thereon, except by statutory enactment, as is applicable to Philadelphia by act of 31st of May, 1841. The extinguishment of fires in a city is not a corporate duty, but is an act exercised in pursuance of the sovereign power conferred for the benefit and protection of all the inhabitants, and relieves them from a common burden and danger. It is not for the immediate benefit of the corporation, as such, nor is its expense assessed upon owners of buildings alone, or any special class of persons whose property is pecuniarily benefited or protected thereby, and it makes no difference whether the legislature prescribed the duties of the officers or delegated the power to the city to do so.

In Hafford vs. The City of New Bedford, 16 Gray, 297, where the city was authorized to establish a fire department, and where the plaintiff was run over and injured by a hose carriage driven carelessly along the highway (a case in every respect like the present), Chief-Justice Bigelow said, "Where a municipal corporation elects or appoints an officer in obedience to an act of the legislature to perform a public service, in which the city or town has no particular interest, and from which it derives no special benefit or advantage in its corporate capacity, but which it is bound to see performed, in pursuance of a duty imposed by law for the general welfare of the inhabitants or of the community, such officer cannot be regarded as a servant or agent, for whose negligence or want of skill in the performance of his duties a town or city may be held liable. The members of the fire department of New Bedford, when acting in the discharge of their duties, are not servants or agents in the employment of the city, for whose conduct the city can be held liable; but they act rather as officers of the city, charged with the performance of a certain public duty or service, and no action will lie against the city for their negligence or improper conduct when acting in the discharge of their official duty.

So in Fisher vs. The City of Boston, 104 Mass., p. 87, a case also like the present, the preceding case was affirmed in an able opinion by Judge Gray, who held that the firemen were public officers, and that their acts were their own official acts, and not the acts of the municipal corporation or its agent.

In Jewett vs. The City of New Haven, 38 Conn., p. 373, it was held that the charter of the city must be regarded as imposing a public duty for the public welfare, and that the fire department, established and organized under the provisions of the charter, when engaged in extinguishing fires, were performing a public governmental act for the general good, and that the members of the fire department were not such servants of the city, and that no action would lie against the city for their negligence or misconduct while acting in discharge of their official duty.

The same ruling was held in Torbush vs. The City of Norwich, 38 Conn. 225; Walcott vs. The City of Swampscott, 1 Allen, 101; Barney vs. The City of Lowell, 98 Mass. 570; City of Chicago vs. Turner, 80 Ill. 419; City of Chicago vs. Mc Graw, 75 Ill. 566.

In the case of O'Meara vs. The City of New York, 1 Daly, 425, which was an action to recover for injuries done plaintiff while standing on the sidewalk, where he was knocked down and run over by a fire engine while in charge of firemen. Judge Brady said, speaking of

the fire department: "Its members owe their allegiance to the city, not as members of the corporation, but as members of an organization identified with the administration of the city government, and forming a part of its protective police."

In Hayes vs. The City of Oshkosh, 33 Wis. 314, where the plaintiff's house was set on fire by sparks from a fire-engine, it was held the city was not liable.

So in Howard vs. The City of San Francisco, 51 Cal. 52, where plaintiff's horse and buggy were injured by a member of the fire department, it was held the city was not liable. So we might continue to a great length with authorities on analogous subjects. Whilst no case in Pennsylvania is directly in point with the present, we may be content with showing the leaning of our Supreme Court in Elliott vs. The City, supra, and also in the case of Grant vs. The City of Erie, 19 P. F. Smith, 423, which was an action against the city to recover damages for allowing certain reservoirs, intended to supply water for extinguishing fires, to fall into decay, by means whereof plaintiff's houses were destroyed by fire, it was held that as it was discretionary with the city to construct the reservoirs, it was not liable.

To maintain this action would be opening the way to make the city liable for the wrongful act of every public officer, & proposition never contemplated in the creation of the municipal corporation.

Whilst it may be a hardship upon the plaintiff to be thus injured, the public good requires that he should look to the individual who occasioned the injury, and not to the corporation within whose bounds it happened. No power but the legislature can impose such a liability upon the city, and it has wisely remained silent.

There being no liability upon the part of the city, the non-suit was properly entered. Rule discharged.

John A. Owens, Esq., for plaintiff.

Messrs. West and Morgan, city solicitors, for defendants.

[Leg. Int., Vol. 36, p. 148.]

JOHN P. PERSCH, to the use of WALLACE, Assignee, etc., vs. THE CONSOLIDATION NATIONAL BANK.

A bailee of stock who has pledged the same cannot recover an excess over the debt due, realized by the holder of the collateral by a suit against the stock company for a refusal to transfer, when the principal or real owner of the stock gave the notice which occasioned the refusal.

An assignee for the benefit of creditors does not acquire any new right or title after the date of the assignment.

Sur rule for new trial. Opinion delivered April 5, 1879, by

ELCOCK, J.-This action is by the assignee for the benefit of creditors of John P. Persch, to recover an alleged balance due by defendant, after payment of a certain debt which it had collected from collaterals pledged therefor. On December 1, 1863, Persch made an assignment for benefit of creditors to one Bernard Sprungk, and in 1868 Sprungk was discharged and Wallace, the equitable plaintiff, was substituted in his stead. Among various transactions was one in which defendant discounted a note of plaintiff for $24,000, due December 29, 1863,

attached to which were certificates for 253 shares of the stock of the West Branch and Susquehanna Canal Company, and seventy-three shares of the stock of the bank defendant. Cash to the amount of $1,250 was collected, and the seventy-three shares of stock of the bank were sold, and the contest was narrowed to the amount actually received by defendant from the 253 shares of stock of the West Branch and Susquehanna Canal Co.

The history of these 253 shares is as follows: They were the property of James W. Quiggle and Cordelia his wife, who intrusted the same to Samuel Hepburn, as their trustee, and to whom they executed an assignment or transfer, with the usual power of attorney. Hepburn for a consideration of one per cent. per month loaned the same to Persch, who was a broker, for the purpose of being used as collateral. Persch, in the course of his financial operations, pledged the said stock with the defendants as collateral for the note of $24,000. About the time this note matured Mr. and Mrs. Quiggle discovered that their trustee had misappropriated their property and the pledge made of it by Persch. Mr. and Mrs. Quiggle and Hepburn then gave notice to the canal company of the negotiation of their stock, and offered to indemnify the canal company if they would refuse to recognize a transfer of the stock: See Persch vs. Quiggle, Hepburn's Appeal, 7 P. F. S. 247. The note of Persch having matured, and not being paid, the bank looked to its collateral. It demanded a transfer of the stock on the book of the company, which was refused, and having made a sale of the stock, and being unable to complete the title by a legal transfer, it commenced suit. against the canal company on November 22, 1864, for the recovery of the damages suffered by the failure to transfer the stock: See Bank vs. West Branch Canal Co., Leg. Gaz., June 3, 1870, p. 169. A judg ment was entered by the Supreme Court in this last case in favor of the bank for $32,672.85. This amount was based upon the value of the stock at the time of the refusal to allow the transfer aud interest. the stock in the meantime had depreciated it was decreed to be sold at public sale, and the difference between the price thus realized and the amount of the judgment was paid in cash by the canal company to the bank. The sum thus realized, together with the stock of the bank and the cash received, it is alleged exceeded the debt due to the bank on the $24,000 note, and it is now maintained that the assignee for the benefit of creditors of Persch is entitled to recover such surplus.

As

Upon the trial it was shown by the testimony of Persch and the records of the cause, that the title to the stock of the West Branch and Susquehanna Canal Company was not in Persch, but was in Mr. and Mrs. Quiggle, as recited. It was also shown that after the judgment in the case of Quiggle vs. Hepburn and Persch, and after his assignment to Sprungk, Persch had paid on account thereof about the sum of $3,000. A non-suit was entered, and it is now contended that it was error.

The question is, had Persch at the time of the assignment for the benefit of creditors any right to said stock for which he could maintain an action against the bank. His assignee, not being a purchaser for value, stood simply in the place of his assignor. If he had paid the principal debt to the bank, and received the collaterals back, he would have been obliged to deliver them to Mr. and Mrs. Quiggle. As a

bailee of the stock, in form he would be entitled to maintain an action for it, if he was an honest bailee; but as he was not, and had no right whatever to traffic with the stock, his assignee would have no claim arising therefrom. A part payment of $3,000 on the judgment in the suit of Quiggle vs. Hepburn and Persch might vest in him some right to be determined between those defendants, but as that right was not perfected at the time of the assignment, and was not a right as against the bank, or by virtue of a bona fide title to the stock existing prior to the assignment, the assignee had no title.

But if it was admitted that the assignee had a right to maintain such action, the action by the Bank vs. The Canal Company, being for damages for a refusal to transfer, and that being founded upon the actual amount which the bank would suffer as a loss upon her debt for which the stock was pledged, the bank would in equity only be entitled to the actual loss upon its debt. Therefore, if any amount was realized from other collaterals pledged for said debt, it went, as a matter of course, in reduction of the bank's loss, and after crediting all sums realized the canal company would be entitled to a return of the amount between the sum it paid and the actual independent loss of the bank; nor could Persch or Hepburn recover this, because they were parties to the wrong, and occasioned the very loss which the canal company had to pay. give them standing they would have had to pay the canal company The total amount which it was obliged to pay by reason of their fraudu lent conduct and notice; this they have not done. As no balance therefore is found to exist in the defendants' hands to which plaintiff was in any way entitled, the nou-suit was properly entered. Rule discharged.

A. A. Hirst and George L. Crawford, Esqs., pro plaintiffs.
Geo. W. Thorn, Esq., pro defendant.

[Leg. Int., Vol. 36, p. 157.]

REA VS. CASSEL.

Το

A deed creating a trust for the benefit of a married woman, with power to collect and receive the rents, direct a sale and devise by will, is a fee simple, and upon the death of the husband the trust falls, and does not revive upon a second marriage. Such estate is liable for necessaries furnished on her order.

Sur rule for a new trial. Opinion delivered April 5, 1879, by ELCOCK, J.-This action is to recover for repairs alleged to be necessaries done by plaintiff upon property alleged to be the separate estate of the defendant, a married woman.

The defendant's title is by virtue of a deed from a former husband, Isaac Boyd, to Daniel R. Erdman, as trustee, dated November 7, 1860. Isaac Boyd died, and defendant was a second time married before the work charged for was ordered by defendant to be done. The trust created by the deed is as follows:

In trust nevertheless, and to, for and upon the uses, intents and purposes following, that is to say: To suffer and permit the said Annie R. Boyd to occupy said real estate, or receive the rents and income thereof, said income to be paid to her, for her own sole and separate use, free from the control or interference of her present or any future husband,

with full power on the part of said trustee, his heirs and assigns, or his successors in said office, to grant and convey said real estate, or any part thereof, by and with the consent of the said Annie R. Boyd, in such parts or portions, and in such manner, for such price for cash, upon ground-rent, or reserving a mortgage, as she may direct and deem proper, notwithstanding any coverture of said Annie R. Boyd; the proceeds of said sale, if so desired by her, to be paid or assigned to her absolutely, and her receipt to be a full discharge to said trustee or his successors in office, therefor, or at her option, said proceeds shall be held by said trustee, subject to her direction and appointment, and with like power of sale or extinguishment, at her request, as to any ground-rent that may be reserved, or in which the proceeds of any sale of said real estate may be invested, with further power to make, sign, seal, execute, acknowledge and deliver, the necessary deeds to the purchaser or purchasers of said real estate, or any part thereof, or any party extinguishing any ground-rent who shall take a title, free, clear and discharged from the trusts and provisions hereof, and without any liability to see the application of the purchase-money, or money paid in extinguishment.

This trust created is an absolutely dry one, and was only intended to oust the then husband's marital rights. She cannot have a more decided and entire control of property. The grantor divested himself of all interest in the property, and no other estate than that in favor of the cestui que trust was created. That this created a separate estate in the married woman cannot be doubted. But it is said, great as it is, it is but a mere equitable estate, and that as such it cannot be bound by the married woman's liability for necessary repairs done upon the premises. The point cannot be well taken, for as she had power to direct a sale of the property, all lesser powers were implied. She had in equity a fee simple. The object of this trust, however, having been accomplished by the death of the first husband, the trust fell and she became vested with the legal estate, nor could the trust revive upon her second marriage under the rulings in Hamersly vs. Smith, 4 Wh. 126; Freyvogle vs. Hughes, 6 P. F. S. 228; Steacy vs. Rice, 3 Casey, 75. She therefore be came the absolute owner of the legal estate in fee simple, and of course could bind it for necessary repairs. Rule discharged.

Jos. Savidge, Esq., for plaintiff.
Thomas Greenbank, Esq., for defendant.

[Leg. Int., Vol. 36, p. 157.]

LLOYD vs. UNDERKOFLER.

A married woman can become a lessee of premises and is bound by all the covenants of the lease signed by her.

A failure of the constable to set apart property under a claim of the exemption law is not a defence in replevin for goods distrained for the rent.

Sur rule for a new trial. Opinion delivered April 5, 1879, by

ELCOCK, J.-This was a replevin for goods distrained upon for rent of premises occupied by plaintiff, a married woman, under a written. lease from the defendant. On the trial the lease was admitted in evidence, which contained a waiver of the law of 9th April, 1849, exempting property to the value of $200 from levy and sale, etc. It is cou