The plaintiff corporation contends that the members of the firm of Mason, Chapin & Co. have, by sharing or being entitled to share the profits of the business carried on by Smith, become, if not actual copartners with him, at least liable with him as copartners to third persons for the debts contracted by him in the prosecution of his business.

The position taken by the plaintiff corporation has the support of the earlier English and of numerous American decisions, and, previous to the decision of Cox v. Hickman in the House of Lords, in 1860, was so well established that Judge Story, in his work on the Law of Partnership, while he questions whether it would not have been "more conformable to true principles, as well as public policy, to havo held that no partnership should be deemed to exist at all, even as to third persons, unless such were the intention of the parties, or unless they had so held themselves out to the public," declares, nevertheless, that "the common law has already settled it otherwise," and that "therefore it is useless to speculate upon the subject." Story on Partnership, § 36. The ground of the doctrine was that a person who shares the profits ought to share the losses, because he takes a part of the fund out of which the losses are to be paid. But the ground will not bear examination; for in point of fact, the losses are no more payable out of the profits than out of the capital, and in other cases it has been decided, quite inconsistently with this ground, that it is only a participation in the net, not the gross, profits, which makes the participant a quasi partner. Other grounds, but none more satisfactory, have been suggested. Indeed, the doctrine, though well received by some judges, appears to have been always regarded by others as an anomaly or legal solecism. It was soon relaxed in favor of agents or servants, who, it was held, might take a share of profits by way of compensation for their services without becoming quasi partners. The English courts, however, refused to extend the exception to cover a loan of money, though upon principle it is impossible to discern any difference whether a portion of the profits goes to pay for services or for money contributed to the business. Mr. Lindley, in his excellent work on Partnership, suggests that this difference of decision was owing to the statutes against usury, because in many cases a loan of money for a share of profits could only be upheld by regarding the lender as a partner. Lindley on Partnership (3d ed.), 23-5.

Such was the state of the law, as it was generally understood, or to put the matter as some of the later English judges prefer to put it, as it was generally misunderstood, when, in 1860, the House of Lords decided the case of Cox v. Hickman, 8 H. L. 268. The gist of that decision was that a mere participation in profits does not make the participant a partner unless he has in fact agreed to become such, but is only prima facie evidence that he is such, and is rebuttable by counter-proof to be found in the contract or transaction or in the circumstances connected with it. The real question is, did the person who is sought to be charged on account of his participation in the profits ever enter into the relation of copartner with the other participant, or in other words, do they participate on the common footing of principals in the business? And in explication of the question, it was said that the law of partnership is a branch of the law of agency, inasmuch as, wherever an actual partnership exists, the partner who ostensibly carries on the business does it for himself and as agent for his copartners; or to put the matter in another form, he and they carry it on through him on their joint account, so that in law, on the principle of agency, whatever he does in the prosecution of the business they do, and whatever debts he contracts they contract with him. In Holme ▼. Hammond, L. R., 7 Exch. 218, 230, it is stated that

the import of the opinions delivered in the House of Lords in Cox v. Hickman is correctly summed up by O'Brien, J., in Shaw v. Galt, I. R.. 16 C. L. 375, thus: "The principle to be collected from them appears to be, that a partnership, even as to third parties, is not constituted by the mere fact of two or more persons participating or being interested in the net profits of a business; but that the existence of such partnership implies also the existence of such a relation between those persons as that each of them is a principal and each an agent for the others."

The doctrine promulgated in the decision of Cox v. Hickman has been developed and applied in England in many subsequent cases, and may now be regarded as established law in that country. Bullen v. Sharp, L. R., 1 C. P. 86; Holme v. Hammond, L. R., 7 Exch. 218; Mollwo, March & Co. v. The Court of Wards, L. R., 4 P. C. 419; Pooley v. Driver, L. R., 5 Ch. Div. 458; Ex parte Tennant, L. R., 6 Ch. Div. 303, the substance of which is seated in Hart v. Kelley, 83 Penn. St. 286, 290; Lindley on Partnership (3d ed.), 35-47. The doctrine has likewise been laid down or approved in many American cases. Hart v. Kelley, 83 Penn. St. 286; Harvey v. Childs & Potter, 28 Ohio St. 319; Smith v. Knight, 71 Ill. 148; In re Francis, 2 Saw. 286; 7 Nat. Bank. Reg. 259; Williams v. Soutter, 7 Iowa, 435; Polk v. Buchanan, 5 Sneed, 721; In re Ward & Co., 8 Rep. 136; Richardson v. Hughitt, 8 id. 177. Indeed, it has been maintained that the American cases, generally, have never gone to the same extent as the earlier English cases. Eastman v. Clark, 53 N. H. 276.

Some of the cases above cited are stronger than the case at bar. Bullen v. Sharp is such a case. In Mollwo, March & Co. v. The Court of Wards, the borrower agreed to carry on the business, subject to the control of the lender in several particulars, and to pay the lender twenty per cent of the profits until the advances were repaid with twelve per cent interest, and yet it was held that no partnership was created, the primary purpose being security for the loan. In Polk v. Buchanan the lender was to have one-fourth of the net profits for his accommodations, which were to continue for two years, and to have the product of the business placed under his control, and yet he was held not to be a partner. In Williams v. Soutter it was held that a loan of two thousaud dollars, to be repaid at the expiration of a year, with interest at the rate of thirty per cent, or one-third of the net profits of the business, did not make the lender a copartner with the borrower. In Cox v. Hickman, Lord Chief Baron Pollock supposes, as a case in which a partnership would clearly not exist, the case of a loan to be repaid by the application of one-half the net profits as they might arise, the lender to have the power to see that the profits were applied. If these cases are law, we do not see how it can be held that a copartnership would result from carrying out the contract in the case at bar.

In Pooley v. Driver, L. R., 5 Ch. Div. 458, 474, 488, there was an agreement by the recipients of the accommodation to carry on the business "to the best of their ability." The court relied on this, in connection with other features of the contract, to show that a partnership was in reality created under the cover of a loan. For the law will not tolerate any evasion, but wherever the agreement creates as a matter of fact the relation of partnership, no mere words to the contrary will prevent, as regards third persons, its having its legitimate consequences. Ex parte Delhasse, L. R., 7 Ch. Div. 511. In the case at bar, however, we find no reason to suspect any latent design to create a partnership under the disguise of a loan; for though there is here, as in Pooley v. Driver, an agreement on the part of the borrower to carry on the business to the best advantage, we do not think it affords any inference that a partnership was intended, for it is scarcely more than the law itself would require, namely, that the

borrower shall conduct with good faith, and it is certainly less significant than the stipulations given in some of the cases above cited And see Ex parte Tennant, L. R., 6 Ch. Div. 303. The lenders make a condition of the loan that the borrower shall carry on the business to the best advantage, because they are dependent on him, the business being his and not theirs. The plaintiff contends that there is a distinction between an agreement for participation and actual participation, and that while the former may be only prima facie, the latter is conclusive evidence of partnership. We do not find that the distinction is well founded in either reason or precedent. It certainly is not well founded if partnership is a fact dependent on agreement, and not a mere matter of legal imputation, and as we understand the current of modern decision, it is such a fact; and the only case in which a person, who is sought to be charged as a partner, is precluded from proving the actual fact is when he has held himself out, or permitted himself to be held out, as a partner.

The plaintiff also contends that inasmuch as participation in profits, if not conclusive, is at least prima facie evidence of partnership, it is for the jury to say whether the defendants are partners or not. This may be so if there is testimony outside the contract and its execution going to show the existence of a partnership. But if there is no such outside testimony, if all that the members of the firm of Mason, Chapin & Co. have done is to carry the contract into effect according to its terms, then the question is wholly for the court; for nothing done in execution of the contract could create a partnership unless the contract is itself a contract for a partnership, and whether it is or not, it being in writing, is simply a question of legal construction.

The Roman law and the modern foreign law, Judge Story says, do not create partnerships as to third persons between parties without their consent, and therefore, he adds, the common law appears to have pressed its principles to an extent not required by, if it is consistent with, natural justice. Story on Partnership, § 37. If Judge Story were living to-day he would doubtless rejoice to find that the common law, as expounded by the highest judicial tribunals in England, does not diverge from the Roman and modern foreign law, nor from natural justice, so widely as he had inferred from the earlier English cases. It is certainly a great advantage to have the law in harmony with natural justice. A law that no person can share in the profits of a business without becoming liable as a partner for its losses is not such a law, for it subjects men, without any fault on their part, to liabilities, as if by contract, which they never contracted. In this State there is no reported decision which is inconsistent with the later English cases, and we think the later English cases are to be accepted as the truest and most authoritative exposition of the common law.

Taking then the first question to be as previously stated, namely: Would the contract, if carried into effect according to its terms, make the parties to it copartners, or render them liable to third persons as copartners? we answer it in the negative.

The second question arises thus: The action is assumpsit for goods sold and delivered. The goods were sold by contract under seal, executed May 1, 1878, by the plaintiff and the defendant Smith, and were subsequently delivered under it. The contract purports to be simply the individual contract of Smith with the plaintiff. The defendants contend that assumpsit cannot be maintained. The question is, can it be maintained?

Ordinarily an action of assumpsit does not lie for money due on a contract under seal so long as an action can be maintained on the specialty. Gilman v. School District, 18 N. H. 215; Clendennen v. Paulsel, 3

Mo. 230; Brown v. Gauss, 10 id. 265; Young v. Preston, 4 Cranch, 239; Pierce v. Lacy, 28 Miss. 193; Hawkes v. Young, 6 N. H. 300; Wilson v. Murphey, 3 Dev. 352; Shack v. Anthony, 1 M. & S. 573; Evans v. Bennett, 1 Camp. 300, 303, note. The reason is because assumpsit lies only on simple contracts, and when a contract by specialty exists, all simple contracts of the same purport are merged in it. If, therefore, the action were against Smith alone, we think it clearly could not be maintained, and of course it cannot be maintained against him and others unless they were copartners with him. The question is, then, can it be maintained against him and others if they were his copartners? There is in our opinion an insuperable obstacle to it. For if he is not liable individually in assumpsit because he is liable on his contract under seal in the higher form of action, how can he be liable jointly with others; the cause of action, which originally came into existence under the contract under seal, remaining always one and the same? We do not see how he can, consistently with the rules of pleading or with the rule that the same cause of action cannot exist at the same time as a simple contract and as a specialty. It is only in case the contract under seal could be regarded as collateral to an implied contract on the part of all the defendants that the action could lie, but it cannot be so regarded because it is itself the original or principal contract, and being express leaves no room for any contract by implication. Banorgee v. Hovey, 5 Mass. 11; Kimball v. Tucker, 10 id. 192; Blume v. McClurken, 10 Watts, 380; Eames v. Preston, 20 Ill. 389. The plaintiff has cited numerous cases, of which the three following are most in point: Cram v. Bangor House Proprietary, 12 Me. 354; Van Deussen v. Blum, 18 Pick. 229; Fagely v. Bellas, 17 Penn. St. 67. In the first of these cases the contract was for the benefit of a corporation, but was signed and sealed by its agents with their own names and seals. It was held that an action of assumpsit would lie against the corporation which had received the benefit of the contract. The court appear to treat the sealed contract as if it were not binding either on the corporation or its agents, and if this was so, the decision was right beyond any question. Moreover the action was against the corporation alone and not against any person who signed the contract under seal. In the second case the action was debt, not assumpsit. The declaration contained, besides a special count on the contract, general counts for work done and materials furnished, and the court permitted the plaintiff to recover on the latter counts, notwithstanding the contract was under seal and signed in the firm name by only one of the partners. The case appears to have been decided without regard to the previous and thoroughly considered case of Banorgee v. Hovey, the contract apparently being considered a nullity, whereas it was, according to the precedents, the deed of the partner who signed it. The case of Fagely v. Bellas is directly in point, but it is a mere decision without reasons assigned or precedents cited. We do not think these cases ought to control our decision. The contract here was executed by Smith in his own name, and there can be no doubt that he is individually bound by it. There are cases which hold that where the partner who executes the obligation is insolvent, the other partners may be reached in equity, there being no remedy against them at law. Purviance v. Sutherland, 2 Ohio St. 478; Linney's Admr. v. Dare's Admr., 2 Leigh, 588; Sale v. Dishman, 3 id. 548; Weaver v. Tapscott, 9 id. 424, 426; James v. Bostwick, Wright (Ohio), 142; Wharton v. Woodburn, 4 Dev. & B. 507. These decisions rest on the assumption that at law an action will lie only on the specialty. And we think if there is any remedy against the non-executing partners it is in equity.

We think, therefore, there being no claim that the goods were furnished otherwise than in fulfillment of

the contract under seal, without any variation or abandonment of it, that the plaintiff cannot maintain an action of assumpsit.

The plaintiff must therefore, agreeably to the agreement, become nonsuit, and judgment must be entered for the defendants for their costs.

MAINE SUPREME JUDICIAL COURT AB

STRACT.*

CONSTITUTIONAL LAW-MUNICIPALITY MAY NOT LEVY LOCAL TAX FOR GENERAL PURPOSES.- A tax, assessed for public purposes, cannot constitutionally be imposed upon a portion only of the real estate of a town, leaving the remainder exempt. A legislative act, authorizing a village corporation to levy a local tax upon the real estate of its municipality for public purposes thus imposing a local tax for general and public purposes upon the real estate of one part of a town, leaving the other part untaxed-transcends the power of the Legislature, and is unconstitutional and void. Brewer Brick Co. v. Brewer, 62 Me. 62; Farnsworth Co. v. Lisbon, id. 451. "There is no case to be found in this State, nor, as I believe, after a very thorough search, in any other with limitations in the Constitution or without them-in which it has been held that a Legislature, by virtue merely of its general powers, can levy, or authorize a municipality to levy, a local tax for general purposes. It matters not whether an assessment upon an individual, or a class of individuals, for a general, and not a mere local purpose, be regarded as an act of confiscation, a judicial sentence or rescript, or a taking of private property for public use without compensation; in any aspect it transcends the power of the Legislature, and is void." Sharswood, J., in Hammett v. Philadelphia, 65 Penn. St. 146. "A legislative act, authorizing the building of a public bridge, and directing the expenses to be assessed on A., B. and C., such persons not being in any way peculiarly benefited by such structure, would not be an act of taxation, but a condemnation of so much of the money of the persons designated to a public use." Beasley, C. J., in Tidewater Co. v. Coster, 3 C. E. Green, 518. "It would be wholly beyond the scope of legislative power to authorize a municipality to levy a local tax for general purposes. * * * A law which would attempt to make one person, or a given number of persons, under the guise of local assessments, pay a general revenue for the public at large, would not be an exercise of the taxing power, but an act of confiscation." Wagner, J., in McCormick v. Patchin, 53 Mo. 33. Dyar v. Farmington Village Corporation. Opinion by Walton, J.

FILED MAY NOT BE

PRACTICE-WRIT USED AND USED IN NEW PROCEEDING.- When a petition for insolvency has been served and placed on the files of the court and the proceedings have been subsequently dismissed, such petition cannot be withdrawn from the files and reissued and made the basis of subsequent proceedings. In Lyford v. Bryant, 38 N. H. 89, a writ was quashed on motion for a defect apparent on its face. It is said," observes Bell, J., in delivering the opinion of the court, "that the cause for quashing the writ was, that it was drawn upon a blank, which had been before used for the commencement of another action which had been entered in court. Beyond doubt, such a blank, having been once so used, has performed its office and it has ceased to be capable of use to draw a valid writ upon afterward. The uniform practice has been to quash writs so drawn at once and there seems to us no doubt of its propriety." So, in Parsons v. Shorey, 48 N. H. 550, it was held that a writ, which had been served by attaching the defend

*To appear in 70 Maine Reports.

ant's real estate, though no service had been made on him, could not be used to commence a new action of later date between the same parties. No case has been found where after a writ has been served and placed on the files of the court, it has been allowed to be used to commence a new proceeding. To allow such a practice "would tend to give the process and files of the court an unseemly and slovenly appearance," and deprive the officers of the court of their legal fees." Parsons v. Shorey, supra. In re Marson. Opinion by Appleton, C. J.

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

JUNE, 1880.

CONSIDERATION-AGREEMENT TO ACCEPT PART OF DEBT AS FULL PAYMENT.- Where a creditor promised in consideration of the payment of part of the sum due on a note to accept that part as payment in full, no agreement under seal being made, held, that this did not relieve a guarantor of the note. The payment of part of an acknowledged debt after its maturity has often been held to be no sufficient consideration for a release, not under seal, of the remainder. It has no effect as an accord and satisfaction, and rests upon no legal or valid consideration. Harriman v. Harriman, 12 Gray, 341; Jennings v. Chase, 10 Allen, 526. Lathrop v. Page. Opinion by Ames, J.

CRIMINAL LAW JOINDER OF OFFENSES-LARCENY BURGLARY-RECEIVING STOLEN GOODS.-A thief and a receiver of goods stolen may be indicted together. Commonwealth v. Adams, 7 Gray, 43. In an indictment for breaking and entering a building, with intent to steal, it is usual, though not necessary, to allege an actual stealing therein; and if one person is charged both with breaking and entering and with stealing, he may be convicted and sentenced for either offense, or if the two offenses are charged in separate counts and are proved to be distinct, for both. Crowley v. Commonwealth, 11 Metc. 575. If one person breaks and enters a building and steals therein, and another person takes no part in the transaction until after the breaking has been accomplished, but participates in the subsequent stealing, each may be convicted and sentenced accordingly, the one for the breaking and entering, and the other for stealing under an indictment which charges both defendants with having jointly committed both offenses. Rex v. Butterworth, Russ. & Ry. 520. Or they may be separately charged in one indictment according to the actual facts of the case, the one with breaking and entering and stealing, and the other with stealing only, or with receiving the goods stolen. Rex v. Hartall, 7 C. & P. 475; Commonwealth v. Hills, 10 Cush. 530. Commonwealth v. Darling. Opinion by Gray, C. J.

DIVORCE- -IN ANOTHER STATE FOLLOWED BY MARRIAGE ESTOPPEL-ACQUIESCENCE.-In an action by a wife against her husband for divorce and adultery it appeared that he had procured a divorce from her in an action in an another State in which action she had appeared; that she afterward executed a release, reciting the divorce obtained by him, and for a pecuniary consideration discharging all her claims upon him or his estate. And that he afterward married in that State, Held, that the wife could not treat his subsequent marriage and cohabitation with another woman as a violation of his marital obligations to herself. A defense to the action by the wife allowed, not upon the ground of a strict estoppel, but because her own conduct amounted to a connivance at, or acquiescence in, his subsequent marriage. Kerrigan v. Kerrigan, 2 McCarter, 146; Palmer v. Palmer, 1 Sw. & Tr. 551; Boulting v. Boulting, 3 id. 329; Pierce v. Pierce, 3

Pick. 299; Lyster v. Lyster, 111 Mass. 327. See, also, Smith v. Smith, 13 Gray, 209. Loud v. Loud. Opinion by Gray, C. J.

LORD'S DAY-INJURY BY DOG TO ONE TRAVELLING ON-DEFENSE CONTRIBUTORY NEGLIGENCE.- Plaintiff was driving his horse and buggy along the public highway in Boston on Sunday, not upon a work of necessity or mercy, when defendant's dog jumped at the head of the horse, frightening him and causing him to be unmanageable so that he overturned plaintiff's buggy. Held, that the fact that plaintiff was unlawfully travelling on the Lord's day would not relieve defendant from liability under a statute for the injury caused by the dog. The fact that he was travelling unlawfully would not defeat his right to recover, unless his unlawful act was a contributory cause of the injury he sustained. McGrath v. Merwin, 112 Mass. 467; Marble v. Ross, 124 id. 44, and cases cited. It has been held in this Commonwealth that if a person who is unlawfully travelling on the Lord's day is injured by a defective highway or by a collision with the vehicle of another traveller, he cannot recover for the injury. This is upon the ground that his illegal act aids in producing the injury, or, in other words, is a contributory cause. Lyons v. Desotelle, 124 Mass. 387; Conolly v. Boston, 117 id. 64. On the other hand, it has been held in several cases that if a person, who is at the time acting in violation of law, receives an injury caused by the wrongful or negligent act of another, he may recover therefor if his own illegal act was merely a condition, and not a contributory cause of the injury. Steele v. Burkhardt, 104 Mass. 59; Kearns v. Sowden, id. 63, note; Spofford v. Harlow, 3 Allen, 176.

resentative had or had not collected such interest. Held, further, that although B's executrix was responsible for the interest falling due on the collateral notes, she was not, in the circumstances, responsible for the principal of these notes. It is undoubtedly the law that the pledgee of a chose in action, who receives it as collateral security, is bound to use, not extraordinary care, but ordinary or reasonable care and diligence to secure its payment when due. 1 Am. Lead. Cas. 402-3; Lawrence v. McCalmont, 2 How. (U. S.) 426; Kiser v. Ruddick, 8 Blackf. 382. The law implies on the part of the pledgee, from the nature of the transaction, an agreement to use such care to protect the pledgor's interest and make the pledge available. Accordingly, if the pledge consists of indorsed negotiable paper, the pledgee must present it for payment at maturity, and if it is not paid, must give notice to charge the indorser, or if loss ensues, he will be liable to make it good. 1 Am. Lead. Cas. 123, 124; McLughan v. Bovard, 4 Watts, 308; Ormsby v. Fortune, 16 Serg. & R. 302. And there are cases which go so far as to hold that the pledgee will be liable for neglecting to put the collateral in suit, when a prudent man would do it, if any loss results from the neglect. Lamberton v. Windom, 12 Minn. 232; Wakeman v. Gowdy, 10 Bosw. 208; Slevin v. Morrow, 4 Ind. 425; Ex parte Mure, 2 Cox, 63; Williams v. Price, 1 Sim. & Stu. 581; Lyon v. Huntingdon Bank, 12 Serg. & R. 61; Hoard v. Garner, 10 N. Y. 261; but see 1 Am. Lead. Cas. 404. But the pledgee is not bound to exercise extraordinary care. Hence he is neither bound to forecast the markets for the pledgor, nor to watch the markets for the most favorable opportunity to sell the Granite Bank v. Richardson, 7 Metc. 407; Robinson v. Hurley, 11 Iowa, 410; Howard v. Brigham, 98 Mass. 133; O'Neill v. Whigham, 87 Penn. St. 394; Richardson v. Insurance Co. of Va., 27 Gratt. 749; Clark v. Young, 1 Cranch, 181. Whiton v. Paul. Opinion by Durfee, C. J.

RHODE ISLAND SUPREME COURT ABSTRACT.

MAY AND JUNE, 1880.

BAILMENT-DUTY OF PledgeE OF SECURITIES TO COLLECT INTEREST-NEGLIGENCE DEPRECIATION OF SECURITIES. - A transferred to B, as collateral, certain promissory notes secured by mortgages. The notes bore interest payable half yearly, and the mortgages contained powers of sale if default was made in paying the interest when due, and also contained a provision, that in case of sale for non-payment of interest, the principal should be due and payable on the day of such sale. A notified B by letter that the power to collect the interest was wholly in B's hands; that B's duty was to collect the interest, if necessary, by sale, and credit A with the collections, and that A would hold B responsible for any neglect. After B's death, A wrote to B's executrix, who was sole legatee and devisee, to the same effect. Both B and B's representative neglected to collect much of the interest and to enforce payment by sale. By the depreciation of property the mortgages became nearly valueless, and the mortgagors were irresponsible. It appearing that prompt sales would have realized enough to pay the collateral notes in full, on a bill in equity to redeem, and for an account, held, that B's executrix was responsible for neglecting to collect the interest as it fell due. Held, further, that A was entitled to have his principal debt reduced by the amounts of interest falling due on the collateral notes, whether B and B's rep

EXECUTORS-PAYMENT TO ONE OR SEVERAL DISCHARGES DEBT DUE ESTATE. A and B were executors of an estate. A made collections and squandered the receipts; whereupon C, a debtor of the estate, agreed with B to make no payments to A except upon orders bearing B's signature. A subsequently presented an order signed by himself as executor, and bearing a signature of B forged by A. C in good faith paid this order. In an action by B against C to recover the balance due to the estate, held, that the payment by C made on the order bearing A's genuine signature and B's forged signature was valid. There can be no doubt that the ordinary rule is that co-executors, however numerous, have each of them complete power to administer the estate. Williams on Exrs. 946; Charleston v. Earl of Durham, L. R., 4 Ch. App. 433; Hall v. Carter, 8 Ga. 388. A payment, therefore, to any one is equivalent to payment to all. Ordinarily, too, neither can prevent the others receiving payment. See Herbert v. Pigot, 4 Tyrw. 28; Hill v. Simpson, 7 Ves. Jr. 152; Keane v. Robards, 4 Madd. Ch. 332; Whale v. Booth, 4 T. R. 625, note a; Sherburne v. Goodwin, 44 N. H. 271; Dodson v. Simpson, 2 Rand, 294; Ashton v. Atlantic Bk., 3 Allen, 217. Stone v. Union Savings Bank.

MUNICIPAL CORPORATION LIABILITY FOR TRESPASSES OF AGENTS. -The city of Providence, owning by purchase certain lots on both sides of a private way, the highway commissioners of the city excavated gravel from the lots and the way until the latter became impassable. The gravel was used for highway repairs at various and remote points. All the expenses were paid from the city treasury and from regular appropriations. In an action against the city brought by another owner of land on the private way, held, that the highway commissioners were the agents of the