nor against public policy for him, when thus called on, to repeat the witness' testimony. So, also, he may testify as to whether a particular person gave any evidence or was examined at all before the grand jury. Com. v. Hill, 11 Cush. 137. To give no further illustrations, it is sufficiently apparent from those just alluded to that the proposition that it is against public policy for a grand juror to disclose what transpired in the jury room is stated too broadly in the argument, and of course the conclusion deduced therefrom is unsound.

The

Both upon principle and authority it is clear that an indictment for perjury committed before the grand jury may be found and supported upon the testimony of members of that body. If this were not so, it would in many instances be but an idle form to swear witnesses to testify to the truth before the grand jury. The guilty would often escape indictment by the deliberate utterance of falsehood by witnesses, and the innocent might by the same means be subjected to wanton prosecutions. If the perjurer were by the law of the land shielded from all punishment. Investigations by grand juries would be without value. The secrecy of the proceeding and the guarantied immunity from punishment would stimulate perjury and multiply false witnesses. If witnesses who testify falsely before the grand jury are free from all the penalties of perjury merely because of the juror's oath of secrecy, the object designed to be effected by that clause of his oath would be perverted, and a measure intended to promote the public welfare would be transformed into a means to defeat the ends of justice. The law does not permit the obligation of secrecy which has been imposed for one purpose to be availed of for a totally different one. grand juror's oath of secrecy cannot, therefore, be interposed to obstruct the administration of justice; it cannot be made the means to defeat the punishment of crime. Christian, in his note on page 126, 4 Bl. Comm., says: "A few years ago, at York, a gentleman of the grand jury heard a witness swear in court, upon the trial of a prisoner, directly contrary to the evidence which he had given before the grand jury. He immediately communicated the circumstance to the judge, who, upon consulting the judge of the other court, was of opinion that public justice in this case required that the evidence which the witness had given before the grand jury should be disclosed; and the witness was committed for perjury, to be tried upon the testimony of the gentlemen of the grand jury. It was held that the object of this concealment was only to prevent the testimony produced before them from being contradicted by subornation of perjury on the part of the persons against whom bills were found. This is a privilege which may be waived by the crown. Mr. Justice Parke, in his charge to the grand jury at Middlesex special commission, said: "You are assembled in consequence of a commission directed to myself and others empowering us to try certain offenders. This is an extraordinary proceeding. You are aware that it

arose from an irregularity in the mode of serving the witnesses who were to give evidence before the grand jury, which irregularity would prevent those persons from being indicted for perjury. This, in the opinion of the judges, prevented the persons from being legally convicted." 6 Car. & P. 90. "There is no doubt that the witnesses before the grand jury should be sworn in such a manner that, if the testimony was false, they might be indicted for perjury." State v. Fasset, 16 Conn. 457; State v. Broughton, 7 Ired. 96; People v. Young, 31 Cal. 563. It follows, then, that there was no error in the ruling of the court upon the demurrer, nor in its rulings set forth in the fourth and fifth bills of exception. The docket entries and the ticket given by the deputy clerk to Izer, showing that Izer had been sworn as a witness to the grand jury, were compe. tent and admissible evidence, and there was no error in allowing them to go to the jury. This is all that need be said in disposing of the first exception.

There

The second and third exceptions raise the only other question for review. It appears by the record that H. W. Williamson, who was acting deputy clerk, administered to Izer the oath under which the latter testified before the grand jury. The second exception states that Williamson had acted as deputy clerk since 1886; that he had taken the oath of office as deputy and signed the test book that year; that Mr. Lurman's term as clerk had expired in 1891; and that he had been re-elected the same year, and had thereafter duly quali fied; but that, though there had been no reappointment of Mr. Williamson, and no new oath of office administered to him, he continued to act as deputy clerk during Mr. Lurman's second term of office. upon the prisoner moved the court to Strike out all the evidence tending to show the administration of the oath by Williamson to Izer upon the occasion of Izer going before the grand jury in 1892; but the court overruled the motion, and this is the ruling complained of in the second exception. The prisoner then offered to prove that there was no record in the minutes of the circuit court showing the approval by the court of Williamson's appointment in 1886; but the state objected, and the court sustained the objection, and this ruling has been brought up by the third exception. Of course, if Izer was never legally sworn to give testimony before the grand jury, no false statement made by him before that body could constitute indictable perjury; and, if Williamson had no authority to administer to Izer the oath he did administer, Izer was not legally sworn. But Williamson was then in the undisputed possession of the office of deputy clerk, and since 1886 had openly and notoriously discharged the duties pertaining thereto. He was at least a de facto officer, filling a de jure office; and, whatever defects or irregularities there may have been in the manner of his appointment or qualification, his acts done under color of title are, upon grounds of public policy and necessity, valid and binding. Norton v. Shelby Co., 118 U. S. 425, 6 Sup. Ct. Rep. 1121. Or, as was said in Carleton v. Peo

that, but for the habit of excessive drinkfug, he would be capable of earning a decent livelihood for himself and family; that the amount of state, county, and city taxes is annually about $134; that "on a few occasions, and after the year 1882, the defendant has sought to interfere with the payment of rents to your oratrix," and has recently demanded of some of the persons to whom she had rented parts of the property aforesaid payments to him of said rents, and she charges that he will, unless restrained, seek to recover and receive all the said rents and profits, and appropriate the same to his own use; and that she has reason to believe, and does believe, that if he succeeds in securing possession of the said rents, he will not pay the taxes annually accruing, nor apply them to the needs of herself, so that she will be entirely deprived of all her means of livelihood. The prayer of the bill is that out of the rents, etc., arising from the said property and bank stock before mentioned, and intrusted and acquired by her as aforesaid, a suitable and sufficient provision for the support and maintenance of your oratrix may, by the decree of your honors, be made and secured to her, and that the defendant may be enjoined and restrained from in any wise interfering with the same, and from collecting and interfering with the said rents, issues, and profits arising from said property and bank stock as aforesaid, until the final hearing, or until the further order or decree in the premises." On the 19th day of August, 1887, the court passed an order refusing the injunction prayed for by the amended bill. Subsequent to the passage of this order, the defendant filed his answer, in which, after denying many of the averments of the bill, he admits he has demanded, as of right, the rents and profits of the property inherited by his wife from her father in 1852, but alleges he has no wish or purpose to divert them from the support of the complainant. He also denies the jurisdiction of the court to interfere with him in the management and control of that property, and by the concluding paragraph pleads in bar of this proceeding a former cause between himself and the complainant, being No. 2,171 of the equity docket of the circuit court for Carroll county. After many delays, and the taking of much testimony, the court, on the 25th day of July, 1892, finally decreed that the order of the court “refusing the injunction prayed for by the amended bill *** be, and the same is hereby, made perpetual," and that the "bill of the complainant is hereby dismissed."

*

It was contended at the argument that, notwithstanding the order of the court refusing the injunction asked for in the amended bill, and the final decree making that refusal permanent and dismissing the bill, the injunction granted upon the original bill is still continuing; but we cannot assent to this. The amendment to the bill In this case was made, not by filing a pa. per containing only such averments as were amendatory, but by an entirely new bill, complete in all its parts, containing substantially the same averments and

praying for the same relief as the original bill. It was clearly intended by the complainant and understood by the court as a substitute for the original complaint. In her petition praying leave to amend, the complainant states "that she has embod ied said amendments and supplementary statements in a paper or bill of complaint herewith shown, and prays leave

*

to file the same for an amended and supplemental bill of complaint in said cause,' and the court thereupon ordered that "the same be taken and received as an amended and supplemental bill." The order, therefore, passed upon this bill, was, in effect, a refusal to continue the injunction previously granted. Even if it could be considered that the amended bill was not the entire complaint of the appellant, and could be taken as only an amendment, which, together with the original bill, formed the basis of her action, yet, inasmuch as the court by its final decree dismissed the bill, it cannot be contended that the injunction first granted still continues. Amendments to a bill are always considered as forming a part of the original bill, (1 Daniell, Ch. Pr. 407, note; Walsh v. Smyth, 3 Bland, 9-20;) and a dismissal of the bill ipso facto dissolves the injunction, (2 Daniell, Ch. Pr. 1675; Green v. Pulsford, 2 Beav. 70-75; High, Inj. § 1476.)

We do not deem it necessary to advert to the testimony contained in the record, nor to the many objections to the proceed. ings raised by the solicitor for the appellant at the argument, for the reason that upon the allegations of the bill the court had no jurisdiction to grant the relief prayed for, The bill prays for a separate maintenance out of property mentioned therein. This property, it is stated, consists of that which the complainant acquired by the death of her father in 1852, and that which was purchased by her in 1878 from Mr. McKellip. The injunction is also asked, not only to restrain the defendant from interfering with such prop. erty as may be set apart for her mainte. nance, but also with any of the property until the final hearing. It is difficult to conceive upon what theory it can be claimed that the averments of the bill are sufficient to justify a court in allowing an injunction as to the property acquired from Mr. McKellip. It is not clearly alleged that the defendant has made any effort to collect the rents from this property, nor is it charged that she is in danger of irreparable injury as a consequence of any act of his. Having been acquired by purchase since the adoption of the Code of 1860, she holds it as if she were a feme sole, and it can therefore not be subjected to a decree for a separate maintenance in a suit against her husband. Hall v. Hall, 4 Md. Ch. 283; Code, art. 45, § 2. The vague charge that the defendant has recently demanded of some of the persons to whom she had rented parts of the property payment to himself, even if it could be held to refer to these lots, would be, as a foundation for the action of the court, far from sufficient to entitle the complainant to this high and extraordinary power of a court of equity. The only mode of obtaining an injunction is by a bill, which

shall state a case of plain right, in probable danger of being irreparably injured or altogether defeated unless the injunction be granted as prayed. Binney's Case, 2 Bland, 104. The remaining property referred to in the bill is that which she acquired from the estate of her father in 1852. In this he retains all marital rights by the law as it existed prior to the adoption of the Code of 1860. By virtue of these rights, the rents and profits of the lands inherited by his wife, and referred to in these proceedings, were his property. 2 Kent, Comm. 129 et seq. And the personal prop. erty vested in him absolutely. Peacock v. Pembroke, 4 Md. 280. As to this property, the injunction asked for is ancillary to the main purpose of the bill; that being to secure a separate maintenance for the wife out of its rents and profits. If that purpose be of such a character as to be beyond the equitable jurisdiction of the court, the injunction obviously must not be allowed. Spear v. Orendorf, 26 Md. 43. It is not alleged that the appellant was compelled by the misconduct and cruelty of the husband to separate from him, and In the case of Helms v. Franciscus, 2 Bland, 564, the chancellor, in determining the authority of the court under the act of 1777, (chapter 12.) codified in article 16, § 14, has said: "It [the court] cannot allow itself to receive any matter as a sufficient ground for granting alimony alone, which would not be a sufficient foundation in England for granting a divorce a mensa et thoro, together with its incident alimony. * * In all such cases the wife must show either that her husband has been guilty of adultery or cruel treatment. Jamison v. Jamison, 4 Md. Ch. 294. Nor is the husband asking the intervention of a court of equity to obtain possession of the wife's property. In such a case the court might require him to do what is equitable by making a suitable provision out of it for her maintenance. In fact a court of equity has no original, inherent jurisdiction to grant the wife a separate maintenance. In Ball v. Montgomery, 2 Ves. Jr. 195, the lord chancellor said: "I take it to be established law that no court has any original jurisdiction to give a wife a separate maintenance. It is always as incidental to some other matter that she becomes entitled to separate provision. If she applies in this court upon a supplicavit, for security of the peace against her husband, and it is necessary that she should live apart as incidental to that, the chancellor will allow her separate maintenance.' 2 Story, Eq. Jur. § 1424; Nicholls v. Danvers, 2 Vern. 671; Gilchrist v. Cator, 1 De Gex. & S. 188. In Wiles v. Wiles, 3 Md. 8, this court, in speaking of the wife's equity, and citing from 2 Kent, Comm. 141, says: "It does not, according to the adjudged cases, attach, except upon that part of her personal property in action, which the husband cannot acquire without the assistance of a court of equity. *** If the husband can acquire possession without a suit in law or equity, or by a suit at law without the aid of a court of chancery, [except perhaps as to legacies and portions by will or inheritance.] the husband will not be disturbed in the exercise of the

"

right." So in Schindel v. Schindel, 12 Md. 294: "None of the property involved in the controversy is of an equitable character. The husband is not asking the interveution of a court of equity for the purpose of obtaining the possession. In such a case it would be in the power of a court having jurisdiction of the property to compel him to do equity by making a suitable provision out of it for her maintenance. Here the estate is legal. It is all in the absolute possession of the husband by virtue of the marriage, and in such a case a court of equity has no jurisdiction or power to disturb him in the exercise of his legal rights, or to decree any equitable settlement for the wife out of the property." Hall v. Hall. 4 Md. Ch. 283; Mann's Ex'r v. Higgins, 7 Gill, 266.

The decree must therefore be affirmed.

TWILLEY v. PERKINS et al. (Court of Appeals of Maryland. March 15, 1893.) CONSTITUTIONAL LAW-POLICE POWER-REGULATING USE OF BRIDGE-FALSE IMPRISONMENT.

1. Under Act 1890, c. 85, § 5, empowering the county commissioners "to make reasonable rules and regulations for the use" of a certain bridge by the public, a rule forbidding all persons "to ride a bicycle, tricycle, or velocipede over the bridge" is authorized.

2. Where an officer arresting a person for violating an ordinance, instead of taking him before a justice of the peace to be dealt with according to the statute authorizing the ordinance, and providing for collection of the penalty by suit, or, failing in that, by commitment, puts him to the alternative of paying a certain sum as the penalty, or of going to jail, he is liable for false imprisonment to the extent that he so holds him in custody.

Appeal from circuit court, Kent county. Action by William S. Twilley against George T. Perkins and Benjamin F. Henly. Defendants had judgment, and plaintiff appeals. Reversed.

Argued before ALVEY, C. J., and BRYAN, MCSHERRY, FOWLER, PAGE, ROBERTS, and BRISCOE, JJ.

H. H. Barroll, Thos. S. Hodson, and Clar. Hodson, for appellant. Marion De K. Smith, for appellees.

ALVEY, C. J. The plaintiff brought this action against the defendants for an assault and battery and false imprisonment. He alleges-First, that he was illegally arrested and detained; and, second, that he was, without legal or reasonable cause, assaulted by the defendants, and taken into custody by them, and under threats of further detention and imprisonment in jail he was required to pay the sum of $2.50 in order to regain his liberty. The defendants pleaded not guilty.

The material facts of the case, as set forth in the record, are these: The bridge at Chestertown over Chester river, the river dividing Kent and Queen Anne's counties, was originally constructed by the Chester Bridge Company, and was a toll bridge. This bridge, by the authority of the legislature of the state, was purchased by the two counties, Kent and Queen Anue's, with the view and for the

purpose of making it a free public bridge and thoroughfare, to be under the joint management and control of the county commissioners of the two counties. This was authorized by the act of 1888, (chapter 376.) The act of 1890 (chapter 85) is supplemental to the original act of 1888, and makes some changes in the manner of accomplishing the purchase, and as to how the bridge shall be managed and controlled by the commissioners of the two Counties after the same should be turned over to them. From the time of the consummation of the purchase it is declared by the third section of this latter act of 1890, "that thereafter said bridge shall be taken, held, and perpetuated as a free public bridge between said counties;" and by the fifth section of the same act it is provided that the commissioners of the two counties shall have full power and authority to make reasonable rules and regulations for the use of said bridge by the public, and for the protection of said bridge and other property belonging thereto or therewith and to enforce the observance thereof by imposing upon the party violating the same any reasonable fine not exceeding $10 for any violation thereof. which fines shall be collected as small debts are now collected, and shall be recovered in the name of said commissioners before any justice of the peace of either of said counties in which the party violating such rules and regulations shall be found, and on failure or refusal to pay, and inability to collect by legal process, the party so fined shall be committed to the county jail of the county for a period not exceeding 10 days, in the same manner as commitments are made for fines imposed by the circuit courts of this state on conviction for misdemeanor, etc. In July, 1890, after the sale of the bridge had been effected to the counties, and the bridge turned over to their control, the commissioners of the two counties met and adopted rules and regulations for the uso of the bridge by the public, but the only one of which rules that has been inserted in the record is this: "No. 9. Persons will not be allowed to ride a bicycle, tricycle, or velocipede over the bridge. Notwithstanding this prohibition, the plaintiff, on the 18th of June, 1891, rode a bicycle over the bridge from the Kent county side to the Queen Anne's side, and on his return he was arrested and held in custody by the defendants,-Perkins being the bridge keeper, and Henly a constable of Kent county; and that the arrest was made without the issuance of any warrant. It is conceded that these parties, so acting, supposed that they were acting under and as authorized by the act of 1890, (chapter 85,) and that they used no more force or violence towards the plaintiff than was necessary; that these parties were charged with the duty of enforcing the rules made by the commissioners of the two counties, and that the defendants did compel the plaintiff to pay the sum of $2.50 as a penalty for the violation of said rule No. 9, under the alternative of going to jail forthwith if he refused to pay, which alternative the defendants were then and there ready to enforce, but, upon being paid the said sum, the defendants allowed the

plaintiff to go at liberty. It was further shown that the bridge is built of wood, and has wood railings, and is about one third of a mile long from shore to shore; and that the depth of the water under the bridge is between 8 and 20 feet, the greatest depth being in the channel of the river. It was also shown in proof that some borses, ordinarily gentle, are frightened at bicycles ridden by persons along the public highways, and that some horses never get accustomed to them; and that horses becoming frightened at bicycles ridden by persons on the bridge would endanger the lives of persons driving such horses. The plaintiff offered proof tending to show that, as a general rule, horses, ordinarily gentle, and well broken, do not become frightened at bicycles; that, while the bridge was a toll bridge, persons were accustomed to ride over it on bicycles, and no accidents occurred. The plaintiff objected to all the evidence offered by the defendants in justification, but the objection was overruled, and he then offered, upon the whole evidence, six prayers, the first of which was granted, and all the others were refused; and the defendants offered two prayers, both of which were granted, and by the second of which the court ruled that if the facts as shown in proof on the part of the defendants were found to ex. ist, "then the rule or by-law referred to in the evidence is a reasonable and proper rule or by-law; and the verdict must be for the defendants." Upon the objection to the evidence and the rulings upon the prayers two questions are presented. The first and principal one is whether the County commissioners, under the power given by the fifth section of the act of 1890, (chapter 85,) to make reasonable rules and regulations for the use of the bridge by the public, had the right to make any rule or by-law whereby all persons are denied the right to ride a bicycle, tricycle, or velocipede over the bridge; and, if they have the power, then, secondly, whether the ninth rule or by-law, given in evidence, and the manner of enforcing it, as shown in this case, was a proper exercise of such power.

1. We do not suppose that it could be seriously disputed that it is competent to the legislature in the exercise of its police power and general right to regulate the use of the highways of the state to restrict, and even forbid, the use of such vehicles as bicycles or tricycles on the highways, if they in fact be dangerous to the general traveling public All individual rights are more or less subject to limitations and restrictions in their exercise, in the interest and for the protection of society generally; and if it be true tlfat such vehicles as bicycles or tricycles are dangerous on the public highways, it would seem necessarily to follow that the legislature may reasonably restrict their use, rather than subject the public at large to the risk of danger in the enjoyment of a common right; and if such restriction may be made and enforced with respect to a common highway generally, a fortiori may it be made and enforced with respect to a bridge, such as that described in the evidence in this case. Indeed, it is a settled principle that it is the obligation