed defendant's building was rented, and that defendant had not covenanted to make repairs, but that subsequently the building was rented to another and that at that time the defects existed. One of plaintiff's instructions on the measure of damages declared that in case of a verdict for plaintiff she was entitled to recover "for the injuries according to the evidence in the case." Held, that the prayer was erroneous, as not limiting recovery to the damages sustained after the termination of the first tenancy.

5. SAME TENANT'S FAILURE TO REPAIR-INJURIES TO ADJOINING PROPERTY-LIABILITY OF LANDLord.

Where, after the creation of a tenancy, a rain spout on the building became defective, and cast water upon an adjoining building, the landlord was not liable for the damage, where he had not covenanted to make repairs.

[Ed. Note.-For cases in point, see vol. 32, Cent. Dig. Landlord and Tenant, § 670.J

Appeal from Baltimore City Court; John J. Dobler, Judge.

Action by Catharine Beimschla against Mary Mylander. From a judgment in favor of plaintiff, defendant appeals. Reversed.

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

William S. Bransemer, for appellant. Edward L. Ward, for appellee.

BOYD, J. The appellee sued the appellant for "negligently permitting the waste and rain water from her property to be thrown against and upon the north wall of the plaintiff," thereby causing the injury set out in the declaration. The appellee relied especially upon the ground that the appellant had permitted the rain spout, which was supposed to carry the water from the roof of her house, to become and remain in such condition that it turned the water upon the house of the appellee, injuring the wall and foundation, and causing the cellar to be damp and unhealthy. The appellant's defense was based mainly upon the fact that her house had been occupied by tenants during the time the damage was alleged to have been sustained, and claimed that the property was in proper repair when she rented it. A verdict was rendered against her, and she appealed from the judgment entered thereon. Exceptions were taken to the granting of the first, second, and fourth prayers of the plaintiff and to the rejection of the first, second, and fifth of the defendant. The bill of exceptions containing the rulings on those prayers present the only questions for review by us, as the exception to the refusal to grant two prayers offered at the conclusion of the plaintiff's case was waived by the defendant proceeding with her testimony.

There was legally sufficient evidence tending to prove that the plaintiff's house was injured by reason of the condition of the rain spout of the defendant and the way the yard of the latter was graded, turning the water from the spout against the plaintiff's house. The "shoe" or elbow at the bottom of the spout was off. There was some testimony that this condition of the plaintiff's property had existed for four or five years, but the plaintiff did not ascertain the cause of the injury for some time after it was first noticed. The evidence shows that Charles E. Smith & Co. rented the house of the appellant on October 16, 1899, at $20 per month. W. F. Mylander, a son of the appellant, testified that it was then rented by the year. In the fall of 1902 A. G. Fiedler bought the business of Charles E. Smith & Co., who were florists, and with the consent of the appellant took possession of the property and became her tenant. He testified distinctly that he was a monthly tenant and that the appellant accepted him as such. W. F. Mylander said "they consider Fiedler is a yearly tenant and not a monthly tenant;" but, however that may be, there is evidence tending to show that a new tenancy was created with Fiedler. Charles E. Smith & Co. had no written lease, and the term seems to have been an indefinite one, although Mr. Mylander said they rented by the year. But Fiedler and the appellant entered into an arrangement by which he was accepted as the tenant, and after that paid the rent monthly in advance, as Smith & Co. had done, and the exact terms of his tenancy

are not material under the view we take of the case.

*

The plaintiff's first prayer instructed the jury that if they found that at the time of renting to Fiedler the down spout and gutter was in such improper and neglected condition as to be a nuisance, or were in such condition that they would in the nature of things become so by their user, and the defendant received the rent from Fiedler, then the defendant was liable, if the jury believed the plaintiff's property was damaged by virtue of such condition and as a direct consequence thereof. The evidence is not very clear about the actual condition of the down spout and gutter when Fiedler became tenant, but there was some evidence reflecting on it, and at any rate there was no special exception to the prayer for the assumption of any fact or the want of evidence. Section 9, art. 5, Code Pub. Gen. Laws, provides that "no instruction actually given shall be deemed to be defective by reason of any assumption therein of any fact by the said court, * unless it appear from the record that an objection thereto for such defect was taken at the trial; nor shall any question arise in the Court of Appeals as to the insufficiency of evidence to support any instruction actually granted, unless it appear that such question was distinctly made to and decided by the court below." The defendant's second prayer did ask the court to instruct the jury that as the defective condition of the rain spout and yard in the defendant's premises is only shown to have existed during a period when said premises were in the possession of one Fiedler, a tenant of the defendant, and as the said defective condition is not shown to have existed when possession of said premises was delivered to Fiedler, the plaintiff has not made out her case, and the verdict must be for the defendant. There was some evidence tending to show that such condition did exist four or five years before the trial (April, 1905), which was before Fiedler became tenant, and the prayer was therefore properly rejected. The statute just quoted does not apply to rejected prayers, and hence the assumption of a fact would make it defective. The plaintiff's first prayer was properly granted. Her second was very much to the same effect as the first, being somewhat fuller in the statement of questions submitted, and it will not be necessary to now say anything further about that.

The plaintiff's fourth prayer was on the measure of damages, and was, under the circumstances of this case, calculated to mislead the jury. It was as follows: "That if the jury find a verdict for the plaintiff under the instructions of the court, then the plaintiff is entitled to recover such damages as will fairly compensate her for the injuries, to her property according to the evidence in this case, provided the jury believe the plaintiff has sustained such injury by reason and

as direct consequence of the inproper and neglected condition of the down spout and gutter in the defendant's yard." Under the evidence some of the injuries complained of were sustained before Fiedler became tenant, while Charles E. Smith & Co. were tenants. The rule of law in this state is that the landlord is not obliged to make repairs during the tenancy, unless he has agreed to do so, and "the common law has always thrown the burden of repairs upon the tenant, though it imposes no obligation on him to make them unless he covenants to do so." Gluck's Case, 81 Md. 326, 32 Atl.. 515, 48 Am. St. Rep. 515. Of course, it may become necessary for the tenant to make the repairs for his own protection, as he is not relieved of paying the rent unless his landlord has agreed to make the repairs and the property has become untenantable by reason of his failure or neglect to do so. Under those circumstances one of the tenant's remedies is to abandon the property and thereby relieve himself for liability for rent. In Gluck's Case, as there was no agreement on the part of the landlord to keep the property in repair and the tenant was consequently still liable for rent, the latter was bound to repair for his own protection, and hence we held he was entitled to recover as part of his damages (in the opening of a street by the city of Baltimore) the sum required to rebuild a front wall taken in the condemnation proceedings, and to restore an elevator which had to be removed. In this case neither the appellant nor the appellee nor Smith & Co. agreed to make repairs during the tenancy of either.

The uncontradicted evidence is that, when Charles E. Smith & Co. took the property, the appellant made some little repairs before turning it over to them, and her son testified "that in looking over the building he examined also the yard, and found everything in good shape, and there was a shoe on the rain spout in 1899, when witness was there looking [over] the property; that since that time witness' mother, the defendant, has never had possession of that property." Another witness, who was a carpenter, testified that he made improvements on the property for the appellant in 1895; that he had the yard graded; "that the yard was not paved until Mrs. Mylander got it, excepting that part against that wall had been; and that when Mrs. Mylander put the yard in condition she put a brand-new rain spout from top to bottom, with a shoe on the end of it, next to the plaintiff's house on her wall." There is no contradiction of the evidence of those witnesses as to the condition of the property at the times named by them. There is no evidence that the appellant had any notice of the down spout and gutter being out of repair while Charles E. Smith & Co. were occupying the property as tenants, and, of course, under the circumstances we