while in the act of delivering the salt, one of the barrels, through the carelessness of the drayman, rolled against the plaintiff and injured him as he was passing upon the sidewalk, and it was held that the employer was not liable for the injury. In another case in the same volume, Moore v. Sanborne, 2 Mich. 519, the court held that where one was employed to cut and haul all the logs on certain land of the employer and deliver them at a place named, the employer to have nothing to do with the cutting or hauling, the relation of master and servant was not thereby created, and that the employer would not be liable for the carelessness of his employee in performing the labor. "Although in a general sense every one who enters into a contract may be called a contractor,' yet that word, for want of a better one, has come to be used with special reference to a person who, in the pursuit of an independent business, undertakes to do specific jobs of work for other persons without submitting himself to their control with respect to all the petty details of the work. * * *The true test, as it seems to us, by which to determine whether one who renders service to another does so as a contractor or not, is to ascertain whether he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work and not as to the means by which it is to be accomplished." * * * "One who contracts to do a specific piece of work, furnishing his own assistants and executing the work either entirely according to his own ideas or in accordance with a plan previously given him by the person for whom the work is done, without being subject to the latter with respect to the details of the work, is clearly a contractor and not a servant." S. & R. on Negligence, $$ 76, 77. * "The difficulty always is to say whose servant the person is that does the injury; when you decide that the question is solved. * * When the person who does the injury exercises an independent employment the party employing him is clearly not liable." Williams, J., in Milligan v. Wedge, 12 Ad. & El. 177. In that case a butcher employed a drover to drive a beast home for him and the drover employed a boy, and through the boy's negligent driving the beast ran into the plaintiff's premises and damaged his property, and the court held that the boy was the servant of the drover and not the servant of the butcher, and that the latter was not liable for the injury. "I understand it to be a clear rule in ascertaining who is liable for the act of a wrong-doer, that you must look to the wrong-doer himself or to the first person in the ascending line who is the employer and has control of the work; that you cannot go further back and make the employer of that person liable.' Willes, J., in Murray v. Currie, L. R., 6 C. P. 24. In that case a stevedore was employed to unload a vessel, and the plaintiff was injured by the carelessness of one of the vessel's crew, who at the time of the injury was working for and under the direction of the stevedore, and the court held that the employer of the stevedore was not liable for the injury. defendant; but it appearing that the piling was done under the direction of one Jones, who was employed by the owner of the warehouse in which the cotton was stored, the court held that this fact relieved the defendant from responsibility. "The bales which caused the mischief," said Pollock, C. B., "having been stowed under Jones' directions, I think that he and his master alone are responsible." In Pearson v. Cox, 2 C. P. Div. 369, a tool, called a straightedge, was jostled out of the window of a house that was being built, and fell upon the plaintiff and injured him; but it appearing that the act which caused the straightedge to fall was the act of one of the men employed by the mason, a sub-contractor, the court held that the builders of the house were not liable. In Forsyth v. Hooper, 11 Allen, 419, the defendants had contracted to cast a chime of bells and place them in the tower of the Arlington street church in Boston. The plaintiff was injured by a chain carelessly thrown from the tower by one of the men engaged in hoisting the bells. The jury returned a verdict for the defendants, and the court sustained it upon the ground that the defendants had employed one Leonard to do this part of the work, and that the evidence, though conflicting, was sufficient to justify the jury in finding that the defendants had relinquished to Leonard the management and control of the manner of doing the work. In Wood v. Cobb, 13 Allen, 58, the court say it is too well settled to admit of debate that the employer of one who exercises an independent employment is not responsible for the negligence of one in the latter's service. In that case the defendants, who were dealers in fish, had employed a truckman to deliver fish to their customers each Friday, for a dollar a day, he furnishing his own team and taking such route as suited his convenience. On one occasion, being sick, he told his servant to get help, and the defendants allowed a boy in their employ to drive one of the teams; and he, while doing so, drove against the plaintiff and caused the injury complained of; and the court held that at the time of the injury, the boy was the servant of the truckman, and not the servant of the defendants, and that the latter were not responsible for the injury. In Eaton v. E. & N. A. Railway Co., 59 Me. 520, the question we are now considering was fully examined, and the doctrine of the foregoing cases affirmed. Assuming, therefore, that the law is now well settled that an employer is not responsible for a contractor's negligence, nor for the negligence of a contractor's workmen; and that one who carries on an independent business, and in the line of his business is employed to do a job of work, and in doing it, does not act under the direction and control of his employer, but determines for himself in what manner it shall be done, is a contractor, within the meaning of the law, let us apply it to the case before us. The case shows that Canselo Winship was a slater by trade, and carried on the business of a slater, and had done so, in Portland, for more than twenty years, In Reedie v. Railway Co., 4 Exch. 244, a contractor's workmen, in constructing a bridge over a public high-keeping a shop, and a slate on which to receive orders, way, negligently allowed a stone to fall upon one passing beneath, and it was held that the railway company was not responsible for the injury. Platt, B., put this significant inquiry: "Suppose the occupier of a house were to direct a bricklayer to make certain repairs to it, and one of his workmen, through clumsiness, were to let a brick fall upon a passer-by, is the owner to be liable?" The decision shows, that in the opinion of the court, the question should be answered in the negative. In Murphey v. Caralli, 3 Hurl. & C. 461, the plaintiff was injured by the falling of a bale of cotton, which had been negligently piled by persons employed by the and men constantly in his employ to assist in executing such orders as he should receive. He was therefore carrying on what the law denominates an independent business. The case also shows that he had been employed to slate the Second Parish church, in Portland, then being built, and to do other work upon it; that the roof afterward leaked and he was requested to repair it; that he took two men, then in his employ, and went into the tower of the church and assisted them in putting out a ladder to enable them to get on and off the roof, and to carry on the materials needed to make the necessary repairs; that the men continued to use the ladder (taking it into the tower when they went to their dinners, and putting it out again upon their return) till about three o'clock in the afternoon, when it was blown down and fell upon the plaintiff, as already stated. No officer or agent of the parish interfered with the men, or gave them any directions whatever. On the contrary, the chairman of the parish committee, by whom Winship was employed, testifies that he intrusted the matter entirely to him, as he had been in the habit of doing; and this is confirmed by the men and contradicted by no one. Winship paid his men but a dollar and a half a day, while he charged and received from the parish four dollars a day for their labor. Here then we have a case where a man who is carrying on an independent business, is employed, in the regular course of his business, to do a job of work; he is left entirely free to do the work as he pleases; he sets two of his own servants at work upon the job, charging his employer a much larger sum for their labor than he pays them; they so negligently place a ladder in use by them that it is blown down by the wind and injures a passer-by. Now, if it be a rule of law that one who carries on an independent business, and in doing jobs of work for others acts independently, so far as the manner of doing it is concerned, is a contractor, and not the servant of his employer, can there be a plainer case for the application of the rule than this? We think not. If Winship and his workmen can under these circumstances be regarded as the servants of the parish, so as to make the parish liable for their negligence, we fail to see why the same rule would not apply to the expressman, who is employed to carry a trunk to a depot, or to the hackman who is employed 'to drive one about town, or to the scissors-grinder who stops in front of a house and is employed to sharpen the knives and the scissors of its occupants, or to the plumber and the gas fitter; and why it would not have applied to the drover, and the stevedore, and the truckman, and the drayman, in the cases cited. We think it would. In principle the cases are not distinguishable. Our conclusion is, that the verdict in this case is clearly wrong and must be set aside. Verdict set aside. UNITED STATES SUPREME COURT ABSTRACT. APPEAL WHAT IS NOT FINAL DECREE IN PARTI TION SUIT.-F. brought a suit in partition, the petition alleging that she was the owner of one-half the property; that she was not willing to continue her joint ownership, and that a partition by sale was necessary, as a division could not be made in kind. The prayer of her petition was in accordance with these allegations. The court below made a decree that F. was the owner of one-half the property and that the case be referred to a master "to proceed to a partition according to law, under the direction of the court." Held not a final decree from which an appeal could be taken to the Supreme Court. In partition causes, courts of equity first ascertain the rights of the several persons interested, and then make a division of the property. After the division has been made and confirmed by the court, the partition, if in kind, is completed by mutual conveyances of the allotments to the several parties. Mitford's Eq. Pl. (4th ed.), by Jeremy, 120; 1 Story's Eq., § 650; 2 Daniel's Ch. Pr. (4th Am. ed.) 1151. A decree cannot be said to be final until the court has completed its adjudication of the cause. Here the several interests of the parties in the land have been ascertained and determined, but this is merely preparatory to the final relief which is sought; that is to say, a setting off to the complainant in severalty her share of the property in money or in kind. This can only be done by a further decree of the court. Appeal from United States Circ. Ct., Louisiana, dismissed. Green v. Fisk. Opinion by Waite, C. J. [Decided March 28, 1881.] CONSTITUTIONAL LAW - IMPAIRING CONTRACTSTATE CONTROL OVER OPERATION OF RAILROADS-The N. Company was chartered by the State of Connecticut to operate a railroad, its charter providing that the same may be altered, amended or repealed at the pleasure of the Legislature. The railroad was built and three stations established in the town of S. Thereafter the Legislature passed a statute forbidding the abandonment of any established railroad station without the approval of the State railroad commissioners. The N. Company, being desirous of abandoning two of its stations in the town of S., applied to the railroad commissioners for permission so to do. The commissioners granted the permission upon condition that the company should erect an acceptable passenger-house at the remaining station. The company thereupon erected a passenger-house as required by the commissioners, at an expense of $10,000, and abandoned the two stations as permitted. Subsequently the Legislature passed an act requiring the company to stop its trains at one of the abandoned stations. Held, that the enactment last mentioned was authorized under the charter above named and was not invalid as impairing the obligation of any contract rights which the N. Company had acquired from the State. See State v. New Haven & N. Co., 37 Conn. 163, and 42 id. 59. Judgment of Connecticut Supreme Court of Errors affirmed. New Ilaven & North Hampton Company v. Hamersley. Opinion by Waite, C. J. [Decided March 7, 1881.] MUNICIPAL BONDS-CONSTRUCTION OF STATUTE AUTHORIZING AID TO RAILROAD.-A statute of Arkansas provided as follows: "That any county in this State may subscribe to the stock of any railroad in this State, now chartered or incorporated, or which shall hereafter be chartered or incorporated, under and in accordance with the laws of this State, and may issue bonds for the amount of such stock so subscribed, with coupons for interest thereto attached, under such limitations and restrictions, and upon such conditions as the county court may require, and the president and directors of such company may approve; provided that the amount of such subscription shall not exceed one hundred thousand dollars, and the consent of the inhabitants of such county to such subscription shall be first obtained in the manner hereinafter provided." Held, that this did not restrict a county to a single subscription. It might subscribe to any railroad in the State, to the extent of one hundred thousand dollars, and such subscription would not exhaust its power under the statute. Judgment of United States Circ. Ct., E. D. Arkansas, affirmed. Chicot County v. Lewis. Opinion by Bradley, J. [Decided March 28, 1881.] STATUTORY CONSTRUCTION - POWER OF EXECUTIVE TO REMOVE ARMY OFFICERS. - The true construction of the 5th section of the army appropriation act of July 17, 1866 (14 Stat. 92), is that whereas, under the act of July 17, 1862 (12 Stat. 596), as before its passage, the President alone had the power to dismiss an officer in the military or naval service for any cause which in his judgment either rendered the officer unsuitable for or whose dismissal would promote the public service, he alone shall not thereafter, in time of peace, exercise such power of dismissal except in pursuance of a courtmartial sentence to that effect, or in commutation thereof. Congress did not intend by the act of July 17, 1866, to deny or restrict the power of the President, with the concurrence of the Senate, to displace officers in the army or navy by the appointment of others in their places. See Ex parte Hennen, 13 Pet. 259; 1 Kent's Com. 309 et seq.; 2 Story on Const. (4th ed.) §§ 1,537-1,540 and notes; 2 Marshall's Life of Washington, 162; Sergeant's Const. Law, 372; Rawle on the Const., ch. 14; Dubarry's case, 4 Atty-Gen. Opinions, 612; Lansing's case, 6 id. 4; Mimmack v. United States, 97 U. S. 437. Judgment of Court of Claims affirmed. Blake v. United States. Opinion by Harlan, J. [Decided March 28, 1881.]. ΤΑΧΑΤΙΟΝ -EXEMPTION FROM, NOT TO BE PRESUMED GRANT TO ONE RAILROAD COMPANY OF POW ERS AND PRIVILEGES OF ANOTHER, - By a statute of Maryland the Annapolis & Elk Ridge Railroad Company was "invested with all the rights and powers necessary to the construction and repair" of its railroad, and for that purpose was to "have and use all the powers and privileges" and be subject to the obligations contained in certain enumerated sections of the Baltimore & Ohio Railroad Company's charter. Under one of these sections the shares of the capital stock of the Baltimore & Ohio Railroad Company were exempted from taxation. Held, that this did not exempt from taxation the property of the Annapolis & Elk Ridge Railroad Company. Grants of immunity from taxation are never to be presumed. On the contrary, all presumptions are the other way, and unless an exemption is clearly established all property must bear its just share of the burdens of taxation. The lastnamed company was not granted all the privileges of the Baltimore & Ohio Company named in the enumerated sections, but only of such as were necessary to carry into effect the objects for which the new company was incorporated. Such is the import of the language employed. Consequently only such of the privileges of the old company could be enjoyed by the new as were appropriate to the work the new company was authorized to do. See Railroad Company v. Gaines, 97 U. S. 711; Morgan v. Louisiana, 93 id. 217. Judgment of Maryland Court of Appeals affirmed. Annapolis & Elk Ridge Railroad Co. v. Commissioners of Anne Arundle County. Opinion by Waite, C. J. [Decided March 7, 1881.] UNITED STATES CIRCUIT AND DISTRICT COURT ABSTRACT.* ILLEGAL CONTRACT EXPENSES IN EVADING COURT PROCESS. - Expenses incurred by an employee in evading the process of a court, at the request and for the benefit of his employer, cannot be recovered upon a promise of reimbursement. "Courts owe it to public justice, and to their own integrity, to refuse to become parties to contracts essentially violating morality or public policy by entertaining actions upon them. It is judicial duty always to turn a suitor, upon such a contract, out of court, whenever and however the contract is made to appear." Wight v. Rindskopf, 43 Wis. 348. See, also, Badger v. Williams, Chipman (Vt.) 137; Valentine v. Stewart, 15 Cal. 387. The cases, Armstrong v. Toler, 11 Wheat. 258, and Planters' Bank v. Union Bank, 16 Wall. 483, distinguished. United States Circ. Ct., E. D. Wisconsin, Dec. 22, 1880. Bierbauer v. Wirth. Opinion by Dyer, D. J. MUNICIPAL CORPORATION PRECINCT IN COUNTY IS NOT SUABLE FOR BONDS ISSUED FOR IT BY COUNTY IN WHICH IT IS, BUT COUNTY LIABLE.- A statute of Nebraska provided, inter alia, that “ any precinct, in any organized county in this State, shall have 'the privilege of voting to aid works of internal improvement, and be entitled to all the privileges conferred upon counties and cities by the provisions of this act, and in such case the [county] commissioners shall issue special bonds for such precinct, and a tax *Appearing in 5 Federal Reporter. to pay the same shall be levied upon the property within the bounds of such precinct. Such precinct bonds shall be the same as other bonds, but shall contain a statement showing the special nature of such bonds." Held, that a precinct issuing bonds under the terms of this statute was not thereby impliedly created a body corporate in order to insure the collection of the coupons attached to such bonds. In Jordan v. Cass County, 3 Dill. 185, a case similar to this, the court said: "Undoubtedly the Legislature designed that there should be a remedy upon these bonds, and if it were consistent with the legislative intent the court would be justified in holding, if necessary to afford an effectual remedy, that the township was created by implication, as to this particular matter, a body corporate, and as such liable to be sued." See Russell v. Devon, 2 T. R. 672; Levy Court v. Coroner, 2 Wall. 501; Inhabitants v. Wood, 13 Mass. 192; Bradley v. Case, 3 Scam. 608; North Hempstead v. Hempstead, 2 Wend. 109; Bessey v. Unity Plantation, 65 Me. 347; Freeholders of Sussex v. Strader, 3 Harr. (N. J.) 117; Cumberland v. Armstrong, 3 Devereux, 284; Dean v. Davis, 51 Col. 406; Gaskell v. Dudley, 6 Metc. 552; Hunneman v. Fire District, 37 Vt. 40, where a fire district authorized to purchase an engine, was held to be a corporation; Ang. & Ames on Corp., $$ 77-79; Commissioner of Roads v. McPherson, 1 Spear (S. C.) 218; Governor v. Allen, 8 Humph. 176. An examination of these authorities will show that it is only in cases where a bona fide contract cannot be otherwise enforced, that courts will hold that a corporation has been created by implication. In the case at bar the bonds were held enforceable against the county in which the precinct was located, to be paid by a tax United levied upon property within the precinct. States Circ. Ct., Nebraska, January, 1881. Blair v. West Point Precinct. Opinion by McCrary, C. J. VOTER UNDER NEW YORK LAW -- RESIDENCE- A MARINE LIVING IN UNITED STATES BARRACKS DOES NOT GAIN RESIDENCE.- By a provision of the Constitution of the State of New York, a prior residence of thirty days in the election district is necessary to entitle a person to vote. Held, that under this provision, in order to prove a residence in an election district, something more must be shown than the fact of having lived in the United States marine barracks, located within the limits of such district, in the capacity of a marine. A residence in Brooklyn is not shown by proving the fact of leaving the place of former residence and coming to Brooklyn for the purpose of enlisting as a marine, with the intent to return in case the application to be enlisted should be refused. The acts of leaving New York and enlisting at the Brooklyn navy yard, under such circumstances, are to be deemed consecutive acts. No residence is acquired while proceeding through the streets of Brooklyn on the way to the navy yard for the purpose of enlisting, with the intent to return to New York if not enlisted. No residence in the election district wherein the marine barracks are located is acquired by the act of enlisting there as a member of the marine corps of the United States navy. The fact that the practice of the navy justifies an expectation, on the part of one enlisting as a marine in the Brooklyn navy yard, that the first two years of the term of enlistment would be spent in the Brooklyn navy yard, does not alter the case. See Frost v. Brisbin, 19 Wend. 14; Ames v. Duryea, 6 Lans. 155. United States Circ. Ct., E. D. New York, Nov. 1, 1880. In re Green. Opinion by Benedict, D. J. ILLINOIS SUPREME COURT ABSTRACT. EMINENT DOMAIN-PROPERTY ALREADY APPROPRIATED TO PUBLIC USE CANNOT BE TAKEN.-When property has already been appropriated to public use, and against the purchaser, he is equally incapable of enforcing it against the seller, for contracts to be obligatory upon either party must be mutual. Until acceptance by the obligee, or the performance of some act equivalent to an election to purchase under the terms is in fact in such use in the hands of one railroad corporation, it cannot rightfully be taken away from such corporation, even by authority of a statute, for the purpose of subjecting it to the same public use in the hands of another corporation. To warrant the taking of property of one party already appropriated to pub-mentioned therein, it is a nudum pactum. Its legal lic use, and placing it wholly or in part in the hands of another party for a public use, it is essential that the new use be a different use and also that the change from the present use shall be for the benefit of the public. Whether the new use be different from the present one is a judicial question for the courts to decide, but where such new use may be in its nature a public benefit, whether the change will be for the benefit of the public is a political question to be determined by the law-making power. Lake Shore & Michigan Southern Railway Co. v. Chicago & Western Indiana Railroad Co. Opinion by Dickey, J. [Decided Feb. 3, 1881.] LIABILITY FOR ACT MUNICIPAL CORPORATION ULTRA VIRES. - Where a city is empowered to provide for the erection of lamp-posts and for lighting the city by gas, even if it is not authorized to enter into a contract to light the city for thirty years, such a contract will be good as to the time it is executed, without objection on the part of the city, and no steps have been taken to avoid the contract, and the city will be compelled to pay for the same at the contract price. City of East St. Louis v. East St. Louis Gas & Coke Co. Opinion by Sheldon, J. [Decided Feb. 3, 1881.] RECORDING ACT-WHO IS NOT SUBSEQUENT PURCHASER. — Where A executed a mortgage on lots to B and the same were subsequently sold under a prior lien against the same and passed redemption, whereby the mortgage was extinguished, and about a year after the date of the mortgage A bought the same lots of the holder of the title, giving him mortgage for the purchase-money, which the vendee failed to place on record for several months, it was held, that while the mortgage from A to B was revived as to the title subsequently acquired by A, B was not a subsequent purchaser under the recording laws, and did not acquire a prior lien on the lots from the delay in A's grantor to record his mortgage. Elder v. Derby. Opinion by Walker, J. [Decided March 21, 1881.] COLORADO SUPREME COURT ABSTRACT. CONTRACT MUTUALITY REQUIRED TO RENDER VALID-BOND TO CONVEY LAND AT A SPECIFIED PRICE. - Plaintiffs below, the original locators of a mining claim, executed to L. a bond in the penal sum of $1,000, conditioned to convey the claim to him on payment to them of $550 before a time specified. The bond was not signed by L., contained no clause granting him permission during the option, and no consideration was expressed for the option. Held, that such bond, until acceptance by L., was not a binding contract; might be revoked by plaintiffs, and could not be enforced by them against L. A bond of this nature is, in the first instance, a mere option to the obligee, to purchase at any time within the period therein limited, upon simple compliance with the terms stated. Until acceptance by the obligee, there being neither mutuality nor consideration, it imposes no obligation whatever on either party, and is subject to revocation by the maker at any time. It lacks the elements of a valid and binding contract. It is not signed by the purchaser, and no consideration is expressed for the option given. Not being enforceable to any degree effect is that of a continuing offer to sell, which is capable of being converted into a valid contract by a tender of the purchase-money, or performance of its conditions. Boston & M. R. Co. v. Bartlett, 3 Cush. 224; Corson v. Mulvany, 49 Penn. St. 88; Perkins v. Hadsel, 50 Ill. 216; Esmay v. Gorton, 18 id. 483; Estes v. Furlong, 59 id. 300; Vassault v. Edwards, 43 Cal. 458; Stevenson v. McLean, Q. B., 11 C. L. J. 229; Rutledge v. Grant, 4 Bing. 653; Cook v. Oxley, 3 T. R. 653; Eliason v. Henshaw, 4 Wheat. 226; Carr v. Duval, 14 Pet. 77; Fry on Sp. Perf., §§ 64, 166, 167, 177-179. Gordon v. Darnell. Opinion by Beck, J. CORPORATION -LIABILITY OF STOCKHOLDERS FOR UNPAID ASSESSMENTS-ACTION TO ENFORCE WILL LIE AGAINST INDIVIDUAL STOCKHOLDER BY CREDITOR WHO IS ALSO STOCKHOLDER. - The statute of Colorado relating to corporations provides thus: "All the stockholders of every company incorporated under the provisions of this article shall be severally individually liable to the creditors of the company in which they are stockholders, to the amount of unpaid stock held by them respectively, for all debts and contracts made by such company, until the whole amount of capital stock fixed and limited shall be paid in." Held, first, that one of the creditors of a corporation can maintain an action at law for the recovery of his individual claim against a stockholder who is indebted for his stock (Culver v. Third Nat. Bk. of Chicago, 64 Ill. 528; Butler v. Walker, 80 id. 345), and second, that a stockholder who is a creditor of such corporation, but who has paid in full for the stock subscribed by him, can maintain such an action. Smith v. Londoner. Opinion by Beck, J. WHEN EXISTENCE OF DE FACTO ONE CANNOT BE QUESTIONED COLLATERALLY — MEMBERS OF, NOT LIABLE AS PARTNERS. — While some diversity of opinion is found in the courts of the different States as to when the existence of a corporation may be questioned, if at all, in a collateral proceeding, the authorities are almost unanimous in holding that such collateral inquiry cannot be made touching the corporate existence of a de facto corporation when there was a lawful authority for its creation. Cochran v. Arnold, 58 Penn. St. 405; Rondell v. Fay, 32 Cal. 354; Baker v. Administrator of Backus, 32 Ill. 110; Tarbell v. Page, 24 id. 46; Jones v. Cincinnati Type Foundry Co., 14 Ind. 89; Hubbard v. Chappel, id. 601; Heaston v. Cin., etc., R. Co., 16 id. 279; Washington College v. Duke, 14 Iowa, 17; Slocum v. Providence, etc., Co., 10 R. I. 114; 1 Redf. Railw. (5th ed.) 73; Aug. & Am. Corp. (10th ed.), § 635. And where one deals with a de facto corporation as such, the existence of whose corporate powers he is estopped from denying, a member of the corporation cannot be held by him upon his contract made with the corporation as a copartner. And it does not follow, as a rule of law, if the legal existence of the corporation could be attacked and overthrown, collaterally or otherwise, that the members of such de facto corporation would be liable as members of a copartnership. See, as to this point, upon which there is a diversity of opinion, Fuller v. Rowe, 57 N. Y. 26; Whipple v. Parker, 29 Mich. 380; Abbott v. Omaha Smelting Co., 4 Neb. 423; Tarbell v. Page, 24 Ill. 47; Stowe v. Flagg, 72 id. 397. The case of Fay v. Noble, 7 Cush. 189, is a strong authority and directly in point, that a partnership liability does not attach to the members of an irregularly organized or illegally assumed corporation. Humphrey v. Mooney. Opinion by Stone, J. Justices of Suffolk, 5 N. & M. 139; Rex v. Hewes, 3 Ad. & El. 725. State of New Jersey, Davis, prosecutor, v. Township of Deleware. Opinion by Reed, J. NEW JERSEY SUPREME COURT ABSTRACT. NOVEMBER TERM, 1880.* MASTER AND SERVANT- NEGLIGENCE OF MASTER Plaintiff was employed as a miner by the defendant MAINE SUPREME JUDICIAL COURT AB- EXECUTOR PLEDGE OF PERSONAL PROPERTY OF TESTATOR BY, VALID. As a general rule, an executor has an absolute control over all the personal effects of his testator-his title being fiduciary and not beneficial. An executor may pledge the personal property of his testator for the general purposes of the will. If the person receiving a pledge from an executor has at the time knowledge or notice that the executor intends to misapply the money or is in the very transaction applying it to his own private use, the pledge is not valid. Where an executor pledged certain stock belonging to the estate to a bank to secure his note for money loaned in good faith by the bank, and upon the affirmation of the executor that the money was wanted for the settlement of the estate, the pledge was valid. Wentw. Off. Ex. (14th ed.) 196; Pinchon's case, 9 Coke, 86, b; Dalton v. Dalton, 51 Me. 171; Weeks v. Gibbs, 9 Mass. 76; Hutchins v. Stato Bank, 12 Metc. 423; Peterson v. Chemical Bk. 32 N. Y. 21; Sumner v. Williams, 8 Mass. 198; Sherley v. Healds, 34 N. II. 407; Monroe v. Holmes, 13 Allen, 110; 2 Williams on Exr's, 1001; McLeod v. Drummond, 17 Ves. 154; Andrew v. Wrigley, 4 Br. Ch. Cas. 125; Earle Vane v. Rigden, L. R., 5 Ch. App. 663; Scott v. Tyler, 2 Dick. 712; Collinson v. Lister, 7 DeG., M. & G. 633; Yerger v. Jones, 16 How. 30; Field v. Schieffelin, 7 Johns. Ch. 150. Carter v. Manufacturers' National Bank of Lewistown. Opinion by Virgin, J. [Decided Nov. 27, 1880.] MASTER AND SERVANT — FATHER NOT LIABLE FOR NEGLIGENCE OF SON ACTING FOR HIS OWN PURPOSES. A son for purposes of his own, in the absence of his father and without his knowledge, took his father's street, and the horse being frightened ran away and the carriage collided with the plaintiff's and injured the same. Held, that the father was not liable. The master is liable for every wrong of his servant committed in the course of his service and for the master's benefit, though no express command or privity of the master be proved. Otherwise if the servant is acting on his own account and not executing the commands or doing the work of the master. Whart. on Negl., § 161; Mitchell v. Crassweller, 76 Eng. C. L. 236; Bard v. Yohn, 26 Penn. St. 482; Herlihy v. Smith, 116 Mass. 265; Sheridan v. Chadwick, 4 Daly, 338; Howe v. Newmarch, 12 Allen, 49. Maddox v. Brown. Opinion by Appleton, C. J. NUISANCE-EXCAVATION ON PRIVATE LAND NEAR HIGHWAY. - An excavation adjoining a public high-horse and carriage and left the horse unfastened in the way or so near thereto that a person lawfully and with ordinary care using the way, might by accident fall into it, is per se a nuisance unless proper means are adopted to guard against the occurrence of such accidents. Howland v. Vincent, 10 Metc. 371; Coupland v. Hardingham, 3 Camp. 398; Barnes v. Ward, 9 C. B. 392; Hardcastle v. S. Y. R. & R. D. Co., 4 H. & N. 67; Hounsell v. Smyth, 7 C. B. (N. S.) 731; Binks v. S. Y. R. & R. D. Co., 3 B. & S. 244; Hadley v. Taylor, L. R., 1 C. P. 53; Birge v. Gardiner, 19 Conn. 507; Beck v. Carter, 6 Hun, 604; Temperance Hall Association v. Giles, 4 Vroom, 260; Vanderbeck v. Hendry, 5 id. 467. Whether, if the excavation existed before the highway was laid out, the land-owner is bound to provide guards against persons falling into it is more doubtful. Bliss v. Hall, 4 Bing. (N. C.) 183; Tipping v. St. Helen's Smelting Co., L. R., 1 Ch. App. 66; S. C., 11 H. L. C. 642; Fisher v. Prowse, 2 B. & S. 770; Robbins v. Jones, 15 C. B. (N. S.) 221. But in an indictment against the land-owner for maintaining the nuisance the preexistence of the highway need not be averred. 1 Chit. on Pl. 383; State v. Hageman, 1 Green, 314; State v. N. J. Turnpike Co., 1 Harr. 222. State of New Jersey v. Society for Establishing Useful Manufactures. Opinion by Dixon, J. PRACTICE-ORDER REFUSING TO AMEND RECORDS.— An order of a court refusing to amend its records is not reviewable for error. Mellish v. Richardson, 1 Cl. & Fin. 224; Scales v. Cheese, 12 M. & W. 685; Marine Co. v. Hodgson, 6 Cranch, 206; Matheson v. Grant, 2 How. 263; Varnum v. Bissell, 14 Pick. 191; Layson v. Sniffin, 1 Barb. 428; High Mand., § 154; Rex v. Appearing in 13 Vroom's (42 N. J. Law) Reports. [Decided Nov. 19, 1880.] SHERIFF LIABILITY OF, FOR ACTS OF DEPUTY. — In any proceeding to "fix up" an execution in the hands of a deputy sheriff for collection, by taking an indorsed note from the judgment debtor under the instruction of the creditor, the deputy would be acting as agent for the creditor and not in his official capacity. Harrington v. Fuller, 18 Me. 277; Marshall v. Hosmer, 4 Mass. 63. Where the plaintiff in an execution gives to the deputy sheriff a power over it not given by the law, or gives directions for the management of it otherwise than as required by law, the sheriff is not responsible. Samuel v. Commonwealth, 6 Monr. 174. See also Strong v. Bradley, 13 Vt. 9; and discussion by Shaw, C. J., of what will and what will not constitute an official neglect or misfeasance on the part of a deputy sheriff in Lawrence v. Rice, 12 Metc. 531. The sheriff is not liable on the contracts of his deputy * To appear in 71 Maine Reports. |