Petition of William Beslow to be discharged from the custody of William C. Sargent, sheriff of St. Louis county, on a writ of habeas corpus. The writ was quashed, and petitioner appeals. Affirmed.

Rustgard, Whitely & Marshall, for petitioner. Geo. E. Arbury, for respondent.

BUCK, J. The relator was arrested upon a warrant issued by the municipal court of the city of Virginia, in the county of St. Louis, in this state, on the 19th day of July, 1898, based upon a complaint in writing made on oath before a judge of said court, and the warrant issued upon the filing of said complaint. It was charged in said complaint and warrant that on said day, in said city and county, the defendant, Beslow, threatened to kill one Flora Beslow, and to do her great bodily harm, and that she had good cause to fear that said William Beslow would kill her. The proceedings were instituted under chapter 104 of the General Statutes of 1894, authorizing proceedings to prevent the commission of crimes. Upon the examination of the defendant upon said charge, it appeared to the court that there was just cause to fear that such offense would be committed by the said William Beslow; and thereupon said court ordered him to enter into a recognizance, with sufficient sureties, in the sum of $400, to keep the peace towards all the people of this state, and especially towards the said Flora Beslow, for the term of six months, and to pay the sum of $5.45, the cost of the prosecution. William Beslow refused to comply with the order, and was committed to the custody of the sheriff of said county, in the jail thereof, with instructions in said order to the said sheriff to safely keep Beslow in said jail for the term of six months from the date of said order, or until he so recognized as aforesaid and paid the said costs, or until he was then discharged by due course of law. Beslow, still refusing to comply with said order, petitioned the district court of St. Louis county for a writ of habeas corpus, which was granted, and the sheriff of said county directed to produce the body of said Beslow, which was accordingly done; and, after due return was thereto made, the cause was heard by the court, and the writ of habeas corpus quashed, and the petitioner forthwith remanded to the custody of the keeper of the common jail of said county; and from the order so made the petitioner appeals to this court.

The grounds of appeal are: (1) That, under the constitution (article 6, § 8), the court, having only the jurisdiction of a justice of the peace, could not legally commit the relator to the common jail of the county for a period of more than three months; (2) that the court could not commit the relator, for the period of six months, or any other period, for the nonpayment of the costs of prosecution.

The counsel for the relator misapprehendsthe grounds upon which this proceeding was instituted. It was not punitive justice that was sought to be enforced or imposed upon. the relator. The proceeding was one intended and calculated to prevent future crime, not one intended to expiate or punish for a past offense. He threatened to commit a serious crime against society, as well as against the person of Flora Beslow. This proceeding was instituted for the purpose of depriving him of the power to do this future mischief or crime, and to secure his good behavior. Threats to commit an offense is an offense of itself, but criminal prosecutions are sometimes attended with harsh circumstances and results, seemingly necessary, and Blackstonelays down the rule that preventive justice is preferable to punitive justice. In the chapter upon the Means of Prevention of Offenses, he uses this language: "Preventive justice, upon every principle of reason, of humanity. and of sound policy, is preferable to punitive justice, the execution of which is always attended with harsh circumstances. Preventive justice consists in obliging those persons. whom there is a probable ground to suspect of future misbehavior, to stipulate with, and to give full assurance to, the public, that such offense shall not happen, by finding pledges or securities for keeping the peace, or for their good behavior." Brown's Bl. Com. bk. 4, c. 28, p. 668. This was the rule at common law, and, to this end, whenever a private person had just cause to fear that another would do him injury, he might demand surety of the peace against such person, on making oath that he was actually under fear of death or bodily harm, and showing just cause for such apprehension, and that he was not doing this out of malice or mere vexation; and this was termed "swearing the peace" against another. This rule of the common law has been substantially incorporated into our statutes. in chapter 104, to which we have already re ferred. Section 7096 of the General Statutes of 1894 reads as follows: "If, upon examination, it appears there is just cause to fear that any such offense will be committed by the party complained of, he shall be required to enter into a recognizance, and with sufficient sureties, in such sum as the magistrate directs, to keep the peace towards all the people of this state, and especially towards the persons requiring such security, for such term as the magistrate orders, not exceeding six months; but he shall not be ordered to reeognize for his appearance at the district court. unless he is charged with some offense for which he ought to be held to answer at said court. Upon complying with the order of the magistrate the party complained of shall be discharged." Now, it is immaterial by what technical name this proceeding is designated. It is not a criminal trial, in the sense that a justice of the peace is without jurisdiction to hear the complaint, issue a warrant, hear the charge that the defendant had made threats

to kill or do bodily harm, require him to enter into a recognizance if the charge is proven, and, if the defendant neglects or refuses to comply with such order, then commit him to the county jail during the period for which he was required to give security, or until he so recognizes; stating in the warrant the cause of the commitment, with the sum and time for which security was required. Of course, under the statute, the time of commitment cannot exceed six months. In this class of cases there can be no trial by jury, and no final adjudication for a past offense, but simply an order that defendant will enter into a proper recognizance that he will not commit the offense charged in the complaint, or, in case of default in so doing, then that he stand committed to the county jail. It is evident that the constitution (article 6, § 8), which provides that the justice shall not have jurisdiction in a criminal cause where the punishment shall exceed three months, or a fine of over $100, has no application to a proceeding of this kind.

The other point raised by the relator is that the court ordered him to pay the costs of the prosecution, viz. $5.45, and in the commitment ordered the keeper of the jail to keep the relator therein until he recognized and paid said costs. This matter is regulated by statute. Gen. St. 1894, § 7099, provides that "in all cases where a person is required to give security to keep the peace or for his good behavior, the magistrate may further order the costs of prosecution or any part there. of to be paid by such person who shall stand committed until such costs are paid or he is otherwise legally discharged." This section is decisive of the question, and needs no argument to show its application or binding force.

No other questions are raised or argued in the relator's brief, and the result is that the order of the district court is affirmed.

1. A municipal corporation is not liable for the tortious act of the officers or agents, when the act is wholly ultra vires in the sense that it is not within the power or authority of the corporation to act in reference to the matter under any circumstances.

2. But if the act is within the general scope of the powers of the corporation, and was done in the execution of its corporate powers, but in such a negligent or unlawful manner as to injure others, the doctrine of respondeat superior applies, and the act may be the foundation of an action in tort against the corporation.

3. The act of damming the waters of Shell Rock river, of which Fountain Lake is a part, is within the corporate powers of the city of Albert Lea.

(Syllabus by the Court.)

Appeal from district court, Freeborn county; John Whytock, Judge.

Action by George A. Boye against the city of Albert Lea. Judgment for defendant. Plaintiff appeals. Reversed.

John Anderson and J. A. Sawyer, for appellant. John A. Lovely, W. E. Todd, and R. S. Farnsworth, for respondent.

MITCHELL, J. The allegations of the complaint are that the defendant city, without right to do so, has caused to be constructed and maintained within its corporate limits a dam across the waters of Shell Rock river, a natural and unnavigable stream, by means of which the waters of the river were stopped, and set back so as to overflow plaintiff's land, to his damage. By its charter the defendant is granted power "to control and regulate the flowage of the waters of Fountain Lake in said city." Sp. Laws 1889, p. 314. This is a public act, which need not be pleaded. Fountain Lake is a part of Shell Rock river, being formed by damming the stream.

The defendant demurred to the complaint on the ground that it did not state a cause of action. The contention of its counsel is that the tort alleged is not one which the city as a municipality could commit under any circumstances; in other words, that it was wholly ultra vires, and hence that the city was not liable. Municipal corporations, in the execution of their corporate powers, fall within the rule of respondeat superior when the requisite elements of liability co-exist. To create such a liability it is fundamentally necessary that the act done which is injurious to others must be within the scope of the corporate powers as prescribed by the charter; in other words, it must not be ultra vires in the sense that it is not within the power or authority of the corporation to act in reference to it under any circumstances. If the act complained of lieswholly outside of the general or special powers of the corporation as conferred by its charter, the corporation can, in no event, be liable for the acts of its officers, for a corporation cannot be impliedly liable to a greater extent than it could make itself liable by expresscorporate vote or action. But if the wrongful act be not, in this sense, ultra vires, but iswithin the general scope of the powers of the municipality, and was done in the execution of corporate powers of a ministerial nature, but in an improper and unlawful manner, so as to injure others, it may be the foundation of an action in tort against the corporation. Dill. Mun. Corp. § 968. In this case it not only does not appear that the act complained of was ultra vires, in the sense above stated, but, on the contrary, it affirmatively appears from the complaint, read in connection with the city charter, that the act was done by the city in the execution of its corporate powers, to wit, "the control and regulation of the flowage of the waters of Fountain Lake," but in such a negligent or unlawful way as to injure the plaintiff by overflowing his land. We use the term "corporate powers" to distinguish them

from those public services not peculiarly local or corporate imposed by statute on municipal officers, but in which the corporation, as such, has no interest except as a part of the general public. Our conclusion is that the complaint states a cause of action. Judgment reversed.

HOLCOMB v. STRETCH (MARTIN, Intervener).

(Supreme Court of Minnesota. Nov. 14, 1898.) JUDGMENTS-VACATION-QUIETING TITLE-DE

FENSES.

In an action to determine adverse claim to real property, the plaintiff claimed title under a deed from the defendant, while the intervener claimed title under a sale of the land for taxes. The trial court held that the intervener had acquired title to the land under the tax sale. In an application, under Gen. St. 1894, § 5206, for leave to defend the action, the defendant alleged as a defense to the plaintiff's claim that he never executed any conveyance of the land, but did not state that he had any defense to the intervener's claim under his tax title, which, if valid, extinguished the claim of both plaintiff and defendant. Held, that there was no error in the court's refusal to allow defendant to defend the action.

(Syllabus by the Court.)

Appeal from district court, St. Louis county; William A. Cant, Judge.

Action by Mrs. H. A. Holcomb against William J. Stretch, in which Thomas Martin intervened. On the issue between plaintiff and defendant the court found in favor of plaintiff, and on the issue between intervener and defendant it found in favor of intervener, and judgment was entered accordingly. Subsequently, within one year, defendant moved to be allowed to defend. The court denied the motion, and defendant appealed. Affirmed.

Crassweller & Crassweller (Wilson G. Crosby, of counsel), for appellant. John G. Williams, for respondent Martin. White & McKeon, for respondent Holcomb.

MITCHELL, J. This action was brought against defendant to determine adverse claims to real estate. The land which is the subject of the action originally belonged to defendant. Plaintiff claimed title under an alleged lost and unrecorded deed from the defendant. Service of the summons was made on the defendant by publication. Martin intervened in the action, claiming to be the owner of the land under a tax title. Defendant had removed from the state some 24 years previously, and during all that time had never returned to the state, or communicated with any one in the state, or paid any attention to the land. One McKinley,-a nephew of the defendant, residing in Duluth,-without authority, employed attorneys to appear and answer for the defendant in the action. The defense set up in the answer to plaintiff's complaint was, in legal effect, that defendant had never executed any conveyance of the

land, and was still the owner of it. The de fense set up in the answer to the intervener's complaint was that the defendant, through McKinley, had seasonably redeemed the land from the tax sale through which the intervener claimed title. Upon the issue betweea the plaintiff and defendant the trial court found in favor of the plaintiff, and on the is sue between the intervener and the defendant it found in favor of the intervener, and. as a conclusion of law, held that he was the owner of the land. Judgment was rendered | accordingly. Within one year after the rendition of the judgment, the defendant appeared and moved, under Gen. St. 1894, § 5206, to be allowed to defend the action. The court denied the motion, and from that order the defendant appealed.

There is one conclusive reason, if no other, why the court was justified in denying defendant's application. In defendant's motion papers the only defense which defendant claims to have is that he never executed the alleged deed of the land under which plaintiff claims. This would be a defense as against plaintiff, but none as against the intervener. He nowhere alleges or suggests that he has any defense to the intervener's claim of title under the tax sale, and, if he has none, a defense to plaintiff's claim would be of no avail, for neither of them would have any title to or interest in the land.

This disposes of this appeal, but, to avoid misapprehension as to the law, it is expedient to refer to a point not suggested in this court, and apparently not in the court below. Clearly, Martin had no right to intervene in the action, for he could neither gain nor lose by a judgment in the action between the plaintiff and defendant. It would in no way affect his title under the tax sale. Lewis v. Harwood, 28 Minn. 428, 10 N. W. 586 But this would be waived if the parties plaintiff and defendant voluntarily litigate the issues tendered by an intervener. The reeord is entirely silent as to how, if at all, the intervener acquired jurisdiction of the person of the defendant. The publication of the summons by the plaintiff would give the court Jurisdiction of the defendant for the purpose of litigating her claim to the land, but not for the purpose of litigating the intervener's claim to the land under the tax title, which was an independent title, adverse and paramount to the claims of both plaintiff and defendant. Hence, if the appearance in the action in behalf of the defendant was unauthorized, and the court did not otherwise acquire jurisdiction of his person for the purpose of litigating the claim of the intervener, the judgment in favor of the latter was, as to defendant, absolutely void, for want of jurisdiction. But, as already suggested, the defendant did not move to set aside the judgment on any such ground, and the point has not been raised or suggested by counsel. Order affirmed.

ABORN. POLK COUNTY. (Supreme Court of Iowa. Oct. 27, 1898.) Appeal from district court, Polk county; T. F. Stevenson, Judge. Action to recover a liquor tax paid under protest. Judgment for plaintiff, and the defendant appealed. Reversed. W. G. Harvison, for appellant. Dowell & Parish, for appellee.

PER CURIAM. This case and that of Hubbell v. Polk Co., 76 N. W. 854, were tried together, and are so identical that this case is controlled by our conclusion in that, and hence the judgment will be reversed.

BOLTON et ux. v. PROSE et al. (Supreme Court of Iowa. Oct. 22, 1898.) Appeal from district court, Harrison county; F. R. Gaynor, Judge. The plaintiffs are husband and wife. The defendants are heirs at law of the estate of L. B. Prose, deceased, and Margaret Prose is administratrix of his estate. J. R. Prose, one of the defendants, is a minor. Certain lots in Logan, Iowa, numbered from 10 to 14, inclusive, belonged to the estate of L. B. Prose, deceased. In May, 1895, the defendants entered into a written agreement with plaintiffs to convey to them said lots. In pursuance of this agreement, a deed was executed by all the defendants except the minor; and it seems, then, to have been the purpose to obtain, through the court, a guardian's deed of his interest. Instead, however, of a guardian's deed, the administratrix obtained an order to sell the lots to pay the debts of the estate, and the land was conveyed to plaintiff under that order; so that plaintiffs have the title to the lots, and no question is made as to its validity. By the written agreement, plaintiffs have to take the lots subject to a mortgage of $886.05. The purchase price of the lots has been paid, and this action brought, representing that there was a mutual mistake in the amount of the incumbrance on the lots, the amount being $1,278.25, instead of $886.05, because of which plaintiffs have paid to the estate $392.15 in excess of the contract price; and a recovery of the excess so paid is sought from the money paid by plaintiffs, and yet undistributed. The answer puts in issue the facts as to a mistake. The district court dismissed the petition, and the plaintiffs appealed. Affirmed. Roadifer & Arthur, for appellants. S. H. Coahran, for appellees.

PER CURIAM. It is conceded that the case presents-First, a question of fact as to the mistake; and, second, if there was a mistake, then a question of law as to whether relief can be granted. Our conclusion on the question of fact sets the case at rest. We think the money was not paid by mistake, and no extended opinion is required. Affirmed.

and the defendant appealed. Afirmed. E. B. Abbott, for appellant. Frank Jennings, for appellee.

PER CURIAM. The case involves no doubtful legal proposition. The facts essential to sustain the verdict have abundant support in the evidence, and the law was correctly applied. An opinion would serve no useful purpose. The judgment is affirmed.

DONAHOE v. FALLON. (Supreme Court of Iowa. Oct. 24, 1898.) Appeal from district court, Webster county; S. M. Weaver, Judge. Action for specific performance of a contract to convey real estate. Decree for

plaintiff. Defendant appeals. Affirmed. Remley, Ney & Remley, for appellant. Botsford, Healy & Healy, for appellee.

PER CURIAM. Plaintiff and defendant entered into a written contract, whereby the latter agreed to convey to the former certain real estate. The instrument was lost, and upon the trial oral evidence was resorted to in order to establish its terms; and we may say now that we think a proper foundation was laid for the admission of such evidence. The only matter of disagreement is as to the consideration agreed to be paid. On plaintiff's behalf it is insisted that the consideration was $3,000, and, as a part thereof, he was to assume a mortgage of $700, existing upon the land. Defendant contends that plaintiff was to pay $3,000, and assume the mortgage in addition thereto. The evidence is in conflict, but we think it preponderates in support of plaintiff's contention. The decree of the district court will therefore be affirmed.

POTTER v. CLAUSING et al. (Supreme Court of Iowa. Oct. 18, 1898.) Appeal from district court, Bremer county; John C. Sherwin, Judge. Action for specific performance. The petition alleged that on or about August 5, 1895, the defendant Conrad Clausing entered into an oral agreement by which he promised to convey certain real estate in Tripoli to plaintiff, in consideration of an undivided one-half interest in certain lands, subject to a mortgage, and that the plaintiff paid him $10; that the defendant refused to fulfill his part of the agreement. The defendant's answer was, in substance, a general denial, with the allegation that the $10 was paid on certain rent. Decree was entered as prayed, requiring the defendant to execute a good and sufficient deed within 10 days, and, if he failed so to in, the plaintiff to have judgment for $400. The execute such deed, with his wife joining theredefendant appeals. Affirmed. Boies & Boies, for appellant. E. L. Smalley and G. W. Ruddick, for appellee.

PER CURIAM. The contract alleged, and the payment of the $10 as earnest money, are satisfactorily proven, and the difference in value between the conveyance including the wife's inchoate distributive share and without it is shown to be $400. We shall not discuss the evidence in detail. It is enough to say that, in view of the theory on which the case was tried, we are satisfied with the conclusion of the district court, and the decree is affirmed. The defendant will be given 60 days from the filing of this decision within which to execute the deed, under the conditions fixed by the district court. Affirmed.

STATE. BEASLEY. (Supreme Court of Iowa. Oct. 27, 1898.) Appeal from district court, Ringgold county; H. M. Towner, Judge. PER CURIAM. The defendant appeals from a judgment which required that he be imprisoned for the term of three years for the crime of burglary. The case is submitted without argument, on a transcript of the indictment, and of a part of the record showing a trial and conviction, judgment, and appeal. We have examined the record submitted, without finding any error in the proceedings. The judgment of the district court is therefore affirmed.

STATE v. BURNS. (Supreme Court of Iowa. Oct. 27, 1898.) Appeal from district court, Sioux county; George W. Wakefield, Judge. Defendant was indicted, tried, and convicted of the crime of perjury, and from the sentence imposed appeals. Affirmed.

PER CURIAM. The case is submitted by the attorney general upon a transcript of the record containing the indictment, verdict of the jury, judgment of the court, and notice of appeal. The proceedings appear to be regular, and the judgment is affirmed.

STATE v. THAM. (Supreme Court of Iowa. Oct. 27, 1898.) Appeal from district court, Polk county; W. F. Conrad, Judge.

PER CURIAM. This case is submitted upon a transcript which shows that the defendant was indicted, tried, and convicted of the crime of adultery, and judgment of imprisonment in the penitentiary for the period of six months rendered against him. We do not discover any errors in the record, and the judgment is therefore affirmed.

STATE v. WILLEY. (Supreme Court of Iowa. Oct. 27, 1898.) Appeal from district court, Ringgold county; H. M. Towner, Judge. Milton Remley, Atty. Gen., for the State. Askren Bros., for defendant.

PER CURIAM. The case is submitted on a transcript of the indictment and record entries. We discover no error in the proceedings, and the judgment is affirmed.

WILLIAMS v. MCELROY. (Supreme Court of Iowa. Oct. 11, 1898.) Appeal from district court, Wapello county; T. M. Fee, Judge. Action at law, aided by attachment, to recov er of the Granite State Provident Association of Manchester, N. H., on account of a certificate for 25 shares of the homestead fund of the association, the sum of $2.631.25. Proceedings were had which resulted in a judgment in favor of the plaintiff, and against the association, for the amount claimed, with interest. E. E. McElroy, receiver of the association, appeals. Affirmed. A. W. Enoch and McElroy & Heindel, for appellant. W. S. Coen and Jaques & Jaques, for appellee.

ROBINSON, J. This action was commenced in April, 1896, and notice thereof was served upon an agent of the defendant association in Wapello county, and upon Davis A. Taggart, assignee, at Manchester, N. H. The association did not appear in the action, but Taggert filed a motion for leave to defend and require a more specific statement in the petition. The motion was sustained in part, and an amendment to the petition was filed. After the motion was filed, but before it was ruled upon, E. E. McElroy, receiver of the association, filed an answer. The plaintiff filed a motion to strike it from the files. The receiver then filed an amendment to his answer in the nature of a petition of intervention, and the

A

plaintiff filed a motion to strike that from the files also, and both motions were sustained. default was thereafter entered against the association, and judgment was rendered against it, and in favor of the plaintiff, as stated. The facts of this case, so far as they are material to its determination, are substantially like those involved in the cases of Bank v. McElroy, 76 N. W. 715, and Hedrick v. Same (de cided at the present term of this court) 76 N. W. 716. What we said in those cases need not be repeated here, but, following the law as announced in those cases, the judgment of the district court in this case is affirmed.

AMERICAN TRUST & SAVINGS BANK OF CHICAGO v. FOSTER. (Supreme Court of Michigan. Oct. 3, 1898.) Appeal from circuit court, Ingham county, in chancery; Rollin H. Person, Judge. Petition by the American Trust & Savings Bank of Chicago to compel Seymour Foster, receiver of the People's Savings Bank of Lansing, to pay a certain dividend to it out of certain moneys in his hands as such receiver. From an order denying the petition, petitioner appealed. Affirmed. Jay P. Lee and Bartlett Wiley, for petitioner. Russell C. Ostrander, for respondent.

LONG, J. It appears in this case that the moneys in controversy were borrowed by the People's Savings Bank from the petitioner. The petitioner is not a depositor, within the meaning of the banking law, and not entitled to claim any part of the dividend arising from the fund recovered against the stockholders. The case is governed by Bank v. Foster (decided at the present term) 76 N. W. 499. The order below must be affirmed, with costs in favor of respondent.

GRANT, C. J., and HOOKER and MOORE, JJ., concurred with LONG, J.

MONTGOMERY, J. My views are expressed in Bank v. Foster (decided herewith) 76 N. W. 499.

BRIGGS v. WAYNE CIRCUIT JUDGES. (Supreme Court of Michigan. Sept. 20, 1898.) Application by Dexter J. Briggs against the Wayne circuit judges for an order to show cause why a motion to dissolve an injunction should not be granted. Denied. John J. Speed, for relator.

PER CURIAM. Upon filing the bill in chancery in this case, the court issued a preliminary injunction. Answers were filed, and a motion made to dissolve the injunction. Three of the circuit judges heard the motion, and refused to grant it. We see no occasion for interfering with the discretion of the court in this matter. We think the court did right in retaining the injunction until the hearing upon pleadings and proofs. The order to show cause will be denied.

DEVINE v. DABOLL, Circuit Judge. (Supreme Court of Michigan. Oct. 3, 1898.) Origi nal mandamus by the people, on the relation of Edward D. Devine, against Sherman B. Daboll, acting circuit judge of Wayne county. Writ denied.. Jasper C. Gates, for relator. Walters & Walters, for respondent.

PER CURIAM. This case is ruled by the decision in the case of Mardian v. Daboll (Mich.) 76 N. W. 497.

Appeal of FIRST NAT. BANK OF PAW PAW. (Supreme Court of Michigan. July 12 1898.) Error to circuit court, Van Buren coun ty; George M. Buck, Judge. In the matter of the estate of Alonzo Sherman, deceased, the First National Bank of Paw Paw filed a claim in the probate court, which was rejected. From