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Askew v. Hale County.

criminal law, it is the general policy of the State to intrust to the several counties, and are all but parts of the power and duty of the State. These powers could be withdrawn by the State, in the exercise of its sovereign will, and other instrumentalities or agencies established, and clothed with them. Soper v. Henry County, 26 Iowa, 267; Hamilton County v. Mighels, 7 Ohio St. 109; Eastman v. Meredith, 36 N. H. 284; 1 Dill. on Mun. Corp., §§ 10-39. In reference to public highways, it has several times been said by this court, the commissioner's court, acting for and exercising all the power of the county, exercises a quasi legislative authority, not to be guided by evidence produced according to legal rule, but controlled rather by its knowledge of the geography of the country, the wants, wishes and ability of the people. Hill v. Bridges, 6 Port. 197; Moore v. Hancock, 11 Ala. 245; Comm'rs Court Lowndes v. Bowie, 34 id. 461; Parnell v. Comm'rs Court Dallas, id. 278. Private individuals are allowed to intervene, and subject its action to judicial revision, only when in the change of an existing road, or the location of a new one, there is an injury to, or interference with private property, entitling them to protection under the constitutional guaranty, that private property shall not, without just compensation, be taken for public use. Parnell v. Comm'rs Court of Dallas, supra; Creswell v. Comm'rs Court of Greene, 24 Ala. 282.

The statutes defining hard labor for the county, placing it under the superintendence of the court of county commissioners, leaving it to the discretion of the court to employ the convicts on the public roads, or public bridges, or other public works in the county, or to let them to hire, produces no change in the character of the power of the county, and of consequence imposes no new liability. The authorities are uniform, that a county is not liable to an individual for an injury sustained, because of its failure to exercise a governmental power with which it is clothed, or because it is not exercised in the manner most conducive to the safety of the public; or because of the negligence or unskillfulness of its officers or agents, in the absence of a statute expressly declaring the liability. A difference between counties and municipal corporations, in this respect, is firmly established, though there is some diversity of opinion as to the reasoning on which it depends. The various anthorities are collected in 2 Dill. on Mun. Corp., §§ 761, 762, 785. The distinction is recognized in our own decisions.

Askew v. Hale County.

Barbour County v. Brunson, 36 Ala. 362; Barbour County v. Horn, 41 id. 114; Covington County v. Kinney, 45 id. 176.

It is true, the statute declares, "every county which has been or may be established in this State is a body corporate, and with power to sue and be sued in any court of record." R. C., § 897. Counties are necessarily invested with some corporate functions, and as to these, each county is, without statutory declaration, a quasi corporation. There are many definitions of a corporation, more or less expressive; the essence of all is, that it is a legal or artificial person, with prescribed powers, having a capacity of succession, or of duration, without regard to the changes in its membership. The capacity of suit is one of the essential and ordinary incidents to a corporation. Conferring the capacity expressly in the act of incorporation is declaratory only of that which the law would have implied. The statute cannot, therefore, be construed as changing the character of a county, or enlarging its liability to suit. It is a quasi corporation, in the exercise of its corporate powers and a governmental auxiliary, in the exercise of the gov ernmental powers intrusted to it. Te capacity of suit to which the statute refers is, in the instances, and to the extent, in which the law authorizes it to sue and be sued. Freeholders of Sussex v. Strader, 3 Har. (N. J.) 108; Cooley v. Freeholders of Essex, 3 Dutch. (N. J.) 415.

We have no statute imposing a liability on counties, because of injuries sustained from defects in a highway; nor because of injuries resulting from permitting a bridge to remain out of repair, except in case of a public bridge built by contract, and the failure of the commissioner's court to take from the contractor a bond or guaranty; or the expiration of the term of guaranty, before the occurrence of the injury. R. C., § 1396. If it is conceded the second count presents a case under which there could be a recovery because of the failure to take from the contractor building the bridge a guaranty, the failure was not of the appellee, but of Marengo county. Though the territory in which the bridge is located now forms part of the territory of Hale county, the latter county does. not succeed to the liabilities of Marengo, except so far as the general assembly may have expressly imposed them. Though a part of its territory was detached from it, to compose the new county, Marengo remained a county, with all its rights, powers and privileges, and subject to all its obligations and duties, unless otherwise

Wilder v. Abernethy.

provided by statute. Hampshire v. Franklin, 16 Mass. 87; North Yarmouth v. Cumberland, 6 Greenl. 28. Of its property, Hale county can claim no part, because the citizens resident in the territory detached from it may have contributed to its accumulation; nor can Hale county be subjected to any of the liabilities which may have attached to Marengo in the exercise of its powers and duties over this territory while under its jurisdiction. Windham v. Portland, 4 Mass. 389. When a new county is organized there may be circumstances rendering it just that the inhabitants residing in its territory should not be absolved from the liabilities resting on them in their former relations, nor lose entirely rights and privileges they formerly enjoyed. Such considerations are for the general assembly, which alone has authority to determine how far these shall be preserved. In the absence of legislative provision, the new county is a separate, distinct political division of the State, not chargeable because of the former relations of its inhabitants. The territory composing the county of Hale was detached from the counties of Marengo, Perry, Tuskaloosa and Greene. The only provision in the statute organizing it, in reference to its liabilities because of the territory detached, is that the property taken from these several counties respectively shall be subject to taxation "for the pro rata proportion of any debts" due by the several counties. Pamph. Acts, 1866-7, p. 477. This subjects it to a proportionate liability for debts, not for contingent liabilities arising out of a breach of duty.

The demurrer to each count was well taken and properly sus tained. The judgment is affirmed.

Judgment affirmed.

WILDER V. ABERNETHY.

(54 Ala. 644.)

Married woman's separate estate.

Under the laws of Alabama, creating the separate estates of married women

a married woman has no general power of contracting nor of acquiring property by purchases on credit.

So where a husband carries on a store in the name and for the benefit of his wife, purchasing the goods partly with her means and partly on her sole

Wilder v. Abernethy.

credit, the latter do not become part of separate estate, but are liable for the husband's debts. (See note, p. 736.)

RIAL of right of property.

TRIAL

The appellants, Wilder & Co.,

were judgment creditors of the husband of Mrs. Abernethy, the appellee. The husband carried on a drug store, in the name of his wife, which he had stocked, partly with goods purchased with money furnished him by his wife's father, with the understanding that it should be so invested, and not liable for the husband's debts, and partly with goods purchased by the husband on credit in his wife's name, charged to her, and never paid for. Wilder & Co. levied on the latter goods in the store on execution on their judgment. The court held that the goods so levied on were the statutory estate of the wife, and not subject to such levy. This holding was assigned as error.

W. E. & R. H. Clarke, for appellants.

Watts & Watts, contra.

BRICKELL, C. J. It is unnecessary to notice separately the several rulings of the Circuit Court, to which exceptions were reserved. An error affecting them generally is in treating the goods levied on as the statutory separate estate of the appellee. They were purchased on credit, by her husband, for the purposes of trade in her name, and were unpaid for when the levy was made. They passed into the possession of the husband on the purchase, and continued in his possession until they were seized by the sheriff. The statutes creating the separate estates of married women have qualified and lessened, to some extent, the incapacity of the wife at common law, but have not entirely destroyed it. "She can hold property, real and personal, to her sole use, having therein a legal estate courts of law recognize and protect, and she can, so far as specially enabled, charge it by her contracts, and, jointly with her. husband, alienate it. No general power of contracting is conferred on her, nor a capacity to hold and acquire property by purchases on credit. With the exceptions mentioned, she remains under the disabilities imposed by the common law." 2 Bish. Mar. Women, § 231. Whatever property may be acquired by her industry, or skill, or economy, is the property of the husband, as it was at common law. Shaeffer v. Sheppard, 54 Ala. 244; Robinson & Co. v. Wal

Wilder v. Abernethy.

lace, 39 Penn. St. 132; 2 Bish. Mar. Women, § 82. If the goods had been purchased with the separate moneys of the wife, belonging to her separate estate, either equitable or statutory, a different question would arise. Bolling v. Mock, 35 Ala. 727. The goods having been purchased only on the credit of the wife, and the contract of purchase not being a charge on the separate estate created by the deposit by her father with her husband (the only separate estate she is shown to have had), no legal title to the goods passed to her, and her claim cannot be supported.

The judgment is reversed and the cause remanded.

Judgment reversed.

NOTE BY THE REPORTER.-Shaeffer v. Sheppard, 54 Ala. 244, cited in the principal case, decides that where the husband and wife carried on a boarding house, in which they and their family also lived, the lease being in the husband's name, he paying the rent and making out and collecting the bills for board in his own name, and the wife devoting her time and industry to the keeping of the house, and the comfort and accommodation of those patronizing it, the income was the husband's property.

The same doctrine was expressed, in another case at the same term, Carleton v. Rivers, 54 Ala. 467, where the wife, in the continuous absence of her husband on business for twenty years, carried on his farm, with the aid of his children and his negroes, "and by her prudent management and skill was enabled to save a considerable sum of money," which the husband invested in the land in his own name. The court say: "The statutes creating separate estates have not changed this rule of the common law, nor lessened the right of the husband to the earning and savings of the wife. Such earnings and savings are not property accruing to the wife within the meaning of these statutes, and it is only as to such property the common-law rights of the husband are changed. He is still entitled to the control of the wife, and to the benefits of her labor and economy. Raybold v. Raybold, 20 Penn. 310; Henderson v. Warmack, 27 Miss. 834; Elliott v. Bently, 17 Wis. 591; Hoyt v. White, 46 N. H. 45; Gerry v. Gerry, 11 Gray, 381."

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