neglect and want of care and skill of the superintend eut and trustees of the cemetery, is not brought in issue. Admitting the truth of the allegations in the original petition, the essential question is, whether the city of Toledo was liable to Cone, for the injuries he received while engaged in the cemetery in improving the vault which was the city's property, and while working under and obeying the orders of the superintendent-the superintendent and Cone himself having been appointed, and the trustees having been elected, according to the provisions of sections 361 to 376 inclusive, of the act "To provide for the organization and government of Municipal Corporations," passed May 7, 1869 (66 Ohio L. 149).

The rule respondeat superior, though well recognized in fixing the liability of private corporations and natural persons, has been a source of much doubt and per plexity in its application to municipal corporations. It is however now well established, that corporations of the latter class, when acting in a certain character or capacity, are liable as superiors and employers, for injuries to third persons resulting from the negligence and unskillfuluess of their agents or servants, while in the line of their employment, in the same manner and to the same extent as private corporations or private individuals. Under analogous conditions, there seems to be no foundation in reason or public policy, for exempting such public corporations any more than private individuals, from liability for injuries inflicted on others through the negligence of their agents.

The underlying principle of municipal government is, that the management of local affairs shall be intrusted to local authorities, while general affairs are left to the State Legislature. Under the power given by the Constitution to the general assembly, to provide for the organization of cities and incorporated villages, these corporations are made the depositaries of certain limited governmental powers, to be exeroised on behalf of the State for the public welfare. They are agencies or instrumentalities to which the general assembly, vested with the legislative power of the State, delegates a portion of its governmental power, in order to meet those local wants of the people iu cities and villages, for which State laws make only general provision, leaving a more particular provision to local councils. The manner and extent, to which legislative and governmental powers delegated to municipal corporations for the public good are to be exercised, must rest, in a large measure, in their judgmeut aud discretion; but acting as State instrumentalities, they cannot be held liable to individuals for a defect in the execution of such powers, unless a right of action is given by statute. Indeed in the distribution of the powers of government-as a part of the machinery of the State government-they enjoy, to a certain extent, an immunity from civil action in the performance of their legislative functions, like that of the Sovereign State itself.

This principle is recognized in Wheeler v. City of Cincinnati, 19 Ohio St. 19, which was au action to recover damages arising from the casual destruction of the plaintiff's house by fire, through want of an efficient fire department. As au obligation rested upon the State, to aid by appropriate legislation, in the protection of the property of its citizens, it was held in that case, that the powers conferred upon the municipal corporations of the State to establish and organize fire companies, procure engines, etc., to preserve buildings and property within their limits from conflagration, are in their nature legislative and governmental, and that such corporations cannot be held liable to individuals for any defect in the exercise of those powers.

So also in Western College, etc., v. City of Cleveland,

12 Ohio St. 375, it was held that the defendant was not liable for the failure of its police to preserve the peace and prevent loss by the violence of a mob. It being the duty of the State government to secure to the citizens of the State the peaceful enjoyment of their property and its protection from wrongful and violent acts, power is delegated through the organization of municipal corporations to aid in the accomplishment of that object. But if municipalities to which such governmental authority might be given should fail to effectively exercise it, they are not to be held responsible to individuals for the consequences. As said by the court, "it is not the policy of governments to indemnify individuals for losses sustained, either from the want of proper laws or from the inadequate enforcement of laws made to secure the property of individuals."

But within the sphere of their duties, municipal corporations are to be regarded in another and very different aspect. While they act in a public character or capacity, and exercise public powers, they may and do act also in a private capacity, like private corporatious, and as such are held to a like responsibility. Thus if a municipal corporation acquires real or personal property, and in the discharge of what may be deemed ministerial duties in respect to the same, an individual receives injury through the negligence of its officers or servants, it should be held responsible to that individual. Though not liable for a defect of judgment or discretion, while acting as a State instrumentality in the exercise of legislative functions, yet having like a private corporation or natural person become the owner or obtained the control of property, it should not be relieved from the operation of the general maxim, that one should so use his own as not to injure that which belongs to another. Thus if a city neglects its ministerial duty to cause its sewers to be kept free from obstructions, to the injury of a person who has an interest in the performance of that duty, it is liable to an action for the damages thereby occasioned. Emery v. Lowell, 104 Mass. 13. So if a city owns a wharf, and has the exclusive control of it, and receives wharfage or profit for the use thereof, it will be held liable to a private action for an injury suffered by an individual by reasou of a defect in the structure. Pittsburgh v. Grier, 22 Penn. St. 54. And the same rule applies in respect to a city's failure to keep its streets in a safe condition for public use, where this is a duty resting upon it.

Of course, before a municipal corporation is subjected to liability for the misfeasance or neglect of its agents or servants, it becomes material and sometimes difficult to determine whether they are in fact the agents or servants of the corporation. It is said by au approved text writer that if the municipal corporation appoints or elects them, and can control them in the discharge of their duties, cau continue or remove them, can hold them responsible for the manner in which they discharge their trust; and if those duties relate to the exercise of corporate powers, and are for the peculiar benefit of the corporation in its local or special interest, they may justly be regarded as its agents or servants, and the corporation will be held responsible for their acts, within the scope of their employment. And in broad terms, to the same effect, it is laid down in Wood Mast. and Serv., § 459, that if even an independent public officer, or one whose duties are defined or specified by law, is in any measure subject to the direction or control of a municipal corporation, and acts in obedience to its instruction, the relation of master and servant exists, and the rule of respondeat superior applies. The rule is predicated upon the right of the employer to discharge and control the servant. Blake v. Ferris, 5 N. Y. 48.

Applying these principles to the undisputed facts in

this case, we think the cemetery trustees and the superintendent were placed in such relations to the city of Toledo, by the act of May, 1869, under which they were elected, as to make them the agents of the city, and to render the corporation responsible to Cone for the injury he received. At the time he was injured, the city owned, held the title to and the right of possession of the cemetery. The cemetery was in the possession and charge of a board of three trustees of cemeteries, who had the entire management, control and regulation of the same, and who had been elected for that purpose by the qualified electors of the city, at the annual election for corporation officers, in accordance with the statute in such cases made and provided. All vacancies occurring in the board were required by the statute to be filled by appointment of the city council, and the council was clothed with power to remove any trustee for inattention to his duties, want of proper judgment, skill or taste for the due discharge of the duties required of him, or for other good cause. The trustees were authorized to appoint, subject to the approval of the council, all necessary superintendents, employees and agents. Under a superintendent thus appointed Cone was employed, and was required to obey his orders and directions. The trustees were required, when necessary, to institute suits in the name of the corporation for the protection of the cemetery, and to see that all ordinances of the city passed for that purpose were duly enforced. The by-laws and regulations made by the trustees were not to be inconsistent with the ordinances of the corporation; and they were to perform all such other duties, not specified in the statute and pertaining to their office, as the council of the corporation might by ordinance prescribe. While the trustees might appoint one of their number to sell burial lots, notice of such appointment, upon its being made, was to be communicated to the council. All moneys received and disbursed by them as trustees were to be reported quarterly to the council. They were also to report annually in writing to the council, the number of lots sold during the year preceding, with a detailed statement as to receipts, expenditures and investments during the same period, and such other matters as the council might require. And whenever in their judgment an enlargement of the cemetery grounds should become necessary, the trustees were to report the fact to the council for its action in the premises.

We think it is evident from these statutory provisions that the trustees of the cemetery in question were elected by the people of Toledo, to take charge, as their agents, of the cemetery property, and acted in that behalf in sudordination to and subject to removal by the council of the corporation. The improvement or repair of the city vault, through their agency and that of the superintendent, was not a legislative or governmental act on the part of the city, but was merely the discharge of a ministerial duty, such as the city performs in repairing or improving its streets, sewers and wharves. It lay within the legislative capacity, judgment and discretion of the city to provide a cemetery for the burial of the dead, and to build requisite vaults; but having become the owner of such property, the city in managing it was held to the same degree of care in preventing damage to others as would be required of natural persons. By section 8 of the act of May, 1869, municipal corporations are made capable of acquiring, holding and possessing property, real and personal. Having such power, there would seem to be no more valid reason for exempting them from liability for private injuries caused by the improper management of their property

than for exempting private corporations and natural persons under like circumstances.

In Hill v. Boston, 122 Mass. 344, the court, in tracing the line of municipal liability, say that as to common sewers built by municipal corporations under a power conferred by law, the power of determining where the sewers shall be made involves the exercise of a quasi judicial discretion, and therefore no action lies for defect or want of sufficiency in the plan or system of drainage adopted within the authority so conferred; but that the duty of constructing the sewers and keeping them in repair is merely ministerial, and therefore for neglect in the construction or repair of any particular sewer, whereby private property is injured, an action may be maintained against the city.

It is true that the election and term of office of the trustees were fixed by a general statute of the State, but the law did not require the city of Toledo to own or maintain the cemetery in question. Having however voluntarily acquired the cemetery, and coustructed the city vault as a part thereof, the city ac quiesced in the provisions of the statute, and accepted the trustees and the superintendent by them appointed as its lawful agents for the management and regulation of the property.

In Bailey v. Mayor, etc., 3 Hill, 531, the action was for injuries occasioned to property by the negligent and unskillful erection of a dam on the Croton river for the purpose of supplying the city with water. The principal ground taken in defense was, that the defendants were not chargeable for negligence or unskillfulness in the construction of the dam, inasmuch as the water commissioners, under whose superintendence and control the work was doue, were not appointed by them, nor subject to their direction or control, but were appointed by the governor of the State, with the advice and consent of the Senate, and were answerable for their official conduct to the State alone, which could remove them at pleasure. But the court held that the commissioners, though appointed by the State, were the agents of the corporation, and that the latter was therefore liable; that it being provided by the charter granted to construct the work, that the agents for executing the work should be appointed by the State, an acceptance of the charter by the grantees would render the agents their own. This authority becomes of increased force when it is considered that the cemetery trustees were elected by the qualified electors of Toledo, and were answerable for their official conduct to the city council.

The cemetery and vault were a source of benefit and advantage to the corporation, and involved the same responsibility for their unsafe and improper management which pecuniary and proprietary interests entail upon natural persons. By an amendment of section 371 of the act of May, 1869 (68 Ohio L. 130), the city had authority to charge for burial lots, sufficient not merely to keep in order and embellish the grounds, but also to reimburse the corporation for the cost of lands purchased or appropriated for cemetery purposes. The city vault was used for public purposes, but it was also used by private persons for reward and hire, the money which they paid being accounted for by the trustees, as they accounted for the proceeds of cemetery lots by them sold for the city. The reimbursement of the corporation treasury and the emolument derived from the use of the vault, were for the special local benefit of the corporation, and the State at large had no interest therein. The doctrine seems to be well sustained that where a municipal corporation owns property, and for its own benefit derives pecuniary emolument or advantage therefrom in the

same way a private owner might, it is liable to the same extent as he would be for the negligent management thereof to the injury of others. Oliver v. Worcester, 102 Mass. 489, and cases cited.

In Bailey v. Mayor, etc., of the City of New York, supra, the court in speaking of the grant for the erection of the water works, say: "The State, in its sovereign character, has no interest in it. It owns no part of the work. The whole investment under the law, and revenue and profits to be derived therefrom, are a part of the private property of the city, as much so as the lands and houses belonging to it situate within its corporate limits." This language is not inappropriate to the case at bar. It is suggestive of facts of a kindred nature, which contribute toward fixing upon the plaintiff in error, though a municipal corporation, the same liability which private corporations or natural persons would incur for the neglect of their agents or servants in the care and management of their property.

Upon the facts disclosed by the record, we are of opinion that there was a cause of action in favor of the plaintiff below, and that the judgment entered on the verdict for the plaintiff should not be reversed.

Judgment of the Court of Common Pleas affirmed.

NEW YORK COURT OF APPEALS ABSTRACT.

CRIMINAL LAW-BAWDY HOUSE-CODE CRIM. PROC., § 889-SENTENCE.-The common-law remedy by indictment against a person keeping a bawdy house was not abolished or superseded by the provision of the Code of Crim. Proc. as to disorderly persons (§ 889). It is not essential to the validity of a sentence to imprisonment in a county penitentiary, under the statute authorizing such imprisonment (Laws of 1874, ch. 209, as amended by Laws of 1876, ch. 108, that it shall state that the prisoner is "to be received, kept and employed in the manner prescribed by law and the rules of the penitentiary." That provision of the statute is no part of the sentence, but is simply directory to the keeper of the penitentiary. People v. Sadler, as Superintendent, etc. Opinion by Earl, J.

[Decided Oct. 21, 1884.]

PARTNERSHIP-SHARE OF PROFITS DOES NOT MAKE. -Defendants, Hall, Nicoll and Granbery, as parties of the first part, entered into a contract with defendant, The U. S. R. Co., which recited that the parties of the first part contemplated assuming control of said company, when if ever they shall be satisfied that its business was a profitable one, and that it was expedient that some arrangement should be made whereby that question might be determined; in consideration whereof and of the mutual covenants and agreements it was agreed that the parties of the first part, to enable the company to fill its order, should make advances upon assignment of such orders for goods manufactured by the company, as they should approve. Said parties of the first part to collect each of such orders, and out of the proceeds to retain the sum advanced thereon with interest and a proportion of the profits made by the company, the same to be not less than ten per cent of the face of the order. The company also executed to H., N. and G. a chattel mortgage upon its property to secure such advance. In an action to recover for goods sold to the company, held, that the contract did not constitute a copartnership between the parties either inter sese or as to third persous. It is well settled that when a party is only interested in the profits of a business as a means of compensation for services rendered, as was the fact under the contract in the case at bar, or for money advanced,

he is not a partner. This question was distinctly presented in Richardson v. Hughitt, 76 N. Y. 55, and it was there held that a person who has no interest in the business of a firm or in the capital invested, save that he is to receive a share of the profits as a compensation for services or for money loaned for the benefit of the business, is not a partner and cannot be held as such by a creditor of the firm. In that case advances were to be made upon personal property, to be manufactured and delivered, for which, when sold, the defendant was to receive one-fourth of the profits and his advances with interest at five and a half per cent. The case cited is directly in poiut, the same principle is involved and there is a striking analogy in the facts which renders it applicable to the question now considered. We are unable to perceive any distinction existing between the two cases which authorize a holding that is not in point. The case cited was approved and upheld in Curry v. Fowler, 87 N. Y. 33, and the principle decided is fully sustained in Eager v. Crawford, 76 id. 97, and Burnett v. Snyder, id. 344. These cases are conclusive upon the question considered, and none of the decisions in this State are adverse to the doctrine which is therein laid down. We do not deem it necessary, in view of the fact that the law upon the question discussed is well settled in this court, to examine the English authorities bearing upon the subject. Cassedy v. Hall. Opinion by Miller, J.

[Decided Oct. 28, 1884.]

PARTNERSHIP-RETIRING PARTNER-LIABILITY TO CREDITOR NOT HAVING NOTICE-ADMISSIONS BY OTHER PARTNERS DO NOT BIND.-A partner who retires from a firm may be held liable to all persons who had previously dealt with it, and who continued to deal therewith until they have notice or knowledge of his retiremeut. In Parsons on Partn. (2d ed.) 427, it is said: "The reason of the rule is perfectly obvious. They whom he authorizes to think him a part. ner may hold him as such; and being a partner, and being known as a partner, he authorizes all to think him so who do not know that he has ceased to be one. If we suppose no fraud on his part, there is negligence on his part, and of two innocent persons he should suffer whose negligence caused the error." In Story on Part. (7th ed.), § 160, it is said: "Where an 08tensible or known partner retires from the firm, he will still remain liable for all the debts and contracts of the firm, as to all persons who had previously dealt with the firm, and have no notice of his retirement. This is a just result of the principle that where one of two innocent persons must suffer from giving credit, ho who has misled the confidence of the other, and has been the cause of the credit, either by his representations, or his negligence, or his fraud, ought to suffer instead of the other." But the reason for holding the retired partner goes so far only as to make him responsible to innocent persons who continue to deal with the firm, presumptively on the faith of his presence as a member thereof; and all obligations to such persons created in such dealings bind the retired partner just as fully and thoroughly as if he continued to be a member of the firm. The rule thus defined goes far enough to protect the former dealers with the firm. After a dissolution of a firm by the retirement of one of the members thereof, it is well settled that the surviving members cannot bind him by their admissions (Brisban v. Boyd, 4 Paige, 17; Walden v. Sherburne, 15 Johns. 409); and it matters not whether the dealer to whom the admissions were made knew of the dissolution or not. It is sufficient that at the time the admissions were made the parties making them had no right to bind, represent or act for the partner who had retired. In Whitman v. Leonard, 3

Pick. 177, the following language was used by Parker, C. J.: "It is said however that as to a person accustomed to deal with the the partnership, it continued until he had notice of the dissolution; but that must apply to their usual dealings." Pringle v. Leverich. Opinion by Earl, J.

[Decided Oct. 31, 1884.]

lette v. Wendt, 75 N. Y. 580; Juillard v. Chaffee, 92 id. 535; Ellis v. Willard, 9 id. 531; McMaster v. President, etc., 55 id. 228; Stanton v. Miller, 58 id. 203; Smith v. Holland, 61 id. 635. But inasmuch as the question here presented relates to the uncertainty and ambigu. ity of the indorsement on the envelope, it is unnecessary to invoke the application of this rule in order to sustain the decision of the court allowing the introduction of parol evidence. Defendant proved that the loan was made for the benefit of one K. and upon securities belonging to him; that plaintiff was advised for whom the loan was made; and its secretary asked to whose order the checks should be drawn; also that defendant wrote his name upon the envelope at the request of the secretary after the loan had been made. Held, that the evidence justified a finding that defendant was not the borrower and did not contract to pay the loan. Plaintiff introducing evidence to the effect that its custom was not to take notes for loans, but envelopes similar to the one in question, and that the use of such envelopes was common at the time. Held, that this did not affect the character of the indorsement; that the language employed and the circumstances connected with its use could not be altered or changed by proof of such a custom. Union Trust Co. v. Whiton. Opinion by Miller, J. [Decided Oct. 31, 1884.]

CONTRACT PAROL EVIDENCE TO EXPLAIN -INDORSEMENT ON ENVELOPE-PROOF OF CUSTOM.-In an action to recover the amount of an alleged loan from plaintiff to defendant, the defense was that the loan was negotiated by defendant for and upon collaterals belonging to a discharged principal. Plaintiff proved the delivery of a check to defeudant, payable to his order, for the amount of the loan, aud produced an envelope in which were the securities upon which the loan was made; upon this was indorsed the date of the transaction, defendant's name and place of busi. ness, written by him, the time of the loan, from whom, the amount of the rate of interest, and then a list of the securities. Held, that the indorsement was not a contract, as there was no promise to pay, nor was it an acknowledgment of an indebtedness, or that defendant was the borrower, and that parol evidence was proper to show that fact. Where the language of an instrument is ambiguous, evidence of the surrounding circumstances may be resorted to for the purpose of determining what the real intention is. Brill v. Tuttle, 81 N. Y. 454. Parol evidence may also be introduced to show that even when a writing purports to be a contract it may not be such. Grierson v. Mason, 60 N. Y. 397. In the case last cited the defendaut has proved a contract and the plaintiff proved an instrument which altered the contract. The defendant introduced evidence to show that the instrument was not intended as an alteration of the contract, but was executed with the view of accomplishing a particular purpose. It was then laid down that such evidence was not given to change the written contract by parol, but to establish that such contract had no force, efficacy or effect. That it was not intended to be a contract, and that such evidence did not come within the ordinary rule of introducing parol evidence to contradict written testimony, but tends to explain the circumstances under which such an instrument was executed and delivered. It is also stated that the purpose for which a writing was executed may be proved by parol when not inconsistent with its terms. If the rules stated are applicable where there is a complete contract, much stronger reasons exist for invoking them where the terms of the contract are uncertain and ambiguous, as is the fact in the case at bar. The rule appears to be well established, that even although a contract is made out, if any ambiguity arises in reference to any portion of it, the question presented is one of fact for the consideration of the jury, upon such testimony, either in writing or oral, as the parties are able to present. See Brill v. Tuttle, 81 N. Y. 460; Field v. Munson, 47 id. 223, and Fabbri v. Ins. Co., 55 id. 133. The cases are numerous which sanction the introduction of evidence which will cast light upon those terms in the contract which are not clear and explicit, and serve to explain what the real intention of the parties was. This rule has been held to apply particularly to insurance cases of an analogous character where the language is uncertain and ambiguous as to the interest intended to be insured, and it is held that parol evidence is admissible to place the court in a position to be able to ascertain what interest the insured has, and what was intended to be covered by the policy. Pitney v. Glens Falls Ins. Co., 65 N. Y. 13. Numerous cases sustain the rule that admissions, whether oral or written, may be explained or contradicted by parol or other evidence. DeLaval

UNITED STATES SUPREME COURT ABSTRACT.

MORTGAGE-FORECLOSURE-WHEN RIGHT NOT OUT OFF. The conditional surrender of notes secured by a mortgage does not cut off the right to foreclose the mortgage for their satisfaction in a case where the condition is not fulfilled. Howe v. Lewis, 14 Pick. 329; Davis v. Maynard, 9 Mass. 242; Stover v. Wood, 26 N. J. Eq. 417. It has been held by many courts that a mortgagee cannot, upon a judgment recovered for a debt secured by his mortgage, levy the execution upon the mortgaged property. Atkins v. Sawyer, 1 Pick. 351; Washburn v. Goodwin, 17 id. 137; Tice v. Annin, 2 Johns. Ch. 125; Camp v. Coxe, 1 Dev. & B. 52; Waller v. Tate, 4 B. Mon. 529; Powell v. Williams, 14 Ala. 476; Carpenter v. Bowen, 42 Miss. 28; Linville v. Bell, 47 Ind. 547. But whether this be the established rule or not, it requires no authority to show that a sale of the mortgaged premises upon a judgment recovered on a part of the notes secured by the mortgage does not preclude the holder of other notes secured by the same mortgage from proceeding to foreclose it. A sale on such a judgment could only affect the equity of redemption, and would leave the rights of the holder of other notes secured by the mortgage unaffected. Pugh v. Fairmount Gold and Silver Mining Co. Opinion by Woods, J. [Decided Nov. 10, 1884.]

CONSTITUTIONAL LAW-STATUTE TO BE CONSTRUED IN HARMONY WITH CONSTITUTION-MUNICIPAL CORPORATION-SUBSCRIPTION TO RAILROAD INVALID — SUBSEQUENT ACT LEGALIZING.-(1) That construction of a statute should be adopted, which without doing violence to the fair meaning of the words used, brings it into harmony with the Constitution. Cooley Const. Law, 184, 185; Newland v. Marsh, 19 III. 384; People v. Supervisors, 17 N. Y. 241; Colwell v. May, 4 C. E. Green, 249. And such is the rule recognized by the Supreme Court of Mississippi in Marshall v. Grimes, 41 Miss. 31, in which it was said: "General words in the act should not be so construed as to give an effect to it beyond the legislative power, and thereby render the act unconstitutional. But if possible, a construction should be given to it that will render it free from con

stitutional objection; and the presumption must be that the Legislature intended to grant such rights as are legitimately within its power." Again in Sykes v. Mayor, 55 Miss. 143: "It ought never to be assumed that the law-making department of the government intended to usurp or assume power prohibited to it. And such construction (if the words will admit of it) ought to be put on its legislation as will make it consistent with the supreme law." (2) A municipal subscription to the stock of a railroad company, or in aid of the construction of a railroad made without authorIty previously conferred, may be confirmed and legalized by subsequent legislative enactment, when legislation of that character is not prohibited by the Constitution, and wheu that which was done would have been legal had it been done under legislative sanction previously given. In Sykes v. Mayor, 55 Miss. 137, it was held that after the Constitution of 1869 took effect, the Legislature could not, by retrospective enactment, make valid an issue of municipal bonds executed prior to the adoption of that instrument, without legislative authority; because, said the court, "the measure of its power was the Constitution of December, 1869, and it could not ratify an act previously done, if at the date it professed to do so, it could not confer power to do it in the first instance. It could authorize a municipal loan conditionally. In order to ratify and legalize a loan previously made, it was bound by the constitutional limitation of its power." Further in the same case: "The idea implied in the ratification of a municipal act performed without previous legislative authority is that the ratifying communicates authority which relates back to and retrospectively vivifies and legalizes the act, as if the power had been previously given. Such statute is of the same import as original authority. * * * If the Constitution had altogether denied to the Legislature the delegation of such power to counties, cities, and towns, it is manifest that it could not vitalize and legalize a subscription made before its adoption, and without authority of law. If that be so, it follows that in dealing with the subject at all, it is bound by the limitation of section 14 of article 12 of the Constitution." In Cutler v. Board of Supervisors, 56 Miss. 115, the question was as to the power of the Legislature to ratify and legalize certain municipal bonds issued to a railroad corporation by a county board of supervisors in pursuance of a vote of the people, with interest coupous attached, payable semi-annually. The statute under which the board proceeded authorized bonds with interest payable annually. The people however voted for bonds with interest payable semi-annually. The court sustained the constitutionality of the curative act. It was said: "This is far from being an effort to impose a debt on the county without its consent. The agreement of the people of the county to incur the debt, in the precise shape which it assumed, has been expressed. Their representatives, the county authorities, in execution of that will, have delivered the bonds, and the Legislature afterward affirmed. If there has been any departure from the letter of the original authority, it acquiesces in such deviation, cures the irregularity, and makes valid the bonds. The principles announced in Supervisors v. Schenck, 5 Wall. 776, 789, fully support these views." These doctrines are in accord with the views of this court as indicated in several cases. Ritchie v. Franklin, 22 Wall.

67; Thomson v. Lee Co., 3 id. 327; City of Lamson, 9 id. 485; St. Joseph v. Rogers, 16 id. 663; Campbell v. City of Kenosha, 5 id. 194. Board of Supervisors of Grenada Co. v. Brown. Opinion by Harlan, J. [Decided Nov. 17, 1884.]

DEED-VOID-EXECUTED BY ONE NOT DESCRIBED AS GRANTOR.-S., the wife of B., joined with him in a

deed to H. of land of B., in trust, for the use of S. during her life, and at any time, on the written request of S., and the written consent of B. to convey it to such person as S. might request or direct in writing with the written consent of B. Afterward B. made a deed of the land to W., in which H. did not join, and in which B. was the only grantor, and S. was not described as a party, but which was signed by S. and bore her seal, and was acknowledged by her in the proper manner. Held, that the latter deed did not convey the legal title to the land, and was not made in execution of the power reserved to S. It needs not much argument or authority to support the conclusiou at which we have arrived. In Agricultural Bank v. Rice, 4 How. 225, 241, it was held that in order to convey by grant, the party possessing the right must be the grantor, and use apt and proper words to convey to the grantee, and that merely signing, sealing, and acknowledging an instrument, in which another person is grantor, is not sufficient. In the present case, if S. possessed the right, she was not the grantor, and used no words to convey her right. No intention on her part to execute the power she possessed appears in the deed. Warner v. Connecticut Mut. Life Ins. Co., 109 U. S. 357, and cases there cited; Story Eq. Jur., § 1062a. Moreover H. possessed the right, and was not the grantor, and was not requested or directed by S. to convey. 2 Perry Trusts, § 778. Batchelor v. Brereton. Opinion by Blatchford, J. [Decided Dec. 1, 1884.]

CORRESPONDENCE.

COURT OF APPEALS CALENDAR. Editor of the Albany Law Journal:

I have been somewhat surprised to observe that the very interesting discussion on the subject of relief to the Court of Appeals, which was carried on in your columns a year ago, has not this year been renewed. It is not because the danger then dreaded has passed away. On the contrary, what was then only a safe prediction has now become a disastrous reality. The present calendar of the court has 782 causes already upon it, which will be added to during the year by appeals from orders and from certain preferred causes; and the court, with all possible diligence, does not annually dispose of more than about half of the number of cases that will thus be brought before it. If it disposes of the first 400 cases on its printed calendar, it will get by next December to cases where the return was filed in December, 1883. Of the appeals from judgments not preferred the first that will be reached in the regular order are cases where returns were filed in the latter part of 1882. In other words, the court is now more than two years behind on its ordinary work, and is rapidly and steadily falling still further behind hand.

What is to be done? The evil grows by what it feeds on, for delay always tempts debtors defeated in the courts below to take frivolous appeals for the sake of that delay alone. If any relief is to be afforded to the court, and to the suitors who have business before it, that relief should be afforded at once.

Two kinds of remedies have been proposed: one by increasing the number of judges; the other by limiting the number of appeals.

As to increasing the number of judges, it is quite

apparent that that remedy not only involves an amend

ment to the Constitution, but that to be really efficacious there must be a division of the court into two or more branches of equal powers. The evils of such a division seem to me too obvious for extended comment. Possibly an increase of two judges to the