are essential. Nor can such receipt and ac- | tracted for the purchase of goods offers to ceptance be shown by words alone, where resell them, there is evidence of an acceptsuch words are part of the alleged oral bargain and sale. [3] But receipt and acceptance need not be contemporaneous with the alleged contract, if made in pursuance of it; nor need they be simultaneous. The former may precede or follow the latter. [4] No act of the vendor alone can be effective to make delivery, without receipt and acceptance, take the case out of the statute. (5) If the vendee does any act to the goods, of wrong if he be not their owner, and of right, if he be their owner, the doing of the act is evidence that he had accepted them. These principles are so well established as to require no citation of authorities. In the case at bar the alleged bargain and sale was not of certain specified goods selected and accepted by the purchaser or its agent, but of a certain quantity of goods to be selected by the vendors from a larger mass. The separation of the hay alleged to have been purchased and its deposit outside the barn were the acts of the vendors. Although, from the evidence as to the manner of payment and the subsequent relation of the vendors to the property, we think no lien for the price was retained, it is needless to state that neither receipt nor accept ance can be found from such acts of the vendors. Edwards v. G. T. R. Co., 54 Me. 105, 112; Shepherd v. Pressey, 32 N. H. 49, 55, 56; Knight v. Mann, 118 Mass. 143, 146. Whether the act of the agent of defendant in directing one of its employés to go and remove the hay after it was placed outside the barn was a receipt by defendant, we need not decide, as, even if it were, there was no actual acceptance. See Howe v. Palmer, 3 Barn. & Ald. 321. The purchaser still had the option to object to the quantity, quality, or identity of the goods. It is uncontradicted that defendant directed its agent to offer the hay for sale to a certain party, who refused the offer. Clearly constructive acceptance and receipt may arise from dealing with the goods as owner, as by the purchaser reselling or pledging the goods. The first case of this character is the familiar one of Chaplin v. Rogers, 1 East, 192, where, a stack of hay being sold by parol to the defendant, he, without paying for it or removing it, resold a part of it to another, who took it away. And Kenyon, J., speaking for the Court of King's Bench, says: "Here the defendant dealt with the commodity afterwards, as if it were in his actual possession, for he sold part of it to * * * ance and receipt of the goods which should be submitted to the jury. In Ex parte Safford it is said: "The cases are many where a sale, or a mere offer to sell, or a request by the vendee to the vendor to sell on his account, and various other acts of ownership, have been held sufficient for that purpose (receipt), though the goods remained in the actual possession of the vendor, or of a middleman. It may be said that a resale would be a fraud on the vendor, if the goods are not the property of the vendee, and for this reason the latter is estopped; but the true reason is that such an act is of itself evidence of acceptance and receipt." (Lowell, J.) 2 Low. 563, 566, 21 Fed. Cas. pp. 142, 143. See Garfield v. Paris, 96 U. S. 557, 563, 24 L. Ed. 821; Bowe v. Ellis, 3 Misc. Rep. 92, 22 N. Y. Supp. 369, 371. Smith v. Surman, 9 B. & C. 561, has been relied upon as holding that an offer to sell is not evidence of acceptance and receipt, but there it was distinctly held that it did not appear that the seller had lost his lien for the price. And in Jones v. Bank, 29 Md. 287, 96 Am. Dec. 533, where the goods had not arrived at the place of delivery, it was held that resale of, or offer to sell, goods of the same character was neither an acceptance nor receipt. Clarkson v. Noble, 2 U. C. Q. B. 361, which holds that an offer to sell is not such dealing with the goods as to constitute acceptance, is based wholly upon the authority of Smith v. Surman, ubi supra. And it has been held that an offer by the purchaser to sell certain logs, which were to be manufactured into boards by the seller, was not a constructive receipt and acceptance, but upon the ground that the original contract was one for the sale of boards, and not of logs. Gorham v. Fisher, 30 Vt. 428, 431. In reason we fail to distinguish between a sale and an offer to sell. There is no difference, in so far as the act of the alleged purchaser is concerned. He does no more than offer the goods in either case. Whether, when he has made the offer, his offer becomes a sale in fact depends upon the action of a party who bears no relation to the parties, inter se, to the original alleged sale. In either case his act is equally an assertion of ownership. We conclude that upon the uncontradicted evidence we must find such an acceptance and receipt of the hay as satisfies the requirements of the statute of frauds, and that plaintiffs are entitled to recover of another person." Id., page 194. In Ben- defendant the sum of $85.63, with interest jamin on Sales this case is cited as authori- from the date of the writ; there being no ty for the position that a resale is evi- evidence as to the date of demand made dence of a constructive receipt, as well as by plaintiffs upon defendant before suit of constructive acceptance. Sections 145, | brought. 182. See, also, Morton v. Tibbett, 15 C. B. 428. In Blenkinsop v. Clayton, 7 Taunt. 597, Let judgment be entered for the plaintiffs for the sum of $85.63, with interest from (114 Md. 487) BETTENDORF AXLE CO. v. FIELD et al. (Court of Appeals of Maryland. Jan. 11, 1911.) 1. CONSTITUTIONAL LAW (§ 169*) - OBLIGATION OF CONTRACTS-CHANGING REMEDYSTOCKHOLDER'S LIABILITY TO CREDITORS. Acts 1908, c. 305, § 64a, approved April 6, 1908, amending Code Pub. Gen. Laws 1888, art. 23, § 64, provides that the exclusive remedy for the enforcement by creditors against stockholders of their stock liability, under section 64, shall be by bill in equity in behalf of all the creditors, and shall become operative as of July 1, 1907, and shall abate all actions at law brought against said stockholders since said date. Section 79 provides that nothing therein shall impair the obligation of any stockholder existing on the 1st day of June, 1908, or the remedies to enforce or protect the same. Held, as to a creditor who brought his action after the act went into effect, that the act is not invalid as impairing the obligations of a contract, under Const. U. S. art. 1, § 10, as it gives the creditor an alternative remedy in equity equally as adequate. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 478-481; Dec. Dig. § 169.*] 2. CONSTITUTIONAL LAW (§ 42*)-PARTIES AFFECTED BY ACT OF LEGISLATURE. A party whose rights are not affected by the provision in a statute cannot raise the question of its constitutionality. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 39, 40; Dec. Dig. § 42.*] Appeal from Superior Court of Baltimore City; Henry D. Harlan, Judge. Action by Bettendorf Axle Company against Charles W. Field and another, executors of George A. Von Lingen. From a judgment for defendants, plaintiff appeals. Affirmed. Argued before BOYD, C. J., and PEARCE, BRISCOE, SCHMUCKER, BURKE, тномAS, PATTISON, and URNER, JJ. Company, and as such were prior to, are, and have been, during all of the period the owners and holders of one hundred and eighty (180) shares of the preferred capital stock of the par value of one hundred dollars ($100) per share (the preferred capital stock being of the class known as ordinary or pure preferred capital stock, and was not issued under or in accordance with section 408 of article 23 of the Code of Public General Laws of the state of Maryland of 1904), and two hundred and fifteen (215) shares of the common capital stock of the said company of the par value of one hundred dollars ($100.00) per share, upon which preferred and common stock there is a balance due and unpaid of nine thousand dollars ($9,000.00), with interest from February 1, 1906; the capital stock so, as aforesaid, held and owned by the defendants, having a par value of thirty-nine thousand, five hundred dollars ($39,500.00), being nine thousand dollars ($9,000.00) in excess of all sums paid by the defendants or by any one for or on account of the defendants to the company for the shares; the shares having been acquired by the defendants by subscription or purchase from the South Baltimore Steel Car & Foundry Company, and the defendants are as to the shares original stockholders having had at all times knowledge that the stock was not fully paid and of the extent of the nonpayment. And the plaintiff claims eighteen thousand dollars ($18,000)." To this declaration, the defendants pleaded the general issue, pleas of never indebted as alleged, and never promised as alleged. For a third plea they allege that the cause of action did not accrue within the three Bartlett, Claggett & Bland, for appellant. years before the suit. And for a fourth plea, Charles W. Field, for appellees. BRISCOE, J. This is a submitted case, and the appeal is from a judgment of the superior court of Baltimore city in favor of the defendants for costs. The suit was instituted by the appellant as a creditor of the South Baltimore Steel Car & Foundry Company, a corporation of the state, against the appellees, as executors of George A. Von Lingen, a stockholder of the corporation. The declaration contains seven counts, six in assumpsit, and the seventh a special count, as follows: "And for that the plaintiff is a creditor to the South Baltimore Steel Car & Foundry Company, a body corporate of the state of Maryland, organized and existing under the general laws of the state, in the sum of twenty-four thousand, eight hundred and eighty-four dollars and ninety cents ($24,884.90); and that the defendants were prior to, are, and have been, during all the time that the plaintiff has been a cred to the seventh count of the declaration, they say that the alleged indebtedness of the defendants, or of their testator, to the South Baltimore Steel Car & Foundry Company for the purchase of stock therein did not accrue within three years before this suit. And for a fifth plea to the seventh count of the declaration, they say that the 180 shares of the preferred capital stock of said South Baltimore Steel Car & Foundry Company, referred to in the count, were issued under and in accordance with section 408 of article 23 of the Code of Public General Laws of the State of Maryland of 1904, and were full-paid and nonassessable shares, in accordance with the section of the Code; and that the 215 shares of the common stock of the company, referred to in the count, were also full-paid, nonassessable shares in the company, in accordance with the law, and that no sum whatsoever was ever due to the company thereon by the defendants or their testator, George A. Von Lingen, at and prior to the institution of this suit. itor of the company, original stockholders of On the 10th day of May, 1910, the dethe South Baltimore Steel Car & Foundryfendants, the appellees here, moved the court that the suit be declared abated and dis-holders residing beyond the limits of the missed for the following reason: That this is a suit by a creditor of a corporation to enforce the liability of one of its stockholders therein, and that chapter 305 of Acts of 1908 of the General Assembly of Maryland provides that the exclusive remedy for the enforcement of such rights shall be by bill in equity, and that the law by its terms became operative as of July 1, 1907, and further declared that it shall cause the abatement of all actions at law, which should have been brought against stockholders since that date, and that this suit was brought subsequent to July 1, 1907, and, in fact, was brought more than 18 months after the passage of the above-named chapter 305 of the Acts of Assembly of 1908, and after the statute had been in full force and effect; and the action should therefore be declared abated. This motion to abate was granted by the court below, and on the 10th day of May, 1910, the suit was directed to be abated and dismissed, and a judgment entered for the defendants for costs. The single question then raised on the record, and presented for our consideration, is the constitutionality of the Acts of 1908, c. 305, that is, first, whether the retrospective provision of the act of 1908, c. 305, is valid, and, secondly, if it is valid, then was that act superseded by chapter 240 of the Acts of 1908 (the new general corporation law), which became effective June 1, 1908. By the act of 1908, c. 305, section 64 of article 23 of the Code of 1888, title "Corporations," was repealed and re-enacted, and a new section, known as 64a, was added. This section reads as follows: "64a. The exclusive remedy for the enforcement by creditors against stockholders of all rights existing under the preceding section 64, as the same stood prior to the time of the passage of this act, and which were declared by said section as amended by this act not to be affected by the terms thereof as herein amended, shall be, as against stockholders residing in the state of Maryland, by bill in equity in the nature of a creditor's bill filed against such stockholders by one or more creditors on behalf of themselves and all other creditors of the corporation who may come in and make themselves parties thereto, in a court having jurisdiction within the limits of the county or city of Baltimore, in which, as the case may be, the principal office of the corporation is situated at the time of the filing of the bill, or in case any such corporation has, by reason of having been placed in the hands of a receiver, or from any other cause, ceased to have any principal office at the time of the filing of the bill, then the bill shall be filed in a court having jurisdiction within the limits of the county or the city of Baltimore in which, as the case may be, the said corporation had its last principal state of Maryland may become parties defendant, and, upon so becoming parties, shall not be proceeded against in any other state or territory or in the District of Columbia, in respect of any liability imposed by the said section 64, as said section stood before the repeal thereof, and which existed at the time of the passage of this act hereinbefore referred to. This section shall become operative as of July 1st, 1907, and shall cause the abatement of all actions at law which shall have been brought against said stockholders since that date to enforce any repeal thereof, and which existed at the time of the passage of this act, hereinbefore referred to; provided, however, that as to any plaintiff or plaintiffs in any of said abated suits, who shall, within sixty days from the passage of this act, become a party or parties to a bill in equity of the character mentioned in this section, then, as regards the operation of the statute of limitations upon the claim so sued on, the time elapsed between the institution of said abated suits and the time of such plaintiff or plaintiffs becoming a party or parties to said bill in equity shall be included in ascertaining the period within which suits are required to be brought by the said statute of limitations, the costs taxable to any plaintiff or plaintiffs in any action at law which shall be abated under the provisions of this section, the plaintiff or plaintiffs in which action shall become a party or parties to a bill in equity under the provisions of this section, shall become a part of the costs taxable in the proceedings in said equity case." This act, it will be seen, was approved on April 6, 1908, and this suit was not brought by the appellant until the 19th day of November, 1909. It is quite clear, then, that if the law is constitutional that the remedy sought by this suit no longer existed, because, under the terms of the act, all actions at law by creditors of such corporations against stockholders to enforce their stockholder's liability since July 1, 1907, should be abated, and all actions at law for the enforcement of such liability, instituted after that date and prior to the passage of the act, should be abated. A bill in equity was made the exclusive remedy for the enforcement by creditors of corporations of the liability to them of the stockholders for any unpaid balances due on this stock. The old remedy at law was abolished by this act, and a suit in chancery substituted in its place. Now it is admitted by the appellant and appellee in their briefs that the questions raised on this appeal are identical with those raised, passed on, and determined by us in the recent case of Pittsburg Steel Co. v. Baltimore Equitable Society (decided by us on March 31, 1910) 113 Md. 77, 77 Atl. 255. Upon reference to that case, we find and determined by all of the Judges of this court, after full and careful argument upon the part of the appellant and appellee, and is now pending on appeal from this court to the Supreme Court of the United States, upon writ of error, dated the 27th of June, 1910. [1] In that case we held the act of 1908, c. 305, to be valid and constitutional, and upon a second consideration of the same questions we find no reason to disturb or overrule the decision then made, but hold it to be con suit or the rights of the parties to it. That act, as its title declares, was passed to revise the corporation laws of the state by repealing certain specified sections of article 23 of the Code of 1904, and substituting new sections in their stead. By it sections 1 to 92 of article 23 are among those repealed, for which new sections numbered from 1 to 79, inclusive, are substituted. The new sections make some changes in the nature and extent of the liability of the stockholders of a corporation to its creditors, but section 79 clusive upon the issue presented in this case. distinctly saves all existing rights and rem We said, in the Pittsburg Steel Company's Case, supra, that we had occasion to pass upon the constitutionality of a statute having a precisely similar operation to the one now before us in the case of Miners' Bank v. Snyder, 100 Md. 57, 59 Atl. 707, 68 L. R. A. 312, 108 Am. St. Rep. 390, and held it to be valid. It was also said, neither the Acts of 1904, с. 337, in issue in the Miners' Bank Case, nor the Acts of 1908, in issue here, give to the creditor suing the stockholder at law any lien or priority, by reason of having brought suit, upon the debt due by the defendant stockholder or to the corporation. Nor does the entry of suit by one creditor exclude the other creditors from suing the same stockholder and recovering the entire debt due by him, if they can secure earlier judgments. It is the recovery of judgment, not the entry of suit, that gives to the suing creditor the exclusive right to the debt due by the defendant stockholder. In Garling v. Baechtel, supra (41 Md. 305), it was held that the mere bringing of suit by one creditor against a stockholder does not constitute a defense to a suit by another creditor. edies of creditors and stockholders as of June 1, 1908, in comprehensive terms. It says: "Nothing herein shall release, affect or impair the rights of any creditor or creditors of any corporation or the obligations or liability of any corporation or of any stockholder or of any corporate officer existing on the said first day of June in the year nine teen hundred and eight (1908) or the remedies to enforce or protect the same." Chapter 240 of the Acts of 1908 did not take effect until June 1, 1908, but chapter 305 by its express terms took effect from the date of its passage. It was approved by the Governor on April 6, 1908, and was therefore in operation prior to June 1, 1908, and the rights and remedies conferred by it on creditors of corporations against their stockholders were within the saving clause of section 79 of chapter 240. In the case at bar, it will be seen that the suit was not brought until 18 months after the act had been passed, whereas, in the Pittsburg Steel Company Case, the action had been brought months prior to the passage of the act. We therefore hold in this case, for the reasons stated and for the reasons more fully considered in the Pittsburg Steel Company Case, supra, that the act of 1908, c. 305, is not invalid as impairing the obligations of a contract under section 10 of article 1 of the federal Constitution, because it gives the creditor an alternative remedy in equity equally as adequate and efficacious. Seibert v. Lewis, 122 U. S. 284, 7 Sup. Ct. 1190, 30 L. Ed. 1161; Bryan v. Virginia, 135 U. S. 693, 10 Sup. Ct. 972, 34 L. Ed. 304. The judgment will be affirmed, with costs. Judgment affirmed, with costs. [2] It was further said: "The laws cre ating the liability of the stockholder, which were in force at the time of the passage of the acts making the remedy in equity exclusive, were silent as to the remedy. The practice of enforcing the liability by an action at law grew up under the decisions of this court, which held the liability to be a debt due under the statute by the stockholder, and therefore recoverable at law. The act also contains a provision touching the running of limitations against the claims of creditors which had been sued on at law prior to its passage; but, as it does not appear from the record that the rights of the appellant are affected thereby, he cannot be heard to raise the question of its constitutionality." A. & E. Encyc. vol. 6, p. 1090; 8 Сус. 787, 788; Red River Valley Bank v. Craig, 181 U. S. 558, 21 Sup. Ct. 1. WILLS (§ 678*) - CONSTRUCTION-CREATION 703, 45 L. Ed. 994; Lampasas v. Bell, 180 U. S. 283, 284, 21 Sup. Ct. 368, 45 L. Ed. 527; Phinney v. Sheppard & Enoch Pratt Hospital, 88 Md. 639, 42 Atl. 58; Joesting v. Baltimore, 97 Md. 594, 55 Atl. 456. We do not think that chapter 240 of the Acts of 1908 affects the status of the present (76 Ν. Η. 108) MCALLISTER v. HAYES et al. (Supreme Court of New Hampshire. Hillsborough. April 4, 1911.) OF TRUST-"IN TRUST." Testator, after bequeathing to a trustee $20,000, with directions to pay the income thereof to testator's son during his life, made a codicil in which he directed that, after the death of the son, "the said $20,000 in trust" should go in equal shares to seven named nephand nieces, "to them and their heirs and assigns forever." Held, that no trust was cre ews ated for the nephews and nieces, as the words "in trust" in the bequest to them were merely descriptive of the fund bequeathed. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 1593; Dec. Dig. § 678.* For other definitions, see Words and Phrases, vol. 4, pp. 3485, 3486; vol. 8, p. 7684.] 2. WILLS (§ 455*) - CONSTRUCTION - INTENTION OF TESTATOR. The literal meaning of a will governs, and is accepted as the intention of a testator, unless other evidence shows that his intention was otherwise; for the presumption is that a testator intends the natural import of his lan guage. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 972, 973, 976; Dec. Dig. § 455.*] 3. WILLS (§ 542*)-CONSTRUCTION - LIMITATION OVER INTERVENING RIGHT-"HEIRS." Testator bequeathed to a trustee $20,000, to pay the income thereof to testator's son during his life, and also $5,000 to the same trustee to pay the income thereof to a grandson during his life, and also bequeathed to the son all the residue of the estate, including the $5,000 bequest. A codicil provided that, after the decease of the son "and all of his lawful heirs, I give and bequeath, in equal shares, the said $20,000 in trust" to seven named nephews and nieces, "to them and their heirs and assigns forever." Held that, by the use of the word "heirs" in the expression "after the decease of my son and all of his lawful heirs," testator meant the "children" of the son, and it was the intention of the testator that the nephews and nieces should not take anything under the bequest until after the death of the son and all of his children, though there was no express disposition of the income accruing on the fund after the death of the son, as such income would fall into the residue, which by the terms of the will belonged to the son's estate. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1165-1168; Dec. Dig. § 542.* For other definitions, see Words and Phrases, vol. 4, pp. 3241-3265; vol. 8, pp. 7677, 7678.) 4. WILLS (§ 455*) - CONSTRUCTION - INTEN TION. When the language of a will is plain and unambiguous, no different intention of the testator is to be sought. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 972, 973, 976; Dec. Dig. § 455.*] 5. EXECUTORS AND ADMINISTRATORS (§ 45*) -_ ASSETS OF ESTATE-INTEREST UNDER BEQUEST. Where testator bequeathed a sum of money to a trustee, with directions to pay the income thereof to testator's son during his life, and provided that, after the death of the son and all of his children, the principal of the fund should be paid to certain nephews and nieces of testator, and the will also bequeathed the residue of the estate to the son, there be ing no provision for continuance of the trust after the death of the son, and no express directions as to the disposition of the income accruing after the death of the son and before the death of the last of his children, the income of the fund during that time should be collected by the executors of testator's estate and paid by them to the executor of the son's estate. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 296; Dec. Dig. § 45.*] 6. EXECUTORS AND ADMINISTRATORS (§ 45*) RIGHT OF LEGATEE-UNEXPENDED INCOME. Where testator bequeathed a sum of money to trustees, with directions to pay the in come thereof to testator's son during his natural life, any unexpended balance of income which accrued before the son's death should be paid to his executor. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 296; Dec. Dig. § 45.*] Transferred from Superior Court, Hillsborough County; Pike, Judge. Suit by George I. McAllister, as trustee, against Charles C. Hayes, executor of George S. Elliot, for construction of the will of John S. Elliot, deceased. Case transferred from the superior court. Will construed, and case discharged. The third paragraph of the will is as follows: "I give to said Balch the sum of twenty thousand dollars during the life of my son, George F. Elliot, in trust to safely invest the same and pay the net income thereof to him or for his benefit, at the discretion of the trustee from time to time, as he shall judge to be for his best interests, wishing in this way, so far as I may, to provide for the contingencies and misfortunes that sometimes come to the most prudent men." The testator also bequeathed to Balch "the sum of five thousand dollars, in trust to safely invest the same and its accruing interest until my grandson, John S. Elliot, Jr., shall be sixteen years of age, and then apply so much thereof as shall be required for the education of my said grandson in a thorough manner for such business or profession as said trustee, having regard to the tastes and capabilities and habits of my said grandson, shall deem most for his advantage and usefulness in life, and to pay the unexpended balance from time to time to him, or for his benefit, in the discretion of said trustee, as he shall deem for his best good." The will also made provision for the testator's wife and sister, and contained the following residuary clause: "All the rest, residue, and remainder of my estate of whatever nature, I give, bequeath, and devise to the said George F. Elliot, said residue to include the said sum of five thousand dollars, or its accumulations, in case my said grandson shall not live to the aforesaid age of sixteen years." * * * The testator executed the will on May 13, 1876, and two days later added a codicil thereto, as follows: "Whereas, I, John S. Elliot, made and executed my last will and testament in writing, and whereas by my said will I gave to Charles E. Balch, in trust for my son George F. Elliot, during his life, the sum of twenty thousand dollars, now I do hereby make and declare this writing to be a codicil to my said last will and testament, to be annexed to and taken and allowed as a part thereof; and that after the decease of my son, George F. Elliot, and all of his lawful heirs, I give and bequeath in equal shares of the said twenty thousand dollars in trust, to the following named per |