vires, and if the want of a franchise to do the tortious act be a defense, then corporations have a dispensation from liability for these acts peculiar to themselves. There does not appear to have been much discussion of this subject, but a case decided by the Supreme Court of Tennessee is directly on the point. The precedent referred to is reported in 53 Tenn. 634, and is entitled Hutchinson v. Western and Atlantic R. Co. It was an action against a corporation for damages occasioned by the negligence of its employees. It appeared that the railroad company was without authority running a line of steamers, and the plaintiff had been hurt by the mismanagement of one of them. The defense of ultra vires was interposed in that case, as in the present, but it was rejected on the ground that such doctrine had no application to torts of that character. This exception cannot prevail." Cases, 353, it was held that interest upon municipal and other corporation bonds is apportionable. The court said: "There seems to be a reason why dividends declared by stock companies should not be apportioned. Such dividends are not interest accruing from day to day, but profits upon business operations, which in a strict sense cannot be said to accrue at all, but are declared at the pleasure of a board of managers, with nothing to show during what portion of the year they were earned. So, too, of annuities. In such cases there is no earning of interest upon any thing; they are fixed sums payable at stated days, and until those days arrive, there is nothing earned and there is nothing due. The principle has long been settled in England that income derived from the public funds is not apportionable. It was so ruled in Pearly v. Smith, 3 Atkyns, 260, in the case of the South Sea Annuities, and Sherrard v. Sherrard, id. 502. These cases were followed by many others affirming the same doctrine. It is needless to cite them, as there is no dispute about the English rule. In Earp's Will, 1 Pars. Sel. Eq. Cas. 453, Judge King adopts the English rule, and applies it to municipal and corporation bonds. We do not know to what extent Judge King's decision has been followed by other Orphans' Court and Common Pleas' judges throughout the State, but as presented here it is a new question. We have no decisions of our own therefore to embarrass us. The decision of so eminent a jurist as Judge King is entitled to much respect, but it is not authority beyond its reason. "It is manifest from a careful study of Judge King's opinion that he did not consider, and probably entirely overlooked the peculiar character of the English consols, and their marked difference from the pub In Leary v. Boston & Albany R. Co., Massachusetts Supreme Court, June, 1885, it was held that a servant takes the ordinary risks of a dangerous employment, in which he continues, although he was hired for a different and less dangerous business, and was put into the more dangerous business against his protest. The court said: "The facts present another inquiry which heretofore it has not been necessary to decide in this Commonwealth. It is the plaintiff's contention that if a servant, who is hired for work of a simpler character, as in the case at bar, is required by his employer to perform other duties more dangerous and complicated, and although at first and constantly objecting thereto, from fear of losing his employment, assents, makes the attempt, and doing his best is injured by reason of his ignorance and inexperience, he may maintain an action against his employer by reason of the lat-lic debt of this country. In many of the English ter's negligence in setting him to work in a dangerous place, even if the plaintiff was aware of the danger, and might, under some circumstances, be held to have incurred the risks of his employment. The case of O'Connor v. Adams, 120 Mass. 427, which the plaintiff deems to some extent to support his contention, is quite distinguishable. Railroad Co. v. Fort, 17 Wall. 553; and Lalor v. Chicago, Burlington & Quincy Railroad, 52 Ill. 401; S. C., 4 Am. Rep. 616, discussed. The case of Jones v. Railway, 49 Mich. 573, more nearly supports the plaintiff's contention. But in the case at bar, the plaintiff knew that the duty of aiding as fireman on the engine was not within his original contract as a laborer. He determined to perform it as a part of his engagement with the defendant rather than lose his position as a laborer. In so doing he must be held to have assumed its necessary risks. Such is the doctrine of Woodley v. Metropolitan Railway, 46 L. J. Ex. 521. The plaintiff did this, it is true, rather than lose the position which he had, and which he desired to retain, but by so doing, engrafted this duty on his original contract of which he made it a part." In Wilson's Appeal, Truefitt's Estate, Pennsylvania Supreme Court, February, 1885, 16 Week. Notes cases, the question arose upon annuities, such as the South Sea annuities. The English consols are but annuities, the interest only is paid, the principal is never reimbursable, and the government can only redeem them by buying them in the market. The reasoning of the English cases goes upon the ground that the interest does not accrue day by day, which is entirely true of their consols. In Pearly v. Smith, supra, Lord Hardwicke stated it as tersely as it can be put when he says: 'If the security had continued a mortgage the claimant would have been entitled to the demand he now makes, because their interest accrued every day for forbearance of the principal, though notwithstanding, it is usual in mortgages to make it payable half yearly.' The same distinction between mortgages and funded debt is recognized in Sherrard v. Sherrard, supra, and many other English cases. And it is an obvious distinction as applied to South Sea annuities, and British consols generally. But the distinction between a mortgage, and bonds of the city of Pittsburgh, and the bonds of the Philadelphia and Reading Coal and Iron Company secured by a mortgage, is difficult to see. In either case it is a loan, and the interest accrues from day to day as the consideration of the for bearance. That the principal is not due is not to the point, for money is loaned for a term of years upon mortgages as well as city or corporation bonds. No other reason than the one just stated, has or can be given why the income from municipal bonds may not be apportioned. The learned court below however attempted to take municipal bonds out of the English rule in regard to government securities by showing that municipal and other corporations may be compelled to pay, which is not the case with either the National or State government. The conclusion is correct, but we do not assent to the reasoning. It is true the government is sovereign; it cannot be sued and compelled to pay like an ordinary debtor, while municipalities, which are the creatures of the State, may be so compelled. This however is outside of the question. If the sovereign does not pay there is nothing to apportion. No question of apportionment can be raised until there is actual payment of the interest, and when payment is made the question whether it was a voluntary or a forced payment has no bearing upon the principle of apportionment. Nor is there any question about government policy or treasury convenience. This was clearly shown by Judge King in Earp's Will, supra, where he said: 'It is a mistake to suppose that the rule in equity had any original connection with government policy or treasury convenience. From the time of its establishment by Lord Hardwicke in 1744, such an idea is not intimated in any decided case. And this for the very simple reason that the treasury had no interest in the subject.' Judge King then proceeds to give what he conceived to be the reason of the rule in equity. It was substantially that the funded debt carries with it the idea of permanency, and becomes a favorite investment with persons desirous of having a fixed income; that the interest of such investments may be applicable to a series of persons for a long time. These may be very good reasons to induce persons who desire permanent investments to buy such securities, and perhaps why the income of English consols and South Sea annuities should not be apportioned, as the interest thereon does not accrue from day to day. But the interest on these municipal and corporation bonds does accrue de die in diem precisely as in the case of arr ordinary bond and mortgage, and we are wholly unable to distinguish one from the other in principle. The applicability of this rule to Federal and State securities will be decided when the cases arise; they have been referred to here only for the purpose of illustration, and in so far as such allusion was effect of the laws regulating and governing them is difficult to determine, but it is an uncontestable fact that the reciprocal relations of parent and child are legally, and in reality, far more intimate than with us. The provisions of the Code consecrating the closeness of this relationship are less than many others the succinct expression of the usages and customs, or common law of France during the preceding centuries, for prior to the Revolution of 1789, great liberty was allowed to parents in the disposal of their property, and primogeniture prevailed to a great extent. Children were then as now, under the tuition and control of their parents in all important matters such as marriage, until long after their majority, but the control was less efficacious and less frequently exercised than at present. The advent of the Revolution with its specious doctrines of universal equality, and the compilation of the Code, alike a tribute to the revolutionary elements of the populace, and a consolidation and centralization of power in the government, effected changes in the family relationship, liberal in appearance, but rigorous in fact. Children were placed upon a footing of equality with each other, and all discrimination as to the disposal of the family property amongst the children, formerly vesting in the parents, was abolished, but the Code, while making no distinction between the children, took away from the parents the right of disposing of their property, or more strictly, a large percentage of it. This most arbitrary law is, in its general tenor, known, but as it is of great importance and interest, I append a translation of it. Code Civil, §§ 913, 914. "Donations, whether as gifts inter vivos or as testamentary dispositions, cannot exceed half of the property of the donator (or testator) if he leaves at his death one legitimate child; one-third if he leaves two; one-quarter if three or more. The word 'children' in the preceding article comprises descendants of whatsoever degree; however, these take per stirpes, and not per capita." The following article lays down the reciprocal law regulating the disposal of property by children who have parents. § 915. "Donations, whether as gifts inter vivos or as testamentary dispositions, cannot exceed one-half of the property if in default of children the deceased leaves one or more ancestors ('ascendants') in each of the branches, paternal and maternal; three-quarters if there only exist ancestors of one branch." It is difficult for us, with our Anglo-Saxon ideas necessary to a proper discussion and understanding degree of impartiality, a law which tyrannically preof liberty and independence, to criticise with any of the case before us." vents an individual from disposing of property which he owes only to himself, and which he has acquired by his labor or skill; but it is certain that it possesses many most obvious advantages, and that it is far more adapted to a country where in. herited wealth is the rule and not the exception, and whose people, emotional and passionate by na ture, might otherwise in a moment of irritation or bitterness do irreparable wrong to their offspring. Another law, less generally known, shows in an equally marked degree the iron-clad manner in which the Code cements the family ties. By virtue❘ of article 380 of the Penal Code, husband and wife, parents and children (read also grandchildren), are exempted from criminal process in cases of theft amongst themselves. This law, serving as a complement to that above referred to, still further consecrates the principles underlying these provisions of the Code, i. e., that the property of the parents is the property of the children, and vice versa. These principles are so ingrafted in the minds of French people that parents of all classes of society, from the humble workman to the financial magnate or nobleman, regard the property which they have acquired by industry, thrift or inheritance, as a trust, and consider it their solemn duty to transmit it to their descendants in tact in any case, augmented if possible. The scale of living is reduced, in consequence, to the lowest degree consistent with the position occupied in society, and often verging upon privation, so that the children may have a portion of their inheritance upon marriage, or when starting upon their career in life, and as large a share as possible upon the death of their parents. And the power and authority of parents over their children does not cease at majority in the important events of life, such as marriage. Article 148 et seq. of the Code Civil, prescribe that marriage shall not take place without the consent of the parents, unless the son shall have attained the age of twenty-five years and the daughter that of twenty-one. Although the age at which marriage is lawful in France is fixed at eighteen for the man and fifteen for the woman. And even if the son has attained the age of twenty-five years and the daughter twenty-one marriage can only be contracted after the service of three "acter respectueux" or respectful requests" upon the parents, and at intervals of one month. This law applies until the man shall have attained the age of thirty and the woman twenty-five, when the service of one "respectful request" suffices. These restrictions, severe enough, are rendered still more so by the fact that it is considered highly improper to serve these “acter respectueux,” and a marriage contracted by virtue of this formality would almost ostracize the couple socially. It is impossible to give in so short a notice as this, more than a brief summary of the relations of parent and child, but I think sufficient has been said to show the vast differences which separate our social organization, in this particular at least, from that of France. PARIS, August 11, 1885. Aside from the material and pecuniary rights and duties of parents and children, the Code lays down, very categorically, the moral obligations, something in the manner of the commandments. Indeed, article 371 of the Code reads like the commencement of the fifth commandment, "children of all ages owe honor and respect to their father SURETY — OFFICIAL and mother.” The following articles exemplify this. Article 372: "They remain subject to their (the parents') authority until majority or emancipation." Article 374: "Children shall not leave the paternal home without permission of the father, except for the purposes of voluntary enlistment after the age of eighteen years." W. MORTON GRINNELL. BOND PUBLIC MONEY STOLEN. NEVADA SUPREME COURT, JULY 25, 1885. STATE V. NEVIN.* The sureties on the bond of a city treasurer, conditioned for the faithful performance of his duties, are liable for public moneys stolen from him without his fault or negligence. Article 375: "The father who may have serious grounds of complaint on account of the conduct of APPEAL from a judgment of the District Court of a child, may adopt the following methods of correction: " Article 376: "If the child is less than sixteen years of age, the father may have him imprisoned during a period not to exceed one month; for this purpose the president of the tribunal of the district shall, upon his request, deliver au order of arrest." If the child be over sixteen years of age, the imprisonment may last six months, at the option of the presiding judge of the court and the district attorney. In neither case is any written instrument (except of course, the order of arrest) or judicial formality necessary. the first judicial district, Storey county, entered in favor of the plaintiff. The opinion states the facts. W. E. F. Deal and William Woodburn, for appellaut. W. H. Davenport, attorney-general, and J. A. Ste phens, district attorney, for respondent. HAWLEY, J. This action was brought against the county treasurer of Storey county, and the sureties upon his official bonds, to recover an amount of money admitted to be deficient in the accounts of the county treasurer. The auswer alleges that the money was forcibly taken by robbers from the treasurer and carried away by irresistible force "without any fault or negligence, or want of reasonable care or diligence in the preservation and care of said sum of money, so that said sum of money was entirely lost to the treasury of said county, and no part thereof has ever been recovered." The District Court sustained a demurrer Thus if parents may not disinherit their children, and if theft in a family does not exist, parents are nevertheless endowed by the Code with a Draconian authority over their offspring, which is, at least, an equally efficient check to the power of which was interposed to this answer, upon the ground disinheriting them. * S. C., 7 West Coast Rep. 160. that the facts stated did not constitute any defense to the cause of action. Was this ruling of the court correct? The conditions named in the official bonds "is such that if the above bounden, Dennis Nevin, shall well and truly and faithfully perform and execute the duties of treasurer of the county of Storey, now required by him by law, and shall well, truly and faithfully execute and perform all the duties of such office of treasurer, required by any law to be enacted subsequently to the execution of this bond, then this obligation to be void and of no effect, otherwise to be and remain in full force and effect." Appellant insists that his responsibility under this contract is simply that which the common law imposes upon a bailee for hire; that he is not in any sense an insurer of the moneys in his custody, and should not be held responsible for the money that was stolen from him, and taken by the use of irresistible force without any negligence or fault or want of care on his part. The great weight of the authorities upon this sub. ject are adverse to the views contended for by appellant. The general rule upon this subject is to the effect that public officers who are intrusted with public funds and required to give bonds for the faithful discharge of their official duties are not mere bailees of the money to be exonerated by the exercise of ordinary care and diligence, that their liability is fixed by their bond, and that the fact that money is stolen from them without any fault or negligence upon their part does not release them from liability on their official bonds. Recognizing the almost universality of this rule, appellant contends that the decisions against him are founded upon the peculiar wording of the bonds, or provisions of the statute, to the effect that the officer shall safely keep and pay over all moneys coming into his hands. It is true, that in United States v. Prescott, 3 How. 588; Com. v. Comly, 3 Peun. St. 374; State v. Harper, 6 Ohio St. 610; Inhabitants of Hancock v. Hazzard, 12 Cush. 112, and other cases, considerable stress is placed upon this language in the bond. Thus in United States v. Prescott, the court said: "The condition of the bond has been broken, as the defendant, Prescott, failed to pay over the money received by him, when required to do so; and the question is, whether he shall be exonerated from the condition of his bond, on the ground that the money had been stolen from him? The objection to this defense is, that it is not within the condition of the bond, and this would seem to be conclusive. The contract was entered into on his part, and there is no allegation of failure on the part of the government; how then can Prescott be discharged from his bond? He knew the extent of his obligation when he entered into it, and he has realized the fruits of his obligation by the enjoyment of the office. Shall he be discharged from liability, contrary to his own express undertaking? There is no principle upon which such a defense can be sustained. The obligation to keep safely the public money is absolute, without any condition express or implied; and nothing but the payment of it, when required, can discharge the bond.' But there are an equal or greater number of cases like Muzzy v. Shattuck, 1 Denio, 233; District Township v. Morton, 37 Iowa, 550; Inhabitants v. McEachron, 33 N. J. L. 340; Boyden v. United States, 13 Wall. 17, and State v. Moore, 12 Fed. Rep. 740, where the condition of the bond, like the one under consideration here, was for the faithful performance of the official duties, and the conclusions of the courts are substantially the same as announced in United States v. Prescott. It is apparent that a bond requiring a faithful per formance of official duty is as binding upon the principal and his sureties as if all the statutory duties of the officer were inserted in the bond. In Indiana, the statutory conditions in the bond are the same as required by the laws of this State. In Halbert v. State, 22 Ind. 130, the treasurer's bond was however conditioned not only for the faithful performance of his duties as the statute required, but also that he should "pay over all moneys according to law that might come into his hands as such treasurer." The court said: "It is objected that the latter branch of the condition was unauthorized by law, and therefore of no effect. But if the condition for the faithful performance of his duties includes the paying over according to law, of all moneys that might come into his hands as such treasurer, nothing is added to the legal effect of the bond by the latter branch of the condition. An examination of the various statutes bearing on the question shows clearly enough that one of the duties of a county treasurer is to pay over according to law all moneys that come into his hands as such treasurer; hence we shall consider the case as if the bond had been conditioned simply for the faithful performance of the duties of the office." In Boyden v. United States, 13 Wall. 24, the court referring to United States v. Prescott, said: "The condition of the receiver's bond in that case, it is true, was that the receiver should pay promptly when orders for payment should be received, while the bond in the case before us is conditioned that Boyden, the receiver, had truly executed and discharged, and should continue truly and faithfully to execute and discharge all the duties of said office according to law. But the acts of Congress respecting receivers made it their duty to pay the public money received by them when ordered by the treasury department. * The bond therefore was an absolute obligation to pay the money, and differing not at all, in legal effect, from the bond in Prescott's case." * * What are the duties of a county treasurer under the statutes of this State? In addition to requiring an oath and an official bond it is, among other things, provided that the county treasurer" shall receive all moneys due and accruing to his county, and disburse the same, in the proper orders issued and attested by the county auditor." 2 Comp. L. 2,981. [Other statutory duties omitted.] Under these provisions, is it not manifest that it is the duty of county treasurers to safely keep the public money and pay it out ouly as provided by law? The fact that the county treasurer is required "to receive money, and enter it in his cash book, implies, without any other special regulation, that he is to keep it, and being required to keep it, it follows that he is to keep it safely. This is one of the duties of his office he has undertaken faithfully to discharge." Thompson v. Trustees, 30 Ill. 101. Unless he safely keeps it, he could not exhibit it to the commissioners, as required by law, and it could not be counted. Neither could he deliver it to his successor in office. The duty to safely keep the money is made absolutely clear by the provisions of the statute already quoted and referred to. But there are also other provisions which are equally as strong and cogent. If any officer charged with the safe-keeping of public money converts the same to his own use, or loans any portion of such money, he shall be guilty of embezzlement. Stat. 1881, 82; Stat. 1883, 96. Could a county treasurer, who converts the money to his own use, claim that he is not an officer who is charged with the safe-keeping of the public money? It would be a stigma upon the law and a disgrace to the judiciary to say that he could successfully maintain THE ALBANY LAW JOURNAL. the public funds, and what losses might not be antici such a defense. The statutes of this State, in relation The Supreme Court of that State, in Halbert v. State, In Iowa, where the statute is not as strong as in this State, the same doctrine is held and applied to an officer upon a bond conditioned for the performance of his duties "to the best of his ability." District Township v. Smith, 39 Iowa, 9; S. C., 18 Am. Rep. 39. The statutes of this State are more stringent than the statute of Ohio, except in relation to the conditions of the bond. In State v. Harper, 6 Ohio St. 610, the court said: "By accepting the office, the treasurer assumes upon himself the duty of receiving and safely keeping the and of paying it out according to law. public money, His bond is a contract that he will not fail, upon any account, to do those acts. It is, in effect, an insurance against the delinquencies of himself, and against the faults and wrongs of others in regard to the trust placed in his hands. He voluntarily takes upon himself the risks incident to the office and to the custody and disbursement of the money. Hence it is not a sufficient answer when sued for a balance found to have passed into his hands, to say that it was stolen from him; for even if the larceny of the money be shown to be without his fault, still by the terms of the law and of his contract, he is bound to make good any deficiency which may occur in the funds which came under his charge." We deem it unnecessary, upon this branch of the case, to specially refer to the numerous other authorities where the same doctrines are announced, as it is absolutely clear, from those already cited, that the distinction sought to be maintained by appellant that the conditions of the bond and the provisions of the statute of this State should be construed differently from the construction given in the decided cases cannot be maintained. In many of the cases the courts have given an additional reason for their conclusions that a public officer cannot set up the defense of a robbery of the public funds in his possession. Thus in United States v. Prescott, supra, Justice McLean, in delivering the opinion of the court, said: "The liability of the defendant, Prescott, arises out of his official bond, and principles founded upon public policy." After discussing Prescott's liability upon the bond he adds: "Public policy requires that every depository of the public money should be held to a strict accountability. Not only that he should exercise the highest degree of vigilance, but that he should keep safely the moneys which come to his hands. Any relaxation of this condition would open a door to frauds, which might be practiced with impunity. A depository would have nothing more to do than to lay his plans and arrange his proofs, so as to establish his loss, without laches on his part. Let such a principle be applied to our postmasters, collectors of the customs, receivers of public moneys, and others who receive more or less of ** * In Com. v. Comly, supra, Gibson, C. J., in delivering The only defense recognized by any of the authori- In United States v. Thomas, 15 Wall. 341, it was held that the act of a public enemy in forcibly seizing or against his will, and without his fault, is a discharge destroying property in the hands of a public officer, of his obligation to keep such property safely, and of his official bond, given to secure the faithful performance of that duty, and to have the property forthcoming when required. Bradley, J, in delivering the opinion of the court, questions the correctness of some of the extreme views stated in some of the authorities referred to, and claims that broader language was used than was necessary where the defense set up was that the money was stolen, and says that "a much more limited responsi"than was indicated in the language in Prescott's case "would have sufficed to render that debility fense nugatory." But there is no declaration of any legal principle contained in this opinion that would justify a court in permitting such a defense as was It is said that sought to be interposed in this case. public officers are bailees, "but they are special bailees, subject to special obligations. It is evident that the ordinary laws of bailment cannot be invoked to determine the degree of their responsibility." In United States v. Humuson, 6 Sawy. 201, the court was ou a steamship which was lost at sea, and the offipermitted the defense that the officer with the money cer drowned and the money lost in the Pacific ocean. The doctrines announced in that case are similar to the case of United States v. Thomas, and do not in any manner militate against the general views we have expressed. was In State v. Moore, the defendant, who answered that he ought not treasurer, county to be held upon his bond because Mississippi with tramps, thieves, county overrun "being robbers, public enemies, the money could not be safely kept in said county," and that for the purpose of keeping it safely, he deposited to his credit, as treasurer, in a bank in St. Louis, which failed, whereby the "Such an money was wholly lost. The court said: answer as this, we think, is insufficient to shield defendant from liability in any view which can be taken of the case. If the obligation assumed by defendant |