that plaintiff was entitled to a cancellation of | the discharge, and to a reinstatement of its mortgage as a lien superior to that of defendant's mortgage; it appearing that the_solicitor's check was worthless.-Independent Bldg. & Loan Ass'n v. Real-Estate Title Insurance & Trust Co., (Pa. Sup.) 27 A. 62.

8. Where the holder of a second mortgage consents to the sale of the timber on the mortgaged property, and accepts the purchase money, he releases the timber from the lien of his mortgage; and a judgment on the first mortgage, against the mortgagor, purchased by the holder of the second mortgage, cannot be used to enforce payment of the second mortgage out of the timber so released.-Pratt v. Waterhouse, (Pa. Sup.) 27 A. 855; Appeal of Collins, Id. Redemption.

9. A mortgagor who has executed to his mortgagee a specific and an accruing mortgage cannot redeem the property covered by the accruing mortgage without redeeming the property covered by both mortgages.-Gleason v. Kinney's Adm'r, (Vt.) 27 A. 208.

10. Though by Code, art. 16, § 188, the land of a decedent is conditionally liable to be sold for the debts, a general creditor is not on that account such an incumbrancer as to have a right to redeem from a mortgage. - McNiece v. Eliason, (Md.) 27 A. 940.

Mandamus to municipal boards and officers, see "Mandamus," 2-6.

Repair of streets and tracks, see "Horse and
Street Railroads," 2-6.
Rescission of contract, see "Schools and School
Districts," 5, 6.

When incorporation implied.

1. If powers and privileges are conferred upon the inhabitants of a certain district, or territorial area, and if they cannot be enjoyed or exercised, and the purposes intended cannot be attained without acting in a corporate capacity, an incorporation to this extent is created by implication, and the intent of the legislature can be shown constructively as well as expressly. Broking v. Van Valen, (N. J. Sup.) 27 A. 1070. Incorporated village.

of Bergen, is an incorporated village, within 2. The village of Carlstadt, in the county the provisions of the sixty-sixth section of the act entitled "An act for the formation and government of villages," approved February 23, 1891, (P. L. 1891, p. 33,) as amended by the ninth section of the amendatory act of 1892, (P. L. 1892, p. 416.)-Broking v. Van Valen, (N. J. Sup.) 27 A. 1070. Delegation of municipal functions to special commission.

12. A mortgage of land to plaintiff's intestate contained the following power: "In trust, *** H., his heirs, executors, and administrators and assigns, * ** are hereby authorized and empowered, to sell all the property hereby mortgaged," etc. At the time the mortgage wis made, H. had no interest in the estate nor in the debt. Held, that he had merely a naked power, which on his death did not pass to his legal representative.-Barrick v. Horner, (Md.) 27 A. 1111.

13. The fact that H. subsequently became assignee of the mortgage did not enlarge his rights with regard to selling the property, since, the power not having been conferred on the mortgagee, H., by merely succeeding to the mortgagee's rights, could not obtain a power which the latter never had.-Barrick v. Horner, (Md.) 27 A. 1111.

14. The designation of H.'s executors in such mortgages as "executors" is not a naming, within Code, art. 66, § 6, providing that "in all mortgages there may be inserted a clause authorizing the mortgagee or any person named therein to sell the mortgaged premises," such as will authorize the executors to execute the power.-Barrick v. Horner, (Md.) 27 A. 1111. Motion.

Motion to quash, see "Criminal Law,” 4.

MUNICIPAL CORPORATIONS. See, also, "Counties;" "Highways;" "Poor and Poor Laws;" "Schools and School Districts;" ""Towns."

Appropriation of water for benefit of cities, see
Waters and Water Courses," 3.
Change of drain by borough, see "Surface Wa-
ter," 1.

City as trustee, use of trust funds, see "Trusts," 17, 18.

Compelling payment of claims allowed through mistake, see "Mandamus," 6. Formation of boroughs, implied repeal of statute, see "Statutes," 4.

Liability for state and county taxes, see "Taxation," 1-3.

Held,

the control of the department of public works in cities of the first class," by its first section provides that commissioners created by any special act for the erection of public buildings in cities of the first class are abolished, and that the erection of public buildings heretofore under the control of such commissioners shall be under the direction, control, and administration of the department of public works. that Special Act Aug. 5, 1870, by which the building commission of Philadelphia was created with authority to erect certain buildings as it should see fit. was not thereby repealed, but the special commission given by the act of 1870 to certain commissioners was merely transferred to a new commissioner, the head of the department of public works; and that the act of 1893 was therefore in violation of Const. art. 3, $20, prohibiting the delegation to any special commission of power to perform any municipal functions. McCollum, Mitchell, and Thompson, JJ., dissenting.-Perkins v. City of Philadelphia, (Pa. Sup.) 27 A. 356. Officers and agents.

4. In an action against a city for salary as city assessor, it appeared that plaintiff was elected to that office in 1890; that in 1888 the city council, organized under the unconstitutional act of May 24, 1887, (P. L. 204,) had passed an ordinance fixing the salary of the city assessor at $3 per day. Held, under Act May 13, 1889, (P. L. 196,) which declared all existing councils legal and their ordinances valid, that plaintiff was entitled to compensation as fixed by said ordinance. 24 A. 668, affirmed.Devers v. City of York, (Pa. Sup.) 27 A. 247; Zimmerman v. Same, Id. 248; Greiman v. Same, Id.

Power of board of electrical subways. 5. The act of March 10, 1892, (P. L. 1892, p. 78,) creating the board of commissioners of electrical subways, authorizing them to order the removal of wires from the surface of streets and the placing of them underground, and requiring wires thereafter placed above ground to be sanctioned by the board, does not empower the board to grant to a street-railway company the franchise of erecting poles and wires in the street to furnish power to propel cars by electricity.-Trustees Presbyterian Church v. State Board Com'rs Electrical Subways, (N. J. Sup.) 27 A. 809.

Compensation of policeman.

6. A poiiceman in the service of a city with the distinct understanding that he shall not be paid for time he is not on duty cannot recover compensation for time he is relieved from actual duty by reason of sickness.-Cox v. City of Oil City, (Pa. Sup.) 27 A. 786. Contracts.

7. A street in a city was incumbered on one side by buildings projecting into it. On the other side the abutters deeded a narrow strip of land to the city as a consideration for its covenant to remove these buildings from within the street, and keep the same open and wrought its whole length, including the strip conveyed to it. Held that, under Rev. St. c. 18, § 52, requiring cities to keep their streets safe and convenient for travelers, but requiring no particular width, the city's covenant was ultra vires and void; and the strip of land, having been conveyed without consideration, should be returned.-Penley v. City of Auburn, 27 A. 158, 85 Me. 278. Control of streets and footways.

8. Where a city ordinance declares that it shall be unlawful to place any goods for sale on part of the footway in front of any house or premises from the line of any street 50 feet and upwards in width to a greater distance than 44 feet, there is an implication that the city will permit goods to be placed for sale on the footway within such limit, and it cannot, by injunction, prohibit a property owner from making such use of the footway in front of his premises within such limit, especially where it permits such use of the footway in front of its own property.-City of Philadelphia v. Sheppard, (Pa. Sup.) 27 A. 972.

9. Towns may determine the location of sidewalks, and prescribe the details of their construction. They may intrust to the discretion of the road commissioner the less important features, or impose on him the entire responsibility.-Bowers v. Barrett, 27 A. 260, 85 Me. 382.

10. The control which a town has over its streets, under the paramount authority of the legislature, is not lost or impaired by an omission to pass a general ordinance respecting sidewalks.-Bowers v. Barrett, 27 A. 260, 85 Me. 382,

11 Under the charter of the city of Trenton, giving the city council authority to pre scribe the manner in which corporations shall exercise any privilege granted them in the use of any street. or in the digging up of the same, a street-railway company will be enjoined from rebuilding its road without the consent of the board of public works of the city which has succeeded to the powers of the council.-Inhabitants of Trenton v. Trenton Pass. Ry. Co., (N. J. Ch.) 27 A. 483.

-Use of streets by railroads.

12. A grant by a municipal corporation to a railroad company of the right to construct its road "across or along such streets as it might find expedient to use," and to occupy so much of specified streets as "may be necessary for the construction of its track, sidings, and branches," does not by necessary implication pass to the company the right to the exclusive use of the streets designated, unless the whole width of the street is reasonably necessary for its business.-Pennsylvania S. V. R. Co. v. Philadelphia & R. R. Co., (Pa. Sup.) 27 A. 683.

13. The occupancy of a street by a single track of a railroad company, continued for many years, under a grant of the right to occupy so much "as may be necessary" for its road, with no facts pointing to the necessity for more than one track at the time it made the appropriation, exhausts the power conferred by the grant; and hence another railroad company, under a subsequent grant from the city, has the right to also occupy the street with

its track, where it does not interfere with or obstruct the first railroad in its right of passage under its prior grant and location.-Pennsylvania S. V. R. Co. v. Philadelphia & R. R. Co., (Pa. Snp.) 27 A. 683. Liability for torts.

14. A town charter gave the town the control of streets in its limits. The trustees having charge of the streets purchased stone from a ledge near a highway, and érected a stone crusher to prepare the stone for use on the highway. Held, that where the horse of plaintiff was frightened by the stone crusher, which was located in part on the highway, and ran away, injuring plaintiff, the trustees were not liable therefor, they being in the exercise of official powers and duties.-Bates v. Horner, (Vt.) 27 A. 134.

15. An instruction that a sidewalk such as

that in question would last only a few years, and that it was the duty of the borough officers "to exercise proper supervision or make proper examination of this pavement, by going upon and testing it, to discover, if by the eye they could do so, whether the pavement was defective or not," holds the borough to too strict a rule of responsibility, and is Lohr v. Borough of Philipsburg, (Pa. Sup.) 27 A. 133.

16. Where there is evidence that an obstruction consisting of a pile of dirt had existed in a much traveled street for about 10 hours, the jury is warranted in finding that, in the exercise of ordinary care, the officers of the city would have discovered and remedied it, and are charged with notice.-Parsons v. City of Manchester, (N. H.) 27 A. 88.

17. In an action against a borough for injuries resulting from a defective sidewalk, notice of the defects cannot be brought home to defendant by evidence that the person who was chief burgess at the time of the accident had, before he was elected burgess, called the attention of the chief of police to such defects.Lohr v. Borough of Philipsburg, (Pa. Sup.) 27 A. 133.

Defective sewers.

18. A city, acting in good faith, and within its quasi judicial power and discretion, is not liable for any private damage that may arise from the inadequacy of a sewer, though it delayed the enlargement thereof after knowledge of such inadequacy.-Hession v. City of Wilmington, (Del. Super.) 27 A. 830.

19. A city is not liable for damage caused by an overflow due to an extraordinary rainfall, though it had allowed the sewer to be obstructed, if the rainfall was so great that the sewer, if clear, could not have vented it so as to prevent the damage.-Hession v. City of Wilmington, (Del. Super.) 27 A. 830.

20 A municipal corporation is liable for public sewer caused by sand and refuse neglidamages resulting from an obstruction in a gently permitted by the city to remain in the streets to such an extent that the water was dammed up, and forced back upon private premises. - Hession v. City of Wilmington, (Del. Super.) 27 A. 830.

Deposit of sewage near wharf.

21. In an action by the owner of a wharf for injuries to his property by the building of a sewer by the city, whereby the filth was deposited in the dock, obstructing access to the wharf, plaintiff can show how his property was affected by the sewer, and that the damage could have been avoided if the city had extended the sewer on its own property further into the river.-Butchers' Ice & Coal Co. v. City of Philadelphia, (Pa. Sup.) 27 A. 376. Public improvements.

22. A borough cannot require a property owner to build a foot walk and gutter on a

newly-opened street pending appeals by such owner from an assessment of benefit accruing to one piece of property, and assessment of damages to another piece, when no security is tendered to, or arrangement is made with, him; and a lien entered against him for the cost of such improvement made by the borough, and penalty for failure of the owner to make it, is illegal.-Borough of Connellsville v. Hogg, (Pa. Sup.) 27 A. 25.

23. Abutting lot owners petitioned the city councils to pave a street with "asphalt blocks,' without further details. After the councils had decided to use a concrete base, petitioners protested, in writing, against using such base, stating that, when they signed the petition, they did not know that such a base was necessary, and that, if the pavement was laid on a concrete base, they would resist payment therefor. Held, that such protest is no defense to the action to recover the expense of the work, because petitioners did not withdraw their names from the petition, and the details of such work must necessarily be left to the municipal authorities.-City of Harrisburg v. Baptist, (Pa. Sup.) 27 A. 8.

24. Where the abutting lot owner petitions the city councils to pave the street, and assess the costs against him according to the footfront rule, he is estopped, after the work is done, to deny the power of the councils to do so.-City of Harrisburg v. Baptist, (Pa. Sup.) 27 A. 8.

Public improvements-Opening street. 25. The petition for the opening of a street under section 41 of the Jersey City charter must show clearly and definitely the location of the lines of the proposed opening.-Wirth v. City of Jersey City, (N. J. Sup.) 27 A. 1065.

26. Under Jersey City Charter, § 41, providing for the opening of streets, and authorizing the commissioners, "where the line of such improvement would bisect any building" to require the owner to "move it back from the line of improvement," in case he have land enough left for that purpose, the commissioners may require the owner of such building to move it on an adjoining lot owned by him, the words "back from" being there equivalent to "off" or "away from."-Wirth v. City of Jersey City, (N. J. Sup.) 27 A. 1065.

Damages.

27. In ascertaining the damages sustained by the opening of a street the jury cannot consider the damage which may thereafter arise from the opening of a neighboring street, laid out, but as yet unopened.-Grugan v. City of Philadelphia, (Pa. Sup.) 27 A. 1000.

28. In a proceeding by a landowner for the assessment of damages accruing from the opening of a street through his land, an instruction that the question for the jury was whether the opening of the street, so far as its effect on the value of property is concerned, was premature or not,, is erroneous.-Grugan v. City of Philadelphia, (Pa. Sup.) 27 A. 1000.

29 Under Const. art. 16, § 8, providing that municipal corporations taking private property for public use must make just compensation for property taken or injured in making improvements, the city is liable to the owner of a wharf for injuries caused by the building of a sewer whereby the filth was deposited in the dock, though the sewer is on the city's land, and opens into a dock adjoining a wharf belonging to the city, and the land on which the sewer was built was not taken by the city in the exercise of the right of eminent domain, and there was no want of skill in the construction of the sewer. Butchers' Ice & Coal Co. v. City of Philadelphia, (Pa. Sup.) 27 A. 376.

30. Pursuant to an ordinance providing for widening a street for the purpose of erecting a bridge over the same, defendant city appropriated a strip of plaintiff's land, abutting thereon, and by agreement the parties settled for the

value of the land so taken; but the agreement was silent as to damages to plaintiff's remaining property, resulting from the erection of the bridge. Held, that the settlement does not estop plaintiff to claim damages, because of the bridge, to his land on the opposite side of the street from the land taken. Affirmed by divided court.-Beaver v. City of Harrisburg, (Pa. Sup.) 27 A. 4.

Assessment of benefits.

31. The remedial act of May 16, 1891, requires viewers of unauthorized improvements to give notice of their meeting, and at the time fixed to personally inspect the improvements, assess the expenses, and ascertain the actual benefits; their report to show the nature of the improvement, the expenses, as ascertained, the properties benefited, and the amounts assessed. Exceptions may be filed, a hearing had, and the report modified; then to be returned to court, where also exceptions may be filed, and thereafter final decree entered. Held, that a lot owner who has filed no exceptions before the viewers or in court cannot, on appeal from the final decree, reverse it on the ground that the viewers' report merely recited the department of public works' statement of cost, as the actual value of the improvements to the lot owners; there being no evidence in the record either way. Travers' Appeal, 25 Atl. 528, 152 Pa. St. 129, distinguished. In re Sewer on Twenty-Eighth St., (Pa. Sup.) 27 A. 1109; Appeal of Pittsburgh Manuf'g Co., Id.; In re Sewer on Twenty-Eighth St., Id. 1110; Appeal of Marshall Foundry & Const. Co., Id.

32. On certiorari to review the assessment for a street improvement, general reasons, which do not state any specific defect or error in the proceedings, will not be regarded by the court.-State v. City of Passaic, (N. J. Sup.) 27 A. 909.

33. Notwithstanding the act of 1881, (Supp. Revision, p. 84, § 1.) provides that it shall be the duty of the court to determine disputed questions of fact in proceedings to review the assessment for a street improvement, still it must clearly appear that some injustice has been done, before an assessment will be set aside.-State v. City of Passaic, (N. J. Sup.) 27 A. 909.

34. Act March 8, 1892, entitled "An act concerning the levying of assessments for sewers," and authorizing the assessment of lands specially benefited by the construction of "lateral" sewers with not only their cost, but also part of the cost of the main sewer into which they empty, is constitutional.-De Witt v. City of Elizabeth, (N. J. Sup.) 27 A. 801.

35. An assessment made since the passage of Act March 8, 1892, under an ordinance of the city of Elizabeth, to build a sewer, which provides that so much of the costs and expenses incurred in the making thereof as lawfully assessed on property specially benefited shall be duly assessed according to the city charter and the general laws of the state, will be sustained, including benefits for both trunk and lateral sewers, unless some valid objection is made thereto.-De Witt v. City of Elizabeth, (N. J. Sup.) 27 A. 801.

36. A village charter provided that every person whose drain entered into a common sewer should be assessed for the cost of its construction. Petitioner's grantor had paid his share of the construction of a private sewer, which was afterwards conveyed, without consideration, to the village. Held, that petitioner was not liable to an assessment when it became necessary to lower the sewer in order to connect with it another sewer constructed to drain another distinct territory. Boyden v. Village of Brattleboro, (Vt.) 27 A. 164.

37. Under a village charter providing that any persons dissatisfied with the decision of the bailiffs as to an assessment for contribution for the building of a sewer may petition the county