said note is correctly exhibited in the complaint;" that under certain promises she signed a note for her husband's debts, "the same being the note herein sued on," and that at the time of the signing of “said note" she was a married woman: Held, that there were such admissions of the execution of the note as to give defendant the right to open and close.-MARTIN V. SUBER, S. Car., 18 8. E. Rep. 125.

88. NEGOTIABLE INSTRUMENT-Usury-Law of Place.A promissory note, payable in the city of New York, with interest from its date at the rate of 8 per cent. per annum, is open to attack for usury by proof that the law of New York limits the rate of interest to 6 per cent. per annum, and declares void all contracts in which any higher rate is stipulated or reserved.-ODOM V. NEW ENGLAND MORTGAGE SECURITY CO., Ga., 18 S. E. Rep. 131.

9. OFFICERS-Damages for Fraud.-The lowest and best bidder for the construction of a gravel road under Rev. St. 1881, § 5095, cannot maintain an action for damages against the county commissioners, engineer, and superintendent, individually, for fraudulently and collusively rejecting his bid, and awarding the contract to other persons at higher prices, since these officers owed no special duty to plaintiff in making the award, except such as they owed him in conjunction with other citizens of the community.-LANE V. BOARD OF COM'RS, Ind., 35 N. E. Rep. 28.

90. PARTITION Evidence of Title. In partition, where complainant claims title under her grandmother, and there is evidence that a portion of the land was conveyed by complainant's ancestor in 1873, she is not entitled to partition therein, though from the records there is ground for the conjecture that in some undisclosed way the title was reacquired by the grandmother.-GOFF v. COLE, Miss., 13 South. Rep. 870. 91. PARTNERSHIP-Creditor of Individual Partner.Where there is a conveyance of firm land, by consent, to one of the partners, and the deed is recorded, but is accompanied by no agreement disclosing the interest of the other, and money is borrowed by the grantee in the deed on his personal judgment bill, which is entered of record against the land as he then held it, no averment of any right by parol, or by secret agreement in any writing, can stamp the land as firm property, and thus destroy the lien of the judgment creditor. -GUNNISON V. ERIE DIME SAVINGS & LOAN CO., Penn., 27 Atl. Rep. 747.

92. PARTNERSHIP-Dissolution- Bond.-A bond executed on the dissolution of a partnership, obligating the retiring member to pay his proportion of the "partnership liabilities" to the continuing member, does not cover the individual debts of the retiring partner; and the fact that the continuing partner was compelled by legal process to pay one-half of a judgment obtained against the firm by an innocent holder of a note executed by the retiring partner for an individual debt gives the continuing member no right of action on the bond.-MCCORMACK V. SWEENEY, Ind., 35 N. E. Rep.

45.

93. PARTNERSHIP-Settlement.-After the death of one of two copartners engaged in land speculation, a settlement of the copartnership affairs, which had been begun during the lifetime of the deceased partner, was consummated by his executor and the surviving partner, and a deed of the land given by the executor to the surviving partner. The executor had been the confidential agent of the deceased partner for years, and was especially charged in the will with the duty of settling up the deceased partner's affairs: Held that, in the absence of proof of actual fraud, the settlement thus made was conclusive on the heirs and de visees of the deceased partner, when attacked for the first time nearly 24 years after the settlement, and after the executor and the surviving partner were both dead, and all books and papers relating to the partner. ship affairs had been destroyed.-HOLLADAY V. LAND & RIVER IMP. Co., U. S. C. C. of App., 57 Fed. Rep. 774. 4. PARTNERSHIP PROPERTY -Distribution.-Where,

in a proceeding by the widow of one of the members of a firm, all of whom are deceased, for the administration and distribution of firm assets, and the appointment of a receiver, a decree is made on a master's report, after appearance of all the creditors, finding the amounts of the claims of the respective creditors, and the order of their payment, such decree is a final one, and conclusive of the rights of the parties.-HUM· PHREYS V. STAFFORD, Miss., 13 South. Rep. 865..

95. PRINCIPAL AND AGENT.-An agent authorized to make a rent contract has no power to collect the rent, unless specially authorized. HEFLIN V. CAMPBELL, Tex., 23 S. W. Rep. 595.

97. PRINCIPAL AND SURETY-Joint Obligors-Payment by One.-Where one of three joint obligors pays the debt, he is not entitled to recover of the other two obligors, jointly and severally, two-thirds of the amount paid by him, but may recover of each of such other obligors one-third only, of such amount.-GRAVES V. SMITH, Tex., 23 S. W. Rep. 603.

98. PRINCIPAL AND SURETY-Release.-One who gives his note as collateral to a note made by a corporation and indorsed by another person is a surety, as regards both maker and indorser; and, when the owner of the principal note has taken judgment on it against the maker and indorser, by releasing the latter he releases the surety.-MONTGOMERY V. SAYRE, Cal., 34 Pac. Rep. 646.

99. PROCESS-Notice of Publication-Affidavit. -Elliott's Supp. § 1, in relation to notice by publication, permits it when defendaut is a a non-resident, and the action arises, inter alia, from a duty imposed by law in relation to real estate in the State, or is to try or quiet title to or possession of real estate: Held, that an af fidavit for publication in an action to quiet title and declare a tax lien is insufficient which simply states that the "cause is in relation to real estate situate" in Indiana.-PITTS V. JACKSON, Ind., 35 N. E. Rep. 11.

100. RAILROAD COMPANIES Accident at Crossing.— Injuries received at a railroad crossing by being thrown from a vehicle, on the frightening of a horse at an approaching train, are not caused by collision with the engine and cars of a railroad corporation at a crossing," within Gen. St. § 1529, where there was no actual collision with either engine or cars.-KINARD V. COLUMBIA, N. & L. R. Co., S. Car., 18 S. E. Rep. 119.

101. RAILROAD COMPANIES-Contractors' Liens.-Under the Tennessee statute of March 29th, 1883, relating to railroad contractors' liens, the contractor must deal directly with the company in order to secure a lien for his work and material; or, if a subcontractor, he can have no lien unless he serves notice on the railroad company of the principal contractor's failure to pay him, and unless, at the time of such notice the com pany shall owe money to the principal on the contract which the subcontractor has helped to perform; and the lien is limited to the amount so due the principal contractor. - CENTRAL TRUST CO. OF NEW YORK V. BRIDGES, U. S. C. C. of App., 57 Fed. Rep. 753.

102. RAILROAD COMPANIES- Detention of Freight.— An exception is properly sustained to that part of a petition which seeks to recover of a railroad company the statutory penalty for failure to deliver freight at the place of destination, the penalty being fixed by the amount of charges due as shown by the bill of lading, and the petition alleging, and the bill of lading show. ing, that there were no charges due.- ALDERSON V. GULF, C. & S. F. RY. Co., Tex., 23 S. W. Rep. 617.

103. RAILROADS-Negligence- Crossings.-The court

properly refused to charge that the jury should not consider whether or not a person approaching the crossing could not see a train by reason of a cut in the railroad, as railroad companies have a right to build their tracks by cuts over highway crossings as elsewhere, and to expect that, when the legal signals have been given on a train, they will be heeded by persons attempting to pass the crossing.-GALVESTON ETC. RY. Co. v. DUELM, Tex., 23 S. W. Rep. 596.

104. RAILROAD COMPANY Street Railroads- Negli. gence. Whether a woman who drove from a cross street into a street on which was an electric railway without looking to see if a car was approaching, and who was injured by the horse becoming frightened at a car, was guilty of contributory negligence, is a question for the jury.-BENJAMIN V. HOLYOKE ST. RY. Co., Mass., 35 N. E. Rep. 95.

105. REAL ESTATE AGENT-Parol Contract. Plaintiff cannot recover on an oral agreement to use his knowl. edge and influence to enable defendant to sell or exchange certain land; such agreement being within Civil Code, § 1624, subd. 6, providing that an agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a com mission shall be void, if not in writing.-SHANKLIN V. HALL, Cal., 34 Pac. Rep. 665.

106. SALE-Action for Conversion.-A creditor agreed to buy his debtor's cotton crop and pay one quarter or one-half cent per pound more than any one else would give, and credit the amount on the debt, which was due. At the time only part of the cotton was gathered. The debtor was to pick the balance of the cotton, and haul it all to S's gin, to be held by him subject to such creditor's order: Held that, on deliv ery of the cotton to S by such debtor, and obtaining an offer for it after it was ginned and its weight was ascer tained, he became entitled to credit on his debt as agreed, and the title passed to such creditor, though the credit was not made until after a levy on the cotton by other creditors as the property of such debtor. -BAKER V. GUINN, Tex., 23 S, W. Rep. 604.

107. SALE-Implied Warranty of Title.-The vendee of a chattel cannot recover for his vendor on the implied warranty of title, when it appears that not he, but his vendee, was dispossessed of the chattel by the legal owner, and that he has not reimbursed such sec ond vendee, or been made liable by him for the value of the chattel.- MYERS v. BOWEN, Colo., 34 Pac. Rep. 585.

108. SHERIFFS AND CONSTABLES-False Return.-In an action against a sheriff for the penalty for selling property without notice, where the truth of the sheriff's return was in issue, undisputed evidence that the sheriff had admitted its falsity was sufficient to overcome the prima facie effect which the law attached to such return.-RAKER V. BUCHER, Cal., 34 Pac. Rep. 654.

109. STATUTES-Conveyance of Homestead. Act March 18, 1887, provides that no conveyance affecting the homestead shall be valid unless the wife joins in executing and acknowledging it.- Act April 13th, 1893, declares that all such conveyance executed since March 18, 1887, which are deficient because not executed and acknowledged in accordance with the act of March, 18th, shall be as valid as though such act had never been passed: Held, that where a decree in an action to set aside such conveyance for defective execution and acknowledgment was rendered before the passage of the latter act, but the appeal therefrom was not decided till after its passage, it was the duty of the Appellate Court to decide the appeal according to the latter act, and not according to the act of March 18.-SIDWAY V. LAWSON, Ark., 23 S. W. Rep. 648.

110. TROVER AND CONVERSION.-In an action by the payee of a draft for its conversion it is not necessary for plaintiff in her complaint to negative her indorsement of the draft, or defendant's purchase of the same in good faith for value before maturity, where she does

allege that she was the owner of the draft when it was converted.-FIRST NAT. BANK OF RICHMOND V. GIBBINS, Ind., 35 N. E. Rep. 31.

111. TRUSTEE-Compensation.-Where a trustee makes a sale of land under a power and pays out money for the advertisement of notice of sale, required to be made under the power, he is entitled to compensation for his services, and for necessary outlays, though no provision for his payment is made in the deed. -N10 LON V. MCDONALD, Miss., 13 South. Rep. 870.

112. TRUSTS-Wills - Construction. Where a testa. mentary trustee purchases property with the trust funds, and takes a deed as trustee, the character of the trust is determined by the will, and not by the deed.LEWIS V. CITIZENS' NAT. BANK, Ky., 23 S. W. Rep. 667.

113. UNITED STATES SUPREME COURT-Jurisdiction.In an action in a State Court against a national bank to recover usurious interest paid, the right given to such banks by Rev. St. § 5197, to charge the same rate of interest as State banks of issue, is not "specially set up or claimed" so as to render an adverse decision by the State Supreme Court reviewable in the United States Supreme Court, under section 709, when the only objection made to the complaint is that it fails to state facts sufficient to constitute a cause of action, and this question is argued and determined according to the technical rules of pleading, without any sug gestion that defendant may be deprived of some right or privilege by a statute of the United States.-SCHUYLER NAT. BANK V. BOLLONG, U.S. S. C., 14 S. C. Rep. 24.

114. VENDOR'S LIEN-Res Adjudicata.-A vendor of land, who in his deed expressly retains a vendor's lien, is not affected by a judgment of foreclosure obtained by his vendee against a subsequent vendee in a pro ceeding to which he is not a party.-FOSTER V. ANDREWS, Tex., 23 S. W. Rep. 610.

115. WILLS-Nature of Estate.-Testator bequeathed to his wife "all my property, personal and real, after paying my just debts and claims: First, to pay my son J $500, and, at her (my wife's) death, he to come ir equal heir with my second children." Said J was the issue of a former marriage: Held, that the widow took the fee of the realty, and not merely a life estate. -Ross v. Ross, Ind., 35 N. E. Rep. 9.

116. WILLS-Rights of Legatees.-Under a will giving to testator's wife all his property to expend as she may see fit, with full power to dispose of any or all of it as she may deem proper, and with power to convey all interest which testator might have in his property at his death, a provision that, after the death of the wife, certain legacies be paid from any money remaining to testator's estate, gives the legatees named no rights in the property as against grantees of testator's wife.HOVEY V. WALBANK, Cal., 34 Pac. Rep. 650.

117. WILLS-Undue Influence.-A will will not be set aside as procured by undue influence when there is no evidence of any solicitation on the part of the devisee, nor that she wrote the will or procured it to be written. --MILLER V. OESTRICH, Penn., 27 Atl. Rep. 742.

119. WITNESS Husband and Wife. In replevin for household goods, defendant disclaimed title, and averred that it was owned by plaintiff's wife, who was living with defendant, her sister. Plaintiff's replica tion denied title in his wife, and reaverred title and possession in himself: Held, that plaintiff was not competent as a witness as to the ownership of the property, since the issue was between himself and is wife, and neither is competent to testify "against the other," under Act May 23, 1987, § 5, subd. c-JOHNSON V. WATSON, Penn., 27 Atl. Rep. 772.

Central Law Journal.

ST. LOUIS, MO., JANUARY 12, 1894

We neglected to state in an editorial on the recent decision of the United States Supreme Court, in the case of United States v. Rodgers, that Mr. Justices Brown and Gray, dissented from the conclusion of the court. The point decided in that case was that the Federal Court has jurisdiction under Section 5346, Rev. Stat. of an assault committed on board a steamer, owned by citizens of the United States which was at the time in the Detroit river, an arm of the great lakes; in other words that the term "high seas" extended to vessels on the the great lakes the same as to vessels on seas technically so called. Mr. Justice Gray says that such a conclusion appears to be inconsistent with the settled meaning of the term "high seas" in our law and in common speech and especially as used in the Crimes Act of the United States and that according to all the authorities without exception "the high seas" denote the ocean, the common highway of all nations. Mr. Justice Brown is "also constrained to dissent from the opinion of the court which appears to me to inaugurate a wholly new departure in the direction of extending the jurisdiction of the Federal Courts." He says that he had supposed that, in criminal cases, the accused was entitled to the benefit of any reasonable doubt, not only with regard to the evidence of guilt, but with regard to the jurisdiction of the court; in other words, that penal statutes should be construed strictly; and that the facts that the Supreme Court of Michigan, in a very carefully considered case some thirty years ago (People v. Tyler, 7 Mich. 161), had decided that the criminal jurisdiction of the Federal Courts did not extend to the lakes; that the same question had been decided the same way by Judge Wilkins in Miller's case (Brown's Ad. 156); that the Federal Courts upon the lakes had uniformally acquiesced in these decisions, and that no case is reported to the contrary, would of itself make a case of reasonable doubt, to the benefit of which the prisoner would be entitled. Mr. Justice Brown contends that the Vol. 38—No. 2

term "high seas" has never been regarded by any public writer or held by any court to be applicable to territorial waters. The view of Mr. Justice Brown on this question will be found at length in the case of Byers, 32 Fed. Rep. 404.

The recent trial at Edinburg, Scotland, of Alfred J. Monson, for the murder of Lieutenant Hambaugh, which has excited the attention of the public on both continents, has served also to recall to the student of law the chief points in which a Scotch differs from an English criminal trial. In Scotland, the prisoner is tried by a jury of fifteen and the verdict of a majority is sufficient. In case the jurors, while not legally satisfied of the prisoner's guilt, are not convinced of his innocence, they may find the charge against him "not proven" as was done in the case of Monson. In Scotland also, the public prosecutor proceeds to lay the evidence for the coroner before the jury without any opening statement and in all cases the law gives to the prisoner or his counsel the last word. In this respect the law of Scotland has adopted a wise as well as a generous course. If a speech for the defense errs, on the side of warmth, the judge can and does correct its extravagance. The law makers of Scotland are of the belief jury is produced by the rule that the last forensic appeal to the jury shall be made on behalf of the accused while the judicial tone that prosecutors ought to manifest is undoubtedly fostered by it to an extent that is practically unattainable where they have a right of reply.

that no public in

While admitting that, in the last mentioned procedure, the Scottish law might with reason be followed in this country, it must be said that the practice of allowing a jury to render a verdict of "not proven" is altogether wrong and unjust. A prisoner is entitled to the benefit of every reasonable doubt and to convict upon circumstantial evidence it is essential to prove circumstances which are irreconcilable with any other theory than that of guilt. If with every resource at its command the government cannot prove the accused to be guilty it seems but common justice to give him a verdict of "not guilty." But this Scotch verdict in effect throws a cloud of

suspicion upon the accused and is in itself a severe punishment for a crime which the State has not absolutely proved that any one has committed.

NOTES OF RECENT DECISIONS.

MERCANTILE AGENCIES-LIABILITY TO SUBSCRIBERS FOR FALSE REPRESENTATIONS.-The case of City National Bank v. Dun, decided by the United States Circuit Court of Appeals for the Second Circuit, involves an interesting question in the law governing mercantile agencies. There it appeared that by the contract between the defendants, who conducted the business of a mercantile agency, and the plaintiff, it was agreed that the defendants, at the request of the plaintiff, as an aid to it in determining the propriety of giving credit, should communicate to the plaintiff such information as they might possess concerning the mercantile credit of merchants, etc.; that such information should be obtained and communicated by subagents appointed in behalf of the plaintiff by the defendants; that the defendants should not be responsible for any loss caused by the neglect of any such subagent, and that the defendants in no manner guaranteed the actual verity or correctness of any such information. In consequence of a request for such information concerning Kitts of Oswego, a report concerning him was made up by Burchard, the defendants' agent at that place, and was by him sent to the defendants, and by them to the plaintiff. Burchard and Kitts were connected in business, and for the purpose of promoting his own interests, Burchard made false statements in that report. The plaintiff, relying on the report, discounted the acceptances of Kitts, which were valueless. was held that the defendants were not liable for the loss; that in transmitting the information which they had obtained they completely fulfilled the terms of their contract with the plaintiff; that the accuracy of the information so obtained was at the risk of the plaintiff; that in making the report, Burchard was not acting within the scope of his authority as agent of the defendant; that he was not employed as the agent of either party in reference to the discounts which he caused to be effected; that he was merely an agent under the agree

It

ment of subscription to furnish information; that the defendants were agents of the plaintiff, and as it appeared from the agreement that the service required could not be rendered by the agent but must mainly be rendered by subagents, the defendants were not liable for the errors or misconduct of the subagent, if they had used due care in his selection. The court distinguished the case of N. Y. & N. H. R. Co. v. Schuyler, 34 N. Y. 30.

ELECTION BETS-RECOVERY FROM STAKEHOLDER.-In Levy v. Crawford, 23 S. W. Rep. 1041, decided by the Court of Appeals of Texas, it was held that a wager on the result of an election is illegal and void as between the parties; and that a stakeholder, who is notified by one of the parties not to pay over the money, after the result of the election has become known but before an actual payment has been made, cannot defeat an action by such party for its recovery, since in such case there is a disaffirmance of the wagering contract before it has become executed. The court said in part:

A gaming contract being illegal and void, court have invariably refused to interfere between the par ties to the wager, who, being in pari delicto, cannot invoke the aid of the courts in carrying out their contracts. This question, however, presented to this court is not whether it will enforce or affirm a gambling contract, but whether it will permit one of the parties to disaffirm it. We have investigated a large number of American cases, and in nearly all of them the rule is laid down that, as long as the money is in the hands of a stakeholder, either party has a right to demand his part of the money, and, if refused, can maintain an action at law, whether demand is made on the stakeholder before or after the happening of the contingency upon which the waiver is suspended. This is the English rule, and is fortified by age and hallowed by precedent. So far as our own courts are concerned, it is a case of first impression, as neither the direct question nor one similar to it has ever been presented for adjudication in this State. This being true, it may be interesting, if not profitable, to review some of the cases on the subject, which have come under our attention, and the number of adjudications elsewhere point to the conclusion that the evil aimed at is widespread and deep-seated among the American people. One of the earliest cases to which we have had access, and one which has been very widely and favorably cited, is the case of Vischer v. Yates 11 Johns. 28. The opinion in this case was rendered by Chief Justice Kent, the great commentator on American law, and in a fine review of English decisions he lays down the broad rule, since followed by most courts, that courts must frown down in every legitimate manner any unholy tampering with or corruption of the ballot; that bets on election are illegal and void, and that courts will lend their aid in disaffirming such contracts, and will hold the stakeholder responsible, when notice is given by a party to a wager

that he desires to withdraw his money. This learned judge struck the keynote that has in most American courts given tone to decisions on the subject. We quote from Chief Justice Kent in the opinion referred to: "The stakeholder ought not to be permitted to hold the money in defiance of both parties. There would be no equity in such a defense, and, if the plaintiff cannot recover back the deposit in this case, the winner cannot recover it; for that would be compelling the execution of an illegal contract as if it were legal, and would at once prostrate the law that declares such contracts illegal. The English rule is the true rule on this subject. On the disaffirmance of the illegal and void contract, and before it has been carried into effect, and while the money remains in the hands of the stakeholder, each party ought to be allowed to withdraw his deposit. The court will then be dealing equitably with the case. It will be answering the policy, and putting a stop to the contracts before it is perfected. The courts have gone quite far enough when they have refused to help either party, as against the other, in respect to these illegal contracts." It is true that this decision was overruled by the "court for the correction of errors," the decision being rendered by a divided court, and no court of any respectability, except perhaps that of California, has ever followed in the noisome wake of the decision of Senator Sanford, the mouthpiece of the New York court. On the other hand, the decision has been time and again repudiated, and the very doctrine held by Judge Kent was afterwards approved by the New York Court of Appeals, Story v. Brennen, 15 N. Y. 524. "We hold that the wager made between appellee, Crawford, and appellant Peck was illegal, and ab initio null and void, and the stakeholder occupies the same position towards them that he would have done had they voluntarily left their money in his hands without any stipulations; and, being a bailee, he is responsible to each of the depositors for the amount of his deposit. We are not assisting in executing an illegal contract; we ignore it; we treat it as though it did not and could not exist. Our decision will not recognize the existence of the contract, but says there was no contract. We cannot permit a stakeholder to defend successfully against a man who wishes to annul an illegal contract, and is seeking to recover his deposit, and who would defeat his claim by setting up as a defense the illegal and void contract. He has no equity against the appellee, whose money he is holding. He cannot set himself up to decide that a party cannot retire from a contract which the courts would not enforce. Appellee does not rely on the illegal contract to establish his right to the money, but he says that appellant Lewy has his money on deposit, and he wants it. He gave notice in time to stop it in the hands of the bailee. He seeks to regain it, and he is entitled to it. It is the policy of courts, as herein before indicated, to pursue that course that will discountenance gambling on elections, and have a tendency to check it; and when it is known that the loser can, at any time before the money is paid over, reclaim it from the stakeholder, it will have a discouraging effect on those who have the desire to stake their money on the result of popular elections.

The discharge of fireworks in a city under any circumstances is attended with danger. In the present case the danger was greatly enhanced by the location. It was at the junction of two narrow streets of a large city, completely built upon, and where any misad venture in managing the discharge would be likely to result in injury to persons or property. The display was of considerable magnitude, and the explosives, especially the rockets, were so heavily charged, and, when exploded, were carried with immense velocity. It was managed by private persons under no official responsibility, and no municipal or public interest was concerned. Under the circumstances, in view of the place, the danger involved, and the occasion, the transaction was an unreasonable, unwarranted, and unlawful use of the streets, exposing persons and property to injury, and was properly found to constitute a public nuisance. The judgment below adjudges that the city of Brooklyn is liable for the injury sustained by the plaintiff, and this is the only question in the case. That a municipal corporation may commit an actionable wrong and become liable for a tort, is now beyond dispute. If the city directed or authorized the discharge of the fireworks which resulted in the injury complained of, it is, we think, liable. The inquiry is whether the city of Brooklyn did anything which, as to this plaintiff, placed it in the attitude of a principal, in carrying on the display. The mayor of the city, is chief executive officer, expressly authorized it, assuming to act, in so doing, under an ordinance of the common council. In so doing, and construing the ordinance as authorizing him to grant a permit to private persons to use the public streets for the discharge of fireworks, he was following the practice which had long prevailed; and, so far as appears, no question had been raised that such permits were within the ordinance. The permit, when given and communicated to the police, was understood as preventing any police interference with the act permitted, and it had that effect in the case in question. The city had power to prohibit or regulate the use of fireworks within the city, and to enact ordinances upon the subject. The ordinances passed were not ultra vires, in the sense that it was not within the power of authority of the corporation to act in reference to the subject under any circumstances. See Dill. Mun. Corp. § 963, et seq. It is the settled doctrine of the courts that a municipality is not bound merely by the assent of its executive officers to wrongful acts of third persons, nor could the mayor bind the city by a permit, for the granting of which he had no color of authority from the common council, and which was not within the scope of his author. ity. Thayer v. City of Boston, 19 Pick. 511. If the permit was in fact authorized by the ordinance, the city would, as we conceive, be liable although the particular act authorized was wrongful. For a mistake in the exercise of its power, or by acting in excess of its powers, upon a subject within its jurisdiction, whereby third persons sustain an injury, there seems to be no reason, in justice, which should deny the injured party reparation. The common council is the governing body. It represents the corporation, and its acts are the acts of the corporation, when they