ultimately recovered back from Ponton: Robbins v. Chicago, 4 Wall. 657.

And again, the plaintiff and the defendant had a legal 704 right to make the contract which they entered into, and the consideration having been paid by Ponton, he must be protected in his right under that contract. He cannot be protected in those rights if the town is, by law, permitted to recover out of him whatever damages the town might be compelled to pay the plaintiff. And the town, as we have seen, can bring such an action against Ponton and recover from him the amount which it, by process of law, had been made to pay on account of his negligence.

Such a result would be the complete destruction of Ponton's rights under his contract with the plaintiff. His honor should have instructed the jury that upon the evidence the plaintiff could not recover.

New trial.

TO MAKE PERSONS JOINT TORT FEASORS, concert of action and common intent and purpose are generally necessary: Valparaiso v. Moffitt, 12 Ind. App. 250, 54 Am. St. Rep. 522; though all who aid, command, advise, or countenance the commission of a tort by another are liable in the same manner as when they do it with their own hands: Moir v. Hopkins, 16 Ill. 313, 63 Am. Dec. 312.

THE RELEASE OF ONE JOINT TORT FEASOR is the release of the others: See the monographic note to Seither v. Philadelphia Traction Co., 11 Am. St. Rep. 906-909.

A CITY AND THE OWNER OF A BUILDING ARE BOTH LIABLE to one who falls into an excavation extending onto the sidewalk, with descending steps to a cellarway in the front of the building: See the monographic note to Phillips v. Coffee, 63 Am. Dec. 357.

PRICHARD v. BOARD OF COMMRS. OF MORGANTON. [126 North Carolina, 908.]

COUNTIES-DEALING WITH SMALLPOX-BURNING HOUSE.-Under statutes conferring power to make regulations to prevent the spread of contagious and infectious diseases, and to destroy such furniture or other articles which shall be believed to be tainted or infected with such diseases, neither a town nor county has authority to burn a residence house to prevent the spread of such diseases. A proper disinfection would be the extent of their powers in respect to property thus tainted or infected.

COUNTIES AS MUNICIPAL CORPORATIONS-LIABIL ITY.-Counties are not, in a strict legal sense, municipal corporations, but are rather instrumentalities of government, with corporate powers to execute their purposes, and they are not liable in damages, in the absence of statutory provisions giving a right of action against them.

MUNICIPAL CORPORATIONS WHEN LIABLE FOR AGENT'S ACTS.-Towns and cities are, as a general rule, liable for the negligent discharge, by their officers and agents, of specific duties imposed by law, or when such authorities are acting within the scope of their authority in the management of their property for their own interest, or in the exercise of powers voluntarily assumed for their own advantage, even though such work inures to the benefit of the municipality.

MUNICIPAL CORPORATIONS-WHEN NOT LIABLE.-In the absence of statute. a city or town incurs no liability for the negligence of its officers, where they are exercising the judicial, discretionary, or legislative authority conferred by its charter.

COUNTIES - LIABILITY FOR BURNING HOUSE.-A county is not liable to a plaintiff in tort for the burning of his house, in the absence of statute imposing such liability, either expressly or by necessary implication.

MUNICIPAL CORPORATIONS-LIABILITY FOR BURNING HOUSE.-A city or town is not liable to a plaintiff in tort for the burning of his house, where its officers were acting for the benefit of the state at large, and they unreasonably exceeded the powers conferred on them by law.

PLEADING-DEMURRER-MISJOINDER OF CAUSES OF ACTION.-A complaint is not demurrable on the ground of misjoinder of causes of action where they all grow out of the same transaction.

S. J. Ervin and Avery & Ervin, for the appellants.

J. T. Perkins, for the appellee.

909 MONTGOMERY, J. The plaintiff, Nancy Prichard, a tenant in dower, brought this action against the commissioners of the town of Morganton, the board of commissioners of Burke county, and R. T. Claywell and Robert Ross as their agents and servants, to recover of them damages for burning the house in which she lived, and certain personal property therein, as a nuisance, because of alleged smallpox taint and infection; for injury and damage to growing crops on the same, and for unlawfully and wrongfully depriving her of her liberty by seizing and carrying her to a pesthouse for smallpox patients, and keeping her there for weeks in restraint of her freedom, and contrary to her will. The persons entitled to the remainder interest in the real estate are the other plaintiffs in this action.

The commissioners of Morganton, for one cause of demurrer to the complaint, say that the complaint fails to allege

that the tortious acts complained of were within the scope of the powers conferred on said corporation by its charter, and that it appears on the face of the complaint that the acts complained of are not within the scope of the powers of the 910 corporation, and, for another ground of demurrer, say that if the acts complained of had been done under the express direction of the town commissioners the conduct of the commissioners would have been ultra vires.

The board of commissioners of the county demurred to the complaint, and amongst the grounds assigned these two seem to be the chief: "1. That the acts alleged to have been done by these defendants and constituting the plaintiff's cause of action against these defendants are not within the scope of the corporate powers and duties conferred upon or delegated to these defendants by law; 2. That said acts are not alleged to have been done or performed under or in pursuance of any order, resolution, or direction of these defendants, and these defendants are in no way liable."

The defendant Claywell demurred, because the complaint alleged that he was merely acting as the agent of the other defendants, and that there was imputed to him as an individual no unlawful or wrongful act.

We have examined the charter of the town of Morganton (Private Laws 1885, c. 120), and find no authority given to the town commissioners to burn or destroy any house or residence. In section 37 the town commissioners are authorized to take such measures as they may deem effectual to prevent the entrance into the town or the spread therein of any contagious or infectious diseases; and under those powers they are permitted to cause to be destroyed or disinfected such furniture or other articles which shall be believed to be tainted or infected with any contagious or infectious diseases, or of which there shall be reasonable cause to apprehend will generate or propagate diseases, and may take all other reasonable steps to preserve the public health, and for this purpose may use any money in the treasury.

That statute certainly does not even purport to give to the 011 town commissioners the right to burn a house in which a family, infected or thought to be infected with a contagious disease, reside. The right of the commissioners to destroy the property, indeed, is not admitted by the plaintiffs, but it is intimated that they acted under the authority of the act of 1893,

chapter 214, section 22; but upon examination of that section it appears that reference is there made to the powers and duties of the superintendents of health of the several counties. No powers or rights are there given to the town commissioners or to the board of commissioners of the county. It is there provided that, in cases where the county superintendent of health declares that a nuisance exists on premises, it shall be removed or abated at the expense of the town, city, or county in which the offender lives, in case of his inability to remove it, with the proviso that the expense chargeable to the town, city, or county shall not exceed one hundred dollars.

In reference to the powers conferred by law upon boards of county commissioners, we find that by subsection 22 of section 707 of the code, they can establish public hospitals for their several counties in cases of necessity, and make rules, regulations, and by-laws for preventing the spread of contagious and infectious diseases and for taking care of those afflicted thereby, the same not being inconsistent with the laws of the state. By no reasonable construction of that subsection of the code can it be held that the boards of county commissioners can burn a residence house to prevent the spread of contagious and infectious diseases. A proper disinfection would be the extent of their powers in respect to property thus tainted or

infected.

It is not alleged in the complaint that the acts complained of were ordered by the county superintendent of health; nor does the cause of action as stated in the complaint proceed upon the idea that property was destroyed by the defendants 912 under a method allowed by law, and that the plaintiff is entitled to compensation for its loss. The action is one purely in tort.

It is well settled in this state that counties, that is, the boards of county commissioners in their corporate capacity, are not ordinarily liable to actions of a civil nature for the manner in which they exercise or fail to exercise their corporate powers. They may be sued only in such cases and for such causes as may be provided for and allowed by the statute. Counties are not, in a strictly legal sense, municipal corporations like cities and towns; they are rather instrumentalities of government, and are given corporate powers to execute their purposes, and they are not liable for damages in the absence of statutory provisions giving a right of action against them:

White v. Commissioners, 90 N. C. 439, 47 Am. Rep. 534; Manuel v. Commissioners, 98 N. C. 9.

There is, however, a distinction between the liability of a county for failure to discharge corporate duties and that of a town or city for such a failure. Towns and cities are, as a general rule, liable in damages for the negligence of their officers and agents when specific duties are imposed by their charters and special statutes, when the damages are caused by their failure to discharge such duties and to exercise the powers conferred to that end, or when the town authorities are acting within the scope of their authority in the management of their property for their own interest, or in the exercise of powers voluntarily assumed for their own advantage, and that, notwithstanding the work they are engaged in will inure to the benefit of the municipality. But it is said in Moffitt v. Asheville, 103 N. C. 237, 14 Am. St. Rep. 810: "Where a city or town is exercising the judicial, discretionary, or legislative authority conferred by its charter, or is discharging a duty imposed solely for the benefit of the public, it incurs no liability 913 for the negligence of its officers, though acting under color of office, unless some statute expressly or by necessary implication subjects the corporation to pecuniary responsibility for such negligence."

But the plaintiff does not complain of a negligent act of either of the defendants. The alleged cause of action is a positive act in tort-the burning of a residence house as a sanitary measure. The board of commissioners of the county, as representing officially the county, are not liable to the demand of the plaintiff, for the reason that there is no statute in existence which makes them so, either expressly or by necessary implication. The town commissioners, as representing the town community, are not liable, for the reason, first, that the act complained of was for the interest of the state at large, and because they unreasonably exceeded the powers conferred on them by the charter of Morganton or by any special statute in aid thereof.

The case is before us on demurrer, and of course the facts concerning the burning are to be taken as true for the purposes of the demurrer. If, however, it be a fact that the house in which the plaintiff lived was burned as alleged in the complaint, it was a most high-handed and unreasonable