obtained, were enforced." Vann, J., said: "The said representation was material, because if it was true the defendant had a lawful right to marry the plaintiff, whereas if it was false he not only had no right to marry her, but was even guilty of a felony in so doing. Penal Code, § 282. These facts present every element of fraud, which when applied to an ordinary civil contract render it void. They should have the same effect when applied to a marriage contract, not followed by cohabitation, in an action to annul a marriage, on the ground that the consent of one of the parties thereto was obtained by fraud. Code Civ. Pro., §§ 1743, 1750. When cohabitation has followed the marriage, the interests of society become involved, and may prevent courts from interfering, except in an extreme case, etc. In Lyndon v. Lyndon, supra, the court said: "We have found no case in the books like this." In that case the defendant was the father's coachman, and procured the license by swearing that the plaintiff was of age. The court said, obiter, that if the parties had cohabited the marriage must have been held valid, and so they said in Holtz v. Dick, 42 Ohio St. 23.

In Bloodgood v. Ayers, 37 Hun, 356, there was a spring upon the defendant's land, about 120 feet from the line of the plaintiff's land. Water had for many years been conducted from the spring through a trough or leader about three inches wide to a watering trough distant about twenty feet from the spring. The surplus water flowing from the spring disappeared in the ground, reappearing again near the division line, and flowing from that place in a well-defined channel to and over the lands of the plaintiff. The defendant diverted the waters of the spring and conducted them through logs to a point upon his lands, where they were discharged in such a manner as not to flow in the old channel or on the plaintiff's lands. Held, that as the waters of the spring were diverted before they had reached or formed a natural stream, flowing in a defined bed or channel with banks or sides, the plaintiff had no cause of complaint. Learned, P. J., said: “It is true that the jury found that the stream or water-course which flowed on plaintiff's land was supplied from the natural overflow of the spring. This however is not enough to maintain the plaintiff's action. For instance, the surface water which runs down a man's hill may reach a water-course on his land, and that water-course may run upon his neighbor's land. Yet these facts would not prevent the man from detaining the surface water by ploughing or otherwise. So if there be a spring on a man's land, and the overflow therefrom finally reaches a water-course, still the owner of the land may use or divert the water of the spring, although such use or diversion may prevent the water from reaching the water-course. This is one of the instances decided in Broadbent v. Ramsbotham, 11 Exch. 602, which has been often cited with approval. See Village of Delhi v. Youmans, 45 N. Y. 362; S. C., 6 Am. Rep. 100. To

519.

the same general effect is Rawstron v. Taylor, 11 Exch. 369. And it is held in this State that one may by filling in his land prevent the draining upon him of the surface water from higher adjacent land. Barkley v. Wilcox, 86 N. Y. 140; S. C., 40 Am. Rep. This is contrary to the doctrine held in some States, but it is in accord with the views above stated, viz., that until water has reached and formed part of a water-course it may be diverted. Goodale v. Tuttle, 29 N. Y. 459. The question then must be whether at the point where the defendants interfered with the water, viz., at the spring, there was a natural water-course, as defined in Barkley v. Wilcox, 86 N. Y. 143; S. C., 40 Am. Rep. 519; see the language at page 147. We think that the jury has not so found, nor can it be so found upon the evidence. That the waters of the spring eventually reached a water-course we may assume. But there was no water-course at the

Farther on it But this does

spring. The whole water had been for years turned into a watering trough. The surplus or overflow disappeared in the ground. probably appeared on the surface. not make the case like that of Macomber v. Godfrey, 108 Mass. 219; S. C., 11 Am. Rep. 349, where an existing water-course spread out over a level meadow with no defined channel, and yet was held to have preserved its character of a water-course. The spring which rises on a man's land, like the rain which falls on it, are his. It is only when the water, coming as probably it always does, from the rain in its origin, has actually formed itself into a natural stream, flowing in a defined bed or channel, with banks and sides,' that its use is restricted by those rules which the plaintiff here seeks to enforce."

In Taylor v. City of Cumberland, Maryland Court of Appeals, July, 1885, it was held that "coasting" on the streets of a city is a nuisance, and the city is liable to a pedestrian injured thereby. The court said: "This sport, as thus described, was a nuisance of a very serious character. It is well settled that the corporation was under an obligation to exercise for the public good the powers conferred on it by its charter to prevent nuisance, and to protect persons and property, and that this duty is not discharged by merely passing ordinances. It is not relieved from responsibility unless there has been a vigorous effort to enforce them. Marriott's case, 9 Md. 160. It was held in this case that a municipal corporation having power by its charter to prevent and remove nuisances would be discharged from responsibility for them if they could not be prevented, or removed by ordinary and reasonable care and diligence; and it was also held that where ordinances sufficient to meet the exigencies of the case had been passed a vigorous effort to enforce them would amount to the requisite care and diligence. There was evidence in the present case that the acting mayor of the city had, previously to the accident, instructed the captain of police to break up coasting on the

streets, and that the police did make and were making vigorous efforts to bring about that result. It was in proof that at the time the appellant was injured the sled which caused the injury was the only one then on the street. We are of opinion that the principle decided in Mayor, etc., v. Marriott, should control this case. The defendant was bound to prevent the nuisance if it could do so by ordinary and reasonable care and diligence, but if it did use this degree of care and diligence it discharged its duty, and was relieved from responsibility, and a vigorous effort to enforce its ordinance on the subject would fulfill its duty in this respect." To the contrary, Burford v. Grand Rapids, 53 Mich. 98; S. C., 51 Am. Rep. 105; Faulkner v. City of Aurora, 85 Ind. 130; S. C., 44 Am. Rep. 1; Pierce v. City of New Bedford, 129 Mass. 534; S. C., 37 Am. Rep. 387; Schultz v. City of Milwaukee, 49 Wis. 254; S. C., 35 Am. Rep. 779.

ELEGANT EXTRACTS FROM BROWNLOW.

"REE

EPORTS (a second part) of Diverse Famous Cases in Law, as they were argued, as well upon the Bench, by the reverend and learned judges, Coke, Flemming, Hobard, Houghton, Warburton, Winch, Nicholls, Foster, Walmesley, Yelverton, Montague, Dodridge, and diverse others, in their respective places; as also at the Barr, by the then judicious Serjeants and Barristers of speciall Note. Collected by Richard Brownlow, Esq. Prothonatary of the Court of Common Pleas. Very beneficiall for all such who are Studious to know Law, in its Power, Act, Limitation: Directive, and Usefull for all Clerks, Attorneys &c. In their Inter-Agendums, or severall Ministeriall Functions. With a perfect table showing the Remarkable matters Argued and Concluded in this Book. London. Printed by Tho. Roycroft, for Matthew Walbancke, at Grays Inne Gate, and Henry Twyford, in Vene Court Middle Temple, 1652." Such-with the addition of two and a half lines of Greek-is the titie page of a volume of old reports that made interesting reading, during the Dog-days, to the writer of this article.

We will now glance again at a few of these "Famous Cases" trusting that they will prove "very beneficiall."

Slander was a very fruitful source of actions at law in those old days when the early Stuarts reigned. Payn against Mutton (p. 276) gave all the justices an opportunity of deciding that an action will not lie for calling one a "sorcerer and inchantor;" "for sorcerer and inchantor are those which deal with charmes, or turning of Bookes, as Virgil saith 'Carminíbus Circes socios mutavit Ulissis, which is intended Charmes and inchantments, and Conjuration is of Con et juro, that is to compell the Devil to appeare, as it seemes to them against his will, but which is that to which the Devill appeares voluntarily and that is a more greater offence then sorcery or inchantment, which was adjudged that action doth not lie for calling a man Witch." Hinch versus Heald, (1 Brownlow p. 14) was the witch case, and there the Court decided that no action would lie for the words, "He is a witch and hath bewitched me," "for he might bewitch him by fair words, or fair looks." Yet, in Marshall versus Steward, "Action upon the Case reciting the Statute of I Jac. against Invocation of Spirits, &c. for these words: The Devil appeareth to thee every night in the likeness of a black man, riding on a black

Horse, and thou conferrest with him, and whatsoever thou dost ask he doth give it thee, and that is the reason thou hast so much money, and this I will justifie. Judgment for plaintiff." (1 Brown, 8.)

There were great men before Agamemnon, and there were "Humorous Phases of the Law" before the ALBANY LAW JOURNAL existed to detect them: e. g. "Sympson against Waters in an action upon the case for Slander, that is, thou art drunk, and I never held up my hand at the Barr, as thou hast done; and agreed that an action does not lie for these words, for peradventure he intended buttery Barr." (p. 272) And no action will lie for the words "Rogue or Cozener, for it is without aspersion and gentle, and words shall be taken in the gentlest sense. (p. 100.) A man was accused of Poligamy, but "upon examination of the cause, the Defendant was acquit, and yet he was censured to pay costs, though that he was acquitted of the Crime:" and even Lord Coke would not interfere for he said, "peradventure it was very suspitious that he was guilty, and for that he hath only God for his revenger." (p. 7) Verily a "Not guilty, but don't do it again" sort of judgment.

Sir Edward Ashfield was named Sir Edmund in a bond which he signed Edward; when he was sued upon it the Court held that he might well plead that it was not his deed for his name was not Edmund: and it was, also, decided that it was not good to name him in the writ "Edward otherwise Edmund," "for a man cannot have two Christian names: but if he have a name given to him, when he was christened, and another when he was confirmed, he shall be called and known by the name given to him at the time of his confirmation, and not by the first." (p. 48) One sees bere the great advantage of belonging to an Episcopal Church where the rite of Confirmation is rightly administered; many a Mariarann, or Sairey Jane, or Sammivell, would rejoice to take a new and more euphonious name when the episcopal digits are laid upon them. The one-name theory is quite consistent with republican simplicity and decisions. (Choen v. State, 52 Ind. 347; Edmundson v. State, 17 Ala. 179.) The Court in Maine agreed with the old English decision as to Edward and Edmund. (Flood v. Randall, 72 Me. 439.)

"It seems that Jacob and James are all one name, for Jacobus is Latine for them both. (p. 270)" This decision establishes the antiquity of St. Jacob's Oil and shows that it was it that St. James was praising. (ch. V. v. 14.)

In the College of Physician's case, (p. 255 sqq.) Dodridge Serjeant of the King said, "That there are three sorts of men, which meddle with the Body of a man. First, is the learned man who reades all the Bookes extant, and his knowledge is speculative, and by that he knew the nature of all simples. And the second is practive, the knowledge of which is only his experience, he may give Probatum est: But the ignorance of the cause of the disease, and the nature of the things which he applies for the cure of that: And the third is an Imposter, which takes upon him the knowledge which he hath not, and every one of them the Colledge may punish, for Male utendo, faciendo vel exequendo,by what way they wilt." "It is the office of a King to survey his subjects, and he is as a Phisitian to cure their Maladies, and to remove Leprosies amongst them, and also to remove all fumes and smells, which may offend or be prejudiciall to their health, as it appears by the severall writs in these severall cases provided, and so if a man be not right in his Wits, the King is to have the protection and Government of him, least he being infirme, wast, or consume his Lands or Goods, and it is not sufficient for him that his Subjects live, but that they should live happyly,

Robert Biggs and R. R. Boarman, for appellant.
William Reynolds, for appellee.

YELLOTT, J. The appellant instituted an action in the Circuit Court of Baltimore county against the appellee for the recovery of damages; the plaintiff alleging in his declaration that on several occasions he was maliciously assaulted and beaten by the officers and agents of the defendant, a corporation, while in the regular course of their employment. It is apparent from the evidence that the appellant was beaten by teachers employed in the institution, and sustained serious injury in consequnce of such treatment.

The Circuit Court rejected the prayers offered by the plaintiff, and in conformity with the tenor of a prayer presented by the defendant, instructed the jury that the evidence in the cause was not legally sufficient to support the action. An instruction thus eradicating the right of action, when brought under review, invokes the determination of questions relative to the responsibility of such corporations in actions of this nature.

With much earnestness of argumentation it has been contended that there can be no proper foundation for this action, because the House of Refuge is, like the Penitentiary of Maryland, an institution constituting part of the government of the State, and therefore is not civilly liable in its corporate capacity for the tortious acts of its agents employed with a view to the efficient discharge of its public functions. There is however a widely perceptible dissimilarity between this corporation and the penitentiary. The latter is under the exclusive control of the government of the State. Its directors are appointed by the executive; its other officers receive their appointments from the directors; are required to give bond, and the remuneration for their services is designated and established by statutory provisions, by which the entire government of the institution is regulated and controlled. On the other hand, the subscribers to the House of Refuge are declared by the act of incorporation to be a body politic and corporate, and each subscriber who pays the required sum is constituted a member for life. The conduct of its affairs is intrusted to a board of twenty-four managers; and of this number ten are elected by the members of the association, ten chosen by the mayor and city council of Baltimore, and four appointed by the governor of the State. Seven of these managers constitute a quorum for the transaction of business. They are authorized to make by-laws, ordinances and regulations, and to appoint officers, agents and servants, and to designate their duties. The mayor and city council are authorized to appropriate any sum of money not exceeding $25,000 toward defraying the current expenses of the House of Refuge and St. Mary's Industrial School, and pecuniary aid is also received from the treasury of the State.

It does not follow however that because a number of the board of managers are appointed by the State, and others by the mayor and city council of Baltimore, that the corporation is thereby converted into a public institution. In this court and in those of other States, the exposition of principles, determining the status of such institutions in this respect, has been in an opposite direction. It has been distinctly declared that the appointment of trustees and directors by State or municipal authority, to participate in the management, does not divest these associations of the attributes of private corporations, and clothe them with the immunities and privileges appertaining to public institutions. St. Mary's Industrial School v. Brown, 45 Md. 330; Nelson v. Cushing, 2 Cush. 521.

It has been contended that a corporation cannot be made a defendant in an action of this nature, the

remedy being solely against the individual who committed the wrong. Not until a comparatively recent period has the law in this respect undergone important mutations. It was for a long time maintained as an undoubted principle that a corporation could neither sue nor be sued in an action of battery, the reason assigued being that a corporation could "neither beat nor be beaten in its body politic." The enlightened jurisprudence of the present age has ignored such metaphysical subtleties, and recognized a rule more in conformity with the modern tendency to respond to the demand for substantial justice in every exigency. It is now a principle, established by numerous adjudications, that if the servant of a corporation aggregate commit an assault by the authority of the corporation, an action of trespass for assault and battery may be maintained against such corporation. And if the assault is committed on behalf of and for the supposed benefit of a corporation, the body politic by ratifying the act incurs the responsibility. Moore v. Fitchburg R. Corp., 4 Gray, 465; Hewett v. Swift, 3 Allen, 422.

In the consideration of questions of this nature it must not be forgotten that in legal contemplation, a corporation is an artificial entity, and can only act through the intervention of its officers or agents. When the agent of an individual, acting within the scope of his designated duties, commits a trespass, the principal is constructively present, and by implication authorizes and sanctions the act that incurs the legal responsibility. It is obvious that this provision is necessarily applicable in all its suits against bodies politic and corporate. And it is important to advert to another fundamental rule. A corporate body is the mere creature of law, deriving all its powers from the act of incorporation and existing solely by legal sanction within the limits prescribed by legislative authority. Within its sphere of action it is liable for torts as well as for infractions of contract; but beyond that point the individuals who participated in the pretended corporate acts are personally responsible. Head v. Providence Ins. Co., 2 Cranch, 127; Rogers v. Burlington, 3 Wall. 669.

But while an artificial being of statutory creation can only act within its assigned limits, it has all the powers either expressly given, or which are incidental to its existence and essential to its successful operation, and therefore necessarily created by implication. Trustees of Dartmouth College v. Woodward, 4 Wheat. 626; Thomas v. West Jersey R. Co., 101 U. S. 71.

The appellee being a body corporate, its authority to order or sanction the infliction of punishment by castigation is a question which is presented for consideration. If this authority exists at all, it exists by implication. It must be remembered that this is an institution of a peculiar character. It was founded as a place for the custody, care and reformation of unfortunate youths, either vagrants, convicts, or such as are incorrigible by the ordinary discipline applied by parents and guardians.

It would seem to be an idle, nugatory and futile undertaking to create an institution for the purpose of reforming vicious youths, incorrigible by the exercise of parental authority, unless such institution is authorized to exert the same coercive powers of correction which are given by legal sanction to the natural guardian. A parent can inflict punishment, so that it be not excessive, and it is supposed to be his duty so to do when milder means of control are found to be ineffectual. By the creation of this corporation the State has placed it in loco parentis as respects a vicious or incorrigible minor under its control. Its power to inflict punishment is derived by implication from the act of incorporation. Authorized by the act to adopt by-laws for its government, it has prescribed the mode

in which corporal punishment is to be inflicted. None of the minors can be so punished except by an order of the visiting committee; and such punishment must be inflicted either by the superintendent, or by some one in his presence, acting under such order. Another by-law has for its special object the protection of the inmates from acts of violence on the part of the officers and agents of the institutions. It expressly prescribes as a rule, to be strictly observed, that "no officer shall be allowed to strike, cuff, kick or inflict any bodily punishment on any inmate."

Assuming the entire verity of the evidence adduced by the plaintiff, there is nothing in that evidence tending to show that the appellant was punished under an order of the visiting committee, by or in the presence of the superintendent. And if he was assaulted by any of the officers or agents of the institution it is not revealed by the record that such assault was authorized by the defendant, nor is its subsequent approval and sanction of such acts of aggression made apparent. And notwithstanding the exigency of the rule that the allegata must be supported by the probata, the averment in the declaration of culpable negligence on the part of the defendant is not established by any proof adduced by the plaintiff.

This record does not therefore present a case rendering the appellee obnoxious to the imputation of having either authorized or sanctioned the tortious acts of its agents, even if the applicability of the principle enunciated by the Supreme Court of the United States in Philadelphia & Reading R. Co. v. Derby, 14 How. 484, should be recognized. Whether there is any perceptible analogy between that case and the one disclosed by this record need not now be made a matter of inquiry, for on another and distinct ground obviously rests the final determination of this controversy. It has been urged, with much cogency in argument, that the organic principles on which this institution is founded constitute it an eleemosynary corporation, holding its estates and funds in trust for charitable purposes, and that it is not therefore responsible as a defendant in an action for damages. This question seems never to have been settled by adjudication in this State, and in an examination of authorities introduced from exterior sources we are confronted by some diversity of opinion. When, in the absence of light to be derived from domestic adjudication, this court is embarrassed by an antagonism in the rulings, emanating from other jurisdictions, it must necessarily, by an eclectic method of appropriation, select, adopt and be governed by such decisions as are in consonance with that sound reason which is said to be the life of the law, and which therefore affords the safest and most solid basis for a judicial determination.

It cannot be denied that the House of Refuge is an institution holding property contributed solely for benevolent purposes. If under the impulse of that humanity, which is the distinctive characteristic of the present age, associations are formed for the erection of hospitals with a view to afford relief to indigent sufferers from physical afflictions, it might with obvious propriety be suggested that an institution originating in the co-operative action of benevelent individuals, and having for its object the amelioration of the condition of unfortunate minors who have become the victims of vicious habits and propensities, should be designated as a hospital for the cure of moral diseases. Youths in whom the seeds of vice have already germinated are placed there under proper restraint, so that the growth of crime may be arrested or eradicated in its incipiency. Funds are contributed by individuals impelled by philanthropic motives, and donations are obtained from the municipal and State

treasuries. These are the funds of the institution, controlled by the managers, not for their own profit and benefit, but solely for the charitable purposes designated by its organic law. This then is an institution resting on an eleemosynary foundation.

In McDonald v. Mass. General Hospital, 120 Mass. 432, it is held that a corporation, deriving its funds mainly from public and private charity, and holding them in trust for the object of sustaining the hospital, without the expectation or right on the part of those immediately interested in the corporation to receive compensation for their own benefit, is a public charitable institution; and where it has exercised due care in the selection of its agents, it is not liable in an action for injury caused by their negligence.

In the case of Feoffees of Heriot's Hospital v. Ross, 12 Clark and Finnelly, 507, in the House of Lords, it was decided that "if charity trustees are guilty of a breach of trust, the person thereby injured has no right to be indemuified by damages out of the trust fund."

Several of the most eminent judges in England expressed themselves with much emphasis in opposition to an allowance of damages out of a fund so held by fiduciary agents.

Lord Cottenham said: "There is a trust, and there are persons intended to manage it for the benefit of those who are to be the objects of the charity. To give damages out of a trust fund would not be to apply to those objects whom the author of the fund had in view, but would be to divert it to a completely different purpose."

Lord Brougham concurred, and added: "The charge is that the governors of the hospital have illegally and improperly done the act in question; and therefore because the trustees have violated the statute, therefore what? not that they shall themselves pay the damages, but that the trust fund which they administer shall be made answerable for their misconduct. The finding of this part is wrong, and the decree of the court below as to the damages must be reversed."

The language of Lord Campbell is even stronger and more emphatic. He said: "It seems to have been thought that if charity trustees are guilty of a breach of trust, the persons damnified thereby have a right to be indemnified out of the trust funds. That is contrary to all reason, and justice, and common sense. Such a perversion of the intention of the donor would lead to the most inconvenient consequences. The trustees would in that case be indemnified against the consequences of their own misconduct, and the real object of the charity would be defeated. * * Damages are to be paid from the pocket of the wrougdoer, not from a trust fund. A doctrine so strange as the court below has laid down in the present case ought to have been supported by the highest authority. There is not any authority, not a single shred, here to support it."

*

In the absence of any decisions in Maryland, we are constrained to adopt the exposition of principles by these eminent English judges, and are thus led to the determination that damages cannot be recovered from a fund held in trust for charitable purposes. In the language of Lord Campbell, “the wrong-doer must pay from his own pocket."

The appellee was not therefore liable in this action, and there having been no error in the ruling of the Circuit Court, its judgment must be affirmed.

Judgment affirmed.

[See 21 Am. Rep. 529; Glavin v. R. I. Hospital, 12 R. I. 411; S. C., 34 Am. Rep. 675.]