of the maker, with full knowledge of his death, be held responsible to the holder, without demand, protest and notice, the holder having in due time presented the note for allowance against the estate of the naker, which was allowed, but not paid because of the insolvency of the estate? An affirmative answer to this question affirms, and a negative answer reverses the judgment. The question has been answered in the affirmative by this court in the case of Davis v. Francisco, 11 Mo. 572, where it was held that the indorser of a negotiable note is not liable by reason of the insolvency of the maker, but to hold an indorser liable there must be a demand and notice of nonpayment; but that in a case where the maker was dead at the time of indorsement, which fact was known to the indorser, no demand can, or need be made other than due presentment of the note. for allowance against the maker's estate. We think this case falls within that class of cases where demand and notice is excused "from the entire absence of necessity or utility because the party who should receive the notice must know the facts as well as the party who should give the notice. If, for example, A draws on himself, payable to himself, and then accepts. and then indorses, a holder need not first demand of him as drawer and then notify him again as indorser. This principle is not applied when a person can be proved to have had knowledge of the fact, for it is certain that this is no excuse for want of notice, but when the person must of necessity have knowledge, by presumption of law,as when a firm draws upon itself, or a member of the firm draws upon the firm. Parsons on Notes and Bills, 521. The indorser in the case before us knew at the time of the indorsement that the maker was dead, and is presumed to have known that the administrator of his estate could not be required to pay before the end of one year from the grant of letters and notice, such being the law in this State, as enunciated by this court in the case of Dulland v. Hardy, 47 Mo. 403.

We have not been able to find any case where it has been held that when the indorsement was made after the maturity of the note and the death of the maker, which fact was known to the indorser at the time, and where the administrator was not required by law to pay demands of that character before the end of one year, that demand and notice has been required as prerequisite to the liability of the indorser. An indorsement of a negotiable note after maturity is equivalent to drawing a new bill at sight, but this rule can have no application when the maker of the note at the time of such indorsement was dead, which was known to the indorser, for the reason that in every bill there must be a drawer and drawee, as in every deed there must be a grantor and grantee.

Such cases as the one in hand are anomolous, and while the obligation of an indorser is that he will pay after due demand, protest and notice thereof, in such a case as the above, where the in

Supreme Court of Georgia, October 31, 1882.

1. Without special statutory authority, by which it is made the duty of a municipal corporation to erect, or, after erecting, to maintain dykes, walls or levees, to prevent the waters of a natural stream within the corporate limits from overflowing its banks, and damaging a citizen's property, no recovery can be had against the corporation causing or permitting the destruction of such works, substantially erected by it on its commons or the corporate domain, though they may have stood for many years and been trusted to by adjacent land holders, both in making their original purchases and in making improvements.

2. A duty to erect and maintain works to protect a bridge belonging to the corporation does not raise an obligation to keep such works on foot for other purposes, such as preventing damage to citizens by overflow.

3. The use of corporate property for a particular purpose by the corporation is not per se a dedication of the property for such a purpose forever. The intent to dedicate must be alleged and proved.

Case from Bibb Superior Court.

R. W. Patterson and W. Dessau, for plaintiff in error; Hill & Harris and S. H. Jamison, for de fendants.

SPEER, J., delivered the opinion of the court.

This was an action for damages by the plaintiff in error against the defendant, which was dismissed on demurrer, to which judgment exception was taken, and error assigned thereon.

The declaration alleged that plaintiff was the owner of certain city lots in Macon, with dwellings thereon; that before he became the owner, and made said improvements, the defendant, "for the protection of the inhabitants in the neighborhood of their property," constructed a levee, the distance of one hundred and fifty yards, on its own land, said levee being necessary for the protection of the people dwelling between the levee and Fifth street, which extends from the bridge northwardly, said levee being built and serving its purpose for more than fifteen years prior to January 1, 1876; that, soon after that time defendant, over the protest of plaintiff, sold said land and levee constructed thereon, and conveyed the same to certain persons who declared their intention of destroying said levee, which they did,.

which destruction left the lots of petitioner exposed to every rise in the river, and the flooding and destruction of the same; and afterwards, by reason of a rise in said river, the lots of defendant were overflowed and damaged, and his tenants forced to vacate the houses thereon for a long -space of time, to his damage, etc.

By an amendment to his writ, he further alleged said levee was constructed "for the purpose of protecting the eastern pier or abutment of the -city bridge" over said stream from the rise and overflow of the same, etc., and that said levee was constructed by defendant, under its charter, and within the scope thereof."

The question made here is, do the averments made in the declaration set forth such a cause of action as would entitle the plaintiff on proof thereof to a recovery?

The court below held that they did not, sustained the demurrer and dismissed plaintiff's suit, to which he excepted.

Municipal corporations are the creatures of statute. They possess no powers or faculties not conferred upon them either expressly or by fair implication by the law which creates them, or other statutes applicable to them. Powers and duties of a municipal corporation under its charter consist of acts which are legislative and judicial in their nature, and those which are purely ministerial.

For the failure to perform the first, or for errors of judgment committed in their performance, the corporation is not responsible, for they are deemed to be a part of the State's power, and therefore under the same immunity For ministerial acts the rule is different, as damages may be recovered either from the neglect to perform them, or from performing them in an unskilful, negligent or improper manner. 2 Thompson on Neg., 731; 20 Ill. 435; 9 N. Y. 459; s. c., 1 Sandf.; 65 Ga. 379.

But this liability for ministerial acts is further qualified: for if the act complained of lies wholly outside of the general or special powers of the corporation as conferred in its charter or by statute, the corporation can in no event be liable, whether it directly commanded the performance of the act, or whether it be done by its officers without their express command, for a corporation can not, of course, be impliedly liable to a greater extent than it could make itself by express corporate vote or action.

But if the tortious act complained of be done by its officers under its previous direct authority, or when it has been ratified and adopted expressly or impliedly by it, or when done by its agents or servants in the execution of corporate powers, or the performance of corporate duties of a ministerial nature, and was done so negligently or unskilfully as to injure others, then it would be liable. 2 Dillon, sec. 968.

As to the property held by a corporation, the rule is that it is liable for the improper management and use of its property to the same extent,

and in the same manner as private corporations and natural persons are, unless they are acting under some valid special legislative authority, they must, like individuals, use their own so as not to injure that which belongs to another. 19 Pick. 511; 102 Mass. 489. Under certain sections of the city charter we are inclined to think the city had an implied permissive authority for the preservation and protection of its property from floods or overflows, as well as in promoting the security, welfare and health of the city to erect this levee on its own land.

Moreover, the general law of the State authorized all persons who own, or may hereafter own, lands to ditch, and embank them so as to protect the same from freshets and overflows. Code, sec. 2232. The city owned the lands upon which this levee was built, and the construction of it did no harm, but the complaint is that its permissive destruction by the purchaser from the city caused the damage. But was their imposed upon the city under its charter any special or public duty,either before or after the sale of the lands, either to build or to keep up this levee? To charge a corporation in an action for negligence the law must have imposed an imperative duty upon it. so as to make that neglect culpable. Sher. & Red. on Negligence, sec. 123; 56 Me., 407; 32 Barb. 634. To make a corporation liable for an omission to perform a duty enjoined by law, it must be established that the duty has been imposed absolutely and imperatively. 2 N. Y. 162. But it is insisted by plaintiff in error that though no liability may spring from this omission of duty, unless enjoined by law, yet the erection of this levee, and its maintenance for over fifteen years was a dedication of the same to public use, and, under this dedication, security to the lands of plaintiff were assured, and the withdrawal of this dedication of the levee, without authority of law and over the protest of plaintiff, gives this right of action against defendant. While this is the argument addressed to this court, yet the declaration makes no such case by its averments, and we are considering the case as made by the record. Would it be insisted that if a natural person erected a levee on his own lands to protect it from floods and promote health, which likewise operated to protect adjoining lands, that the removal of levee by the builder and proprietor, and thus to restore the floods to their natural and usual outlets, would give a right of action? We think not. But is this a dedication under the facts as set forth in the writ? Dedications are of two kinds - statutory and common law dedications. The dedication must be by the owner, or one who has some interest in the land. Moreover there must be an intent on the part of the owner to dedicate, and this is absolutely essential, and unless such intent can de found in the facts and circumstances of the particular case, no dedication exists. It is true this intention may be established by parol evidence of acts or declarations, which show an assent on the part of the owner of the land that it should be en.

joyed for public use. But to deprive the proprietor of his land the intent to dedicate must clearly and satisfactorily appear. 2 Dillon, sec. 636; 44 Ga. 539; 45 Ga. 342; 53 Ga. 609. Were every averment in plaintiff's writ to be established by proof, there would be still wanting the evidence of intent to dedicate this work to the public use. The words of the writ negative such an intent; for in an amendment to the writ it is averred said levee was constructed by the defendant "to protect and preserve the abutment of the bridge.”

The use of the corporate property for a particular purpose by the corporation, is not a dedication of the property for such a purpose forever. When the title in fee to a piece of land is in the corporation, although purchased by it for a market, the land is not thereby dedicated for market purposes, though constantly used for that purpose for forty years; but the market may be changed or abandoned, and the tax payer can not object. 2 Dillon, sec. 636; 18 Ohio, 563; 17 How. (U.S.) 426.

It would be an impolitic and unwise rule to hold that property once used or appropriated for a particular purpose by a corporation, is ever held dedicated to such use, and that a change of that use gives a right of action. In the language of this court, in the case of Luzzle v. Mayor of Atlanta, 57 Ga. 114, such a policy "would ignore the mayor and council as agents of thought, and treat them as agents of work only. It would virtually deny them power to plan and manage, and grant but the power to execute. It would set up courts and juries as their overseers, and make the mode, if not the time, of affecting public improvements conform to the opinion in the jury box, rather than to the opinion in the council chamber."

If the averments in this writ allege such facts as amounted to a special dedication of this levee by the city to public use, to prevent overflows and damages therefrom to lands adjoining, then there might have been imposed a duty, possibly, to maintain this levee, and an omission to perform this duty might be culpable negligence, and give a cause of action; but the pleadings make no case, and it is unnecessary to decide this question. Our conclusion, therefore, is, without special statutory authority by which it is made the duty of a municipal corporation to erect, or after erecting, to maintain dykes, walls or levees to protect the waters of a natural stream within the corporate limits, from overflowing its banks and damaging a citizen's premises, no recovery can be had against the corporation for causing or permitting the destruction of such works subtsantially erected by it on its commons, or the corporate domain, though they may have stood for a great length of time and beer trusted to by the adjacent landholder, both in making his original purchase or in making his improvements.

And that a duty to erect such, and maintain works to protect a bridge belonging to the corporation, does not raise an obligation to keep such

works on foot for other purposes, such as preventing damage to citizens by overflow.

JACKSON, C. J., concurred specially. He said that if it had been alleged that the city had sold and granted the flooded lands since the constructiod of the levee, and received more therefore by reason of the levee, it could not afterwards destroy the embankment, or connive at its destruction. But such facts did not appear. Judgment affirmed.

WEEKLY DIGEST OF RECENT CASES.

GEORGIA,

INDIANA,

IOWA,
MICHIGAN,
OHIO,

PENNSYLVANIA,
WISCONSIN,

1. AGENCY

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2, 3, 5

1, 9, 10, 14, 15, 20, 21

4, 11, 12, 13, 16, 18

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19 17

FACTOR - COMMISSION MERCHANT— ADVANCES-RIGHTS OF PARTIES. Where advances are made by a consignee or commission merchant a consignor can not direct a sale at his pleasure. In such case the consignee, in the absence of an agreement, has the right to sell at such time as he sees proper to the extent of and in payment of his advances. Butterfield v. Stevens, S. C. Iowa, October 20, 1882; 13 N. W. R., 751.

2. CONVEYANCE-DEED-WORDS OF CONVEYANCE. The question presented is whether the following instrument is a deed: This indenture witnesseth that I, Jacob Smith, etc., warrant and defend unto Christina Smith, to her heirs, and assigns, the receipt of which is hereby acknowledged, the following real estate, ctc., on this condition: "I, the said Jacob Smith, is to have and to hold full possession of the above described lands during my natural life, and to hold appurtenances unto her and her heirs and assigns forever.' "" The instrument is properly signed, sealed and acknowledged as a deed, and was caused to be recorded as such by the person who executed it. This instrument nowhere contains any words of conveyance, and can not be held to be a valid and effective deed. If appellant were seeking a reformation of the writing a different question would be presented. Hammelman v. Mounts, S. C. Ind., November 15, 1882.

3. CRIMINAL LAW-STATUTE OF LIMITATIONS-CONCEALING CRIME.

66

Indictment for larceny. It is averred that the defendant concealed the fact of the larceny from November, 1878, to January, 1880, by circulating reports that Joseph Hutsler was old and forgetful and had buried his money, and that the defendant, to conceal the fact that a larceny had Leen committed, induced Joseph Hutsler, the owner of the property, to take up his abode at defendant's house, and prevented Hutsler's friends from seeing him, and prevented him from communicating with his relatives and friends." Where an artifice is used, or any corrupt and illegal means resorted to for the purpose of con

cealing the fact that a crime was perpetrated, the case is taken out of the statute of limitations State v. Hoke, S. C. Ind., November 16, 1882. 4. DIVORCE-EXTREME CRUELTY OF WIFE. It is extreme cruelty warranting a divorce, for a wife to causelessly humiliate and disgrace her husband and endanger his means of subsistence by habitually, persistently and publicly accusing him of infamous conduct in violation of his marriage obligations, and by applying vile and vulgar epithets to him and dogging him, and setting others to spy out his movements, until by inordinate and indecent exhibitions of jealousy and the criminal indulgence of unworthy suspicions and ungoverned violence she has practically destroyed the decencies and the purposes of the marriage relation. Whitmore v. Whitmore, S. C. Mich., October 31, 1882; 13 N. W. R., 800.

5 EVIDENCE-PRACTICE-CHARACTER OF IMPEACHING WITNESS.

At the trial the defendant offered to prove the bad character for truth and veracity of an impeaching witness of the plaintiff, but was not permitted to do so. The authorities on this point are meager. but the following authorities hold, or favor, the rule admitting such testimony: Wharton Ev., sec. 568; 5 Denio, 106; 14 Iowa, 108; 25 Id. 128; 63 N. C. 493; 9 Cush. 371; 62 Ind, 316. Phillips v. Thom, S. C. Ind., Nov. 14, 1882.

6. EVIDENCE-TRANSACTIONS WITH DECEASED PER

1. A fi. fa. directed to all and singular the she iffs of this State," instead of to all and singular the sheriffs of this State and their lawful deputies," is not so defective in direction as to sustain the court in quashing it. 2. The direction was amendable, and as the fi. fa. was levied by a sheriff, it would seem that no amendment was necessary. Cheney v. Beal, S. C. Ga., Nov. 14, 1882. 8. GUARDIAN AND WARD FINAL SETTLEMENTSURETIES ON BOND.

1. It is made the duty of guardians, by statute, when their wards arrive at age, to make final settlement of their accounts in the probate court. 2. A right of action on a guardian's bond to recover from the sureties the amount remaining in the hands of the guardian, first accrues to the ward when such amount is ascertained by the probate court on the settlement of the guardian's final account. 3. Mere delay of a ward on his arriving of age to compel his guardian to settle his accounts in the probate court, does not discharge the sureties, notwithstanding the guardian may, in the meantime, have become insolvent. Newton v. Hammond, S. C. Ohio, Nov. 7, 1882; 3 Ohio L. J.

214.

9. HOMESTEAD-WHAT AMOUNTS TO AN ABANDON

MENT.

Where a party removes from bis farm, which he occupies as a homestead, to the county seat, for the purpose of practicing his profession, and with the intention not to return to his homestead if he

could make a living at the county seat, he evinces his purpose to reside in town and abandon his homestead, qualified by a contingency. Such removal with such intention constitutes an abandonment. Kimball v. Wilson, S. C. Iowa, Oct. 20, 1882; 13 N. W. R., 748.

10. INFANCY-DISAFFIRMANCE OF CONTRACT. An act of disaffirmance of a contract made by a minor, on her coming of age, must be made within a reasonable time after her attaining her majority; and where the only excuse offered for a delay of three or four years, is that plaintiff was informed by others than those competent to give legal advice, that she could not maintain a suit till her younger brother reached his majority, and she waited three months, after being informed that she could disaffirm her contract, before commenc. ing action, the act of disaffirmance was not within a reasonable time. Green v. Wilding, S. C. Iowa, Oct. 21, 1882; 13 N. W. R., 761.

Where a debtor compromises with his creditors, and represents that he can only realize a certain sum from his assets, and a creditor, on the presumption of the truth of such statement, accepts a certain amount in satisfaction of his claim, such creditor can only recover, in an action on the case for damages for fraudulent concealment, what be would have been entitled to as his pro rata, had no fraudulent concealment been practiced, and interest thereon from date of compromise, and not the amount of his claim. In such a case the creditor, on discovery of the fraud, can not retain the sum paid and bring an action of assumpsit for the balance; but he may retain the payment and maintain an action on the case for damages sustained by the fraud. Walsh v. Sisson, S. C. Mich., Oct. 31, 1882; 13 N. W. R., 802.

12 NEGLIGENCE- ALIGHTING PASSENGER-RAIL

ROAD.

A railway passenger, after the name of the station was called, went to the platform while the train was slacking up, and asked the conductor if it would stop there for water. The conductor said it would. The passenger then got upon the lower step of the platform, and when the train stopped at the usual landing place, tried to step off. But immediately, and without any notice or signal. the train started with a jerk and drew up at the water tank, a few feet further on, throwing the passenger to the ground and severely injuring him. Held, that he had a right of action against the railway company. A passenger's negligence in going to the platform of a car while it is still moving does not affect his right to recover for an injury suffered in properly alighting after the train has stopped. Wood v. Lakeshore, etc. R. Co., S. C. Mich., Oct. 31, 1882; 13 N. W. R., 779. 13. NEGLIGENCE · CONTRIBUTORY NEGLIGENCEWALKING ON RAILROAD TRACK.

A laborer employed by a contractor who had been engaged by a railroad company to lay water-pipe along its right of way, in going home, after his day's work was done, made his way along the tracks to a point where trains were constantly passing in both directions; and although there was enough room between the tracks, he was run over by one train while apparently trying to avoid another. He was not employed upon the road, and might have gone home without going along the track, but his employment enabled him to know

the locality, the risk and the need of watchfulness to avoid injury. Held, that no action would lie for his death. Bresnahan v. Michigan Cent. R. Co., S. C. Mich., Oct. 31, 1882; 13 N. W. R., 797.

14. NEGOTIABLE PAPER-INDIVIDUAL LIABILITY

SCHOOL DIRECTOR."

The addition of the title "director" after the name of a person signing a promissory note will not relieve him from personal liability on his contract. American Ins. Co. v. Stratton, S. C. lowa, October 21, 1882; 13 N. W. R., 763.

15. RAILROAD FIRES-PRESUMPTION OF NEGLI. GENCE EVIDENCE.

The setting of fire from a locomotive engine does not create a presumption of negligence on the part of the railroad company. The burden of proving negligence is on the plaintiff. In an action for damages for loss by fire set by a locomotive engine, the fact that other fires had caught on the right of way of defendant will not justify the inference that the fire in question was communicated from that point, and the admission of such evidence is erroneous. Babcock v. Chicago, etc. R. Co., S. C. Iowa, October 20, 1882; 13 N. W. R., 740.

16. RAILROAD-INJURY TO DOMESTIC ANIMALS MEASURE OF DAMAGES.

In an action against a railway company for injury to a horse which had got upon the track, it was error, while admitting evidence of his reduced value, to allow testimony of what his use would have been worth during a certain period after the injury, if he were sound, especially if the declaration made no claim for the value of his services, and the plaintiff sought to show that he was absolutely worthless. The measure of damages for injury to a domestic animal or other perishable chattels is usually its reduced value at the time; it can hardly be fixed by the rules applicable in the case of injury to a human being. Davidson Michigan Central R. Co., S. C. Mich., October 31, 1882; 13 N. W. R., 804.

v.

17. SERVICE OF PROCESS - DEFECTIVE RETURNAMENDMENT.

Where the return of the sheriff as to service of complaint and summons, as disclosed by the record, is not sufficient to give the court jurisdiction of the persor of appellant, and he appears for the purpose of appeal by attorney. who expressly states that he appears solely for the purpose of appealing from the judgment by default rendered against his client, on the ground of want of jurisdiction in the court below, an amendment of the return of the sheriff showing that in fact the complaint and summons had been properly served will not be allowed, and the judgment below will be reversed. Rehmstedt v. Briscoe, S. C. Wis., Octo. ber 31, 1882; 13 N. W. R., 687.

18. SERVICE OF PROCESS-VALIDITY OF WARRANTLIABILITY OF OFFICER.

It seems that the discretionary act of denying a writ of mandamus to compel a sheriff to execute. a criminal warrant, does not necessarily determine the invalidity of the warrant. An officer to whom a criminal warrant is delivered for service is not bound to look behind it, if regular on its face and issued from a proper jurisdiction; and if he executes it he can not be held liable in a civil action for damages, though it be invalid. A civil action for damages for trespass to the person will not lie against one who has made a criminal complaint, or against his attorney, in a case where the war

rant issued thereon is sufficiently regular on its face to protect the officer who executes it. Wheaton v. Beecher, S. C. Mich., October 31, 1882; 13 N. W. R., 769.

19. STATUTORY CONSTRUCTION-IMPLIED REPEAL-REPUGNANT PROVISIONS.

A general statute without negative words can not repeal a previous statute which is particular, even though the provisions of one be different from the other. To effect such result the repugnancy must be strong or the inconsistency irreconcilable. Seifried v. Commonwealth, S. C. Pa., Oct. 25, 1882; 13 Pittsb. L. J., 119.

20. TAXES-REDEMPTION FROM VOID TAX SALE

REMEDY.

Where an owner redeems from a void tax sale-void because the taxes for which the sale was made had been twice paid, once voluntarily and again by a previous sale of the property-he can not recover back the amount paid in redemption from the county. His remedy is to proceed against the holder of the certificate. Sears v. Marshall County, S. C. Iowa, Oct. 20, 1882; 13 N. W. R., 755. 21. TORT-CONTRIBUTION BETWEEN WRONG DOERS Notwithstanding the general rule that no contribution can be enforced as between joint wrong doers, when a railroad company has been compelled to pay for the loss of an animal killed on its track by reason of the wrongful act of the owner of land in removing a gate erected by such railroad to protect its right of way, and the negligence of such road in not replacing the gate so removed, the railroad may recover the amount so paid from the owner of the land. Chicago, etc. R. Co. v. Dun, S. C. Iowa, Oct. 20, 1882; 13 N. W. R., 722.

LAY OPINIONS ON LEGAL SUBJECTS.

LESSONS OF THE TELEGRAPH CASE.

Besides the immediate fruits of the judgment against the consolidation of the telegraph companies, as a reproof of a vast monopoly, it may have important practical bearings upon the administration of corporations throughout the country. The decision did not turn upon the charges of fraud which have been so freely made, but upon general rules of law established for protecting small shareholders against rapacity of managers and domination of majorities. Every one knows that the voice of the majority determines legitimate questions of corporate policy, and that details are confided to directors; there are, however, limits to the authority of majorities and to the discretion of boards; and individual shareholders have some rights which the courts will not allow to be wrested from them. If, then, we divest the case of its special circumstances, and recount the salient facts as they might occur in almost any corporate controversy, they were that the Western Union Company had for many years steadily realized profits, an important portion of which the directors invested in extending the company's facilities and business, increasing their value about $15,000,000 beyond the original capital stock.