show that the act was consistent with ordinary prudence, or a due regard for the safety of those who were using their premises by their invitation. The gross carelessness of the act appears conclusively upon its recital. Defendants' counsel argue that "if it should appear that they rarely had railings, then it tends to show no want of ordinary care in that respect," that "if one conforms to custom he is so far exercising average ordinary care." The argument proceeds upon an erroneous idea of what constitutes ordinary care. "Custom" and "average" have no proper place in its definition. It would be no excuse for a want of ordinary care that carelessness was universal about the matter involved, or at the place of the accident, or in the business generally. Ordinary care is the care which persons of ordinary prudence-not careless personswould take under all the circumstances. See definition approved in Topsham v. Lisbon, 65 Me. 455. "Reasonable care is perhaps as good a term, and conveys as correct an idea of the care required." It was held not sufficient to relieve the defendant from the imputation of negligence to show that the elevator way "was constructed in the manner usual in the defendants' business." Indermauer v. Dames (in the Exchequer Chamber), 2 L. R., C. P. 311. The remark in Low v. G. T. Ry. Co., 72 Me. 320, that "in fitting up a place for business purposes one is at liberty to consult his own convenience and profit, but not without a reasonable regard for the safety of those whom his operations bring upon his premises upon lawful business errands; in particular, every thing which may operate as a trap or pit-fall * * is to be avoided if reasonable care will accomplish security to life and limb in that respect," is applicable here. * The tendency of part of the questions to raise collateral issues is obvious. The exclusion of testimony of that description in the discretion of the judge is no ground for exceptions. Exceptions to the exclusion of testimony, having a similar bearing and tendency, were overruled in Lewis v. Smith, 107 Mass. 334; Hill Manufacturing Co. v. Providence and New York Steamship Co., 125 id. 292. One substantial ground for excluding evidence of collateral facts is that it is seldom that such identity in all essentials is found that a legitimate interference respecting the one case can be drawn from the other, and a host of collateral issues are brought in to distract the attention of the jury from the real point. The fear of this has sometimes perhaps produced decisions excluding evidence which might throw light upon the issue; but the present case well illustrates the absurdity that would attend an indiscriminate admission of it. It is not probable that the defendants could show a single instance, where while a mine was in active operation a ladder-hole so dangerously located as this, was cut and left without railing or light, or notice to the workmen; and the naked fact (whatever it may have been) as to the existence of railings about such holes in other mines could not have even the semblance of a bearing upon the contention here without proof that they were cut under like circumstances. Here there was no pretense of any notice to the plaintiff of the existence of the chasm into which he BRETT, M. R. This is an action to recover the price of certain horses sold by the plaintiff to the defendant, and the defendant has pleaded that at the time of the sale he was under the age of twenty-one years. The question raised is important, depending as it does upon a rule of evidence which may have to be considered in other cases. The evidence which was admitted at the trial was a declaration in an affidavit (and therefore a solemn declaration) by the deceased father of the defendent giving whas is alleged to be the date of the defendant's birth. No doubt, if it is admissible, it is strong evidence of the true date of the birth; but the question is, whether in such an action, as to such question, and on such an issue as the present, it is admissible. It is unimportant what the family of the defendant may be, or whose son he is, or whether he is a legitimate or an illegitimate son, or whether he is an elder or a younger son; all these questions are immaterial, for no question of family is raised in the case. The problem to be considered is whether this evidence, with regard to the question here at issue, can be received against the plaintiff. It certainly cannot be received unless there is some rule which makes it evidence as against all the world. This is clearly hearsay evidence, and according to the general rule, such evidence is not admissible; therefore if it is to be made admissible, it must be brought within some recognized exception. The question cannot be decided on principle alone, but we must look at the decisions in order to ascertain whether evidence such as this in a case such as this has ever been admitted as coming within any of the exceptions to the general rule. There might be much to be said on both sides if it were sought now for the first time to establish the exception; but it is no part of the province of the court to consider whether the original rule is good or bad, nor to enunciate the principle of the exceptions; we have only to see what the exceptions are. In Sturla v. Freccia, Lord Blackburn enumerates them in the following terms: "It is not disputed that the general rule of English law is that hearsay evidence is not receivable; one reason probably is the want of the safeguard of cross-examination. However undoubtedly the law is, that as a general rule, hearsay evidence is not admissible. But to that a great many exceptions have been introduced. I do not say that if we were but beginning to make the law, we should be able to say exactly why so much should be admitted and no more; probably it would be difficult to say that in all cases; but the exceptions have been established and exist, and we have to see whether this case comes within any one of those. Now, my lords, the first and one of the most important exceptions is briefly ex pressed in a dictum in Higham v. Ridgway, 10 East, 109, that documents, on the face of them appearing to be against the interest of a deceased person who stated the matter, are evidence. I need not enter into the qualifications of that further than to point out that in no point of view can this Giunta di Marina who made this statement (and who presumably are all dead by this time) be said to have been making statements against their own pecuniary interests. Then, my lords, there is a second class of cases, of which Price v. Lord Torrington, 1 Salk. 285; 2 Ld. Raym. 873, may be mentioned as being the earliest, establishing that where a deceased person in the course of his duty makes a contemporaneous entry of an act which he has done, and returns that in the course of his business, then after his death it would be received as evidence. That class of cases is also well established. There again I do not go into the qualifications, or express any opinion upon the different matters introduced, further than to point out that in no sense can it be said that the Giunta di Marina was making any statement in the course of business contemporaneous with the fact, and it is impossible to say that it falls within that principle. Then my lords comes another large class of cases, where from the nature of the thing, evidence of reputation from deceased persons is admissible. Where it is a public right, or a quasi public right, evidence of reputation is admissible if you prove that the deceased person was of the class who would know it, and had stated it. Upon that again I merely say that the question we are now inquiring into, viz., the history of a private individual-is not a matter in which, in any sense, reputation generally can be received. Then my lords there is another class of cases which comes nearer to it. It has been established for a long while that in questions of pedigree-I suppose upon the ground that they were matters relating to a time long past, and that it was really necessary to relax the strict rules of evidence there for the purpose of doing justice-but for whatever reason the statements of deceased members of the family, made ante litem motam, before there was any thing to throw doubt upon them, are evidence to prove pedigree. And such statements by deceased members of the family may be proved, not only by showing that they actually made the statements, but by showing that they acted upon them, or assented to them, or did any thing that amounted to showing that they recognized them." 43 L. T. Rep. (N. S.) 213, 214; 5 App. Cas. [640, 641. Lord Blackburn there intended to give an exhaustive definition of the exceptions to the rule against the admission of hearsay evidence, and in doing so he distinctly states that "in questions of pedigree" statements of deceased members of the family "are evidence to prove pedigree." If this be correct, and if what I have stated (that no question as to family is at issue in the present case) is right, it is impossible to say that this evidence who has taken every point which could have been taken; he has however failed to convince me that this affidavit of the defendant's father was rightly received as evidence against the plaintiff. BOWEN, L. J. I am of the same opinion, notwithstanding the able argument of Mr. Willis. The exact point appears to me to be this: in such an action as the present, and on such an issue, the declaration of a deceased person is inadmissible, because the question at issue is not one of family, but is merely a question of the age of a particular young man. FRY, L. J. I am of the same opinion. The exceptions to the general rule excluding hearsay evidence have been explained by Lord Blackburn in Sturla v. Freccia, ubi supra, and the rule is stated by Lord Kenyon, C. J.: "The evidence should be given under the sanction of an oath legally administered, and in a judicial proceeding depending between the parties affected by it, or those who stand in privity of estate or interest with them *** I admit that declarations of the members of a family * * * are received in evidence as to pedigrees. * * *That however has been always understood to be an excepted case, and to stand on reasons peculiar to itself." R. v. Eriswell, 3 T. R. 707. This view has been followed down to the present time. I am of opinion that this is not a question of pedigree, for whose son the defendant is, or who his relations are, or any other question as to his family, would be wholly immaterial. I therefore agree that there must be a new trial. Appeal dismissed. Solicitors for plaintiff, Wakeford, May, and May. Solicitors for defendant, Cookson, Wainewright, and Pennington. [See ante 51.] INSURANCE—“WIDOW.” NEW YORK SUPREME COURT, GENERAL TERM, FIRST DEPARTMENT, JAN. 9, 1885. POLAR STAR MUT. BEN. ASSOCIATION OF NEW YORK V. BONIFACE, RESPONDENT AND BONFORT, APPELLANTS. A member of a mutual benefit association, being married, marries a second time, the woman being unaware that he was already married. The certificate or agreement issued to him by the association by its terms provided that the moneys due thereon after his decease should be paid to his "widow," and if there was no widow, then to his children In an action of interpleader, in which the children by the first wife who had in the meantime died claimed the moneys. Held, that the wife by the second marriage was the "widow within the term of the certificate entitled to the moneys. PPEAL from judgment in respondent's favor. The opinion states the case. was given on a question of pedigree to prove pedigree, A and if it was not it does not come within the exception. A strong opinion was expressed by Patteson, J., in the case of Figg v. Wedderburne, 11 L. J. 45, Q. B., that in a case like the present, such evidence as this cannot be admitted, and the same view was taken by Pollock, C. B., in Plant v. Taylor, where he said: "In an action for goods sold and delivered, declarations of a deceased parent are not admissible to prove the defendant is an infant. It is different where the question is one of pedigree." 7 H. & N. 227. I am of opinion that the evidence which the defendant seeks to give in the present case does not come within any of the recognized exceptions to the rule, and therefore is inadmissible; and if this be so, it follows that the order of the Divisional Court directing a new trial was right. I have listened with great interest, and satisfaction to the able argument of Mr. Willis, Leopold Leo and Charles K. Lexow, for appellants. DANIELS, J. The controversy in the action related to the right to moneys, payable by the plaintiff upon the decease of Louis Boniface, who was a member in good standing of the Polar Star Mutual Benefit Association. These moneys were claimed by the respondent as his widow, and by the appellants who were the children of his first lawful wife, with whom he had intermarried in Hamburg prior to his emigration to this country. That marriage was solemnized in June, 1842. The deceased emigrated to New York in August, 1853, and there he formally intermarried with the respondent on the 26th day of February, 1860. His wife in Hamburg died in January, 1878, and he himself died on the 15th day of March, 1882. By the terms of the certificate or agreement issued by the association to to him, the money was made payable after his decease to his widow, and if there was no widow, then to his children. The respondent claimed the money as the widow, and the children of the marriage in Hamburg also claimed it, for the reason that her intermarriage with the deceased was illegal, inasmuch as it took place while the wife married by him in Hamburg was living. The plaintiff brought this action as one of interpleader to obtain a settlement of these conflicting claims and a determination under which the money could be safely paid. The court held the respondent entitled to the money, and whether that decision was in accordance with the law is the only point required to be considered for the disposition of the appeal. An objection was taken by the appellants to the question put to the respondent asking what her husband said when the information was received that his wife in Hamburg was dead. This was in the most general terms. The objection was overruled and an exception was taken. No point has been made upon this exception, and none could very well be presented, even if she was not competent to answer, for that particular objection was not interposed at the time. If her competency was intended to be questioned, it should have been done in such a manner as to bring the point to the notice of the court. That was not done and the exception taken can be of no benefit to the appellants. The judgment in the case was well sustained, and it should be affirmed, together with the usual costs and disbursements. Davis, P. J., and Brady, J., concurred. MUNICIPAL CORPORATION-RESPONDEAT SU PERIOR-CEMETERY TRUSTEES-CITY VAULT OHIO SUPREME COURT COMMISSION, CITY OF TOLEDO V. CONE.* When her own formal marriage with the deceased took place, the respondent had no information of the fact that he was under the disability of a preceding marriage, but she became aware of that fact some months after her own marriage took place. Notwithstanding that information, she continued to live with the deceased until the time of his death. But evidence was given tending to establish the fact that after the wife to whom the deceased was married in Hamburg had died information of the fact was received by him, and that he then stated to the respondent that if she ever was in doubt that she was his lawful wife, she was sure of it then, and showed her the letter containing information of the decease of the wife in Germany. It was further proved that during the period intervening between the exhibition of this letter and his own decease, a period of a little over four years, he continued to live with the respondent as his wife and treated her as such, introducing and referring to her in his conversation as his wife, to and including the period of his last illness. And from their evidence a new marital relation was presumed to have arisen between herself and the deceased after the death of his wife in Hamburg. That her purpose was to contract a lawful relation with the deceased, at the time when her formal but illegal marriage took place, may very justly be inferred from the proof in the case, and that after the discovery of the fact that he had a preceding wife living she was not satisfied with her relation to him. It may well therefore be presumed, when the information was obtained of the decease of the wife in Germany, that both parties united in the design that their relations from that time should be in entire accordance with the requirements of the law, aud for that purpose agreed henceforth to live together as husband and wife. That presumption is supported by what is stated to have been said by him to the responding whether the verdict is contrary to law, the con ent when the information was obtained of the decease of the wife in Hamburg, and also from the manner in which each was recognized and treated by the other from that time to the period of his decease. The obstacle which previously stood in the way of the execution of their design was removed, and when that took place, as the same design continued to exist, it is reasonable to presume that they did all that could be legally required to render that design lawfully binding. This subject has been recently very fully considered in Hynes v. McDermot, 91 N. Y. 451. The authorities were there very particularly referred to, and a conclusion was reached that a voluntary marriage should be presumed to have taken place between parties situated as these persons were, and afterward living together and conducting themselves as husband and wife. That was all that could be required for the purposes of this case, and at the time of the decease of Boniface, the respondent became his widow both in judgment of law and within the terms of the certificate issued to him by the association, and accordingly entitled to the money payable by means of it. An employee, while engaged in a city cemetery in improving & ERR E. P. Raymond, H. A. Chamberlain and Clarence Brown, for plaintiff in error. Hamilton & Ford, and Pratt, Wilson & Pratt, for defendant in error. DICKMAN, J. Whether the verdict is supported by the evidence, we are not called upon to determine, there being no portion of the evidence embodied iu the record by bill of exceptions. Nor need we inquire whether there was error in the charge of the court to the jury, as no such error is assigned. In determin trolling question that arises is, whether a cause of action sufficient to sustain the judgment rendered is stated in the original petition. Whatever is alleged in the petition, which upon issue joined requires proof, have been proved. 1 Chitty's Pl. 673. And the objecwill after verdict for the plaintiff be presumed to tion that the facts stated in the petition, and thus presumed to have been proved, are not sufficient to constitute a cause of action, may be made at any time before final judgment in error, if proper notice of such objection appear on the record in the reviewing court, before the case is heard. Youngstown v. Moore, 30 Ohio St. 133. Such notice in the case before us is apparent in the demurrer to the original petition, the exception taken to the overruling of the same, and the assignment in the District Court as error in the record, that the Court of Common Pleas erred in overruling such demurrer. In the light of the record before us, the fact that Cone, the defendant in error, was injured through the *To appear in 41 Ohio State Reports, neglect and want of care and skill of the superintendent and trustees of the cemetery, is not brought in issue. Admitting the truth of the allegations in the original petition, the essential question is, whether the city of Toledo was liable to Cone, for the injuries he received while engaged in the cemetery in improving the vault which was the city's property, and while working under and obeying the orders of the superintendent-the superintendent and Cone himself having been appointed, and the trustees having been elected, according to the provisions of sections 361 to 376 inclusive, of the act "To provide for the organization and government of Municipal Corporations," passed May 7, 1869 (66 Ohio L. 149). The rule respondeat superior, though well recognized in fixing the liability of private corporations and natural persons, has been a source of much doubt and per plexity in its application to municipal corporations. It is however now well established, that corporations of the latter class, when acting in a certain character or capacity, are liable as superiors and employers, for injuries to third persons resulting from the negligence and unskillfuluess of their agents or servants, while in the line of their employment, in the same manner and to the same extent as private corporations or private individuals. Under analogous conditions, there seems to be no foundation in reason or public policy, for exempting such public corporations any more than private individuals, from liability for injuries inflicted on others through the negligence of their agents. The underlying principle of municipal government is, that the management of local affairs shall be intrusted to local authorities, while general affairs are left to the State Legislature. Under the power given by the Constitution to the general assembly, to provide for the organization of cities and incorporated villages, these corporations are made the depositaries of certain limited governmental powers, to be exercised on behalf of the State for the public welfare. They are agencies or instrumentalities to which the general assembly, vested with the legislative' power of the State, delegates a portion of its governmental power, in order to meet those local wants of the people in cities and villages, for which State laws make only general provision, leaving a more particular provision to local councils. The manner and extent, to which legislative and governmental powers delegated to municipal corporations for the public good are to be exercised, must rest, in a large measure, in their judgment and discretion; but acting as State instrumentalities, they cannot be held liable to individuals for a defect in the execution of such powers, unless a right of action is given by statute. Indeed in the distribution of the powers of government-as a part of the machinery of the State government-they enjoy, to a certain extent, an immunity from civil action in the performance of their legislative functions, like that of the Sovereign State itself. This principle is recognized in Wheeler v. City of Cincinnati, 19 Ohio St. 19, which was an action to recover damages arising from the casual destruction of the plaintiff's house by fire, through want of an efficient fire department. As an obligation rested upon the State, to aid by appropriate legislation, in the protection of the property of its citizens, it was held in that case, that the powers conferred upon the municipal corporations of the State to establish and organize fire companies, procure engines, etc., to preserve buildings and property within their limits from conflagration, are in their nature legislative and governmental, and that such corporations cannot be held liable to individuals for any defect in the exercise of those powers. So also in Western College, etc., v. City of Cleveland, 12 Ohio St. 375, it was held that the defendant was not liable for the failure of its police to preserve the peace and prevent loss by the violence of a mob. It being the duty of the State government to secure to the citizens of the State the peaceful enjoyment of their property and its protection from wrongful and violent acts, power is delegated through the organization of municipal corporations to aid in the accomplishment of that object. But if municipalities to which such governmental authority might be given should fail to effectively exercise it, they are not to be held responsible to individuals for the consequences.. As said by the court, "it is not the policy of governments to indemnify individuals for losses sustained, either from the want of proper laws or from the inadequate enforcement of laws made to secure the property of individuals." But within the sphere of their duties, municipal corporations are to be regarded in another and very different aspect. While they act in a public character or capacity, and exercise public powers, they may and do act also in a private capacity, like private corporations, and as such are held to a like responsibility. Thus if a municipal corporation acquires real or per. sonal property, and in the discharge of what may be deemed ministerial duties in respect to the same, an individual receives injury through the negligence of its officers or servants, it should be held responsible to that individual. Though not liable for a defect of judgment or discretion, while acting as a State instrumentality in the exercise of legislative functions, yet having like a private corporation or natural person become the owner or obtamed the control of property, it should not be relieved from the operation of the general maxim, that one should so use his own as not to injure that which belongs to another. Thus if a city neglects its ministerial duty to cause its sewers to be kept free from obstructions, to the injury of a person who has an interest in the performance of that duty, it is liable to an action for the damages thereby occasioned. Emery v. Lowell, 104 Mass. 13. So if a city owns a wharf, and has the exclusive control of it, and receives wharfage or profit for the use thereof, it will be held liable to a private action for an injury suffered by an individual by reason of a defect in the structure. Pittsburgh v. Grier, 22 Penn. St. 54. And the same rule applies in respect to a city's failure to keep its streets in a safe condition for public use, where this is a duty resting upon it. Of course, before a municipal corporation is subjected to liability for the misfeasance or neglect of its agents or servants, it becomes material and sometimes difficult to determine whether they are in fact the agents or servants of the corporation. It is said by an approved text writer that if the municipal corporation appoints or elects them, and can control them in the discharge of their duties, cau continue or remove them, can hold them responsible for the manner in which they discharge their trust; and if those duties relate to the exercise of corporate powers, and are for the peculiar benefit of the corporation in its local or special interest, they may justly be regarded as its agents or servants, and the corporation will be held responsible for their acts, within the scope of their employment. And in broad terms, to the same effect, it is laid down in Wood Mast. and Serv., § 459, that if even an independent public officer, or one whose duties are defined or specified by law, is in any measure subject to the direction or control of a municipal corporation, and acts in obedience to its instruction, the relation of master and servant exists, and the rule of respondeat superior applies. The rule is predicated upon the right of the employer to discharge and control the Blake v. Ferris, 5 N. Y. 48. servant. Applying these principles to the undisputed facts in this case, we think the cemetery trustees and the superintendent were placed in such relations to the city of Toledo, by the act of May, 1869, under which they were elected, as to make them the agents of the city, and to render the corporation responsible to Cone for the injury he received. At the time he was injured, the city owned, held the title to and the right of possession of the cemetery. The cemetery was in the possession and charge of a board of three trustees of cemeteries, who had the entire management, control and regulation of the same, and who had been elected for that purpose by the qualified electors of the city, at the annual election for corporation officers, in accordance with the statute in such cases made and provided. All vacancies occurring in the board were required by the statute to be filled by appointment of the city council, and the council was clothed with power to remove any trustee for inattention to his duties, want of proper judgment, skill or taste for the due discharge of the duties required of him, or for other good cause. The trustees were authorized to appoint, subject to the approval of the council, all necessary superintendents, employees and agents. Under a superintendent thus appointed Cone was employed, and was required to obey his orders and directions. The trustees were required, when necessary, to institute suits in the name of the corporation for the protection of the cemetery, and to see that all ordinances of the city passed for that purpose were duly enforced. The by-laws and regulations made by the trustees were not to be inconsistent with the ordinances of the corporation; and they were to perform all such other duties, not specified in the statute and pertaining to their office, as the council of the corporation might by ordinance prescribe. While the trustees might appoint one of their number to sell burial lots, notice of such appointment, upon its being made, was to be communicated to the council. All moneys received and disbursed by them as trustees were to be reported quarterly to the council. They were also to report annually in writing to the council, the number of lots sold during the year preceding, with a detailed statement as to receipts, expenditures and investments during the same period, and such other matters as the council might require. And whenever in their judgment an enlargement of the cemetery grounds should become necessary, the trustees were to report the fact to the council for its action in the premises. We think it is evident from these statutory provisious that the trustees of the cemetery in question were elected by the people of Toledo, to take charge, as their agents, of the cemetery property, and acted in that behalf in sudordination to and subject to removal by the council of the corporation. The improvement or repair of the city vault, through their agency and that of the superintendent, was not a legislative or governmental act on the part of the city, but was merely the discharge of a ministerial duty, such as the city performs in repairing or improving its streets, sewers and wharves. It lay within the legislative capacity, judgment and discretion of the city to provide a cemetery for the burial of the dead, and to build requisite vaults; but having become the owner of such property, the city in managing it was held to the same degree of care in preventing damage to others as would be required of natural persons. By section 8 of the act of May, 1869, municipal corporations are made capable of acquiring, holding and possessing property, real and personal. Having such power, there would seem to be no more valid reason for exempting them from liability for private injuries caused by the improper management of their property than for exempting private corporations and natural persons under like circumstances. In Hill v. Boston, 122 Mass. 344, the court, in tracing the line of municipal liability, say that as to common sewers built by municipal corporations under a power conferred by law, the power of determining where the sewers shall be made involves the exercise of a quasi judicial discretion, and therefore no action lies for defect or want of sufficiency in the plan or system of drainage adopted within the authority so conferred; but that the duty of constructing the sewers and keeping them in repair is merely ministerial, and therefore for neglect in the construction or repair of any particular sewer, whereby private property is injured, an action may be maintained against the city. It is true that the election and term of office of the trustees were fixed by a general statute of the State, but the law did not require the city of Toledo to own or maintain the cemetery in question. Having however voluntarily acquired the cemetery, and constructed the city vault as a part thereof, the city acquiesced in the provisions of the statute, and accepted the trustees and the superintendent by them appointed as its lawful agents for the management and regulation of the property. In Bailey v. Mayor, etc., 3 Hill, 531, the action was for injuries occasioned to property by the negligent and unskillful erection of a dam on the Croton river for the purpose of supplying the city with water. The principal ground taken in defense was, that the defendants were not chargeable for negligence or unskillfulness in the construction of the dam, inasmuch as the water commissioners, under whose superintendence and control the work was done, were not appointed by them, nor subject to their direction or control, but were appointed by the governor of the State, with the advice and consent of the Senate, and were answerable for their official conduct to the State alone, which could remove them at pleasure. But the court held that the commissioners, though appointed by the State, were the agents of the corporation, and that the latter was therefore liable; that it being provided by the charter granted to construct the work, that the agents for executing the work should be appointed by the State, an acceptance of the charter by the grantees would render the agents their own. This authority becomes of increased force when it is considered that the cemetery trustees were elected by the qualified electors of Toledo, and were answerable for their official conduct to the city council. The cemetery and vault were a source of benefit and advantage to the corporation, and involved the same responsibility for their unsafe and improper management which pecuniary and proprietary interests entail upon natural persons. By an amendment of section 371 of the act of May, 1869 (68 Ohio L. 130), the city had authority to charge for burial lots, sufficient not merely to keep in order and embellish the grounds, but also to reimburse the corporation for the cost of lands purchased or appropriated for cemetery purposes. The city vault was used for public purposes, but it was also used by private persons for reward and hire, the money which they paid being accounted for by the trustees, as they accounted for the proceeds of cemetery lots by them sold for the city. The reimbursement of the corporation treasury and the emolument derived from the use of the vault, were for the special local benefit of the corporation, and the State at large had no interest therein. The doctrine seems to be well sustained that where a municipal corpora tion owns property, and for its own benefit derives pecuniary emolument or advantage therefrom in the |