on a contract to pave sidewalks, could maintain an action; and so, too, could an action be maintained against them to levy the assessments in accordance with the statute, to pay the expense of such paving. The villages here were possessed of limited corporate powers of a very simple grade, but the powers conferred were no less corporate. Acts of the legislature have been frequently passed incorporating towns and villages within townships for special and limited purposes. In such cases the inhabitants of the district incorporated remained inhabitants of the township within which the town is situate for all purposes except those within the objects of the municipal government, and the jurisdiction of the township officers continues over them only so far as not inconsistent with the provisions of the incorporating act. State v. Troth, 34 N. J. Law, 387. The village incorporation is of the lowest grade, conferring the most limited powers. It ranks below the borough or the town, but within its range its incorporated powers are as amply protected as those of a city. The conclusion in this case is reached that the villages of Carlstadt and New Carlstadt are incorporated villages within the interpretation of the sixty-sixth section of the act of 1891, as amended, and they cannot take advantage of the other provisions of that act, or be compelled to accept them, except in accordance with the provisions of that section. Therefore the mandamus is refused, with costs.

SENTMAN v. BALTIMORE & O. R. CO. (Court of Appeals of Maryland. Nov. 16, 1893.) RAILROAD DITCHES-OVERFLOW-ACT OF GOD.

In an action against a railroad company for damages to plaintiff's property from an overflow of surface water from ditches and drains on defendant's road, there being evidence that they were in good condition; that a storm during the night caused a cave-in, filling one of them up; and that it was the heaviest fall of rain ever known by persons who had lived in the vicinity for many years, the rain all falling within five hours,-the question of whether the damage was caused by the act of God was properly left to the jury.

Appeal from circuit court, Cecil county. Action by Eli S. Sentman against the Baltimore & Ohio Railroad Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Argued before ROBINSON, C. J., and BRYAN, McSHERRY, FOWLER, BOYD, and BRISCOE, JJ.

Albert Constable and H. Arthur Stump, for appellant. John K. Cowan and John S. Wirt, for appellee.

BRISCOE, J. This was an action on the case, instituted in the circuit court for Cecil county by the appellant against the appellee, to recover damages for alleged injuries to the appellant's property, caused by an overflow

of surface water from ditches and drains on a railroad constructed by the defendant corporation. The appellant is the owner of & farm in Cecil county, and contends that the defendant company, in the construction of its railroad, had, by artificial cuts, fills, and drains, changed the natural surface drainage of certain lands, and had caused the water to flow upon his land, so that in the months of August, 1889, and of July, 1891, his property had been seriously damaged thereby. The defense on the part of the company was that the damage complained of was caused by an extraordinary and unusual rainfall; that is, by the vis major. The verdict and judgment were in favor of the defendant. and the plaintiff has appealed.

At the trial the court granted all the instructions asked for on both sides, and the only exception is to the granting of those on behalf of the defendant. The main objection is urged to the fourth and fifth prayers, and it is upon these that the appellant rests hi appeal. It is therefore on these two prayers that the questions arise to be decided by this court. In the fourth instruction the jury were told that if the injuries to the plaintiff's property were caused solely by an extraor dinary and unusual rainfall or flood, and not by want of ordinary care and skill upon the part of the defendant in the construction or maintenance of its railroad, then their ver dict should be for the defendant. To this instruction the plaintiff made special excep tion on the ground-First, that there was no legally sufficient evidence before the jury, upon which it could properly be left to it to find that the injuries were caused solely by an extraordinary and unusual rainfall or flood; and, secondly, because there was no legally sufficient evidence of any such extraordinary or unusual rainfall or flood as comes within the description of what is called an "act of God." The exception, both general and special, was overruled. We have carefully examined the evidence set forth in the record, and are of opinion that there was no error in the overruling of this exception. The facts upon this branch of the case are these: McNamee, a witness for the defendant, testified that there was a very heavy rain on the night of July 28, 1891, and it rained harder than he had ever known it during the seven years he was there; did not believe he had ever known it to rain harder in his life. The witness Rutter stated that he lived in sight of plaintiff's house, and had resided there more than 35 years; that he remembers the storm of July, 1891, and thinks it was the heaviest rain he had ever known in that locality. There was an extraordinary fall of water. The witness Craig testified that he had resided in that section for 15 years; that he remembers the storm of July 28, 1891, and it was an extraordinary rain It began to rain between 10 and 11 o'clock at night, and rained continuously until about 4 o'clock the next morning. It was the hear

iest fall of rain he had ever seen in the same time. He may have seen it rain as hard, but he never saw it rain so hard so long. He was sitting up with a sick man, John Russell, who lives right at the station. He noticed the storm particularly, and went out on the porch two or three times during the night. There may have been as much of a rainfall in the flood of 1876, but then it rained two days and nights. And it was in testimony by the witness Jackson that he had lived in the immediate section for about 70 years, and the storm of July 28, 1891, was the most extraordinary rainfall he had ever known. And, in reference to the damage done by the flood of 1889, there was evidence on the part of the plaintiff that the character of the damage done by the two floods was of the same kind, but the amount done by the flood of July, 1891, was far greater than that done by the flood of August, 1889; that Amos H. Rutter and Absolom Jackson had appraised the damage done to the plaintiff's property by the flood of August, 1889, and that when he (More) went there, at the request of plaintiff, to appraise the damage done by the flood of 1891, he asked Mr. Absolom Jackson whether he (Jackson) had not appraised the damage done to plaintiff's property by the flood of August, 1889, at $250, and, when answered that he had, said to Jackson, "Don't you think the damage done by this flood three times as large as that done by the flood of 1889?" And Jackson replied that he did. There was also evidence that the ditches and drains were in good order, and always kept open, and that such was their condition before the storm; that the storm caused a large cave-in during the night, and filled up the ditch on the north side of the road, which dammed up the water. Without, therefore, entering into any further recital of the facts, we are clearly of opinion that there was evidence legally sufficient to require the case to be submitted to the jury, and therefore there was no error in overruling the exception to this prayer.

The fifth prayer of the defendant reads thus: "If the jury find the acts of assembly of 1826, (chapter 123,) and 1884, (chapters 232 and 233,) and that, by a proper construction of said acts, the defendant was empowered to locate and construct the railroad mentioned in the evidence, and to make such cuts and embankments as were necessary for the same, and if they find, by reason of the cut mentioned in the evidence, large quantities of surface water from the lands of the adjoining proprietor or proprietors, upon the occasion spoken of by the witnesses, ran upon the defendant's right of way, and further find that said waters escaped from defendant's right of way, and ran upon the lands of the plaintiff, solely in consequence of the clogging or filling up of defendant's side ditches, occasioned by the sudden caving in of the lands along said right of way, or otherwise, caused by an extraordinary rain,

which could not reasonably have been anticipated,-if they shall so find, that then, before the plaintiff can recover for any injury occasioned thereby, the jury must be satisfied that said clogging or filling up of said ditches was due to a want of ordinary care upon the part of the defendant." This instruction, in connection with the other prayers, we think, placed the case properly before the jury. In the case of Railroad Co. v. Davis, 68 Md. 291, 11 Atl. 822, where a railroad company undertook to alter an established outlet through which the surface water was carried, this court held that it was incumbent on the corporation to have the work done in a careful and skillful manner. If done carelessly and negligently, so that, as a consequence, injury to the plaintiff ensued, an action for damages was maintainable. It is well settled that "the construction and repair of sewers (the same rule would apply to railroad ditches and fills) are simply ministerial duties, and for any negligence in so constructing a sewer, or keeping it in repair, the municipality who has constructed and owns it may be sued by a person whose property is thereby injured." Johnston v. District of Columbia, 118 U. S. 19, 6 Sup. Ct. 923. The rule was established by this court in Davis' Case, 68 Md. 291, 11 Atl. 822, that the outlet must be of ample capacity to carry off all the water likely to be in it. But the rule is not applicable to an extraordinary and excessive rainfall, which is held to be vis major. Such infrequent and extraordinary occurrences cannot be foreseen and provided against, and for damages caused by them no one is responsible. In the case of Railway Co. v. Pomeroy, 67 Tex. 498, 3 S. W. 722, it was held that: "If the overflow was of such an extraordinary character that railroad engineers of ordinary care and prudence in the construction of the embankment and culverts could not reasonably be expected to have anticipated and provided against, the railroad was not liable." In the case now under consideration, the prayers, as offered, seem to us to fairly lay down the law of the case on all the questions, and as we discover no substantial error in any of them, and as the evidence was legally sufficient to submit the case to the jury, the judgment will be affirmed.

consent in writing. Held, that a judgment of the commissioners, ratifying the alteration of a road so as to make it pass through plaintiff's front yard, and from which judgment no appeal was taken, was not a bar to an action of trespass, where the records failed to show that plaintiff had given his consent to the change in writing.

Appeal from circuit court, Cecil county.

Trespass by Stephen S. Winchester against the county commissioners of Cecil county. Judgment for defendants, and plaintiff appeals. Reversed.

Argued before ROBINSON, C. J., and McSHERRY, FOWLER, and ROBERTS, JJ.

Albert Constable, for appellant. Wm. S. Evans and Charles C. Crothers, for appellees.

ROBINSON, C. J. This case was fully argued, but the question is one, it seems, in regard to which there cannot be any difficulty. The Code confers upon the county commissioners of the several counties the power to open, to change, and to close the public roads, and prescribes the mode and manner in which this power is to be exercised. In the first place, it provides that persons intending to make application to open, change, or close a public road shall give 30 days' notice of such intention in one of the newspapers published in the county, and upon giving such notice the county commissioners may, if they deem it expedient, appoint three examiners to meet upon the premises, and to examine and determine whether the public convenience requires the road to be opened, changed, or closed, as the case may be; and they are to report the result of their examination and determination, together with the reasons on which their judgment is based, and the damages awarded to each owner through whose land the road may be located, to the commissioners, subject to their ratification, rejection, or alteration, as they may deem just and proper. And any one aggrieved by the judgment of the commissioners in the premises may appeal, within the time prescribed by the Code, to the circuit court. The power thus conferred on the commissioners is subject, however, to this limitation: "No public road," says article 25, § 91, "shall be opened or altered so as to pass through the buildings, gardens, yards, or burial grounds of any person without the consent of the owner thereof in writing."

Now, in this case, upon the application of sundry persons, examiners were appointed to meet on the prenses, and determine whether the public convenience required the public road at or about Frenchtown to be changed from the west to the east side of the Columbia & Port Deposit Railroad, in order to avoid crossing the railroad; and, being of opinion that the public convenience required the proposed change to be made, the examiners so reported to the commissioners, together with the plat

of the road as located by them, and the damages awarded to the owners of land affected by this change. Their report was ratified by the commissioners, and from the judgment of the commissioners no appeal was taken. The road, as located by the examiners, runs across the front yard of the plaintiff, and within a few feet of his dwelling house; and this is an action of trespass against the county commissioners for entering upon the plaintiff's premises for the purpose of constructing the road as thus located. As a defense to the action, the defendants offered in evidence the proceedings under which the road was altered or opened, including the application for the opening or change of the road, the appointment of the examiners, their report to the commissioners, and its ratification by them, and proved that no appeal had been taken from their judgment in the premises. And the question is whether the judgment of the commissioners is a bar to the plaintiff's right to recover; and in determining this question it must be borne in mind that we are not dealing with a judgment of a court of record, exercising a general jurisdiction according to the common law, but with a judgment rendered by a board of county commissioners, exercising a special and limited jurisdiction conferred by statute. And, this being so, it is well settled, when such a judgment is offered in evidence, every essential fact necessary to the exercise of the jurisdiction must appear upon the face of the judgment itself, or upon the face of the proceedings, which, under the statute, may be considered as part of such judg ment. Now, the Code, as we have seen, provides "that no public road shall be opened or altered so as to pass through the buildings, yards," etc., "of any person, without his consent in writing." Without such consent of the owner, the commissioners have no power so to locate the road. This is a limitation imposed upon the exercise of the special jurisdiction conferred by the Code; and it nowhere appears upon the face of the proceedings or judgment of the commissioners ratifying the report of the examiners that the plaintiff ever consented that the road should be located across his yard. On the contrary, it is conceded that no such consent was given, and without his consent the defendants had no power to construct the road as thus located by the examiners. The judgment of the commissioners offered in evidence was therefore a judgment rendered without jurisdiction in the premises, and constituted no bar to the plaintiff's right to recover. Their judgment, acting within the jurisdiction conferred by the Code, is, we agree, conclusive, and binding upon all persons until it is reversed on appeal; but, if rendered without jurisdiction, it is a mere nullity, and binds no one. For these reasons the judgment will be reversed, and new trial awarded.

SCHROEDEL v. HUMBOLDT FIRE INS. CO. OF ALLEGHENY CITY.

(Supreme Court of Pennsylvania. Nov. 13, 1893.)

INSURANCE POLICY-CONDITION-TITLE.

A condition in a fire insurance policy that it shall be void "if the interest of the insured be not truly stated therein, or if the interest of the insured be other than the unconditional and sole ownership," precludes a recovery where the title to the insured property is in the insured and his wife jointly, in the absence of any proof of fraud or mistake as to the insertion of the condition in the policy.

Appeal from court of common pleas, Allegheny county; J. F. Slagle, Judge.

Assumpsit by John Schroedel, for use of himself and Bertha Schroedel, his wife, against the Humboldt Fire Insurance Company of Allegheny City, on a policy of fire insurance. The court directed a verdict for defendant, and, from a judgment thereon, plaintiff appeals. Affirmed.

The charge of the court below was as follows: "I am requested by the counsel for the defendant to instruct you that under all the evidence in this case your verdict should be for the defendant; and the reason of it is this: This policy, upon which suit is brought, and upon which the plaintiff claims, was issued to John Schroedel, and it contains a clause to the effect that it shall be void if the interest of the insured be not truly stated therein, or if the interest of the insured be other than unconditional and sole ownership. It appears in evidence that the title to this property is in the name of John and Bertha Schroedel; therefore the interest is not truly stated, and the sole ownership of the property is not in John Schroedel; therefore the plaintiff would not be entitled to recover, the contract being void according to its very terms. The plaintiff undertook to defeat this by showing that John Schroedel's name was inserted by mistake, and it ought to have been John and Bertha Schroedel. In order to justify that, it is necessary that the evidence of mistake should be clearly established by clear and indisputable evidence. The plaintiff has failed in that, in my judgment, because the fact depends upon the unsupported testimony of Mrs. Schroedel, who says that she told the agent of the company how the title was held. This is contradicted by Mr. Fink, the agent; therefore the testimony of Mrs. Schroedel, being uncorroborated, in my judgment is insufficient to justify a finding that the contract should have been different from what it is; therefore I instruct you that your verdict should be for the defendant."

Montooth Bros. and Jas. T. Buchanan, for appellant. Chas. W. Dahlinger, for appellee.

therein, insured be other than unconditional and sole ownership." The uncontradicted evidence was that the title to the property was in the plaintiff and his wife jointly. This, in the absence of any proof of fraud or mistake as to the insertion of the stipulation above quoted, was a flat bar to plaintiff's recovery. There was therefore no error in directing a verdict for defendant. Judgment affirmed.

or if the interest of the

HAMILTON v. LOCKHART et al. (Supreme Court of Pennsylvania. Nov. 13, 1893.) ACTION ON BOND-AFFIDAVIT OF DEFENSE-SUFFICIENCY-DURESS.

A bond recited a separation between husband and wife, and was conditioned for the payment by the husband to the wife of $100 per month, and was executed by the husband and his mother; and nearly 10 months later the mother gave a written recognition of her liability on the bond, the execution of which she at the same time acknowledged. Held, in an action on the bond, that an affidavit of defense which alleged that the execution of the bond was procured by threats of prosecuting the husband for adultery was not sufficient to prevent an entry of judgment in plaintiff's favor, where it contained no averment that any information had been made, or warrant issued, against the husband, or that the wife, or any one acting in her behalf, had ever agreed not to prosecute the husband for adultery.

Appeal from court of commo" pleas, Allegheny county.

Assumpsit by William Hamilton, trustee of Mary McI. Lockhart, against Charles P. Lockhart and Mary G. Lockhart. Judgment was entered in plaintiff's favor, for want of a sufficient affidavit of defense, and defendants appeal. Affirmed.

The statement of claim contained the following allegations: "That on February 23, 1892, the said Charles P. Lockhart entered into articles of separation with his wife, the said Mary McI. Lockhart, wherein he covenanted to pay unto plaintiff, or to said Mary McI. Lockhart, for the support and maintenance of the said Mary McI. Lockhart and his minor children, the sum of one hundred dollars per month, in advance, beginning March 1, 1892, during her life, and until his youngest child should attain its majority; and on said 23d day of February the said defendants entered into a bond in favor of plaintiff, wherein they bound themselves to pay unto plaintiff the sum of ten thousand dollars,-said bond being given to secure the payment to plaintiff of said monthly installments of one hundred dollars each, a copy of which bond is hereto attached, and made part hereof. That said monthly payments were made to plaintiff up to and including the payment for the month of January, 1893, but no other payments have since been made by said Charles P. Lockhart, or on his behalf; and said Charles P. Lockhart is now in default in the payments provided for and recited in said bond for the months of February, March, and

April, 1893, making a total default of three hundred dollars up to the present time. By reason, therefore, of said default on the part of Charles P. Lockhart, and the failure on the part of defendants to pay, or cause to be paid, the said monthly payments, although both defendants have often been requested, on behalf of plaintiff, so to do, the said recited bond is now forfeited, and this right of action has accrued to plaintiff to recover judgment against defendants for the penalty thereof, to wit, ten thousand dollars, with right to have execution issue on such judgment for the recovery of said three hundred dollars now in default as aforesaid, and for the recovery of any further monthly installments that shall likewise hereafter be in default; so that, however, the aggregate amount so recovered shall in no event exceed the sum of ten thousand dollars. That the said Mary G. Lockhart, one of the defendants, did, on December 15, 1892, further recognize her liability on said bond by entering into a writing indorsed on a true copy of said bond, a true copy of which writing is as follows: 'I, Mary G. Lockhart, do hereby acknowledge that I signed the original bond of which the foregoing is a copy, whereby I and my son, Charles P. Lockhart, are bound unto William Hamilton, trustee of Mary McI. Lockhart, in the sum of ten thousand dollars, conditioned for the payment by said Charles P. Lockhart to said trustee of one hundred dollars per month for the purpose set forth in said bond. And I hereby recognize my liability on said bond. Witness my hand December 15th, 1892. [Signed] Mary G. Lockhart. Wm. Hamilton, Trustee of Mary McI. Lockhart. By Thos. D. Chantler, his Attorney. Attest: [Signed] O. D. Thompson.'

The affidavit of defense contained the following allegations: Charles P. Lockhart, one of the defendants, is the husband of Mary McI. Lockhart, the use plaintiff. That, previous to the execution of the bond on which this suit is brought, the plaintiff, said Mary, had charged the said Charles P. Lockhart with infidelity, and with having committed adultery with parties to the plaintiff unknown, and that, pursuance to such charge, he had employed detectives to follow and spy upon the said Charles P. Lockhart. That said detectives had procured from certain persons letters alleged to have been written by said Charles P. Lockhart to other females. That they had, as they alleged, procured evidence sufficient to arrest and convict him of adultery. That, having thus prepared these charges, they fixed a time and place for meeting, confronted him with the charges, and told him that they had the evidence to convict him of the charge of adultery, and demanded from him the execution of written articles of separation between him and his wife, and the execution, also, of a bond in the sum of ten thousand dollars, conditioned for the payment of one hundred dollars per

month to his said wife, as the condition of his immunity from arrest and conviction on the said charge. That he, with his attorney, O. D. Thompson, listened to these charges, and refused to accede to the demands and to sign either the article of separation or the bond. That, to impress him with the necessity of immediately executing the said papers, the said plaintiffs told the said Charles P. Lockhart that they had an officer in waiting in an adjoining room, which officer was pointed out, and was present for the purpose indicated, to wit, to arrest the said Charles P. Lockhart in default of his execution of the said papers. That the said Charles P. Lockhart, being under duress, threatened with arrest and conviction, yet, under the advice of his counsel, refused to sign either of said papers, but requested an adjournment of the meeting to another day. That they met again, when the same charges were repeated, the same threats made, with more vindictiveness than before. That to escape arrest, and to evade a prosecution, to settle and compound the charges, and to escape conviction for the crime charged, to wit, adultery, and to settle, compound, and be freed forever from the said charge, notwithstanding the advice of his counsel, the said Charles P. Lockhart, under these circumstances, intimidated in this manner, and for the purpose of escaping the punishment, as stated, signed his name to the said bond. That the said Charles P. Lockhart did present to his mother a certain paper for her signature, which he obtained, but that it now turns out that it was a paper different from the one his mother supposed it to be when she attached her name thereto. That subsequently, in her absence, some one attached his name to the said bond as a witness to the signature, although he did not see the bond signed, or know that it had been executed. That the signature of the said Mary G. Lockhart was procured to the said bond, thinking that she was at the time signing another paper, and not knowing that she was becoming responsible for the payment of ten thousand dollars, as stipulated in said bond. That the plaintiffs, knowing the informality of the boud, as far as she was concerned. and believing, as affiants do, that its execu tion was then void, wrote to the attorney of the affiants, or, rather, the attorney of the plaintiffs, at their instance, wrote a letter to the affiants' attorney, to wit, O. D. Thompson, in which letter the threats already made as to the arrest and conviction of the affiant Charles P. Lockhart were repeated, and Charles P. Lockhart was again threatened unless the said Mary G. Lockhart would attach her name to, or recognize and affirm, the said ten thousand dollar bond. That this letter was presented to the said Mary G. Lockhart, the contents read and explained to her; but in the mean time the said attorney of the plaintiffs had already visited the said Mary G. Lockhart, repeated, in substance,