distinction is well established, however, between the responsibility of towns and cities for acts done in their public capacity, in the discharge of duties imposed by the legislature for the public benefit, and for the management of their private property.8 It is elsewhere stated that a distinction is to be noted between the liability of a municipal corporation, made such by the acceptance of a village or city charter, and the involuntary quasi-corporations known as counties, towns, school districts, and especially the townships of New England. The liability of the former is greater than that of the latter, even when invested with corporate capacity, and the power of taxation.10 So a village was held to be liable for the negligence of its trustees," when a town was held not liable for the same acts by its commissioners of highways.12

On the other hand there is a large class of authorities which hold that the control of streets and highways is itself a sufficient basis for liability for injuries arising from defects thereof. "The surrender by the government to the municipality of a portion of its sovereign power if accepted by the latter, may with propriety be considered as affording ample consideration for an implied undertaking the part of the corporation to perform with fidelity the duties which the charter imposes." 13 The ground of the liability, say other courts, is that the franchise and privileges involved in incorporation are equivalents for the burdens and duties imposed.14 "Where a public body is clothed by statute with power to do an act which concerns the public interests, the execution of the power may be insisted on as a duty, though the statute conferring it be only permissive in terms.15 The authorities state that the care and superintendence of streets alleys and highways, the regulation of grades, and the opening of new and closing of old streets, are peculiarly municipal duties. No other power can so wisely and judiciously control this subject as the authority of the immediate locality where the work is to be done.16 1 collect below a list of authorities which base this general liability on control of streets, sidewalks, etc.17

The question whether or not a municipality has assumed control of a locality where an injury occurs is of

Gray 59 64; Oliver v. Worcester, 102 Mass. 489; Jones v. New Haven, 31 Conn. 1 13; Morgan v. Hallowell, 57 Me. 375; Hewison v. New Haven, 37 Conn. 475; Pray v. Jersey City, 3 Vroom 394; Detroit v. Blackley, 21 Mich. 84; Winbigler v. Los Angelos, 45 Cal. 36.

8 Oliver v. Worcester, Supra. Western Saving etc. v. Phila. 31 Pa. St., 185 189; Bailey v. Mayor, 3 Hill 531 539; Scott v. Mayor, 2 H. & N. 204 210; Henley v. Lyme, 5 Bing. 91; 8. C. 3 B. & Ad. 77; 1 Scott, 291 Bing. N. C. 222; Ct. & Fris. 331; 2 Beiger, (N. S.) 690; Weigalman v. Washington, 1 Black 39; Nebraska City v. Campbell, 2 Black 590; Child v. Boston, 4 Allen 41 51; Thayer v. Boston, 19 Pick. 511; Pittsburgh v. Grier, 22 Pa. St. 54; Mersey Docks Trustees v. Gibbs, 11 H. L. Cas. 687; Hill v. Boston, Supra.

9 Barnes v. Dist. Col., 91 U. S. p. 552.

10 Dillon, 10 11 13 2nd. Id. 761.

11 Conrad v. Ithaca, 16 N. Y. 158.

12 Weet v. Brockport, Supra; Brook's Ab. "Ac. on Case;" Russell v. Men of Devon, Supra.

13 Weet v. Brockport, supra; See Hickok v. Trustees, 15 Barb. 427; Conrad v. Ithaca, supra; Starrs v. Utica, 17 N. Y. 104.

14 Omaha v. Olmstead, 5 Neb. 446.

15 Mayor New York v. Furz, 3 Hill 612. 16 Barnes v. Dist. Col. supra.

17 Chicago v. Robbins, 2 Black 418; Nebraska City v. Campbell, 2 Black 519; Erie City v. Schwringle, 22 Pa. St. 384; Meares v. Wellington, 9 Ired. 873; Lacour v. Mayor, 3 Duer 406; Wendell v. Troy, 39 Barb. 329; Clark v. Lockport, 49 Barb. 580; Browning v. Springfield, 17 Ill. 143; Savannah v. Cullens, 38 Ga. 334; Manchester v. Hartford, 30 Conn. 118; Schomer v. Rochester. 15 Abb.

a determining character.18 A city is not liable by permitting the use of a sidewalk not on a city highway.19 Title acquired by user is as much a foundation for the duty of keeping a street or highway in repair as grant or condemation.20 During a change from a town to a village organization, a corporation is not relieved from its duty as to streets.21 A city is liable for an injury caused by breaking through the cover of a well,placed there by the authorities.22 Where a city authorizes the opening of a ditch across a street, it is responsible negligence in the work causing injury to passers by.23 An injury caused by a defective awning over a sidewalk is actionable, because it is an essential part of the street.24 If one public way open into another, it is the duty of the city or town to keep the entrance in repair, because the entrances are a portion of the public way used by travellers.25 If work is done under supervision of city commissioners, the city is liable for negligence in the work.26 But this general duty extends no further than to keep streets and highways reasonably safe; municipalities are not insurers.27 The legislature has no power to exempt a particular municipality from liability for defective condition of streets.28 A municipal by-law or ordinance must not be inconsistent with or repugnant to the constitution and laws of the United States or the State; It must be reasona ble and in harmony with the principles of the common law.29 Where a wall left standing after a fire, and not parallel with the street, fell upon an adjoining building, and killed a person therein, the city was held not liable.30 Althoug the owner of a cow paid a municipal tax on her, a city was held not liable for injuries by goring in the street, where the ordinance against cattle running at large had been suspended.31

But a city will not be liable for defects in its streets unless it had notice of the defects, or unless the defect had existed for such a length of time as to lead to the presumption that the city authorities knew of it or with reasonable care and diligence might have known of it.32 Unless a reasonable time has elapsed

N. Cas. 57; Sterling v. Thomas, 60 Ill. 264; Denver v. Dunsmore, 7 Col. 328; Requa v. Rochester, 45 N. Y. 129; See Hutson v. Mayor, 5 Seld. 463; State v. Crompton, 2 N. H. 513; Angell on Highways, Par. 257, 267; Heacock v. Sherman, 14 Wend. 58; Dygert v. Schenck, 23 Wend. 446; Batty v. Duxbury, 24 Vt. 155; Griffin v. Williamston, 6 W. Va. 312; Hines v. Lockport, 50 N. Y. 236. 18 Manchester v. Ericsson, 105 U. S. 348.

19 Bishop v. Centralia, 49 Wis. 669.

20 Beaudeau v. Cape Girardeau, 71 Mo. 392.
21 Evanston v. Gunn, 99 U. S. 660.

22 Sherwood v. Dist. Col., 3 Mackay 276.
23 Savannah v. DonneЛy, 71 Ga. 258.
24 Bohen v. Waseca, 32 Minn. 176.
25 Paine v. Brockton, 138 Mass. p. 568.
26 Wendell v. Mayor, 4 Keyes 261.

27 Rockford v. Hilderbrand, 61 Ill. 155.

28 Durkee v. Janesville, 28 Wis. 464; State v. Barlett, 35 Id. 287; Rooney v. Supervisors, 40 Id. 23; Kimball v. Rosendale, 42 Id. 407.

29 Barling v. West, 29 Wis. p. 315; Hayes v. Appleton, 24 Id. 542; Dunham v. Trustees of Rochester, 5 Cow. 462; Austin v. Murray, 16 Pick. 121; Mayor of Mobile v. Yuille, 3 Al. 137.

30 Cain v. Syracuse, 95 N. Y. 83; Parker v. Mayor etc 39 Ga. 725; case of a wall standing on the edge of a street. People v. Albany, 11 Wend. 539, case of foul basin endangering health. Jones v. New Haven, 34 Conn. 1, case of trees pruned in the street. Norrisstown v. Mayor, 67 Pa. St. 356, case of rotten liberty pole in street, all liable

31 Rivers v. Augusta, 65 Ga. 376.

32 Cuthbert v. Appleton, 22 Wis. 642; Goodnough v. Oshkosh, 24 Id. 549; Ward v. Jefferson, Id. 342; Mayor v. Sheffield, 4 Wall, 189; See Regua v. Rochester, supra. Reed v. Northfield, 13 Pick. 945 98.

since the injury to have raised this presumption there can be no liability. But after a street has been out of repair, and a defect has become notorious, and the city has had full opportunity to learn the fact, a city will be liable. A city will be liable for damage caused by an open ditch along a defective sidewalk allowed to remain for a long time without protection.35 Where an injury was caused by an icy sidewalk which had been so three days, a city was held not liable. A city is not held liable for the acts of its citizens in obstructing its streets, when notice thereof has not been shown to have been received by its officers. Where a city's officers knew a walk to be in such a condition from mere decay that an accident was liable to happen upon it at any moment, it is chargeable with negligence without bringing home to the authorities actual knowledge of the particular defect causing the injury in suit.38 Where injury is caused by a latent defect, of which the municipality was ig norant without negligence, it is not liable. Where ice or snow is suffered to remain upon a sidewalk in such an uneven and rounded form that a person cannot walk over it, using due care, without danger of falling down, that, it seems, constitutes a defect for which a city or town will be liable.40 A city will be liable for icy state of walk, although the walk is not defective and all walks are similarly dangerous.41 Where an injury was caused by dirt thrown up from an improvement in a street in an icy condition, the city was held liable 42 A slippery sidewalk caused by constant wear and paint, is defective. But the ice must be uneven, or in ridges.45 But an injury caused by falling snow and ice from an overhanging building is not actionable.46 Mere slipperiness of a walk caused by snow and ice which have accumulated on it, is not an insufficiency or want of repair under some statutes.47 Ice formed on sidewalk by reason of water pumped by a city fire engine the engine not being used for an unlawful purpose, will not lay foundation for an action.48

A city is not liable for injuries caused by boys coasting in streets, the suppression thereof may be a police duty, but it is not a duty in which the corporation has a particular interest, or from which it de

33 State v. Freyburg, 3 Shipley 405; See People v. H. & C. T. R. Co., 23 Wend. 254.

34 Todd v. Troy, 61 N. Y. 506; Hart v. Brooklyn, 36 Barb. 226; Clark v. Lockport, 49 Barb. 580; Conrad v. Ithala, 16 N. Y. 158; Requa v. Rochester, supra; Hyatt v. Rondont, 44 Barb. 385.

35 Galveston v. Pasnainsky, 62 Tex. 118; Galveston v. Barbour, Id 172.

36 Smith v. Brooklyn, 36 Hun. 224.

37 Griffin v. Mayor, 9 N. Y. 456.

38 Weisenberg v. Appleton, 26 Wis. 56; Ripon v. Bittel, 30 Wis. 614; See Aurora v. Hillman, 90 Ill. 61.

39 Ward v. Jefferson, 24 Wis. 342.

40 Luter v. Worcester, 97 Mass. 268; Hutchins v. Boston, Id. 272; See Hull v. Lowell, 10 Cush. 260; Shea v. Lowell, 8 Allen 136; Payne v. Lowell, 10 Id. 147; Providence v. Clapp, 17 How. 164.

41 Cloughessy v. Waterbury, 51 Conn. 405.

42 Stafford v. Oskaloosa, 64 Ia. 251.

43 Martin v. Smith, 48 Wis. 265.

44 Broburg v. Des Moins, 63 Ia. 526.

45 McAuley v. Boston, 113 Mass. 503; See McLaughlin v. Carry, 77 Pa. St. 109; See also Luther v. Worcester, supra; Battersby v. N. Y., A Daly, 16; Morse v. Boston, 109 Mass. 446; Crocker v. Springfield, 110 Mass. 135; But see Mason v. Boston, 14 Allen 508.

46 Hixon v. Lowell, 13 Gray 59.

47 Cook v. Milwaukee, 24 Wis. 260; Stanton v. Springfield, 12 Allen 566; Johnson v. Lowell, Id. 572; See Kirby v. Boylston Mark. Assa., 14 Gray 249.

48 Cook v. Milwaukee, 27 Wis. 191.

rives any special benefit in its corporate capacity.49 In such a case there is no liability, even if the city has designated the place.50

The exhibition of animals permitted by a city, will not lay a foundation for an action for an injury caused thereby.51

A city will be held liable for an injury caused by an excavation in its streets made by a gas company if it has control of the work by its charter.52 Where there is a dangerous place some distance from the travelled highway which one may reach by straying, a town is not liable nor bound to erect barriers to prevent it. A city is not liable for injuries caused by excavations outside of the street.53 Nor for an excavation in a sidewalk made by the owner of an adjoining lot and left open without barriers, the circumstances not warranting the inference of notice.54 Nor for a coal hole left open for a short time. Stairways on the street side of buildings leading downwards to basements or upwards to the front entrance of such buildings must be guarded by proper safeguards.56 But where a descending stairway is parallel to the sidewalk and properly protected on the side, a city is not bound to cause a gate to be maintained at the entrance.57 A city is liable for cellar doors opening out on to the sidewalk and constantly left open.58 Where a stone was left by the side of the walk while the street was being repaired, and a horse took fright at it, the city was held not liable.59

Municipal corporations are only liable when the defects or obstructions are the result of their acts, or of some negligence or omission of duty by them or their servants or agents. And where an injury was sustained by reason of a stick of timber concealed by snow, and it did not appear who placed it there, or that the authorities had notice or that there were circumstances implying notice, the city was held not liable.60 Where an obstruction is caused by the act of a third person, and there is no notice, there is no liability.61 Where an injury is caused by the unsafe condition of a highway and the unlawful or careless act of a third person, a city is not liable.62 A city is not liable for injury caused by a trench in one of its streets, constructed to connect with the main water pipe by a private per

49 Schultz v. Milwaukee, 49 Wis. 254; Ray v. Manchester, 46 N. H. 452.

50 Burford v. Grand Rapids, 52 Mich. 98; See Steels v. City of Boston, 128 Mass. 583;

51 Little v. Madison, 42 Wis. 642; Cole v. Newburyport, 129 Mass. 594.

52 Mc Dermott v. Kingston, 6 Abb. N. Cas. 246; 57 How. N. Y. Pr., 196.

5 Barnes v. Chicopee, 138 Mass 67; See Sparhawk v. Salem, 1 Allen 30; Alger v. Lowell, 3 Allen 402; Adams v. Natick, 13 Allen, 429; Puffer v. Orange, 122 Mass. 389; Warner v. Holyoke, 112 Mass. 362; Murphy v. Gloulester, 105 Mass. 470; Daily v. Worcester, 131 Mass. 452; See Hubbell v. Yonkers, 35 Hun. 349.

54 Kelly v. Coiumbus, 41 Oh. St. 263; Monmouth v. Sullivan, 8 Ill. App. 50; Young v. Dist. Co. 1, 3 MacArthur 137.

55 Fort Wayne v. DeWitt, 47 Ind. 391.

56 Lafayette v. Blood, 40 Ind. 62.

57 Fitzgerald v. Berlin, 51 Wis. 81.

58 Fitzgerald v. Berlin, supra.

59 Chapman v. Mayor Macon, 55 Ga. 566; Smith v. Leavenworth, 15 Kan. 81.

60 Farrell v. Oldtown, 69 Me. 72.

61 Gorham v. Cooperstown, 59 N. Y. 660.

62 Dorlon v. Brooklyn, 46 Barb. 604; Griffin v. Mayor, 9 N. Y. 456.

son, or for a defective covering on an opening in a sidewalk made by the owner of an adjoining lot. An iron grating protecting a passage way into a basement of a building adjoining a sidewalk, was left open by a stranger, but never known to have been disturbed before, the city was held not liable for an injury to a passer by. For injuries resulting from the plan or construction of a walk, done under legal obligation by the owner of adjoining premises, and not by the city, the latter is not liable. Where an ordinary sign fell from its support and injured a person under it, the city was held not liable, for the reason that the sign was a mere incident of the street.67 And the same ruling was made, and the some reason given where the injury was caused by the weight attached to a flag.68 Where the street had been dedicated to the public for forty years, but for ten years it had been but little used, and a sidewalk had been built by a citizen for his own convenience, the city was held not liable for an injury thereon. A municipality is not liable for damages caused by an insufficiency, unless the place where the injury was received and the insufficiency exists, was a lawful public highway which it is the duty of the municipality to keep in a state of reasonable safety and repair.70 The use, for a series of years by people traveling on foot along a public highway, of a part thereof as a foot path, on both sides of the carriage way constitutes such path a portion of the "travelled way."71 city was held not liable for an injury caused by stones placed at a muddy crossing, used by one familiar with them, and there being nothing dangerous in their appearance. Nor is a city liable for an injury caused by swine running at large in one of its streets,78 although the city has an ordinance against it. Where a child pulled over upon itself a heavy counter left by a third person against a fence on the street, the city was held not liable.74 But a city is primarily liable for a defect in a street, as for instance a stringer and rail of a street railway, although a third party may be liable over for a tort.75

A

Where a city permits a lot owner to connect his premises with a sewer in the street, the city is responsible for reasonabld care to prevent injury, but it is not responsible for the negligence of the servants of the lot owner in the performance af the work.76 A city is bound to see that dangerous places, made so by building materials placed on the street by an adjoining proprietor, are properly guarded." Where a private person had placed a bridge over the gutter on his side of the street, opposite his place of business, for the purpose of attracting persons crossing the street to his place, and, such bridge being out of repair, the plaintiff fell on the same and was injured, the city was held liable.78 Although the expense of repairing defects is imposed upon lot owners, a city is not exon

63 Shepherd v. Chelsea, 4 Allen 113; See Rowell v. Lowell, 7 Gray 100.

64 West Chester v. Apple, 35 Pa. St. 284.

65 Hart v. Brooklyn, 36 Barb. 226.

Littlefield v. Norwich, 40 Conn. 406.

67 Marquette v. Cleary, 37 Mich. 296; See Sweet v. Gloversville, 19 N. Y. Sup. Ct. 302.

Jones v. Boston, 104 Mass. 75.
Hewison v. New Haven, 34 Conn. 136.

70 Saulsbury v. Ithaea, 24 Hun. 12.

71 Houfe v. Town of Fulton, 34 Wis. 608 617.

72 James v. Portage, 48 Wis 647.

73 Bullock v. N. Y., 51 N. Y. Super. Ct. 36.

74 Levy v. Mayor, 1 Sandf. S. C. K. 465.

75 Chicago v. Starr, 42 Ill. 89.

76 Kittredge v. Milwaukee, 26 Wis. 46; See 2 Hilliards on Tort, 40%; Phillips v. Veazie, 40 Me. 96; Elliot v. Concord, 7 Foster 208; Batty v. Duxbury, 24 Vt. 158.

77 Masterton v. Mount Vernon, 58 N. Y. 391.
78 Seneca Falls v. Zalinski, 15 N. Y. Sup. Ct. 571.

erated from the duty towards the public to keep its streets and walks in good condition.79 A banner permitted to be hung across a street and frightening a horse has been held a cause of action.80 Where a city negligently suffered some roofing to stand upon the sidewalk, it was held liable for an injury caused by its falling upon a passer by.81 A permanent wooden awning, or roofing, covering the sidewalk, so insecurely supported as to be dangerous, is a defect.82 The fact that the proprietorship of a street is in a private corporation will not relieve a city from liability.83 The fact that an injury was caused by an excavation in a sidewalk, made by a third person, is no defense.84 Nor that a sidewalk was constructed by a private person without orders.85 Nor that an excavation was made by a company engaged in putting in water works.86 Nor that an obstruction was caused by a company engaged in laying a railway track in the street. The liability of a city or town, for an injury or defect in a street or way, is not varied or discharged if the defect is occasioned by the exercise of the right of an adjoining owner of land to use the street or way for some private purpose, not inconsistent with the right of the public.88 A city is liable for an injury caused by a defect in a sidewalk being built by a proprietor of the adjoining premises under orders from the authorities. A city is primarily liable for excavations or obstructions in sidewalks made by a citizen.90 But not independently of the rule as to notice.91 Oskosh, Wis. F. C. HADDOCK.

79 Johnson v. Milwaukee, 46 Wis. 568; See also Green v. Bridge Creek, 38 Wis. 449; Matthews v. Baraboo, 39 Wis. 674, 677.

80 Cuthbert v. Appleton, 22 Wis. 642; Manchester v. Hartford, 30 Conn. 118; Hutson v. Mayor, supra; Veazie v. Penob. R. R. Co, 49 Me. 119; 2 Hilliard on Torts, 501 502; Wallace v. Mayor, 2 Hilton 440.

81 Champlin v. Penn Yan, 34 Hun. 33.

82 Duffy v. Dubuque, 63 Ia. i71.

83 Hume v. Mayor, 74 N. Y. 264 9 Hun. 674; See 47 N. Y. 635; See Day v. Milford, 5 Allen 98.

84 Ericsson v. Manchester, 3 Hughes C. Ct. 191.

85 Elkhart v. Ritter, 66 Ind. 136; See Centerville v. Woods, 57 Ind. 192.

86 Barnes v. Newton, 46 Ia. 567. 87 Butler v. Bangor, 67 Me. 385.

88 Wilson v. Watertown, 5 Thomp. & C. N. Y. 579; 3 Hun, 508;

89 Bacon v. Boston, 3 Cush. 174. 90 Cusick v. Norich, 40 Conn. 375.

91 Aurora v. Bitner, 100 Ind. 396; Urquahart v. Ogdensburgh, 97 N. Y. 238; Washburn v. Mount Kisco, 35 Hun, 329.

EQUITY JURISDICTION-RULE OF INFRA DIGNITATEM-DE MINIMIS.

ALLEN v. DEMAREST.*

Chancery Court of New Jersey.

1. Lord Bacon's ordinance, declaring that all suits under the value of £10 shall be dismissed, is in force in this State.

2. In order to justify a dismissal on the ground that the matter in dispute is beneath the jurisdiction of the court, the matter in dispute must be less than $50.

3. A defendant may avail himself of the objection that the matter in dispute is too trivial to justify the

*From advance sheets New Jersey Equity Reports.

court in entertaining the suit, either by demurrer or by motion on notice.

On motion to dismiss, heard on bill and notice. Mr. Charles H. Voorhis, for motion; Mr. Charles L. Corbin, contra.

VAN FLEET, V. C., delivered the opinion of the court.

This is a motion to dismiss the complainant's bill on the ground that the matter in dispute is beneath the jurisdiction of the court. The bill is filed to enforce a right to an equitable set-off. The complainant, in January, 1882, demised certain lards to the defendant, by lease under seal. The complainant neglected to perform one of the covenants of his lease requiring him to make certain repairs. The defendant brought suit against him for such default, and in September, 1884, recovered a judgment in the circuit court of Bergen county for $70. The defendant at the time he recovered his judgment, was in arrear with his rent over $175, and is still, and the object of the complainant's bill is to procure a decree satisfying the judgment, by setting off so much of the rent due from the defendant as will be sufficient for that purpose.

The claims, it will be observed, had a common origin. They both grew out of the lease, and there would, therefore, seem to be a strong natural equity that the larger should pay the lesser. It would be contrary to the lowest notions of justice to permit the defendant, to whom there is but $70 due, to enforce the payment of that sum by legal process against a person who is his creditor for more than twice that sum, and whose debt arose out of the same transaction as that from which the debt of the defendant sprang. However, that is aside from the question now before the court. The question the court is called upon to decide on this motion is whether the subject matter of the suit is too trivial to justify the court in taking jurisdiction of it.

suits under the value of £10 are regularly to be dismissed. Beame's Orders in Chan. 10. Chancellor Kent and Chancellor Green both say that this rule has the imposing character of an original constitutional ordinance. Moore v. Lyttle and Swedesborough Church v. Shivers, supra. It constitutes part of the law marking and defining the boundaries of the jurisdiction of the court, and as such, must be obeyed.

It is undoubtedly true that the purchasing power of $50 is much less now than it was at the time of the adoption of this ordinance, or even thirty years ago, and it may also be true, that to allow a suit in equity to be maintained now, where the pecuniary value of the matter in dispute is less than $100, will let in all the mischiefs which the ordinance was originally designed to prevent. But the courts are not charged with the duty of making laws. It is their duty to administer and enforce them, not to ordain and establish them. And even in cases where they have power, by rule or ordinance, to regulate and control the course of practice before them, they should not exercise such power, in my judgment, so as to give their action a retrospective effect. A suitor who has, by the rules of court, a right of suit when he commences his action, should not be deprived of such right by a rule or law made subsequent to the institution of his suit. Retrospective laws which destroy private rights are always unjust.

This rule has been rigidly adhered to: where the amount in dispute was under $50, the suit has been dismissed regardless of its merits. Fullerton v. Jackson, 5 Johns. Ch. 276; Mitchell v. Tyghe, Hopk. 119; Douw v. Thelden, 2 Paige 323. and where it was just $50, the bill has been retained. In Vredenberg v. Johnson, Hopk. 112, a bill was filed to restrain the enforcement of a judgment for $50, recovered before a justice of the peace. It was alleged that it had been obtained by fraud. The amount, it will be observed was just sufficient, according to the rule, to entitle the complainant to have bill held. Chancellor Sandford, in denying a motion to dismiss, said that he felt sensibly the weight of the argument, that if such small suits were entertained the injured party, in seeking a remedy for his wrong, would lose more than if he allowed his wrong to go unredressed, but as the rule of the English court of chancery constituted part of the law of his

ious delay to other suitors. An attempt to redress by a suit in equity a wrong which has resulted in a loss of less than $50, will, as a general rule, result in an aggravation of the wrong rather than in remedying it. Courts of equity sit to administer justice in matters of substantial interest, not to gratify the passions of the litigants, nor to foster a spirit of vexatious litigation. Swedesborough Church v. Shivers, 1 C. E. Gr. 453; Moore v. Lyttle, 4 Johns. Ch. 183; Story's Eq. Pl. § 500.

By the last clause of the fifteenth paragraph of Lord Bacon's ordinances, it is declared that all

or otherwise, he thought he was obliged to respect and enforce it. It is quite evident that the chancellor retained the bill in that case, not because he thought it best to do so, but because the law made it his duty to do so. A change was subsequently made in the rule in New York by legislation. A statute was passed, directing the dismissal of all suits in equity.where the matter in dispute, exclusive of costs, did not exceed the value of $100. Smets v. Williams, 4 Paige 364.

The rule in this State has never been changed by legislation or otherwise. The eighty-eighth

section of the chancery act (Rev. p. 120,) which authorizes a judgment creditor having a judgment on which there remains due a sum exceeding $100, exclusive of costs, and who has exhausted the means which the law furnishes to compel the payment of his judgment, to file a bill in chancery to compel his debtor to make discovery of his property and things in action, was not intended to prescribe a new rule on this subject. The design of the statute, of which this section is a part, was to increase the efficacy of the creditor's remedy in equity. Prior to the enactment of this statute a judgment creditor could not seize the choses in action of his debtor nor acquire a lien thereon. This statute was passed to enable him to reach and seize that species of property. Whitney v. Robbins, 2 C. E. Gr. 360; Green v. Tantum, 4 C. E. Gr. 105. This statute does not attempt to change or define the general jurisdiction of the court; that is left unaltered and in its original vigor. All that the statute does is to make an old remedy more efficacious, and declare who shall be entitled to the benefit of it.

The practice pursued in this case is in accordance with precedent. The application is made on notice. A defendant may avail himself of the insignificance of the suit either by demurrer or by motion made on notice, or the court may of its own motion dismiss the bill. Swedesborough Church v. Shivers, supra.

The defendant's motion must be denied, with costs.

NOTE. Of the limitation to equity jurisdiction fixed by Lord Bacon's ordinance, Judge Story says, referring to demurrers to the substance of bills: 1 "One of the objections that can be so taken, is, that the value of the subject of the suit is too trivial to justify the court in taking cognizance of it; or as the phrase usually is, that the suit is unworthy of the dignity of the court. The true ground of this objection is, that the entertainment of suits of small value, has a tendency not only to promote expensive and mischievous litigation, but also to consume the time of the court in unimportant and frivolous controversies, to the manifest injury of other suitors, and to the subversion of the public policy of the land." The rule of Lord Bacon has been generally followed in England.2

Of the exceptions to the rule, Judge Story says, that they "were probably established at a later date, from the manifest propriety of retaining suits in further, ance of rights of a permanent nature, in aid of charities, and in suppression of frauds.3 In America the same rule has generally been followed, or statutes limiting the amount enacted. In Georgia it has been held

1 Story Eq. Pl. § 500; see also Cooper's Eq. Pl. 165.

2 Chity's Eq. Dig. "Jurisdic. of Chancery," XI. (1st Am. ed.) 1213; 1 Dan Ch. Pr. (5th ed.) *328; 1 Story's Eq. Pl. § 500; see also Chaine v. Dungannon, 6 Irish Jur. 174; Westbrooke v. Browett, 17 Grant's Ch. 339.

3 Story's Eq. Pl. § 501; see also Cocks v. Foley, 1 Vern. 359; Moore v. Lyttle, 4 Johns. Ch. 183.

4 Williams v. Berry, 3 Stew. & Port. 284; Wood v. Wood, 3 Ala. 756; Hail v. Canute, 22 Ala. 650; Cowan v. Jones, 27 Ala. 317; Wheat v. Griffin, 4 Day 419; York v. Kile, 67 Ill. 233; Reynolds v. Howard, 3 Md. Ch. 331; Cummings v. Barrett, 10 Cush. 185, 190; Smith v. Wil

that the rule of infra dignitatem, is superseded by the sweeping terms of the judiciary act of that Statewhich confers on the Superior Courts the powers of a court of equity in all cases, where a common law remedy is not adequate.5 In Tennessee under a recent statute, conferring upon chancery courts concurrent jurisdiction, in ejectment, with the circuit courts, it was held that the rule de minimis did not apply, although in equity cases under the general law of the State it did. And in Missouri the court in a case involving an equitable estate in lands, dower, etc., the court says: "Counsel speak of the amount as trifling, etc., and that so small an amount should make no difference with the plaintiff's rights. But the rules which regulate estates are exact, almost mathematical in their character, and if there is anything due and known to be due, the contract certainly is not executed and the trust is not fixed."8 In this case it will be observed that the amount, though small, was, in one sense, jurisdictional, and fixed rights and liabilities of greater magnitude.

In cases of fraud, it is well settled, the rule of infra dignitatem will not apply. Like sin in religion, fraud in law cannot be so small as to escape retribution.9

The amount set forth in the bill governs the question of jurisdiction,10 and the court may entertain the suit, even when below the amount, if the defendant does not object.11

In Wells v. Elsam,12 it was held that a bill in equity to obtain an off-set of a judgment would not lie unless it showed that the amount involved, after satisfying any proper claim of the attorneys, exceeded $100-the amount fixed by statute.

In Putnam v. Bentley,13 a statute of Tennessee restricted the jurisdiction of chancery to suits of $50 and upwards, and another statute gave to that court exclusive jurisdiction to aid a judgment creditor to subject the property of his debtor, which could not be reached by execution, to the satisfaction of his judgment: Held, that chancery would exercise jurisdiction to aid a creditor whose judgment was less than $50.

liams, 116 Mass. 510, 512; Gamber v. Holben, 5 Mich. 331; Bay City Bridge Co. v. Van Etten, 26 Mich 210; Dewey v. Dwyer, 39 Mich. 509; Marsh v. Benson, 11 Abb. Pr. 241, and note; Braman v. Johnson, 26 How. P. 27; Mallory v. Norton. 21 Barb. 424; Marsh v. Benson, 34 N. Y. 358; Chunn v. McCarson, 2 Dev. Eq. 73; Carr v. Iglehart, 3 Ohio St. 457; Rentfroe v. Dickinson, 1 Overt, 196; McNew v. Toby, 6 Humph. 27; Williams v. Wilhite, 2 Head 344; Malone v. Dean, 9 Lea 336.

5 Smith v. Ashcroft, 25 Ga. 132.

6 Sess. Act 1877, Ch. 97, p. 119.

7 Frazier v. Browning, 11 Lea 253 see also Malone v. Dean, 9 Lea 336.

8 Worsham v. Callicon, 49 Mo. 206.

9 Hamilton v. Johnson, Vern. &. S. 394; Barnett v. Woods, 2 Jones Eq. 198; s. C., 5 Jones Eq. 428; Yantis v. Burdett, 3 Mo. 457; see Vredenberg v. Johnson, Hopk. 112.

10 Spurlock v. Fulks, 1 Swan 289; Birmingham v. Tapscott, 4 Heisk. 382; Fink v. Denny, 75 Va. 663; 1 Dan. Ch. Pr. 328.

11 Beckett v. Billrough, 8 Hare 188. 12 40 Mich. 218.

13 8 Baxt. 84.