jection to the admissibility of those declara- | Wm. J. Hall Manufacturing Company against tions in evidence, as a part of the res gestæ, W. Benjamin Whittington. From a judgis that they were made posterior to the sign- ment of the circuit court refusing to quash ing and sealing of the instrument in ques- the action on the ground that the magistrate tion; that they constituted no part of the before whom the action was brought was transaction they were intended to illustrate, without jurisdiction since title to land was and were merely the narration of a past involved, defendant appeals. Dismissed. occurrence, in which the appellant related the circumstances under which he was induced to place his name upon the bond." [5] In the present case the declaration offered to be proven was made after the agreement, which is the act in question, had been in existence for a period of time which the testimony does not define, and its exclusion was in accord with the principle of the case just cited and of later decisions of this court, among which are: Baltimore City v. Lobe, 90 Md. 313, 45 Atl. 192; Wright v. State, 88 Md. 706, 41 Atl. 1060; United Rys. & Elec. Co. v. Cloman, 107 Md. 689, 69 Atl. 379. We have now considered the several questions presented by the record for our decision, and, as we find no error in any of the rulings of the court below, its judgment will be affirmed. Judgment affirmed, with costs. WHITTINGTON v. HALL. (Court of Appeals of Maryland. Nov. 15, 1911.) 1. COURTS (§ 226*)-Court of APPEALS-CERTIFICATE OF CIRCUIT Court. Where it is desired to have the Court of Appeals review the question of the jurisdiction of a justice of the peace rendering judgment and refusing to quash the proceeding on the ground that title to land is involved, from which an appeal was taken to the circuit court, in which the motion to quash was renewed and the motion denied, the case is properly brought up on the certificate of the circuit court. Ed. Note. For other cases, see Courts, Dec. Dig. § 226.*] 2 JUSTICES OF THE PEACE (§ 36*)—JURISDICTION-TITLE TO LAND. Argued before BOYD, C. J., and BRISCOE, PEARCE, BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ. Thomas S. Hodson, for appellant. Joshua W. Miles and Henry L. D. Stanford, for appellee. STOCKBRIDGE, J. In the latter part of 1906 or in 1907, Charles L. Whittington sold to the Wm. J. Hall Manufacturing Company all the timber on a piece of land in Somerset county, and gave the purchaser five years in which to cut and remove it. On March 10, 1908, Charles L. Whittington sold and conveyed to W. Benj. Whittington, the appellant, the land on which the timber sold to Hall was growing. Having thus acquired the land, the appellant cut and removed, and perhaps sold, some of the growing timber, estimated at a little over 2,000 feet, whereupon the Wm. J. Hall Company brought suit against W. Benjamin Whittington before a magistrate for $20.27, as the value of the lumber so cut by him. To the suit thus instituted the defendant, appellant here, appeared and filed an affidavit that title to land was involved, and moved to quash the proceeding for the reason that the magistrate was without jurisdiction to hear the case. The motion was overruled, and a judgment rendered for the plaintiff, from which an appeal was taken to the circuit court of the county, where the motion to quash was renewed upon the same ground. Upon the denial of the motion an appeal was taken to this court. [1] In the circuit court on appeal four ex An action by a purchaser of standing tim-ceptions were attempted to be taken. The ber with the right to cut and remove the same within five years, against a subsequent purchaser of the land for cutting and removing tmber, does not involve title to real estate within Code Pub. Gen. Laws 1904, art. 52, 88 7. 8. providing that where defendant, in an acion in a justice's court for carrying away timber, alleges that he claims title to the land, the justice shall take no further cognizance of the case, but is, in effect, an action in assumpsit for the value of the timber. Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 83-97; Dec. Dig. 8 36.1 3. LOGS AND LOGGING (§ 3*)-SALE OF STAND ING TIMBER-SALE OF GOODS. A sale of standing timber is a sale of goods only. [Ed. Note.-For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*] Appeal from Circuit Court, Somerset County; E. Stanley Toadvine, Judge. judge refused to sign them, but the case comes up on the certificate of the learned judge who heard the case. This procedure is in conformity with the method indicated by this court as proper, when it is desired to have this court review the question of the jurisdiction of justices of the peace in civil cases. Josselson v. Sonneborn, 110 Md. 546, 73 Atl. 650. [2] There is presented by the present record but a single question, the jurisdiction of magistrates in civil causes like that appearing in the record in this case, under the terms of article 52, § 8, of the Code of Public Gen eral Laws. This court has frequently had before it the question of the jurisdiction of justices of the peace, arising in cases involving a construction of article 52, § 7, but none dependAction by Susan L. Hall, trading as the ing solely upon the construction of section 8. The latter section reads as follows: "If the defendant in an action before a Justice of the Peace for cutting, destroying or carrying away timber or wood to or from any land in this state, or for doing any other injury to such lands shall allege in writing that he claims title to said lands, or that he acted under a person claiming title to the same, whom he shall name in such allegation, and shall verify said allegation by oath, the justice shall take no further cognizance of the case." If this is to be construed to mean that in any action before a magistrate for cutting, destroying, or carrying away timber or wood, the defendant has it in his power to oust the jurisdiction of the justice by simply making an allegation, supported by his oath, that he claims title to the land, and that the magistrate, or circuit court on appeal, is shorn of all right to inquire into the real cause of action, and ascertain whether a question of title to the land is necessarily or directly in issue, there will be no adequate remedy in a large number of cases for petty depredations, and a defendant can virtually shelter himself from responsibility for many illegal acts, so long as the value of the wood or timber cut, destroyed, or carried away does not exceed a certain value. It was certainly never the intent of the Legislature to afford so easy a loophole for the petty depredator. In construing section 7 of article 52, this court said, in Randle v. Sutton, 43 Md. 64, that a "statement of a defendant that title to land was involved is not necessarily conclusive, but that it must appear to the court from the nature of the action itself that it is one in which the title to land is necessarily and directly in issue." While the phraseology of the two sections differs somewhat, the construction already given to section 7 is so eminently the reasonable one that it is proper to extend it to section 8 as well, particularly when the construction contended for by the appellant would lead to the result already indicated. The correctness of this view may be tested in another way. The cause of action on which this suit was brought reads as follows: "To 2,027 feet timber at $1.00 per 100 feet, $20.27." This does not on its face disclose that there was any question affecting the title to land. It is in effect an action in assumpsit for the value of certain timber. [3] If the timber, the value of which was sought to be recovered, had already been cut, no possible question of title to land could arise. And the same is true to the sale of timber standing uncut upon the land. Such a sale is one of goods only. Smith v. Bryan, 5 Md. 141, 59 Am. Dec. 104; Leonard v. Medford, 85 Md. 666, 37 Atl. 365, 37 L. R. A. 449. The rule announced in Randle v. Sutton, 43 Md. 64, that "it must appear to the court from the nature of the action itself that it is one in which the title to land is necessarily and directly in issue" seems therefore to be in reason equally applicable to section 8 as to section 7. Especially is this true in a case like the present, where the bargain for the timber had been concluded and in part executed before the appellant acquired any interest in the property, of which bargain there is some evidence tending to show knowledge on the part of the appellant before the conveyance to him. The ruling of the lower court was therefore correct, and, since the magistrate and the circuit court on appeal had jurisdiction of the case, the judgment of the circuit court was final, and no appeal will lie to this court. The appeal will, accordingly, be dismissed. Appeal dismissed; appellant to pay costs. Under Laws 1905, c. 232, incorporating a breeders' club, and providing that, after payment in of the capital stock and filing of certificate thereof, individual liability of the stockholders should cease, the capital was not paid in by the treasurer showing a certified check for the amount which was borrowed for the sole purpose of making the showing required to procure the certificate. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 951; Dec. Dig. § 231.*] 2. CORPORATIONS (§ 230*)-STOCKHOLDERS— INDIVIDUAL LIABILITY. stockholders liable until payment of capital and Under Pub. St. 1901, c. 150, § 8, making recording of a certificate thereof, that the capital was not paid in when a false certificate liable for debts incurred after payment is acwas recorded does not make the stockholders tually made. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 877; Dec. Dig. § 230.*] 3. CORPORATIONS (§ 230*) — STOCKHOLDERS INDIVIDUAL LIABILITY. stockholders liable for contracts of the corporaUnder Pub. St. 1901, c. 150, § 8, making tion until the capital is fully paid, etc., a stockholder is not liable for work done after such payment under a contract made before such payment. [Ed. Note. For other cases, see Corpora tions, Cent. Dig. § 877; Dec. Dig. 6 230. Pora Transferred from Superior Court, Rockingham County; Pike, Judge. Bill by the Hub Construction Company and others against the New England Breeders' Club and others. Transferred from Superior Court. Case discharged. The bill was filed December 17, 1908, by the Hub Construction Company and the Boston & Maine Railroad; and in October and November, 1909, the town of Salem and the Ameri can Bank Note Company were joined as plain- | paid in if there is a certificate of that fact tiffs. The defendants are the Breeders' Club recorded in the proper places, without regard and certain stockholders in that corporation. to the truth of the certificate at the time it The Breeders' Club was incorporated by an was made. White Corbin & Co. v. Jones, 167 act of the Legislature. Laws 1905, c. 232. N. Y. 158, 60 N. E. 422. The fact that the At the first meeting of the corporation, held officers are required to make the certificate July 20, 1905, the capital stock was fixed to protect the stockholders of the corporaat $500,000, Andrew Miller and two others tion (Stedman v. Eveleth, 6 Metc. [Mass.] were elected directors and William H. Bis- 114, 121) strengthens this conclusion. It is sett was chosen treasurer. When the di- improbable that the Legislature would punrectors met on July 31st, Bissett showed ish the stockholders for the officers' failure them a certified check for $500,000 and told to perform a duty imposed on them for the them the whole capital had been paid in, benefit of the stockholders; and either that whereupon they made a certificate of that was its intention, or it intended that the liafact and caused it to be properly recorded. bility of stockholders should cease when the Bissett and Miller knew that the money did capital is paid in if there is a certificate on not belong to the club, and that it was to be file in the proper offices. In other words, the returned to its owners after the certificate improbability that the Legislature intended was made. The contracts of the club under to punish the stockholders for the officers' which the work of the railroad and the Hub misconduct makes it probable that it intendConstruction Company was done were made ed the defendants' liability for the contracts prior to May 8, 1906, and the contract with of the corporation should cease on May 8, the American Bank Note Company was made 1906. The provisions of section 19, c. 150, after that date. It did not appear when the Public Statutes, strengthen this conclusion. contract with the town of Salem was made. That section provides that, if the officers The court found that the entire capital had make a false certificate, they shall be indibeen paid in on May 8, 1906, and the ques-vidually liable for all debts of the corporation whether the individual liability of the defendant stockholders ceased on that date was transferred without a ruling. Thomas G. Frost, Taggart, Tuttle, Burroughs & Wyman, Burnham, Brown, Jones & Warren, Kelley, Harding & Hatch, and Page, Bartlett & Mitchell, for plaintiffs. Remick & Hollis, for defendants. YOUNG, J. [1] 1. The capital was not paid in by Bissett telling the directors it had been and showing them $500,000 which he said belonged to the club; for the test to decide that question is to inquire whether what happened at the directors' meeting was such a paying in of the capital as section 8, c. 150, Public Statutes, contemplates (Pine River Bank v. Hodsdon, 46 N. H. 114, 116), and not whether the club could have recovered the money from those to whom it was returned. tion contracted while they are in office. If the Legislature had intended to hold the stockholders as well as the officers in such cases, it is fair to assume that equally apt words would have been used to express such intention. There is nothing to rebut the presumption that the defendants' liability ceased on May 8, 1906. If stockholders are liable when the capital has not been paid in, though a certificate has been made and recorded, it does not help the plaintiffs; for in such a case the stockholders have failed to perform their duty of paying in the whole of the capital, and their liability is because of their failure to perform a duty imposed on them for the creditors' benefit, and not because of the officers' failure to perform a duty imposed on them for the stockholders' benefit. The limited partnership cases on which the plaintiffs rely are not in point. The certificate required in such cases is intended to protect those who make it from liability. Consequently, holding them liable when the certificate is false is merely charging them with the consequences of their own misconduct. Neither is there any merit in the plaintiffs' contention that stockholders are liable because the officers who make the certificate are their agents. The duty of making the certificate is not imposed on the officers by the stockholders, but by statute. Consequently, they are not acting for the stockholders when they make the certificate. [2] 2. The plaintiffs contend that the defendants are liable for the work the plaintiffs did for the club after May 8th, notwithstanding the court's finding. In other words, they contend that, when the capital has been paid in, the test of the stockholders' liability is to inquire whether the certificate was true when it was made-not whether one has been made and recorded. The validity of this contention depends on the intention of the Legislature in enacting that "stockholders * shall be liable capital until the * shall have been paid in and a certificate thereof has been filed and recorded, and not afterward." P. S. c. 150, $8. If this language is given its ordinary meaning, the individual liability of [3] 3. The question as to when the liability of stockholders attaches for work done in performance of a contract remains to be considered. The determination of this question depends on the intention of the Legislature in providing that "stockholders * corporation until," etc. P. S. c. 150, § 8. The history of chapter 150 tends to prove that "contracts" is used in that chapter in the sense of contractual liabilities; for, when it was first enacted, stockholders were to be held for all "debts and civil liabilities" of the corporation. Laws 1846, c. 321, § 2. Although "civil liabilities" was changed to "contracts" when this section was re-enacted in 1867 (G. S. c. 135, § 1), the purpose of the Legislature in making the change seems to have been to exclude the torts of the corporation from the liabilities for which the stockholders could be held. Consequently, section 8, c. 150, Public Statutes, should be construed as though it read: Shall be liable for all debts and contractual liabilities of the corporation until, etc. If the plaintiffs were seeking to recover damages for the club's refusal to permit them to complete their contracts, there would be force in the contention that their claims accrued when the contracts were made. They are not, however, seeking to recover such damages, but pay for work they did in performing their contracts. It is clear they cannot recover for that by proving their contracts and showing that they call for the work; they must go further and show that work has been done, before any liability on the part of the corporation to pay for the work attaches. In other words, the liability of a corporation for work done in the performance of an executory contract does not attach at the time the contract is made, but when and as the work is done. As the liability the statute imposes on stockholders is that of guaranteeing the performance of all the contractual liabilities of the corporation until the whole of the capital has been paid in, their liability in a case of this kind attaches when and as the corporate liability accrues, even though at that time no action could be maintained against the corporation. Chesley v. Pierce, 32 N. H. 388, 403; Flather v. Company, 71 N. H. 398, 52 Atl. 454; White v. Green, 105 Iowa, 176, 74 N. W. 928. The test, therefore, to determine whether the plaintiffs or any one of them can recover, is to inquire whether they did any work for the club on or before May 8, 1906, which has not been paid for. Case discharged. All concurred. BARKER v. EASTMAN et al. (Supreme Court of New Hampshire. of action and the parties, but the record of CY OF OTHER ACTION-IDENTITY OF PLAIN- That pendency of another action may be 3. APPEAL AND ERROR (§ 951*) — REVIEW DISCRETION OF COURT. proceedings in a suit in a state court till the If a motion be regarded as one to stay main questions raised in a suit in the federal court be there determined, which the state court may grant in the exercise of its discretion and as a matter of comity, no question of law for the Supreme Court is raised thereby, but one of discretion, which is settled by the denial of the motion by the trial court. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 951.*] 4. COURTS ($506*)-CONCURRENT AND CON FLICTING JURISDICTION-STAY OF PROCEED INGS-DISCRETION. The question of discretion of staying a suit in a state court till determination of a suit in the federal court is rightly decided by determination of all the questions being parties a denial; all the persons necessary to a final to the former suit, but not to the latter. [Ed. Note. For other cases, see Courts, Dec. Dig. § 506.*] 5. WILLS (8 733*)-CONSTRUCTION-TIME FOR VESTING AND DISTRIBUTION OF REMAINDER. Under a will giving testator's property in trust to pay annuities to his two children, C. and H., and to provide for the children of C. and H. then living or thereafter born, and providing that, when the youngest of the children of C. and H. should be 40 years of age, the estate should be theirs, but, before the property should vest in them and be theirs, bonds nuities to C. and H., if living, as long as they should be executed for payment of the anshould live, while to avoid the rule against perpetuities, the time for vesting of title in and distribution among the grandchildren will, under the cy pres doctrine, be cut down to the time that the youngest grandchild becomes 21 years old, provided C. and H. die before such youngest grandchild reaches the age of 40 the grandchildren is not to take place till the years, the vesting in and distribution among youngest is 40 years old, provided C. and H. live that long. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1819-1846; Dec. Dig. § 733.*] Transferred from Superior Court, Rockingham County; Mitchell, Judge. Two bills in equity, involving rights growing out of the will and codicils thereto of Hiram Barker, one by Charles B. Barker against Edwin G. Eastman, trustee, and others, the other by Edwin G. Eastman, trustee, against Charles B. Barker and all Rock- the defendants, except said Eastman, in the first suit. There was a trial by court and facts found, and the cases were transferred to the Supreme Court. Case discharged. 1. PLEADING (§ 106*)-PLEA IN ABATEMENTOTHER ACTION PENDING. Even if pendency of an action in the federal court is ground for abatement, not only must the plea set out the identity of the cause The will and codicils are set forth in Edgerly v. Barker, 66 N. H. 434, 435-440, 31 tion may be made, making provision for securing the rights of Clara Barker Berry and Hiram H. and Ella M. Barker, as stipulated in subdivision 5 of article 8 of the will. He also prays that, on a distribution of the estate, he may be adjudged entitled to onethird thereof, and alleges that he is ready to furnish his part of the necessary security in the event of such distribution. Circuit Court by bill in equity filed March 6, 1911, to determine some of the matters and things set forth by him in his bill filed in the superior court; and that, being uncertain as to his rights and duties in the premises, he prays the advice of the court upon the following matters: (1) When is the estate in the hands of the trustee to be distributed? (2) Under the orders of which court-the federal court, the superior court of New Hampshire, or the probate court for Strafford county-is the distribution of said estate to be made; the proceedings in relation thereto having been first commenced in the federal court? (3) In the distribution thereof to what part of the estate is Hiram H. Barker entitled? (4) May the trustee pay the sum of $3,000 to Eda F. Barker? (5) When do the duties of the trustee terminate, and may he continue to pay the beneficiaries under the will the allowances as heretofore paid, or any allowances whatever, pending the determination of the questions arising under and upon the construction of the will and the distribution of the estate? Atl. 900, 28 L. R. A. 328, and the rights, now in the hands of the trustee has arrivof the parties thereunder have been con- ed, and he prays that an order of distribusidered by the court in that case, and also in Edgerly v. Barker, 67 N. H. 443, 32 Atl. 766, Brown v. Berry, 71 N. H. 241, 52 Atl. $70, and Barker v. Barker, 73 N. H. 353, 62 Atl. 166, 1 L. R. A. (N. S.) 802, 6 Ann. Cas. 596. Hiram Barker's will was made September 9, 1882, the first codicil August 3, 1886, and the second codicil August 9, 1886. The testator died March 26, 1887. At the time of his death, his only daughter, Clara, The bill filed by Eastman alleges, among was about 47 years old and unmarried. His other things, that he is now acting as sole only son, Hiram H., was 35 years old and trustee of the estate and has in his posseshad been married 15 years to his present sion real and personal property of the value wife, Ella M., who was then 32 years old. of about $157,000; that payments have been There were then living five children of made according to the provisions of the Hiram and Ella, as follows: Charles B., will; that the defendants Hiram H., Will born March 23, 1874; Will T., born No- T., and Eda F. Barker have commenced vember 16, 1877; Hiram E., born December proceedings against him in the United States 17, 1878; Mary E., born June 5, 1884; and Louis H., born October 29, 1886. The last three died without issue in 1901 and 1902. Another daughter Eda F., was born March 5, 1890, and on March 5, 1911, she became a beneficiary under subdivision 3 of article 8 of the will, which provides that "any other child or children of my said son, if any, hereafter born, shall have and receive all the rights and benefits from my estate that such child or children would have if living at my decease." Charles B. and Will T., surviving grandchildren of the testator, each received the sum of $3,000 on attaining the age of 21 years, or soon thereafter; but Eda F., the grandchild born after the death of the testator, has not been paid that sum nor any sum under the foregoing provision of the will, although she became 21 years old on March 5, 1911. By subdivision 5 of article 8 of the will it is provided that there shall be paid by the trustees "from said estate to each of said children, when said child shall reach the age of twenty-one years, and to each of the children of my said daughter if she shall marry and have a child or children, the sum of from three Charles B. Barker is not party to the bill thousand to five thousand dollars," provid- in equity pending in the United States Ciring such child shall then possess the quali-cuit Court, and Clara Barker Berry was not fications prescribed. Clara Barker Berry, made party thereto until after both proceedmarried after the death of the testator, has never had issue, and is now about 71 years old. The bill filed by Charles B. Barker alleges that, as Clara Barker Berry is now 71 years old, the possibility of her having Issue is extinct; that, as Hiram H. Barker is 59 years old and his wife, Ella M., is 55 years old, the possibility of their having further issue is practically extinct; and that the terms of the will and codicils evidence a purpose on the part of the testator to provide for a distribution of the estate when the youngest grandchild in being should attain the specified age. Because Eda F., the youngest of the grandchildren now living, became 21 years old on March 5, 1911, the plaintiff claims that the time for the ings pending in the superior court had been instituted and served upon all the parties. May 2, 1911, the original plaintiffs in the federal proceeding obtained an order joining her as a defendant, which was served upon her May 10th, after she had filed her answer in Eastman v. Barker et al. Ella M. Barker was also made plaintiff by amendment. In the bill in equity filed in the Circuit Court, the plaintiffs claim that that court is not bound by the conclusions of the court of this state in Edgerly v. Barker, 66 N. H. 434, 31 Atl. 900, 28 L. R. A. 328, Brown v. Berry, 71 N. H. 241, 52 Atl. 870, and Barker v. Barker, 73 N. H. 353, 62 Atl. 166, 1 L. R. A. (N. S.) 802, 6 Ann. Cas. 596, although they pray for a distribution of |