in the original plan adopted by the city council for the construction of the improvements. Detroit V. Blackeby, 21 Mich. 84; McCutcheon v. Homer, 43 id. 483.

This leaves only the New York case as being entitled to consideration in holding that the rule of the nonliability of cities should be applied where injuries have resulted to individuals on account of the unsafe and dangerous condition of the public streets, so made dangerous in accordance with a plan previously adopted by the governing board of the city. But even in New York it was doubted as late as in 1876 whether the rule should be so applied. Clemence v. City of Auburn, 66 N. Y. 334.

should plan or arrange that a street should be made unsafe and dangerous, we should be inclined to think that it would so transcend its powers as given to it by the Legislature, and so violate its duties as imposed upon it by the Legislature, that it would be liable for any injury which might occur to any individual by reason of such unwise action. Such action would be substantially the same as planning and creating a public nuisance. Can a city, by planning that a cistern should be left uncovered in the middle of a public street, avoid all liability for injuries that might occur by reason of some persons falling into it in the nighttime without fault on his part, when on the other hand it would be liable if the cistern were left uncovered by the person who constructed it or was afterward uncovered by some other person, and notice of its condition had been given to the city officers? Is such a distinction founded in reason? 2 Thomp.

These cases seem to wholly ignore all distinction made by some courts between injuries resulting from a defective plan of the work and injuries resulting from negligence in the execution of such plan, or in the control and management of the work after its completion; and they hold that in all cases where injuries occur to private individuals from the unsafe and dangerous condition of the public streets of a city, the city should be held liable; and this seems to be more in harmony with reason and justice than the other rule. 2 Thomp. on Neg. 734, 735, 736, §§ 2, 3, and notes.

In Kansas we have no special reason for following this rule of the Wisconsin and Illinois courts. In Kansas, as well as elsewhere, cities do not own the public streets. In Kansas the fee-simple title to the streets is vested in the counties in which the cities are situa- | ted, and is so vested not for the benefit of the counties or the cities merely, but also for the benefit of the entire travelling public, and the cities are invested only with the control and management of the streets; and this control of the streets is not merely for the benefit of the cities themselves, but is also for the benefit of the entire travelling public. This control of the streets however is not wholly discretionary or judicial or quasi-judicial or legislative, and is not divided or shared with other corporations, boards or tribunals, but it is absolute and exclusive in the cities, and as we think, it is not conferred upon them merely as a benefit which they may exercise or not at their option or discretion, but is imposed upon them also as an absolute and mandatory duty, which they have no right to evade or avoid. Generally they must keep their streets in a safe and proper condition at their peril. And while we recognize the rule contended for by the defendant's counsel, and think that it may have application in some cases, yet we do not think that it has very much room for application where injuries occur to private individuals on account of defective and manifestly dangerous public streets. The control of the streets of cities was not put into their hands for the purpose that they might plan or order that the streets should be made dangerous or unsafe for the public to travel thereon; nor was such control put into their hands for the purpose that they might plan or order that the streets should remain in an unsafe or dangerous condition if previously dangerous; but such control was given to them for the sole purpose that they should make and keep the streets safe and convenient for the traveling public; and we think it was put into their hands as a mandatory duty, which they have no right or discretion to evade or avoid. If a city

and notes.

After a careful consideration of this entire question, we have come to the conclusion that where a street, as planned or ordered by the governing board of a city, is so manifestly dangerous that a court, upon the facts, could say, as a matter of law, that it was dangerous and unsafe, the rule contended for by the defendant should not have any application, and the city should be held liable; but where upon the facts it would be so doubtful whether the street, as planned or ordered by the governing board of the city, was dangerous or unsafe or not that different minds might entertain different opinions with respect thereto, the benefit of the doubt might properly be given to the city, or rather to its governing board that planned or ordered that the street should be placed in such a condition, and the rule should be held to apply and the city should not be held to be liable. Before leaving this question, we think we should call attention to the fact that the principal part of the reasoning in those cases above cited, which hold that a city is not liable for consequential damages to property situated outside of the streets by reason of sewers, drains, ditches, etc., is not applicable to cases where the injuries are to individuals travelling upon the public streets, and where the injuries are caused by some manifestly dangerous thing in or forming a part of the public streets; nor is the principal part of the reasoning in one of this class of cases like the principal part of the reasoning in the other; for in the one class of cases the city has a legal right to do just what it has done, while in the other it has no such right; and a cause of action can seldom if ever be based upon the lawful exercise of an unquestioned legal right, while it may generally be based upon a wrong. See the case of the City of Atchison v. Challiss, 9 Kans. 603, heretofore cited, for the reasoning where the city is held not to be liable. We shall now pass to another question.

We would further think, that in order that the city should be protected from liability on account of the work being executed in accordance with a plan previously adopted by the city, the plan should be shown to have been expressly adopted, and adopted by the city council or other board having the control of the political, the legislative, and the governmental affairs of the city. To say that it has been adopted because the board has given no expression to the contrary would not do.

In order that the city should be protected from liability, it is necessary that its board should have the exact matter under consideration, and after due deliberation should expressly order that the thing be done; or if the thing has already been done, then that it should be ratified. Suppose that the city council should order that a cistern be constructed in some

public street, and say nothing about the cover, we would think that it should not be held that the want of a cover should be included as a part of the plan in constructing the cistern, or in other words, that the city council had planned that there should be no cover; and if the cistern were built in accordance with the order of the board, but with no cover, and injuries should result because thereof. we would think that it should not be held that the city was not liable for the injuries; or if the city should order that a high and narrow embankment with precipitous sides should be made in a public street for the purpose that the travel should pass over the embankment, and should say nothing concerning railings, guards, or other barriers, and nothing concerning street-lamps or other lights to prevent persons in the night time from falling or driving off the embankment and thereby being injured, we would think that it should not be held that the city had planned or ordered that no such railings, guards, barriers, lamps or lights should be used; but we would think that it should be held that the city had made no order with reference thereto; and then we would further think that if no such railings, guards, barriers, lamps or lights were used, and thereby injury should result, the city should be held to be liable. Before the court should hold that a street manifestly unsafe and dangerous was so planned and so ordered by the governing authorities of the city, the courts should be able to say from the city records that it was so planned and so ordered by the city authorities. There should be no presumption that the city authorities ordered or planned that a public street should be dangerous. If a cistern or an area within the sidewalk should be uncovered and remain so for a long time, it should not be presumed or held that such authorities adopted the plan that it should remain uncovered, although it might be proved that all the city authorities had knowledge of the same. Or if a part of a bridge over a deep stream with precipitous banks should be partly washed away, still leaving it possible in the day time for teams to cross with great care, but dangerous and hazardous in the night-time, and no precaution should be taken by the city authorities to guard against danger, it should not be presumed or held that the city authorities, in their legislative or judicial capac ity, or even as an exercise of their discretionary powers, had planned or ordered that the bridge or stream should so remain in its hazardous and dangerous condition. Courts should not allow any but the most formal evidence to be introduced to prove that the city authorities had planned or ordered or ratified any such dangerous place within their streets. Courts should not presume without formal proof that the governing board of a city had deliberately done wrong, and especially not for the purpose of relieving the city from the consequences of a wrong for the doing of which it would be held to be not liable if it had done the wrong deliberately, but liable if it had done it merely heedlessly or carelessly.

We think the court below erred in giving the foregoing instructions. There was no evidence showing that the city, by its council or otherwise, had ever expressly planned or ordered that the street where the plaintiff's injuries occurred should be made or left in the condition in which it then existed; and the evidence does not show that the city, by its council or otherwise, ever expressly ratified any such condition of the street. The only evidence upon this subject was that the street had remained in that condition for some years, and that the mayor and two members of the city council had knowledge of its condition.

The judgment of the court below will be reversed and cause remanded for a new trial.

All the justices concurring.

RHODE ISLAND SUPREME COURT ABSTRACT,

GIFT-BANK PASS-BOOK-DELIVERY.-In Tillinghast v. Wheaton, 8 R. I. 536, this court decided that the gift of a savings bank pass-book was in effect a gift of the deposit evidenced by it. It is not contended that the case at bar is distinguishable from Tillinghast v. Wheaton except in the matter of delivery. There are cases which hold that a delivery is so essential to a gift that it cannot be dispensed with even when the donee is already in possession. Shower v. Pilck, 4 Exch. 478; Cutting v. Gilman, 41 N. H. 147; French v. Raymoud, 39 Vt. 623. There are other cases however more numerous and in our opinion more authoritative, which hold that a delivery is not necessary when the intended donee is already in possession, but that in such a case the gift, if completed and unambig. uous, may be effected by a simple oral declaration. Tenbrook v. Brown, 17 Ind. 410; Wing v. Merchant, 57 Me. 383; Carradine v. Carradine, 58 Miss. 286; Southerland v. Southerland, 5 Bush, 591; Waring's Admr. v. Edmonds, 11 Md. 424; Stevens v. Stevens, 2 Hun, 470; Penfield v. Thayer, 2 E. D. Smith, 305 And see Winter v. Winter, 9 W. R. 747; 101 Eng. Com. Law, 997; Roberts v. Roberts, 15 W. R. 117. We decide on the authority of these latter cases that Mrs. Hayden is entitled to the money as a gift inter vivos from her son. Let the decree be accordingly. Providence Institution for Savings v. Taft. May 16, 1884. Opinion by Durfee, C. J. [See 22 Eng. R. 436, 690; 27 Alb. L. J. 367; 18 Am. Rep. .]

DEED-BOUNDED BY HIGHWAY-WHEN GRANTEE TAKES-DISCONTINUANCE OF HIGHWAY.- A highway was laid out wholly on the land of M., the north line of the highway coinciding with the north line of M.'s land. M. afterward sold the land south of the highway, in his deed bounding the land on the highway. Subsequently the highway was declared useless and discontinued. Held, that M.'s grantee was entitled to the whole of the land of the former highway. In Hughes v. Providence & Worcester R. Co., 2 R. I. 493, 512, this court laid down the rule governing the construction of deeds in cases of lands bounded on highways in the following language, viz.: "This court have repeatedly ruled, and it may now be construed the settled policy of the State that where a deed bounds the grantee to, by, or on a highway * ** the presumption of law is that the grantee takes the fee of the soil to the center of the highway

if the grantor at the time owned the fee to the center, subject to the right of the public in the easement; unless there be established monuments or other clear description in the deed, to rebut this presumption, and show that the intention was to limit the grant to the line of the highway. * ak * And see also Tingley v. City of Providence, 8 R. I. 493, 506. That such is the general rule of law see the discussion and cases collected in the note to Dovaston v. Payne, 2 Smith Lead. Cas. *216; Tyler Bound., etc., 103-114; Cox v. Louisville, etc., R. Co., 48 Ind. 178-185, 188; Jarstadt v. Morgan, 48 Wis. 245, 249; Tousley v. Galena Mining & Smelting Co., 24 Kaus. 328, 331-333. This presumption however that the grantee takes the fee of the soil to the center of the highway is not absolute and conclusive. It is created or rather allowed, in the absence of proof, and is based upon the idea that when the street or highway was laid out, the proprietors upon each side contributed their land for the purpose in equal portions. When it appears that such was not the fact the presumption does not arise. As was stated by Hosmer, C. J., in Watrous v. Southworth, 5 Conn. 305, 310: "It is a general rule of the common law that the fee of the land over which a highway passes is owned equally by the owners of the

bank." Morse on Banks and Banking, 107, thus states the rule. "The general control and government of all the affairs and transactions of the bank rest with the board of directors. For such purposes the board constitutes the corporation, and uniform usage imposes upon them the general superintendence and active management of the corporate concerns." The cashier is the executive of the financial department of the bank, and whatever is to be done, either to receive or pass away the funds of the bank for banking purposes, is done by him or under his direction; he therefore directs and represents the bank in the reception and emission of money for banking objects. United States v. Bank, 21 How. 356; Merchants' Bank v. State Bank, 10 Wall. 604; Com. Bank v. Norton, 1 Hill, 501. But neither the president nor the cashier can impose by his own action, on the bank, any liability not already imposed by law or usage; nor can they bind the bank, in the absence of authority from the directors, by any agreements or contracts outside of the range of their duties. Bank v. Dunn, 6 Pet. 51. The mere fact that they had conducted the business of the bank gave them no authority to make the sale. As these officers had no power to execute the bill of sale, and as it is not claimed that the directors ever ratified their act, the plaintiff below was not the owner of the safe at the commencement of her action. Bank v. Dunn, 6 Pet., supra; Bank of Metropolis v. Jones, 8 Pet. 16, 17; Adriance v. Roome, 52 Barb. 399; Walworth County Bank v. Farmers' Loan & Trust Co., 14 Wis. 325; Chicago & N. W. Railroad v. James, 22 id. 194; Blood v. Marcuse, 38 Cal. 590; Angell & Ames on Corp., § 298, pp. 322, 323. Asher v. Sutton. Opinion by Horton, C. J.

IOWA SUPREME COURT ABSTRACT.

STATUTE OF LIMITATIONS-Absence from STATENON-RESIDENT. Where a person leaves a State in which he resides, under the employment of the general government, with the intention of returning as soon as his employment terminates, but retains no property or business interests in the State, he is a nonresident within the meaning of the statute, although his wife remains in the State for a portion of the time; and the statute of limitations will not run in his favor against an action on a promissory note during his absence. This view is sustained by the previous holdings of this court. Penley v. Waterhouse, 1 Iowa, 498; Savage v. Scott, 45 id. 133. And to the same effect is Hackett v. Kendall, 23 Vt. 275. And in Sleeper v. Paige, 15 Gray, 349, and Ware v. Gowen, 111 Mass. 526, it is held by the Supreme Court of Massachusetts, in facts similar to those in the present case, that the parties were non-residents of the State within the meaning of the statute of limitations of that State, which is identical in its provisions with our statute. Hedges v. Jones. Opinion by Reed, J.

[Decided June 4, 1884.]

MUNICIPAL CORPORATION—ADMITTING DEBT, LIABLE UNDER CONTRACT.-When a city admits the existence of a debt, and issues certificates of assessment to the end that the plaintiff could be paid out of a particular fund created by the city, it must be assumed it guarantees, or by implication contracts, that such fund exists, or that it has taken and has the power to take the steps necessary to create such fund. Now wher it turns out that there was no such fund, and that the power to create it did not exist, it seems to us that the city should not, and cannot, escape all liability under the contract, and it has been so held. Kearney v. City of Covington, 1 Metc. (Ky.) 339; Sleeper v. Bullen, 6 Kans. 300; Maher v. City of Chicago, 38 Ill. 266.

See also 1 Dill. Mun. Corp. (3d ed.), §§ 480, 481, 482, and authorities cited in notes. There is a class of cases which hold in substance that when the powers of a municipal corporation are defined in the charter or a statute, persons contracting with the corporation are bound to know the extent and character of such powers, and therefore deal with the corporate authorities at their peril. Craycraft v. Selvage, 10 Bush (Ky.), 696; Zottman v. San Francisco, 20 Cal. 96; Swift v. Williamsburg, 24 Barb. 427. Conceding the correctness of these cases, we do not think they have any application to the case at bar; for if the plaintiff had looked at the statute he would have ascertained that the city had the power to grade its streets and pay therefor out of the general fund, and that it did not have the power to make an assessment on the abutting owner, and we think he had the right to conclude that the city would and was bound, as uo assessment could be lawfully made to pay him out of the general fund. Becroft v. City of Council Bluffs. Opinion by Seevers, J.

[Decided June 6, 1884.]

NEGLIGENCE-RAILROAD-TRAVELLING ON ANOTHER'S PASS-FRAUD-COMPANY NOT LIABLE.-A person who travels on a railroad train on the ticket of another contrary to the rule of the company printed on the tick et, and without the consent of the company's agents, perpetrates a fraud, and in case of his receiving injuries during the trip the law of common carriers cannot be invoked to make the company responsible. The doc trine was very clearly expressed in T., W. & W. R. Co. v. Beggs, 85 Ill. 80. In that case the court said: "Was defendant a passenger on that train in the true sense of that term? He was travelling on a free pass issued to one James Short, and not transferable, and passed himself as the person named in the pass. By his fraud he was riding on the car. Under such circumstances the company could only be held liable for gross negli gence which would amount to willful injury." In Thomp. Carr. Pass., p. 43, § 3, the author goes even fur ther. After stating the rule that the relation of carrier and passenger does not exist where one fraudulently obtains a free ride, it says: "This doctrine extends further, and includes the case of one who know. ingly induces the conductor of a train to violate the regulations of the company, and disregard his obliga tions of fidelity to his employer." In U. P. Ry. Co. v. Nichols, 8 Kans. 505, the defendant in error imposed himself upon the company as an express messenger, and obtained the consent of the conductor to carry him without fare. It was held that he did not become entitled to the rights of a passenger. The court, after quoting Shearman & Redfield's definition of a passenger, which is in these words: "A passenger is one who undertakes, with the consent of the carrier, to travel in the conveyance provided by the latter, other than in the service of the carrier as such," proceeds to say: "The consent obtained from the conductor was the consent that an express messenger might ride without paying his fare. Such consent did not apply to the plaintiff" (the defendant in error). See also the following cases: T., W. & W. R. Co. v. Brooks, 81 Ill. 292; M. & C. R. Co. v. Chastine, 54 Miss. 503; Creed v. Pa R. Co., 86 Penn. St. 139; Relf v. Rapp, 3 Watts & S. 21; Hayes v. Wells, Fargo & Co., 23 Cal. 185. The plaintiff cites and relies upon Bissell v. Railroad Cos., 22 N. Y. 308; Washburn v. Nashville, etc., R. Co.,3 Head, 638; Jacobus v. St. Paul, etc., R. Co., 20 Minn. 125 (Gil. 110); Pa. R. Co. v. Books, 57 Penn. St. 346; Wilton v. Middlesex R. Co., 107 Mass. 108; Flint, etc., R. Co. v. Weir, 37 Mich. 111; Dunn v. Grand Trunk Ry. Co., 58 Me. 192; Edgerton v. N. Y., etc., R. Co., 39 N. Y. 227; Gregory v. Burlington, etc.. R. Co., 10 Neb. 250; S. C., 4 N. W. Rep. 1025; Great Northern R.

Co. v. Harrison, 10 Exch. 376. But none of these cases hold that the extraordinary care described in the instruction given is due to a person'not a passenger, and none of them hold that the relation of passenger can be insisted upon where the company shows affirmativelp as a defense that the company's consent was obtained by fraud. May v. Chicago, R. I. & Pac. R. Co. Opinion by Adams, J.

[Decided June 7, 1884.]

MICHIGAN SUPREME COURT ABSTRACT.

AGENCY IMPLIED POWERS CONVERSION FIXTURES.-The general agent and and manager of a mining company is presumably empowered to sell its personal property. The sale on execution of personal property belonging to a third person amounts to a conversion, whether the officer making sale removes it or not. Ordinary movable office furniture and ordinary vehicles are not fixtures, and the question whether personal property in use about a mine can be so regarded, is a question of the intent with which it was attached to the freehold. Personal property that can be removed from the land cannot be part of the realty, when the owner does not also own the land. This was decided in Adams v. Lee, 31 Mich. 440; and Robertson v. Corsett, 39 id. 777. Scudder v. Anderson. Opinion by Campbell, J.

[Decided June 11, 1884.]

MANDAMUS-COUNTY TREASURER- INSPECTION OF LIQUOR BOND.-The papers presented in this case show a most extraordinary proceeding on the part of the county treasurer. A member of the board of review of Ann Arbor, who had been for the two previous years a supervisor in Washtenaw county, on application to that officer for permission to inspect a liquor bond, is denied the privilege on the ground that the treasurer regards it as unnecessary for the purpose stated by the petitioner. It is not pretended that such purpose is an unlawful one, or that the request was not respectfully made. The county treasurer holds a public office, and the statute requires the liquor bonds to be filed therein and to be kept by the treasurer. They thereby become public records, and as such may be examined and copies taken thereof by any citizen. There are many and very good reasons why the citizens may and should have this right: (1) As a citizen to hold the board, whose duty it is to approve the bond, to public accountability for accepting insufficient bonds; (2) to prosecute sureties criminally when they have falsely sworn to responsibility; (3) to see if there is sufficient security for any citizen, widow, child, or parent who may have a right of action for violations of the license law (which frequently occurs) against the liquor-seller and his sureties, and to see that they are not forged; (4) as assessor or other tax officer, who may desire to compel parties who may have property, according to their oaths given on justification, to pay their share of the taxes; and for many other purposes which readily occur to any one who has given any attention to the subject. It is no answer to say that the time has gone by for performing the official act by the person desiring the information sought, or that the purpose intended, in the judgment of the respondent, is not a commendable or proper one, so long as it is not criminal, when the inspection is desired. The law does not vest in the treasurer any such discretionary power to deprive the citizen of a substantial right given by the statute, one in which he may have large pecuniary interests, and of which he may be deprived if the action of the treasurer in this case can be sustained, and the most beneficial object of the act under which the bond is given defeated. City boards and

other officers, whose duty it is to approve of these bonds, are held to a great extent to responsibility in taking proper security in this class of cases by a just public opinion, from which they cannot be permitted to shield themselves in the course pursued by this respondent. The real purpose of the statute is that perfectly safe bonds shall be taken for the protection of all parties, and this purpose must not be defeated by proceedings of the sort complained of in this case. We are all of the opinion that the action taken by the treasurer in this case can find no support in law or right, and should not be sustained. If authority were needed upon the construction of the statute as we have given it, it will be found in Ferry v. Williams, 41 N. J. Law, 332; 19 Am. Law Reg. (N. S.) 154, which we fully approve. The request of the petitioner was a reasonable one, and it was the duty of the officer to comply with it when made. The writ of mandamus must be granted as prayed, with costs against the respondent. Brown v. Washtenaw County Treasurer. Opinion by Sherwood, J.

[Decided June 11, 1884.]

NEGLIGENCE-MUST BE PROVED-INFERRED FROM CIRCUMSTANCES - SPARK-ARRESTER CONTRIBUTORY NEGLIGENCE.-The party counting upon negligence must adduce affirmative proof of it. Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274; Macomber v. Nichols,34 id. 212; Grand Rapids, etc., R. Co. v. Judson, id. 507; Brown v. Street R. Co., 49 id. 153. But negligence, like any other fact, may be inferred from the circumstances, and the case may be such, that though there be no positive proof that defendant has been guilty of any neglect of duty, the inference of negligence would be irresistible. Such a case is seen in Higgins v. Dewey, 107 Mass. 494, a case of fire set for the burning of brush on agricultural lands. See also Kearney v. London, etc., R. Co., L. R., 6 Q. B. 759; Field v. N. Y. Cent. R. Co., 32 N. Y. 339. Now what are the facts in this case? The defendants constructed, in connection with their mill, a burner, whereby they might be enabled to consume and get rid of the waste and refuse stuff of their business. The burner, as we understand it, was not a necessity to their business, but it was constructed as a means of saving something in the cost of removing sawdust, slabs, etc. It was what may be described as a tall and very large chimney, and the draught through it, when a fire was burning, was very strong and powerful. Only a very perfect spark-arrester could prevent a stream of large cinders pouring out of it when the draft was open. The evidence was strong that fires were frequently started by cinders which came from it; that such an occurrence might reasonably be looked for whenever a strong wind was blowing. The sparks, so called, which ignited the plaintiff's building, could not have been mere sparks. A spark could scarcely have retained sufficient vitality and substance, after being carried that distance, to communicate fire to a building. It was in proof that the spark-catcher was bent in at the top, as a consequence of the heat; and though there was no direct evidence that any wires were broken, or the openings in it increased, the very manner in which the sparks poured out of it, and started fires at a distance, would suggest, if it did not fully justify, an inference that in some way it was defective, and such an inference might have been fully warranted if the plaintiff had shown, as she offered to do, and as she should have been permitted to do, that after a change was made in the spark-catcher immediately following the fire, the dangerous emissions of sparks through it ceased altogether. But the evidence the plaintiff gave was precisely such as in Lehigh Valley R. Co. v. McKeen, 90 Peun. St. 122, was held to require the court to submit the case to the jury. But it is said on behalf of