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mediately before the injury and again immediately afterward, they would arrive at the difference in value. We may also say that in arriving at the difference in value of the premises they should not only take into consideration the crops destroyed, but those that were injured, and any permanent damages which the premises sustained, and the inconvenience, if any, which the plaintiff necessarily suffered in passing from one part of his farm to another in the ordinary discharge of his duties in carrying on the farm. Whether if it had been shown that he could, at moderate expense, have relieved his land from the accumulated water, and prevented a portion of the injury, such fact might properly have been considered in reduction of his damages, we need not determine, as no such question has been presented.

For the error above pointed out in the admission of evidence the judgment must be

Reversed.

CIVIL DAMAGE ACT LIABILITY FOR RESULTING INJURY-DAMAGES.

NEW YORK COURT OF APPEALS, APRIL 29, 1884.*

NEU V. MCKECHNIE.

To maintain an action under the "Civil Damage Act" (Laws 1873, ch. 646), it is not essential to show that the act of the intoxicated person which caused the injury was the natural, reasonable or probable consequence of his intoxication; it is sufficient if it appears that the act was done while the person was intoxicated, in whole or in part, by liquors sold by defendant.

The fact that the act causing the injury constitutes a crime does not mitigate, nor take away the cause of action. It appeared that the father of plaintiff, while in a state of intoxication, produced in part by liquors sold to him by defendants, murdered his wife and then committed suicide. Plaintiff was fifteen years of age; he lived with, and was dependent upon his father for support. Held, that the facts were sufficient to maintain the action.

A

It appeared that defendants sold the liquor without a license, and that they had been so selling for a long time. Held, that submission to the jury of the question of exemplary damages, and an allowance thereof, was proper. PPEAL from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made April 14, 1883, affirming a judgment entered upon a verdict, and an order denying a motion for a new trial. The opinion states the case.

Henry M. Field, for appellants.

Wm. H. Smith, for respondents.

DANFORTH, J. The act entitled "An act to suppress intemperance, pauperism and crime" (ch. 646, Laws of 1873), provides in substance that certain persons, and among others, a "child," who shall be injured in means of support by any intoxicated person, or in consequence of the intoxication of any person, shall have a right of action against any person, who "by selling * intoxicating liquors, caused the intoxication in whole or in part," and may recover from such vendor all damages so sustained, and also exemplary damages.

* *

This action is brought under that act. The verdict of the jury establishes that the plaintiff at the time the alleged cause of action accrued was a child of the age of fifteen years, the son of Jacob and Barbara Neu; that he was living with his parents and dependent upon his father for support, when the latter, in a state of intoxication, produced in part by the use of lager beer, sold to him by the defendants, murdered plaintiff's mother and then committed suicide. Upon all these *To appear in 95 N. Y.

questions there was evidence proper for submission to the jury, and their finding in regard to them has not been disturbed by the General Term. Their conclusion is not open to review here.

The learned counsel for the appellants however argues with much earnestness that the act which deprived the plaintiff of his father, and cut off the support which he had before enjoyed, was not a natural consequence of the use of the beer sold by the defendants; that they were not bound to know that Jacob Neu "would strike his wife on the head with an axe, and then cut his own throat with a razor." Perhaps not. But a cause of action may exist without such foresight.

The statute does not even require that the vendor shall know that drunkenness leads to crime of any degree, nor even that it is the cause of poverty and beg gary, and consequent distress to the drunkard's family. It is enough that these results come from intoxication, and so in Hill v. Berry, 75 N. Y. 229, a wife recovered of the landlord and his tenant, because by reason of liquors sold by the latter her husband became intoxicated, wasted his money, neglected his employment and became incompetent to labor, and therefore unable to provide for her, and she obliged to care for him while in that condition. She suffered not only because his substance was reduced to nothing, but from the loss of productive labor.

In Bertholf v. O'Reilly, 74 N. Y. 509; 30 Am. Rep. 323, the landlord was required to pay for the plaintiff's horse, because it died from over-driving induced by the driver's intoxication through liquors sold by the defendant's lessee.

In Mead v. Stratton, 87 N. Y. 493; 41 Am. Rep. 386, the wife recovered under this act, because the busband, while intoxicated by liquors sold on the defendant's premises, was beaten to death by the wheel of his own wagon while the reins were in his hand, although he was in a state of stupor.

In those cases, as well as in others arising under the act, liability was established from the sale of liquors producing intoxication, and the act of the intoxicated person causing injury to the plaintiff in his person, property or means of support. Those elements exist here. The cause of action is neither taken away nor mitigated because the cause of injury also constitutes a crime. The jury were not to inquire whether either "the homicide or suicide were the natural, reasonable, or probable consequences of the defendants' act." It is enough if while intoxicated in whole or in part by liquors sold by the defendants, those acts were committed, if by reason of them, or either of them, the plaintiff's means of support were affected to his injury.

Nor was it error in the learned trial judge to submit the case to the jury as one in which the plaintiff might have exemplary damages. They are expressly allowed by statute, and there was evidence upon which they might be awarded. The defendants were manufacturers of lager beer. They had no license to sell it in quantities of less than five gallons. The sale to the plaintiff's father was of that description, and hence unlawful. It was not an isolated sale. The defendants had so dealt for a long time and with many persons. It resulted in their pecuniary benefit. Under the circumstances of the case it was therefore for the jury to say whether something more than actual damages should not be allowed for the benefit of the community and for example's sake. To hold otherwise would place a wrong-doer (Foote v. People, 56 N. Y. 321) on the same footing with a licensed vendor--one who sells recklessly and at his own volition, on a level with one who has the consent of the proper public officers to deal in an article, the use of which, as the statute

(supra) implies, leads to "intemperance, 'pauperism and crime."

Other points presented by the learned counsel for the appellants have been considered, but we find no error. In this conclusion we agree with the General Term, and therefore their judgment should be affirmed.

All concur.

Judgment affirmed.

SHERIFF'S POUNDAGE.

NEW YORK COURT OF APPEALS, APRIL 15, 1884.

FLACK V. STATE.

A judgment debtor dying while in custody under a body execution, the sheriff has no claim for poundage, under 2 Rev. Stat. 645, § 38.

He must show either a collection of the moneys called for, interference by the judgment creditor with his execution of the process, or the discharge of the judgment debtor under the provisions of the act for the relief of imprisoned debtors: the arrest of the debtor is in no just sense the equivalent of a collection. The history of the legislation upon the subject given and the authorities collated and discussed.

APPEAL from order of the General Term of the

Supreme Court, in the first judicial department, made January 11, 1883, which affirmed a decision of the State board of audit, disallowing a claim presented by the executors of the will of William C.. Conner, late sheriff of the county of New York, for poundage upon an execution.

A. J. Vanderpoel, for appellant.

D. O'Brien, Attorney-General, and W. A. Post, for respondent.

RUGER, C. J. The plaintiff's testator while sheriff of the county of New York received for collection an execution upon a judgment in an action wherein the people of the State were plaintiffs and William M. Tweed was defendant.

The plaintiffs, having recovered their judgment for upward of six and a half millions of dollars, issued an execution thereon against the property of the defendaut, which having been returned nulla bona, thereupon issued the execution against the person of the defendant.

On December 20, 1876, the sheriff arrested the defendant upon the execution, and retained him in custody until December 31, 1876, when his term of office having expired in pursuance of the statute, he transferred the process, with the body of the defendant, over to his successor.

No moneys were collected by either sheriff upon the process, and the defendant therein was retained in custody until his death, which occurred April, 12, 1878.

The plaintiffs claim that they are entitled to poundage accruing to their testator upon this execution under the statute regulating the compensation of sheriffs.

A brief reference to some of the salient features in the history of legislation on the subject will enable us to appreciate the bearing of the cases cited on the question presented by this appeal.

Prior to the enactment of the statute of 29 Eliz., ch. 4, the charges of sheriffs for executing writs for the collection of judgments was entirely unregulated by statute. Under this condition of the law grave abuses had sprung up, and sheriffs and their servants were accustomed to practice extortion, not only upon the persons against whom process issued, but also from the plaintiffs therein. By that act, which was en

titled, "An act to prevent extortion in sheriffs in cases of execution," it was provided, "that for serving and executing any writ or execution upon body, lauds, goods or chattels," the sheriff should not take more than twelve peuce in the pound for the first £100, and six pence in the pound for all above £100. By this act the sheriff was not authorized to levy his fees by virtue of the execution, but they were payable in all cases by the plaintiff in the process. With some immaterial changes this continued to be the law in England until by chapter 46 of the 43 George III, they were authorized to include in their levy upon a fi. fa. upon the goods of the defendant the amount of their charges for poundage and expenses over and above the amount of the judgment. Under this statute the sheriff still had no right to exact poundage from the defendant upon a writ of ca. sa., but his charges for services were payable by the plaintiff therein. Hayley v. Racket, 5 M. & W. 620. It was not until the 15 and 16 Victoria, ch. 76, that sheriffs were authorized to collect, by virtue of the writ, poundage fees and expenses upon a ca. sa. from the defendant. Under these statutes it has been uniformly held in England, as will be seen by the cases hereafter cited, that sheriffs did not become entitled to poundage upon executions until they had collected the money called for by such writs.

The statute of 29 Elizabeth was the law of this State until by the passage of chapter 25 of the Laws of 1789, it was provided that a sheriff should be entitled to charge fees for "serving an execution for or under £100 six pence per pound, and for every pound more than £100 three pence, the poundage on writs of fieri facias, and all other writs for levying money, to be taken only for the sum levied." With immaterial changes this statute continued the law of this State until the adoption of the provisions of the Revised Statutes.

In a recent case in this court it was said, that "the right of a sheriff to fees is derived from, and depends altogether upon the statute. At common law he could not lawfully collect or receive them." Campbell v. Cothran, 56 N. Y. 281; 2 B. & A. 562; 1 Chit. 295; Graham v. Grill, 2 M. & S. 294.

The plaintiffs must therefore establish their right to the fees in question under the statute in force at the time the services were rendered, and if they do not bring themselves within its terms they must necessarily fail in their claim. The material part of that statute reads as follows: "For serving" " 'an execution for the collection of money," "for collecting the sum of $250 or less, two cents and five mills per dollar; and for every dollar collected more than $250, one cent and two and a half mills." "The fees herein allowed for the service of an execution, and for advertising thereon, shall be collected by virtue of such execution in the same manner as the sum therein directed to be levied." 2 Rev. Stat.645 (orig. ed.), § 38. The language of this provision seems to be plain and unambiguous, and clearly removed from the possibility of misconstruction. The services, for which compensation is provided are those for "collecting" the moneys called for by the execution, and the fees are computable only upon the amount "collected," and are made collectible by virtue of the execution alone.

To bring the claim of a sheriff within the provisions of the statute, it is essential that he show either the collection of the moneys called for, or some interference by the plaintiff with his execution of the process that is equivalent thereto. It has been uniformly held in England as well as in this country, under all statutes giving fees to sheriffs upon executions, that a judgment creditor cannot, after placing process in the hands of the officer and inducing him to move forward in the work of executing it, interfere to prevent its en

forcement without thereby making himself liable for the compensation of the sheriff. Alchin v. Wills, 5 T. R. 470; Hildreth v. Ellice, 1 Caines, 192; Campbell v. Cothran, 56 N. Y. 282. These cases proceed upon an obvious equity, analogous to that underlying the familiar principle which debars a party to a contract from claiming the benefit of the non-performance of a condition precedent by the other party when he has by his own conduct made performance thereof by such party impossible.

The question presented by this appeal seems to us to be one purely of statutory construction, and in the absence of prior adjudication, would appear to be easy of solution. But it is contended by the learned counsel for the appellants that the logic of the cited cases supports the claim now made by them.

Although in the early case of Pope v. Hayman, Skin. 363, arising under the act of 29 Eliz., the subject is mentioned argumentatively by counsel, yet aside from that case, we have been referred to none arising under any statute which seems to support the doctrine that a sheriff becomes entitled to poundage on an execution upon the death of a defendant held in custody thereunder, or that he is entitled to such poundage in any other event than the collection of the debt, the release of the debtor with the consent or by direction of the plaintiff, or his discharge under the provisions of the act for the relief of imprisoned debt

ors.

ors.

We are therefore unembarrassed by any prior decisions covering the particular question presented by this appeal, and we may well consider their absence a fact militating against the plaintiff's claim, since the question is one which must frequently have occurred in the history of the law relating to imprisoned debtA number of cases have however been referred to by the appellants which are claimed to support their demand. We believe the cases cited have but a remote, if any, bearing upon the question here presented, and their soundness may be conceded without impairing the considerations which induce the determination of this case. Without considering all of them in detail it may be observed that they generally arose under statutes essentially different from that under consideration, and were mainly decided upon the language of the particular statute under which they respectively arose.

In Adams v. Hopkins, 5 Johns. 252, two propositions were announced, viz.: That the plaintiffs' attorney was liable to the sheriff for the fees earned by him in serving an execution against the defendant's person, and secondly, that the sheriff was entitled to the statutory fees, when after execution of process, the defendant had been discharged from imprisonment under proceedings for the relief of imprisoned debt

ors.

The right of the sheriff to fees in this case was based upon the express language of the statute then in force. 2 R. L. 77, Mr. Justice Thompson, delivering the opinion, saying: "The sheriff by the statute of Elizabeth, and by our act, is to have his fees for serving an execution." It may be doubted whether the second proposition decided would be considered applicable to a case arising under the Revised Stat

utes.

In Scott v. Shaw, 13 Johns. 378, the only question considered was whether the sheriff was under the then statute entitled to fees upon a ca. sa. duly executed by him, although it was afterward set aside upon motion for irregularity, because a fi. fa. had not previously beeen issued and returned nulla bona as required by the statute. It was held that by the service of the process, the sheriff became entitled to his fees. The statute in this, as in the previous case, gave the fees for the service of the execution, and that service

was held to have been performed, so far as to fix the plaintiff's liability for sheriff's fees, when the body of the defendant was taken upon execution.

None of the English cases seem to support the doctrine of this case, and it can be sustained only upon the ground that the language of the statute estab lished the sheriff's right to fees when he had commenced the execution of the process.

In each of the early English cases of Earle v. Plummer, 1 Salk. 332; Rawstorne v. Wilkinson, 4 M. & S. 256; Bullen v. Ansley, 6 Esp. 111, the sheriff had fully executed the writ and paid over the money collected. It was held in those cases that he thereby became entitled to poundage, although the writs were subsequently set aside for irregularity.

These cases afterward came under review in the case of Miles v. Harris, 104 Eng. C. L. Rep. 550, in the Court of Common Pleas, upon the question reserved for the opinion of the court, whether the sheriff was entitled to poundage upon an execution when he had seized goods thereon sufficient to satisfy it, but such execution was afterward set aside for irregularity. It was held that he was not entitled to poundage, Erle, C. J., saying: "Inasmuch therefore as no money was made by him under the execution, I think he was not entitled to claim poundage." This opinion was concurred in by the whole court, consisting of the Justices Williams, Willes and Byles.

To similar effect was the decision of the Exchequer Court in the case of Evans v. Manero, 7 M. & W. 463, and Rex v. Robinson, 2 C. M. & R. 334. In Ryle v. Falk, reported in 24 Huu, 255, and affirmed in 86 N. Y. 641, by this court upon the opinion in the court below, it was held that the sheriff was entitled to his poundage upon a ca. sa. where the plaintiff had consented to the discharge of the defendant, upon the condition of his paying the sheriff's legal fees, charges and expenses. The principal question involved in that case was whether the plaintiff could interfere by directing a discharge after the defendant was taken in execution, and thus preclude the sheriff from collecting the statutory fees, or in other words, whether any thing but the actual collection of the money called for by the process would entitle the sheriff to his poundage. This case was undoubtedly correctly decided upon the ground that the direction of the plaintiff was equivalent to the collection of the judgment, and the case was thereby brought within the meaning and spirit of the existing statute. The plaintiff had the right to control the execution of the process, and to impose such conditions upon the discharge of the defendant as he chose, and the defendant could not have the benefit of the stipulation without complying with the conditions upon which it was given.

In Campbell v. Cothran, 56 N. Y. 279, a fi. fa. had been issued to the sheriff upon a judgment for $4,328, and he had levied upon sufficient property to satisfy it. Upon appeal the judgment had been reduced to the sum of $60.20, and it was held that the sheriff was entitled to poundage upon the amount of the modified judgment only. This case was decided by the court upon the ground that under the statute the sheriff was entitled to poundage upon the sum collected only.

In Konig v. Steckel, 58 N. Y. 475, it was held that a judgment creditor could not maintain an action against the sureties upon a bond given for the payment of the judgment so long as he detained the debtor by impris onment upon a ca. sa. issued on such judgment. It was said in effect that the imprisonment operated pro tempore as an extinguishment of the defendant's liability for the debt, and that the defense accruing to the principal from that fact would also inure to the benefit of his sureties.

We have not omitted to observe the language used by the courts in many of the cases referred to, to the effect

that the allowance of poundage is for the risk in curred," or "for the sheriff's trouble."

If these expressions were used in the sense that the sheriff became entitled to poundage whenever he has incurred risk in the service of process, they are manifestly incorrect, for there are many decided cases where such risks have been incurred, and yet this right to poundage has been denied. Such, for instance, are the cases where the judgment has subsequently been modified or reversed, or where the execution has been set aside or reduced by the order of the court before collection. Impey on Sheriffs, 159; Campbell v. Cothran, supra; Miles v. Harris, supra; Evans v. Manero, supra.

This is so also when the property is taken by a trustee in bankruptcy after levy and before sale. Ex parte Browning, 8 Ch. D. 596. Neither does he become entitled to poundage on a fi. fa. when the property taken thereon is destroyed by fire or other casualty. Campbell v. Cothran, supra. The application of such expressions must be limited to the circum stances of the cases in which they were used, and deemed as intending to convey the idea that under the particular statute then being construed the sheriff's right to fees became fixed by virtue of his levy, and the liability thereby incurred by him to the judgment creditor for damages arising out of a loss of property levied upon, or by the escape of the defendant from custody. Such expressions were undoubtedly used to convey an idea of the equitable considerations which induced the adoption of statutory provisions giving compensation to sheriffs, but they cannot operate to extend the class of cases in which fees are allowed beyond those authorized by the terms of the statute.

While we would not be considered as depreciating in any degree the risk incurred by a sheriff in executing the processes of the court, yet the hazard of liability for damages upon an escape must be much diminished by the presumed irresponsibility of a defendant against whose property an execution must previously be issued and returned nulla bona before his body can be taken in execution. The condition and circumstances of the debtor may be given in evidence in mitigation of damages in an action upon the case against the sheriff to recover damages for an involuntary escape. Patterson v. Westervelt, 17 Wend. 543; Smith v. Knapp, 30 N. Y. 581; Metcalf v. Stryker, 31 id. 257; Macrae v. Clark, 1 H. & R. 479. It is otherwise however when the sheriff has made himself liable as bail under the provisions of the Code. Bensel v. Lynch, 44 N. Y. 162.

However equitable the sheriff's claim may be for compensation whenever he incurs risks by executing process, it is an answer to any claim founded thereou to say that this is not the ground upon which the statute has awarded it. Although it is said in some cases that the taking of the body of a defendant in execution is in some sense a satisfaction of the judgment while the imprisonment continues, yet that consideration is not prominently urged here as a reason for reversing this judgment. But even if it were, the argument would be ineffectual, for an arrest on a body execution is now generally considered not to operate as a satisfaction of the judgment, but simply as a suspension for the time being of other remedies of the creditor thereon. Campbell v. Cothran, supra; Konig v. Steckel, 58 N. Y. 475; 2 R. 8. 465, art. 2, title 5, ch. 6, part 3.

It cannot in any just sense be said to be the equivalent of that collection of the moneys due upon a judgment which is required by the statute awarding fees to the sheriff for collecting an execution.

The change made in the law by the adoption of the provisions of the Revised Statutes whereby the right of sheriffs to charge poundage upon executions was

made to depend upon their collection, instead of upon their service, was in our judgment intended to change the conditions upon which the sheriff's right to collect fees was to be predicated.

It would be difficult to find language more significant or which would seem to preclude more clearly any claim on the part of these officers to poundage, except upon the completed performance by them of the duties required in the enforcement of an execution. The right to fees which before depended upon the rendition of whatever services he might perform in the collection of an execution is thereby made to turn upon the performance by the sheriff of the final act to be done in the course of such service.

The decision in the case of Bolton v. Lawrence, 9 Wend. 436, does not conflict with this view. The question in that case was whether the sheriff was entitled to poundage upon a fi. fa. which had been levied by him upon sufficient property to satisfy it, but where he had been prevented from making the amount of the execution by the act of the plaintiff in causing the judgment to be collected in another county upon another execution. The decision in this case accords with the rule as uniformly laid down in the cases arising both before and since the passage of the Revised Statutes.

In Campbell v. Cothran this court, in giving a construction to the statute as applied to the writ of fi. fa., held that the sheriff was not entitled to poundage unless he collected the judgment, except in case the plaintiff interfered to prevent its collection; and we can see no reason why the principle laid down in that case is not equally applicable to cases arising upon the execution of the writ of ca. sa.

It is by virtue of the same statute, and through the use of the same language, that the claim of a sheriff to fees arises upon an execution whether such execution goes against the property or the person of the defendant.

It would seem necessarily to follow that the conditions which have been adjudicated as essential to his right to demand fees in one class of cases would apply with equal force to another, when the right to fees in both depends upon the same language. This right is made by the language of the statute to depend exclusively upon the collection of the money called for by the process; and we think no right to the statutory fees can arise in favor of the sheriff, except upon the collection of the execution, or the intervention of the plaintiff by the performance of some act which in law is deemed to be the equivalent of collection. In Campbell v. Cothran, Andrews, J., said, after referring to a case holding that the sheriff is entitled to poundage after the levy of an execution, where the parties had settled or compromised the debt, that "this case and those falling directly within the same principle are, we think, the only exceptions to the rule that the sheriff is not entitled to poundage on a money execu tion until the money is collected, and that his commissions are to be reckoned on the sum realized on the execution, and not on the amount of the judgment." This decision accords with the settled law of England. Miles v. Harris, supra; Evans v. Manero, supra; Roe v. Hammond, 2 C. P. D. 300; Mortimore v. Cragg, 3 id. 216.

In Roe v. Hammond it was held upon the ground that there had been no collection that the sheriff was not entitled to poundage upon a fi. fa. when he had levied upon goods sufficient to satisfy it, if the defendant after seizure paid out the execution before a sale. The decision in this case however was overruled in Mortimer v. Cragg in the Court of Appeals, decided in 1878, Brett, L. J., saying: "When an execution issues the transaction may be divided into four parts: 1. The delivery of the writ to the sheriff. 2. Seizure. 3. The

possible payment of money after seizure. 4. If no payment, sale. The first step does not entitle the sheriff to poundage, and if he does not seize, Nash v. Dickenson is an authority that he is not entitled to poundage. Although he seizes, nothing may be realized, because the seizure may be wrongful; it may be withdrawn by direction of law, then the sheriff would receive no poundage. Then comes the case of seizure. The money may be paid by the execution debtor, either directly or indirectly; directly by virtue of the seizure to the sheriff; indirectly when payment is made by means of a compromise which is a consequence of the seizure. In either of those cases the sheriff is entitled to poundage," Bramwell, L. J., saying: "I think the words in the statute of Elizabeth shall so levy' mean 'shall seize and thereby get the money.''

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The view that we have adopted of the statute was also taken by Mr. Justice Van Brunt in the case of Bowe v. Campbell, 63 How. Pr. 167. The unreported case of Campbell v. Moers, cited upon appellaut's brief, would seem from the statement there given to conflict somewhat with our construction of the statute. We have no information respecting the case except that derived from the brief of counsel, and while we entertain great respect for the opinion of the learned judge who wrote in the case, we cannot concur in the conclusions which he seems to have reached.

Judgment affirmed.

UNITED STATES SUPREME COURT ABSTRACT.

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MUNICIPAL BONDS-NEBRASKA STATUTES-" WORK OF INTERNAL IMPROVEMENT -ACTION ON BONDSVALIDITY OF ISSUE.-(1) Bonds issued by the county commissioners of a county in Nebraska, on behalf of a precinct in that county, to aid a company in improving the water-power of a river for the purpose of propelling public grist-mills, are issued to aid in constructing a "work of internal improvement," within the meaning of the Act of Nebraska, of February 15, 1869, as amended by the Act of March 3, 1870 (Laws of 1869, p. 92, and Laws of 1870, p. 15, and Gen. Stat. of 1873, ch. 35, p. 448). In Osborne v. County of Adams, 106 U. S. 181, this court decided, in November, 1882, that under the same statute that is in question here, bonds issued to aid in the construction of a steam grist mill were not issued to aid in the construction of a work of internal improvement. There was a suggestion in the opinion in that case, that the statute did not cover the construction of any kind of grist-mill as a work of internal improvement. During the same term a petition for rehearing was filled, and the attention of the court was called to the case of Traver v. Merrick County, 14 Neb. 327, in which the Supreme Court of Nebraska had held at its January Term, 1883, that county bonds issued by county commissioners, under the act of 1869, as a loan to an individual to aid in building a public grist-mill and water power in the county, were valid. But this court adhered to its view that the act did not cover the construction of a steam grist-mill, and denied the rehearing. Osborne v. Adams County, 109 U. S. 1. In Union Pacific R. v. Commissioners, 4 Neb. 450, it was held in 1876, that a public wagon bridge, over the Platte river, as an extension of a public highway, was a work of internal improvement, under the act of 1869, being a work from the construction of which benefits were to be derived by the public. But the court said that no authority existed to aid a merely private enterprise. See also United States v. Dodge County, 110 U. S. 156. In the State v. Thorne, 9 Neb. 458, 460, in 1880, it was suggested that works of internal improvement, under the act, might include railroads, turnpikes, canals, and

numerous other enterprises, not objects of private concern purely. In Dawson County v. McNamar, 10 Neb. 276, in 1880, it was held that the building of a county court-house was not a work of internal improvement, under the act, and it was said that "works of internal improvement" meant only those works within the State in which the whole body of the people are supposed to be more or less interested, and by which they may be benefited." In Township of Burlington v. Beasley, 94 U. S. 310, this court held that a steam custom grist-mill, not on a water course or operated by water power, was a "work of internal improvement," within an act of Kansas authorizing municipal bonds in aid of "the construction of railroads or water power * * * or for other works of internal improvement." The decision was based, in part, on the ground that there was another act which declared "all water, steam or other mills, whose owners or occupiers grind or offer to grind grain for toll or pay, are hereby declared public mills," and provided for the order in which customers should be served, and prescribed the duties of the miller, and that the rates of toll should be posted; and as it would also be competent for the Legislature to regulate the toll, it was held that aid to the mill was aid of a public work of internal improvement. Enterprise of a class within which that in the present case falls are so far of a public nature that private property may be appropriated to carry them into effect. Boston & Roxbury Mill Corp. v. Newman, 12 Pick. 467; Commonwealth v. Essex Company, 13 Gray, 239, 249; Lowell v. Boston, I11 Mass. 454, 464; Scudder v. Trenton Delaware Falls Co., 1 Cax. Ch. 694; Beekman v. Saratoga & Schenectady R. Co., 3 Paige, 45. And when the Legislature has given to grist-mills and the water power connected with them such a public character as in the present case, the improvement of the water power must be regarded as a public work of internal improvement, which may be aided in its construction by the issue of bonds, under the act in question. (2) Although in such a bond and its coupons the precinct is the promisor, a suit to recover on such coupous is properly brought against the county. (3) Where such bonds purport, on their face, to be issued by the board of county commissioners, on behalf of the precinct, and are signed by the chairman of the board, and attested by its clerk, who is also the clerk of the county, and are sealed with the seal of the county, and the coupons are signed by such clerk, and the bonds refer to the coupons as annexed, the bonds and coupons are issued by the county commissioners. Blair v. County of Cuming. Opinion by Blatchford, J. [Decided April 21, 1884.]

MONEY HAD AND RECEIVED-ASSUMPSIT-RATIFICATION-PRESUMPTION AS ΤΟ PAYMENT.-Whenever

one person has in his hands money equitably belonging to another, that other person may recover it by assumpsit for money had and received. Pickard v. Bankes, 13 East, 20; Spratt v. Hobhouse,4 Bing. 178; Israel v. Douglass,1 Hen. Bla.239; Beardsley v.Root 11 Johns. 464; Hale v. Marston, 17 Mass. 575; Claflin v. Godfrey, 21 Pick. 1. The remedy at law is adequate and complete. A court sitting as a court of equity has no jurisdiction in such a case. Hipp v. Babin, 19 How. 271. If a principal ratifies that which favors nim, he ratifies the whole. Skinner v. Dayton, 19 Johns. 554; Odiorne v. Maxey, 13 Mass. 182; Menkins v. Watson, 27 Mo. 163; Small v. Atwood, 6 Cl. & F. 232. By the common law, the lapse of twenty years, without explanatory circumstances, affords a presumption of law that the debt is paid, even though it be due by specialty. Oswald v. Leigh, 1 Term. 270; Lewis v. Nones, 7 S. & R. 410; Jackson v. Wood, 12 Johns. 242; Best on Presump., § 137. This presumption is a rule

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