that would be sufficient to put him upon inquiry. Hickey conveyed to Farnham for the nominal consideration of one dollar, and on the same day Farnham conveyed to Clark, for the consideration of two hundred and twenty-five dollars, but Clark held back part of the price until the bodies of the plaintiff's children should be removed. The whole transaction between Hickey and the other defendants wears a suspicious appearance, which the evidence does not remove, and suggests a plan to deprive the plaintiff of the burial plot unjustly and without notice. But I apprehend that there are sufficient reasons in law and equity to prevent the consummation of the wrong.

The Greenwood Cemetery Association was incorporated for the purpose of establishing a burial ground, and for this purpose it was authorized to acquire a tract of land within the limits of the city of Brooklyn. The corporation was authorized to sell the grounds in lots or plots, to be used exclusively as a place of burial of the dead (see the original act of April 18, 1839, and the several acts amending same). There does not appear in the charter of this corporation, in terms, any absolute restraint upon the power of voluntary alienation of a cemetery lot by an owner. Yet I am persuaded that when a person has taken a conveyance of a burial lot, and has made interments therein of the dead of his family, it is in such condition that it caunot be mortgaged to secure the payment of a debt or the return of money borrowed. Such an act is prohibited by the equity and true spirit of the statute. For observe how careful the Legislature has been to secure the sleep of the dead from disturbance. The cemetery itself is exempted from public taxation, and the lots or plots of ground when conveyed are declared to be exempt from assessment, and cannot be sold on execution or be applied to the payment of debts under any insolvent law. And as no public road, street or avenue shall be laid out or opened over the land, the same would seem to be absolutely secured against invasion. A mortgage, equally with an execution upon a judgment, might in the end expose the lot for sale. And although the letter of the charter under consideration is not so full, yet the Legislature has clearly expressed its mind upon this precise subject in the provisions contained in chapter 133 of the Laws of 1847, entitled an act authorizing the incorporation of "rural cemeteries." By section 11 of that act it is provided that when plots or lots shall be transferred to individual holders, and after there shall have been an interment in a lot or plot so transferred to individual owners, such lot or plot, from the time of such interment, shall be forever thereafter inalienable, and shall, upon the death of the holder or proprietor thereof, descend to the heirs-at-law of such holder or proprietor, and to their heirs-at-law forever; and chapter 310 of the Laws of 1879 declares that it shall not be lawful to mortgage land used for cemetery purposes or to apply it in payment of debts.

Legislation upon this subject has been in accord with the sentiments of humanity, and with the spirit of our civilization, and has shown a considerate regard for the sanctity of the resting places of the dead. By the incorporation of cemeteries, and their preservation as such, it has secured an immunity from disturbance for the dead, which had failed to be obtained through burials in church yards, which were liable to be unsettled by the sale of church property.

versed at the General Term. Lautz v. Buckingham, 4 Lans. 484. But it is to be borne in mind that in that case no interment had been made in the lot at the time the mortgage was given, and it may be that it might not be considered an offense, either against good morals, public policy, or against the spirit of the statute, to convey or mortgage a cemetery lot before an interment had been actually made therein. For such a sale or conveyance satisfactory reasons might possibly exist. A man might desire to change his lot for one larger or more eligible.

I do not regard the act of April 5, 1850, as affecting the question we are now considering. It declares under what circumstances a lot is inalienable. It does not authorize a mortgage or a sale thereunder by implication even. But that it is an offense against good morals to mortgage a small isolated plot of ground in a cemetery, dedicated exclusively, under the sanction of the law, as a sanctuary for the dead of one's family, and already consecrated by the ashes of one's kindred, I am sure cannot be well questioned. Such a transaction is clearly a breach of the policy of the statute, is contrary to its equity, and is within the evils it was designed to cure, and our moral nature protests against it. As a consequence of such a transaction, we have here a stranger calling upon a father to disinter his three children, who have been buried for a period of ten years in a cemetery lot, with a threat that if the parent will not he himself will do it. And suppose he carries his threat into execution, what then? Sepulture must, in the end, be had, and that, it is believed, the statute was intended to secure permanently, against disturbance from any such cause as is indicated by the mortgage in question.

The sentiments and feelings which people in a Christian State have for the dead the law regards and respects, and however it may have been anterior to our legislation on the subject of cemeteries, the dead themselves now have rights, which are committed to the living to protect, and in doing which they obtain security for the undisturbed rest of their own remains. In any view which may be taken of this subject, I am sure that the defendant should be restrained from in

terfering with the children's graves. If the conveyance executed by the plaintiff to Hickey, although it be in form absolute, is supposed to confer any present right, it must yield to the easement of the bodies already buried there, which should in no event be disturbed. Moreland v. Richardson, 22 Beav. 596; S. C., 24 id. 33; First Presbyterian Church v. Second Presbyterian Church, 2 Brewst. (Penu.) 372.

But as has been already decided, the conveyance to Hickey was a mortgage security only, and until the plaintiff's rights have been judicially ended through a proceeding in court, his complete possession and control of the lot cannot be interfered with, and for that reason also the threatened acts should be restrained. And a suit in equity is a proper proceeding to secure such restraint.

In Kurtz v. Beatty and another, 2 Pet. 566, 584, Judge Story says: "It is a case where no action at law could afford an adequate and complete remedy. The remedy must be sought, if at all, in the protecting power of a Court of Chancery, operating, by its injunction, to preserve the repose of the ashes of the dead and the religious sensibility of the living."

Taking up dead bodies from the place where they have been interred, without authority, is a misdemeanor at common law. Stephen's Com., vol. 4, 371; Reg. v. Twiss, 10 B. & S. 298; see, also, Paper of Mr. R. Guernsey, read before Medico-Legal Society, Feb. 4, 1880, on the "Law of Burial."

But in addition to relief by injunction, I am of opinion that it should be adjudged, for the reasons above stated, that the transfer made by the plaintiff to Hickey of the cemetery lot, as security for a loan of

money, was and is void, and that the subsequent transfers to the other defendants are also void, and that they should severally be delivered up to be cancelled, and that the plaintiff's name should be restored to the records of Greenwood Cemetery as the owner of the lot.

The loan of money made by Hickey to the plaintiff, it is urged on behalf of the plaintiff, was usurious and void, but the relief granted is not put upon that ground. And if Hickey or his assigns conclude that they have any legal claim for the recovery of the money loaned, they are at liberty to institute and prosecute an action for its recovery, to which the plaintiff, notwithstanding this determination, may interpose any defense he may have.

REMOVAL OF SNOW BY STREET RAILWAY COMPANY.

MARYLAND COURT OF APPEALS.

SHORT V. BALTIMORE CITY PASSENGER RAILWAY COMPANY.*

A street railway company having a franchise to operate its road on a city street has a right to remove the snow from its track and place it upon another part of the street, and if it exercises ordinary care and prudence in doing these acts it will not be held liable for injury done to adjoining property by reason of such snow obstructing the flow of water in the street.

APPEAL by plaintiff from a judgment in favor of the plaintiff. Sufficient facts appear in the opin

ion.

J. T. Mason, for appellant.

Arthur W. Machen, for respondent.

ROBINSON, J. The appellant is the owner of a house in the city of Baltimore, on Hoffman street, near its intersection with Gay; and the appellee is the owner of a horse railway, running along the bed of Gay street, and across Hoffman.

On the 6th January, 1877, there was a heavy fall of snow, and in clearing its track, it is alleged the appellee threw the snow off toward the curb, making a ridge or bank on Gay street, and across the mouth of Hoffman, thereby obstructing the natural flow of water at the intersection of the two streets.

On the other hand, the appellee proved that the snow which had been pushed off the track by the snow-plow lay between the track and the gutter, and did not obstruct nor in any manner interfere with the natural flow of water from Hoffman street.

On the night of the day in question it rained very hard, and the appellant's house was flooded with water, and this suit is brought to recover damages for injuries thereby sustained.

At the trial below, the appellant asked the court to instruct the jury: that if they should find the appellee obstructed the natural flow of water from Hoffmau street, and that by reason of said obstruction the house of the appellant was flooded with water, he was entitled to recover damages for the injuries thereby sustained.

This instruction the court granted, subject, however, to the following modification:

"That if the jury should find the appellee exercised ordinary care in the management of its track on Gay street, and removal of the snow therefrom, and clearing out the gutter extending along Gay street at the side of its track, and that the damage suffered by the plaintiff was attributable either to the conformation of the ground and situation of his premises, or to a storm of such extraordinary severity that the usual * To appear in 50 Maryland Reports.

drainage provided by the city would not carry the water off, then their verdict should be for the defendant."

The appellant contends that he was entitled to the instruction as offered by him, and that the court erred in granting it with the qualification.

Assuming then that the snow, thrown on the street by the appellant in clearing off its track, obstructed the natural flow of water from the street; and that in consequence thereof the appellant's house was injured, the broad question is presented, whether he is entitled to recover damages irrespective of the question of negligence on the part of the railway company?

As a general rule, it is conceded that every one must so use his own property and exercise the rights incident thereto, in such a manner as not to injure the property of another. And it is equally true, that the mere lawfulness of the act is not in itself a test in all cases of exemption from liability for injuries resulting therefrom to the property of others. But yet there are certain rights incident to the dominion and ownership of property, in the exercise and enjoyment of which a person will not be liable for damages, although injury may be occasioned thereby to the property of another.

The books are full of cases of this kind, and it is unnecessary to cite them here. The question then is, what is the true test in actions of this kind, by which the exemption from liability is to be determined? We think it may be safely said, both on principle and on authority, that the true test is, whether in the act

complained of, the owner has used his property in a reasonable, usual and proper manner, taking care to avoid unnecessary injury to others.

This is the rule laid down by the House of Lords, in the recent case of Rylands v. Fletcher, L. R., 3 Eng. and Ir. App. 330. There the defendant built a reservoir for the purpose of keeping and storing water, and the weight of the water broke through some old disused mining passages and works, and injured the mine of the plaintiff.

The Court of Exchequer, Bramwell, B., dissenting, were of opinion that the plaintiff was not entitled to recover, but on appeal to the Exchequer Chamber, this judgment was reversed, and on appeal to the House of Lords, the judgment of the Exchequer Chamber was affirmed.

The Lord Chancellor said: "The defendants, treating them as the owners or occupiers of the close in which the reservoir was constructed, might lawfully have used that close for any purpose for which it might in the ordinary course of the enjoyment of land be used; and if in what I may term the natural user of that land, there had been any accumulation of water either on the surface of the ground, or under ground, and if by the operation of the laws of nature that accumulation of water had passed off into the close occupied by the plaintiff, the plaintiff could not have complained that that result had taken place."

"On the other hand, if the defendants not stopping at the natural use of their close had desired to use it for any purpose which I may term a non-natural use, for the purpose of introducing into the close that which in its natural condition was not in or upon it, for the purpose of introducing water either above or below ground in quantities and in a manner not the result of any work or operation on or under the land, and if in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape and to pass off into the close of the plaintiff, then it appears to me, that which the defendants were doing, they were doing at their own peril."

The right of the plaintiffs to maintain their action was based entirely upon the ground that the defendauts had used their land in an unusual, or in the lan

guage of the Lord Chancellor in a "non-natural" manner, but the right to use it for any purpose for which it might, in the ordinary course of the enjoyment of land be used, was distinctly asserted.

Now in this case the appellee was entitled under its charter and the ordinances of the city of Baltimore to the use of the bed of the street for the purposes of a horse railway, and if its track was obstructed by snow it had beyond all question the right to remove it. And the only question is whether in clearing its track and in throwing the snow on the bed of the street adjoining thereto it can be said that the appellee was, under the circumstances, using the bed of the street in an unusual or unreasonable manner. We think not. The removal of the snow from its track being necessary in order to enable the company to use it for the public benefit and convenience, it was obliged either to throw it on the bed of the street or to haul it away, and no one will pretend that it was under any obligation to do the latter. It had no right of course to throw the snow in the gutter, and thereby obstruct the natural flow of water from the street, because in so doing the appellee would have been guilty of negligence. Nor are we to be understood as deciding that the railway company had the right to bank up the snow on Gay street so as to necessarily obstruct the natural flow of water. On the contrary, it was obliged to exercise ordinary care and prudence, not only in removing the snow from its track, but also in throwing it on the street. And this question was distinctly left to the jury by the modification of the plaintiff's prayer.

Nor do we agree with the appellant that the evidence was legally insufficient to prove either that the storm was one of unusual severity, or that the flooding of the plaintiff's house was owing to the peculiar conformation of the ground.

On the contrary, the appellant's own witness, Martinet, says, "it was a dreadful night, slush and snow ankle deep- one of the worst nights he ever knew."

Then as to the peculiar conformation of the ground, the proof shows that the first story of the plaintiff's house is several feet below the level of the street, and there was evidence tending to show that it was liable to be flooded from several directions, namely, through Reaney's house on the west, and then from the rear of the house by the water coming down the hill-side of south of Hoffman street, and lastly by the overflow of the front sidewalk, caused by the choking up of the Hoffman street gutter.

The several instructions granted by the court presented, we think, the law of the case fairly to the jury, and the judgment below must therefore be affirmed. Judgment affirmed. Alvey, J., dissented.

PURCHASES BY WIFE ON HUSBAND'S CREDIT.

ENGLISH COURT OF APPEAL, MARCH 24, 1880.

DEBENHAM V. MELLOR. (42 L. T. Rep., N. S., 577.) The presumption that a wife living with her husband is authorized to pledge his credit for articles suitable to her station is a presumption of fact and may be rebutted by evidence.

M., while living with his wife, made her an allowance, and forbade her exceeding it or buying goods on his credit. D., in ignorance of this, supplied M,'s wife with articles of dress suitable to her station, upon credit. Held (affirming the judgment of Bowen, J.), that M. was not liable to D. in an action for the price of the goods,

Debenham & Freebody, the plaintiffs, who were linendrapers, to the defendant's wife. The goods were supplied to the wife whilst living with her husband, and were admitted to be necessaries, in the sense that they were suitable to the position in life of the parties. Shortly before the goods were ordered, the defendant forbade his wife to exceed her allowance or to buy goods on his credit. Bowen, J., at the trial, told the jury that, where a husband and wife were living amicably together, the goods supplied being reasonable goods, prima facie she would have authority to pledge his credit; but if, in fact, it turns out that the husband has withdrawn such authority, then the prima facie presumption is rebutted; and further, that it was not necessary that the tradesman should know that the wife had been forbidden to pledge her husband's credit, if she had been so forbidden in fact; and he left to the jury the following question: "At the time these goods were ordered, had Mr. Mellor withdrawn from his wife authority to bind his credit and forbidden her to do so?" This question the jury answered in the affirmative, and the learned judge thereupon gave judgment for the defendant. The plaintiffs now appealed.

Benjamin, Q. C., and A. L. Smith, for the appellants. The principle of the law is, that the marriage creates an agency in the wife to pledge the husband's credit for all necessaries for the house or family. The question is, whether it is sufficient to rebut the presumption for the husband merely to say to the wife, "I forbid you to pledge my credit." A tradesman, if he knows that a wife is living with her husband, may assume that she has the authority that a wife in all conditions of life ordinarily has to order food or clothes for her husband or herself. The husband may go to the tradesman and give him notice that he (the husband) will not be bound, and then he will not be. But the revocation of the authority of an agent will not do, unless that revocation is made known to the persons with whom the agent is dealing. [Thesiger, L. J. Is the husband liable where he makes the wife a sufficient allowance?] Yes. Society is formed upon the basis that the wife is to deal with household affairs, the husband with outdoor business, and it is for that reason that this presumption of law exists. It is to be assumed that this wife had authority to pledge her husband's credit; the question is, is the mere fact that the husband told the wife that she had no longer authority, no notice of that being given to the tradesman, sufficient to bind such tradesman? Jolly v. Rees, 15 C. B. (N. S.) 628; 33 L. J. 177, C. P.; 10 L. T. Rep. (N. S.) 298, will be relied upon by the other side. But there the tradesmen in the place knew that the husband's authority was withdrawn, because he himself goes to the shops and orders the things for the house. Then the wife writes to a tradesman in a distant place and he chooses to send the goods. That case is distinguishable, therefore, from this. But no doubt Erle, C. J., in giving the judgment of the majority of the court, laid down principles which are opposed to the contention of the appellant here. These principles, however, are not in accordance with the weight of authority. In Etherington v. Parrott, 1 Salk. 118; Lord Raym. 1006, the plaintiff was nonsuited upon the ground that the defendant, the last time he paid the plaintiff, warned the plaintiff's servant not to trust his wife any more, and to give his master notice of it. But Lord Holt said: "While they cohabit, the husband shall answer all contracts of hers for necessaries, for his assent shall be presumed to all necessary contracts upon account of the cohabiting, unless the contrary appear; but if the contrary appear, as by the warning in this case, there is no room for such a presumption." In Waithman and another v. Wakefield, 1 Camp. 120, Lord Ellenborough says: "Where a hus

band is living in the same house with his wife, he is liable to any extent for goods which he permits her to receive there; she is considered as his agent, and the law implies a promise on his part to pay the value. If they are not cohabiting, then he is in general only liable for such necessaries as from his situation in life

it is his duty to supply to her. *** However, it is the duty of tradesmen to make inquiries before trusting a married woman who is a stranger to them; and the plaintiffs do not seem to have taken the pains they were bound to do, to ascertain the defendant's responsibility." In Montague v. Benedict, 3 B. & C. 631; 2 Sm. L. C. (7th ed.) 467, Littledale, J., says: "There are many cases in which the assent of the husband may be presumed. In Comyn's Digest, tit. 'Baron and Feme' (2), it is laid down that if the wife trades in goods, and buys for her trade when she cohabits with her husband, his assent is to be presumed; and if a wife buy necessary apparel for herself, the assent of the husband shall generally be intended." The assent of the husband will be presumed during cohabitation to his wife's ordering what is necessary for the purposes of the family and household. In Seaton v. Benedict, 5 Bing. 28; 2 Sm. L. C. (7th ed.) 475, Best, C. J., says: "A husband is only liable for debts contracted by his wife on the assumption that she acts as his agent. If he omits to furnish her with necessaries, he makes her impliedly his agent to purchase them." If that is so, a secret revocation will not do. The ordinary law of agency will apply. In Johnston v. Sumner, 3 Hurl. & N. 261; 27 L. J. 341, Ex., the Court of Exchequer say: "The principle is merely that of agency. * - * If a man and his wife live together, it matters not what private agreement they may make, the wife has all the usual authority of a wife." [Thesiger, L. J., cites Reid v. Teakle, 13 C. B. 627.] In Dyer v. East, 1 Mod. 9, Kelynge, C. J., says: "The husband must pay for the wife's apparel, unless she elope, and he give notice not to trust her." In Tod v. Stokes, 12 Mod. 241, Holt, C. J., held that the reason why the husband shall pay debts contracted by the wife is upon the credit the law gives her by implication, in respect of cohabitation, and is like credit given to a servant. The wife here was an agent de facto. They also cited Manby and another v. Scott, 1 Lev. 4; 1 Sider. 109; 1 Mod. 124; Bac. Abr., tit. "Baron and Feme;" 2 Sm. L. C. 445.

Wiliis, Q. C., and McColl, for the defendant.

BRAMWELL, L. J. The question here is, whether the defendant is bound to pay for goods supplied to his wife without his authority or knowledge. The goods were articles of dress, and were necessaries in the sense of being suitable for the wife in her station, but not in the sense of her standing in need of them, for she had either a sufficient supply already or sufficient funds from her husband to supply herself with them. The action used to be one of assumpsit, and it was necessary to show, if possible, that the wife was the agent of her husband, and therefore a case of this kind always presents a technical appearance in arguments. There are cases in which the wife as an agent has authority to bind her husband; for instance, if he conducts himself so that she is obliged to leave him, or if he turns her out of doors, he is bound to maintain her, and she can pledge his credit for necessaries; and I can understand that there may be other cases, where the husband and wife are cohabiting, and persons in the same class in society, and living in the same neighborhood are accustomed to have certain articles on credit, or by weekly bills, as for instance in the case of butcher's meat. In such cases it seems to me that the wife would have a presumed authority to pledge the husband's credit, and the husband would have to negative it. This would apply, not only to a wife, but also to a sister or a housekeeper, or any other person who

might be in the position of managing the establishment. That consideration was the foundation of the judgment in Ruddock v. Marsh, 1 H. & N. 601. But that is not the case here; it cannot be pretended that there is any practice which is binding in this case; the court cannot take judicial notice of a practice to pledge a husband's credit for dresses, (and I should hope that no such practice does exist in fact. The question here is whether the wife has authority to pledge her husband's credit; it is not the same as authority to spend ready money, for if she did spend ready money the husband could not refuse to accept the article which she had bought. The question here is, whether the wife can pledge her husband's credit and make him liable. Why should she against her husband's orders? If he desires that she should have authority, he can give it. Then take the case of the tradesman, he is not bound to give credit; or he may say to the wife, before he trusts her, "Have you your husband's authority?" and he has this security, that if she falsely says she has, she would be liable to an indictment for obtaining goods by false pretenses. I do not say there would be any great probability of a conviction. Or he may say, "I must have the husband's assurance that the wife has authority." It may be said that by doing so the tradesman would offend his customers; that may be a good reason why he should not ask the question, but it is no reason why we should make the husband pay. I am of opinion that there is no reason of convenience or usage for the law being as the plaintiffs would have it, and there is no authority for that view. I think the law is the other way, and that the judgment ought to be affirmed. As to the question of expediency, it would be most mischievous to enable a foolish woman and a tradesman to combine to make the husband liable.

BAGGALLAY, L. J. I have had an opportunity of considering the judgment which Thesiger, L. J., is about to deliver, and I entirely agree with it; at the same time I do not dissent from the observations of Bramwell, L. J.

THESIGER, L. J. The state of facts upon which the judgment of the court is to proceed I take to be as follows: A husband and wife living together; the husband able and willing to supply the wife with necessaries or the means of obtaining them; an agreement between them, not made public in any way, that the wife shall not pledge her husband's credit; a tradesman, without notice of that agreement, and without having had any previous dealings with the wife, supplying her upon the credit of the husband, but without his knowledge or assent, with articles of female attire suitable to her station in life; an action brought against the husband for the price of such articles. The question for us is, whether the action is maintainable. I agree with the other members of the court, and with Bowen, J., that it is not. The appellants' counsel have brought under our notice a considerable number of authorities with the view of establishing that the law as laid down in Jolly v. Rees is erroneous. I think that the authorities have a contrary effect. They establish beyond controversy that the liability of a husband for debts incurred by his wife during cohabitation is based upon the ordinary principles of agency. It follows that he is only liable when he has expressly or impliedly, by prior mandate or subsequent ratification, authorized her to pledge his credit, or has so conducted himself as to make it inequitable for him to deny, or to estop him from denying her authority. In the present case express authority is out of the question, and there is no evidence that the defendant ever assented in any way to the act of his wife in pledging his credit to the plaintiffs. But it is said that there is a presumption that a wife living with her husband is authorized to pledge her husband's