The grand jury of Pulaski county, on the 12th of February, 1869, filed an indictment in the circuit court of said county, against the appellee and Jinnie Harrison.

In the second count of the indictment it was charged that said "Ellick Dunn and Jinnie Harrison, on the 25th day of December, 1868, and on divers other days and times, in the year aforesaid, did then and there illegally cohabit together—they, the said Ellick Dunn and Jinnie Harrison, not being then and there husband and wife-to the injury of public morals, contrary to the statute, and against the peace and dignity of the State of Arkansas."

The appellee appeared in court, and demurred to said second count. The court sustained the demurrer. The prosecuting attorney then entered a nolle prosequi to the first count in the indictment, and the court rendered judgment that the defendant go hence, without day; and the attorney for the State prayed an appeal to this court.

The second count in the indictment was clearly bad. There is no charge that Dunn was a man, and Harrison a woman, or rice versa, or that they co-habited as husband and wife.

There is no statute in this State prohibiting persons from cohabiting together, nor is such an offense at common law. The judgment of the circuit court is affirmed.

CONFEDERATE MONEY.-Contracts based upon Confederate money are illegal and void.

PLEADING-Time of filing.-After issue joined, the filing of a special plea, at subsequent term, is within the discretion of the court.

Appeal from Sebastian Circuit Court.

HON. E. J. SEARLE, Circuit Judge.

Du Vall & King, for appellant.

Watkins & Rose, for appellee.

BOWEN, J.

This is an action of debt brought by appellee against appelJant and others, in the circuit court of Sebastian county.

At the October term, 1866, suit was discontinued as to all the defendants except appellant, who filed, during the term, the pleas of nil debit and set off.

At the April term, 1867, plaintiff took issue to the first plea, and replied the statute of limitations to the plea of set off.

The defendant filed an additional plea of set off, on a note executed by John Carnall, in March, 1862, for one thousand dollars. To this the plaintiff replied: First. The general issue; second, a special replication, setting up that the promissory note executed by Carnall was given for Confederate money, and therefore void, the same being an illegal consideration. To this replication the defendant entered his general demurrer, which was overruled. The cause was submitted to the court, sitting as a jury, who found for the plaintiff and entered judgment accordingly.

It appears from the bill of exceptions that, at the latter term, defendant asked leave to file a special plea, under oath, alleging substantially that the plaintiff, at the time of com

TERM, 1870.]

Granger and wife v. Pulaski County.

mencing this suit, had no claim or title to the note sued on, having previously assigned the same to one Sarah Clark. The plaintiff objected to the filing, and was sustained therein by the court. The defendant excepted to such ruling, and to the overruling of his motion for a new trial, and the cause is here on appeal.

The only point involved in the overruling of defendant's. demurrer to plaintiff's replication to defendant's second plea of set off is, that of the illegal consideration. We have already settled that question in the case of Clark v. Latham, 25 Ark.

The refusal of the circuit court to permit defendant to file his special plea just before going to trial, was a matter which addressed itself to the discretion of the court, and is one with which we will not interfere, especially since no good reason appears for asking to file at so late a day.

At the trial, in the circuit court, the note sued on was in evidence. The court having refused leave to defendant to file his special plea, and this court sustaining it therein, renders it unnecessary for us to say any thing further. Judgment affirmed.

GRANGER AND WIFE v. PULASKI COUNTY.

QUASI CORPORATIONS-Powers of.-Counties may be termed quasi corporations, the assumption of their corporate powers conferred and duties im-posed, are wholly involuntary, they possess no power, incur no obligations, except specially conferred by statute.

LIABILITY. A private action will not lie, at the suit of a party injured, against a qnasi corporation, resulting from non-performance by its officers. of a corporate duty, unless given by statute.

Appeal from Pulaski County.

Granger and wife . Pulaski County.

[DECEMBER

HON. JOHN WHYTOCK, Circuit Judge.

Rice & Benjamin, Gallagher & Newton and T. D. W. Yonley, for appellant.

Counties are liable as bodies politic, as also municipal. Gould's Dig. 287, Sec. 1, Chap. 41; corporations are liable at common law for trusts and acts of their agents. Hawkins v. Duchess of Orange; Steamboat Co., 3 Wend. 453; McCready v. Guard. of the Poor, S. & R. 94; Lyman v. White River Bridge Co., 3. Ark. 355, 3. Hill 573, per Harper, C. J.; Goodloe & Smith v. city of Cin., 4. Ham 500 and -514; Cincinnati v. Hamilton Co., Wright 603; Chestnut Hill Turnpike Co. v. Butler, 4. S. & B. 16; Kansas v. Schuylkill Bank, 4. Was. C. C. 106; Riddle v. Proprietors of docks and canals, 7. Mass. 187; Gerch v. Fulton Bank, 7. Can. 485. The demurer admitted the authority of the corporation. Lyman v. White River Bridge Co., 2. Ark. 255, 257. A county is liable to repair a bridge unless they can charge a particular person. 1. Salk R. p. 359, (s. 7.) 1. Vent 61; 6. Mad. 150, 191, 255, 307. Holt 339. To render corporation liable for negligence, law must impose duty upon it. Hawkins v. Plattsburg, 15. Bart. 427; also, Western College v. Cleveland, 12; Ohio n. s, 375; Perkins v. Newell, 26 Ill. 220; Cates v. Davenport, 9; Iowa 227, (Withwell) 227. Municipal are equally liable as civil. See R. v. Bingham & Glancetshen R. Co., 32, 223; R. v. Great N. R. Co., 315; 3 B. & Ala., 290; R. v. Scourbeck 6 A. & E. 513; 2 Black, 418; 1 Black, 39; 17 Haw. 161. That all the requisites exist to create the liability in regard to Pulaski county, see, sec. 1. chap. 41, p. 287, Gould's Dig.; Roads and Highways Ib. p. 962; Public Roads declared Highways, sects. 1 and 2; Ib. p. 971, sect. 76, 77; Ib. 966, sec. 29; Acts of Legislature 1860, p. 359; Ib. 371; Acts of 1866, Roads and Highways; Acts of 1854, p. 176.

Warwick, Watkins & Rose, for appellee.

A county cannot be sued for damages occasioned by a de

TERM, 1870.]

Granger and wife v. Pulaski County.

fective bridge or highway; Hedges v. County, 1. Gilman, Ill. 567; Russell v. Men of Devon, 2 Durnf & East, 667; Ruddle v. Proprietors &c., 7 Mass. 186; Miney v. Police, 12 La. An. 858; Schuyler Co. v. Mercer Co., 4 Gilman, 20; Ward v. County of Hartford, 12 Conn. 404; Commissioners v. Meghels, 7 Ohio State R. 109; Huffman v. San Joaquin, 12 Cal., 426; Harvey v. Town of Newfane, 8 Barb., Sup. Ct. R. 645; Makinnon v. Penson, 18 Eng. L. & Eq., 509.

BOWEN, J.

Daniel B. Granger and Alice C., his wife, brought an action, in the Pulaski circuit court, against the county of Pulaski, seeking to recover damages for injuries received by said Alice C. Granger, by being thrown from a bridge on a public highway in said county, in consequence of the insecure condition of the bridge, etc.

The appellee demurred to the declaration, which was sus tained, from which ruling and judgment of the circuit court Granger appealed.

The principal point raised by the demurrer is, whether any action lies against a county in this State for damages resulting from a defect in a public highway.

Counties are a political division of the State Government, organized as part and parcel of its machinery, like townships, school districts and kindred sub-divisions. They do not derive any of the corporate powers they possess by a special charter. Their functions are wholly of a public nature, and their creation a matter of public convenience and governmental necessity, and in order that they may the better subserve the public interest, certain corporate powers are conferred on them. Whether they will assume their corporate powers and perform the duties and obligations imposed, are questions over which they have no choice, but their assumption is wholly involuntary.

They have been termed quasi corporations, possessing no