In Missouri, it has been held that where a claimant or a creditor assigns a portion of his demand without the consent of the debtor, the assignee cannot recover on the portion so assigned. The court goes further and holds, contrary to the usually received doctrine on the subject, that the rule applies as well in equity as at law; and still further, that if the demand is unliquidated, disputed, and in litigation, the assignor may disregard his assignment and compromise the whole claim. In support of the doctrine that the rule in question applies as well in equity as at law, the court cites and distinguishes several English cases, which are relied upon by Mr. Justice Story to support the precisely opposite doctrine. These cases, the Supreme Court of Missouri insists, do not sustain the dictum of the learned author. One case,8 the court says, was "more in the nature of an appropriation out of a particular fund than the assignment of a portion of a debt," and, further, that in that case the debtor not only received without objection a duplicate of the order, but paid a portion of the money to the assignee. In another case,9 the like facts appear. Lord Commissioner Eyre describes the transaction as an appropri ation of a fund, and Lord Commissioner Ashurst says: "This is not a debt, but a standing authority to Everett to give the other parties the same remedy."

It is manifest, as the Supreme Court of Missouri insists, that these cases do not give any material support to the doctrine that a creditor may (in equity) divide his claim into as many parts as he pleases, even as many as there are dollars in the demand, assign each to a different person, and then "appeal to a court of conscience to countenance and enforce such oppressive and inequitable transfers."10 It must, however, be admitted that the authorities so profusely cited in the principal case would seem to establish the rule, unreasonable as it may seem, and that the Missouri ruling is not in accord with the current of authority."— ED. CENT. L. J.

6 Burnett v. Crandall, 63 Mo. 410; See, also, Love v. Fairfield, 13 Mo. 301.

72 Story Eq. Juris., § 1044.

8 Lett v. Morris, 4 Simons, 607.

9 Smith v. Everett, 4 Bro. Ch. 64.

10 Burnett v. Crandall, supra.

11 See, also, on this subject, Kirtland v. Moore (N. J.),

1 Cent. Rep. 466; Supt. Schools v. Heath, 15 N. J. Eq. 22; Shannon v. Hoboken, 37 N. J. Eq. 123, 318.

MUNICIPAL CORPORATION-NEGLIGENCE FOR DANGEROUS CONDITION OF SIDEWALK-KNOWLEDGE OF POLICEMAN

EVIDENCE, PRIVILEGED COMMUNICATION, HOW WAIVED.

CARRINGTON v. CITY OF ST. LOUIS ET AL.

Supreme Court of Missouri, June 7, 1886.

1. Negligence-Dangerous Condition of SidewalkKnowledge of City.-While a city is liable for the negligent use of its property, and the duty and consequent liability to keep its sidewalks in a reasonably safe condition extends to those cases, where the unsafe condition is occasioned by persons other than its agents and officers, yet, before a recovery can be had, it must be shown that the city had notice of the defect, or ought to have known of it, by the exercise of reasonable care and watchfulness.

2.

-Knowledge of Defect-Lapse of Time as an Element - When Question for Jury.—Negligence in not knowing of a defect may be shown by circumstances, including the lapse of time during which the defect existed, and where the injury is occasioned by the plaintiff falling into certain iron trap-doors, covering a cellar-way opening into a building, which are allowed to stand open for four or five hours, and where it appears that the sidewalk in that particular place is much resorted to for travel, it is proper to submit the question of negligence to the jury.

3. Agents and Officers-Policeman in City of St. Louis are--Their Knowledge, Knowledge of City.Under the Act of the general assembly, establishing a board of police commissioners in the city of St. Louis (chap. 6, appendix to vol. 2, R. S. 1879, Mo.), consisting of five members, where four are appointed by the governor of the State, and the mayor of the city is ex officio a member of such board, and where the members of the police force are appointed by such board, who are under its exclusive control, and not subject to interference of the municipal assembly of said city, such police force constitutes a department of the city government, and the policemen are agents or officers of the city, and their knowledge is knowledge of the city. Attwater v. Mayor of, 31 Md. 463, distinguished.

4. Negligence-Liability of City for Negligence of its Officers.-A municipal corporation is not liable for the wrongful and negligent acts of its police, or other officers in the execution of the powers conferred upon the corporation or officers for the public good, and not for private corporate advantage, unless made so by statute law, expressly or by implication.

5. Evidence - Physician and Patient Privileged Communications-How Waived. A statute which provides that a physician and surgeon shall be incompetent to testify as to information acquired from the patient in his professional capacity (R. S. Mo., 1879, § 4017), is for the protection of the patient, and may be, and is waived, by the latter by calling the physician to testify as to information thus acquired.

O. G. Hess, for respondent; and Leverett Bell, for The city, appellant.

BLACK, J., delivered the opinion of the court: The plaintiff, a minor, brought this suit by his next friend to recover damages for injuries sustained by falling against iron-trap-doors in a cellar-way in the city of St. Louis. The doors covered a cellar-way opening into a building used and occupied by the police commissioners as a police station. The defendant Balte, who was a member of the police force, opened the doors, painted them, propped them open with a stick, and left them in that condition to dry. Plaintiff fell upon them and received severe injuries.

It is the duty of the city to keep its streets and sidewalks in a reasonably safe condition for persons traveling thereon with ordinary care and caution. This duty, and a consequent liability, extends to those cases where the obstruction or unsafe condition of the street is brought about by persons other than the agents of the city. Bassett v. St. Joseph, 53 Mo. 298; Russell v. Columbia, 74 Mo. 490. But in such case it devolves upon the plaintiff to show that the city had notice of the defect, or ought to have had knowledge thereof, by the use of reasonable care and watchfulness.

The court told the jury that Balte was not the agent of the city, and that his negligence was not its negligence, and left it to them to determine "whether the dangerous condition of the sidewalk and cellar-way was known to the city, or by the use of ordinary care might have been known to it in time to have the same safe, and thus prevent the injury."

Assuming that the policeman was not the agent of the city, and there is no evidence that any agent knew of the defect, obviously, then, under the principles of the law before stated, and the instruction which is in conformity therewith, the question is: Was there evidence entitling the case to go to the jury on the ground that the defendant should have known of the defect? Negligence in not knowing of the dangerous condition of the doors may be shown by circumstances, including the lapse of time during which the defect existed. Besides, the undisputed facts before stated, the evidence tends to show that the doors were seen open between one and two o'clock in the afternoon, and continued propped open till the boy got hurt, about half-past five o'clock of the same afternoon; that it was dark when the boy fell upon the doors, though the street lamps at that particular place and the gas jets at the station had not been lighted, and that the sidewalks of that particular, place was much resorted to for travel, so much so that scarcely ten seconds of time intervened between the time when persons would pass and repass both day and night. The sidewalk was ten feet wide, and the door extended out from the building into the walk four feet eight inches. The evidence, we hold, fully justified the court in submitting the question to the jury. Much depends upon the surroundings in cases of this character, for what might be negligence in not knowing of a dangerous condition of a sidewalk at one locality in a city would not be at another. The walk was much used and resorted to, and that called for increased care on the part of the city.

But was Balte, the policeman, an agent or officer of the city of St. Louis? If he was not, it is by reason of the various special acts of the general assembly establishing a board of police commissioners within and for the city of St. Louis. (Chapter 6, appendix to vol. 2, R. S. 1879.) By these acts four of the commissioners are appointed by the governor. The mayor of the city is ex-officio a member of the board. The members of the police force are appointed by the commissioners, removed by them, and under their exclusive control, and not subject to the orders of, or interference by, the municipal assembly. The commissioners and the force under them are charged with such duties as are usually imposed upon public officers, and are commanded, among other things, to "protect the rights of persons and property," and to "prevent and remove nuisances on all streets, highways, waters and other places." The commissioners are required to make an estimate annually of the

amount of money necessary to enable them to discharge their duties and to certify the same to the municipal assembly, and that body is required to make an appropriation therefor, and the disbursing officer of the city is to make payment to the commissioners on their requisition. By a subsequent act, passed in 1865 (sections 20 and 22 of said chap. 6), the municipal assembly has power to increase the police force and to increase or diminish and regulate the

amounts.

pay of police upon the recommendation of the commissioners. By a still subsequent act, passed in 1873 (section 23 of chap. 6), the municipal assembly has "power to fix the salaries of the police force," not to exceed certain designated Section 33 of the same compiled laws (Vol. 2., p. 1535, R. S. 1879) is as follows:" "The members of the police force in the city of St. Louis, organized and appointed by the police commissioners of said city, are hereby declared to be officers of the city of St. Louis, under the charter and ordinances thereby, and also to be officers of the State of Missouri, and shall be so deemed and taken to all conrts having jurisdiction of offenses against the laws of the State, or the ordinances of the said city." All private watchmen, detectives, and policemen serving in the city are to obtain a license from the president of the commissioners.

It is plain from the provisions of the law that the police force constitutes a department of the city government. While these officers are State officers for some purposes, they are also city officers. They are none the less city officers because, of reasons deemed best to the legislature, they are under the control of the commissioners, and not the assembly. We see that by express law they are made city officers. No such declarations seem to have been made in the statute with respect to the board of police commissioners of Baltimore, under which the case of Attwater v. The Mayor of, 31 Md. 463, was decided. There it was held the city was not liable for a failure to remove a nuisance from a public stree', because the power to remove the nuisance was lodged in the police and not in the city, and the police officers were held not to be city officers. The difference between the statute there and here is material. But though we must conclude that Balte was an agent of the city, yet it does not follow that the city is liable for all his negligent acts. The rule of law is weil settled, that a municipal corporation is not liable in damages for the wrongful or negligent acts of its police or other officers in the execution of powers conferred upon the corporation or officers for the public good, and not for private corporate advantage, unless made liable by statute law, expressly or by implication. Armstrong v. Brunswick, 79 Mo. 319: Kiley v. City of Kansas, uot yet reported; Dill. Mun. Corp. (3rd ed.) § 975; Nusting v. St. Louis, 44 Mo. 479. But we do not see how these principles of the law can aid the defendant

here, for it is the unquestionable duty of the city to keep its streets and sidewalks in a reasonably safe condition for persons traveling thereon, and it is liable in damages to one injured by reason of negligence in this behalf. Again, the city is liable for the negligent use of its property, the same as a private corporation. Dill. Mun. Corp. (3rd

ed.) § 985.

We

The bill of exceptions in this case recites that it was shown by the defendant that the police station, the buildings, belonged to and was occupied by the board of police commissioners. do not understand by this that the title to the property was in them, or that they could hold the title to real estate. The building was evidently furnished by or at the expense of the city of St. Louis. We conclude that as to the act in question Balte was the officer and agent of the city, and that knowledge of the condition of the trap-doors was notice to, and knowledge thereof, on the part of the city.

The statute which says a physician or surgeon shall be incompetent to testify concerning any information, which he may have acquired from any patient while attending him in a professional character (R. S. 1879, § 4017), does not create an absolute disqualification. The secrecy enjoined upon the physician and surgeon is for the protection of the patient, and may be waived. The patient does waive the privilege by calling the physician as a witness to testify as to information thus acquired. Groll v. Tower (S. C. Mo. not yet reported). There was therefore no error in allowing the surgeon to testify, should he be within the purview of the statute, a question which is not considered. The judgment is affirmed. All concur.

NOTE:-Municipal corporations are recognized as bodies exercising some of the functions of government, and as to such functions it is but proper that they should enjoy the same immunity from liability that the State enjoys. Since the theories of government differ, the interpretation of governmental functions must differ. At the same time a municipal corporation is endowed with powers whose exercise benefits only its citizens, and which are often very profitable to its treasury. As to such powers the municipality is a private corporation, as distinguished from the public at large, and should be subject to the same liabilities as other private corporations. Courts have endeavored to separate the public functions of a municipality from its private powers. Accordingly, it has been held, that, in the absence of a statute to the contrary, there is no liability in a municipality for its negligence or that of its agents. Where the duty to be performed is to be exercised for the benefit of the public generally, in which the municipality has no particular interest, and from which it derives no special benefit in its corporate capacity; also where the law imposes the same duties on all similar corporations, and from which they derive no compensation or benefit in their corporate capacity;2 or where they act in

1 Hayes v. Oshkosh, 33 Wis. 314.

2 Oliver v. Worcester, 102 Mass. 489.

their political, discretionary and legislative authority:3 or when acting in their governmental functions.+ Again, exemption has been asserted, on the ground that liability in such cases would be too onerous.5 On the other hand, municipal corporations have been held liable, because they were acting therein for purposes of private advantage and emolument, though the public may have derived a common benefit;6 or the duties were imposed by their consent, express or implied, or a special authority conferred at their request; or the burden was imposed in consideration of the privileges granted in the charter, while the means to perform the duty were placed at their disposal;8 or the corporation participated in or ratified, or derived a corporate advantage from the wrongful act.9

If the duties exercised are considered to be public, it is immaterial who appoints the officer, since in the discharge of such duties he is exercising the functions of the government, and cannot be considered as the agent of the municipality.10

Accordingly, they are exempted from all liability for the acts of their health officers and of all the employees thereof, or for any injury accruing from any of its agencies, similarly relative to the fire department; 12 also relative to the police department in the preservation of order. 13 They are also charged with the care and preservation of their streets, but in accordance with the distinctions drawn above, they should be exempt from all liability relative thereto, and some courts consistently so hold,14 but the authorities have so overwhelmingly adopted the other view that it may be considered to be the rule.15

Since all corporations must and can act only through agents, they should only be held liable for the negligence of such agents. If any one is injured by an obstruction placed in the streets by an officer of the city, or by one authorized by it to act in the matter, it is liable without notice to it; 16 otherwise the city must have been notified of the existence of the nuisance and have had time to remove it. Actual notice is not necessary, when it is proved that the nuisance has existed so long that the city would have known it, if it

3 Richmond v. Long, 17 Grat. 375.

4 Ogg v. City of Lansing, 35 Iowa, 495.

5 Wilcox v. Chicago, 107 Ill. 334; Jewett v. New Haven, 38 Conn. 368.

6 Bailey v. Mayor of New York, 3 Hill (N. Y.), 531; City of Navasota v. Pearce, 46 Tex. 525; Pittsburg v. Greer, 22 Pa. St. 54; Fennimore v. City of New Orleans, 20 La. An. 124.

7 Bigelow v. Inhab. of Randolph, 14 Gray, 541.

8 Weightman v. Corp. of Washington, 66 U. S. 39; Eastman v. Meredith, 36 N. H. 284.

9 Bryant v. City of St. Paul, 33 Minn. 289.

10 Maximilian v. Mayor, 62 N. Y. 160; Fisher v. Boston, 104 Mass. 87; City of Richmond v. Long, 17 Grat. 375; Ogg v. City of Lansing, supra.

11 Grube v. City of St. Paul, 33 Minn. 289; Maximilian v. Mayor, 62 N. Y. 160; Condict v. Mayor, 46 N. J. Law., 157. 12 Fisher v. Boston, supra; Howard v. San Francisco, 51 Cal. 52; Welsh v. Village of Rutland, 56 Vt. 228; Hafford v. City of New Bedford, 16 Gray, 297; Jewett v. New Haven, 38 Conn. 368.

13 Dill. Mun. Corp., § 975; Elliott v. Philadelphia, 75 Pa. St. 347; Campbell v. City, 53 Ala. 527; Caldwell v. Boone, 51 Iowa, 687.

14 City of Detroit v. Blackeby, 21 Mich. 84; Pray v. Mayor, 32 N. J. Law, 394; City of Navasota v. Pearce, 46 Tex. 525.

15 Billings v. Worcester, 102 Mass. 329; Barnes v. Dist. of Col., 91 U. S. 551; Kobs v. Minneapolis, 22 Minn. 159. 16 Russell v. Town of Columbia, 74 Mo. 480.

had exercised reasonable care in the supervision of its streets.17

There is no rule of law as to the length of time that the nuisance must have existed. It is a matter for the jury.18 If, however, it has existed long enough to have become notorious, the city is presumed to have received notice thereof.19

The municipality is exempt from liability for its plan of street improvement, on the ground that its action is somewhat discretionary and judicial,20 unless such plan is most glaringly dangerous and likely to produce injury. In case of doubt, the benefit thereof is given to the municipality.21 But for negligence of its agents in executing such plan it is liable. But to hold such corporations liable, the negligent parties must be their agents. 'Since the legislature has full control of such corporations, such agents may be appointed in any way the law provides, either by the municipality or by any other power.22

Though these parties may exercise powers usually exercised by the municipality, they are not agents thereof, unless the law makes them so.25 Such a corporation is not liable for the negligences of one of its officers relative to duties specifically imposed by statute or such officer,24 nor for negligences of its officers relative to duties imposed upon them by law not relating to such municipality.25

It is well settled, that a municipality is liable for the negligent use of its own property, to the same extent as any other corporation or individual.26

Municipal corporations have often been relieved from all liability for acts of their officers, because such acts were beyond their corporate powers, were ultra vires, yet, when such acts were fairly within their discretionary powers, or did not antagonize public duties and were expected to be profitable, the municipalities have been held liable therefor.27

The courts do not harmonize on these subjects, and the only logical course seems to be to hold municipalities liable for all misfeasances and malfeasances, but not non-feasances, of all their authorized agents, and as legislation tends constantly more and more to the protection of the individual, rather than to that of the public, it is probable that such will be the result.

S. S. MERRILL.

17 McLaughlin v. City of Corry, 77 Pa. St. 109; Dooley v. City of Meriden, 44 Conn. 117.

18 Sheel v. City of Appleton, 49 Wis. 125; Colley v. Inhab. of Westbrook, 57 Me. 181.

19 City of Lincoln v. Woodward, 27 N. W. Rep. 110; Kelleher v. City of Keokuk, 60 Iowa, 473; Goodnough v. City of Oshkosh, 29 Wis. 549; Requa v. City of Rochester, 45 N. Y. 129.

20 Urquhart v. City of Ogdensburg, 91 N. Y. 67; Dill. Mun. Corp., §§ 494, 1051; City of Lansing v. Trolan, 37 Mich. 152; Child v. City of Boston, 4 Allen, 41.

21 2 Thomp. Neg., 731, et seq.; Gould v. City of Topeka, 4 Pac. Rep. 822.

22 Bryant v. City of St. Paul, supra; Barnes v. Dist. of Col., supra.

23 County Comms. v. Duckett, 20 Md. 468.

24 Martin v. Mayor, 1 Hill (N. Y.) 545; Lorillard v. Town of Monroe, 11 N. Y. 392.

25 Hickox v. Village of Plattsburgh, 15 Barb. 427.

26 Bryant v. City of St. Paul, supra; Torney v. Mayor, 12 Hun, 546; City of Toledo v. Cone, 41 Ohio St. 149; Rochester W. L. Co. v. City of Rochester, 3 N. Y. 463; Eastman v. Meredith, 36 N. H. 284.

27 Toledo v. Cone, supra; Moulton v. Scarboro, 71 Me. 267; City of St. Louis v. Steamboat Maggie P., 25 Fed. Rep. 202.

1. ACTION-Survival — Ejectment. The action of ejectment does not survive at common law, or under the Wisconsin statutes, against the heirs of a deceased defendant, and an order reviving such an action cannot be sustained, in whole or in part, on the ground that one of the heirs purchased the land in controversy before the death of the original defendant, or because a claim for mesne profits is made by plaintiff, and one for money paid out for taxes and improvements by defendant. Farrall v. Shea, S. C. Wis., Oct. 12, 1886; 29 N. W. Rep. 634.

2. ASSIGNMENT FOR BENEFIT OF CREDITORS— Sale-Mortgage. During the absence of the plaintiff from home, his son, who was a minor, sold a printing-press, and took the mortgage and notes securing the future payments in his own name. The son promised to transfer the notes and mortgage to the plaintiff, but neglected so to do. Subsequently a firm, of which the son was a member, failed, and they made an assignment for creditors' benefit. The assignee seized the printingpress, and foreclosed the mortgage, default having been made in its terms. The plaintiff brought suit to recover the press, and for the reformation of the notes and mortgage. Held, that he was entitled to the relief prayed for. Wait v. Axford, S. C. Mich., Oct. 21, 1886; 29 N. W. Rep. 693.

3. CARRIERS-Ejectment of Passenger from TrainDuty of Passenger-Trial-Promise to ChargeDamages-Ejectment from Train-Eight Thousand Dollars not Excessive-Trial-Judge's Remark to Jury-Reference to Former Case-Appeal -Objections, when Raised-Language Used in Arqument-Motion for New Trial-Charge-Request for Special Rulings Necessary-Assumption Contrary to Testimony.-A lady passenger who is on a wrong train by the fault of defendant's agent, and who is put off at night at a lonely place, from where she walks back to the next station, being afraid to remain there, is not precluded from recovering damages for injuries received and fright suffered in walking back to the station, by the fact that she was unwilling either to pay fare for being carried further on the train, or to remain at the place where she was put off until the arrival of a return train. A party is not entitled to rely on the promise of the judge to charge a principle of law, instead of framing a special charge himself, and asking the judge to submit it to the jury. A verdiet for $8,000 for damages for personal injuries received, and fright and mental anguish suffered, by a lady passenger, who, with two infant children, was put off from defendant's train on a dark night

4.

at a lonely place, not a regular station, and, being afraid to seek shelter there among negroes, walked back several miles to a station, through swamps and over a high railroad bridge, and was obliged to engage for a guide a negro, who insulted her, held, not excessive. See 64 Tex. 536. Judgment will not be reversed on account of a remark of the judge to the jury, that all questions raised by the demurrer have been settled by the supreme court in a companion case, where the pleadings were substantially the same as in the case on trial, such being the fact. Objections to the language used by opposing counsel in argument, must be presented by motion for a new trial in the trial court, and cannot be availed of for the first time on appeal. A charge which, as far as it goes, gives the law, is not objectionable upon the ground of not setting forth with sufficient fullness the conditions under which the verdict should be for defendant, or upon the ground of not entering sufficiently into the particulars which distinguish remote from proximate causes, if special charges are not asked for upon these matters. A railroad company, defendant in an action for damages for putting plaintiff off a train, is not entitled to have the judge charge that, if plaintiff was a trespasser, and refused to pay fare, she could be put off at any station, if plaintiff's uncontradicted testimony shows that she was on the train by an innocent and natural mistake. International, etc. Co. v. Smith, S. C. Tex., Oct. 19, 1886; 1 S. W. Rep. 565.

Goods Destroyed in Transit Loss Caused by Owner's Act-Agreement that Owner Should Care for Goods-Code Iowa, § 1308-Constitutional Law-Commerce-Iowa Statute Prohibiting Carriers from Limiting Their Liability. A railroad company is not liable for the injury or destruction of property in the course of transportation, when the injury is occasioned by the owner's own act; and whether the act of the owner which caused the injury amounted to negligence or not is immaterial. Where the owner, by agreement with the carrier, undertook to care for the property in the course of transportation, and the property was destroyed through the act of the owner, the carrier is not liable for the loss, although the agreement between the owner and carrier may have been in violation of section 1308, Code Iowa, providing that "no contract, receipt, rule or regulation shall exempt any corporation engaged in transportation of persons or property by railway from liability of common carrier." A statute of Iowa prohibiting corporations engaged in transporting goods or passengers between different States from limiting their liability as common carriers, by contract, is not a regulation of commerce among the States. Hart v. Chicago, etc. Co., S. C. Iowa, Oct. 11, 1886; 29 N. W. Rep. 597.

--

5. -Of Passengers-Passenger Thrown from Railroad Car by Other Passengers-Judgment— Non Obstante Generel Verdict Opposed to Special Findings.-A railway company is not liable for the death of a passenger where he was killed by being thrown from a platform car by othe passengers, and there was nothing in the conduct of such passengers at the time the train left the last station from which the company could reasonably anticipate that an assault would be committed on the deceased by reason of furnishing such a car for transportation. A judgment non obstante veredicto should be granted where the

general verdict is in conflict with the special findings. Felton v. Chicago, etc. Co., S. C. Iowa, Oct. 14, 1886; 29 N. W. Rep. 618. 6. COMMERCIAL LAW-Promissory Note-Construction-Estoppel-Prior Suit Against Corporation.-A promissory note, reciting "we" promise to pay, and signed, "D. P. Livermore, Treas. Hallowell Gas-light Co.," is the note of the individual, and not of the corporation. In an action on a note, the fact that the plaintiff had previously brought suit against a corporation as maker on the same note, and obtained a default, but not a judgment, will not estop him from maintaining the action if the defendant was not induced to change his position thereby, to his injury. McClure v. Livermore, S. C. Me., Oct. 1, 1886; 6 Atl. Rep. 11. 7. CONSTITUTIONAL LAW-Regulation of Com- Foreign Corporation License - Act June 7, 1879-Railroads-Through Transportation-Interstate Commerce.-A foreign corporation is subject to payment of the license fee imposed in the sixteenth section of the act of June 7, 1879, for the privilege of having an office in this State. Such a license fee is not a tax upon either the business or property of corporations, and is not, as such, regulation of commerce within the prohibition of the federal constitution. Through transportation carried on in this State by virtue of contract with connecting railroad companies is not interstate commerce, in the sense in which the commercial clause of the federal constitution is to be interpreted, when its immunity is invoked by a body or persons so engaged. Norfolk, etc. Co. v. Commonwealth, S. C. Penn., Oct. 4, 1886; 6 Atl. Rep. 45.

merce

8. CONTRACT-Voidable-Incapacity---Intoxication -Voluntary-Public Sale-Real Estate-Bid.A contract made by a person so destitute of reason as not to know the consequences of his contract, though his incompetency be produced by intoxication, is voidable, and may be avoided by himself though the intoxication was voluntary, and not procured by the circumvention of the other party. A made a bid at a public sale of a piece of real estate, and shortly thereafter signed a contract, and paid earnest money on account. It was proved that, at the time the contract was signed, he was so intoxicated that he did not know what he was doing. He afterwards brought suit to recover his earnest money. Held, that his intoxication made the contract voidable, and that he was entitled to recover. Bush v. Breinig, S. C. Penn., Oct. 4. 1886; 6 Atl. Rep. 86.

9. CORPORATIONS.-Municipal Corporations-Contracts-Ultra Vires-City Charters-Power of Common Council to Supply Water.-A city charter gave its common council power to provide by ordinance "for a supply of water for said city." A contract was made by virtue of an ordinance passed for the purpose. Held, to be enforceable, and not ultra vires. A provision in a city's charter that "money shall be raised, from year to year, for defraying the supplying the said city with water," does not prevent a contract being made for a term of years. When the legislature confers upon a common council, in an unqualiffed form, the power to provide the city with a supply of water, the court has no competency to circumscribe such a grant. Atlantic City Water Works v. Atlantic City, S. C. N. J., Oct. 20, 1886; 6 Atl. Rep. 24.