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Granger and wife o. Pulaski County.

[DECEMBER

power, and incurring no obligations save those especially conferred or imposed by statute.

Chief Justice Parker, of Massachusetts, in speaking of these involuntary corporations, said: “That they are not bodies politic and corporate, with the general powers of corporations, must be admitted;" and the reasoning advanced to show their defect of power is conclusive: “They may be considered, under our institutions, as quasi corporations, with limited powers, co-extensive with the duties imposed upon them by statute or usage, but restrained from the general use of authority, which belongs to these metaphysical persons."

It is well settled that, at common law, these quasi corporations are not liable to a private action at the suit of a party injured, resulting from the non-performance by its officers of a corporate duty, and no such action lies unless given by statute. This doctrine has been repeatedly asserted and applied by the courts of this State, where actions have been brought against counties and townships for injuries received in consequence of defects in the public highway. We know of but one State in which a contrary opinion is held. See Mower v. Leicester, 9 Mass., 250; Bartlett v. Crozier, 17 Johnson, 19; King v. Police Jury, 12 La., 858; Hedges v. County, 1 Gillam, 567; Moray v. Newfane, 8 Barb, 645; 21 Cal., 426; 2 N. H., 393; 27 Barb., 543; 4 Mich., 557; 11 N. Y.,392.

In the case of Humphries v. Armstrong County, 56 Pa. St. R,. 204, cited by appellants, the question here raised does not seem to have been passed upon. It may be observed, however, that the statute of that State makes it an imperative duty for the county to repair all bridges in the county.

Numerous decisions have been cited by appellant's counsel, wherein cities and municipal corporations have been held liable. It must be borne in mind, however, that municipalities are usually created by express charter, in which the State parts with a portion of her sovereignty, and grants them large powers of self-government; larger powers of acquiring and controlling corporate property are conferred than on counties;

TERM, 1870.]

Blair, a dm'r. 0. Alston.

special and peculiar priviliges are given them as to streets and public ways, and special authority given for the use of public ways for the convenience of the citizen, unknown elsewhere. The benefits conferred raise an implied promise of the corporation to fulfill every corporate duty and obligation. The assumption of corporate powers by a municipality is voluntary. In this respect they assimilate a private corporation; and, having accepted a valuable franchise on the condition of the performance of certain public duties, are held to contract by the acceptance, for the performance of those duties.

There is no statute in this State rendering counties liable in actions sounding in tort, and the circuit court did not, therefore, err in overruling appellants's demurrer.

Judgment affirmed.

BLAIR, Adm'r. v. ALSTON.

FRAUDLENT DEED—Fraud may be shown against any deed, and evidence

tending to show fraud in the execution of a deed, to hinder or delay creditors, is relevant and should be admitted.

Appeal from Johnson Circuit Court.

Hon. WILLIAM N. May, Circuit Judge.

Watkins & Rose, for appellants.

Fraud avoids a contract both at law and in equity. Strayhorn v. Giles, 22 Ark., 521; and the evidence tending to establish the fraud, should have been allowed to go to the jury; Mullen v. Wilson, 44 Penn., 413; Millett v. Pottinger, 4 Metc.

Blair, adm’r. 0. Alston.

[DECEMBER

(Ky.), 213; Babcock v. Eckler, 24 N. Y., 623; Porter v. Me Donnell, 31 Missouri, 62; Telles v. Register, 4 Min., 391; Chandler r. Roeder, 24 Ilow. U. S., 224; Mitchell v. Berry, 1 Metc., (Ky.) 602; Jones v. Lake, 2 Wis., 210; Burke v. Murphy, 27 Miss., 167. See Gould's Digest, Chap. 74, Sec. 4.

MCCLURE, J.

On the 22d of December, 1860, Alston executed and delirered his note, under seal, to one E. T. Blair, for the sum of $820, payable one day after date, with ten per cent. interest until paid.

On the 9th day of August, 1866, Louisa J. Blair, administratrix of E. J. Blair, deceased, brought suit, by attachment, against said Elijah B. Alston, on the ground of being a nonresident of the State, and the sheriff attached eighteen hundred and twelve acres of land, as the property of Elijah B. Alston.

John W. Alston, a nephew of Elijah B. Alston, came into court and filed an interpleader, wherein he states: “That at and before the time of the sueing out and service of said writ of attachment, the property attached was not the property of said Elijah B. Alston, but, on the contrary, the property of the interpleader, John W. Alston.

To the interpleader the appellant filed a general replication, and the interpleader joined issue. The cause was submitted to a jury, and it found for the interpleader.

The appellant made a motion for a new trial, assigning several causes, and, among others, the following, which is the only one we shall notice: First. Because the ruling of the court, in excluding parol testimony, whereby fraud would have been apparent, is contrary to law.”

Upon the trial of the cause, the interpleader, to sustain the issue on his part, introduced and read to the jury a deed executed by Elijah B. Alston, on the 20th day of July, 1865, to John W. Alston. The consideration expressed in said deed is

TERM, 1870. ]

Blair, ad m'go. 0. Alston.

$7,000, and natural love and affection that the grantor bears towards his nephew, the grantee. The interpleader also introduced a quit-claim deed, executed upon the same consideration expressed in the deed of July 20, 1865, by Elijah B. Alston and Hannah, his wife. This last deed bears date June 1, 1866. The deeds mentioned are for the same lands attached by the appellant, and were filed for record on the 9th of November, 1865, and September 8, 1866, respectively. The interpleader also proved that he had managed and controlled the lands described in said deeds since the fall of 1865. This was all the eridence submitted to the jury on the trial of the cause.

The appellant offered to prove that the deeds executed to the interpleader, by Elijah B. Alston and Hannah, his wife, were executed to defraud creditors; that the deed of the 20th of July, 1865, was executed by the said Elijah B. Alston, at a time when John W. Alston was in the State of Texas, and without any consideration; that the said John W. Alston was poor and penniless, and could not and did not pay any thing for said lands, and was a party to said fraudulent conveyance; that said Elijah B. Alston, at the time of making said deeds, was in failing circumstances; that he owed at the time as much as those ,lands were worth; that said lands were about all the property owned at the time by the said Elijah B. Alston. The appellant further proposed to prove, by exhibiting to the court, the writing obligatory sued on. The court refused to permit the introduction of any testimony tending to establish these facts.

Judge STORY says that fraud avoids a contract ab initio, both at law and in equity, whether such fraud was committed by one of the contracting parties upon the other or by both upon persons not parties thereto, for the law will not sanction dishonest views and practices by enabling an individual to acquire any right or interest by means thereof. Chitty on Contracts, 589.

We understand that a creditor may show fraud against any deed that defeats the collection of his claim, and that if the

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Johnson o.

Geisriter.

[DECEMBER

badges, when presented to the court, disclosed that the grantor and grantee have participated in the fraud, to the delay and injury of creditors, that the deed may be set aside.

Evidence tending to show that the appellant was a creditor of Elijah B. Alston, and that the Alstons had acted fraudulently for the purpose of defrauding, delaying or hindering creditors, was relevant, and should have been allowed to go to the jury.

The judgment of the Johnson county circuit court is reversed, and the cause remanded for a new trial, not inconsistent with this opinion.

JOHNSON v. GEISRITER.

BANKRUP'T- Assignment. — No assignment of property by a bankrupt after

the filing of his petition is valid.

Appeal from Jefferson Circuit Court.

Hon. H. B. MORSE, Circuit Judge.

B. S. Johnson, for appellant.

Bell f. Carlton, for appellees.

MCCLURE, J.

On the third of September, 1867, Geisriter executed and delivered his note to W. W. Johnson, for $600, payable one year after date.

W. W. Johnson assigned said note to one Ben. S. Johnson, the plaintiff in this action, who brought suit on the same.

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