payment of the notes; so that it is impossible to foreclose this mortgage and order a sale and application of the money without an adjudication by the court of the amount due on the notes.

No action can be maintained upon the notes themselves.

Jackson v. Sackett, 7 Wend. 94. The mortgage has no life independently of the debt it is given to secure. The discharge of the debt discharges the mortgage. Aymar v. Bill, 5 Johns. Ch. 570, 1 L. ed. 1178; Jackson v. Willard, 4 Johns. 41; Ross v. 1erry, 63 N. Y. 613; Kellogg v. Smith, 26 N. Y. 18.

Where the mortgage is given to secure the bond, the nonproduction of the bond will prevent a foreclosure of the mortgage.

Bergen v. Urbahn, 83 N. Y. 50.

A transfer of the debt draws with it the mortgage. A transfer of the mortgage without a transfer of the debt is a nullity and carries nothing.

When the debt, to secure which the mortgage was given, is barred, an action upon the mortgage is also barred.

Kyger v. Ryley, 2 Neb. 20; Peters v. Dunnells, 5 Neb. 460; Hurley v. Estes, 6 Neb. 386; Henry v. Confidence, G. & S. Min. Co. 1 Nev. 619; Chick v. Willetts, 2 Kan. 385; Schmucker v. Sibert, 18 Kan. 104; Gower v. Winchester, 33 Iowa, 303; Burton v. Hintrager, 18 Iowa, 348; Sangster v. Love, 11 Iowa, 580; Crow v. Vance, 4 Iowa, 434; Green v. Turner, 38 Iowa, 112; Newman v. DeLorimer, 19 Iowa, 244; Clinton County v. Cox, 37 Iowa: 570; Harris v. Mills, 28 Ill. 44; Hagan v. Parsons, 67 Ill. 170; Brown v. Devine, 61 Ill. 260; Pollock v. Marson, 41 Ill. 517; Sutton v. Sutton, L. R. 22 Ch. Div. 511; Fearnside v. Flint, L. R. 22 Ch. Div. 579. Mr. Frederick L. Manning, for respondent:

The provisions of the Statute of Limitations, making a lapse of six years a bar, in such a case, is in terms confined to an action at law on the note, and does not operate to defeat the remedy on the mortgage by which a court of

Merritt v. Bartholick, 36 N. Y. 44. Accessorium non ducit sed sequitur suum equity cuts off the equity of redemption. principale.

Broom, Legal Maxims, 369.

Where law and equity have concurrent jurisdiction a claim barred at law is also barred in equity.

Re Neilley, 95 N. Y. 382; Butler v. Johnson, 111 N. Y. 204; Bonney v. Stoughton, 11 West. Rep. 703, 122 Ill. 536; Cartwright v. McGown, 10 West. Rep. 589, 121 Ill. 388; Hendrickson v. Hendrickson, 8 Cent. Rep. 309, 42 N. J. Eq. 657; Hatch v. St. Joseph, 68 Mich. 220; Hollister v. York, 4 New Eng. Rep. 365, 59 Vt. 1; Humphrey v. Carpenter, 39 Minn, 115; Godden v. Kimmell, 99 U. S. 201, 25 L. ed. 431; Lewis v. Marshall, 30 U. S. 5 Pet. 470, 8 L. ed. 195; Coulson v. Walton, 34 U. S. 9 Pet. 62, 9 L. ed. 51; Bank of United States v. Daniel, 37 U. S. 12 Pet. 32, 9 L. ed. 989; Badger v. Badger, 69 U. S. 2 Wall. 87, 17 L. ed. 836; New Albany v. Burke, 78 U. S. 11 Wall. 96, 20 L. ed. 155; First Nat. Bank of Alexandria v. Turnbull, 83 U. S. 16 Wall. 190, 21 L. ed. 296.

When a party has claim which he can sue in an action at law, or, at his option, could at the same time bring his action in equity to recover the same debt and avail himself of the benefit of some lien or security for the pay ment of the debt, it is a case of concurrent jurisdiction of law and equity within the above rule, and the equitable relief is limited to the legal limitation of six years.

Jackson v. Sackett, 7 Wend. 94; Butler v. Johnson, 111 N. Y. 204; Borst v. Corey, 15 N. Y. 505; Duty v. Graham, 12 Tex. 427, 62 Am. Dec. 534; Goldfrank v. Young, 64 Tex. 432; Eborn v. Cannon, 32 Tex. 231; Ervell v. Daggs, 108 U. S. 143, 27 L. ed. 682.

Foreclosure will not be decreed when the mortgage debt is barred by limitation.

Booth v. Hoskins, 75 Čal. 271; McCracken County v. Mercantile Trust Co. 84 Ky. 344; Crawford v. Hazelrigg, 2 L. R. A. 139, 117 Ind. 63: McMillan v. McCormick, 4 West. Rep. 210, 117 Ill. 79; Schifferstein v. Allison, 12 West. Rep. 847, 123 Ill. 662; Bridges v. Blake, 4 West. Rep. 486, 106 Ind. 332; Van Eaton v. Napier, 63 Miss. 222; Chase v. Cartwright, 53 Ark. 358.

Pratt v. Huggins, 29 Barb. 277; Gillette v. Smith, 18 Hun, 10; Kincaid v. Richardson, 9 Abb. N. C. 319; Re Latz, 33 Hun, 622.

Earl, J., delivered the opinion of the court:

The sole question for our determination is whether the mortgage continued to be a subsisting lien, and could be foreclosed after an action at law upon the notes was barred by the Statute of Limitations. This is an interesting question, which has given rise to considerable discussion in the courts of this country and Englaud. We do not, however, deem it difficult of solution. The Statute of Limitations does not, after the prescribed period. destroy, discharge, or pay the debt, but it simply bars a remedy thereon. The debt and the obligation to pay the same remain, and the arbitrary bar of the statute alone stands in the way of the creditor seeking to compel payment. The Legislature could repeal the Statute of Limitations, and then the payment of a debt, upon which the right of action was barred at the time of the repeal, could be enforced by action, and the constitutional rights of the debtor are not invaded by such legislation. It was so held in Campbell v. Holt, 115 U. S. 620, 29 L. ed. 483. It was held in Johnson v. Albany & S. R. Co., 54 N. Y. 416, that the Statute of Limitations acts only upon the remedy; that it does not impair the obligation of a contract, or pay a debt, or produce a presumption of payment, but that it is merely a statutory bar to a recovery; and so it was held in Quantock v. England, 5 Burr. 2628, and so it has ever since been held in the English courts. These notes were therefore not paid, and so the referee found. The condition of the mortgage has therefore not been complied with. The notes being valid in their inception, the only answer to the foreclosure of the mortgage is payment. The mortgage was given to secure payment of the notes, and until they are paid the mortgage is a subsisting security, and can be foreclosed. The mortgage, being under seal, can be foreclosed by action at any time within twenty years. Code, § 381. It is only an ac

tion upon the notes that is barred after six years. Id. 382.

garded, in effect, as a mortgage, could be enforced after the Statute of Limitations would It is a general rule, recognized in this coun- have barred a common-law action against the try and in England, that when the security for person liable to pay the same, for the recovery a debt is a lien on property, personal or real, thereof. In Morey v. Farmers L. & T. Co.,14 the lien is not impaired because the remedy at N. Y. 302, an action by the vendee for specific law for the recovery of the debt is barred. performance of a contract nder seal to convey The subject has several times been under con- land on payment of the purchase money, it sideration in the courts of this State. In was held that the presumption arising from the Jackson v. Sackett, 7 Wend. 94, ejectment was lapse of twenty years after the money became brought on a mortgage executed as collateral due was not sufficient evidence of payment to security for the payment of a sum of money entitle the plaintiff to the relief demanded. secured to be paid by a note. The note To the same effect is Lawrence v. Ball, in the had been past due more than twenty years same volume, at page 477. In Borst v. Corey, when the action was commenced. Upon 15 N. Y. 505, it was held that an action to enthe trial it was the contention of the defend force the equitable lien for the purchase money ant's counsel that from the lapse of time of land was barred by the lapse of six years the note must be presumed to have been paid, after the debt_accrued. The reasoning by and on that ground the court nonsuited the which the result was reached in that case is not plaintiff. The supreme court, upon review, altogether satisfactory, and yet that decision held that the evidence as to payment ought to is not in conflict with the views we now enterhave been submitted to the jury, and nothing tain. The judge there writing the opinion else was decided. It was in fact held that pay- said: "The equitable lien [for the purchase ment of the note was the only defense to the money] is neither created nor evidenced by deed action, but the judge writing the opinion ex- but arises by operation of law, and is of no ressed what must now be conceded to be er- higher nature than the debt which it secures. roneous views as to the presumption of pay. He distinguished that case from one like this, ment furnished by the Statute of Limitations. as follows: "It has, however, been held that, He appeared to be of opinion that after six when a mortgage was given to secure the payyears there was a statutory presumption of ment of a simple contract debt, the statute limpayment-not a presumption of law, but a pre-iting the time for commencing actions for the sumption of fact, from which, with other evi- recovery of such debt was no bar to an action dence, the jury might infer payment. In Heyer to enforce the mortgage;" and he cited. among v. Pruyn, 7 Paige, 465, 4 L. ed. 232, the chancellor said that the intimation of an opiner: ion by Mr. Justice Sutherland in Jackson v. Sackett, "that a mortgage to secure a simple contract debt was presumed to be paid in six years, because the Statute of Limitations might at the expiration of that time be pleaded to a suit on the note, certainly cannot be law." The case of Pratt v. Huggins, 29 Barb. 277, is quite like this. That was an action to foreclose a mortgage given to secure the payment of $250 for which the mortgagee at the same time took the mortgagor's promissory note. The note and mortgage were dated February 5, 1835, and were payable February 1, 1836. The action was commenced September 6,1855. Upon the trial the defendant claimed that the plaintiff could not maintain the action, because an action upon the note was barred by the Statute of Limitations; and so the trial judge held, and gave judgment for the defendant. The plaintiff appealed to the general term, and there, after much discussion and consideratior, the judgment was reversed, the court holding that a debt secured by a sealed mortgage and an unsealed note may be enforced by a foreclosure of the mortgage after the expiration of six, but before the expiration of twenty, years from the time when the debt became due; that the lapse of six years is not conclusive evidence that the mortgage has been paid; and that the provision of the Statute of Limitations making the lapse of six years a bar, in such a case, is in terms confined to an action upon the note, and does not operate to defeat a remedy on the mortgage. There, as here, there was no covenant to pay in the mortgage, and the mortgage was collateral to the note. In New York v. Colgate, 12 N. Y. 140, it was held that the lien of an assessment, which was to be re

other cases, Heyer v. Pruyn. He said furth"There is a material distinction between a mortgage and the equitable lien for the purchase price of land given by law, and also between an action to foreclose a mortgage and one to enforce a lien. The action to foreclose a mortgage is brought upon an instrument under seal, which acknowledges the existence of the debt to secure which the mortgage is given; and by reason of the seal the debt is not presumed to have been paid until the expiration of twenty years after it became due and payable."

In Johnson v. Albany & S. R. Co.,supra, the action was to compel defendant to issue its certificate for stock subscribed for after an action to compel the subscribers to pay for the stock had been defeated on the ground that the action was barred by the Statute of Limitations; and it was held that the plaintiff, notwithstanding the statutory bar, could recover only upon proof of actual payment. In Lewis v. Hawkins, 90 U. S. 23 Wall. 119, 23 L. ed. 113, Mr. Justice Swayne, writing the opinion, recognizes the rule above stated as follows: "That the remedy upon the bond, note or simple contract for the purchase money is barred in cases like this, in no wise affects the right to proceed in equity against the land." Hardin v. Boyd, 113 U. §. 756, 28 L. ed. 1141, was a bill in equity to set aside a conveyance of lands, or in the alternative for payment of the purchase money, and to make it a lien on the lands; and it was held that, although the debt for unpaid purchase money was barred by limitation under the local law, the lien therefore on the land was not barred. In Coldcleugh v. Johnson, 34 Ark. 312, the supreme court said: "The debt itself would appear to be barred in 1872, and no action could be

brought at law. But the bar of the debt does | gage security was collateral had become barred not necessarily preclude a mortgagee or vendee by the Statute of Limitations. In Belknap v. retaining the legal title from proceeding in rem Gleason, 11 Conn. 160, it was held that the in a court of equity to enforce his specific lien Statutes of Limitations, being statutes of repose, upon the land itself." The case of Thayer v. suspend the remedy, but do not cancel the Mann, 19 Pick. 535, is precisely in point. debt; that, though such statutes are equally There, in the case of a mortgage of real estate available as a defense at law and in equity, to secure the payment of a promissory note, it yet where there are two securities for the same was held that, although the note was barred by debt, one of which is barred by the statute and the Statute of Limitations, yet, because it had the other not, the creditor notwithstanding he not been paid, the mortgagee had his remedy has lost his remedy at law on the former, may upon the mortgage. In Hancock v. Franklin pursue it in equity on the latter; and that Ins. Co., 114 Mass. 155, there was a pledge of where the security for a debt is a lien on propproperty to secure a note, and it was held that erty, personal or real, that lien is not impaired the pledgeor might avail himself of the Statute because the debt is barred by such statute. In of Limitations as a defense to a suit upon the the case of Ballou v. Taylor, 14 R. I. 277, it note, but that the statute affected merely the was held that the remedy on a mortgage is not remedy on the note, and did not defeat the lost because a personal action on the mortgage lien of the pledgee upon the property pledged. note is barred by the Statute of Limitations. In Hannan v. Hannan, 123 Mass. 441, in an In Spears v. Hartly, 3 Esp. 81, Lord Eldon action to foreclose a mortgage given to secure held that a wharfinger who had a lien upon a a note, it was held that the question, in such a log of mahogany could hold the log until his case, whether anything is due upon the note, demand was satisfied, although the demand must be conducted in nearly the same way, was barred by the Statute of Limitations; and and depended mainly upon the same evidence, Higgins v. Scott, 2 Barn. & Ad. 413, is to the as if the note were in suit, and that in such an same effect. action the defendant may show the same mat ters in defense against the mortgage, except only the Statute of Limitations, that he could against the note. In Shaw v. Silloway, 145 Mass. 503, 5 New Eng. Rep. 466, it was said: "If there is an actual pledge, and the debt becomes barred, this does not give to the debtor a right to reclaim the pledged property. The debt is not extinguished; the statute only takes away the remedy. In case of an ordinary mortgage of real or personal property the security is not lost though the debt be barred." In Joy v. Adams, 26 Me. 330, it was held that the mortgagor could not defeat the right of the mortgagee to foreclose his mortgage by show ing merely that the notes to which the mort

We could go much further in these citations. But we have gone far enough to show that the rule applicable to a case like this is based both upon principle and abundant authority, as we have above stated it. There are cases in some of the States of this country which lay down a different rule, but those cases generally depend upon some local statutes, or are to be found in States where it is held that the Statute of Limitations not only bars the remedy, but destroys and annihilates the debt, by the presumption that it has been paid or discharged.

There are no other questions which need examination. Our conclusion, therefore, is that the judgment should be affirmed, with costs. All concur, except Finch, J., absent.

(November 5, 1891.)

WRITS of certiorari to review certain pro

*1. A promise made by a citizen to pay W ceedings under an ordinance of the City

a part of the expense of opening *Head notes by REED, J.

NOTE.-Bribery by gift to public.

a

A gift or donation to the public as a consideration for the location of public buildings at a certain place or for the making of a public improvement is not bribery or contrary to public policy. A donation to secure the location of a county seat has been upheld in many cases, among which are Lucas County Comrs. v Hunt, 5 Ohio St. 488, 67

of Orange relative to the opening of a street,

Am. Dec. 303; Seebold v. Shitler, 34 Pa. 133; Police
Jury v. Reeves, 6 Mart. (La.) N. S. 221; Harris v.
Shaw, 13 Ill. 456; Adams v. Logan County, 11 Ill.
336; Twiford v. Alamakee County, 4 G. Greene, 60.

Contributions in land and money to be used for county purposes in consideration of the location of the county seat do not amount to bribery. Dishon v. Smith, 10 Iowa, 212; State v. Elting, 29 Kan. 397.

1891.

STATE OF NEW JERSEY V. MAYOR Of Orange.

and to inquire into the validity of such ordi

nance.

Ordinance set aside.

The case sufficiently appears in the opinion. Argued before Depue, Dixon and Reed, JJ. Messrs. Colie & Titsworth and Bedle, Muirheid, McGee & Bedle, for prose

cutors:

If the Legislature has declared the use or purposes to be a public one, its judgment will be respected by the courts, unless the use be palpably private or the necessity for taking, plainly without reasonable foundation.

2 Dillon, Mun. Corp. 4th ed. § 600, note 2. The judgment of a court or commissioners in the exercise of the right of eminent domain must not be determined by donations of land, release from damages, or the fact that the damages are to be paid by anybody else.

Dudley v. Cilley, 5 N. H. 558; Dudley v. Butler, 10 N. H. 281; Gurnsey v. Edwards, 26 N. H. 224; Smith v. Conway, 17 N. H. 586.

The only people substantially benefited by this improvement will be Mr. Barber and Mr. Matthews, and that this is so is made more apparent by the fact that Mr. Barber induced the common council to pass this ordinance after it had been killed, and to repass it after it had been vetoed by an offer of $1,000 towards the expense.

The court cannot say that it is reasonable, without compensation, for that is what it will amount to in case of the railroads, seeing that their largest damage will be increased operating expenses and increased danger to employés, passengers and rolling-stock, for the common council to require them to risk the lives of employés and passengers and to be at the expense of several hundred dollars a year additional charge for watchmen and gates, for the accommodation of two men.

An offer to reimburse a county in whole or in part for the expense of the removal of a county seat, made to induce the removal, is not against public policy. Beham v. Ghio, 75 Tex. 87; Hawes v. Miller, 56 Iowa, 395.

An offer of grounds and buildings, as an inducement to voters for a change of a county seat is not bribery. Hall v. Marshall, 80 Ky. 552.

The Legislature may make a donation an express condition of the removal of a county seat. State v. Portage County Suprs. 24 Wis. 49; People v. St. Clair County, 15 Mich. 85; Calaveras County v. Brockway, 30 Cal. 325; Newton v. Mahoning County Comrs. 26 Ohio St. 618; Odineal v. Barry, 24 Miss. 9.

A note given as a donation to prevent the removal of a court-house is valid. Odineal v. Barry, supra.

An offer to pay money into the county treasury in consideration of the removal of a country courthouse back to a public square from which it had been moved is not void. Stilson v. Lawrence County Comrs. 52 Ind. 213.

A written promise to pay money to the State in consideration of the location of a state reform school at a certain town is not against public policy. State v. Johnson, 52 Ind. 197.

For street improvements.

An agreement of property owners to pay the expense of curbing a row of trees in a street if the city would let them stand and protect them by curbing is not illegal. Springfield v. Harris, 107 Mass. 532.

Coster v. Tide-Water Co. 18 N. J. Eq. 62;
Hoagland v. Wurts, 41 N. J. L. 178; State v.
East Orange, 41 N. J. L. 133, 134; State v.
Jersey City, 37 N. J. L. 351; State v. Jersey
City, 34 N. J. L. 431; Kip v. Paterson, 26 N.
J. L. 298.

Mr. Charles F. Lighthipe for defend-
ants.

Reed, J., delivered the opinion of the
court:

The objection most strenuously pressed
against this ordinance is that its passage was
It is first insisted that
not a legitimate exercise of the power to take
land for public use.
the land of the prosecutor is not taken for the
terests of private individuals. It is secondly
benefit of the public, but to subserve the in-
insisted that the judgment of the body which
street should be laid across the land of the
was to decide upon the question whether the
prosecutor was improperly influenced by an
offer of private persons to pay a portion of the
expense of the improvement.

In respect to the first of these points it is
We have no power
observable that it is no part of our functions
to decide whether the scheme adopted in this
to try the question whether the advantages
instance was a wise one.
that would accrue to the public by reason of
this improvement would be greater or less than
the burden which it would impose; nor whether
the degree of public benefit is so small that it
These questions have been
does not justify the taking of land against the
will of its owner.
confided by the Legislature to the common
council. If it should appear that there could
not inure to the public any advantage what-
the benefit of private individuals, the court
ever, and that the scheme is designed solely for

out a street is not against public policy. Townsend v. Hoyle, 20 Conn. 1.

An offer to give such portion of one's land as is der the decision to widen it invalid. Crocket v. needed for the widening of a street does not renBoston, 5 Cush. 182.

The validity of such an arrangement is assumed also in Bell v. Boston, 101 Mass. 506.

A bond given by individuals undertaking to grade a street if the city would let a contract for paving it is not invalid as amounting to bribery. Ford v. North Des Moines, 80 Iowa, 626.

A bond from individuals guaranteeing the concommissioners of one town should establish the tinuance of a proposed road in another town if the road to the town line is not against public policy. Freetown v. Bristol County Comrs. 9 Pick. 46.

A vote to accept a road provided the expenses do not exceed a certain sum cannot be held invalid on the ground that there was an expectation, or even a stipulation, that a portion of the exJones v. Andover, 9 Pick. 145. pense would be paid by interested individuals.

The location of a town-way in Massachusetts is not rendered invalid by a subscription of a portion the inhabitants of the town before the way was apof the costs by individuals which was known to proved. Copeland v. Packard, 16 Pick. 217.

This case was distinguished, on the ground that it was a town-way for the use of the town only or of one or more individuals thereof and the damages for which are chargeable to the town or percases of Com. v. Sawin, 2 Pick. 547, and Com. v. sons benefited and not a highway, from earlier Payment by abutters of the damages for laying | Cambridge, 7 Mass. 166, in which the location of a

could interpose in favor of the landowner, whose property is menaced. But when it is perceived that there is a degree of public benefit likely to spring out of the enterprise, all questions of policy in executing it are devolved upon the common council.

To employ the language of the chief justice in the case of Tide - Water Co. v. Coster, 18 N. J. Eq. 518: "If the public interest be involved in any substantial extent, and if the project contemplated can in any fair sense be said to be promotive of the welfare or convenience of the community, the legislative adoption of such project is a determination of the question from which there is no appeal.' This rule is true whether the scheme is adopted by the Legislature directly or by a municipal body by virtue of a delegated authority. Dillon, Mun. Corp, § 95.

The next proposition involves the effect of an offer made by one or more private individ uals to pay a portion of the expense of laying out the street. This offer was made by a Mr. Barber, whose property will obviously be much benefited by the opening of the new street. He appeared before the common council, and stated that he would give $1,000 above his assessment for special benefits. It is contended that this offer to contribute to the expenses of the improvement was calculated to influence the judgment of the common council in its determination whether the street should or should not be opened. It is further insisted that this "influence is inimical to a sound rule of public policy. There is a line of cases decided by the courts of the State of New Hampshire in which this view seems to receive support. Dudley v. Cilley, 5 N. H. 558; Dudley v. Butler, 10 N. H. 281; Smith v. Conway, 17 N. H. 586; Gurnsey v. Edwards, 26 N. H. 224. Chief Justice Parsons, in the early case of Com. v. Cambridge, 7 Mass. 158, seems also to have entertained a similar view. A different view is taken concerning the effect of such an offer in other cases. Patridge v. Ballard, 2 Me. 50; Crocket v. Boston, 5 Cush. 182. The opinion of Chief Justice Shaw in Copeland v. Packard, 16 Pick. 217, is in the same direction as the doctrine announced in the last-named cases. Then there are a number of cases holding that gifts of land or subscriptions of money for the location of public buildings in a certain place are not inimical to public policy. These cases are collected in the opinion in Pepin Co. v. Prindle, 61 Wis. 301–311.

It is evident that the street now under consideration is calculated to enhance the convenience of a large portion of the public of Orange. The evidence taken in the cause shows the location of the already existing streets, the relative populousness of the neighboring dis tricts, and the conveniences of passage from one point of the neighborhood to another. This, together with the opinions of a number of citizens, displays unmistakably the public character of the proposed street. Indeed, in the absence of any testimony, this presumption would be almost, if not quite, conclusive. Says Judge Dillon: "Municipal uses proper are public uses. Highways are conceded to be, and manifestly are, matters of public concern; and hence the condemnation of property for streets, alleys, and public ways is undeniably for a public use." There is no substance in the point taken that the land over which the street runs is taken for a private, and not for a public, purpose.

highway was held invalid because of the offer of such a consideration and in which, especially the former, the decision turned on the distinction that the court of sessions had not exercised judgment distinctly and independently upon the question whether the highway was of common convenience and necessity, it appearing from the record itself that it was not so considered if made wholly at the cost of the town.

The ground of the decision in Com. v. Cambridge, 7 Mass. 158, that a bond of indemnity against the cost of laying out a highway would render invalid a proceeding to take lands for a highway was that by such means lands might be taken really for the benefit of individuals in the name of the public and under the guise of public convenience and necessity, and the modification by Com. v. Sawin, and Com. v. Cambridge, of the doctrine of the other cases above cited is fairly shown by the decision in Parks v. Boston, 8 Pick. 217, 19 Am. Dec. 322, to the effect that a bond from an individual to contribute towards the expense of laying out or altering a street will not vitiate the proceeding if it was not made the basis thereof, and if the proceeding is not really for the benefit of the individual and only colorably for the use of the public.

One New Hampshire case goes still further and decides without modification that donations by the petitioners cannot be made by the court a condition of the acceptance of a report laying out a highway, and therefore a note for the amount of such a donation is without consideration. Dudley v. Cilley, 5 N. H. 558.

I am unable to perceive how the offer made in this case infringes any rule of public policy. It is observable that the offer holds out no personal advantage to any member of the common council. Nor does it, as in the case of Smith

Publication of official notices, etc., in foreign lan-
guage; cases on this subject are very few
and inharmonious.

A statute requiring that one at least of two newspapers designated to publish notices be the official paper of the city, "if there be one" is complied with by the selection of a German newspaper as one of them where no official paper had been designated. Kernitz v. Long Island City, 50 Hun, 428.

An Act of Assembly providing for the publication of notices in road cases in two newspapers nearest the road does not permit publication in a German newspaper. Upper Hanover Road, 44 Pa. 277, citing Tyler v. Bowen, 1 Pittsb. Rep. 225.

In some cases publication in German newspapers has been made under express authority. German Print. & Pub. Co. v. Illinois S. Z. Co. 55 Ill. 127; Re North Whitehall Twp. 47 Pa. 156.

A requirement in a city charter for publication of ordinances in that German newspaper having the largest circulation in the city is impliedly repealed by a later Act requiring the contract for all city printing to be let to the lowest bidder, and is also nullified by a constitutional provision requiring all laws, official writings, etc., to be published in the English language only. Chicago v. McCoy (II.) 11 L. R. A. 413.

A city has no inherent right to provide for publication of ordinances in a newspaper printed in a foreign language where it is given express power by law to provide for publication in the English language only. Ibid. B. A. R.