authorizing the common council, by ordinance, to remove and abate nuisances injurious to the public health, and to make regulations for the preservation of health and suppression of disease, and to make and enforce quarantine laws. Chapter 4. But it is not alleged or claimed in this case that the board of health were acting under the direction of the corporation in excuting or enforcing any regulation in pursuance of which the alleged negligent act or omission occurred, or otherwise than in the exercise of the general discretionary powers conferred on it by the charter.

We are not, therefore, called on to consider the question of the liability of the municipality when it undertakes, in the exercise of its corporate powers, the performance of the act complained of, or specially directs or interferes in the premises. It is true, the complaint alleges that the defendant, through the said board of health. 6. caused said vault to be cleaned," etc.; but it is clear, we think, and was so assumed in argument, that the agency of the city referred to in the matter was simply its relation to the board of health as defined by the charter, and that the board was, in fact, acting by virtue of the powers thereby conferred. Chapter 11, § 5, of the charter, under which it appears by the complaint the board proceeded in this instance, provides that "said board may order or cause any excavation, room, building. premises," etc, in said city, "regarded by said board as in a condition dangerous to health, to be cleansed," etc. It is not, we think, to be implied that the city council took any express or affirmative action in the premises to direct the abatement of the nuisance in this case, but that it was done by the board in the ordinary course of its duties.

The question, then, presented for our consideration is whether the alleged negligence of the board created a corporate liability as against the city. The duty is imposed by the legislature upon the board of health, under the police power, to be exercised for the benefit of the public generally. It is one in which the city has no particular interest, and from which it derives no special benefit in its corporate capacity. And we think it clear that, as respects an agency thus created for the public service, the city should not be held liable for the manner in which such service is performed by the board. Dill. Mun. Corp. (3d Ed.) § 976, etc. It is bound to discharge its official duty, not by virtue of its responsibility to the municipality, but for the general welfare of the community, and no action will lie against the city for the acts of the board unless given by statute. Fisher v. Boston, supra; Hayes v. Oshkosh, 33 Wis. 318; Richmond v. Long's Adm'rs, 17 Grat. 375; Maxmilian v. Mayor, supra; Ogg v. Lansing, 35 Iowa, 495; Welsh v. Rutland, 56 Vt. 228; Findley v. Salem, 137 Mass.-; Condict v. Mayor, 46 N. J. Law, ; s. c. 19 Cent. Law J. 213, and cases cited; Smith v. Rochester, 76 N. Y. 513.

The duties of such officers are not of that class

of municipal or corporate duties with which the corporation is charged in consideration of charter privileges, but are police or governmental functions, which could be discharged equally well through agents appointed by the State, though usually associated with and appointed by the municipal body. The nature of the duties as public are the same in either case.

In Kobs v. Minneapolis, which we think presents a different question, but which is relied on by the plaintiff, a street commissioner dug a ditch across a street, whereby a large quantity of water was carried over to and upon plaintiff's lot from land opposite, and the city was properly held liable, because there the street commissioner was the agent of the city in the supervision and improvement of streets, with large discretionary power in the premises, and subject to control and removal by the city, and in making such ditch across the street he directly caused the flooding of plaintiff's lot. The responsibility for the care and control of streets belonged to the city, and he was acting for the corporation in the course of his employment in and about the discharge of a corporate duty. The city was bound so to use and control the street as not to injure the property of others. Oliver v. Worcester, 102 Mass. 490; Thurston v. St. Joseph, 51 Mo. 510.

The cases of Dayton v. Pease, 4 Ohio St. 96; Bailey v. Mayer, 3 Hill, 531; Rochester White Lead Co. v. Rochester, 3 N. Y. 463, and other like cases, are clearly distinguishable from the case at bar. These were actions for damages resulting from the negligence or unskilfulness of the agents of the corporation in and about the supervision or management of corporate property, or the construction of public improvements under the authority of the municipality in its corporate capacity. The same remark will apply to cases generally where the corporation has directly authorized, participated in, or ratified (where for any cause it may lawfully do so) the alleged wrongful acts, or has derived a profit or corporate advantage therefrom, though it might not otherwise have been liable. De Yoe v. Saratoga, 1 Hun, 342; Tormey v. Mayor, 12 Hun, 546; Dooley v. Kansas City, 19 Cent. Law J. 490; Murphy v. Lowell, 124 Mass. 566; City of Toledo v. Cone, 41 Ohio St. But no such facts appear in this case to qualify the rule of corporate liability, and as between the city and the board respondeat superior is not applicable. Order sustaining demurrer affirmed, and case remanded.

NOTE.-The above case and the recent decision of the Ohio Supreme Court Commission in the case of the City of Toledo v. Cove, above cited, and commented on in a late number of the CENTRAL LAW JOURNAL,2 holding the City of Toledo liable for injury to a work

122 Minn., 159.

141 Ohio Sup. Ct. Com. 3; s. c. 1 Am. L. J. 406. 2 20 Cent. L. J. 62.

man caused by the negligence of the superintendent of a public cemetery owned by the city, have caused considerable discussion and awakened a renewed interest in the doctrine of respondeat superior as applied to municipal corporations.

An attempt will be made in this note to determine how far this doctrine is applicable to municipal corporations, and to state the rules governing its application.

The general rule is well settled that a master is liable to third persons for the negligent acts of his servant's or agent done within the scope or line of the servant or agent's duty. And this is probably so, even though the acts be intentionally and wilfully done, if within the scope of the servant's employment. The liability of the master depends, not so much upon the motive of the servant, as upon his act being within the contemplation of his employment, and something which, if lawfully done, he might do in the employer's name.5 In all cases the general relation of master and servant, or principal and agent, must exist, and the act must be within the course or scope of the employment.

The first thing necessary, then, in determining the liability of a municipal corporation under the rule of respondeat superior, is to find whether or not the relation of master and servant, or principal and agent, exists between the party doing the negligent or wrongful act and the corporation.

Municipal officers are not always such agents or servants as will make the municipality liable for their wrongful actions; for while called officers of the corporation, it may in reality have no control over them, and their duty may be to the public rather than to the municipality as a corporation. Where this is so, the municipality is, as a rule, not liable.6 The sovereign in such cases is the master or principal, rather than the municipal corporation, which is itself, to some extent, the agent of the sovereign or public.

But where the municipality has the power to appoint or elect its own officers, and can control, remove, and hold them responsible for their acts, it is liable for their wrongful or negligent acts, done in the exercise of its corporate or private duties. The following rules relative to this point are laid down in a recent case; 8 "First. When, by a municipal charter in the distribution of powers and duties among the different municipal officers, duties of a public character are imposed, the officers are regarded as agents of the corporation, and it is liable for their acts or omissions.9

3 Ewell's Evans' Agency, 479, note; Garretzen v. Duenckel, 50 Mo. 104; s. c. 11 Am. Rep. 405; Minter v. Pacific R. R., 41 Mo. 503; Howe v. Newmarch, 12 Allen, 49; Joslin v. Grand Rapids Ice Co., 50 Mich. 516; s. c. 45 Am. Rep. 54; 1 Addison on Torts, § 36; Wharton Neg. § 157 et seq.; See note to Ware v. Barataria etc. Co., 35 Am. Dec. 189, 192; Wood's Master and Servant, § 279.

4 Rounds v. Dela. etc. R. Co., 64 N. Y. 129; s. c. 21 Am. Rep. 597; Redding v. S. C. R. Co., 3 S. C. 1; s. c. 16 Am. Rep. 681; Craker v. C. & N. W. R. Co., 36 Wis. 657; Phila. & Reading R. Co. v. Derby, 14 How. (U.S.) 486; Chicago etc. R. Co. v. Dickson, 63 Ill. 151; 8. C. 14 Am. Rep. 114. 5 Cooley on Torts, 535, 536.

16 New York etc. Co. v. Brooklyn, 71 N. Y. 580; Lorillard v. Town of Monroe, 11 N. Y. 392; Maxmilian v. Mayor, 62 N. Y. 160; Fisher v. Boston, 104 Mass. 87; 8. c. 6 Am. Rep. 468; Prather v. Lexington, 13 B. Mon. 563; City of La Fayette v. Timberlake, 88 Ind. 330; Wheeler v. City of Cincinnati, 19 Ohio St. 19; s. c. 2 Am. Rep. 368; Welsh v. Village of Rutland, 56 Vt. 228; 8. C. 48 Am. Rep. 762.

72 Dillon Munic. Corp. § 974 (772); Gibson v. Preston L. R.5 Q. B. 219; Eastman v. Meredith, 36 N. H. 284; City of Greencastle v. Martin, 74 Ind. 449; Ross v. City of Madison, 1 Ind; 281; Lloyd v. Mayor, 5 N. Y. 369; Ehrgott v. Mayor, 96 N. Y. 264.

8 New York etc. Co. v. Brooklyn, 71 N. Y. 580, 583. 9 Citing Conrad v. Trustees, 16 N. Y. 158, and note.

Second. A municipal corporation is held liable for the acts of an agent it employs to do business for its own corporate or private benefit, the same as a private individual, and this, although the agent may be appointed by the legislature, or under legislative authority, if it accepts and ratifies the appointment.10 Third. When a ministerial duty is expressly imposed upon a municipal corporation by legislative enactment, in the performance of which the public are interested, it may be held liable, although the circumstances are such that an implied acceptance of the particular provisions may not be inferred." This distinction between the acts of municipal officers in the discharge of a public or quasi legislative or judicial duty cast upon the municipality by the State, and the acts of its officers in the discharge of a private duty to the corporation, though a very shadowy one at times, is well established by authority."

Thus it has been held that a city is not liable for the negligent or wrongful acts of its police officers, even though appointed by the city; for their duty is to see that the public peace is kept.12 Nor is it liable for the negligence of its fire department.13 And this is so not only where property is burned because of such negligence, but also where the person or property of a citizen is injured by the negligence of the firemen in going to or from a fire.14 So, if a municipal corporation establishes a public hospital to prevent the spread of contagious diseases and for the good of the general health, it is not liable for the neglect or misconduct of its agents or servants therein. So, it is held, a city is not liable to a pupil in one of its public schools for an injury caused by a negligent defect in the staircase or heating apparatus of the school.16 And in New York, it has been held that a city is not liable for the negligence of an employee of the commissioners of public chariities or of the Department of Public Instruction, the statute requiring such officers, and their duties being public.17

On the other hand where the act is done in the exer cise of a duty to the municipality for its private interest or advantage, and the duty is one in which the State, in its sovereign capacity, has no interest, the corporation will be held responsible, even though it may not have entire control over the officers perform.

10 Appleton v. Water Comrs., 2 Hill, 433.

11 See 2 Dillon Munic. Corp. § 966 (764), and authorities cited in following notes; also 2 Thomp. Neg. 731, et seq. 12 Elliott v. City of Phila., 75 Penn. St. 342; 8. C. 15 Am. Rep. 591; Campbell's Adm. v. City Council, 53 Ala. 527; s. C. 25 Am. Rep. 656; Calwell v. City of Boone, 51 Ia. 687; B. C. 33 Am. Rep. 154; Burch v. Hardwicke, 30 Gratt. 24; 8. c. 32 Am. Rep. 640; Buttrich v. City of Lowell, 1 Allen, 172; Bowditch v. Boston, 101 U. S. 16; Pollock's Adm. v. Louisville, 13 Bush. 221; s. c. 26 Am. Rep. 260.

13 Robinson v. City of Evansville, 87 Ind. 334; s. C, 44 Am. Rep. 770; Brinkmeyer v. Same, 29 Ind. 187; Fisher v. City of Boston, 104 Mass. 87; s. c. 6 Am. Rep. 196; Heller v. Sedalia, 53 Mo. 159; s. c. 14 Am. Rep. 444.

14 Wilcox v. City of Chicago, 107 Ill. 334; 8. C. 47 Am. Rep. 434; Hafford v. New Bedford, 16 Gray, 297; Hayes v. City of Oshkosh, 33 Wis. 314; s. c. 14 Am. Rep. 760; Greenwood v. Louisville, 13 Bush. (Ky.) 226; s. c. 26 Am. Rep. 263; Jewett v. City of New Haven, 38 Conn. 368; 8. c. 9 Am. Rep. 382.

15 Murtaugh v. St. Louis, 44 Mo. 479; Richmond v. Long, 17 Gratt. 375; Sherbourne v. Yuba Co., 21 Cal. 113. See, also, Brown v. Vinalhaven, 65 Me. 402; s. c., 20 Am. Rep. 709; Ogg v. Lansing, 34 Iowa, 495; 8. C., 14 Am. Rep. 499. 16 Hill v. Boston, 122 Mass. 324; Wixon v. Newport, 13 R. I. 454; 8. C., 43 Am. Rep. 35. The former case contains an elaborate review of the authorities on this general question. See, also, Kincaid v. Hardin, 35 Iowa, 430; s. C., 36 Am. Rep. 236.

17 Maxmilian v. Mayor, 62 N. Y. 160; Ham v. Mayor, 70 N. Y. 459. And see Atwater v. Baltimore, 31 Md. 462.

ing such duty. Thus the water commissioners of the City of New York were held to be the agents of the city, and the latter was held liable for their negligence, although they were selected by the governor and senate.18 So a city is liable for an injury caused by the negligence of its servants in laying its own gas-pipes.19 And where a city owns private corporate property, such as a wharf, from which it derives a revenue or profit, it is liable for injuries caused by failure of its agents to keep it in proper condition.20 So where a town, carrying on a farm for the support of its poor, negligently allowed a ram to run at large and injure a citizen, it was held liable.21 This last case, and the case of Hannon v. St. Louis Co.,22 where a county was held liable for the negligence of its servants in performing work at the county insane asylum, are much like the cemetery case of the City of Toledo v. Cone, already referred to.23 These cases while supporting each other, and together making a precedent that cannot be overlooked in deciding future cases, seem very hard to uphold on principle, and contrary to those cases in which it is held that a municipality is not liable for the negligence of its firemen, its hospital attendants, and the like. The maintenance of a cemetery, a poor farm, or an insane asylum, seems to the writer an act for the public benefit, and one in which the State is interested, just as much as in the maintenance of county and city hospitals, or even a police or fire system. So it is difficult to uphold on principle those cases which hold municipal corporations liable for injuries to travelers caused by the non-repair of their streets and highways; yet, outside of New England the great weight of authority is to that effect.24 Statutes in many of the States, however, govern the matter, and the only way to uphold such cases is to say that for statutory, or other reasons, they constitute a well-established exception to the general rule.

The second point to be considered in determining the liability of municipal corporations for the acts of their officers or agents is the nature of the act, whether it is in the line of the agent's duty or not. To do this, it is first necessary to determine whether it is one which the municipality has power to have performed, for if it be ultra vires it can not be the officer's duty to do it.

Thus, where the city officials of Albany undertook to build a bridge under the authority of an unconstitutional law, and because of the negligent construction the bridge fell, it was held that the city was not liable at the suit of a person injured thereby.25 So where the common council appointed a committee to make arrangements for the celebration of the centennial, and the committee ordered the fire department to join in the procession, it was held that the city was not liable

18 Bailey v. Mayor. 3 Hill, 531; s. C., 38 Am, Dec. 669; DeGee v. Saratoga Springs, 5 Hun, 343; Clarke v. Mayor, 3 Barb. 290; Aldrich v. Tripp, 11 R. I. 141; S. C., 23 Am. Rep. 434.

19 Scott v. Mayor, etc., 1 H. & N. 59; s. c., 2 H. & N. 204. 20 Pittsburgh v. Grier, 22 Pa. St. 54; Skinkle v. Covington, 1 Bush. (Ky.) 617; Fennimore v. New Orleans, 20 La. Ann. 124. So as to water works, gas-works, and the like where the city receives tolls or profits. Murphy v. v. Lowell, 124 Mass. 564; Hand v. Brookline, 126 Mass. 324; Henly v. Mayor, 2 Cl. & F. 331.

21 Moulton v. Scarborough, 71 Me... 267; s. c., 36 Am. Rep. 308.

22 62 Mo., 313.

23 Note 1, supra.

24 See 2 Dillon Munic. Corp., §§ 998, 1014,1017, 1018 and notes.

25 Mayor v. Cunliff, 2 N. Y. 165. To same effect, Browning v. Board, 44 Ind., 11; Haag v. Board, 60 Ind. 511; s. c. 28 Am. Rep. 654; Board v. Deprez, 87 Ind. 509.

to one who had negligently been run over by a hose cart, as the calling out of the hose cart for such purpose was unanthorized by law.26 And where the selectmen of a town caused a dam to be erected-which they had no legal authority to do-it was held that the town was not liable to one whose land had been flooded thereby.27

The general rule is thus stated: "To establish the liability of a municipal corporation for damages resulting from the alleged negligence or want of skill of its agent or servant in the course of its employment, it is essential to show that the act complained of was within the scope of the corporate powers; if, outside of the powers of the corporation, as conferred by statute (or its charter,) the corporation is not liable, whether its officers directed the performance of the act, or it was done without any express direction."28

But even if the act be within the corporate powers, the corporation cannot be held liable unless it be also within the line and scope of the officer's or agent's employment. Thus, a city is not responsible for the negligence of the city surveyor or engineer in performing work for private parties.29 So, in a case just reported it was held that a town is not liable for an injury caused by fire-works discharged by citizens, in violation of an ordinance, even though the council and officers took an active part in the celebration.30 So it has been held in a number of cases that a municipal corporation is not liable for the trespasses or wrongful acts of its officers, though done colore officii, unless authorized or ratified by the corporation.31 Indianapolis, Ind.

W. F. ELLIOTT.

26 Smith v. City of Rochester, 76 N. Y. 506. See also Morrison v. Lawrence, 98 Mass. 219.

27 Anthony v. Adams, 1' Metc. (Mass.) 284. And see Walling v. Shreveport, 5 La. An. 660.

28 Smith v. City of Rochester, 76 N. Y. 506. Approved in Cummins v. City of Seymour, 79 Ind. 491, opin. 496; 8. C., 41 Am. Rep. 618. See also Hunt v. City of Boonville, 65 Mo. 620; s.C., 27 Am. Rep. 299; Trammell v. Town of Russellville, 34 Ark. 105; s. C., 36 Am. Rep. 1.. 29 Alcorn v. Phila., 44 Penn. St. 348.

30 Ball v. Town of Woodbine, 61 Ia. 83; 8. C., 47 Am. Rep. 805. See also Cumberland v. Willison, 50 Md. 138, where a city was held not liable for the extra-official act of its mayor.

31 Hunt v. City of Boonville, 65 Mo. 620; 8. C., 27 Am. Rep. 299; Wallace v. City of Menasha, 48 Wis. 79; s. C., 33 Am. Rep. 804; 10 Cent. L. J. 147; Thayer v. Boston, 19 Pick. 511; Lee v. Sandy Hill, 40 N. Y. 442; Fox v. Northern Liberties, 3 Watts & S. 103; Perley v. Georgetown, 7 Gray, 464; Mayor v. Musgrave, 48 Md. 272; s. C., 30 Am. Rep. 458. But see Durkee v. City of Kenosha, 59 Wis. 123; s. C.,47 Am. Rep. 480, where a city was held liable a sale of property by its officers to pay a void street assessment.

can be maintained on the bond of an administrator, to recover the amount of a claim unlawfully paid by him, until an accounting has been had in the probate court, and the administrator has refused to pay what, if anything, may be adjudged against him thereon. [Ross, J., in delivering the opinion of the court said: "It has several times been decided by this court that the allowance of a claim by the administrator and probate judge is not conclusive upon the heirs, but that they may contest such allowance in subsequent proceedings of the probate court: Code of Civil Procedure, § 1636; Estate of Loshe, 62 Cal. 413; Estate of Hill, Id., 186. If the allowance of the claim sought to be contested by the present suit was improperly had, and objection is made at the proper time in the probate court having control of the administration, that court will doubtless vacate the allowance and compel the administrator to account for the money paid thereon out of the funds of the estate. It is for the probate court to settle the accounts of the administrator, and we have frequently so held: Estate of Curtis, 3 West Coast Rep., 682; Chaquette v. Ortet, 60 Cal. 549, and authorities there cited. After the status of the accounts has been fixed, if the administrator shall fail to pay what, if anything, may be adjudged against him, the plaintiffs will have their action upon the bond." Weihe v. Stratham, S. C. Cal., May 28, 1885; 6 W. C. Rep. 563.

2. BANKRUPTCY-Sufficiency of Promise to Revive Debt Discharged by.-In order that a promise to pay a debt made by one pending his bankruptcy proceedings, may revive the debt discharged by the adjudication of bankruptcy, it must be clear and specific. [The promise was oral in the words: "I will make it all right. You will not lose anything." The court cite: Shockey v. Mills, 71 Ind. 288; Allen v. Ferguson, 18 Wall. 1]. Meech v. Lamon, S. C. Ind., May 26, 1885.

3. CHAMPERTY-Essential Elements of.-There are two essential elements in every champertous agreement, that is 1, there must be an undertaking by one person to defray the expenses, in whole or in part, of another's suit, and 2, an agreement or promise on the part of the latter to divide with the former the proceeds of the litigation in the event it proves successful. In a case of an absolute sale and transfer of an undivided interest, which the grantor has or may afterward acquire in land in the adverse possession of others, the grantor having no suits pending to recover his interest or any part of it, under an agreement that the grantee shall institute legal proceedings in his own name and at his own expense for the purpose of recovering and establishing the title of the grantee so conveyed, no part of which is to be divided between them, but by which agreement the grantee is to pay a given price per acre of the land recovered, and nothing, if the litigation proved unsuccessful, it was held that both the essential element to a champertous agreement were wanting, and that the transaction was not void for champerty. Torrence v. Shedd, S. C. Ill., Ottawa, Sept. 27, 1884.

5.

perty can not properly arise except in a controversy between the parties to the alleged champertous agreement or their privies. Ibid.

Compensation for Land Sold May be Made to Depend on a Contingency.-A party owning an interest in land held and claimed adversely, may sell the same for a consideration to be paid upon a contingency, as upon a recovery of the land by the grantee. The owner may convey his interest in land even without any compensation, present or prospective, and he may contract to receive nothing in case his interest cannot be legally established, so that the purchaser may recover the same. Ibid.

6. CORPORATION-Action cannot be Brought against a Stockholder Under Missouri Statute Unless Corporation Dissolved.-A creditor who recovers judgment in a State court against a corporation cannot, under the Missouri Statutes, while the corporation remains undissolved, maintain an action at law in this court against a stockholder in the corporation to recover an amount due from him on unpaid stock. In the absence of any statutory proceedings such matters are only cognizable in equity. [In giving the opinion of the court, Treat, J., said: Matters of this nature are cognizable in equity, and only in equity, unless there is some statutory proceeding with respect thereto. That has been fully determined, notably in a case in 106 U. S. Patterson v. Lynde, 106 U. S. 519; s. c., 1 Sup. Ct. Rep. 432. Now, the Missouri statute has two provisions: 1. Execution having been returned nulla bona, to cite in a stockholder and award what is in the nature of a judgment, that is a new execution against him for the portion of the stock unpaid. But that must be done in the court where the original judgment was rendered. 2. There is another provision that, where the corporation is dissolved, you may proceed by an independent suit. Now, nothing of the kind has occurred in this case. The party has no standing under the statute at all, nor has he pursued the remedy which the statute prescribes. So far, then, as this court is concerned, a common-law action cannot be tried in this way against a stockholder of an undissolved corporation."] Brown v. Fisk, Cir. Ct. E. D. Mo., March 20, 1885; 23 Fed. Rep. 228.

7. COUNTIES-Liable for Injuries from Defective Bridge. In the absence of a statute expressly imposing such liability, a quasi corporation, such as a county, is not responsible for injuries caused by a failure to keep bridges, under its control, in repair. Such liability has not been imposed upon the county of Contra Costa, by § 50 of the Act of 1875, concerning roads and highways in such county. [Ross, J., in giving the opinion of the court said: "In the United States there is no common law obligation resting upon quasi corporations, such as counties, townships and New England towns to repair highways, streets or bridges within their limits, and they are not obliged to do so unless by force of statute. Even when the legislature enjoins upon corporations of this character the duty to make and repair roads, streets and bridges, and confers the power to levy taxes therefor, the general tenor of the decisions is to treat this as a public and not a corporate duty, and to regard such corporations, in this respect, as public or State agencies, and not liable to be sued civilly for damage, caused by the neglect to perform this duty, unless the action be expressly given by stat

ute:" Dillon's Munic. Corp., vol. 2, § 996. Such is the rule in this State: Sherbourne v. Yuba Co., 21 Cal. 113; Huffman v. San Joaquin Co., Id., 427; Crowell v. Sonoma Co., 25 Cal. 313; Winbigler v. Los Angeles, 45 Cal. 36."] Barnett v. County of Contra Costa, S. C. Cal., May 28, 1885; 6 W. C. Rep. 561.

8. CRIMINAL PROCEDURE, Quashing Venire.-To justify the quashing of a venire on account of irregularities in the drawing of the same, it must appear that a fraud was committed or a great wrong done to the serious prejudice of the party or parties accused. State v. Sauchey, S. C. La., April 13, 1885.

9.

Record must Show Return of Indictment into Court.-Where the record does not show that an indictment was returned into court by the grand jury, the case must be remanded and the sentence set aside. State v. Sauchey, S. C. La. April 13, 1885.

10. DEED- When (Quit Claim Deed Construed as Passing a Subsequently Acquired Interest in Land. A quit-claim deed contained the following language in substance, that the grantee "has remised, released, etc., and by these presents does remise, release, alien, confirm, convey and forever quit claim all title which said party of the first part has in and to the following described lot, etc., situate etc., to-wit, in such manner as he may, and to the extent that he has heretofore acquired title thereto, the north quarter of," etc.: Held, that such deed passed only the grantor's interest in the land at the time of its delivery, and not any further interest he might thereafter have acquired. Torrence v. Shedd, S. C. Ill., Ottawa, Sept. 27, 1884.

11. EXEMPLARY DAMAGES

Wilful Refusal of County Commissioners to Levy Tax to Pay Judgment. In an action against county commissioners to recover damages for a wilful refusal on their part to levy a taxable property in a township to pay off a judgment held by plaintiff against such township, in obedience to a peremptory writ of mandamus from the United States circuit court, plaintiff will be entitled to recover exemplary or punitive damages, although the actual damage sustained by him was merely nominal. Wilson v. Vaughn, Cir. Ct. Dist. Kan. Mar. 4, 1885, 23 Fed. Rep. 229.

12. HOMESTEAD-Debts Contracted before Adoption of Law.-1. The homestead law is not void as to debts contracted before its adoption, and is inoperative only when such debts could not otherwise be collected out of the debtor's property. Lawdermilk v. Chorpenning, S. C. N. C., Spring Term,

13.

14.

1885.

15.

How Allotted under Execution on such Debts.-The homestead should be allotted when executions are issued on such debts, and the excess first applied to the payment of the execution, and if sufficient for that purpose, the debtor should be allowed to retain his homestead: Ibid.

Sale Subject to Homestead Title of Purchaser.-Where an execution issued on such debt, and the sheriff sold the real property of the debtor subject to the homestead, the purchaser acquired the reversion after the termination of the homestead. Ibid.

Statute Prohibiting Sale of Reversionary Interests in Homesteads not Retroactive.-The

act of the 25th of March, 1870, which prohibits the sale of the reversionary interest in land charged with the homestead exemption, cannot deprive a creditor of a vested right acquired by docketing his judgment before the act was passed. Ibid. 16. MARRIED WOMAN.-Her Contract of Suretyship to be Construed with Reference to the Inquiry whether She was to Receive Benefit from Same.-Under the statute a married woman cannot enter into a contract of suretyship. When she joins her husband in a contract the question whether or not she is a principal or surety is not to be determined from the form of the contract, nor from the basis upon which the transaction was had, but from the inquiry, was she to receive, either in person or in benefit to her estate, or did she receive, the consideration upon which the contract rests? To the extent that she received the consideration she is a principal and liable. And the burden is on the plaintiff to show for what purpose she contracted. [Citing West v. Laraway, 28 Mich. 464. Vogel v. Leichner, S. C. of Ind., June 21, 1885. 17. MECHANICS' LIENS-May be Established for Repairs of Trust Property.-Certain property was conveyed to trustees to receive the profits and pay them over to the cestui que trust, beyond the necessary expenses incident thereto. The trustees contracted a debt for repairs, and the creditor filed a mechanic's lien on the property: Held, that the trustees had the power, under the provisions of the deed, to make a contract on the credit of the trust property for necessary repairs; and that it was error in the court below to refuse a judgment to enforce the lien by a sale of the property, until the cestui que trust were made parties defendant, and were given an opportunity to be heard. Cheatham v. Rowland, S. C. N. C., Spring Term, 1885. 18. NEGLIGENCE.

. Proximate Cause of DeathDriver Ordering Boys off of Car.-The driver of a feed car, running on one of the streets of the city, allowed boys to ride by his side on the platform fare free. On their getting troublesome he ordered them to get off, slackening his car to a mule walk, without touching, throwing off or threatening either. One pushed another, who, losing his balance, fell, slipping under and being crushed by the vehicle, death ensuing later. Under such circumstances the company cannot be held liable. The injury was not the natural and probable `result of the driver's order, and such an occurrence as he might and ought to have reasonably foreseen. It was the consequence of the act of one for whose acts the company is not responsible, and who, like the injured party, was an intruder on the car. Lott v. New Orleans City & Lake R. Co., S. C. of La., April 13, 1885.

19. PRACTICE IN EQUITY.-When Court may Overrule Motion to Dissolve Injuuction and Continue Injunction until Final Hearing.-When a motion to dissolve an injunction is heard upon the bill and answer, and the answer denies all the equity of the bill, it is usual to dissolve; but for good cause shown, the court may overrule the motion and continue the injunction to the hearing, without adjudicating the principles of the cause. A case in which a motion to dissolve was properly overruled and the injunction continued to the hearing. [Citing Baltimore, etc. R. Co. v. Wheeling, 13 Gratt. 58.] Kahn v. Kerngood, s. C. of App. Va., March 19, 1885; 9 Va. L. J. 369.

20. RAILWAYS.-Consolidation-Liability for Dam