U. S. 582, 28 L. 1087, 5 S. Ct. 685, limiting inquiry to whether statute depriving corporation of franchises impaired obligation of contract; Lehigh, etc., Co. v. Easton, 122 U. S. 392, 30 L. 1060, 7 S. Ct. 919, refusing to review decision of State court holding that contract rights were not exclusive; New Orleans Water Works v. La. Sugar Co., 125 U. S. 30, 31 L. 612, 8 S. Ct. 748, and Missouri v. Harris, 144 U. S. 211, 36 L. 409, 12 S. Ct. 839, holding court without jurisdiction over decision of State court denying right claimed under contract; St. Paul, etc., R. R. v. Todd Co., 142 U. S. 286, 35 L. 1015, 12 S. Ct. 283, dismissing writ where only question involved was extent of exemption clause in charter; Hanford v. Davies, 163 U. S. 278, 41 L. 159, 16 S. Ct. 1053, affirming S. C., 51 Fed. 259, holding proceeding of Probate Court, selling property, not within constitutional prohibition; Gas Light v. Saginaw, 28 Fed. 533, holding court taking jurisdiction over case of conflicting grants made by municipal corporation. Approved in Denny v. Bennett, 128 U. S. 495, 32 L. 493, 9 S. Ct. 136, holding statutes limiting rights of creditor to enforce claims against property constitutional; Winona, etc., Co. v. Minnesota, 159 U. S. 529, 40 L. 248, 16 S. Ct. 84, approving decision of State court, holding exemption clause ineffective when equitable title passed; in concurring opinion in Canal Company's Case, 83 Md. 626, 35 Atl. 365, court holding lien of trustees cannot be impaired by State action; Snell v. Dwight, 121 Mass. 349, holding petition to amend record to show Federal question made too late.

Distinguished in University v. People, 99 U. S. 320, 25 L. 388, reviewing decision of State court limiting exemption clause to property in immediate use.

4 Wall. 182-185, 18 L. 319, UNITED STATES v. DASHIEL.

Officers.- Loss of public money through theft or robbery and without fault, does not discharge receiver and disburser of it, or his sureties, from obligation on official bond, p. 185.

Cited and followed in United States v. Keehler, 9 Wall. 88, 19 L. 576, holding postmaster liable for money paid upon order of Confederate government; Boyden v. United States, 13 Wall. 24, 20 L. 529, holding receiver not discharged by showing money was forcibly taken from him; United States v. Farrell, 8 Biss. 263, F. C. 15,073, holding distiller not released from liability for taxes on account of fire; Bosbyshell v. United States, 77 Fed. 948, 39 U. S. App. 474, holding superintendent and bondsmen liable for bullion stolen without fault; United States v. Bryan, 82 Fed. 293, collecting cases and holding postmaster liable for funds embezzled by clerk, appointed under civil service laws; United States v. Zabriskie, 87 Fed. 720, holding melter and refiner liable for embezzlement by assistant; Gartley v. People, 24 Colo. 157, 49 Pac. 272, Township v. Powell 67 Mo. 397, 29 Am. Rep. 514, Mississippi Co. v. Moore, 74 Mo. 417,

VOL. VI-37

41 Am. Rep. 324, Bush v. Johnson Co., 48 Neb. 10, 58 Am. St. Rep. 679, 66 N. W. 1025, 32 L. R. A. 227, People v. Faulkner, 107 N. Y. 483, 14 N. E. 417, and Wilson v. Wichita Co., 67 Tex. 649, 4 S. W. 68, all holding official liable for funds lost through failure of bank; District Township v. Morton, 37 Iowa, 553, collecting cases, Hennepin Co. v. Jones, 18 Minn. 206, Board v. Jewell, 44 Minn. 428, 20 Am. St. Rep. 587, 46 N. W. 915, Commissioners v. Lineberger, 3 Mont. 242, 35 Am. Rep. 465, Inhabitants v. McEachron, 33 N. J. L. 342, Tillinghast v. Merrill, 151 N. Y. 143, 56 Am. St. Rep. 616, 45 N. E. 377, 34 L. R. A. 682, collecting cases, and Board v. Clarke, 73 N. C. 258, all holding public official liable for public moneys stolen without his fault. Approved in Perley v. Muskegon Co., 32 Mich. 140, 20 Am. Rep. 643, holding treasurer bound to account for what he receives; in dissenting opinion in State v. Gramm, - Wyo. —, 52 Pac. 552, 40 L. R. A. 708, majority holding treasurer not liable for money lost by failure of bank. See valuable note discussing this subject in 67 Am. Dec. 366, 368, 372.

Distinguished in United States v. Adams, 11 Sawy. 106, 24 Fed. 350, holding collector of port not liable in bond while transporting money as carrier. Denied in dissenting opinion in United States v. Thomas, 15 Wall. 353, 354, 21 L. 94, majority distinguishing and holding receiver of public moneys excused from liability, where loss due to rebels; State v. Houston, 78 Ala. 581, 56 Am. Rep. 60, Healdsburg v. Mulligan, 113 Cal. 214, 215, 216, 45 Pac. 339, 340, 33 L. R. A. 464, Wilson v. People, 19 Colo. 203, 41 Am. St. Rep. 246, 34 Pac. 946, 22 L. R. A. 452, and n., Cumberland v. Pennell, 69 Me. 369, 371, 31 Am. Rep. 290, 291, and Livingston v. Woods, 20 Mont. 98, 100, 49 Pac. 439, 440, all holding public official not liable for moneys lost without his fault; dissenting opinion in Gartley v. People, 24 Colo. 170, 49 Pac. 277, majority holding treasurer liable for money deposited in solvent bank which subsequently failed; York Co. v. Watson, 15 S. C. 9, 40 Am. Rep. 678, and State v. Gramm, Wyo. 52 Pac. Rep. 540, 40 L. R. A. 698, all holding public officer not liable for money lost by failure of bank; State v. Copeland, 96 Tenn. 302, 311, 54 Am. St. Rep. 843, 848, 34 S. W. 428, 430, 31 L. R. A. 845, holding public officer not liable as insurer for public funds in his custody; Marx v. Parker, 9 Wash. 478, 43 Am. St. Rep. 852, 37 Pac. 676, holding public funds deposited in bank, not attachable by creditor of public officer.

Trial. A court is not justified in giving an instruction contrary to law; especially where plea relied on as ground for such instruction constitutes no defense, but is frivolous and would be stricken from record on motion, p. 185.

Pleading. Plea by way of set-off or abatement which only goes to part of cause of action, cannot be relied on as a plea in bar, p. 185.

Trial.- A motion for a new trial is not a waiver of exceptions. p.

185.

Cited and relied upon in Preble v. Bates, 37 Fed. 774, holding presenting exceptions not of itself constituting waiver of motion for new trial; Dupuies v. Thompson, 16 Fla. 72, reviewing exceptions where motion for new trial cannot be considered; Tyler v. Shea, 4 N. Dak. 382, 50 Am. St. Rep. 662, 61 N. W. 470, holding acceptance of benefit by one absolutely entitled not waiving right to appeal.

4 Wall. 186-187, 18 L. 321, UNITED STATES v. ALLSBURY. Principal and surety.- Surety's liability cannot exceed that of principal, p. 186.

Wyo.

Cited and followed in Roberts v. Board of Commissioners, -, 56 Pac. 924, holding sureties not liable on bond where principal not liable for moneys lost.

Principal and surety.- Judgment at law fixing principal's liability is admissible as evidence, and determines amount of judgment in action against surety. The latter will not be reversed as too small, because judgment fixing principal's liability subsequently is reversed, p. 187.

Cited and followed in Moses v. United States, 166 U. S. 600, 41 L. 1130, 17 S. Ct. 693, admitting judgment against principal as evidence in action against surety.

Distinguished in Hellams v. Abercrombie, 15 S. C. 117, 40 Am. Rep. 689, holding surety entitled to foreclose for full amount though judgment against principal less.

4 Wall. 187-189, 18 L. 388, LEFTWITCH v. LECANU.

--

Exceptions, bill of. Where an instrument is not incorporated into bill of exceptions, it must be annexed to it or so marked as to leave no doubt when found in record that it is the one referred to. A copy of note sued on, attached to pleadings, does not become part of bill by being merely mentioned therein as having been offered in evidence, p. 189.

Cited and followed in Reed v. Gardner, 17 Wall. 411, 21 L. 665, refusing to consider depositions, exhibits, certificates, contained in transcript, but not in bill; United States v. Three Hundred and Thirty-seven Cases Wine, 1 Woods, 48, F. C. 16,506, refusing to consider deposition not identified and inserted in record after signing exceptions; Southwestern, etc., Co. v. Frari, 58 Fed. 173, 8 U. S. App. 444, refusing to consider exceptions unless evidence out of which questions arose be given; St. Louis, etc., R. R. v. Godby, 45 Ark. 490, holding direction in bill for clerk to insert Instructions, does not identify them; Pennsylvania Co. v. Sears, 136 Ind. 482, 36 N. E. 355, holding deposition placed within bill, but

not fastened to it, not part thereof; New Albany v. Iron Substructure Co., 141 Ind. 509, 40 N. E. 47, holding commissioner's report of evidence, not part of record by direction "here insert;" Atchison, etc., R. R. v. Wagner, 19 Kan. 340, sustaining motion to strike out bill of exceptions containing directions to insert; Gunn v. Ohio River R. R., 37 W. Va. 424, 16 S. E. 629, holding reference to paper, clearly identifying it, makes such paper part of record.

4 Wall. 189-196, 18 L. 416, MAYOR v. SHEFFIELD.

A municipal corporation having legal title to street and using and treating it as public, is liable for injuries caused by its negligent maintenance. A plea, to action for injuries so caused, that locus in quo was not a legally established public street is not a defense, p. 194.

Cited and followed in Eastman v. Clackamas Co., 32 Fed. 28, and Greenwood v. Westport, 60 Fed. 570, 63 Conn. 593, all allowing damages against municipality for negligently maintaining bridge; Roundtree v. Commissioners, 80 Ind. 484, 41 Am. Rep. 826, issuing mandamus to compel commissioners to repair bridge; Leavenworth v. Laing, 6 Kan. 286, holding city estopped from denying street was legally dedicated; Abilene v. Wright, 4 Kan. App. 711, 46 Pac. 716, holding evidence, showing general use of road and repair by city, sufficient; Shartle v. Minneapolis, 17 Minn. 312, holding city by assuming control of bridge became liable for injuries received thereon; Sewell v. Cohoes, 75 N. Y. 51, 31 Am. Rep. 422, and Houfe v. Fulton, 34 Wis. 619, 17 Am. Rep. 470, both holding municipal corporation estopped from denying that highway was a public street; Collensworth v. New Whatcom, 16 Wash. 231, 47 Pac. 441, collecting cases and holding city liable for injuries though acting be yond its corporate powers; Phillips v. Huntington, 35 W. Va. 411, 14 S. E. 19, reviewing cases and holding prima facie case established when plaintiff shows city treated place as public. Approved in Wilson v. Wheeling, 19 W. Va. 349, reversing judgment, where instructions implied that exemplary damages might be awarded.

A municipal corporation is liable for personal injuries, the result of carelessness and negligence on part of public authorities in maintaining streets, p. 195.

Cited and followed in Barnes v. District of Columbia, 91 U. S. 551, 23 L. 443, Mayor v. Waldner, 49 Ga. 321, Cleveland v. St. Paul, 18 Minn. 286, and Ludlow v. Fargo, 3 N. Dak. 489, 57 N. W. 508, collecting cases, and holding municipal corporation liable for negligently leaving excavation unguarded; Galveston v. Posnainsky, 62 Tex. 129, collecting cases, and holding municipal corporation liable for injuries caused by negligent keeping of streets; Lenzen v. New Braunfels, 13 Tex. Civ. App. 351, 35 S. W. 348, holding city liable for negligently failing to supply water to extinguish fire;

Petersburg v. Applegarth, 28 Gratt. 344, 26 Am. Rep. 362, holding city liable for loss of vessel due to submerged pile. Approved in Chapman v. Milton, 31 W. Va. 389, 7 S. E. 24, holding necessary to allege that place was a public street, or so used. See note on this subject in 66 Am. Dec. 437.

Distinguished in Hill v. Boston, 122 Mass. 371, 380, 23 Am. Rep. 358, 366, holding city not liable for injuries caused by defective construction of schoolhouse.

A municipal corporation cannot be held liable for injuries arising out of negligent maintenance of public streets by corporate authori ties, unless it be shown, actually or constructively, that corporation has knowledge of the negligent condition of such streets, pp. 195, 196.

Cited and followed in Denver v. Dean, 10 Colo. 379, 3 Am. St. Rep. 597, 16 Pac. 32, holding instructions charging city with notice insufficient; Orlando v. Heard, 29 Fla. 589, 11 So. 184, sustaining demurrer, where declaration does not show municipal corporation had notice; Doulson v. Clinton, 33 Iowa, 399, reversing judgment where evidence fails to show knowledge of defect; Kranz v. Mayor, 64 Md. 498, 2 Atl. 911, holding sufficient for jury testimony whether city had notice of repairs being negligently conducted; Baltimore v. Schnitker, 84 Md. 43, 34 Atl. 1134, holding no evidence to show sewer improperly constructed or negligence in maintaining it; Lindholm v. St. Paul, 19 Minn. 246, presuming notice where defect in public street is open and notorious; Freeholders v. Hough, 55 N. J. L. 642, 28 Atl. 91, holding freeholders chargeable with notice, where danger openly existed two weeks; Requa v. Rochester, 45 N. Y. 136, 6 Am. Rep. 57, holding defect in bridge known to inhabitants, sufficient to charge city with notice; Hume v. New York, 47. N. Y. 646, holding error in not instructing that city was not liable for secret defect; Jones v. Greensboro, 124 N. C. 314, 32 S. E. 676, reversing case where plaintiff failed to show notice of defects, causing injury; Ludlow v. Fargo, 3 N. Dak. 491, 57 N. W. 508, holding city chargeable with notice, where ditch was result of act of city; Mack v. Salem, 6 Or. 279, reversing judgment where evidence failed to show notice of defect by city. Approved in Franke v. St. Louis, 110 Mo. 540, 19 S. W. 944, holding sufficient to go to jury evidence of open and obvious defect; Dunn v. Wilmington, etc., R. R., 124 N. C. 260, 32 S. E. 713, holding keeping of engine under head of steam, evidence of negligence; Curry v. Mannington, 23 W. Va. 20, stating general rule as to notice required to charge municipal corporation with negligence. See note on this subject in 7 Am. Rep. 43.

4 Wall. 196-204, 18 L. 322, CHRISTY v. PRIDGEON.

Ejectment.- Prior possession is sufficient evidence of title against mere intruder and trespasser, p. 202.