1376 ARTICLE 35.

Act of 1864, ch. 109, held not to change practice whereby, if plaintiff in an action
of tort fails to make out a case against one or more of the defendants, such defendants
are entitled to a verdict at once before defence is gone into. Brinkley v. Platt, 40
Md. 531.

A defect in an affidavit made under sec. 43 of art. 37 of Code of 1860—see sec. 52—
held not to be cured by act of 1864, ch. 109. Ward v. Leitch, 30 Md. 334.

This, section referred to in construing sec. 3—see notes thereto. South Baltimore,
etc., Co. v. Muhlbach, 69 Md. 401; Bowie v. Bowie, 77 Md. 312; Biggs v. McCurley,
76 Md. 411; Whitridge v. Whitridge, 76 Md. 76; Robertson v. Mowell, 66 Md. 532;
Hardy v. Chesapeake Bank, 51 Md. 596; First National Bank v. Eccleston, 48 Md.
163 (dissenting opinion); Graves v. Spedden, 46 Md. 538; Sanborn v. Lang, 41 Md.
115; Miller v. Motter, 35 Md. 432; Johnson v. Heald, 33 Md. 368; Schull v. Murray,
32 Md. 17.

This section referred to in construing sec. 4—see notes thereto. Davis v. State,
38 Md. 45. (And see dissenting opinion, p. 57.)

As to the law prior to act of 1864, ch. 109 (evidence act), see Bowman v. Little,
101 Md. 319; Semmes v. Worthington, 38 Md. 324; Downes v. Maryland and Dela-
ware R. R. Co., 37 Md. 101; Williams v. Brailsford, 25 Md. 144; Cunningham v.
Dwyer, 23 Md. 232.

Cited but not construed in Gambrill v. Parker, 31 Md. 5.

See sec. 6 and art. 23, sec. 166.

See notes to art. 16, sec. 183.

An. Code, sec. 2 1904, sec. 2. 1896, ch. 249.

2. No person engaged in, connected with or employed on a newspaper
or journal shall be compelled to disclose, in any legal proceeding or trial
or before any committee of the legislature or elsewhere, the source of any
news or information procured or obtained by him for and published in
the newspaper on and in which he is engaged, connected with or employed.
See art. 40 of the Declaration of Rights.

An. Code, sec. 3. 1904, sec. 3. 1888, sec. 2. 1864, ch. 109, sec. 2. 1868, ch. 116.
1876, ch. 222. 1888, ch. 315. 1902, ch. 495. 1904, ch. 661.

3. In actions or proceedings by or against executors, administrators,
heirs, devisees, legatees or distributees of a decedent as such, in which
judgments or decrees may be rendered for or against them, and in proceed-
ings by or against persons incompetent to testify by reason of mental dis-
ability, no party to the cause shall be allowed to testify as to any trans-
action had with, or statement made by the testator, intestate, ancestor or
party so incompetent to testify, either personally or through an agent
since dead, lunatic or insane, unless called to testify by the opposite party,
or unless the testimony of such testator, intestate, ancestor or party in-
competent to testify shall have already given in evidence, concerning the
same transaction or statement, in the same cause, on his or her own behalf
or on behalf of his or her representative in interest; nor shall it be compe-
tent, in any case, for any party to the cause who has been examined
therein as a witness, to corroborate his testimony when impeached by
proof of his own declaration or statement made to third persons out of the
presence and hearing of the adverse party; provided, however, this sec-
tion shall not apply to pending cases nor in anywise affect the present
rights of litigants therein.

Incompetency of parties as to transactions, etc., with deceased.

The portion of this section disqualifying a party from testifying relative to trans-
actions with or statements made by the deceased, applied; witness being com-
petent, however, to testify to other facts. Russell v. Carman, 114 Md. 35; Lowe v.