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"During the earlier years of his practice, he some- THE NEED OF REFORM IN OUR FEDERAL times spoke to me of his aspirations, one of which

JUDICIAL SYSTEM. was to be one of our chief justices. He was offered T the annual dinner of the Chicago Bar Associa

A a judgeship afterward, but never could afford to tion, on the 27th ult., Judge Dillon, of the United accept.

States Circuit Court, made these remarks:

"Such an association as this does not exist for its “ His professional income he spent lavishly. He

members alone. In this country our material interests gave away a great deal, and neglected, in many in

are so closely interlaced as not to be marked or defined stances, to collect or to charge for his services. He by municipal or State lines. Whatever good fruit you was careless in payment, too, but never to the point secure for yourselves, you inevitably secure for all. of injustice. Having borrowed a sum of money

“On such occasion as this, Mr. President, it ought when a young man, he retained it for many years,

not to be forgotten that there are many causes in this

country which operate with great force to produce an always paying interest, though it is certain he could

imperfect system of jurisprudence; and, therefore, the have re paid the principal many times over if it had

duty of the lawyer and judge to guard, as far as possibeen necessary. Finally I, as the representative of ble, against such a result, is a duty of imperative oblione of the heirs of the lender, had occasion to ask gation. I shall mention only one or two of these causes. for the money, and it was paid at once. When pay

One of them grows out of our duplex system of State

and Federal Government, and is unavoidable. Forty ing the interest he said to me on one occasion: ‘You

State courts of last resort and as many Federal courts have had some trouble about this; I will give you

sitting in the same States with concurrent jurisdiction, your law,' and he did, both advice and service,

caunot, without great learning and infinite care, build when needed. I had occasion to know much of his up a harmonious and symmetrical system of jurisprubenefactions, as I was sometimes his almoner. Some dence. The difficulty in the way of the judges is instances of his generosity I communicated to Mr.

seriously increased by the burdensome and exacting Brown when he was preparing his book.

pressure of their duties. They lack, in general, neither

learning nor industry; their chief want is the want of "His love of study lasted through life, and he ac

time. counted it as one of his chief blessings. In speak- “ I shall not speak of myself, but in illustration of ing to me of his son one day, he held up his hand what I am saying, I may, perhaps fitly, refer to the and said: “I would give that finger if it would

nature and extent of my judicial laborg. The other make him love study as I do.'

circuits are in the same situation. The lawyers who

practice in Judge Drummond's court need no informaThe humorous side of his character has been to

tion concerning his great labors. so great an extent that on which the public atten- “The trans-Mississippi Federal Circuit embraces tion has been hitherto fixed, that it needs no illustra- seven States, and extends in an unbroken reach of tertion. But his evenness of temper is worth remark

ritory from the British possessions on the north to ing. He was always agreeable, genial, companion- Louisiana and Texas on the south; from the Missis

sippi on the east to and including the Rocky Mounable, playful even, toward those with whom he

tains on the west. It comprises the States of Minnewas intimate. I could never be long in his com

sota, Iowa, Nebraska, Kansas, Missouri, Arkansas and pany without hearing some enlivening pleas- Colorado. In each of these states there are two terms antry.

a year, and in one of them four terms, making sixteen “I do not think Mr. Choate was fitted to be a leader terms annually. With the exception of Arkansas and in politics. He was constitutionally timid and con

Colorado, I have for the last eight years attended

twice a year the terms of court in each of these States servative. Given a leader, like Webster, he was

and in Arkansas aud Colorado, since its admission, ina useful and zealous supporter. Let him have a

variably once each year, and sometimes twice. The question to argue, and if he felt that the country distances actually traveled are immense; not less than was his client, he waxed eloquent and sought eagerly 10,000 miles a year. The distance from St. Paul, where for victory. During Webster's life-time he initiated

one can almost cast a stone across the Mississippi to

Arkansas, where the stream has broadened into a no policy. The latter, on his death-bed, told Choate:

mighty and majestic river, bearing the commerce of "You have a great future before you if you go with

twelve States, and on whose lordly bosom hostile the party and direct them.' Choate could go with fleets have contended, is vast. And the distance from the party; he could even go against it; but the the great city of St. Louis to where Denver serenely instinct of leadership was weak in him; to control

sits, sentineled and begirt by the lofty and show-clad the party was work to which he was not fitted, an

peaks of the Rocky Mountains, is scarcely less.

" The dockets are crowded with causes, original and up-hill labor.

appellate, of great variety and importance, civil and “It is exceedingly difficult to describe or to charac

criminal, at law and in equity, in admiralty and in terize such a man. He was unlike any other I have bankruptcy. And this is only typical of the condition known. Webster seemed to be a good deal like

of the other circuits. With so much work and with so other folks, only there was more of him. But

little time for deliberate and sedate consideration,

mistakes must be numerous. But the fault lies not so Choate was peculiar, a strange, beautiful product of

much with the overworked judges, as with the faulty our time, not to be measured by reference to ordi

system which imposes such vast labors upon them. nary men.”

The State judges generally are almost equally overburdened. Hence we inevitably have a constantly l rectors and stockholders, instituted proceedings for increasing mass of decisions, State and Federal, many an increase of its capital, and the subscription agreeof which must be erroneous, and which, while standing ment was prepared and executed in furtherance of that as precedents, bear pernicious fruits.

object. It has been assumed in the arguments of * Judges, State or Federal, do not forget the weighty counsel that these proceedings were illegal, as in conadvice of old Bulstrode, so quaintly expressed in the travention of the statute under which the defendant dedication of his second volume, in the time of the was organized, and constructively fraudulent as to the Commonwealth, over two hundred years ago, That as public and all stockholders not assenting thereto, and laws are the anchors of the republic, so the judicial the decision of the case in the State courts has been adreports are as the anchors of the laws, and, therefore, judicated upon this assumption. The plaintiff was a 'ought to be well weighed before put out.' Judges do not stockholder and trustee of the defendant, and particiforget this advice, but the trouble is that they find it pated actively in these proceedings. impracticable, for want of time, to follow it. The re- The subscription agreement provided that the subsult is, that the Supreme Court has nine hundred cases scribers should pay the defendant for the new shares on its calendar, and, with all the industry of its judges, in installments as called for by the directors, and, upon is three years in arrears.

failure to pay any call for sixty days, should forfeit all Feeling, as I have felt for years, the force of the sums theretofore paid upon the subscription. Plaintrials, private and public, which inevitably spring out tiff paid the sum in controversy upon the first call unof this condition of things, I have learned with ex- der the subscription, but failed to respond to subsetreme satisfaction that so far as the Federal courts are quent calls for more than sixty days. After a resoluconcerned, an eminent citizen of this State, who for tion had been passed by the directors forfeiting plainmany years adorned its bench, until he was transfer- tiff's rights for delinquency, but before any scrip was red to the Supreme Court of the United States, and issued for the new stock, and while the proceedings who is now a senator in Congress, is actively lending were inchoate, the stockholders resolved to abandon the weight of his great character and ripe experience the project to increase the stock, and pursuant to this to a needed reform.

action the directors adjusted with parties who held “And the only practical point to the remarks which receipts for payments under the subscription by giving I am having the honor to make in this distinguished them the bonds of the defendant issued for that purpresence is, that I trust the Bar Association of this

pose. imperial city will pronounce its judgment in favor of No bonds were tendered to the plaintiff. He dethe proposed legislation of Senator Davis, and warmly manded repayment of the money paid upon the subaid him in securing its adoption."

scription, and, being refused, brought this action.

If the subscription agreement was valid the plain

tiff cau have no redress, but must be held to his stipuRECOVERY OF MONEY PAID ON INCOMPLETE

lation to forfeit the payment for his delinquency in ILLEGAL CONTRACT.

responding to subsequent calls. The defendant had

become entitled to the plaintiff's money by the terms UNITED STATES CIRCUIT COURT, NORTHERN DIS

of the subscription agreement at the time it concluded TRICT OF NEW YORK, DECEMBER, 1877.

to abandon the scheme for increasing its capital, and,

however hard and inequitable it may seem that deKNOWLTON V. CONGRESS AND EMPIRE SPRING COM

feudant should retain this money, while abandoning PANY,

the project for which it was received, its legal right so When payments are made upon an illegal contract and the to do is clear. On the other hand, if the subscription

parties are in pari delicto, a recovery can be had as for money had and received, where the illegality is in the

was executed as part of an illegal scheme, it is void in contract itself and that contract is not executed. In all its conditions and the defendant can take nothing such case there is a locus pænitentice, the delictum is incomplete and the contract may be rescinded by either

uuder color of the forfeiture stipulated for. The sole party.

question in any view, therefore, is whether the plainA corporation in which plaintiff was a stockholder and trustee illegally instituted proceedings to increase its

tiff will be permitted to recover money paid in parstock, .plaintiff participating in such proceedings and tial performance of an illegal transaction. The desubscribing for stock. By the agreement of subscription it was provided that payments on the new stock

fendant has no right to the money unless that of posshould be made to the corporation as called for by the session under circumstances which deny to the plaindirectors, and that in case of failure to pay within sixty days, the party failing should forfeit all previous pay

tiff the assistance of the court in reclaiming it. ments. Plaintiff paid the first call but failed to pay Certain propositions applicable to the present case the second, and a forfeiture was declared against him, but before any scrip was issued for any of the increased

are not debatable. stock the project to increase the stock was abandoned. Courts of justice refuse to entertain any application Held, in an action thereafter brought to recover the money paid on the first call, that the locus pænitentice

to enforce a contract or transaction which is immoral was still open to plaintiff and he might recover. Knowl- or subversive of public policy, or in contravention of ton v. Empire Spring Co., 57 N. Y. 518, dissented from.

a statute. Where the transaction has been consum

mated or the contract has been executed, if the parto shares of corporate stock. The facts appear ties to it are in pari delicto, neither will be permitted in the opinion.

to recover money or property delivered to the other in WALLACE, J. This case comes here by removal from furtherance of it. the State court after a decision adverse to the plaintiff When the law which the transaction contravenes is by the Commission of Appeals, reversing the judgment designed for the coercion of one party or the proteoof the Supreme Court in favor of plaintiff, and order- tion of the other, or where one party is the principal ing a new trial. 57 N. Y. 518.

offender and the other acquiesces by constraint of cirThe plaintiff seeks to recover $13,980 paid by him to cumstances, the parties are not in pari delicto, and the the defendant upon a subscription for shares of its lesser offender will be relieved, although the illegal capital stock. The defendant, by the action of its di- transaction has been consummated.

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So far there is no diversity of opinion among text- In opposition to these authorities there is not a sinwriters or in the reported cases. Another proposition gle case, of which I am aware, sustaining the concluof controlling importance in this case, advanced by all sion of the Commission of Appeals. The cases cited the commentators and sanctioned by many decisions, in support of that conclusion, in the opinion of has been denied by the high authority of the Commis- Lott, Chief Commissioner, are: Perkins v. Savage, sion of Appeals, which is, that when the contract or 15 Wend. 412; Bell, ex parte, 1 M. & S. 751; Houson v. transaction is but partially performed, there is a locus Hancock, 8 Term, 575; Bush v. Place, 6 Cow. 431, and pænitentiæ, and either party may rescind.

Saratoga County Bank v. King, 44 N. Y. 92. In uone In deciding the present case the Commission of Ap- of these cases did the question arise whether the plainpeals (Dwight, Commissioner, dissenting) have held tiff could succeed in an action in disaffirmance of an that money paid by one party in part performance of unexecuted illegal contract. an illegal transaction cannot be recovered back where In conclusion, I concur in the dissenting opinion of both parties are in pari delicto, and that no distinction Dwight, Comm’r, " That the rule is well stated in 2 exists as to the right of recovery between cases of par- Comyn on Cont. 109; if the contract continues executial and of entire performance.

tory and the party paying the money be desirous of Notwithstanding the great respect which I entertain rescinding it, he may do so and recover back his defor the authority of the Commission of Appeals, I am posit.” A different rule would hold out an induceconstrained to differ from the conclusion thus reached, ment to parties to an illegal transaction to persevere and must hold in the language adopted by Mr. Justice in their efforts to violate the law. Bradley (Thomas v. City of Richmond, 12 Wall. 355) : That the transaction in furtherance of which the A recovery can be had as for money had and re- payment was made has never been consummated is ceived, where the illegality consists in the contract it- clear. Before any stock was issued the scheme to Belf and that contract is not executed; in such case issue it was rescinded by the defendant. The real there is a locus pænitentiæ, the delictum is incomplete question is, was the locus pænitentiæ open to the plainand the contract may be rescinded by either party." tiff at the time he brought this suit. He had declined This statement of the law finds support in the early

to respond to the second call when the defendant recase of Walker v. Chapman, Lofft. 342, where the scinded. Can there be any doubt that up to the time plaintiff had paid money to procure a place in the cus- of the abandonment of the scheme by the defendant toms, but which he did not get, and brought suit to the plaintiff could have resorted to a court of equity recover back the payment, and Lord Mausfield de- aud restrained further proceedings and vacated the cided in his favor; and upon the authority of this case, proceedings already taken? The cases are numerous in the subsequent 'case of Lourey v. Bourdiew, Doug. where courts of equity have interfered to prevent the 468, which was an action to recover a premium consummation of a wrong upon the motion of a party paid upon an insurance which was merely a gaming who was instrumental in its inception. It is laid down contract, but was brought after the event had hap- by Judge Story (1 Eq. Jur., $ 298), that “where the pened upon which the insurance was to be paid, Bul- agreements or other transactions are repudiated on ler, J., said: “There is a sound distinction between account of being against public policy, the circumcontracts executed and executory," and the plaintiff stance that the relief is asked by a party who is parwas defeated because the agreement was not execu- ticeps criminis is not in equity material. The reason tory. In Tappenden v. Randall, 2 Bos. & P. 466, au is that the public interest requires that relief should action was maintained to recover a payment upon an be given, and it is given to the public through the illegal contract, Heath, J., after adverting to the dis- party. And in these cases relief will be granted not tinction between executed and executory contracts, only by setting the agreement or transaction aside, but stated by Justice Buller, saying: “I think there ought also in many cases by ordering a repayment of any to be a locus pænitentiæ, and that a party should not money paid under it.” See, also, Nevill v. Wilkinson, be compelled to adhere to his contract." In Hazelton 1 Brown's Ch. 473, note “a.” If the plaintiff had re1. Jackson, 8 B. & C. 221, Littledale, J., says: “If two ceived the fruits of the illegal transaction, in equity parties enter into an illegal contract and money is

as at law, he could not have recovered his payment, paid upon it by one to the other, that may be recov- but until then not only could he have been heard, but ered back before the execution of the contract, but restitution would have been made to him. not afterward,” and a recovery was allowed on this The locus pænitentiæ was open to the plaintiff so long ground. Other cases which proceeded upon this same as he was in a position to resort to a court of equity, rule are, Aubert v. Walsh, 4 Taunt. 277; Bush v. aud surely it was not closed to him by the action of Place, id. 291; Bone v. Eckless, 1 Hurlst. & Norm. the defendant in rescinding the illegal scheme. (Exch.) 925.

After that action on the part of the defendant the The same doctrine has been recognized in our own plaintiff took the only steps he could take in repudiacourts. White v. Franklin Bank, 22 Pick. 184; Nellis tion of the transaction by demanding his money and v. Clark, 4 Hill, 424; Morgan v. Groff, 4 Barb. 526. bringing his suit. He is not to be denied relief upon And in the latest English case, Taylor v. Bowers, 34 the theory that the delictum was complete. L. T. Rep. (N. S.) 938, decided in the Court of Appeal It is claimed that no payment was in fact made of in 1876, the plaintiff was permitted to recover prop- the sum sought to be recovered by plaintiff. A divierty trausferred to defraud creditors where the scheme dend of four per cent had been declared by the dewas not fully carried out, Mellish, L. J., saying: fendant to its stockholders, among them to Sheehan, “If money is paid or goods delivered for an illegal who transferred his interest to the plaintiff, and the purpose, and that purpose is afterward abandoned and dividend, instead of being paid in money, was credrepudiated, I think the person paying the money or ited, by an agreement, as a payment of the first call delivering the goods may recover; but if he waits uuder the subscription. Stockholders who did not until the illegal transaction is carried out, or seeks to subscribe for the new stock were paid in money.



the dividend was a fictitious or fraudulent one. private corporation or individual for a similar injury; The defendant has treated the dividend as though ac- for the right to fight surface water certainly does not tually paid, not only in crediting it as a payment, but go so far as to justify a man's draining the puddles of in its dealings with the other stockbolders, and it is his own land into the well and cellar of his neighbor. now too late to question its validity.

Why, then, will not the action lie against the city? The plaintiff bought it of Sheehan and paid for it in The answer given is, that the water was not discharged full. His rights are the same as though he had bor- upon the plaintiff's premises from land belonging to rowed the money of Sheehan to make the payment of city, but from a public street, and was so discharged the call.

in consequence of a change of grade or surface in that Judgment is ordered for plaintiff for $13,980, with and other streets, made by the city under the authorinterest from February 20, 1866.

ity of the statutes of the State. And it is argued that a public corporation, acting for the public within the

limits of its authority, is not liable, unless made liable, LIABILITY OF MUNICIPAL CORPORATIONS

by statute, for the damages resulting to individuals FOR FLOODING, CAUSED BY STREET

from its acts. IMPROVEMENTS.

It is perfectly well settled that a town or city is not

liable, unless made so by statute, for damages resultSUPREME COURT OF RHODE ISLAND, MARCH, 1877.

ing to an abutting owner from a mere change in the

grade or s' rface of a highway made by such town or INMAN V, TRIPP.

city, if the change does not extend beyond the limits Where a city, by the manner in which it grades a street, of the highway. Such a change may occasion great

collects the water from a wide area and empties it charged with the street filth upon plaintiff's adjoining

inconvenience, and oblige the owner to incur great exland, and into his cellar and well, it is liable for the pense to adjust his houses or lands to the new grade damage done plaintiff thereby.

or level; but, nevertheless, he must bear the inconRESPASS on the case brought by Willard F. In- venience and expense, if they come, without compen

man and another against Benjamin Tripp, Treas- sation; for no right of his is invaded so long as the urer of the city of Providence, heard under the sub- chauge does not create a nuisance, and is confined joined agreement:

strictly within the limits of the highway. The loss “The plaintiff offers to prove the following facts : which he suffers from such a change is damnum absque That, at the time of the grievances alleged in his dec- injuria. 2 Dillon on Mun. Corp., $ 783. Many of the laration, he was the owner of an estate on the north- cases cited for the defendant are cases in which this docerly side of Public street, in the city of Providence, trine is sustained. In the case at bar, the defendaut with a dwelling-house, barn, and other buildivgs and asks us to go further: for in the case at bar the plaintiff improvements thereon. That said city, prior to said complains not of what has been done in the streets, time, caused the grade of said Public street, which but of what has happened upon his own laud, in conwas a public highway, to be changed, and that the sequence of what has been done in the streets. See St. highway commissioners cut down a portion of a way, Peter v. Denison, 58 N. Y. 416, 4:23. His property has called Updike street, at its junction with Public street, been invaded, and the question is, whether he is enwhereby the surface water, which had collected in a titled to any remedy against the city for the invasion. pond at the corner of Greenwich and Daboll streets, There are cases which hold, or seem to hold, that no was carried through Mawney street, a public street action lies against a city even for such an injury. and highway, and into and through said Updike street Wilson v. Mayor, etc., of New York, 1 Den. 595; Clark upon Public street, and thence flowed upon the estate v. City of Wilmington, 5 Harr. (Del.) 243. The ground of the plaintiff, located at the lowest point on said of these decisions is, that the city caunot be answerPublic street, and filled his cellars and well, and de- able at law for the cousequences of an act which it is stroyed his property, and otherwise caused him great legally authorized or required to perform. But we anvoyance and injury. The plaintiff also offers to think this doctrine, the abstract truth of which cannot prove that, prior to said time, said city also changed well be gainsaid, is misapplied when it is held to saucthe grade of Broad street, which crosses Public street, tion an invasion of private property, even though the and thereby caused the surface water which came on invasion is only consequential. Let us consider the said Broad street, which formerly bad not flowed into doctrine as it applies to the case at bar. The city of Public street, to be turned into Public street, which Providence is required to keep its streets in proper rewater also flowed along said street, and into and upon pair, and is authorized, in the discharge of this duty, the plaintiff's estate, doing him similar injury. That to grade them and to alter their grades. Whatever, he presented his claim to the city counsel more than therefore, is done by the city in the discharge of this thirty days before this suit was commenced, and no duty or in the exercise of this authority,must be deemed compensation has been made to him for said injuries. to be rightfully done, so long as there is no encroachIf, upon these facts being proved, the plaintiff can ment upon private property. But does it follow from maintain his action, the cause is to stand for hearing this, that the city has the right to grade its streets 80 before the court upon the question of damages, other- as to collect the water from a wide area, some of it from wise judgment is to be entered for the defendant.” distant puddles or ponds, and bring it, charged with Charles H. Parkhurst, for plaintiff.

all the miscellaneous filth of the streets, to the margin Nicholas Van Slyck, city solicitor, for defendants. of the plaintiff's land, and then empty it upon his land,

DURFEE, C. J. The city of Providence is a munici- and into his cellar and well? The statute should not be pal corporation capable of suing and being sued like unnecessarily construed to sanction any such result. any other corporation. The question is, whether, And so long as it is in the power of the city to make being such a corporation, it is liable to be sued for the drains and culverts, as well as to alter grades, it is not injury to prove which the testimony is offered. There necessary to give the statute such a construction. Or,



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tutional and void, and cannot protect the city from liability. Suppose the statute authorized the city in so many words to do what the plaintiff claims has been done, can there be any doubt that it would be unconstitutional, as authorizing the taking of private property for public use without just compensation? Certainly, property is taken, to some extent, when its beneficial use is destroyed or impaired in this way, as well as when its owner is directly and formally excluded from its enjoyment. Pumpelly v. Green Bay Co., 13 Wall. 166; Eaton v. Boston, C. & M. R. R. Co., 51 N. H. 504. And if a statute could not in so many words authorize the grievances complained of, it could not any better authorize them by the employment of general and indefinite terms.

The view which we have taken has the support of respectable authority. Indeed, it is proved by the general current of recent decisions. Thus, in Illinois, in Nevins v. City of Peoria, 41 III. 502, it was held that a city may elevate or depress its streets as it thinks proper, but if in so doing it turns a stream of mud and water upon the grounds and into the cellar of one of its citizens, or creates in his neighborhood a stagnant pond that brings disease upon his household, it should not be excused from paying for the injuries it has directly brought. A city, say the court, has no more power over the streets than a private individual has over his own laud; and it cannot, under the specious plea of public convenience, be permitted to exercise that dominion to the injury of another's property, in a mode that would render a private individual responsible in damages without being responsible itself. This decision has been reaffirmed in several subsequent cases. City of Aurora v. Gillett et al., 56 111. 132; City of Artrcra v. Reed, 57 id. 29; City of Jacksonville v. Lambert, 62 id. 519.

So, in Wisconsin, the same point has been similarly decided. Pettigrew v. Village of Evunsville, 25 Wis. 223. And the court held that, if a city wishes to acquire the right to turn a stream of water upon the property of an individual to his injury, it must do so by an exercise of the power of eminent domain, and by the payment of full compensation, as the Constitution requires.

The Supreme Court of Michigan, in a careful decision recently delivered by Cooley, C. J., atfirms the same doctrine. Ashely v. The City of Port Huron, 15 Alb. L. J. 81. The court there decides that a municipal corporation is no more exempt from liability than an individual, when that which it does results in the invasion of private property; that if a city constructs a sewer so as to discharge its waters upon private property, it is responsible for the injury, and that the flooding of private property is just as much an appropriation as would be the taking of an easement in it. And see Clark v. Peckham, 9 R. I. 455.

The counsel for the city contends that the city is not liable because the changing or refusing to change a grade, and the providing or refusing to provide sewers and culverts, is discretionary or judicial. We think, however, that this defense, though it might be good if the city were complained of for not doing such an act, or for doing it in an insufficient manner, is not a sufficient answer where private property is invaded and its beneficial use destroyed or seriously impaired without compensation.

Our statute (Gen. Stat., R. I., ch. 60, 8 38) gives an abutting owner, who is injured by any change in the

defendant contends that, such a remedy being given, it is the only remedy. Where a statute creates a new right or liability, and at the same time gives the remedy, it has been held that the remedy given is the only remedy. The liability here incurred was not created by the statute. It would have existed, and a right of action on it would have existed, if the statutory provisions referred to had never been enacted. The remedy given, therefore, supposing it to be applicable, must be regarded in this respect as cumulative, not exclusive.

The defendant contends that the city is not liable for the acts complained of, or some of them, because they were done by the highway commissioners. We think, however, that the changes complained of, prima facie at least, must be regarded as the act of the city, which is answerable for the repair of the streets, and which, moreover, unlike towns in respect of surveyors, is specially authorized to prescribe the duties of the highway commissioners. See City Charter, $ IX, clause 4; Publio Laws, ch. 965, Act of January 26, 1872. The city has prescribed their duties by ordinance, specifying certain duties, and requiring them to perform generally the duties of a surveyor of highways, with a proviso, howover, that they shall be “always subject to the orders of the city council.” City Ordinances, ch. 36, S 17. Their official acts, therefore, however it might be in the case of a surveyor of highways, must be presumed to be, in legal effect, the acts of the city. Aud see Conrad v. Trustees of the Village of Ithaca, 16 N. Y. 158; Eastman v. Meredith, 36 N. H. 284, 293.

We think the testimony offered is admissible. The case, therefore, must stand under the agreement for an assessment of damages.

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VERDIN V, SLOCUM. A will, devising lands to executors in trust, contained this:

"I direct my said trustees to permit and suffer my son, W. B. S., to bave, receive and take the rents, issues and profits thereof, for thelterm of his natural life, and after his decease I give," etc. Held, that the son took a life estate in the lands upon which the lien of a judgment would attach, and a judgment creditor of the son was a necessary party to the foreclosure of a prior mortgage upon the lands.

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mortgage sale, from an order of the General Term of the Supreme Court in the First Department, affirming an order of the Special Term, denying a motion to release him from his purchase. The facts sufficiently appear in the opinion. The case is reported below at 9 Hun, 150.

Erastus F. Brown, for appellant.
Andrew Fallon, for respoudent.

EARL, J. The appellant, Thompson, the purchaser at a mortgage foreclosure sale, seeks to be released from his purchase upon the claim that the proceedings in the foreclosure action above entitled are so defective as not to give him a good title. He insists upon several defects, but one of which it will be necessary to consider, and that is that a judgment creditor of William B. Slocum should have been made a party to this action. Hiram Slocum died seized of the mortgaged premises subject to the mortgage. He left a will in which he devised his estate, including these premises, to his executors, in trust, that they should divide the same into three parts, and as to one-third part he

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