not bound to take all the ties which might be delivered by the vendor upon the lands of the company upon which an advance might be made. It contracted to take only first and second-class ties, according to the inspection of the person designated, or to be designated, as provided by the contract, who in respect to this duty, was constituted the agent of both parties. The power of rejection was involved in the power of selection. The inspector might reject unmerchantable ties, not coming within either of the classes mentioned. It could not be known until the inspection had been had, and a separation made, what part of the ties should be taken, or what number should be paid for, or what sum beyond the advance payment the company was bound to pay, or the vendors entitled to receive." The court says further: "The case is within the general principle that, where anything remains to be done to ascertain and identify the subject of the sale, the title does not pass. What was left to be done was not simply to determine by count, or by a division of the whole number of ties into two classes, the amount remaining unpaid, but it involved identification and specification also.""" 3 The court further points out the distinction between the case in judgment, in which the vendee was only bound to accept first and second-class ties, so adjudged upon inspection, and another case, in which the vendee was bound to take all the lumber delivered, irrespective of selection, nothing remaining to be done except its separation into classes, measurement, computation and payment. The rule seems to be that, in executory contracts of this character, if the sale and purchase are complete, if there is no condition or reservation, and nothing remains to be done except to ascertain the weight or quantity of the chattels sold, and consequently the amount to be paid, the title passes by the delivery. And in another case, in whicn a contract was made by which wood was to be delivered in the yard of a company which had agreed to take the wood from the vendee, and it was so delivered, it was held that the title passed by the delivery, although the company had not formally accepted the wood 2 Stephens v. Sautee, 49 N. Y. 35; Lengham v. Eggleston, 27 Mich. 324; Bing. on Sales, 227, et seq. 3 Burrowes v. Whitaker, 71 N. Y. 291. 4 Leonard v. Davis, 1 Black, 476. nor recognized the vendee's ownership of it. The difference between these cases and the one under consideration is obvious. In them nothing remained to be done but mere matter of detail, admeasurement and computation. In this there was to be in addition inspection and selection, the exercise of judgment by an expert, the selection and classification of the subjects of the sale. It was urged that Cornell, the purchaser of the ties, was a director of the railroad company, and that his purchase must be held to be that of the company, and that, therefore, the ties were liable for the debts of the railroad. This matter the court disposes of very easily, by pointing out that, if that was true, the legal title was nevertheless in Cornell, the railroad company's interest was merely equitable, and, therefore, could not be reached by an execution. INSUFFICIENCY OF SEWERAGE AND DRAINAGE. A city having power by statute to construct public sewers and to demand and receive pay from adjoining owners for liberty to enter their private drains into such sewers, is responsible for negligently suffering them to occasion a nuisance to the estates of such adjoining owners, if the nuisance does not result from the original plans of construction, and could be avoided by keeping them in proper condition. In maintaining such public sewer, a city is bound to use that degree of care and prudence which a discreet and cautious individual would use if the whole loss or risk were to be his alone. A city will not be liable for injuries caused to individuals by an obstruction in such public sewer, not placed there by its own officials or by authority of the city government until after actual notice of such obstruction, or until by reason of the lapse of time, actual notice may be presumed.1 A municipal corporation is not liable for acts judicial in their nature, but it is for ministerial acts.2 The judicial function is usually exercised by the passage of an ordinance. The discretion or judicial function 1 Rowe v. Portsmouth, 2 Reporter, 119. 2 Dillon on Municipal Corp. § 802. ་ ceases after the ordinance is passed. Hence, the further prosecution of the work is purely of a ministerial character. Because a corporation cannot be compelled to exercise its discretion, and order a drain or sewer to be made, the unwarranted conclusion has been drawn, that the corporation in building is not bound to build a sufficient sewer, that the determination of the size of the sewer is judicial. In St. Louis v. Guno, 12 Mo. 414, the court held the city was not liable for failing to make a sufficient sewer, if the construction of the sewer was proper and skillful. How a sewer of obvious incapacity could have been constructed in a proper and skillful manner is not clear. The question of capacity of a sewer is properly included under the rule relating to ministerial duties, the corporation having elected to act under the power granted in its charter, must be held responsible for a complete and perfect execution.5 Prudence and skill relate as well to the capacity of the sewer as to the mere mechanism in its construction. The erection of a sewer of such incapacity that every sane man knows in advance, that it will not afford any relief from the consequences of obstruction to the natural drainage caused by the filling of the street, would be dispensing with the use of common sense and by no means consistent with the reasonable care the law requires; not merely an error of judgment, but a failure to exercise judgment at all. The insufficiency of a sewer or gutter, arising from unskillful construction causing injury, creates a liability against a municipal corporation in damages, the insufficiency causing a nuisance. The logical conclusion, therefore, is that cities are liable for the careless and insufficient manner in which they construct sewers.8 This liability rests 3 Lacon v. Mayor, etc., 3 Duer, 406; Rochester White Lead Co. v. Rochester, 3 N. Y. 463; Emory v. Lowell, 104 Mass. 13. 4 Atchison v. Challis, 9 Kan. 603; Carr v. Northern Liberties, 35 Pa. St. 324; McCarthy v. Syracuse, 46 N. Y. 194. 5 Barton v. Syracuse, 36 N. Y. 54; Thurston v. St. Joseph, 51 Mo. 510, McCarthy v. Syracuse, 46 N. Y. 194; Phinizy v. Augusta, 47 Ga. 260; McGregor v. Boyle, 34 Iowa, 69; Dermont v. Detroit, 4 Mich. 435. 6 Indianapolis v. Huffer, 30 Ind. 235. 7 Indianapolis v. Lawver, 38 Ind. 348; Ellis v. Iowa, 29 Iowa, 229; Emory v. Lowell, 104 Mass. 13; Dermont v. Detroit, 4 Mich. 435; Rochester, etc. Co. v. Rochester, 3 N. Y. 463. 8 Insler v. Springfield, 55 Mo. 119. upon the omission to perform public duty.9 It is no defense that the insufficiency of the work was magnified by an extraordinary freshet.10 In the construction of works of this kind, the true rule as to the degree of care and skill required, is that care and prudence which a discreet or cautious individual would or ought to use if the whole loss or risk were to be his own.11 Having entire control over its corporate property, it is bound to see that it is not used by any one so as to become noxious to surrounding property.12 The sewer or drain being constructed, it becomes the duty of the corporation to keep the same in repair and the highest state of efficiency." V. Any obstruction, such as dirt, sticks, rubbish, etc., causing the water to flow back on surrounding land, occasions good ground for a suit for damages. 14 In Indianapolis Lawver, a railroad company agreed with the city to keep good and sufficient sewers under the street. In an action against the city for damages resulting from negligence in construction. the city tried to shift the responsibility on to the company but the court would not permit it. If slight exertion of an individual would obviate damages he cannot recover. 16 When changes are made in the sewer they must be made in a safe and proper manner; this is a ministerial duty and is absolute. 17 A city is not absolved for want of proper notice; there should be a reasonable degree of watchfulness on the part of the city to provide against dilapidation, obstructions, etc. 18 It would seem that the corporation is not liable for want of efficiency in the plan of sewerage or 9 Hutson v. Mayor, 9 N. Y. 163; Mayor v. Bailey, 2 Den. 433. 10 Rochester White Lead Co. v. Rochester, 3 N. Y. 463; Logansport v. Wright, 25 Ind. 512. 11 Weet v. Brockfort, 16 N. Y. 161. 12 Baily v. Mayor, etc. 2 Den. 433. 13 Aurora v. Gillett, 56 Ill. 132; Hutson v. Mayor, etc., 9 N. Y. 163. 14 Parker v. Lowell, 11 Gray, 353; Child v. Boston, 4 Allen, 41; McCarthy v. Syracuse, 46 N. Y. 194; Atchison v. Challis, 9 Kan. 603; Emery v. Lowell, 104 Mass. 13; Thurston v. St. Joseph, 51 Mo. 510. drainage adopted. 19 So it would seem when a sewer is not sufficiently large. 20 When a city constructs a street in a negligent and unskillful manner, as without proper culverts or drains, so as to prevent the waters of a neighboring river, in times of high water, from passing in their natural course into another neighboring river, and thus causes land to be overflowed and injured, it is liable in damages to the owner of the land." The resident owner of a lot fronting upon a public street in a city cannot be permitted to restrain such city from constructing drains along the side, or culverts across such street, or other streets in the vicinity, or from grading or otherwise improving the same, merely because such acts when completed would greatly increase the flow of surface water upon his land. 22 And there must be skill and care in determining the capacity of the sewer to carry off the water, as well as in the mere mechanism of its construction But where the city is without fault in this respect, it is not liable for injuries caused by obstructions accumulating in a sewer, unless notice of such obstructions to the city is proved or may be presumed. Nor is a city liable for injuries from the mere abandonment of a sewer. It may, in its discretion, discontinue a sewer.28 In an action against the city for the obstruction, under a declaration alleging that the defendants obstructed the drain so that water and filth flowed into the plaintiff's cellar and destroyed his property therein, and put him to trouble and expense to get the water out, the plaintiff was held entitled to damages for any injury which affected his estate, or diminished its value for use and occupation, by reason of the inconvenience and annoyance of flooding the cellar and of unwholesome and disagreeable smells, or of insects thereby generated or attracted to the house; and also his reasonable expense in preventing or removing the nuisance, and of changes and repairs thereby rendered necessary, and which he could not by reasonable care and diligence have avoided. Milwaukee, Wis. ALBERT N. KRUPP. 19 Dillon on Municipal Corp., § 801 and note. 20 Mills v. Brooklyn, 32 N. Y. 489; Dillon on Municipal Corp., § 801 and note. 21 Spelman v. City of Portage, 41 Wis. 144. 23 Boone on Corp., § 302. 24 Sutherland on Damages, Vol. 3, p. 416. New Jersey Court of Chancery, October Term, 1886. 1. Estoppel.-An allegation made in a bill in equity upon which the decree is not founded is not conclusive upon the complainant. 2. Husband and Wife - Fraud.-A husband in securing his own debt may convey his property to his wife, and if she mortgages it to the proper party, the conveyance and mortgage do not constitute a badge of fraud. 3. Evidence.-Bills in chancery are but slight evidence of the statements made in them, and no advantage can be taken of such statements, unless it be shown that the party who relies upon them has been misled to his prejudice. BIRD, V. C., delivered the opinion of the court: This is a creditor's bill. In 1871, Lecroy became a member of the defendant association, and the owner of seven shares of its stock. In 1872 he purchased seven loans of the association, paying for three of them $49.50 each, and for four of them $46 each, by way of premiums. The then anticipated value of each share was $200, which value, however, to the owner, depended upon his fulfilling all his obligations to the association. Lecroy was paid at the rate, on the loans he purchased, less the premium, which indicated their value at that time; that is, $1,400, less than the premium. The association took no assignment of the stock from Lecroy as security at that time, but it is claimed that that was intended and understood, according to the custom and by-laws of the association, and that the omission was an oversight. The by-laws clearly make such provision. The object Lecroy had in view in taking the loans was the purchase of a lot with the proceeds thereof, and the erection of a dwelling-house thereon. Of this money, $300 was paid by Lecroy for a lot, the deed of conveyance for which he had executed and delivered to his wife. The wife executed a mortgage to the association for $1,400. The husband (Lecroy) did not join in executing this morngage. All the money so advanced by the association was paid out by Lecroy, either for the title to the land, or for material and labor in the erection of a dwelling upon the land. In 1876, Lecroy and his wife executed a mortgage upon the same premises to the present complainants, which were given to secure the principal sum then due, for which, with interest, they afterwards obtained a judgment at law, as will appear. In December, 1879, Lecroy and his wife executed a bond to the association to secure the amount of said loan, with the condition that, if they should pay to the association the interest on $1,400, with the regular monthly installments of $1 per share on seven shares of capital stock of the association, owned by the said Lecroy, on the first Monday of each month, until the surplus assets of said association shall be sufficient, over and above its debts and liabilities, to pay on each unredeemed share the sum of $200, the said bond should be void, and in case they failed so to pay for six months, then the said $1,400 should be due, and said bond be in full force and virtue. To this bond was annexed a power of attorney to confess judgment. Lecroy and his wife joined in executing another mortgage on the said lot, to secure the payment of this bond. According to a certificate indorsed on this bond, judgment was entered thereon on the 6th of October, 1882, after the condition had been broken. When this last bond and mortgage were executed and recorded, the scrivener ordered the cancellation of the prior mortgage made by Mrs. Lecroy alone. It appears that this was done without the assent or knowledge of the association. In September, 1881, the association filed a bill against Lecroy and his wife, and the Vannemans (the complainant in this suit), seeking relief in the premises. The result of that suit was a decree declaring that the claim of the association was an equitable lien on said land, and was entitled to precedence over the mortgage of the Vannemans. The property was sold, but the amount realized was insufficient to pay the claim of the association, a large balance still being due. In September, Lecroy assigned all his right, title and interest in said stock to his wife, who, upon the same day, assigned it to the said association as collateral security. As I understand the admission of counsel for the complainants, there is still a balance due to the association over and above the value of these shares of stock. The Vannemans, recovering nothing upon the sale of the land, obtained judgment against Lecroy, and by their present bill attack the said assignment of the stock by Lecroy to his wife, and by her to the association. They insist that the assignment was made for the purpose of defrauding them, as creditors of Lecroy. The principal facts relied upon to establish the fraud have already been given, except the statement that the association, in its bill to foreclose the said mortgage given by Mrs. Lecroy alone, alleged that the loan was made to her, and also, except the the fact that the president of the association applied to Lecroy to assign to it his said stock. Lecroy says: "I don't know that I can give his exact language; the substance is this: inasmuch as it is nearly or quite certain that Vanneman could get possession of the property, it would be but fair and just that the association should have what money it had paid." At that time it had not been determined whether the claim of the association was a lien upon the premises prior to the mortgage of the Vannemans or not. Its claim to priority was subsequently very earnestly resisted by the Vanne mans. Was the conduct of the parties fraudulent? Lecroy owed the association at the time of the assignment, therefore the assignment was notvoluntary; for, notwithstanding the sale of the lot and the application of the proceeds thereof to the claim of the association, the present value of the stock will not liquidate the balance still due. I say not voluntary, because Lecroy not only purchased the loans, as a stockholder, but afterwards made his bond to the association for the amount borrowed, as above recited, showing an unquestioned liability, which must stand in any court, until its bona fides shall have been successfully impeached, which has not been done in this case, nor attempted. It is true, the insistment is that the assignment to the wife was a gift, being, as to her, without consideration, and, therefore, void as to creditors; but I do not find that it was intended as a gift to the wife. The intention of the husband was to assign his stock to the association, which he did by first assigning it to his wife. That there was no necessity for this round-about method is plain enough; but I cannot perceive that this course can be regarded as a badge of fraud. But the present complaints insist that the association, having accepted a bond and, mortgage from Mrs. Lecroy alone, thereby made her its debtor, and released her husband, and consequently, must look to her and to her separate estate alone. This view they seek to enforce by presenting the bill filed in the suit above named, in which the association declared that they had loaned the money to Mrs. Lecroy, and thereby sought to strengthen their hold for equitable relief. It is urged that the association making such an allegation, and obtaining a decree in their favor under such a bill, cannot now question or gainsay the allegation, the allegation not only having been made in a judicial proceeding, but the court having solemnly adjudged it to be true; citing Lore v. Truman, 10 Ohio St. 45, and the Duchess of Kingston Case, 11 St. Tr. 291; McGee v. Smith, 1 C. E. Gr. 462, 466; 1 Greenl. Ev. § 205, and 1 Whart. § 337. This legal proposition, to the extent it has been establisned, cannot, by its own force, control this case, because the decree was not founded alone, if at all, on the relation of debtor and creditor, but upon the equitable rights in behalf of the association springing out of the transaction, which otherwise had and could have no foundation. The debt was regarded as the debt of the husband, and the act of the wife was regarded as an effort on her part to secure and pay that debt by a lien on her land, as in equity she might, provided her husband joined. To support this view I found numerous cases in our own State. It was decreed that the amount of the money actually expended in paying for the land and for material and labor, was an equitable lien on the land. Hence, it cannot be said that the court has adjudged that Mrs. Lecroy was the debtor, and that the association are therefore estopped from saying anything to the contrary. Very different from this is the case of McGee v. Smith, where an answering defendant was held to be estopped by the allegations in her answer, a vendee having purchased upon the faith of such answer, and upon reliance in the truth of its statements. In this, as in every other investigation in this form, when the equitable rights of suitors are sought for, the intention of the parties is always of great importance, especially where that intention can be easily discovered and a decree founded thereon without doing any actual injustice to any third party. In this case, Lecroy purchased the loans, and his wife did not. Lecroy therefore bécame the debtor, and years afterwards gave a bond to secure it. With this money he bought the land named and built on it, taking the title in his wife's name. The association proceeded against her and against this land, because the title was in her name, and because all the money for which the husband had become liable had been expended in the purchase of the land and in making the improvements thereon, and because she had executed said mortgage, showing an intention to bind her interest creating the lien already mentioned. I say the intention is always of great importance in such cases, when no injustice will be done to third parties by giving effect to that intention. Will any injustice be done to the complainants in this case by permitting the transaction between Lecroy and the association, by which Lecroy paid his just obligations, to stand? As in every such case, the influence of such transactions upon the conduct of the third party is always a material consideration. Were the complainants in anywise influenced or controlled by the dealings between the association and Lecroy in giving and receiving the bond and mortgage of the wife, or especially by the transfer of the stock to the association as collateral to the payment of his indebtedness? There is nothing in the case to indicate such influence. Lecroy became a debtor to the association in 1872, and, as I have said, there is nothing to indicate that his liability was discharged by the association accepting a bond and mortgage from the wife, nor that the present complainants changed their situation because of that fact. The indebtedness of Lecroy to the present complainants was created in 1876, nothing whatever appearing that it originated from or had anything to do with the stock transactions between Lecroy and the association. With this field before us, can it be said that fraud anywhere appears? If the payment of this claim by Lecroy should be declared to be fraudulent, then might not the same be said in behalf of any creditor who is not first paid, and who fails to find sufficient assets to satisfy his judgment? It seems though that result would follow in every case. Had Lecroy had the money he could have safely paid the debt. If the insistments of the complainants be true that said stock belonged to Lecroy in 1881, at the time of the assignment, Lecroy could have sold it, and with the proceeds discharged any legal liability. It would, therefore, as most surely follow that he could discharg any such liability by the transfer of the stock itself, there being no actual fraud, or, in other words, the transaction being bona fide. As to the effect of the statements in the bill filed in the former suit by the association, see 1 Greenl. on Ev. § 278, where that learned author regards the admissions made in a bill in chancery as very feeble evidence, so far as they may be taken as the suggestion of counsel. In Doe v. Sybourn, 7 T. R. 2, Lord Kenyon, C. J., said: "A bill in chancery is never admitted in evidence further than to show that such a bill did exist, and that certain facts were in dispute between the parties, in order to let in the answers or depositions of the witnesses." In Boileau v. Rutlin, 2 Exch. 665, 12 Jur. 899, the law is stated thus: "A bill in chancery is not evidence against the party in whose name it is filed, unless his privity to it is shown. Where that privity is established, the bill is admissible to prove the fact that such a suit was instituted, and what the subject of it was; but it is not evidence, by way of admission, against the party by whom it was filed, of the truth of the facts alleged or stated in it." If this be the correct practice in ordinary cases, then surely it will apply in cases like the present, where the bill offered in evidence was filed by the counsel of a corporation. See, also, Sweet v. Tuttle, 14 N. Y. 465, 470. I conclude that the allegation of fraud has not been sustained. The bill should be dismissed, with costs. I will so advise. NOTE. The weight of authority is stated to be that a bill in chancery is inadmissible in another suit to prove complainant's admission therein. A bill for an injunction, not filed as an original bill, is not evidence, even between the same parties; 2 nor is it evidence for the complainant; 3 nor is a bill by a wife against her husband and a third party evidence against him in a subsequent action by him against such third party; 4 nor is a bill for divorce evidence of complainant's marriage in a prosecution against him for bigamy; 5 nor will the admissions of an administrator in a bill bind the estate; nor to prove a fact which tends to sustain the title to partnership property sold by the firm, which fact is stated in a bill filed by one partner against another, and in the answer thereto; 7 nor will a petition in partition estop the petitioner from afterwards buying the share of one whose title the petition denied; nor from maintaining ejectment for the whole 6 1 Phil. Evid. 258, 259; 2 Id. 623, 924; 2 Whart. Evid. § 1119; Trimmelstown v. Kemmin, 9 Cl. & F. 777; Kilbee v. Sneyd, 2 Moll. 208; Rankin v. Maxwell, 2 A. K. Marsh. 488; Rees v. Lawless, 4 Litt. 218; Owens v. Dawson, 1 Watts, 149; Truby v. Seybert, 12 Pa. St. 104. 2 Driver v. Fortner, 5 Port. 9. See Rees v. Bowen, McC. & Y. 383; Cawsey v. Driver, 13 Ala. 818. 3 Dorsey v. Gassaway, 2 Harr. & Johns. 402. 4 Stetson v. Goldsmith, 30 Ala. 602. 5 Cooley v. State, 55 Ala. 162. See Schmidt v. Herfurth 5 Rob. (N Y.) 124; Henderson v. Cargill, 31 Miss. 367. 6 Crandall v. Gallup, 12 Conn. 365. 7 Shaw v. McDonald, 21 Ga. 395. 8 Richardson v. Cambridge, 2 Allen, 118. See Turner v. Baker, 64 Mo. 218; Illinois R. R. v. Cobb, 64 Ill. 143; |