In

decision did not restrict deceit to "cheating by false token," but instanced that as an offense coming within the general description of misdemeanors by deceit. The statute against seduction under promise of marriage (Acts 1885, c. 248) had not then been enacted. In State v. Horton, 100 N. C. 443, 449, 6 S. E. 238, Smith, C. J., says that this statute "plainly contemplates a seduction, brought about by means of a promise of marriage, in the nature of deceit." deed, deceit is the very essence of this offense, the warp and woof of it, so to speak. There is more warrant for so holding it than the court had for placing cheating by false token under that head, for this offense is perpetrated solely by reason of the trust and confidence placed in the perpėtrator by the woman in consequence of the intimate relation existing between them, and by her relying on the promise of marriage, by means of which he procures the indulgence of his desires. In cheating by false token there is not this dependence and breach of confidence and trust. The attorney general properly conceded that this crime would not have come under the other exception in this section,-"offenses committed in a secret manner." That clearly applies to crimes committed in such manner that the offender is unknown to the person injured.

The act of 1891 (chapter 205), defining felonfes and misdemeanors, makes this offense, if committed since the act, a felony, as to which there is no statute of limitation. But that act does not apply to this offense, which was committed prior to its enactment. When there is a prayer to put the charge in writing, the entire charge must be written. State v. Young, 111 N. C. 715, 16 S. E. 543. But, as was said by Smith, C. J., in Currie v. Clark, 90 N. C. 355, 361: "It is not the policy or purpose of the statute, nor does the language bear such rigorous construction, as to forbid any and all oral expressions from the presiding judge.

This would be to subordinate substance to form, and subserve no useful purpose." The defendant prayed the court to instruct the jury that the offense was barred by the statute of limitations. This the court declined, but orally told the jury, instead: "The statute of limitations has nothing whatever to do with this action, and you will not take it into consideration." The defendant has the full benefit of the exception that the prayer was refused, and has not cause to complain that the judge did not write down the incidental oral remark.

Nor was there error in refusing to give the definition of an innocent and virtuous woman asked by the defendant. The law looks at conduct, and motive only as shown by conduct, and not at thoughts undisch sed and natural impulses not acted on. The precedents sustain the definition given by the court that an innocent and virtuous wo

man is one "who has never had illicit intercourse with any man, and who is chaste and pure." State v. Ferguson, 107 N. C. 841, 12 S. E. 574. The court properly refused to go further and charge that the prosecutrix must have had "a mind free from lustful and lascivious desires."

The court erred, however, in imposing both fine and imprisonment. The act of 1885 (chapter 248) provides that the defendant, upon conviction of this offense, "shall be fined or imprisoned at the discretion of the court, and may be imprisoned in the penitentiary not exceeding five years." The disjunctive "or" cannot be construed "and" in a criminal statute when the effect is to aggravate the offense or increase the punishment. State v. Walters, 97 N. C. 489, 2 S. E. 539. The latter part of the clause, "and may be imprisoned in the penitentiary," etc., means: "And, if the alternative of impris onment is selected by the judge, the imprisonment, in his discretion, may be in the penitentiary, not exceeding five years." This, however, does not entitle the defendant to a new trial, but the case will be remanded, that sentence may be imposed at the next term of Catawba superior court in conformity to this opinion. State v. Walters, supra; State v. Lawrence, 81 N. C. 522; State v. Queen, 91 N. C. 659. The verdict stands. His honor holding the court below will, in the exercise of his discretion, within the limits allowed by law, impose either fine or imprisonment. Error. Remanded.

LOVE v. CITY OF RALEIGH. (Supreme Court of North Carolina. April 16, 1895.)

CITIES-POWERS-NEGLIGENCE OF AGENTS-HARM

LESS ERROR.

1. A city has no implied authority to provide for a pyrotechnic display on the Fourth of July.

2. A city, not having authority to provide for a pyrotechnic display in celebration of the Fourth of July, is not liable for injuries to persons, caused by the negligence of its agents, in control of a display, ordered by it.

3. Error in the exclusion of evidence is not ground for reversal where appellant, if the evi dence had been admitted, could not have recovered.

Appeal from superior court, Wake county; Bynum, Judge.

Action by E. H. Love against the city of Raleigh for injuries received through the negligence of defendant's agents in managing a pyrotechnic display. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Battle & Mordecai, for appellant. J. N. Holding and Strong & Strong, for appellee.

AVERY, J. The principal questions presented by this appeal are: First, whether the city of Raleigh was empowered by any general or special statute to purchase fire

works, and order a committee to direct the manner of making the display; second, whether, if no such authority had been delegated to the municipality, it would be answerable for the wrongful conduct of agents acting within the scope of its instruction to them, but in the exercise of authority not delegated to it by the legislature. It will possibly aid us in the elucidation of these questions to lay down some general fundamental rules defining and fixing the limits of municipal powers. So long as a city keeps within the purview of its delegated authority, it is not responsible for any act of its agents, done in the exercise of its judicial, discretionary, or legislative powers, except where subjected to such liability by some express provision of the constitution or of a statute. Moffitt v. Asheville, 103 N. C. 255, 9 S. E. 695; Hill v. City of Charlotte, 72 N. C. 56; 1 Shear. & R. Neg. § 262; Robinson v. Greenville, 42 Ohio St. 625. But when such a corporation is acting in its ministerial capacity, or its corporate, as distinguished from its governmental, character, in the exercise of powers conferred for its own benefit, and assumed voluntarily, it is answerable for the torts of its authorized agent, subject to the limitation that such wrongful acts must not only be within the scope of the agency, but also within the limits of the municipal authority. Moffitt v. Asheville, 103 N. C. 254, 9 S. E. 695; 2 Dill. Mun. Corp. (4th Ed.) § 968 (766). In the section cited above, Judge Dillon says: "If the act complained of necessarily lies wholly outside of the general or special powers of the corporation, as conferred by its charter or by statute, the corporation can in no event be liable to an action for damages, whether it directly commanded the performance of the act, or whether it be done by officers without its express command; for a corporation cannot, of course, be impliedly liable to a greater extent than it could make itself by express corporate vote or action." Referring especially to the wrongful acts of agents of municipalities, the same author says in a subsequent section (969a): "As to torts or wrongful acts not resting upon contract, but which are ultra vires in the sense above explained (viz. wholly and necessarily beyond the possible scope of the chartered powers of the municipality), we do not see on what principle they can create an implied liability on the part of the municipality. If they may, of what use are the limitations of the chartered corporate powers?" 2 Thomp. Neg. 737; Smith v. City of Rochester, 76 N. Y. 506; Mayor, etc. v. Cunliff, 2 N. Y. 165. It is not denied that if the agent, in the course of his employment, is guilty of negligence, or commits even a willful trespass, with the belief and intention that the act will inure to the benefit of the principal, then not only does the doctrine of respondeat superior apply, but both principal and servant may be made to answer for the resulting damage. See authorities cited in Tate v. City of

Greensboro, 114 N. C., on pages 416, 417. 19 S. E. 767; especially 2 Dill. Mun. Corp. $$ 979, 980, et seq.; Hewitt v. Swift, 3 Allen, 420; Johnson v. Barber, 5 Gilman, 425; Wright v. Wilcox, 19 Wend. 343. "Without express power," says Judge Dillon, 1 Mun. Corp. §§ 149 (100) “a public corporation cannot make a contract to provide for celebrating the Fourth of July, or to provide an entertainment for its citizens or guests. Such contracts are void, and, although the plaintiff complies therewith on his part, he cannot recover of the corporation." Hodges v. Buffalo, 2 Denio, 110; 2 Dill. Mun. Corp. § 916 et seq.; Austin v. Coggeshall, 12 R. I. 329. It is needless to cite further authority in support of the proposition that if a city is not empowered to contract a debt for the purpose of making a display on a national holiday, or on such an occasion as the centennial anniversary of its existence as a municipality, it would follow of necessity that it could not, by empowering agents to supervise a display that it could not lawfully pay for, subject its taxpayers to liability for the willful wrong or negligence of such agents, when they are acting entirely outside of the scope of any duty that the city is authorized to impose. 2 Dill. Mun. Corp. § 969a. A municipality is not answerable for torts of a servant, except where the wrong complained of is an act done in the course of his lawful employment, or an omission of a duty devolving upon him as an incident to such service.

Before entering upon the consideration of the sufficiency of the statutes relied upon to authorize the action of the mayor and aldermen of the city in making an appropriation and appointing a committee to purchase the necessary articles and to supervise the pyrotechnic display on the occasion referred to, it is perhaps best to recur to the rule that a municipality is clothed with those powers only which are granted in express terms, or necessarily or fairly implied from or incident to those expressly granted, and which it is essential to exercise in order to carry out objects and purposes of creating the corporation. 1 Dill. Mun. Corp. § 89 (55); State v. Webber, 107 N. C. 962, 12 S. E. 598. In all of the cases relied upon by plaintiff's counsel it seems that the municipalities had the authority to pass an ordinance or make an order under color of authority. It has not been contended or alleged that the action is founded upon the creation of a nuisance by the city, nor can it be successfully maintained that the use of fireworks is analogous to the case of blocking up a public highway which it is the duty of the municipality to maintain in good condition. The charter of the city (chapter 243, Laws 1891) grants to the mayor and aldermen, when assembled, the following powers:

"Sec. 31. That the aldermen when convened shall have power to make and provide for the execution thereof, such ordinances, by-laws, rules and regulations for the better

government of the city as they may deem necessary: provided, the same be allowed by the provisions of this act and be consistent with the laws of the land.

"Sec. 32. The board of aldermen shall contract no debt of any kind unless the money is in the treasury for its payment, except for the necessary expenses of the city government.

"Sec. 33. That among the powers hereby conferred on the board of aldermen, they may borrow money only by the consent of a majority of the qualified registered voters, which consent shall be obtained by a vote of the citizens of the corporation after 30 days publie notice, at which time those who consent to the same shall vote 'Approved' and those who do not consent shall vote 'Not Approved; they shall provide water and lights, provide for repairing and cleansing the streets, regulate the market, take all proper means to prevent and extinguish fires, make regulations to cause the due observance of Sunday, appoint and regulate city policemen, suppress and remove nuisances, regulate, control and tax the business of the junk-shops and pawn-shop keepers or brokers, preserve the health of the city from contagious and infectious diseases; may provide a board of health for the city of Raleigh and prescribe their duties and powers, provide ways and means for the collection and preservation of vital statistics; appoint constables to execute such precepts as the mayor or other persons may lawfully issue to them, to preserve the peace and order, and execute the ordinances of the city; regulate the hours for sale of spirituous liquors by all persons required to be licensed by the board, and during periods of great public excitement may prohibit sales of spirituous liquor by all such persons for such time as the board may deem necessary; may pass ordinances imposing penalties for violations thereof not to exceed a fine of fifty dollars or imprisonment for thirty days. * They shall have the right to regulate the charge for the carriage of persons, baggage and freight by omnibus or other vehicle, and to issue license for omnibuses, hacks, drays or other vehicles used for the transportation of persons or things for hire. They may also provide for public schools and public school facilities by purchasing land and erecting buildings thereon and equipping the same within the corporate limits of the city or within one half mile thereof. They may also construct or contract for the construction of a system of sewerage for the city and protect and regulate the same by adequate ordinances; and if it shall be necessary, in obtaining proper outlets for the said system, to extend the same beyond the corporate limits of the city, then in such case the board of aldermen shall have the power to so extend it, and both within and without the corporate limits to condemn land for the purposes of right-of-way or other require

ments of the system, the proceedings for such condemnation to be the same as those prescribed in chapter 49, section 6, of the Private Laws of 1862 and '63, or in the manner prescribed in chapter 49, volume 1 of the Code."

In these provisions of the charter and in sections 3800 to 3805, both inclusive, of the Code, will be found enumerated all of the powers granted to the city by general or special laws. We do not think that the general power to pass ordinances can be held to carry with it by implication any such grant of authority as that to expend the public money for, and conduct under the auspices. of the city officers, such a display as that described by the witnesses. We are aware that such authority has been assumed by cities and towns in many of the states, but where the exercise of it has been drawn in question in the courts it has been sustained only when some statute expressly conferred the power to make the appropriation for that particular purpose. As we understand the authorities cited, the supreme court of Massachusetts has given its sanction to the validity of expenditures for such purposes. only where some express provision of law was shown to warrant it. In one of the cases cited from that state (Tindley v. City of Salem, 137 Mass. 171) the court held that,. even where a person was injured by the negligent use of fireworks by the servants of a city that had ordered the display for the gratuitous amusement of the people, under the authority of a statute, the city was not liable to answer in damages. In an earlier case it had been held that a city council must act strictly in pursuance of statutory power to make such displays to subject it to liability for injuries due to the negligence of its servants in the management of it. Morrison v. City of Lawrence, 98 Mass. 219. Where no statutory authority is shown for a wrongful act done under the direction of a municipality, the supreme court of Massachusetts lays down the general rule as to its liability substantially as we have stated it. Cavanaugh v. Boston, 139 Mass. 426, 1 N. E. 834; Claflin v. Hopkinton, 4 Gray, 502. If there is no authority conferred upon the mayor and aldermen by the statute mentioned, and we can discover none after dil:gent search and examination, it is immaterial whether the persons in immediate control of the fireworks were servants acting under the direction of the committee ap pointed by a resolution passed by the mayor and commissioners, and stood in the relation of agents to the city, or whether they were independent contractors. If the authorities of the city acted ultra vires in ordering the display, the question whether they employed expert pyrotechnists, and acted upon their advice after securing their services, is equally as irrelevant. If, therefore, it were conceded that the chairman of the committee appointed by the city for the purpose ·

supervised and directed the negligent management of the fireworks, and at such a place as, it was evidence of a want of care to select, we think it was the duty of the court nevertheless to tell the jury that the mayor and aldermen were not authorized by law to make an appropriation for and direct the management of a display of fireworks, and that the city was not liable to respond in damages for the wrongful or negligent conduct of a servant acting under instructions given by the city, but without authority of law. For the reasons given, we think that the court should have instructed the jury that in no aspect of the evidence was the defendant corporation liable for the acts of its servants in the management of the fireworks. Whether the rulings of the court upon the admissibility of testimony were abstractly erroneous or not is not material, since, whether excluded or admitted, it was manifest that the plaintiff was not, in any view of the evidence, entitled to recover. There was no error of which the plaintiff can justly complain, and the judgment must be affirmed.

MONTGOMERY, J., did not sit.

MOORE et al. v. SMITH et al. (TRENT et al., Interveners).

(Supreme Court of North Carolina. April 16, 1895.)

CONCLUSIVENESS OF FOREIGN JUDGMENT-EQUITY -PARTIES.

1. A judgment obtained in another state against the sureties on the bond of a deceased North Carolina administrator is, in an action in the latter state for a settlement of the estate, binding on his administrators and their privies, where they were present resisting the recov ery against them and the sureties of their intestate, as principal debtor.

2. In an equitable action for the settlement of the estate of a deceased administrator, and to satisfy a judgment obtained in another state against his personal representatives and the sureties on his bond, such sureties may intervene and receive credit for what they have paid on the judgment, remaining liable to plaintiffs for any balance not realized in the present action.

Appeal from superior court, Rockingham county; Bryan, Judge.

Action in equity by W. B. Moore and others against Darien Smith and others, in which James W. Trent and John W. Morris intervened as plaintiffs. From a judgment for plaintiffs, defendants appeal. Modified.

(1) In July, 1862, Pleasant W. Moore died, intestate, in Henry county, Va.; and in October. 1862, Drury Smith was duly qualified as administrator of said Moore, in Rockingham county, N. C., and filed his bond in the penal sum of $20,000, with H. C. Wooten, James W. Trent, and John W. Morris as sureties on said bond, all of said sureties being then and now citizens of Henry county, Va. The plaintiff's are the heirs at law and distribu

tees of said P. W. Moore. (2) In 1872 said Drury Smith died, intestate, and the defendants Darien Smith and G. W. Smith were in January, 1873, duly qualified as his administrators, and the other defendants are the heirs at law and distributees of said Drury Smith. (3) In 1878 the plaintiffs instituted a suit in Henry county, Va., against the defendant administrators and their said sureties for an account and settlement of their said estate, which resulted in a judg ment in the court of appeals of Virginia against the defendants, and, by a decree of the chancery court of Virginia, said sureties' lands are ordered to be sold, to satisfy said judgment, which is still unpaid. (4) Said Drury Smith's estate is still unsettled, and this action is brought for a settlement thereof, and to have lands sold to satisfy their judgment. At February term, 1892, said James W. Trent and John W. Morris were made parties plaintiff in this action, who filed an amended complaint, alleging that they were in danger of having their lands sold to satisfy the Virginia judgment, and praying the court to protect them by requir ing the representatives of their principal in said judgment to satisfy the same out of the real and personal property of the said Drury Smith's estate. Judgment for plaintiffs against defendants was rendered, from which defendants appealed.

R. D. Reid, Glenn & Manly, and Shepherd & Busbee, for appellants. Watson & Buxton, for appellees.

FAIRCLOTH, C. J. His honor ordered an account of the estate of Smith to be taken, and reserved the question of the personal liability of the defendant administrators until the referee's report is filed. The question more elaborately argued before us was as to the effect of the Virginia judgment against the defendant administrators, Darien and G. W. Smith. We find it unnecessary to enter into that question, because that judgment was unquestionably valid against the sureties Trent and Morris, who are now plaintiffs in this action. That judgment is also competent evidence against the defendant administrators and their privies, it appearing from the record that the administrators not only had notice, but were present and resisting the recovery against them and the sureties of their intestate, as principal debtor. Lewis v. Fort, 75 N. C. 251; Hare v. Grant, 77 N. C. 203.

The further objection was taken that plaintiffs, Trent and Morris, could not recover, as they are indemnified, until they have paid the debt against their principal. In an aetion at law this position would be tenable. but it is not so in a court of equity; and for this reason they were properly allowed to be made parties plaintiff. The exercise of this equitable jurisdiction works out just results; i. e. the other plaintiff's are enabled to receive the money due them, the real debtor

is compelled to pay it, and the plaintiff sureties are relieved from jeopardy. Ferrer v. Barrett, 4 Jones' Eq. 455; Quickel v. Henderson, 6 Jones' Eq. 286; Scott v. Timberlake, 83 N. C. 382. Of course, the plaintiff sureties would remain liable on the Virginia judgment for any balance not realized in this action. If it appeared that there were any creditors of Smith's estate, they would be necessary parties to enable those sureties to avail themselves of this equitable relief; but, in their absence, the heirs and distributees are the next entitled, and they are present in this proceeding to receive the money due by defendants.

It will be the duty of the court below to direct that the plaintiff sureties receive no more than they have paid on said judgment to the use of the other plaintiffs since its rendition, and that the other plaintiffs receive the balance of the recovery according to their several rights. With these modifications, the judgment is aflirmed. Affirmed.

WATSON v. LONG et al.

(Supreme Court of Georgia. Aug. 6, 1894.) NEW TRIAL-APPROVAL OF BRIEF OF EVIDENCEDISCRETION of Court.

Where the first order fixed the time for hearing the motion for a new trial, and granted leave "until the hearing" to make out and file a brief of the evidence, and by subsequent successive orders different times were fixed for the hearing, and it was expressly provided that within a time limited by each the brief of evidence should be approved, and it not appearing that any brief was presented for approval until after all of these limitations had expired, a further continuance, granted at the term suc ceeding that to which the hearing had last been continued, did not necessarily carry with it the right on the part of the movant to have the brief of evidence approved at the time fixed for the hearing by this last order, as against an unwillingness of the judge then to exercise the power of approval His refusal to approve the brief after a lapse of nearly 18 months from the date of trial was not error. Whether, as a mere question of legal power, his approval would have been valid or not, it was certainly not an abuse of discretion to decline to approve the brief after such a lapse of time.

(Syllabus by the Court.)

Error from superior court, Douglas county; C. G. Janes, Judge.

Action between J. M. Watson and B. M. Long and others. From a judgment refusing to approve a brief of evidence, and dismissing a motion for a new trial, Watson brings error. Affirmed.

McBride & Brown and W. T. Roberts, for plaintiff in error. Adamson & Jackson, for defendants in error.

LUMPKIN, J. Error was assigned upon the refusal of the trial judge to approve a brief of evidence, and to a judgment dismissing a motion for a new trial. The facts are briefly summarized in the headnote. Granting that the judge had the legal power

to approve the brief of evidence, we cannot say that declining, under the circumstances, to exercise it was an abuse of discretion. Nearly 18 months had elapsed from the date of the trial until the time when the judge was finally asked to approve the brief. It may have been impossible for him, at that time, either to know himself or be able to ascertain whether or not, in point of fact, the brief was correct. Indeed, it is hardly probable that he remembered the evidence as given upon the stand. Under these circumstances, we do not feel constrained to compel him to do something which he may not be able to do conscientiously. We will take this occasion to remark that there is little or no excuse for such delay in having a brief of evidence perfected and approved. Instances like the present are becoming of too frequent Occurrence. With great respect and in all kindness to our professional brethren, we earnestly suggest that they attend to matters of this kind with more diligence and promptness. By so doing they will relieve themselves of much trouble and anxiety, and spare this court much unnecessary labor. Judgment affirmed.

COMMERCIAL BANK OF ALBANY v.

TUCKER.

(Supreme Court of Georgia. Aug. 14, 1894.) NEGOTIABLE INSTRUMENTS-ACTION ON-VARIANCE -NONSUIT.

1. The declaration alleging that the plaintiff loaned money to the defendant, and also that money was advanced by the plaintiff to the defendant, upon the promise and undertaking of the latter that he would turn over and deliver to the former drafts drawn by a company of which the defendant was treasurer, is not supported by evidence that the money was not loaned or advanced to the defendant, but to such company, together with evidence that the defendant did contract and undertake, as alleged, to turn over and deliver the drafts.

2. But inasmuch as the case established by the evidence seems to be meritorious, while the judgment of nonsuit is affirmed, direction is given that the plaintiff have leave to amend the declaration at or before the time when the remittitur from this court is entered on the minutes of the court below, so as to make the pleading and the evidence correspond, and that, upon this being done, the case be reinstated, and stand for trial in its proper order.

(Syllabus by the Court.)

Error from superior court, Dougherty county; B. B. Bower, Judge.

Action by the Commercial Bank of Albany against A. W. Tucker. From a judgment of nonsuit, plaintiff brings error. firmed.

Af

The following is the official report: The bank brought suit against A. W. Tucker upon three drafts. The court granted a nonsuit, on the ground that plaintiff's evidence did not make out its case. The drafts are in the form of ordinary bank checks, drawn on the plaintiff July 7, 8, and 9, 1890. The first, for $2,000, is payable to