Nothing was shown in the course of business of either of the banks necessarily to conflict with the implication to be derived from the form of the indorsements. The letter of the People's Bank in which the drafts were sent to the Penn Bank was, simply, "We inclose for collection and credit" the drafts, describing them. The Penn Bank, in its reply, said, “We enter for collection" the drafts described, "to be used when paid." As recited in the report, "the drafts, when received by the Freeman's Bank, were entered upon its collection-book, but have never been entered upon its account current, or upon any other book or account, to the credit of the Penn Bank." It has so long been held by the courts that an indorsement of this kind is restrictive, protecting the rights of the owner, that officers of banks must be presumed to have well understood the law, and when they have honored overdrafts drawn by other banks which had sent other drafts for collection, must have done it trusting in part to the financial soundness of their correspondent, and in part to the probability that the drafts would be paid, and not to a supposed legal right to control the drafts against the owner: Rice v. Stearns, 3 Mass. 225, 227; 3 Am. Dec. 129; Wilson v. Holmes, 5 Mass. 543; 4 Am. Dec. 75; Treuttel v. Barandon, 8 Taunt. 100; Sigourney v. Lloyd, 8 Barn. & C. 622; Leary v. Blanchard, 48 Me. 269; Sweeny v. Easter, 1 Wall. 166; Bank of Washington v. Triplett, 1 Pet. 25; Lawrence v. Stonington Bank, 6 Conn. 521; Bank of Metropolis v. New England Bank, 1 How. 234; 6 How. 212.

One who collects commercial paper through the agency of banks must be held impliedly to contract that the business may be done according to their well-known usages, so far as to permit the money collected to be mingled with funds of the collecting bank: Dorchester and Milton Bank v. New England Bank, 1 Cush. 177. When a payment is made to his agent and the money is put with the money of the collecting bank, he has a right to receive a corresponding sum, but he loses his right to the specific fund. In the absence of directions to the contrary, the collecting bank may pay it to the bank to which it should regularly be remitted by setting it off against a debt due from that bank and giving credit for it in the account.

Very likely, authority to collect would authorize the receipt of the money from the payor before maturity, if he saw fit then to pay, and remittances afterwards made, whether by a payment of money or by a set-off and adjustment of accounts in

the usual way, would be good against the owner. In the present case no collection was made, for payment was stopped before the draft became due. The plaintiff had no right to advance the Penn Bank seven thousand dollars, or any other sum, on account of the defendant. Its only authority was to transmit, or pay by adjustment and set-off, money which it received for the defendant.

We are of opinion that upon the facts reported the action. cannot be maintained.

Judgment for the defendant.

NEGOTIABLE INSTRUMENTS - INDORSEMENT FOR COLLECTION. The indorsement for collection of a draft or check is not a transfer of the title, but merely constitutes the indorsee the agent of the indorser to present the paper, demand and receive payment, and remit the proceeds: National B. & D. Bank v. Hubbell, 117 N. Y. 384; 15 Am. St. Rep. 515, and note.

CURRAN V. CITY OF BOSTON.

[151 MASSACHUSETTS, 505.]

MUNICIPAL CORPORATIONS ARE NOT LIABLE TO PRIVATE ACTIONS FOR UMISSION OR NEGLECT in the performance of a corporate duty imposed upon them by law, or for that of their servants employed therein, when such corporations derive no benefit therefrom in their corporate capacity, unless such action is given by statute.

MUNICIPAL CORPORATION MAINTAINING A WORKHOUSE, when authorized though not required to do so by an act of the legislature, does not become answerable for the negligence of its officers or servants on the ground that it has voluntarily assumed the duty of maintaining such workhouse. It is performing a strictly public duty, which cannot be of any advantage to it.

MUNICIPAL CORPORATION CANNOT BE HELD ANSWERABLE for the negli gence of its officers and servants in charge of an inmate of a workhouse, when its government is by law placed in the hands of a board of direc tors of public institutions, which, though elected by the city council, is an independent body, and not in any sense the agent or servant of the city. MUNICIPAL CORPORATION CANNOT BE HELD ANSWERABLE FOR THE NEGLIGENCE or omissions of its officers or servants in charge of a workhouse on the ground that its inmates are required to be kept at work, and some revenue is derived from their labor, if the institution is not conducted with a view to pecuniary profit.

E. Greenhood, for the plaintiff.

R. W. Nason, for the defendant.

DEVENS, J. The plaintiff was an inmate of the workhouse, or house of industry, belonging to the city of Boston, situated

AM. ST. REP., VOL. XXI.-30

on Deer Island, having been convicted of the misdemeanor of not supporting his family, and having been legally sentenced to confinement there. He was injured while engaged in unloading coal, and it must be assumed was prepared to prove that he himself was in the exercise of due care, and that the officers and servants employed in this institution were negligent. The single question presented is, whether these officers and servants-engaged in conducting the work incident to the maintenance of the workhouse of the city, and to the employment of the inmates thereof, from whose employment it derives a certain amount of revenue, such officers and servants being also engaged in the management of the city's property employed in the business of the workhouse-are agents of the city, for whose negligence in the performance of their duties it is responsible.

It is a general principle that municipal corporations are not liable to private actions for omissions or neglect in the performance of a corporate duty imposed upon them by law, or for that of their servants engaged therein, when such corporations derive no benefit therefrom in their corporate capacity, unless such action is given by statute: Oliver v. Worcester, 102 Mass. 489; 3 Am. Rep. 485, and cases cited. The contention of the plaintiff is, that the case at bar is distinguishable, because, as a mere volunteer, the city has devoted property, intended mainly for corporate purposes, to other purposes, for its own advantage, as in Oliver v. Worcester, 102 Mass. 489; 3 Am. Rep. 485; that it has voluntarily undertaken a work partially for the public good, with a view to this, and to relieve itself from burdens peculiar to itself; and that it has embarked in an enterprise partly commercial, from which it receives a partial remuneration for its expenditures out of a special class in the community, so that the entire expense of conducting the workhouse is not met by taxation. While the workhouse is maintained primarily by the city at its own expense, it was not by law compelled to establish this institution. The plaintiff's argument concedes that, when established, its officers and servants were selected by the board of directors of public institutions, not by the city; but it urges that they are still to be deemed the agents of the city, as the act of establishing such an institution is voluntary, and the imposition of the ministerial duties upon such officers is the act of the municipality, and that therefore it is immaterial whether the ministerial duties involved in the administration

of such an institution are cast by statute upon a board over whose tenure of office the city has no control.

The authority to erect and maintain a workhouse, or almshouse, to relieve therein poor and indigent persons, is given by the Public Statutes, c. 33, sec. 1 (Gen. Stats., c. 22, sec. 1). The same section provides that offenders of the class to which the plaintiff belonged are to be there maintained, when sentenced thereto by proper authority. The Public Statutes, c. 207, sec. 29, provide that such offenders may be sentenced "for a term not exceeding six months to the house of correction, or to the house of industry or workhouse within the city or town where the conviction is had, or to the workhouse, if any there is, in the city or town in which the offender has a legal settlement, if such town is within the county." There is no imperative direction that the city shall establish a workhouse, but by law it is responsible for all the county charges of Suffolk County, and if the convict were sentenced to confinement therein, his expenses would necessarily be paid by it: Pub. Stats., c. 22, sec. 6. By the more general law, any city or town which has in the house of correction an inmate having his settlement in such town is liable for the cost of his support: Pub. Stats., c. 220, sec.61. By the statute authorizing the erection and maintenance of work houses by a city, a mode of performing a strictly public duty is provided for, which cannot be of any pecuniary advantage to the cities or towns instituting them. No such case is presented as exists where a city has undertaken to build particular works, as water-works, sewers, etc., and where a city acts as an agency to carry on an enterprise to some extent commercial in its character, for the purpose of furnishing conveniences and benefits to such as choose to pay for them. The element of consideration then comes in, and in such cases it is usually held that a liability exists on the part of the city for an injury to an individual through negligence in building or maintaining such works: Child v. Boston, 4 Allen, 41; 81 Am. Dec. 680; Oliver v. Worcester, 102 Mass. 489; 3 Am. Rep. 485; Emery v. Lowell, 104 Mass. 13; Merrifield v. Worcester, 110 Mass. 216; 14 Am. Rep. 592; Murphy v. Lowell, 124 Mass. 564; Tindley v. Salem, 137 Mass. 171; 50 Am. Rep. 289.

The action of the city in establishing the work house was purely for the public service, and for the general good in providing for the care and support of offenders for whose maintenance it was responsible. While in some cases the statute

enjoins and directs action similar to this, and in others permits it, as there is in either case no element of corporate advantage or cf pecuniary profit to the city, it is not to be held responsible because it exercised the option which was given to it to undertake what it did: Hafford v. New Bedford, 16 Gray, 297; Fisher v. Boston, 104 Mass. 87; 6 Am. Rep. 196. In Tindley v. Salem, 137 Mass. 171, 50 Am. Rep. 289, the cases in regard to the liability of towns for the acts of servants or agents were carefully collected and considered by Mr. Justice Charles Allen. Referring to the distinction attempted to be drawn between negligence of the servants of a town or city in the performance of a duty imperatively required, and one voluntarily assumed by authority of the statute, he remarks: "This distinction does not affect the resulting liability. There are many provisions of statute, by which all municipal corporations must do certain things, and may do certain other things, in each instance with a view solely to the general good. In looking at these provisions in detail, it is impossible to suppose that the legislature have intended to make this distinction a material one in determining the question of corporate liability to private actions. For example, towns must maintain pounds, guide-posts, and burial-grounds; and may establish and maintain hospitals, work houses, or almshouses. In all of these cases the duty is imposed or the authority conferred for the general benefit. The motive and the object are the same, though in some instances the legislature determines finally the necessity or expediency, and in others it leaves the necessity or expediency to be determined by the towns themselves. But when determined, and when the service has been entered upon, there is no good reason why a liability to a private action should be imposed when a town voluntarily enters upon such a beneficial work, and withheld when it performs the service under the requirement of an imperative law." We are of opinion, therefore, that the city cannot be held liaable upon the ground that the work house was established by it voluntarily.

....

Upon another ground, also, the city cannot be held liable for the alleged negligence of the officers and servants engaged with the plaintiff in the work in the performance of which he was injured. When the city established the workhouse, the inspection, ordering, and government thereof were placed by law in the hands of "the board of directors for public institu tions" for the county of Suffolk. This is a board of public