impossible for the company or their officers to know how far a person may have trayelled." Facility is not to be afforded to a prosecutor, or his convenience consulted, at the expense of injustice committed in the inequality of punishment. Besides which the company may to a great extent protect itself by greater care in seeing that no person is admitted into their carriages without showing a ticket. But even if we were to hold the by-law to be valid, it does not appear to me to be applicable to the case of the appellant. The power given to the company by the 109th section of the act is to make by-laws to be enforced by penalties for regulating (inter alia) the "travelling upon the railway," and it is under this power that the by-law in question is made. But not only must such a power, being in derogation of common right, be construed strictly, but the whole enactment appears to me to point to travelling upon the railway in the actual meaning of the term. Now, here the appellant, when he refused to show his ticket, cannot be said to have been "travelling on the railway" in point of fact, nor do I think he can be said to have been even constructively travelling upon it. He had entirely left the carriages of the South-Eastern Company. He was quitting their station. That the stations of the two companies happen to be more or less contiguous is an accident. They might be some distance apart. As it is, it takes some minutes to pass through the passages which extend from the one platform to the other. It seems to me impossible to say that a person traversing this distance in order to pass on to a different line of railway is still travelling upon the South-Eastern line. The by-law, the effect of which must be construed by the light of the statutory power under and by authority of which it has been made, and beyond which it cannot be carried, is therefore, in my opinion, inapplicable to the case. On these grounds I am of opinion that the conviction cannot be upheld.

LUSH, J. The question left open at the close of the argument, and upon which we took time to consider our judgment, was the validity of the by-law upon which the magistrate proceeded. It is in these terms: [Reads it.] It appears to me that the penal clause of this by-law is ultra vires and void, on the ground that the penalty it imposes for refusing to show the ticket is variable, and dependent on the accident of the ticket being demanded at an early or a late stage of the train's journey. A passenger who has travelled only the last ten miles in a train which has travelled a hundred miles is fined ten times as much as another who started at the station a quo, and whose ticket was demanded at the end of ten miles, although the offense of refusing to show the ticket is precisely the same in the one case as in the other. A by-law which has this effect cannot be deemed a reasonable by-law. The clause which precedes the penal clause seems to me equally objectionable; the passenger is not only required to show his ticket when demanded - -a requisition which is perfectly reasonable, and which may be enforced by a reasonable penalty - but he is required to deliver it up, whatever the purpose may be for which it is demanded, and without any limitation as to the time at which the demand is made. A season ticket is a contract by which the company engages to carry the holder free of any further charge for a specified period between certain specified stations. Until that period has expired the holder is entitled to retain the ticket as his own property. He is bound to show it when required, in order that the company's servants may see that it is still in force, and that it entitles the owner to be where he is. The by-law would in terms justify the company in demanding it back on the first journey which the holder makes under it, though it be on the very day the ticket was purchased. The same objection applies to a journey ticket. The holder of such a

ticket is entitled to keep it till he has arrived at the station where the tickets for such a journey are collected. I do not intend, and am far from wishing to impute to the company that the by-law was framed with a view to its being so applied, or that they would sanction any arbitrary or capricious use of the power which it proposes to give. No instance has ever come to my knowledge in which any company, or any official, has shown a disposition so to act. Our duty, however, is to test it by established principles of law, and to regard what the by-law authorizes, and not how it is applied in practice, and so regarding it, I feel bound to hold that on this ground also the penal clauses of it are wholly void. I do not discuss the validity of that part of the by-law which imposes as a penalty for travelling without a ticket the whole fare from the starting station of the train. That point has been already decided by the Common Pleas Division. I am of opinion, for the reasons given, that the appellant is entitled to our judgJudgment for appellant.

ment.

PROVISION FOR ATTORNEY'S FEE ON PROMISSORY NOTE.

PENNSYLVANIA SUPREME COURT, JANUARY 5, 1880.

JOHNSTON V. SPEER.

A promissory note negotiable in form but containing this: "With attorney's commission, if collected by legal process," held not a negotiable instrument.

ACTION by Levi Johnston upon two promissory

notes indorsed to plaintiff by the defendant, Speer. The notes each read as follows:

$583.48. BELLE VERNON, PENN., August 22, 1877.

Ninety days after date we promise to pay to the order of N. Q. Speer five hundred and eighty-three 48-100 dollars, with interest from date, at the bankinghouse of S. F. Jones & Co., without defalcation or stay of execution, value received, and without any benefit whatever from any valuation, appraisement or relief laws, and with - per cent attorney's commission if collected by legal process.

L. M. & W. F. SPEER.

The trial court held the notes to be not negotiable by reason of the provision as to attorney's commission. Plaintiff took a writ of error from a judgment for defendant.

D. Kaine, for plaintiff.

W. H. Playford, for defendant.

GORDON, J. If there is any thing positively settled with reference to an agreement in a bond, mortgage or note, for the payment of a fixed sum as attorney's commissions, it is that the sum so fixed belongs to the payee or mortgagee as a compensation for the expenses and trouble he may incur in the collection of the claim. It does not belong to the attorney who collects such claim, and it is not part of the costs of the case. Faulkner v. Wilson, 3 W. N. C. 339.

In Robinson v. Loomis, 1 P. F. S. 78, it was held that such an agreement could not be regarded as a penalty, but as an agreed compensation for expenses incurred by the mortgagee in consequence of the default of the mortgagor. According to this doctrine the stipulation for attorney's commissions would amount to an agreement for stipulated damages over which the courts would have no control as, in such case, the agreement of the parties would be the law of the case. Westerman v. Means, 2 id. 97. Following this rule the agreement in this case for blank attorney's commissions amounts to nothing, for the blank could be filled only by the subsequent agreement of the parties, and until so filled it would have no force whatever. But in

Daily v. Maitland, 7 W. N. C. 103, a somewhat different doctrine is held; for Mr. Justice Sharswood, in delivering the opinion in that case, says: "This principle of liquidated damages is not applicable, however, to a contract for a loan of money; at least such stipulation is subject to the control of courts of equity." The effect of this decision is to give the agreement for commissions the character of a penalty, or of a stipulation that damages shall not exceed a certain amount. If we adopt this rule, then a stipulation to pay · -attorney's commissions would be equivalent to contact to pay-damages; reasonable damages, or such damages as a court, at its discretion, might fix.

However this may be, there is one thing about which we feel little doubt; that is, that uncertain stipulations of this kind ought to have no place in negotiable | paper. As was said in Woods v. North, 3 Nor. 407: "It is a necessary quality of negotiable paper that it should be simple, certain, unconditional, not subject to any contingency." It is certain that the note in suit does not meet the conditions above prescribed, for in any event the question what the parties meant by the blank is an open one, and may have to be settled by oral testimony. Judgment affirmed.

Hoxsie, Russell & Chambers, for plaintiff.

C. J. Phelps, for defendant.

MAXWELL, C. J. In the year 1876 the plaintiff was injured by the breaking down of a public bridge in Colfax county, and brought an action in the District Court of that county to recover damages therefor. The defendant demurred to the petition on the ground that the facts stated therein were not sufficient to constitute a cause of action. The demurrer was sustained and the cause dismissed. The plaintiff brings the cause into this court by petition in error. The question presented is whether the county is liable for the neglect of the county commissioners in failing to keep a public bridge in safe condition. If the negligence complained of in the petition and subsequent injury to the plaintiff had been occasioned by a natural person or a municipal corporation proper, the right to recover would be unquestioned. But are counties municipal corporations? Municipal corporations may be defined to be bodies politic and corporate created by law for the purpose, primarily, of regulating and administering the local and internal affairs of towns, cities and villages. Dillon on Mun. Corp., § 9. Such corporations are created principally for the benefit and convenience of the inhabitants composing the corporation, although they are important auxiliaries of the State in the administration of the law. The charters conferring powers, prescribing duties, and imposing burdens must in some way receive the assent of those to be governed by their provisions, and they thus accept the benefits and agree to perform the duties imposed upon them. These corporations have existed from the earliest period of the Roman republic. 2 Kent's Com. 268. But a county is not, in the proper sense of the word, a municipal corporation.

In Riddle v. Proprietors of Locks and Canals, 7 Mass. 169, Chief Justice Parsons says: "We distingush between proper aggregate corporations and the inhabitants of any district who are by statute invested with particular powers without their consent. These are in the books sometimes called quasi corporations. Of this description are counties and hundreds in England, and counties, towns, etc., in this State. Although quasi corporations are liable to information or indictment for a neglect of public duty imposed on them by law, yet it is settled in the case of Russell v. Inhabitants of Devon that no private action can be maintained against them for a breach of their corporate duty unless such action be given by the statute." To the same effect see, also, Mower v. Inhabitants of Lancaster, 9 Mass. 247; Angell & Ames on Corp., § 629 and note; White v. City Council, 2 Hill, 571; Ward v. County of Hartford, 12 Conn. 404; Freeholders of Sussex v. Strader, 3 Harrison, 158; Hedges v. County, 1 Gilm. 567. A county is a mere local subdivision of the State, created by it without the request or consent of the people residing therein. As was said in the case of Commissioners v. Mighels, 7 Ohio St.: "A county organization is created almost exclusively with a view to the policy of the State at large, for the purposes of political organization and civil administration in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and especially for the general administration of justice. With scarcely an exception all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the State, and are in fact but a branch of the general administration of that policy." Counties were not liable at common law for injuries caused in the manner set forth in the petition in this case, and our statute in force at the time of the alleged injury did not change the commonlaw rule. The Legislature undoubtedly possesses the power to make counties liable in cases of this kind, and some of the States have passed laws imposing such liability, but without such legislation we must adhere to the rule laid down in Wehn v. Commissioners of Gage, 5 Neb. 494. The judgment of the District Court is therefore affirmed. The costs taxed in the court below at $32.50 appear to be exorbitant, but no objection is made on that ground, and in any event the proper remedy is a motion to retax. 4 Kans. 536.

Judgment affirmed.

NEW YORK COURT OF APPEALS ABSTRACT.

AGENCY -IN PURCHASE OF BONDS EVIDENCE OF - ESTOPPEL- DECLARATIONS BY AGENT BEFORE EMPLOYMENT AS SUCH. In an action to recover the amount paid by plaintiff for bouds, purchased by him and which it was claimed that defendant sold, which proved to be forged, it appeared that plaintiff obtained the bonds from K. & Co., a firm of brokers. This firm, he claimed, acted as his agents in the purchase, and there was evidence tending to show this fact. It appeared that they purchased the bonds for 74 and charged plaintiff 76 for them. Held (distinguishing the case from Survey v. Womersley, 4 El. & B.-), that the charge by the firm of an advanced rate to the purchaser was not conclusive proof that the firm sold as principals and upon their own account, but evidence pointing to that result for the jury. It was proved that before the firm became agents of plaintiff, defendant produced these bonds to the manager of the firm and asked if they were genuine, and the manager assured him that they were, the manager claiming to know the handwriting. Thereafter and on the faith of this assurance, defendant made a loan upon the bonds and they came into his possession. Held, that while the firm might have been estopped by the state

ment, plaintiff could not be, while, as between the agent who does not disclose his principal, and the person dealing with him, such agent may be treated as the principal, and the equities of the other party enforced. As against the principal himself no estoppel can be sustained which does not rest upon his act or admission, or that for which he is responsible through an agency which he has created. In this case, held, that plaintiff could not recover from defendant the larger price paid K. & Co. instead of that paid defendant. If plaintiff was wronged by his own agent it furnishes no ground for recovering the excess from the defendant. Judgment reversed and new trial granted. Greenwood v. Schumacker, appellant. Opinion by Finch, J.

MAY BE PROVED BY PAROL.- Plaintiff, to prove the ownership of a cause of action in relation to personal property of which defendants were consignors and one V. was consignee, put in evidence a bill of lading of such property. This bill of lading had been made more than six years previously, and it showed that plaintiff had not a personal right to it unless he had performed a condition precedent, namely, the acceptance of a draft that went with it. Defendants were not parties to the draft nor privies. Plaintiffs offered to prove the acceptance of the draft by parol. The trial court declined proof by parol and required the production of the draft. Held error. Prima facie defendants or V. had right to possession and control of the property, subject to the conditions of the bill of lading. Lawrence v. Minturn, 17 How. (U. S.) 100. But it is to be presumed that the bill came into plaintiffs hands honestly and in pursuance of the conditions indorsed upon it. When a party to a forensic proceeding tenders in support of his case a document, a court will presume that he did not come by it in a tortious way. Littleton, Bk. 3, ch. 5, §§ 375-377; Roberts v. Bethel, 12 C. B. 778. And as plaintiff could not rightfully claim to own the bill without having performed a condition precedent, it will be presumed, unless the contrary is shown, that the condition has been performed. Defreest v. Bloomingdale, 5 Denio, 304; Boyd v. Foot, 5 Bosw. 110; Garlock v. Goertner, 7 Wend. 198; Alvord v. Baker, 9 id. 323; Braman v. Bingham, 26 N. Y. 493. As the ordinary and natural way to meet the condition of the bill of lading was to accept the draft, the presumption was that the draft was accepted, otherwise the party interested to have it accepted would have pursued the bill if it had been got from him wrongfully. And although the statute requires an acceptance to be in writing (1 R. S. 768, § 6) to charge the acceptor, it may be proved by parol where it is a collateral fact. A stranger to a written instrument may dispute the truth of its contents by oral proof, and so far as a controversy is with a stranger to it, a party to it may do the same. McMaster v. Insurance Co., 55 N. Y. 222. A fortiori may a party to it in such a controversy prove by parol that it had existence? Thus, the fact of a tenancy may be proved by parol, though there be a written lease. Rex v. Kingston upon Hull, 7 B. & C. 611, recognized in Augustine v. Challis, 1 Exch. 279, though it is there held that the lease must be produced if it is sought to sow that rent is due. See, also, Whitfield v. Brand, 16 M. & W. 282. The principle seems to be that the contents of a written instrument cannot be given in evidence by parol when the contract contained in it is the subject of the suit (Strother v. Barr, 5 Bing. 136), but as is the inference, the existence of the relation under the instrument and the fact of the existence of it may be. See Davis v. Reynolds, 1 Starke (N. P.) 115; Spiers v. Willison, 4 Cranch, 398; Dennett v. Crocker, 8 Greenl.

IMPAIRING CONTRACT. — Plaintiff, a bridge company, was incorporated by the Legislature in 1808 (chap. 119) to build and maintain a bridge over the Chenango river, and by its charter it was provided that it should not be lawful for any person to erect any other bridge over the same river within two miles either above or below the bridge to be erected by plaintiff. In pursuance of this charter, plaintiff erected a bridge over the river named. In 1855 (chap. 164), the Legislature incorporated the Binghamton Bridge Company, and authorized it to erect a bridge over the same river within not less than eighty rods above plaintiff's bridge, and to take tolls for the use of the same. In 1856, the lastnamed company built a bridge within one hundred rods of plaintiff and above it, and maintained it as a tollbridge, until it and plaintiff's bridge were swept away by a flood. Defendant's testator was one of the principal promoters of the last erected bridge. He was one of the largest stockholders in the company, was a director at its organization, and its president from 1858 to 1863, when he died. He erected the bridge by contract and kept it in repair. Plaintiff, claiming that its charter was a contract that the Legislature would not authorize a bridge within two miles of its own, in 1856 commenced an action to enjoin the last-formed company from constructing and maintaining, as a tollbridge or for public travel, the bridge it was building, and for damages. Plaintiff was defeated in this action in the State Courts (27 N. Y. 87). Upon appeal, the United States Supreme Court held that plaintiff's charter constituted an inviolable contract, and that so far as the charter of the Binghamton Bridge Company authorized it to maintain its bridge for public travel, it was null and void. In 1865, two years after testator's death, an unprecedented flood in the Chenango river swept away the bridge of the Binghamton Company, and carrying it against the plaintiff's bridge, that was swept away. In 1869, this action was commenced by plaintiff against defendant as executor of testator, for the loss of the bridge, and for the loss of tolls diverted by the last erected bridge, on the ground that that bridge was an unlawful structure, a nuisance; and as testator built and aided in maintaining it in his lifetime, he was liable for the injury caused thereby. It was not claimed that the bridge was negligently or improperly built. Held, that the action would not lie for the destruction of the bridge, but might be maintained for the diversion of the tolls. The Chenango river is subject to the right of navigation, the private property of the riparian owners (Ex parte Jennings, 6 Cow.); and such an owner has a right to erect a bridge for his own use so long as he does not interfere with the easement of the public, and such a bridge is not a nuisance. The Legislature, except upon making compensation, has authority in reference to such a stream only to protect the public easement. Canal Com'r v. People, 5 Wend. 423; Wheeling Bridge case, 18 How. 421; Morgan v. King, 35 N. Y. 454. It may give a license for a public ferry or bridge which is exclusive, but not for a private one. That which is authorized by law cannot be a public nuisance. Crittenden v. Wilson, 5 Cow. 165; People v. Kelly, 76 N.Y. 475. By authorizing the construction of the second bridge, the Legislature did not violate its contract with plaintiff, but only by authorizing its use as a public toll bridge. The fact, that the bridge was built designedly as a toll bridge, would not make defendants liable for the injury done by sweeping the plaintiff's

bridge away. The motive with which a lawful structure is erected does not render the owner liable for injury done by it without his fault. Barclay v. Commonwealth, 25 Penn. 503; Moody v. Supervisors, 46 Barb. 659; Ely v. Supervisors, 36 N. Y. 297; Babcock v. City of Buffalo, 1 Sheld. 317; S. C., 56 N. Y. 268; Phelps v. Nowlen, 72 id. 39. But the damages for diversion of toll stand on different ground. Testator was liable for the illegal act in which he took part. The statute giving the authority to do these acts was no protection, as it was void, neither were the decisions of the State courts under 2 R. S. 602. The amount of toll received by the Binghamton Company was prima facie the amount of tolls diverted. Judgment reversed unless plaintiff will stipulate to deduct amount allowed for loss of bridge. Chenango Bridge Co. v. Paige et al., appellants. Opinion by Earl, J. [Decided Dec. 14, 1880.]

SHERIFF-LEVY BY-WHAT CONSTITUTES-ATTACHMENT OF MONEYS IN SHERIFF'S HANDS- CONSPIRACY TO DO LAWFUL ACT.—(1) A sheriff holding an execution against defendants entered their store, announced to them that he levied upon the stock of goods there present, indorsed a memorandum of the levy upon his execution, and left the goods in charge of one of the defendants. Held, a levy there was enough to make the sheriff liable as a trespasser if not protected by his process, and also to make him responsible to the parties interested for the value of the levy. Camp v. Chamberlain, 5 Den. 198; Barker v. Binninger, 14 N.Y. 270. (2) The rule, that money actually collected and in the sheriff's hands is not liable to attachment, being custodia legis (Wilder v. Bailey, 3 Mass. 389; Pollard v. Ross, 5 id. 319) has not been adopted in this State, was questioned in Dunlop v. Patterson Fire Ins. Co., 74 N. Y. 145, and the right to attach a fund in the custody of an officer of the court sustained. The rule would, if adopted, graft upon the code an exception tho Legislature has not made ($ 231). Until an attorney's lien upon a judgment is asserted by the party entitled to it, the judgment is the property of the judgment creditor. A sheriff or the court cannot treat it otherwise. Without notice of the claim, tho lien cannot be enforced. Martin v. Hawks, 15 Johns. 406; Ackerman v. Ackerman, 14 Abb. 234; Crocker on Sheriffs, § 283. (3) It cannot be shown in an action against the sheriff for not returning an execution within sixty days, in which a defense was that the judgments of plaintiff had been attached in other suits, that there was a conspiracy between the attachment creditors, the debtor in the judgment and the sheriff, to prevent the collection of plaintiff's debt, the purpose for which the attachments were issued being perfectly lawful. McIntyre v. Maucius, 16 Johns. 600; Place v. Munster, 65 N. Y. 95; 2 Addison on Torts, 740. Judgment affirmed. Wehle, appellant v. Conner. Opinion by Finch, J. See same case in former appeals. 63 N. Y. 258, and 69 id. 546. [Decided Dec. 21, 1880.]

UNITED STATES SUPREME COURT ABSTRACT.

APPEAL- - FROM SUPREME COURT DISTRICT OF COLUMBIA - AMOUNT IN DISPUTE MUST EXCEED $2,500.This case is governed by Railroad Company v. Grant, 98 U. S. 398. In that case it was held that the act of February 25, 1879 (20 Stats. 321, chap. 99, §§ 4, 5), took away the right of this court to hear and determine cases from the Supreme Court of the District of Columbia where the matter in dispute did not exceed $2,500, and that it operated on pending cases which had been brought here under the provisions of section 847 of the Revised Statutes of the District. This case

came here under section 848, which provided for the allowance of appeals and writs of error by the justices of this court under certain circumstances, when the matter in dispute was less than $1,000, the then general jurisdictional amount, but exceeded $100. There is no reservation in the repealing act as to this class of pending cases any more than the other. Both sections havo reference to the same general subject-matter, that is to say, the review by this court of the judgments and decrees of the Supreme Court of the District in cases where jurisdiction has been made to depend on the value of the matter in dispute. Under the act of 1879 the court can no longer hear any of that class of cases, unless the amount exceeds $2,500. Appeal from the Supreme Court, District of Columbia, dismissed. Dennison et al., appellants, v. Alexander. Opinion by Waite, C. J. [Decided Dec. 13, 1880.]

ATTORNEY-KNOWLEDGE OF, KNOWLEDGE OF CLIENT BANKRUPTCY.-On the question whether the plaintiff in a judgment on which goods were taken in execution knew of the defendant's insolvency and of the intent to evade the bankrupt law, the knowledge of plaintiff's attorney is the knowledge of plaintiff. Where the debtor was son of the plaintiff and actively contributed to having judgment rendered before it could have been done without such aid, this was procuring his goods to be taken on execution within the meaning of the 35th section of the bankrupt law as modified by the act of 1874. The case of Hoover v. West, 91 U. S. 308, was one in which a creditor had procured a confession of judgment and a levy on property of a debtor, who was declared a bankrupt within four months thereafter. The creditor had sent his note to a collection agency in Philadelphia, which had sent it to their corresponding attorney in Nebraska, where the judgment was taken. The creditor knew nothing of what was dono until the money was made by sale of the goods, and had given no direction as to the mode of proceeding, and held no communication with his attorney. This court held that the attorney was the agent in the transaction of the collecting agency and not of the creditor, and that he could not be held to know what the attorney knew in regard to the insolvency of the debtor, and other matters in the case. Three of the judges dissented from this view. But an examination of the opinion will show that all wero agreed that if the creditor had sent the note directly to the attorney, the latter would then have been the agent of the creditor, whose acts and whose knowledge, obtained in the course of the employment, would have been tho acts and the knowledge of his principal. And such is the true rule of law. See, also, Wilson v. City Bank, 17 Wall. 487; Little v. Alexander, 21 id. 501. Decree of U. S. Circuit Court, Minnesota, reversed. Rogers, appellant, v. Palmer. Opinion by Mellor, J.

[Decided Dec. 6, 1880.]

--

FEDERAL QUESTION BEYOND.-Upon an appeal from a State court on the ground that a Federal question is involved, this court can only look beyond the Federal question when that has been decided erroneously, and then only to see whether there are any other matters or issues adjudged by the State court sufficiently broad to [maintain the judgment, notwithstanding the error in the decision of the Federal question. Murdock v. Memphis, 20 Wall. 591. Judgment of California Supreme Court affirmed. McLaughlin, plaintiff in error, v. Fowler. Opinion by Waite, C. J.

WHEN THIS COURT CAN LOOK

[Decided Dec. 13, 1880.]

MUNICIPAL BONDS-FRAUDULENT ISSUE OF ANTEDATING SO AS TO GIVE APPARENT VALIDITY RECOVERY FROM CITY OF MONEY PAID AS A MISTAKE.- - By

a statute of Missouri, passed in 1872, any bond issued by a city, to become valid, must be registered in the books of the State auditor. Before that time this was not necessary. In 1867 the city of Louisiana, in that State, which had authority to borrow money, by ordinance authorized its city fund commissioner to sell its bonds, and in 1871 provided for an issue of certain bonds, to be used in funding the city indebtedness, then maturing. In July, 1872, after the statute mentioned had gone into effect, the proper officers of the city, for the purpose of paying its debts and to meet current expenses, issued a number of bonds payable to bearer and with the corporate seal attached. In order to evade the operation of the statute the bonds were antedated to January 1, 1872, and contained recitals that they were issued under the authority of the city charter and the ordinance of 1867. The bonds also stated that they were signed and sealed on the 1st of January, 1872. The bonds thus executed were, without being registered, placed by the fund commissioner in the hands of a respectable stock and bond broker in St. Louis, to sell for the account of the city. On the 25th August, 1873, the broker and agent sold and delivered these bonds to the plaintiff below and others, who purchased for value in good faith, believing that the recitals in the bonds were true and that they were what they purported to be, obligatory upon the city. The city received from the broker the price paid by plaintiff (which was 90 per cent of the full value), less five per cent on such value as commission to the broker for the sale. Held, that although the bonds were invalid (Anthony v. Jasper Co., 101 U. S. 697), the city was liable for the money paid by plaintiff therefor as money paid the city by plaintiff by mistake. The city, by putting the bonds out with a false date, represented that they were valid without registry. The bonds were bought and the price paid under the belief, brought about by the conduct of the city, that they had been put out and had become valid commercial securities before the registry law went into effect. It would certainly be wrong to permit the city to repudiate the bonds and keep the money borrowed on their credit. The city could lawfully borrow. As the purchasers were kept in ignorance of the facts which made the bonds invalid, they did not knowingly make themselves parties to any illegal transaction. They bought the bonds in open market, where they had been put by the city in the possession of one clothed with apparent authority to sell. The only party that has done any wrong is the city. In Moses v. Macferlan, 2 Burr. 1012, it is stated as a rule of the common law, that an action "lies for money paid by mistake, or upon a consideration which happens to fail, or for money got through imposition." The present action can be sustained on either of these grounds. The money was paid for bonds apparently well executed, when in fact they were not, because of the false date they bore. This was clearly money paid by mistake. The consideration on which the payment was made has failed, because the bonds were not in fact valid obligations of the city. And the money was got through imposition, because the city, with intent to deceive, pretended that the false date the bonds bore was the true one. While, therefore, the bonds cannot be enforced, because defectively executed, the money paid for them may be recovered back. As was said in Marsh v. Fulton Co., 10 Wall. 684, "the obligation to do justice rests upon all persons, natural or artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation." U. S. S. Ct. Judgment of U. S. Circuit Court, E. D. Missouri, affirmed. City of Louisiana, plaintiff in error, v. Wood. Opinion by Waite, C. J. [Decided Nov. 29, 1880.]

GEORGIA SUPREME COURT ABSTRACT.

CONFLICT OF LAW - PLEA OF DISCHARGE IN BANKRUPTCY TO SUIT ON JUDGMENT SINCE DISCHARGE IN

ANOTHER STATE.-Where to a suit brought in Georgia on a judgment rendered in the State of Tennessee, the defendant pleaded his discharge in bankruptcy, and it appeared that he was adjudged a voluntary bankrupt pending the suit in Tennessee, but failed to plead that fact to ask a stay of the proceedings on that account, and the judgment was subsequently rendered, and he thereafter obtained his discharge, held, that the plea was a valid bar to a recovery. The Tennessee judgment did not constitute a new debt, but simply a new security for the old debt, and of itself had no force or effect in Georgia. Anderson v. Anderson. [Decided Nov. 16, 1880.] CORPORATION THROUGH FRAUD.-Though a subscription to the stock of an insurance company may have been induced by fraudulent representations, yet the subscriber cannot recover the amount paid, if there are creditors to an equal or larger amount on debts contracted after his subscription. As to such debts, the funds of the corporation, including his subscription, are held in trust for their payment. Turner v. Granger's Life and Health Insurance Co.

-SUBSCRIPTION TO STOCK PROCURED

[Decided Nov. 23, 1880.]

MUNICIPAL CORPORATION-NOT LIABLE FOR INJURY BY COW PERMITTED TO RUN IN STREETS.-A municipal corporation is not liable for damages resulting from a failure on the part of its council to perform, or an improper performance of those powers and duties which are legislative or judicial in their character. For damages resulting from their neglecting to perform or negligence in the performance of those duties which are purely ministerial, it would be liable. There is no sound distinction as to such liability between a failure to pass an ordinance in the first instance and its repeal or suspension after being passed. Therefore, where a city council passed an ordinance forbidding the running at large of cattle in its streets, but subsequently suspends its operation indefinitely, on the ground, among others, that the growth of weeds and grass was too luxuriant for comfort, health and good appearance, one who was gored by a cow running at large in the streets would not have cause of action against the city. Nor would the principle be altered by the fact that the owner paid a municipal tax on the cow. Rivers v. City Council of Augusta.

[Decided Nov. 23, 1880.]

NEW JERSEY COURT OF CHANCERY ABSTRACT.

MAY TERM, 1880.*

DIVORCE-ACQUIESCENCE BY WIFE IN ADULTERY BY HUSBAND PRECLUDES.-In May, 1870, a husband was divorced from his wife by the decree of a court of competent jurisdiction of the State of Illinois. The certificate of that decree states that the wife was duly served with process. The wife, in a suit for divorce commenced in 1878, denies (in her testimony) that she received the notice of the suit, which was sent to her address, but she does not attack the bona fides or validity of the decree. In December, 1871, the husband married again, and has now living two children, the issue of the last marriage. Beforo his divorce he gave to the first wife a house in this State, and ever since then has voluntarily provided for her and her children. In January, 1878, he dismissed two of her sons from his employ, and she admits that, apprehending that he was about to cease supporting her and her children, she filed a bill for divorce, alleging adultery

* Appearing in 5 Stewart (32 N. J. Eq.) Reports.