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

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

REMOVAL OF SNOW BY STREET RAILWAY COMPANY.

MARYLAND COURT OF APPEALS.

SHORT V. BALTIMORE CITY PASSENGER RAILWAY COMPANY.*

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

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

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

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

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

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

ion.

J. T. Mason, for appellant.

Arthur W. Machen, for respondent.

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

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

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

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

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

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

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

avoid unnecessary injury to others.

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

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

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

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

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

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

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

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

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

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

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

PURCHASES BY WIFE ON HUSBAND'S CREDIT.

ENGLISH COURT OF APPEAL, MARCH 24, 1880.

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

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

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

The plaintiffs now appealed.

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

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

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

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

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

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

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

ties on other property and transferred to plaintiff was taken as payment, or as plaintiff claimed, as security. Plaintiff testified in his own behalf that when the transaction occurred plaintiff objected to taking the mortgage; that defendant represented that the mortgage (which was a second one) was ample security; that the farm was worth it; that the farm was subsequently sold upon a foreclosure of the first mortgage and brought only enough to pay such mortgage. Held, that evidence upon the part of defendant, showing what the value of the farm was when the transaction took place, was admissible. This does not conflict with Green v. Disbrow, 50 N. Y. 334, the authority of which is not disturbed. (2) A witness testified that a contract had been abandoned and another verbal contract made. Held, not objectionable on the ground that it was a conclusion of law, or that the facts and circumstances constituting the contract or the abandonment were not stated. It has frequently been held that a witness cognizant of the fact can state whether an agreement was made, without detailing the circumstances showing that it was made. Sweet V. Tuttle, 14 N. Y. 465; Frost v. Benedict, 21 Barb. 247; Ayrault v. Chamberlain, 33 id. 229; Union Sem. v. McDonald, 34 N. Y. 379; Osborn v. Robbins, 36 id. 365. (3) A joint debtor has no authority to bind any other person jointly liable with him, by his statements or admissions, unless he is the agent or in some other way the representative of such person. The mere fact that he is a joint debtor never gives the authority. Van Keuren v. Parmelee, 2 N. Y. 528; Shoemaker v. Benedict, 11 id. 176. Judgment affirmed. Wallis, appellant, v. Randall. Opinion by Earl, J. [Decided June 1, 1880.]

SURETYSHIP-OFFICIAL BOND-TAX COLLECTORHOW FAR SURETY LIABLE.- In an action upon a bond it appeared that the bond set forth that plaintiff having been appainted treasurer of the village of Edgewater, appointed one M. " collector, to collect the taxes to be levied and assessed upon said village," and contained a condition that if M. "shall well and truly collect the tax which may be delivered to him and faithfully discharge his duties as such collector and pay over all moneys which he shall receive for taxes as such collector and render a true and faithful account," etc., the obligation shall be void. By the charter of the village (Laws 1870, ch. 674), the property within the village was made liable to assessment for village, county and State purposes, and all was to be collected by the village treasurer. The village of Edgewater is in two towns, a part being in Middletown and a part in Southfield. Held, that the sureties on the bond would be liable for a breach of the collector's duty in respect to taxes for which the whole property of the village was subject to assessment, namely, village, county, and State taxes; but would not be liable for the taxes collected for the two towns, the tax of each town being leviable on only a part of the property in the village. The liability of a surety is limited to the express terms of the contract, and his obligation should be construed strictly and favorably to the surety so far as is warranted by the terms employed. Ludlow v. Simond, 2 Cai. Cas. 1. Judgment affirmed. Ward, appellant, v. Stahl et al. Opinion by Miller, J. [Decided June 15, 1880.]

WATER-COURSE-RIGHT OF SUPERIOR OWNER TO USE AS OUTLET — ARTIFICIAL CHANGE IN FLOW.—

While the right to the use of a water-course upon the lands of another as an outlet for water exists only in respect to the waters of which the water-course is the natural outlet, and does not justify the diversion and turning of the waters of one stream into another (Merritt v. Parker, 1 N. J. 460; Tillotson v. Smith, 32 N. H. 90; Mayor of Baltimore v. Appold, 42 Md. 442), the right of the owner of lands through which a water

course runs to have the same kept open and to discharge therein the surface-water which naturally flows thereto, is not limited to the drainage and discharge of surface water into the stream in the same precise manner as when the land was in a state of nature and unchanged by cultivation or improvements. The owner of lands drained by a water-course may change and control the natural flow of the surface-water therein, and by ditches or otherwise accelerate the flow or increase the volume of water which reaches the stream, and if he does this in the reasonable use of his own premises he exercises only a legal right and incurs no liability to the lower proprietor. Waffle v. New York Cent. R. R. Co., 53 N. Y. 11. The natural capacity of the stream cannot be exceeded however. Accordingly where plaintiffs, who had excavated a quarry, formed thereby a reservoir into which the surface water from the contiguous lands drained in the spring, when they commenced their operations, pumped this water together with that arising from the melting snow and what came from small water-courses cut off by the excavation into a water-course which further down crossed defendant's lands, there being no more water sent down than would have naturally flowed if the excavation had not been made, held, that plaintiffs were exercising their lawful rights, and defendant had no right to obstruct the channel, even though the pumping caused a larger flow than there otherwise would have been, the water-course being sufficient to carry off all the water flowing or pumped into it, and it not appearing that defendant has suffered any injury. Judgment affirmed. McCormick et al. v. Horan, appellant. Opinion by Andrews, J. [Decided June 1, 1880.]

INDIANA SUPREME COURT ABSTRACT. MAY 21, 1880.

ESCHEAT - WHAT STEPS NECESSARY FOR STATE TO SECURE TITLE ESTOPPEL. (1) Where lands are escheated, by the death of an alien, to the State, there seems to be a difference between cases where the alien dies intestate, leaving no one in possession, and where he makes a devise, as to the steps to be taken to secure possession. In the former case there are no known heirs, and no claimant appearing, the State therefore has title at once, and may enter and take possession. In the latter case there are known devisees claiming the land; the State therefore must first establish her title to the land by information found, before she is entitled to possession. See Eldon v. Doe, 6 Blackf. 341; Doe v. Lazenby, 1 Ind. 234; Murray v. Kelly, 27 id. 42; Fuhrer v. State, 55 id. 160; Halstead v. Board of Commissioners, 56 id. 363; Dale v. Frisbie, 59 id. 530; State v. Meyer, 63 id. 33; Fairfax v. Hunter, 7 Cranch, 603; Wilbur v. Tobey, 16 Pick. 177; White v. White, 2 Hetl. 185; O'Hanlin v. Den, Spencer, 31; Dew v. Colgrave, 4 Zabr. 66; Rubeck v. Gardiner, 7 Watts, 455; Farar v. Dean, 24 Mo. 16; Crane v. Reeder, 21 Mich. 24. (2) When such escheated land has been sold for taxes, after the State has become entitled thereto by reason of the escheat, the State is estopped from setting up its title against one purchasing at such tax sale. Dezell v. Odell, 3 Hill, 215. The courts in some of the States hold that a sovereignty, or Commonwealth, or State, is not bound by an estoppel; but this court does not approve of the doctrine. States exact justice, and they must do justice. Commonwealth v. Andre, 3 Pick. 224, is quite in point. In that case the Legislature, for a valuable consideration, had granted certain lands to an alien, his heirs and assigns; and it was held upon the death of the alien that the lands descended to his heirs, although they were also aliens; and that upon inquest of office the Commonwealth was estopped from setting up the alienage of