(112 A.)

the presence of the other parties mentioned, | cowitz, 89 Md. 383; United Railways Co. v. and he said he did not remember being at the Ward, 113 Md. Suburban or Kernan's Hotel with them, and it is not probable that the jury could have been misled to the prejudice of the defendant by the evidence in this exception.

In regard to the other exceptions to the evidence, it is only necessary to say that we have carefully examined them and discover no error in any of the rulings.

"In McKewen's case the prayer which this court said was 'quite as favorable to the defendant as it had any right to expect,' instructed the jury that the plaintiff was guilty of con

tributory negligence, and was not entitled to recover, 'unless the jury believe from the evidence that the motorman of the car in question after he saw, or by the exercise of due care might have seen, that the plaintiff was [6] This brings us to a consideration of the approaching the track, and was apparently prayers. The court below granted the three about to cross in front of his car, and that the prayers offered by the plaintiff, and all of attempt to do so would be dangerous to the the defendant's prayers except its second, plaintiff, might still by the exercise of reasonable care in the management of said car, fourth, fifth, fourteenth, fifteenth, and seventeenth. The objection to the defendant's ercise said care. In the case of Consolidated have avoided the collision, but failed to exrejected prayers is that they overlook the Ry. Co. v. Rifcowitz, supra, the defendant ofevidence produced by the plaintiff tending to fered a prayer instructing the jury that the show that the trains did not stop at the plaintiff's evidence was not satisfactory or intersection of Scott street and Columbia legally sufficient to entitle her to recover, and avenue, but passed the crossing while run- the court below granted it after having modining fast; that the tracks were straight and fied it by adding these words, 'unless the jury clear, and that the motorman on the north- shall further find that after the motorman bound train could, by the exercise of reason- saw, or could reasonably have seen, the peril able care, have seen the plaintiff in the of the plaintiff, he failed to exercise ordinary In reference to act of crossing the street in time to have care to avoid the accident.' this prayer the court said: "The modification avoided striking him; that the motorman which the learned judge below made in the of the south-bound train could, by the exer- first prayer of the defendant before granting cise of the same care, have seen him on the it was an entirely proper one, and was reqsouth-bound track in time to have avoided uisite to make it conform to the law governrunning over him, and the duty the law im- ing the case. Mere negligence or want of poses on a company operating its cars or ordinary care will not disentitle a plaintiff to trains on the streets of a city to keep a sharp recover, if the defendant might, by the exerlookout, and its car under control as it ap cise of care on his part, have avoided the proaches a crossing, in order to avoid in- consequence of the neglect or carelessness of Juring those who may be crossing the street. the plaintiff. If the court had not modified the prayer, it would have taken from the jury In the case of United Rys. Co. v. Kolken, the question of relative negligence of the par114 Md. 160, 78 Atl. 383, this court said: ties."" In the later case of Consolidated Ry. "It is the duty of those in charge of a car to Co. v. Armstrong, 92 Md. 554, counsel for the keep a sharp lookout as they approach a street company insisted that the rule we have stated, crossing, and to slacken the speed of the car or rather the modification of the doctrine of sufficiently to enable them to have it under contributory negligence, should be limited to control, so as to avoid injuring those who may cases in which the defendant could have avoidbe crossing the street, and the evidence ad- ed the accident by the exercise of due care duced by the plaintiff tended to show not only after he actually saw the plaintiff's peril; but that the defendant was negligent in the man- this court refused to adopt that view, and said: agement of its car, but that the motorman saw, 'It cannot be seriously contended that when or by the exercise of proper care could have the defendant is in a position from which he seen, the plaintiff in time to have stopped the ought to see, or by the exercise of reasonable car before it struck her. Under such circum- care could see, the plaintiff's peril, he may stances it would have been error to have taken avert his face or close his eyes and not see the case from the jury upon either of the it, and then escape liability for an injury regrounds stated in the first and second prayers, sulting from such conduct on his part. The or to have instructed the jury that if they law will not permit the loss of life or limb, or found that the plaintiff was negligent she was even property, to be deliberately or carelessly not entitled to recover; for even if the plain- inflicted, when it could by reasonable care and tiff was guilty of contributory negligence in caution be averted, merely because the inattempting, under the circumstances, to cross jured person was negligent.' And in Ward's the street in front of the approaching car, she Case we said: But even if we assume that was still entitled to recover if the motorman the appellee did not, before attempting to cross could, by the exercise of due care, have avoid- the tracks, look to see if a car was approached the accident, after he saw, or by the exer- ing, and that he was to that extent negligent, cise of proper care might have seen, the the court below would not have been justified plaintiff as she was about to cross the tracks. in directing a verdict for the defendant on the This is the rule that has been repeatedly rec- ground of contributory negligence, or because ognized by this court as applicable to cases there was no evidence of negligence on the like the one at bar. Lake Roland Co. v. Mc- part of the defendant. If the motorman in Kewen, 80 Md. 593; Balto. Traction Co. v. charge of the car in question saw the appel

their brief that the exception to the ruling of the court below on the special exceptions to plaintiff's prayers should not have been included in the bill of exception to its ruling on the prayers, and relies upon the state

seen him, in the act of crossing the tracks in time to have prevented the accident, it was his duty to have stopped the car in time to avoid the collision; and if the accident occurred by reason of his failure to do so under such circumstances, his negligence, and not the negligence of the appellee, was the proxi-ment of this court in Fast v. Austin, 135 Md. mate cause of the injury.' 21, 107 Atl. 540. While the record of that case is not now before the writer of this opinion (who also wrote the opinion in that case), and he does not recall whether there was anything in that record to suggest the statement, before concluding this opinion, and to avoid any confusion in the practice, we desire to say that, according to the rule and practice sanctioned by this court, the action of the trial court on the prayers is regarded as a single act, and an exception to a ruling on special exceptions to prayers is therefore properly included in the bill of exception to the ruling on the prayers. Judgment affirmed, with costs.

"Learned counsel for the appellant, while recognizing the rule referred to, contend that it does not apply to the case at bar, because here the plaintiff saw the car as she started across the street. But it can make no difference in the application of the principle whether the plaintiff's negligence consisted in venturing across the street without looking to see if a car was coming or in attempting to cross after seeing the approaching car; the rule relates to the duty of the defendant after the motorman saw, or by the exercise of reasonable care could have seen, her peril. Counsel for the appellant, relying upon cases like the case of McNab v. United Railways Co., 94 Md. 728, further contend that, even if the motorman saw the plaintiff crossing the street, he had a right to assume, up to the very moment she stepped on the tracks, that she would not venture to cross until after the car had passed, and that the last act of negligence was committed by her. In McNab's Case the accident happened at a crossing in the open country, where cars are permitted and known to run at much greater speed than is allowed on the streets of a city, and Judge McSherry, quoting from Neubeur's Case, 62 Md. 401, said: 'It was not the duty of those in charge of the train to anticipate the conduct of the plaintiff, and, because they saw him approach the crossing, to conclude that he would attempt to cross in advance of the train.' But, as was distinctly recognized in that case, a very different rule applies to the running of cars on the crowded thoroughfares of a city, where the motorman is required to anticipate the conduct of those crossing the streets to the extent of keeping a sharp lookout, giving proper warning, and reducing the speed of his car so as to have it under control for the purpose of avoiding injury to those who may be on the crossing."

We have quoted at length from Kolken's Case because it clearly points out the objections to the defendant's rejected prayers, and shows that the special exceptions to plaintiff's prayers were properly overruled. A careful reading of the cases of Consolidated Ry. Co. v. Armstrong, 92 Md. 554, 48 Atl. 1047, Garvick v. United Rys. Co., 101 Md. 239, 61 Atl. 138, and Scott v. W. B. & A. Elec. Rd. Co., 130 Md. 611, 101 Atl. 546, will show that they are not in conflict with Kolken's Case, and that they do not support the defendant's rejected prayers under the circumstances disclosed by the record in this

case.

CATE et al. v. CATE et al. (No. 1682.) (Supreme Court of New Hampshire. Merrimack. Jan. 4, 1921.)

I. Mortgages 326-Foreclosure not stayed by bill by second mortgagee, where it was abandoned.

A bill by second mortgagee, tendering the amount due under first mortgage, which had been foreclosed, and praying subrogation, etc., held not to stay the foreclosure of the original mortgage, where such bill was subsequently abandoned.

2. Mortgages 326-Retention of foreclosing possession question of fact.

The retention of foreclosing possession is a question of fact.

3. Mortgages 326-Possession, once taken, continues until there is an entry in opposition thereto.

Possession, once taken by a mortgagee, continues until there is an entry in opposition thereto.

4. Mortgages 326-Retention of foreclosing possession may be found on proof of entry under process.

than the mortgagee's original technical seizin, While possession must be something more even when reinforced by an entry under process, it does not follow that the required continued possession by a mortgagee may not be found as a fact, on proof of entry under process, when nothing more is shown, in which case the lawful possession is presumed to con

tinue.

The jury were fully and properly instruct-5. ed by the granted prayers, and, as we find no reversible error in any of the rulings excepted to, the judgment must be affirmed. [7] Counsel for the appellee suggest in

Mortgages 326-Presumption of continuity of possession.

Where lawful possession by a mortgagee is shown to have existed, it will be presumed to continue until the contrary appears.

(112 A.)

Exceptions from Superior Court, Merri- (1) Hiram gave to Charles, Joseph, and mack County; Branch, Judge.

the premises, conditioned upon the grantors providing suitable maintenance for the support of Hiram during his lifetime and the Bill in equity. Trial by the court. Plain-annual payment to him of $30. The deed tiffs seek to establish their title to one undivided third part of certain real estate in the town of Loudon.

To the foregoing findings the plaintiffs | proof of the entry under process, when nothexcepted as follows:

(1) To the ruling that the Tallant bill in equity did not have the effect of staying or suspending the foreclosure of the Smith mortgage.

(2) To the finding that, at the time when Hiram Cate executed his warranty deed to Charles H. Cate and the defendants, he, the said Hiram Cate, had no right, title, or interest in the premises, and that said deed therefore vested no title in Charles H. Cate, under whom the plaintiffs claim.

(3) To the finding that the deed and mortgage of June 23, 1883, and the conduct of the parties thereto in connection therewith, did not estop the defendants from claiming title to the whole premises, and from denying that Charles H. Cate acquired a good title as against them to one undivided third part of the premises.

(4) To the finding that the plaintiffs have failed to establish their title to any part of the premises in question and that the title of the defendant under the Smith foreclosure is complete.

Nathaniel E. Martin and Harry J. Brown, both of Concord, for plaintiffs. John M. Stark and Robert W. Upton, both of Concord, for defendants.

ing more is shown. In such a state of the evidence the lawful possession, shown to have once existed, may be found to continue until the contrary appears. Wig. Ev. § 382. To overcome the efficacy of such entry and tak ing possession as evidence of a subsequent continuance of such possession, there must be evidence of an entry in opposition thereto. Largey v. Taylor, supra.

The remark in Ray v. Scripture, supra, that the continuous act of possession for a year, not being matter of record like the entry, "must be proved by other evidence," was not necessary to the decision. There was no question in that case but that the mortgagor was in fact in possession, and that the mortgagee was not, during the year. The question presented was not whether the record of entry was some evidence of subsequent possession, warranting a finding to that effect in the absence of contradicting proof, but whether the record was conclusive to that effect as against proof of facts outside the record showing that possession did not continue.

It is suggested in that case that Hobson v.
Roles, 20 N. H. 41, and Worster v. Mfg. Co.,

41 N. H. 16, bear upon this question. Neither
of those cases considers the specific question
here involved, and neither makes any refer-
ence to Wallace v. Goodall, 18 N. H. 439, 449,
where it is said that "possession that had
been acquired by the entry continued *
until there was an ouster, by * * some
hostile entry." There is nothing in the opin-
ion in Bartlett v. Sanborn, 64 N. H. 70, 6
Atl. 486, inconsistent with the view expressed
in Largey v. Taylor, supra. The dictum that,
if the foreclosure had been by entry under

PEASLEE, J. [1] The claim that the Tallant bill in equity had the effect of staying the foreclosure of the Smith mortgage is not well founded. The prayer of the bill was that the plaintiff be subrogated to the rights of Smith as foreclosing mortgagee. But, whatever its object, or whatever effect it might have had, if pursued to a final decree, it comes to nothing for the suit was abandon-process "the subsequent foreclosing possesed. No authority has been cited or found to sustain the proposition that such a proceeding has any effect upon the completion or validity of the foreclosure.

sion need not have been peaceable, but must have been something more than a continuance of the legal seizin that had been in the mortgagee 10 years, and something more than such continued seizin reinforced by a momentary entry," does not state that every entry under process is presumed to be merely momentary, or that reasonable inferences of fact may not be drawn from proof of such entry. In this case, as in Ray v. Scripture, the facts are stated to be that after the mortgagee's entry the owner of the equity of redemption "had exclusive possession, not subordinate, in fact, to any right of any other person." Neither case involved the question now present

The exceptions to the finding that Hiram had no title in 1883, and to the conclusion that the foreclosure of the Smith mortgage was complete, present the same question. The position taken by the plaintiffs is that possession for a year after the sheriff gave seizin and possession to Smith was not shown. [2-5] Retention of foreclosing possession is a question of fact. Frye v. Hubbell, 74 N. H. 358, 361, 68 Atl. 325, 17 L. R. A. (N. S.) 1197, and cases cited. Possession, once taken, continues until there is an entry in oppositioned, and save for the before quoted remark in thereto. Largey v. Taylor, 75 N. H. 211, 213, Ray v. Scripture, there is nothing in either 72 Atl. 375; Wallace v. Goodall, 18 N. H. opinion to throw any doubt upon the rule rec439, 449. While the possession must be some-ognized in Wallace v. Goodall, and reaffirmed thing more than the mortgagee's original in Largey v. Taylor. "The formal entry being technical seizin, even when reinforced by a made, the law presumes that the possession momentary entry under process (Ray v. continues unless an interruption be proved." Scripture, 67 N. H. 260, 262, 29 Atl. 454), it 2 Jones, Mtgs. § 1258. does not follow that the required continued

[6] There is here no direct evidence of

(112 A.)

possession of the defendants. The evidence that their father, mother, grandfather, and brothers and sisters continued to live upon the place as the family home is not inconsistent with the defendants' continued legal possession of the premises. The subsequent conduct of the parties tends to confirm the theory that they all understood that the defendants had such possession. The general object, to maintain a family home, was carried out, and Hiram and Charles, Sr., spent

the remainder of their lives there.

But

shortly after Charles died his widow sold off the personal property and removed from the place. Thereafter the defendants had unquestioned possession for many years and until this controversy arose. They have also paid the taxes ever since they went in under the Smith deed.

2. Justices of the peace 164 (2)-Certified copy of judgment does not meet statutory requirement.

copy of the judgment as entered" does not meet the requirements of the statute.

Appeal No. 37, February term, 1921. Action before a justice of the peace by the Huston-Darbee Company against Thomas Elliott, in assumpsit for goods sold and delivered. Judgment for plaintiff. Defendant appeals, and plaintiff moves to strike off the appeal. Motion allowed, and appeal dis

The certified transcript upon appeal from [7] Moreover, it was in evidence that the § 4036, must be of all the docket entries in the the justice's court required by Rev. Code 1915, plaintiffs' alleged ancestors in title repeated-case, and a certificate "that the above is a true ly admitted that they had no interest in the property, and that the defendants owned it. This was, of course, an admission that the defendants had done such acts as were necessary to maintain the possession upon which their title depended and is in itself sufficient to support a finding that the foreclosure had been completed. As far as the foreclosure was a pure matter of fact, and one not capable of proof by any record, it could be shown by the admissions of the party adversely interested. In addition to these facts and admissions there was also the testimony of Charles, Jr., that he and his brother went into possession under the Smith deed. Having proved themselves in possession, it was for the plaintiffs to show acts inconsistent with such possession or there was no ouster. If it could have been found that there was an ouster, the evidence certainly warranted the finding that one had not been shown.

[8] It is also claimed that the deed of Hiram to the plaintiffs' ancestor and the defendants, and those grantees' mortgage back to secure Hiram's support, estop the defendants from setting up their superior title against their cograntee in Hiram's deed. So far as the effect of accepting the deed from Hiram is concerned, it is sufficient to point out that the deed is expressly made subject to any mortgages given by Hiram. The claimed estoppel by conduct leading their cograntee to furnish support to Hiram, relying upon the defendants' representation that Hiram's deed conveyed some title, is negatived by the declarations of Charles, Sr., that he had no interest in the property.

Most of the matters urged by the plaintiffs in argument are merely debatable questions of fact, upon which the findings are adverse to the plaintiffs' contentions. Exceptions overruled.

All concurred.

missed.

PENNEWILL, C. J., and CONRAD, J.,

sitting.

Robert G. Houston, of Georgetown, for appellant.

Albert Worth, of Georgetown, for respond- · ent.

In appeals allowed from a justice of the peace, the statute provides:

"It shall be the duty of the appellant to have the appeal entered in the Superior Court of the county where the judgment was given, on or before the first day of the term next after the appeal; and for this purpose, to deliver a duly the case to the prothonotary, who shall file the certified transcript of all the docket entries in same," etc. Rev. Code 1915, § 4036.

The certificate annexed to the transcript filed in this case was:

"I ** 串 *

true copy of a judgment as entered on Docket do certify that the above is a page No. 47, judgment No. 91. Huston-Darbee Company, a Corporation of the State of Delaware versus Thomas Elliott. Witness my hand and seal this 7th day of January A. D. 1921." (Signed by the justice under seal).

The motion to dismiss the appeal was based on the insufficiency of the certificate, in that it did not appear that a duly certified transcript of all the docket entries in the case had been filed with the prothonotary, as required by the statute. Barker v. David, 4 Pennewill, 395, 55 Atl. 334. The motion