Olmstead, 5 Neb. 452, and Galveston v. Posnainsky, 62 Tex. 129, both holding city, in accepting charter, is bound to perform required duties; Ludlow v. Fargo, 3 N. Dak. 492, 57 N. W. 509, and Wilson v. City of Wheeling, 19 W. Va. 331, 42 Am. Rep. 782, both holding city liable where workmen left ditch in street unguarded; Mack v. Salem, 6 Or. 279, holding that municipality must have had notice of defect in sidewalk; Aldrich v. Tripp, 11 R. I. 145, holding municipality liable for damage resulting from washout in highway caused by city hydrant; Johnston v. Charleston, 3 S. C. 241, holding want of ordinary care is true measure of city's liability; Lenzen v. New Braunfels, 13 Tex. Civ. App. 351, 35 S. W. 348, holding city liable for loss by fire, resulting from defective water-works; Levy v. Salt Lake City, 3 Utah, 68, 1 Pac. 163, holding city liable for a negligent exercise of its power to regulate and control water flowing into city; Sawyer v. Corse, 17 Gratt. 242, 94 Am. Dec. 449, holding municipality is liable for defaults of its officers, where authority is one from which corporation derives a profit; De Voss v. Richmond, 18 Gratt. 346, 98 Am. Dec. 651, holding municipality responsible for acts of its agents in borrowing money; City of Petersburg v. Applegarth, 28 Gratt. 344, 26 Am. Rep. 362, holding city, owner of wharf, liable for damage to vessel; Moore v. City of Richmond, 85 Va. 542, 8 S. E. 389, holding proper, instruction that city is bound to exercise reasonable care in keeping streets safe, and that traveller must use ordinary care; Hughes v. Fond du Lac, 73 Wis. 384, 41 N. W. 409, holding provision in charter as to notice of injury, does not apply where it was caused by a nuisance created by positive acts of city's agents.

Cited also in 55 Am. Dec. 350, note on liability of city as to private ministerial powers, collecting authorities; 59 Am. Dec. 529, note on liability of municipality for injuries resulting from its negligence, collecting cases; 63 Am. Dec. 352, 353, note on liability of cities for neglect to repair streets, collecting cases; note, 54 Am. Rep. 672, 30 Am. St. Rep. 378, note on liability of cities for neg ligence or misconduct of officers and agents, reviewing authorities. Cited, without special application, in Woodruff v. Stewart, 63 Ala. 212. Cited in dissenting opinion in Detroit v. Blackeby, 21 Mich. 122, 4 Am. Rep. 464, majority holding city not liable for injury resulting from defective streets.

Distinguished in Johnston v. Dist. of Columbia, 118 U. S. 21, 30 L. 77, 6 S. Ct. 924, rejecting evidence, that sewer had been injudiciously constructed by municipality, in action for injury to land; Gagg v. Vetter, 41 Ind. 237, 13 Am. Rep. 327, holding party liable, if ordinary care was not employed in the construction of the chimney, or if there was negligence in the management; Hill v. Boston, 122 Mass. 370, 371, 373, 374, 380, 23 Am. Rep. 357, 358, 360, 361, 366. holding city not liable for injury to pupil occasioned by unsafe staircase; Moffitt v. Asheville, 103 N. C. 254, 14 Am. St. Rep. 815,

9 8. E. 697, holding city not liable for sickness of prisoner caused by neglect of jailers; Welsh v. Village of Rutland, 56 Vt. 236, 48 Am. Rep. 766, holding village not liable for injuries caused by negligence of fire department in thawing out a hydrant; Mendel v. Wheeling, 28 W. Va. 241, 243, 248, 249, 57 Am. Rep. 667, 669, 673, 674, holding city not liable for damages for loss by fire, because city's water pipe, through negligence, was filled with mud; Watkins v. County Court, 30 W. Va. 662, 5 S. E. 656, holding County Court not liable for injury to individual, unless action is given by statute.

Municipal corporation is not liable for mere defect in highway. but only where the corporation had notice of the defect, and injury to some individual has resulted from it, p. 52.

Rule reaffirmed in Noble v. City of Richmond, 31 Gratt. 281, 31 Am. Rep. 731. Cited and principle applied in Water Co. v. Ware, 16 Wall. 574, 21 L. 487, holding company, laying water pipes in city. liable for injury caused by negligence of sub-contractor's servant.

1 Black, 54-55, 17 L. 41, WABASH AND ERIE CANAL v. BEERS. Appeal and error.- Where decree is decisive of all the questions in the case, and court provides for a particular measure to enforce same, it is final, p. 55.

Cited in 60 Am. Dec. 437, extensive note on this point.

Distinguished in Dufour v. Lang, 54 Fed. 916, 2 U. S. App. 477, holding decree removing liquidators of a corporation, and appointing receivers, with powers of liquidators, is not final.

1 Black, 55-62, 17 L. 94, UNITED STATES v. BABBIT.

Statutes relating to the same subject-matter shall be construed together, p. 60.

Cited in United States v. Humason, 5 Sawy. 540, F. C. 15,420. construing statutes requiring bonds from Indian agent; Wartensleben v. Haithcock, 80 Ala. 568, 1 So. 41, holding proviso qualified preceding sections.

Statutes. What is implied in a statute, pleading, contract or will, is as much a part of it as what is expressed, p. 61.

This rule has been followed and applied in construing various statutes in the following: Gelpcke v. Dubuque, 1 Wall. 221, 17 L. 531, holding statute implied that cities have authority to subscribe for railroad stock; as also in Meyer v. Muscatine, 1 Wall. 393, 17 L. 567, and County of Wilson v. Nat. Bk., 103 U. S. 778, 26 L. 491, both holding same; Kennedy v. Gibson, 8 Wall. 507, 19 L. 479, and Butz v. Muscatine, 8 Wall. 581, 19 L. 493, construing statutes; Croxall v. Shererd, 5 Wall. 283, 18 L. 578, statute to dock the entail; United States v. Hodson, 10 Wall. 406, 19 L. 939, revenue statute;

Stewart v. Kahn, 11 Wall. 504, 507, 20 L. 178, 179, judiciary act; Lynde v. The County, 16 Wall. 13, 21 L. 274, act submitting to voters whether special tax shall be levied; Davis v. Gray, 16 Wall. 223, 21 L. 454, holding that statute impliedly recognized the existence of the corporation; Tel. Co. v. Eyser, 19 Wall. 427, 22 L. 44, judiciary act; Township of Pine Grove v. Talcott, 19 Wall. 676, 22 L. 233, State Constitution; Burnhisel v. Firman, 22 Wall. 176, 22 L. 768, statute relative to interest; Indianapolis, etc., R. R. Co. v. Horst, 93 U. S. 300, 23 L. 901, construing act of Congress relative to practice; Supervisors v. Lackawanna I., etc., Co., 93 U. S. 624, 23 L. 991, and Pompton v. Cooper Union, 101 U. S. 202, 25 L. 804, statute authorizing purchase of railroad stock by counties; Chorpenning v. United States, 94 U. S. 400, 24 L. 127, holding implication was clear, that nothing more could be paid on claim, without authority of Congress; United States v. Babbitt, 95 U. S. 335, 336, 24 L. 481, construing acts concerning military land warrants; United States v. Moore, 95 U. S. 763, 24 L. 589, construing statute providing for pay of assistant surgeons of navy; National Bk. v. Graham, 100 U. S. 703, 25 L. 752, provision that national bank "deliver special deposits," implies a power to receive them (see 36 Am. Rep. 594); Jones v. G. & I. Co., 101 U. S. 626, 25 L. 1034, holding corporation authorized to mortgage property for purpose of business, may give mortgage for money to be advanced in future; Nat. Exch. Bk. v. Moore, 2 Bond, 174, F. C. 10,041, holding implication to be that forfeiture expressed in statute should be the only penalty; Buckner v. Street, 1 Dill. 257, F. C. 2,098, since the thirteenth amendment statutes, relating to slave contracts, may be given a retrospective operation; McKay v. Hill, 1 Hask. 286, F. C. 8,845, statute fixing liability of stockholder withdrawing his capital; McArthur v. Allen, 15 Fed. Cas. 1212, Ohio statute prohibiting estates in tail; Schenck v. Peay, 21 Fed. Cas. 685, holding a lien creditor is owner" of land for purpose of paying taxes; McArthur v. Allen, 3 Fed. 318, holding devisees not in esse are barred by probate proceedings; In re Moore, 66 Fed. 951, statute providing for seizure of intoxicating liquors; Thurber v. Miller, 67 Fed. 376, 32 U. S. App. 209, holding that a defendant cannot remove a separable controversy between plaintiff and himself to Federal court, unless he is a non-resident; Smith v. Ivey, 48 Ala. 51, holding statute authorizing "substitution of lost records," included records made during Civil War; Price v. Stone, 49 Ala. 550, construing statute fixing sheriff's liability for accidental destruction of boat seized; Barclay v. Plant, 50 Ala. 515, statute regulating wife's estate; Ex parte State, In re Merlet, 71 Ala. 375, holding statute giving jurisdiction, impliedly conferred all process and procedure applicable to such jurisdiction; Ireland v. Commrs., 6 Colo. 283, construing statute providing for compensation of jurors; People ex rel. v. Chicago, 152 Ill. 552, 38 N. E. 746, construing statute providing for a special assessment; Hawthorn v. Commrs., 5 Ind.

App. 284, 30 N. E. 18, statute providing for sheriff's fees; Wiley 7. Starbuck, 44 Ind. 318, statute against usury; Chouteau v. Railway Co., 122 Mo. 389, 22 S. W. 461, statute providing for dower; People v. Peck, 138 N. Y. 395, 34 N. E. 351, 20 L. R. A. 385, construing penal code; Bucher v. Thompson, 7 N. Mex. 117, 32 Pac. 498, holding clerks of Probate Courts have implied authority to administer oaths; Slegel v. Lauer, 148 Pa. St. 244, 23 Atl. 999, 15 L. R. A. 550, holding that from an expressed purpose, arises a necessary implication of the exclusion of every other; Boyle v. N. W. Mut. R. Assn., 95 Wis. 322, 70 N. W. 355, construing statute providing for privileged communications; Morrissey v. Dean, 97 Wis. 311, 72 N. W. 876, holding valid, sale begun on mortgaged premises, but moved to adjoining building on account of storm, no one being prejudiced.

Rule applied in following cases in construing contracts: Manistee I. W. v. Lumber Co., 92 Wis. 28, 65 N. W. 865, and Bulkley v. United States, 19 Wall. 40, 22 L. 63, construing a contract; Johnston v. King, 83 Wis. 12, 53 N. W. 29, construing a lease; Cornett v. Williams, 20 Wall. 251, 22 L. 259, holding order of sale implied approval of claim; Hearne v. Marine I. Co., 20 Wall. 493, 22 L. 397, construing marine insurance policy; Hoffman v. Insurance Co., 92 U. S. 164, 23 L. 541, holding implication is that agent must act in the way usual in his line of business; Godkin v. Monahan, 83 Fed. 120, 53 U. S. App. 614, holding engagement to perform an act, involves an undertaking to secure the necessary means.

Distinguished in Hudson Canal Co. v. Pennsylvania C. Co., 8 Wall. 288, 19 L. 353, that subsequent events make contract unilateral in its advantages, is not sufficient to imply a covenant counterbalancing this.

Statutes. Proviso of statute construed and held not limited to section where found, but applicable alike to all within the class. p. 61.

Cited in Wheeler v. Plattsmouth, 7 Neb. 278, holding proviso an independent provision relating to entire bonded debt of city; Chattanooga, R. & C. R. Co. v. Evans, 66 Fed. 814, 31 U. S. App. 432, limiting proviso to particular section where found; Friedman v. Sullivan, 48 Ark. 214, 2 S. W. 785, and Brown County v. City of Aberdeen, 4 Dak. 406, 31 N. W. 737, applying proviso also to second section.

United States. The proviso of the act of 1852, limiting fees of land office registers to a certain maximum, was not confined merely to the cases specified in that act, but was intended as a provision of general and future applicability, p. 61.

Cited in United States v. Brindle, 110 U. S. 689, 28 L. 287, 4 S. t. 181, applying same rule to receiver of public moneys.

1 Black, 62-77, 17 L. 84, THE STEAMER NEW PHILADELPHIA. Collision Where loss is occasioned by co-operating causes, party may recover loss from either or both parties; so, barge being towed may recover for loss by collision from her tow, rather than the vessel with which it collided, p. 76.

Cited and principle applied in The Washington, 9 Wall. 516, 19 L. 788, and The D. S. Gregory, 2 Ben. 237, F. C. 4,100, holding party injured by collision, both vessels being equally at fault, may collect entire amount from either, in case the other is unable to respond for her portion; The Atlas, 93 U. S. 319, 23 L. 867, holding party entitled to decree against one of the offending vessels for the entire amount; Williams v. The Vanderbilt. 29 Fed. Cas. 1412, holding joint libel against tug and tow not vitiated by proof that one is free from blame; The Annie Williams, 20 Fed. 868, holding tug, towing, is the dominant mind, and is responsible for not exercising ordinary care; Western Ry. v. Sistrunk, 85 Ala. 357, 5 So. 82, holding it is not necessary that railroad's failure to comply with statute be the sole and immediate cause of the injury; Pittsburgh, C. & St. L. Ry. Co. v. Spencer, 98 Ind. 187, holding that passenger is entitled to recover from other railroad, though bis carrier has been negligent. Cited in The Morton, 1 Brown, 141, F. C. 9,864, but not applied.

Distinguished in The Steamboat Atlas, 4 Ben. 41, F. C. 633, holding colliding vessel could recover one-half of damage to her cargo; I v. The Lewis, 12 Fed. Cas. 1144, where tug was entirely at fault.

East

Collision Navigation.- Steamer towing barge across river held at fault for collision of her tow with a sloop, for not allowing for strength of tide, thus failing to exercise proper skill and care, p. 76.

Cited and principle applied in The Masters, 1 Brown, 346, F. C. 9,267, holding tug, not allowing for effect of current and wind, at fault; The Margaret, 94 U. S. 497, 24 L. 147, holding steam-tug, not exercising reasonable skill and care, liable for damage sustained: In re Humboldt L. Manufrs. Assn., 60 Fed. 443, and Humboldt L. M. Assn. v. Christopherson, 73 Fed. 248, 44 U. S. App. 434, both holding that tug in venturing to cross bar, was guilty of gross negligence; The Hercules, 81 Fed. 225, holding master of tug should be so familiar with obstruction in harbor as to be put on his guard by a great displacement of buoy; Brown v. Clegg, 63 Pa. St. 56, 3 Am. Rep. 527, holding towboats are not common carriers, as regards vessels towed.

Collision. Sloop, putting out fender to ward off pending collision with barge, due to unskillfulness of the barge's tow, is not at fault, p. 76.

Cited and principle applied in The Chickasaw, 41 Fed. 635, holding steamer had right to cut loose coal-flat to protect herself.

ANN