UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE LAW OF RAILWAYS: EMBRACING CORPORATIONS, EMINENT DOMAIN, CONTRACTS, COMMON CARRIERS OF GOODS AND PASSENGERS, TELEGRAPH COMPANIES, EQUITY JURISDICTION, TAXATION, CONSTITUTIONAL LAW, INVESTMENTS, &c, &c. BY ISAAC F. REDFIELD, LL.D., CHIEF JUSTICE OF VERMONT. FIFTH EDITION, CAREFULLY REVISED AND ENLARGED. VOL. I. BOSTON: LITTLE, BROWN, AND COMPANY. 1873. Entered according to Act of Congress, in the year 1857, by ISAAC F. REDFIELD, In the Clerk's Office of the District Court of the District of Vermont. Entered according to Act of Congress, in the year 1858, by ISAAC F. KEDF1ELD, In the Clerk's Office of the District Court of the District of Vermont. Entered according to Act of Congress, in the year 1867, by ISAAC F. REDFIELD, In the Clerk's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1869, by ISAAC F. REDFIELD, In the Clerk's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1873, by ISAAC F. REDFIELD, In the Office of the Librarian of Congress, at Washington. T £2415 r \tl3 CAMBRIDGE: PRESS OF JOHN WILSON AND SON. i? I PREFACE TO THE FIFTH EDITION. We have made no change in the arrangement of the work, in this edition, except to place the title of each sep- arate portion of the work on the leaf preceding it, and to number the Parts, and place their titles on the first page of the Table of Contents, as a Summary ; thus enabling any one to see at a glance what the work contains. It will thus be seen that it really embraces the discussion of thirteen distinct topics of law, in each of which is em- braced an analysis of the law, almost as comprehensive and complete as a distinct treatise. The Parts upon Corporations ; Common Carriers of Goods and Passen- gers ; Telegraphs ; Mandamus ; Certiorari, and some others, are complete treatises, and all the Parts embrace every thing pertaining to railways, and much more. The plan of the work is novel, but it seems the only one suited to such a work ; and by striking out nearly all the opinions in the notes, and rearranging to some extent the other portions of the notes, so as to bring them into the same order as if now prepared for the first time, we have saved nearly space enough for the new matter added, and at the same time have been able to have the work come nearer its original ideal — that of giving the 756029 iv PREFACE TO THE FIFTH EDITION. matic analysis of principles in the text, and a com- plete digest of all the cases in the notes — than has ever been possible before. The American opinions found in the notes to the for- mer editions were originally inserted, because they con- Btituted, to Bome extent, the basis of important doctrines, connected with the law of railways, and could not be readily obtained elsewhere by the profession in many por- tions of the country. But now that we are able to fur- nish tin- leading American cases upon the subject in separate volumes, to those who desire to obtain them in thai form, there seems no propriety in longer in- cumbering the pages of our principal work with any of them, however indispensable it might formerly have been. And although many law book-makers have adopted that course, and some of high authority, at an early day, we glad to see that the fashion is going into disuse, as we have long since become convinced it w r as not the best nmde. either in writing or editing law books, and have eliminated as fast as possible all extended opinions from all law treatises with which we have had to do of late. Where an opinion contains the basis of the law upon a particular point, as some of the English cases do, and bl) some few of the American cases, it may as well riven in that form; and when a brief extract from an opinion gives the very point we desire, it comes with more it in that form than any other; but, beyond that, opinions Bhould never be permanently retained in text- books. 'I"h'- additions to the present edition, both in the text and notes, have been very large for the short time since PREFACE TO THE FIFTH EDITION. V the former one, covering about a hundred pages in the work itself, besides the appendix of the latest cases, re- ported while the work was in press. When any late case establishes any new point, it is inserted in the text, and the exact point of all the new cases is given in the notes, when it varies in any particular from those before stated. . We have not the vanity to suppose the work will be found perfect, or complete in all its details. That is scarcely to be expected in any work covering so wide a space. But we believe it contains as much that will be found useful and instructive, both to students and the profession generally, as it would be reasonable to expect in the same space, without such an extreme degree of condensation as greatly to impair both its clearness and completeness. In taking leave of our professional brothers, we beg to assure them how deeply and gratefully we appreciate their uniform kindness and respect ; and our only surprise is, that, in our humble and patient way of daily toil on their behalf, we should have been able to earn so much at their hands. We will not, however, impugn their good sense and discrimination by presuming to doubt its propriety, however difficult it may be for us always to compre- hend it. I. F. R. Boston, Jan. 1, 1873. PREFACE TO THE FOURTH EDITION. ]\ presenting this edition of our first book to the profes- sion, we have to crave the indulgence of an elder brother, in alluding briefly to the origin and history of the work. The book was undertaken at a period when we had it in our power to command considerable portions of time, in every year, for uninterrupted study. The work was, therefore, prepared with great labor and care ; and so carefully printed as to attract special attention abroad on that account. It was everywhere received in a spirit, and with a degree of cordial commendation, both at home and abroad, which the author had scarcely dared to expect. But it was gratifying to feel that his efforts to give the entire law upon every topic he touched, as fully as if a special brief had been prepared upon the particular points, and, as nearly as might be allow- able in the form of successive judicial opinions upon the si vera) subjects, were duly appreciated by the profession, or certainly by those who had leisure and opportunity to exam- ine tip work carefully. 1 hit for some reasons the first two editions did not obtain Ktensive a sale as to become at all remunerative for the very large amount of labor bestowed. This led us to sus- pect that the baldness of our title, " The Law of Railways," might have led the mass of the profession, who were not much engaged in railway litigation, to suppose that our book treated of do other topics. We were convinced that the PREFACE TO THE FOURTH EDITION. vii book was not generally understood to comprehend compact treatises upon Corporations ; Eminent Domain ; Contracts for Construction ; Mandamus ; Certiorari ; Equitable Con- trol of Public Works ; Taxation ; Indictments against Corporations ; Quo Warranto ; Constitutional Questions affecting Legislative Grants ; Investments, Stocks, Mort- gages, Police, Amalgamation, &c, as well as all other mat- ters in the law, more exclusively affecting railways. When the third edition was called for, we resolved to make the treatment of the above topics, and all others in the book, as complete as possible ; and to that end had expended a large amount of labor ; but before the work was more than half through the press, we received an unexpected public appointment abroad, which compelled us to push the first half of the second volume through the press in a few days, and to leave the remaining materials in very judicious hands, to be used as far as needful in completing the volume in proper size; and which, we are happy to say, was exceedingly well done. But the difficulty in knowing precisely what to omit, in our absence, led to the natural result of using the whole ; which swelled the second volume to somewhat un- wieldy proportions ; and presented some matters, which we had originally prepared for other occasions, in a shape not fully assimilated to the present work. By enlarging in the present edition the scope of the work on Common Carriers of Goods and Passengers, and Tele- graphs, so as to embrace the entire range of those topics, and form complete treatises upon those important subjects, and nearly so upon all the subjects treated ; we are now en- abled to omit all matter contained in the third edition not entirely in harmony with the plan of the work. This matter will be published soon, in a separate volume of leading cases and opinions upon the Law of Railways, with extensive notes, as a supplement to the main work, but sold separately to such as may desire it, whether with or without the main work. yiii PREFACE TO THE FOURTH EDITION. A- this edition is but the carrying out of our original pur- rd to the third edition, by perfecting the treat- ment of each topic, so as to embrace complete treatises upon each, and extending the title so as to give some hint of what the book contains; it may be proper to add, that the third edition met with a very extended and rapid sale, so as to prove more remunerative to the author in two years than in the ten preceding years. And as the work seems now to have obtained the very general confidence of the profession at home, and as the author has received many very flattering testimonials in regard to the last edition, while abroad, he trusts no apology will be required for quoting a brief extract from that of the Lord Chief Justice of England, especially as it breathes so much of that cordial fraternal spirit towards hi- American brothers, engaged in the same great field of labor, and which it will be the pleasure of every noble-hearted and cultivated patriot, in this country, to reciprocate. Bis Lordship says, in regard to the Wills and Railways: •• 1 Laving now read the books through, I beg, in offering you my most sincere thanks for your gift, to add the expression of my admiration for the great learning, research, and power of reasoning, displayed in these valuable treatises. They must. I am convinced, prove standard works on the subjects of which they treat, and must prove a very valuable addition to the juridical literature, which, I am happy to think, is common to our two countries. America may indeed be proud of her jurists, who have done so much for the pro- motion ot" legal science." We cannol but feel some well-grounded trust, that the tit edition will be found useful to the general practi- tioner, who desires to have always at hand, in compact form, the synopsis of the law upon the many important topics discussed in the- two volumes. And to that end we have done all in our power to make the book as complete as '!<•• There will, no doubt, be found some errors and PEEFACE TO THE FOURTH EDITION. IX defects, since it is not possible to exclude all errors from so extended and complicated a work, or to have it contain all that every one would most desire. If it shall prove a rea- sonably successful accomplishment of the author's purpose, it will be a sufficient reward for a large amount of labor, through many years, which no faithful book-maker, in the profession of the law, can reasonably expect to have fully compensated in any other mode. I. F. R. Boston, Sept. 1, 1869. PREFACE TO THE FIRST EDITION. This work was undertaken with the purpose of supply- ing, whal seemed to the writer a want, if not a necessity, to the profession in this country; a book upon the law of rail- . which should present, within reasonable compass, and in a properly digested form, the whole law upon the subject, both English and American. No treatise had attempted this. Ami the attempt has confirmed the expectation, that the accomplishment of such an undertaking would be attended with labor and perplexity. It seems desirable that such a work should present every ease which has been decided in both countries, in such a form as to make the point of decision plain and obvious, and at the same time not convert a treatise into a mere digest. A mere treatise, too, upon the principles involved in the sev- eral departments of the law brought under discussion in such a work, would he of little benefit except to the student. This, too, will be found in the approved treatises already published upon these several subjects. On the other hand, a digesi of the cases upon any plan, however comprehen- sive or philosophical might be the analysis, would appear an unsatisfactory labor when we have already so much of the kind. It is the mdcavor of this undertaking to combine the two in Buch a manner as to render the work intelligible, and in- in exposition of the principles involved; and at the Bame time present a thorough analysis and digest of all PREFACE TO THE FIRST EDITION. XI the important cases upon the subject, in such a manner as to enable the reader at once to know the result of all the decisions upon the several topics discussed. The plan of the work is mainly new, and the effort has been to render it natural, simple, and comprehensive. The manner of arranging the heads to the several subdivisions has been adopted chiefly with a view to enable the profes- sion to find at once whatever the work contains upon any topic or question. How far the design of the author has been accomplished, he submits to the indulgent judgment of his professional brethren who have hitherto shown him so much forbear- ance. In justice to himself, perhaps it should be here mentioned, that the work has been prepared under some disadvantages, from the constant pressure of official duties which could not be required to accommodate themselves, in any respect to the demands of this subordinate labor. It has thus happened, that, although a considerable time has elapsed since the work was seriously taken in hand, it has of necessity been done, to a great extent, at such intervals, more or less extensive, as circumstances would allow the writer to command, and always in haste. If some mistakes should be discovered, therefore, and some graver faults even, it is hoped that the profession will bear with them ; with the assurance that, if the work should be found of sufficient importance to require another edition, they will be corrected ; and that, if no such demand should be made, the work' has probably received as much labor as it deserves. I. F. R. Windsor, Vt., Nov. 20, 1857. SUMMARY OF CONTENTS. PART I. The Law of Preliminary Associations 5-52 PART II. The Law of Corporations 53-229 PART III. The Law of the Right of Way; Eminent Domain, etc. . . 231-400 PART IV. The Law of Contracts as to Railway-Construction ; Tolls, etc. 401-469 PART V. The Law of Responsibility for Fires ; for Injuries to Do- mestic Animals; for Fences 470-524 PART VI. The Law of Agency as to Railways 525-655 PART VII. The Law of Mandamus axd other Prerogative Remedies . . 656-706 Appendix of Later Cases 707-719 Regulation of Traffic on Interstate Railways by Congress 721-729 ANALYSIS OF CONTENTS. \CF" The citations to other portions of the work are thus expressed, § — pi. — n. — , and the §§ are placed in the inner margin of the pages, for convenience of reference. The paging of the fourth edition is preserved in this edition at the bottom of the page. CHAPTER I. INTRODUCTION. PAGE 1. Origin of railways in England 1, 2 2. First built upon one's own land, or by special license from the owner . . 2 3. Questions in regard to private railways 2 4. Railways in America, public grants 3 5. Use of steam-power on railways 3 6. The franchise of a railway not necessarily corporate nor unassignable . . 4 PART I. THE LAW OF PRELIMINARY ASSOCIATIONS. CHAPTER II. PUBLIC RAILWAYS AS CORPORATIONS. — PRELIMINARY ASSOCIATIONS. SECTION I. MODE OF INSTITUTING RAILWAY PROJECTS. 1. Subscribers' Associations in England 7 2. Subscribers bound by subsequent charter 7, 8 3. Issue and registry of scrip certificates 8 4. Original subscriber liable to unregistered purchaser 8 5. Holders of scrip entitled to registry 8, 9 6. Preliminary associations not common in this country 9 7. Petitioners for incorporation file plan and surveys 9, 10 8. Present English statutes 10 9. Preliminary associations may be registered 10 10. Not now held responsible as partners in England 10 KV i AN UiYSIS OF CONTENTS. SEI TION II. I,,, PROMOTERS tfOl BINDING AT LAW UPON THE COMPANY. untry promoters only bind themselves and their associates . . 11, 12 . re nol enforceable by company 12, 13 a decree in equity setting up the contract, the com- . ; I to have adopted it 13 SECTION III. R.8 rO THE PRELIMINARY ASSOCIATION INTER SESE. ■ f directors limited by terms of subscription 13,14 on not binding until preliminaries arc complied with 14 how far controlled by oral representations of directors ... 14 iused from paying calls by contract of directors ... 14 cepl by terms of agreement 14,15 . terally make provision for expenses 15 ■ obtains shares without executing the deed not bound to con- tribute 15 nil i icrship subsists between subscribers . . . 15-17 SECTION IV. PRAI I- OF THE PROMOTERS ADOPTED BY THE COMPANY. lility may lie transferred with assent of creditors, but not unless that ■ table 16-18 rovisional company to contract limited by statute . . . .17,18 SECTION V. OP Till. PROMOTERS MAY BE ADOPTED BY THE COMPANY. me the benefit without the burden 18 SECTION VI. '• I ' N llll. PROMOTERS AND OPPOSERS OP A BILL FOR THE • II \UI l.i: OF A RAILWAY. 11 ■ - numerous 19 ipinion in the case of Vauxhall Bridge Col '.'.'.'.'. ! 19-21 section vn. COHTRA< I- OF nil, PROMOTERS KNFORCED IN EQUITY. . Grand Junction Railway 22-24 SECTION VIII. " THE PROMOTERS BINDING UPON THE COMPANY AT LAW. in 25 26 ANALYSIS OP CONTENTS. XVU SECTION IX. WHAT CONTRACTS BETWEEN THE PROMOTERS OF RAILWAYS AND OTHERS WILL BE ENFORCED, EITHER IN LAW OR EQUITY, AGAINST THE CONTRACTING PARTIES OR THE COMPANY. 1. Contract to take land of opposing party 26,27 2. Contract prejudicial to the public 27 SECTION X. COURTS OF EQUITY WILL ENFORCE CONTRACTS WITH THE PROMOTERS. 1. Bona fide contract, not evading statute, valid 27, 28 n. 8. Statement of English cases 28-40 SECTION XI. SUCH CONTRACTS ENFORCED WHERE THE RAILWAY IS ABANDONED. 1. Where a certain sum is to be paid to quiet opposition 29-35 2. Merely provisional contracts not always enforced 36-40 SECTION XII. PRACTICE OF COURTS OF EQUITY IN DECREEING SPECIFIC PERFORMANCE. 1. Mutual arrangements protected in chancery 41 2. But decisions are conflicting. In cases of doubtful right, plaintiff is remit- ted to common law remedies 41, 42 n. 2. Statement of cases 41-45 SECTION XIII. SPECIFIC PERFORMANCE IN COURTS OF EQUITY. Object of courts to compel good faith when a definite contract is made . . . 43-46 SECTION XIV. COURTS OF EQUITY MAY RESTRAIN A PARTY FROM OPPOSITION OR PETITION IN PARLIAMENT. 1. Such cases not common in 1 practice 46, 47 2. Such cases not readily recognized 47 SECTION XV. CONTRACTS TO WITHDRAW OPPOSITION TO RAILWAY PROJECTS AND TO KEEP THIS SECRET, AGAINST SOUND POLICY, AND WOULD SEEM TO BE ILLEGAL. 1. Principle of foregoing decisions obscure 47, 48 2. Not adopted in this country unless terms inserted in charter 48, 49 3. Recent change of views in English courts 49 3-5. Statement of late .case in which principle of Edwards v. Grand Junction Railway is doubted 49 6. Act of incorporation should not be varied by oral testimony 49, 50 YOL. i. b I xv iii ANALYSIS OP CONTENTS. t 8 to quiet opposition not favored in this country 50 ,nd American decisions r\ A ,••,*:, 'j ' eo f legislature not exposed to be misled o^ I 'ART II. THE LAW OF CORPORATIONS. CHAPTER III. RAILWAYS AS CORPORATIONS. SECTION l. ORIGIN AM> DIFFERENT CLASSES OF CORPORATIONS. porations dates very early 55 2. The different kinds of corporations, sole and aggregate 55,56 8. This work treats chiefly of aggregate joint-stock corporations . .... 56 rporationB are eitl iastical or lay 56,57 are divided into eleemosynary and civil corporations 57 porations are public or private 57 ations where stock is private property 57 iic corporations where stock is owned and management retained by the 58 ect tin' private character of a corporation that the State or the United States own a portion of the stock 59,60 tinction between corporations and partnerships. The latter defined 60, 61 11. Farther definition of the distinction between corporations and partnerships 61 SECTION II. now CORPORATIONS ARE CREATED. 1. Corporations created by grant <>t' the sovereignty. This may be proved by implication or by presumption 62 - Th( v may establish corporations hy general act, or by delega- tion or inoculation 62, 63 • forms of defining a corporation 63 a of corporations restricted to State creating them . . 63 irs and agents in other States 63,64 d. 10. But cannot properly transfer its entire business to another State . . . 64 ited at one place cannot establish a branch at another ... 64 SECTION III. Till CONSTITUTION "i CORPORATIONS AND MODE OF PROOF. oe of the different sense of the term constitution, as applied to cor- ' gg may be composed or constituted . ....'.'.' .' .'■ 65 n illustrated more iii detail 65 66 •Hon .,f legislative, electorial, and administrative assemblies not 66 i only act by its name. Subject discussed' .' .' .' .' '. '. 66 "\ ANALYSIS OP CONTENTS. xix 5. Any deviation from the name allowed, if the substance and sense be pre- • served 67 6. Courts of equity will not restrain corporations from applying for enlarged powers 67 7. Change of constitution. Effect of change of name 67,68 8. Courts of equity will enjoin a new corporation from assuming the name of one of established credit 68 9. Promissory note payable to A. B., treasurer of a corporation, may be sued in the name of A. B. Promissory note for subscription waives condi- tion • • • 68 10. Corporation may be estopped to deny its existence. How described . . 68, 69 11. How the existence and nonexistence of corporations may be proved . . . 69 12. Party to written contract, payable to corporation, cannot deny corporate existence 69 13. Proof of corporation in fact sufficient in all cases 69 CHAPTER IV. PROCEEDINGS UNDER THE CHARTER. SECTION I. ORGANIZATION OF THE COMPANY. 1. Conditions precedent must be performed 70 2. Stock must all be subscribed, ordinarily 71 3. Charter, location of road, condition precedent 71 4. Colorable subscriptions binding at law 71, 72 5. Conditions subsequent, how enforced 72 6. Stock distributed according to charter 72 7. Commissioners must all act 72, 73 8. Defect of organization must be pleaded specially 73 9. Question cannot be raised collaterally 73 10. Records of company, evidence 73, 74 11. Membership how maintained 74 12. By subscription and transfer of shares 75 13. Offers to take shares not enforced in equity, and may be withdrawn ... 75 SECTION II. ACCEPTANCE OF CHARTER, OR OF MODIFICATION OF IT. 1. New or altered charter must be formally accepted 75, 76 2. Subscription for stock sometimes sufficient 76 3. Inoperative unless done as required 76 4. Assent to beneficial grant presumed 76 5. Matter of presumption and inference 76 6. Organization or acceptance of charter may be shown by parol .... 76 7. Corporators assenting are bound 76, 77 8. Charter subject to recall until accepted 77 SECTION III. ORDINARY POWERS. CONTROL OF MAJORITY. 1. Ordinary franchises of railways 77,78 2, 3. Majority control, unless restrained 78 4. Cannot change organic law 78, 79 5. Except in the prescribed mode 79 6. Cannot accept amended charter 79 7. Or dissolve corporation 79 xx ANALYSIS OF CONTENTS. nlarged powers ■•■■••■•• ••.;*•• • JJJ • , quitj "ill ii"! restrain the use oi their funds for that purpose . HO ., n canal into railway 80 B losl by acquiescence 81 i i our plaintiff) fatal 81 .i public trus! 81 » 82 n tamed l>v rival interest °z \ will aot restrain the majority l'rom winding up unless for 82 SECTION IV. MEETINGS OF COMPANY. 1 M ial and general 83 musl be notified as required 83 ind important matters, named in notice 83, 84 al meetings need not name business 84 turned meeting, still the same 84,85 - by meetings, by directors, by agents 85 esume meetings held at proper place 85 - 1 rerj shareholder may vote, but not by proxy 85 eral owner 3 entitled to vote and act as member .... 85,86 - icl as owners 86 i 1 ; iration issue stock in the name of B. to secure a debt, which it to A., no one can vote upon the same 86 i collateral security cannot be changed 86 SECTION V. ELECTION OF DIRECTORS. I. 6 general meeting, or upon special notice 87 nay restrain their authority 87,88 apany bound by act of directors, defacto 88 l Act of officer defacto, binds third persons 88,89 SECTION VI. MEETINGS OF DIRECTORS. I All should be notified to attend 89 - A , timed meeting still the same '.'.'.! 90 urd not required to be kept full '.'.'. 90 ' Usurpai >ns tried by shareholders or courts ...... '. '. '. '. '. 90 11 often excuse irregularities .'.'.'.'. 90 91 lajority valid ' qi I proceedings, evidence . . , 91 92 lion must be taken at a formal meeting . '. '. '. '. \ . \ . . '92 SECTION VII. "1 M.IFICATION OF DIRECTORS. ontractor and director. 09 •-' May be their banker and director . qo lirector by virtue of stock mortgaged '. 4 J {; " ,kr -•""■ "ill not vacate office qq pelted to fill vacancies in board 93 ANALYSIS OF CONTENTS. XXI CHAPTER V. PREROGATIVE FRANCHISES. 1. Control of internal communication in a state a prerogative franchise . . 94 2. Such a grant confers powers pertaining exclusively to sovereignty, as tak- ing tolls, and the right of eminent domain 94 CHAPTER VI. BY-LAWS AND STATUTES. SECTION I. POWER OF MAKING BY-LAWS OR STATUTES. 1. May control conduct of passengers 95 2. Must be reasonable and not against law 95, 96 3. Power may be implied, where not express 96 4. Not required to be in any particular form unless by special provision . . 96 6. Model code of by-laws framed by board of trade in England 97 7. Company may demand liigher fare if paid in cars 98 8. Public statutes control by-laws 98, 99 9. Cannot impose penalty 99 10. Cannot refuse to be responsible for baggage 99 11. Statutes operate upon members from promulgation ; upon others, from knowledge of the same 99 12. Regulations, for accommodation of passengers, must yield to the right of others to be carried 99, 100 SECTION II. BY-LAWS REGULATING THE USE OF STATIONS AND GROUNDS. 1. May exclude persons without business 101 2. May regulate the conduct of others 101 3. Superintendent may expel for violation of rules 101,102 4. Probable cause will justify 102 5. In civil suit must prove violation of rules 102-104 6. Regulation of stations and traffic by means of injunction. Equality of charges 104 7. Through trains will not be required unless reasonably necessary for public accommodation 104 8. Mode of enforcing search warrants in freight stations 104 9. The right of railway companies to exclude persons having no business from their stations 104, 105 10. Company bound to maintain platforms about passenger stations in safe condition 105 SECTION III. BY-LAWS OR RULES, AS TO PASSENGERS. 1. By-laws as statutes 106 2. As mere rules, or regulations 106, 107 3. Requiring larger fares for shorter distances 107 4. Requiring passengers to go through in same train 107-110 n. 5. Discussion of cases in point .107-110 XX 11 ANALYSIS OF CONTENTS. nger by company's servants m ompanj responsible -^ 7 i • ny liable for act of servant ' ' ' ' 111 112 iust be published * ' ,,« luding merchandise from passenger trams . ' 19 1U nation between fares paid in cars and at stations 114 of force 114 11 s . may enforce rules of compaoy • ■ •. • ■ • • • • X1 *> "£ , , , ale againsl pass, ager, when in fault themselves 115 f the company to tariff of fares how presumed 110 ound ofcolor • • • • * ,ns and duties of street-railways 110,110 CHAPTEB VII. CAPITAL STOCK. SECTION T. LIMITATIONS. - of shareholders 11? not the limit of property 117 ... unless on special license of the legislature 117 SECTION II. HDITIONS PRECEDENT, WHICH THE 1'UBLIC AUTHORITIES MAT ENFORCE. I Stock, if limited, must all be subscribed 118 ments at time of subscription 118, 119 section m. SHAKES PERSONAL ESTATE. ional estate' at common law 119, 120 • growing out of land, or goods, wares, and merchandise . . 120 ated such shares as real estate 120, 121 CHx\PTER VIII. TRANSFER OF SHARES. SECTION I. RESTRICTIONS UPON TRANSFER. rter to be observed 122 ! directory merely 123, 124 -•'II. -in restrictions void 121,125 1 upon the indebtedness of the owner is valid 125,' 126 implied ' 126 •' w < >- wrongfully refused, vendee may recover value of the 126 ANALYSIS OF CONTENTS. XXiii SECTION II. CONTRACTS TO TRANSFER STOCK. 1. Transfer under English statutes. Registered companies 127 2. Contracts to transfer stock valid, where bona fide, 127, 128 3. Vendor must have the stock, when due 128 n. 3. Vendor must procure the consent of directors, where requisite . . . 127, 128 4. Eorce of usages of stock exchange 129, 130 5. Company will reform their registry at its peril 130 6. 10. Company may compel one to accept shares on contract 131, 132 7. Stock standing in joint names belongs to survivors 131 8. Mode and effect of correcting registry 131 9. If the company vary the contract, specific performance will be denied . . 131 10. Closing contracts by offer and acceptance 131, 132 11. Eorm of transfer. Two may join in one transfer 132 SECTION III. INTERVENING CALLS OR ASSESSMENTS. 1. Vendor must pay calls, if that is requisite to pass title 132, 133 2. Generally it is matter of construction and inference 133 n. 2. Calls paid by vendor after executing transfer 133, 134 SECTION IV. TRANSFER BY DEED IN BLANK. 1 and 2. Blank transfer formerly held invalid in England 134, 135 3. Rule different in America 135 4. Deed executed in blank and filled by procuration valid , 135 SECTION V. SALE OF SPURIOUS SHARES. — RULES OF STOCK EXCHANGE. 1. Vendor, who acts bona fide, must refund money 136 3. No implied warranty in such case, which will entitle the vendee to special damage 137 4. and n. 4. Rule of the stock-exchange, made after the sale, not binding upon parties. How far such rules bind parties 137, 138 n. 1. Discussion of the extent of implied warranty 136 SECTION VI. READINESS TO PERFORM. CUSTOM AND USAGE. 1. Vendor must be ready and offer to convey 138 2. Vendee must be ready to pay price ]38 3. General custom and local usage 139-141 4. The party taking the initiative must prepare the writings 141 n. 3. Oral evidence to explain memoranda of contract 139, 140 SECTION VII. DAMAGES. SPECIFIC PERFORMANCE. 1. Damages, difference between contract price and price at time of delivery . 142 2. Equity will decree specific performance of contract for sale of shares. . 142, 143 vuv \N IlLYSIS of contents. SECTION \ III. gp] OIFH I'l RFOBMANCE. mance de< i the sendee ||| early cases *** - may transfer them • • • ■ • i*j? ific performance where not in the power of the party . 14D SECTION IX. MM -ll I IM I CO INDEMNITl AGAINST FUTURE CALLS. . 146 . 146 146, 147 147, 148 . 149 . 150 150 entitled to indemnity, on general principles .... - : ited in regard to railway shares .... ed jetoi kholders, for the debts of the company nsible owner must respond to all responsibilities . . i Bonally !■ i> entitled to redeem on restoring the shares as stipulated in \\\> deed SECTION X. I I 1ST PRACTICES TO RAISE THE PRICE OF SHARES. equity will vacate sales so procured 150,151 Extent of redress 151-153 i Dividends declared when none are earned will vacate sales and sub- ra to indictment 153 iv will not interfere where vendor acted bona fide,, unless the shares 153, 154 mpany liable in tort to party injured 154 a I 11 - Purchasing Bhares in another company considered .... 154,155 purchaser of shares fraudulently issued acquires same rights as 155 SECTION XL LIABILITY "I '"MPANY FOR NOT REGISTERING TRANSFERS. pany liable to action 155, 156 ompelled to record transfers by mandamus 156 record i -tgages of shares 156,157 ue 157 in/, most appropriate remedy 157, 158 158 ancellation of an unregistered transfer will not affect the 158 SECTION XII. w II l.s 0AXL8 BECOME PERFECTED. when the Him i< assessed, notice may be given afterwards 159' proper authority to make calls .' 160 ■* J otice and of proof .... ^ ANALYSIS OF CONTENTS. XXV SECTION XIII. TRANSFER BY DEATH, INSOLVENCY, OR MARRIAGE. 1. Mandamus lies to compel the registry of successor 161 2 and 8. In case of death personal representative liable for calls .... 161, 162 4. Notice requisite to perfect the title of mortgagee 162 5. Stock in trust goes to new trustees 162 6. Assignees of insolvents not liable for the debts of the company .... 162 7. Effect of marriage of feme sole 162 SECTION XIV. LEGATEES OF SHARES. 1. Entitled to election, interest, and new shares, but not to bonds .... 163 2. Shares owned at date of will pass, although converted into consolidated stock 163 3. Consolidated stock subsequently acquired will not pass 163 SECTION XV. SHARES IN TRUST. 1 and 2. Company may safely deal with registered owner ....... 164 3. But equity will protect the rights of cestuis que trust 164 4, and n. 2. Discussion of the rights of cestuis que trust in stock certificates . 165, 166 SECTION XVI. THE EXTENT OF TRANSFER REQUISITE TO EXEMPT FROM CLAIM OF CREDITORS. 1. How transfer of stock perfected as to creditors 165,166 2. Reasonable time allowed to record transfer 166 3 and 4. In some of the states no record required 166, 167 n. 3. Question further considered 166, 167 CHAPTER IX. ASSESSMENTS OR CALLS. SECTION I. PARTY LIABLE FOR CALLS. 1. The party upon the regfster liable for calls 168 2. Bankrupts remain liable for calls 168, 169 3. Cestuis que trust not liable for calls in law or equity 169, 170 4. Trustee compelled to pay for shares 170 5. One on registry may show his name improperly placed there 170 SECTION II. COLORABLE SUBSCRIPTIONS. 1. Colorable subscriptions valid 170, 171 2. Directors may be compelled to register them 171,172 8. Oral evidence to vary the written subscription inadmissible 172, 173 xxv | ANALYSIS OP CONTENTS. , I R dence although not made in the time prescribed 173 , nii.il subscriptions void issued to secure debt of company lio HON III. MODE "I i M OBCING PAYMENT. lefinite stock, raises no implied promise to pay the l 1/4 > *'" ti subscription implies a promise to pay assessments. Tfeiture a cumulative remedy 175,176 ng new stock will bar a suit against subscriber, qucere . . 177,178 it": ■ 1'° uirements of the charter and general laws of the state, must be L in declaring forfeiture of stock 178,179 e must name place 179 s nol affected by misconduct of directors in other matters 179, 180 lust be regular at date 1^0 will estop the party, often 180 1" of shares 180 11. ; sthe declared void, before others can be made to supply ilace 180 SECTION IV. ■ REDITOBS MAY COMPEL PAYMENT OF SUBSCRIPTIONS. ipany compelled to collect of subscribers by mandamus 181 \ iunt due from subscribers, a trust fund for the benefit of cred- 181 own the stock it will be the same 182 7. A diversion of the funds from creditors is a violation of contract on the part of the company, and a state law authorizing it invalid . . . 182 leral doctrine above stated found in many American cases . 182 10. Judgmen may bring bill in equity 183 railways liable as partners, for expenses of procuring charter 183 1 — Railway company may assign calls before due, in security for bona Jide debt. No notice required to perfect assignment against attachments or 183, 184 SECTION V. CONDITIONS PRECEDENT TO MAKING CALLS. edent must be performed before calls ........ 184 era! or subsequent conditions not 184-188 must all be subscribed before calls '. . 188,189 i e defined by the company as in the charter . . . . ' 189 I] - tlOl tO I e reckoned 190 repeal conditions precedent 190 191 ments cannot be exceeded for any purpose .....'. ' 191 to limit stock, corporation may ...... '. '. 191 II in amount of stock ....*.".'.' 192 SECTION VI. I MAI BE BADE PAYABLE BY INSTALMENTS . . . 192,193 ANALYSIS OP CONTENTS. XXV11 SECTION VII. PARTY LIABLE FOE CALLS. 1. Subscribers liable to calls 193 2 and 6. What constitutes subscription to a capital stock 193, 195 3. How a purchaser of stock becomes liable to the company 194 4. One may so conduct as to estop him from denying his liability . . . . 194. 5. The register of the company evidence of membership 195 6. Subscriptions must be made in conformity to charter 195 7. Transferee liable for calls. Subscriber also in some cases 195 8. Original books of subscription primary evidence 195 9. If lost secondary evidence admissible 196 10. What acts will constitute one a shareholder 196 11. May take and negotiate or enforce notes for subscriptions 196 12. But note fraudulently obtained not enforceable 196 13. Subscriptions as executor distinct contracts from those in private capacity 196 SECTION VIII. EELEASE FROM LIABILITY FOR CALLS. 1 and 2. Where the transfer of shares, without registry, will relieve the pro- prietor from calls 197 3. Where shares are forfeited by express condition, subscriber no longer liable for calls 198 4. Dues cannot be enforced which accrue upon shares after they were agreed to be cancelled 198 SECTION IX. DEFENCES TO ACTIONS FOR CALLS. 1. Informality in organization of company insufficient 199,200 2. Slight acquiescence estops the party in some cases 200 3 and 4. Default in first payment insufficient 200-202 5. Company and subscriber may waive that condition 202 6. Contract for stock, to be paid in other stock 203 7 and 8. Infancy. Statute of limitations and bankruptcy 204,205 9. One commissioner can give no valid assurance as to the route 205 10. What representations matters of opinion 205, 206 SECTION X. FUNDAMENTAL ALTERATION OF CHARTER. 1. Will release the subscribers to stock 206 2. Railway company cannot purchase steamboats 207 3. 7. Majority may bind company to alterations, not fundamental . 207-209, 211 4. Directors cannot use the funds for purposes foreign to the organization . 209 5. 9. But where the legislature or the directors make legal alterations in the charter, or the location of the road, it will not release subscribers 209, 210, 212 6. But if subscriptions are made upon condition of a particular location, it must be complied with 210, 211 8, 9. Consideration of subscription, being location of road, must be substan- tially performed 211, 212 10. Express conditions must be performed 212, 213 11. How far alterations may be made without releasing subscribers .... 214 12. It may be done where such power is reserved in the charter 214 xxv ;ii ANALYSIS OF CONTENTS. wbTcriptions no, released by subsequent ones in lam. . . . ,,„„„, emigrate into another state i^en by legislative per representative liable to same extent as subscriber 214 ' .! i i,, • vnl»...iii\ liotli parties ■ • • ■ ' > I ,o construction of highways may be enforced at the suit of^ ^ performance on the ground ' ^ ; ,„;, in „„. fi nal decree'make the price a charge on the land eclared al first CHAPTER XI. KM I MAT DOMAIN. SECTION I. G BNEK \I. PRINCIPLES. 1 Definition of the right |45 on ,: : ( 'i \ attribute of sovereignty ' T,,L ignition ^47 nutations upon its exercise £|7 principally in th< • j™ mpensation -■*>> -™ f*° and 11. Its exercise in rivers, above tide-water -^48 SECTION II. TAKING LANDS IN [NVITUM. nit requisite 249 ation must be made 250 sequential damages 250 • Mich liability 250 strictly construed 250, 251 iwer to take lands 251, 252 courts of equity 252 ruction in American courts 252,253 astruction 253 I by company 253 rani 254 12 l)i the House of Lords 254 SECTION III. DITIONS PRECEDENT. ' must be complied with 255 d in petition 255, 256 i impany 256 ition in the land office is notice to subsequent purchasers . . 256 edand confirmed by the court the owner is en- n 256 ■ the land 256, 257 i- payable in land without compensation, a court of equity will ; Hunt 257 ANALYSIS OF CONTENTS. XXXI SECTION IV. PRELIMINARY SURVEYS. 1. May be made without compensation 258 2. Company not trespasser 258 3. For what purposes company may enter upon lands 258, 259 4. Company liable for materials 259 5. Right to take materials 259 6 and 7. Location of survey 260 SECTION V. POWER TO TAKE TEMPORARY POSSESSION OP PUBLIC AND PRIVATE WATS. 1. The railway company may take possession of public or private ways, in building their works. Responsibility 260 2. Remedy under the statutes, unless special damage 260 3. Party excavating highway in building sewer and having restored' it, no further responsible 261 SECTION VI. LAND FOR ORDINARY AND EXTRAORDINARY USES. 1. By English statute may take land for all necessary uses 261, 262 2. Companies have the same power here 262 3. So also of companies connecting at state lines 262, 263 SECTION VII. TITLE ACQUIRED BY COMPANY. 1. Company have only right of way 264 2. Can take nothing from soil except for construction 264, 265 3. Deed in fee simple to company 265 4. For what uses may take land 266, 267 5. Right to cross railway, extent of 267 6. Conflicting rights in different companies 267 7. 8. Rule in the American states 267, 268 9. Right to use streets of a city 268 10. Law not the same in all the states 268, 269 11. Rule in Massachusetts 269, 270 12. 13. Land reverts to the owner 270 14. True rule stated 270, 271 15. Conditions must be performed 271 16. Further assurance of title 271 17. Condemnation cannot be impeached 271 18. Where public acquire fee, it will never revert to grantor 271 SECTION VIII. CORPORATE FRANCHISES CONDEMNED. 1. Road franchise may be taken : 272 2. Compensation must be made ". ' 272, 273 o. Railway franchise may be taken 273 4. Rule defined 273 5. Constitutional restrictions 273, 274 xxx ii ANALYSIS OF CONTENTS. ■ well defined 274 7. Must be exclusive in tonus - Legislative discretion 274 274 i compared 274, 275 eminent domain 275 at, a subordinate franchise 275 nnot create a franchise, above tlie reach of eminent domain 276 iy apply streets in city to any public use ; . 276 impensation in such cases, to the owner of the fee, converting canal into railway 5276, 277 SECTION IX. COMPENSATION. MODE OF ESTIMATING. era! inquiry simple 277 2. Remote damage and benefits not to be considered 277 eral rule of estimating compensation 277,278 ■). Prospective damages assessed 278 .'. [n some spates value "in money" is required 279 and benefits cannot be considered in such cases . . . 279-281 - statute 281 '.•. Farm accommodations 282 efits and damage, if required, must be stated 282,283 n. 18. Course of the trial in estimating land damages 282.283 es not indispensable to be stated 283,284 or land statutory privileges must be stated to be secured . . 284 s of doubt referred to experts 284 •revisions as to crossing streets only permissive 284 1'.. In an award of farm accommodations, time of the essence of the award . 284 SECTION X. MODE OF PROCEDURE. l Legislature may prescribe 285 •J. Must be upon proper notice 285,286 mal exceptions waived, by appearance 286 A. Unless exception is upon record 286 . those in interest 286 l tie maj be examined 286,287 7. Plaintiffs must show joint interest 287 . may find facta and refer title to the court 287 1 in i erdict 287 finding on each claim 288 '•■nut interests 288 12. Whal evidenci nl 288 A value of land w 288 289 nion of witnesses 290 my of experts . 290 291 acapable of description 291 ...'.'.'.'.'.'. 292, 293 293 293 I failing must pay costs * \ 293 21. < •.'juror- . v . . 294 proceedings 294 i bt will not lie on conditional report \ 294 .round of setting aside verdict ........ 294 ten of practice ' 295 296 ee required in order to give jurisdiction . . ' '296 -V Interest on value from time of taking 296 ANALYSIS OF CONTENTS. XXXlii SECTION XI. THE TIME COMPENSATION TO BE MADE. 1. Opinions conflicting 296 2. Chancellor Kent's definition 297 3. That of the Code Napoleon 297 4. Most state constitutions require it to be concurrent with the taking . . . 297 5. English cases do not require this 298, 299 6. Adequate legal remedy sufficient 299-301 7. Where required, payment is requisite to vest the title 301 8. Some states hold that no compensation is requisite 302 SECTION XII. APPRAISAL INCLUDES CONSEQUENTIAL DAMAGES. 1. Consequential damage barred 302, 303 2. Such as damage, by blasting rock 303 3. But not where other land is used unnecessarily 304, 305 4. But loss by fires, obstruction of access, and cutting off spi'ings, is barred . 305 5. Loss by flowing land not barred 305,306 6. Damages, from not building upon the plan contemplated, are barred . . 306 7. Special statutory remedies reach such damages 307 8. Exposure of land to fires 307, 308 9. No action lies for damage sustained by the use of a railway 309 SECTION XIII. ACTION FOR CONSEQUENTIAL DAMAGES. 1. Statute remedy for lands "injuriously affected " 309,310 2. Without statute not liable to action 310 3. Are liable for negligence in construction, or use 311, 312 4. Statute remedy exclusive 312 5. Minerals reserved 312 6. Damages for taking land of railway for highway 313 7. Compensation for minerals, when recoverable 313 SECTION XIV. RIGHT TO OCCUPY HIGHWAY. 1. Decisions conflicting 314 2. First held that owners of the fee were entitled to additional damages . . 314 3. Principle seems to require this 315-317 4. Many cases take a different view 317 5. Legislatures may and should require such additional compensation . . . 318 6. Courts of equity will'not enjoin railways from occupying streets of a city . 318 7. Some of the states require such compensation 319, 320 n. 11. All do not. But the English courts, principle, and many of the state courts, do require it, as matter of right 320-322 8. Recent decisions upon the right to occupy the highway . . . ... 321, 322 1. The decisions in the state of New York require compensation to the owner of the fee 322, 323 2. Distinction between streets of cities and highways in the country . . . 323 3. Legislature may control existing railways 323 4. In Ohio the owner of the fee may claim indemnity against additional injury 323, 324 5. True distinction, whether the use is the same 324 vol. i. c XXZiv ANALYSIS OF CONTENTS. ! | e present Inclination seems to be to require additional compensation for ' railway in highway 324 i the opposite direction. Judge Ellsworth's opinion . . . . 324,325 B I xplanation oi the apparent confusion 325 permanenl erections made in Btreet, compensation must be made __ 325 10 Rights of land-owners as to obstructing railway 3 - _'">, 326 Recent cases in N<« York, property rights of the company . 326-328 lemands reasonable protection 32s, 329 slature have power to impose a permanent burden upon streets . 329 tuned as matter of construction 329 I D( iniform. Generally held that street railway franchise exists in the easement for the highway. Analogy of steam roads .... 329 • .1 t increase the servitude of the highway .... 329,330 :. and treated, us a portion of the highway . . . 330 v or franchise ol street railways, exclusive, as to passenger traffic 330 point further illustrated •. . . 330,331 n far the legislature may effect the exclusiveness of this franchise . . 331 11. \\ nsation is required, no abridgment of right implied . . . . 331 ■ and property must remain subject to legislative and munici- pal control 331, 332 llow additional land-damages for change of grade of the 332 14. This not demandable, unless the change is required for something in addi- tion to highway, or unless given by special statute 332, 333 16-19. Summary of the argument under this head 333 SECTION XV. CONFLICTING KIGIITS IN DIFFERENT COMPANIES. 1 l: ulway company subservient to another, can only take of the other land enough for its track 334 •J. When- do apparent conflict in route, first located acquires superior right . 334 SECTION XVI. RIGHT TO BUILD OVER NAVIGABLE WATERS. 1. Legislature may grant the right 335 irian proprietor owns only. to the water 336 he water subservient to public use 337 islative grant paramount, except the national rights 337 ii flats where tide ebbs and flows . 338 341 • adjoining owners in Massachusetts .'.'.. '341 7. Railway grant to place of shipping . . '. . 341 ncipal grant carries its incidents '.'.', 341 a harbor includes necessary erections ' 341 342 10,11 » held navigable in this country .......... '342 it off from wharves is " injuriously affected " '. . . . . 342 343 ress infringed creates a nuisance. Party specially ' injured m ition ... 343 Hampshire ' 040 " ;| nuisance .......... 343 344 - applied to use oJ railway ........... ' 344 SECTION XVII. " l: -" : " ""'• '" BTEBAM8 BY COMPANY'S WORKS. m, witl, out compensation . Q44 ny liable for defective construction . ...'.'..['. ' ' 345 ANALYSIS OF CONTENTS. XXXV 3. So also if they use defective works, built by others 345 4. Company liable to action, where mandamus will not lie 346 5. Company liable for defective works, done according to their plans . . . 346 6. When a railway " cuts off" wharves from the navigation 346, 347 7. Stream must be restored and maintained 347 8. Company cannot cast surface water on adjoining land, except from strict necessity 347 9. Public company exceeding their powers, liable to an action 347 10. In such cases courts of equity will relieve by injunction 347, 348 SECTION XVIII. OBSTRUCTION OF PRIVATE WATS. 1 . Obstruction of private way matter of fact, need not be illegal 348 2. Farm road on one's own land, not private way 348 3. But railway may lawfully pass along public street 349 SECTION XIX. STATUTE REMEDY EXCLUSIVE. 1. Eemedy for land taken, exclusively under the statute 349 2. But if company do not pursue statute are liable as trespassers. Liable for negligence also 350, 351 3. Courts of equity often interfere by injunction 351 4. Important case in the House of Lords 351, 352 5. Right at law must be first established 352 6. Where statute remedy fails, common-law remedy exists 352 7. The general rule adhered to in America 352 8. Company adopting works responsible for amount awarded for land dam- ages . 352, 353 SECTION XX. LANDS INJURIOUSLY AFFECTED. 1. Obstruction of way, loss of custom 353-355 2. Equity will not enjoin legal right 355 3. Liable for building railway, so as to cut off wharf 355 4. Not liable for crossing highway on level 355, 356 5. English statute only includes damages by construction 356 6. Equity will not enjoin a doubtful claim 356 7. Damages unforeseen, at the time of the appraisal, may be recovered, in England 356,357 8. Injuries to ferry, and towing-path, compensated .• . . 357,358 9. 10. Remote injuries not within the statute 358 11. Damages compensated, under statute of Massachusetts 358, 359 12. Damages not compensated, as being too remote 359 13. For negligence in construction, remedy at common law 359 14. Or neglect to repair 359 15. Recovery under the statute, &c 360 16. Possession by railway, notice of extent of title 360 17. Railways have right to exclusive possession of roadway 360 SECTION XXI. DIFFERENT ESTATES PROTECTED. 1. Tenant's good- will and chance of renewal protected 361 2. Tenants entitled to compensation for change of location 362 3. Church property in England, how estimated 362 xxxv i ANALYSIS OF CONTENTS. i Tenant not entitled to sue, as owner of private way 362 ould sue for compensation . • • • ' „„„ d lessee both entitled to compensation 't^t ■i ,,; way, from necessity, protected ™* .v Mill-owner entitled to action for obstructing water <£° upier of land entitled to compensation . . . • • • • ■ • . ■ ; • ,ant, without power of alienation, forfeits Ins estate, by license to com- ^ U. Damages not transferable by deed of land, after they accrue 364 SECTION XXII. ARHITRATION. L. Attorney, without express power, may refer disputed claim 365 aid binding, unless objected to in court 365 SECTION XXIII. STATUTE OF LIMITATIONS. I. General limitation of actions applies to land claim 365,366 tition will not save bar 366 [uiescence of forty years by land-owner, effect of 366 ppel will take effect if the use is clearly adverse 366, 367 CHAPTER XII. REMEDIES BY LAND-OWNERS UNDER THE ENGLISH STATUTE. SECTION I. I OMPANT BOUND TO PURCHASE THE WHOLE OF A HOUSE, ETC. 1. The company to "take the accessories with the house 368 the owner has an election in regard to that 368,369 leposit of the appraised value means the value of all the company are bound tn take 369 1 ' tpany bound to take all of which they take part, and pay special dam- des 370 5. Where the company desire part, not compellable to take whole unless they -i-i in taking part 370 [from house by highway not part of premises 371 SECTION II. THE COMPACT COMPELLABLE TO TAKE INTERSECTED LANDS, AND THE OWNER TO SELL. - than half an acre remains on either side, company must buy . 371 '" ner J? U8 . 1 M " whe . re lani1 of less value than railroad crossing . . . 371, 372 ._ crossing . . . 371,372 8 and 4. Word " town, how construed 372 SECTION III. IICE TO TREAT FOR THE PURCHASE OF LAND. m under statute of limitations 372 ..■■•my compelled to summon jury 372 ANALYSIS OP CONTENTS. XXXV11 3. Ejectment not maintainable against company 373 4. Powers to purchase or enter, how saved 373, 374 5. Subsequent purchasers affected by notice to treat as the inception of title . 374 6. But the notice may be withdrawn before any thing is done under it . . . 374 7. Not indispensable to declare the use, or that it is for station, and another company to participate in use 375 SECTION IV. REQUISITES OF THE NOTICE TO TREAT. 1. Notice, to treat must, in terms or by reference, accurately describe land . 375 2. After notice to treat company compellable to purchase. Company cannot retract after giving notice to treat 375, 376 3. New notices given for additional lands • 376 4. Power to take land not lost by former unwarranted attempt 376 5. Lands may be taken for branch railway 376 6. Effect of notice in case of a public park 376, 377 SECTION V. THE NOTICE MAT BE WAIVED, BY THE PARTY ENTERING INTO THE NEGOTIATION. 1. Notice must be set forth in proceedings 377 2. Agreement to waive operates as estoppel 377 3. Certiorari denied where party has suffered no injury 377 SECTION VI. TITLE OP THE CLAIMANT MUST BE DISTINCTLY STATED. 1. Claimant's reply to notice should be clear and accurate 378 2. Award bad, which does not state claimant's interest 378 3. Where lands are held by a receiver or commission for a lunatic. Expres- sion " fee-simple in possession " 378, 379 n. 3. Analogous American cases •• 379 SECTION VII. THE CLAIM OF THE LAND-OWNER MUST CORRESPOND WITH THE NOTICE. 380 CHAPTER XIII. ENTRY UPON LANDS BEFORE COMPENSATION IS ASSESSED. SECTION I. LANDS TAKEN OR INJURIOUSLY AFFECTED, WITHOUT HAVING PREVIOUSLY MADE COMPENSATION TO THE PARTIES. 1. No entry under English statutes without previous compensation, except for preliminary survey 381 2. Legal remedies against company offending 381 3. What acts constitute taking possession under statute 382 4. Company may enter with land-owner's consent after agreement for arbitra- tion 382 5. Bond may be given in certain cases 382, 383 6. Company restrained from using land until price paid, even after line in operation. But this rule dissented from 383, 384 tXXViii ANALYSIS OP CONTENTS. SECTION II. | - 111 [SITE TO ENABLE THE COMPANY TO ENTER UPON LAND. nal valuation under English Statutes 384 pilarities in proceedings 385 :;. Penalty for irregular entry upon lands 385 er verdict estimating damages, but before judgment 38o sing damages provided in charter not superseded by subse- quent general railway act 385 SECTION III. HOD] ..I- OBTAINING COMPENSATION UNDER THE STATUTE, FOR LANDS TAKEN, OR IN II Kl. 1 1 my EFFECTED, "WHERE NO COMPENSATION IS OFFERED. 1 mant may elect arbitration or jury trial 386 •J Biethod of procedure 386 SECTION IV. THE ONUS OF CARRYING FORWARD PROCEEDINGS. 1 Rests upon claimant after company have taken possession 386,387 ■J. Miscellaneous provisions 387 annut be had unless actual possession is taken, or injury done 387 SECTION V. EQUITY WILT. NOT INTERFERE, BY INJUNCTION, BECAUSE LANDS ARE BEING INJU- BIOl BL1 AFFECT! D, WITHOUT NOTICE TO TREAT OR PREVIOUS COMPENSATION. manl must wait until works are completed 388 2 Even if appearance of land will be greatly altered 388 :•; How far equity interferes where legal claim of party is denied . . . . 388,389 4 Wh.re a special mode of compensation has been agreed upon 389 SECTION VI. -IIIIMII ■'- TOBY, OB ARBITRATOR, CANNOT DETERMINE THE QUESTION OF RIGHT IN THE CLAIMANT, BUT ONLY THE AMOUNT OF DAMAGES. -ions sustain this view 389 itement of recent case 389,390 states assessment is final ' 390 1 intiff will recover damages assessed if he suffered any legal injury . . 391 SECTION VII. Tl " IX1,N| '" COMPENSATION TO LAND-OWNERS, AND OTHER INCIDENTS BY THE ENGLISH STATUTES. 1 Liberal compensation allowed 391 - ; ■ ler English Btatutes ■■........, ' 391 392 estimating damages ...... ... , ^ laim for damages passes to the devisee ! or executor .' '.'.'.'. 392 illy entitled to damages accruing during his time .... 392 ANALYSIS OF CONTENTS. XXXIX SECTION VIII. RIGHT TO TEMPORARY USE OF LAND TO ENABLE COMPANY TO MAKE ERECTIONS UPON OTHER LANDS. 1. Right to pass another railway by a bridge gives a temporary use of their land, but no right to build abutments upon it 393 2. Right to construct a bridge across a canal gives right of building a tem- porary bridge 393 3. And if thus erected bona fide may be used for other purposes .... 393,394 SECTION IX. RESERVATIONS TO LAND-OWNERS TO BUILD PRIVATE RAILWAY ACROSS PUBLIC RAILWAY 394 SECTION X. DISPOSITION OF SUPERFLUOUS LANDS. 1. Vest in adjoining owner unless disposed of in ten years 394, 395 2. Former owner not excluded. Effect of cottage in field 395 CHAPTER XIV. THE MODE OF ASSESSING COMPENSATION UNDER THE ENGLISH STATUTES. SECTION I. BY JUSTICES OF THE PEACE. 1. Where compensation claimed does not exceed £50 396 2. Mode of enforcing award 396 3. Value of land and injury accruing from severance to be considered . . . 396 SECTION II. BY SURVEYORS 396, 397 SECTION III. BY ARBITRATION. 1. May be claimed in cases exceeding jurisdiction of justices of the peace . . 397 2. How made compulsory 397, 398 3. What form of notice is sufficient 398 n. 5. Analogous American cases 398 4. Arbitrator's power limited to award of pecuniary compensation .... 398 5. Where land-owner gives no notice, company may treat it as case of dis- puted compensation 398, 399 6. Similar rule under Massachusetts statute regarding alteration of high- ways 399 7. And land-owners may recover without waiting for selectmen to act . . . 399 8. Company estopped in such case from denying that road was constructed by their servants. Embankments part of the railway 399 9. Finality of award 399 10. May employ experts. Damages embraced 400 11. Construction of general award 400 x l ANALYSIS OF CONTENTS. PART IV. T HB I WV OF CONTB UTS AS APPLIED TO THE CONSTRUCTION OF RAILWAYS AND TELEGRAPHS. TOLLS, &c. CHAPTER XV. CONSTRUCTION OF RAILWAYS. SECTION I. LINK OF RAILWAY. — RIGHT OF DEVIATION. 1. Manner of defining the route in English charters Sr_ii$ 2. Question involved stated .'••'• ~7nl I. Plans only binding, when and for the purpose referred to, m the act . . . 407 tor bound by deviation, unless he object .......... 407 f equity will not enforce contract against public security . . . . 407 • to construct accessory works • 408 Company may take lands designated, in their discretion 408,409 uty cannot enforce contract, not incorporated into the act 409 ght of deviation lost by election 409, 410 11. Railway between two towns, extent of grant 410 \-l. Grant of land for railway includes accessories 411 ited need not be followed literally 411 11 Terminus being a town, is not extended as the town extends .... 411,412 epting compensation waives informality 412 owers limited in time expire with limitation 412 •.-miction of charter as to extent of route 412 p may be made to yield to other grounds of construction .... 412,413 19. Power to change location must be exercised before construction .... 413 ding force of plans made part of charter 413 21. Grant terminating at town liberally construed 413 SECTION II. DISTANCE HOW MEASURED. 1. This is affected by subject-matter 414 tracts to build railway, by rate per mile 414 neral rule to measure by Btraight line 414, 415 lie rule in regard to turnpike roads 415 v tixed by- mile means lull mile; no charge for fractions 415 SECTION III. MODE OK CONSTRUCTION, TO BE DONE WITH LEAST DAMAGE. 1 D I to form of the road, but the mode of construction . . . 416 al provisions of act not controlled by this general one 416 interfered with, to be restored, for all uses 416 SECTION IV. MODE OF CROSSING HIGHWAYS. luire it should not be at grade 417 2 Or if so, that gates should be erected and tended 417 ANALYSIS OF CONTENTS. xli 3. And if near a station, railway train not to exceed four miles an hour . 417, 418 4. Cannot alter course of highway ' 418 5. Right to appropriate military road 418 6. Mandamus does not lie where company have an election 418 7. Railway cannot alter highway to avoid building bridge 418,419 8. Extent of repair of bridge over railway 419 9. Permission to connect branches with main line not revocable .... 419, 420 10. Grant to build railways across main line implies right to use them as common carriers 420 11. Railway responsible for injury by falling into culvert when covered by snow '. 420 12. The right to lay line across railway carries right to lay as many tracks as are convenient for the business 420 13. Damages for laying highway across railway 420 14. Laying highway across railway at grade. Company not estopped by contract with former owner of land 420,421 15. Towns not at liberty to interfere with railway structures 421 SECTION V. RIGHTS OP TELEGRAPH COMPANIES. 1. Right to " pass directly across a railway," does not justify boring under it . 421 2. Exposition of the terms " under " and " across " 422 3. Erecting posts in highway a nuisance, even if sufficient space remain . . 422 n. 4. Opinion of Crompton, J 422-424 SECTION VI. DUTY IN REGARD TO SUBSTITUTED WORKS. 1. Bound to repair bridge substituted for ford, or to carry highway over rail- way 423,424 2. The same rule has been applied to drains, substituted for others .... 424 3. The extent of this duty as applied to bridge and approaches .... 424, 425 SECTION VII. CONSTRUCTION OF CHARTER IN REGARD TO NATURE OP WORKS, AND MODE OF CONSTRUCTION 425 SECTION VIII. TERMS OF CONTRACT. MONET PENALTIES. EXCUSE FOR NON-PERFORMANCE. 1. Contracts for construction assume unusual forms 426 2. Estimates made by engineer 426, 427 3. Money penalties, liquidated damages. Full performance 427, 428 4. Excuses for non-performance 428 5. Penalty not incurred, unless upon strictest construction 428, 429 6,7. Contractor not entitled to any thing for part-performance 429 n. 2. Proper construction of the terms used in these contracts 427, 428 8. Contract for additional compensation must be strictly performed .... 429 SECTION IX. FORM OF EXECUTION. EXTRA WORK. DEVIATIONS. 1. No particular form of contract requisite generally 430 2. But the express requirements of the charter must be complied with . . . 431 xlii \ A.LY8I8 OF CONTENTS. ik cannol be recovered of the company, unless done upon the Bed in contract 431,432 mpany have the benefit of work are liable 432 SECTION X. PABT1 Kill HI Ml. INK CONTRACT, BHE "ill BR MAY SUE PRESENTLY. — IM \ I 1 W.l.i: \< CIDEH 1. 1 Party repudiating excuses the other 433 2 New contract valid 433 it cannot bind the company 433 inevitable accident 434 SECTION XI. I BJCFBREES AM> ARBITRATORS IN REGARD TO CONSTRUCTION CONTRACTS. ird valid if substantially correct 434,435 it will not set aside award, where it does substantial justice .... 435 SECTION XII. DECISIONS OF COMPANY'S ENGINEERS. timatee fur advances, mere approximations, under English practice . 435, 436 h here the engineer's estimates are final, can only be set aside for par- tiality or mistake 436,437 tractor bound by practical construction of the contract 437 mates do not conclude matters not referred 437,438 .-'lit to accept pay in depreciated orders, he is bound by it 438 by acquiescence 438 7. Engineer cannot delegate his authority 438 8. Arbitrator must notify parties, and act bona fide 438 SECTION XIII. l:l l!ir IV K'H'ITV FROM DECISIONS OF COMPANY'S ENGINEERS. m important case stated. 439-444 :u ui' contractor in the hill 445 3. Bill sustained. Amendment alleging mistake in estimates 445 ; ef only to be had in equity 445 fraud must he very Hear 445 being shareholder, not valid objection 445 conclusive as to quality of work, but not as to quan- 445 1 contract condonation of old claims 445 ed after company had completed work .' 445,446 1. Money penalties cannot be relieved against unless for fraud '446 11 1 _'■ es upon this subject ', 439-445 ■ mates not conclusive unless so agreed 446 e tor. whose work surrendered by supplemental contract, entitled to tnll r 1, ^g 18. Direction of umpire binding on contracting parties, and dispenses with cer- tificate oi lull performance . 446 ANALYSIS OP CONTENTS. xliii SECTION XIV. FRAUDS IN CONTRACTS FOR CONSTRUCTION. 1. Relievable in equity upon general principles 447 2. Statement of leading eases upon this subject 447-449 3. Where no definite contract closed, no relief can be granted 450, 451 SECTION XV. ENGINEER'S ESTIMATE WANTING THROUGH FAULT OF COMPANY. 1. In such case contractor may maintain bill in equity 451, 452 2. Grounds of equitable interference 452, 453 3. After company terminate contract, contractor will be enjoined from inter- ference. And same rule sometimes extends to company 453, 454 4. Stipulation requiring engineer's estimate, not void 454 5. Not the same as an agreement, that all disputes shall be decided by arbi- tration 454 6. Engineer's estimate proper condition precedent 454 7. Same as sale of goods, at the valuation of third party 454, 455 8. The result of all the English cases seems to be, that only the question of damages properly referable to the engineer 455 9. The rule in this respect different, in this country 455, 456 SECTION XVI. CONTRACTS FOR MATERIALS AND MACHINERY. 1. Manufacturer not liable for latent defect in materials 456, 457 2. Contract for railway sleepers, terms stated 457 3. Construction of such contract 457, 458 4. Party may waive stipulation in contract, by acquiescence 458 5. Company liable for materials, accepted and used 458 SECTION XVII. CONTRACTS TO PAY IN THE STOCK OF THE COMPANY. 1. Breach of such contract generally entitles the party to recover the nomi- nal value of stock 458, 459 2. But if the party have not strictly performed on his part, can only recover market value 459 3. Cash portion overpaid, will only reduce stock portion dollar for dollar . 460, 461 n. 2. Lawful incumbrance on company's property, will not excuse contractor from accepting stock 459-461 . SECTION XVIII. TIME AND MODE OF PAYMENT. 1. No time specified, payment due only when work completed 461 2. Stock payments must ordinarily be demanded 461 3. But if company pay monthly, such usage qualifies contract 461 4. Contract to build wall by cubic yard, implies measurement in the wall . . 461 SECTION XIX. REMEDY ON CONTRACTS FOR RAILWAY CONSTRUCTION. 1. Recovery on general counts 462 2. Amount and proof governed by contract 462 xHv ANALYSIS OF CONTENTS. I [ON XX. BBCH LHK -' I.H'.N. t exist inn urd to a railway 462, 463 , J 4bd SECTION XXI. . ., ,,s i.i II Ml 01 LAB0HEB8 AND S IB-CONTRACTORS. rg not bound by stipulations of contractor 463 mblic works have a claim against the company .... 463,464 tractor cannot go against the proprietor of the works, although employed by him may 464 SECTION XXII. CONDITIONS IN . HAKTER AND ELECTIONS. i performed, waived, or extended 464 ipanj bound by its election 464 CHAPTER XVI. I \< B88ITB COLLS, FARE, AND FREIGHT. ompanies created sometimes for maintaining road only .... 465 ills i.ikcn may be recovered back 465, 466 ve fare and freight 466 -1 Bj - statute, packed parcels must be rated in mass 466 i requires unity of management and control . . . 466 id railways almost unknown here. Fare and freight often limited ..." 466,467 ■.mi v of certain profit on investment lawful 467 jtriction of freight to certain rate per ton, extends to whole line . . . 467 declare for tolls 467 lishing and requisite proof 467 11. A provision in a railway charter for the payment of a certain tonnage to » onlj a mode of taxation 467,468 company is allowed to take tolls on sections of their road this tion a distinct work 468 York in regard to the difference between taken in the cars and at the stations 468,469 Btatute are payable in legal tender notes 469 PART V. THE LAW OF LIABILITY FOR FIRES; INJURIES TO DOMESTIC ANIMALS; FENCES. CHAPTER XVII. UABILIT1 I mi; pibbb COMMUNICATED BY COMPANY^ ENGINES. immunicated evidence of negligence 473 ne tune questioned in England 474 ANALYSIS OF CONTENTS. xlv 3. Opinion of Tindal, C. J., upon this point 475 4. English companies feel bound to use precautions against fire .... 475, 476 6. Rule of evidence, in this country, more favorable to companies .... 476 6. But the company are liable for damage by fire through want of care on their part " 476 7. One is not precluded from recovery, by placing buildings in an exposed situation 477,478 8. When insurers pay damages on insured property, may have action against company 478 ■ 9. Where company made liable for injury to all property, are allowed to insure 478,479 10. Construction of statutes making companies liable for loss by fires . . . 479 11. Extent of responsibility of insurer of goods, to company 479 12. Construction of statute as to engines, which do not consume smoke . . . 480 13. Construction of Massachusetts statute and mode of trial 480 14. 15. For what acts railway companies may become responsible without any actual negligence 480, 481 16. Company not responsible for fires resulting from other fires caused by them 481,482 17 & n. 27. The point illustrated by the late cases, and the conclusion reached, that these cases are not sound 482-484 CHAPTER XVIII. INJURIES TO DOMESTIC ANIMALS. 1. Company not liable unless bound to keep the animals off the track . . 485, 486 2. Some cases go even further, in favor of the company 486 3. Not liable where the animals were wrongfully abroad 486,487 4. Not liable for injury to animals, on land where company not bound to fence 487 5. Where company bound to fence are prima facie liable for injury to cattle . 487 6. But if owner is in fault, company not liable . 488 7. In such case company only liable for gross neglect or wilful injury . . 488, 489 8. Owner cannot recover, if he suffer his cattle to go at large near a rail- way 489,490 9. Company not liable in such case, unless they might have avoided the injury 490 10. Where company are required to keep gates closed, are liable to any party injured by omission 490,491 11. Opinion of Gibson, J., on this subject 492, 493 12. 17. Not liable for consequences of the proper use of their engines . . 493-495 13. Questions of negligence ordinarily to be determined by jury 494 14. But this is true only where the testimony leaves the question doubtful . 494 15. Actions may be maintained sometimes, for remote consequences of negli- gence 494, 495 16-18. Especially where a statutory duty is neglected by company . . 495, 496 19. The question of negligence is one for the jury 496 20. One who suffers an animal'to go at large can onlv recover for gross neg- lect " 496 21. Testimony of experts receivable as to management of engines . . . 496, 497 22. One who suffers cattle to go at large must take the risk 497 23. The company owe a primary duty to passengers, &c 497, 498 24. In Maryland company liable unless for unavoidable accident 498 25. In Indiana common-law rule prevails 498 26. In Missouri, modified by statute 498, 499 27. In California cattle may lawfully be suffered to go at large 499 28. 29. Abstract of late cases in Illinois 499, 500 30. The weight of evidence and of presumption 500, 501 31. Company not liable except for negligence 501 32. Company must use all statutory and other precautions 501 33. Not competent to prove negligence of the^ame kind on other occasions . 501 34. Rule of damages 501 xlvi ANALYSIS OF CONTENTS. CHAPTER \rx. i l \< ES. TION I. I ion WHOM l.l -I- MM OBLIGATION TO MAINTAIN FENCES. 1 By the English statute there is a separate provision made for fencing . . 503 is there enforced against the companies by mandamus . . 503 -mli provision exists, the expense of fencing is part of the land damages 503, 504 : where that is assessed, and payment resisted by the company, the land-owner is not obliged to fence 504-506 ... In Bome cases it has been held the fencing is to be done equally, by the company and the land-owner 506 • A in. ni of land damages, on condition company build fences, raises an implied duty on their part 507,508 7. In Borne states, owners of cattle not required to confine them upon their own land 508 ■ railway bound t<> keep up fences and farm accommodations . 508, 509 l ompany bound to fence land acquired by grant 509 dred wherever necessary 509 11. Where land-owner declines farm accommodations, has no redress; courts of equity will not decree specific performance 509,510 Mul farm accommodations not required for safety of servants and employes 510,511 ■ where company liable for all cattle killed 511 rty bound to fence assumes primary responsibility 511 • responsible tin- injury at road crossings 512 ilway companies not responsible for injury to cattle by defect of fence about yard 512 one escaping through defect of fence 512, 513 nust appear the injury occurred through default of company .... 513 . irda required in villages, but nut so as to render streets unsafe . 513 npany responsible tin- injuries through defect of fences and cattle- guards 513 Sew Hampshire maintain common-law responsibility . . . 513,514 2. Company responsible as long as they control road 514 -■: Maintaining fei ong the line of railway, matter of police. Duty of statute'and at common law. Fence held important in keeping children off the track 514, 515 toland-owm ng to maintain fence, &c 515 ponsible for defect of fence unless in fault 515,516 not responsible in Indiana unless in fault 516 y riot liable where fence thrown down by others 516 iwner in fault he cannot recover unless, &c 516 bi not building fence, &c 516,517 i-t keep up bars ' 517 111 ral rule '.'.'. 517 must be brought within it .' '. '. '. '. ' 517 518 ie required to keep his cattle at home ' 518 [uired 51g SECTION II. ' 'Ml MM COMPANY IS BOUND TO FENCE. 1 law every owner bound to restrain his own cattle 519 oth, ,V land, it extends only to those cattle such land J > 519 520 ANALYSIS OF CONTENTS. xlvii 3. Company may agree with land-owner to fence, and this will excuse damage to cattle 520, 521 n. 5. Review of cases upon this subject 520 4. Owner may recover unless guilty of express neglect 521 5. Comment upon the last case 521, 522 6. Statement of case in Massachusetts 522 7. Further comment on the last case 522, 523 8. Rule of responsibility as held in Kentucky 523 9. Rule laid down in Ohio 523 10. Rule in Indiana 523,524 11. Distinction between suffering cattle to go at large and accidental escape . 524 PART VI. THE LAW OF AGENCY AS APPLIED TO RAILWAYS. CHAPTER XX. LIABILITIES IN REGARD TO CONTRACTORS, AGENTS, AND SUB-AGENTS. SECTION I. LIABILITY FOR ACTS AND OMISSIONS OF CONTRACTORS AND THEIR AGENTS. 1. Company not ordinarily liahle for the act of the contractor or his servant 527, 628 2. But if the contractor is employed to do the very act, company is liable . 528, 529 3. American courts seem disposed to adopt the same rule 529 4. Distinction attempted between liability for acts done upon movable and immovable property not maintainable : 9 5. Cases referred to where true grounds of distinction are stated 530 6. No proper ground of distinction in regard to mode of employment . . . 530 7. Proper basis of company's liability explained 530 8. So long as one retains control of work, he is responsible for the conduct of it 530, 531 9. A master workman is only responsible for the faithfulness and care of his workmen, in the business of their, employment 531 10. Railway company responsible for injuries consequent upon defects of con- struction, in the course of the work by a contractor 53.1 11. But ordinarily the employer is not responsible for the negligent mode in which work is done, the contractor being only employed to do it in a lawful and reasonable manner 631 SECTION II. LIABILITY OF THE COMPANY FOR THE ACTS OF THEIR AGENTS AND SERVANTS. 1. Courts manifest disposition to give such agents a liberal discretion . . . 532 2. Company liable for torts committed by agents in discharge of their duties . 533 3. May be liable for wilful act of servant in the range of his employment . 533, 534 4. Some of the cases hold it necessary to show the assent of the company . . 534 n. 6. Cases upon this subject reviewed 534-538 5. Most of the cases adiiere to the principle of respondeat superior .... 535, 536 6. But it seems not to have been considered that the company is present . 537, 538 7. The cases seem to regard the company as always absent 538 8. In cases where the company owe a special duty, the act of the servant is always that of the company 538 xlviti ANALYSIS OF CONTENTS. mora ju-i and reasonable to regard the company as always pres- n of their agent ■ 539 . nounl to ratification of the acl of an agent by a corporation .11 to define ■ • 539 > 540 11. How corporations maj be held responsible for the publication of a hbel . . 540 rporation are such only as are conferred by charter . . 540 capital being paid in money • • • •. 540,541 not bound to supply gas to all who require it 541 mpanj ma} become responsible for false imprisonment 541,542 onsible for injury done by various animals kept by them or remain about their Btations • • 542 i ral manager of.a railway company may hind them for medical lerranl injured in their employment 542 ii general manager of a railway, can give no valid j to his subordinates to do an act which operates as a - fraud upon the company 542, 543 SECTION III. IV. II 111! « rO -I K\ IHTS, IV NEGLECT OF -FELLOW "-SERVANTS, AND USE OF MACHINERT. 1 !• general no Buch cause of action exists against company 543,544 ii there is any fault in employing unsuitable servants or machinery, 544-547 t not liable for deficiency of help or for not fencing road 547 jtioned whether rule applies to servants of different grades 547, 548 adopted in some states. Case of slaves. Scotland .... 548, 549 mtract, by ship-owners, that ship is sea-worthy .... 550,551 ool apply where servant has no connection with the particu- irork 551 n 15 ewed in England, Scotland, and America 549-551 B R< -trating the English doctrine 551, 552 : le law in Kentucky and review of the subject .... 552, 553 reviewed by Chief Justice Shaw . 554,557 ipany may show in excuse, that the damage accrued from the servant - instructions . 557 of one company, not fellow-servants with those of another company, using the same station, where the injury occurred .... 557 ih.it the injury occurred by reason of the intoxication ofafellow- nt, and thai an habitual drunkard was, or ought to have known by the company, tends to show culpable neglect on their . . . . . 557, 558 11 i nsible where his own negligence concurs with that of fellow servant 558 SECTION Ilia. PROOF OF NEGLIGENCE, ETC. 1- W i- injured on a railway the prima facie presumption • -ulted from the want of due care on the part of the com- I 558, 559 ompetent to prove the damage occurred without 559 upon a free pas-, or in a baggage-car, is not thereby de- .aiiiM the company for injuries received through lui ire, provided he was at the time a passenger and I lit on his own part 559 SECTION IV. FECTS IN HIGHWAYS CAUSED BY COMPANY'S WORKS. 1. Liable for injuries caused by leaving streets in insecure condition . . 560,561 ANALYSIS OP CONTENTS. xlix 2. Municipalities liable primarily to travellers suffering injury 561 3. They may recover indemnity of the company 562, 563 4. Towns liable for indictment. Company liable to mandamus or action . . 563 5. Construction of a grant to use streets of a city 563 6. Such grant does not give the public any right to use the tracks . . . 563, 564 7. Bound to keep highways in repair 564 8. Municipalities not responsible for injuries by such grant 564 9. Canal company not excused from maintaining farm accommodations by railway interference 564 10. Railway track crossing private way 564, 565 11. One being wrong-doer in opening company's gates cannot recover . . . 565 SECTION V. LIABILITY FOR INJURY IN THE NATURE OF TORTS. 1. Railway crossings upon a level always dangerous 566 2. Company not excused by use of the signals required by statute . . . 566, 567 3. Party cannot recover if his own act contributed to injury 567-570 4. But company liable still if they might have avoided the injury . . . 571, 572 5. If company omit proper signals, not liable, unless that produce the injury 573 6. Not liable for injury to cattle trespassing, unless guilty of wilful wrong . 573 7. General definitions of company's duty 574, 575 8. Action accrues from the accruing of the injury 575, 576 9. Where injury is wanton, jury may give exemplary damages 576 10. One who follows direction of gate-keeper excused 576,577 11. Company responsible for injury at a crossing opened by themselves for public use 577 12. The responsibility of railway companies for damages to persons crossing, mainly matter of fact, and each case depends on its peculiar circum- _ stances 577, 578 13. Points decided in late case, speed, negligence, &c 578 14. The company may establish and use proper and necessary signals in the conduct of its business 578 15. Duty of company in driving trains in a city. Presumptions as to negli- gence 578 16. Company responsible for damage caused by needless blowing of steam- whistles 579 SECTION VI. MISCONDUCT OF RAILWAY OPERATIVES SHOWN BY EXPERTS. 1. The management of a train of cars is so far matter of science and art, that % it is proper to receive the testimony of experts 579, 580 2. In cases of alleged torts company not bound to exculpate 580 3. So, too, the plaintiff is not bound to produce testimony from experts . . 580 4. The jury are the final judges in such cases. But omission to produce tes- timony of experts will often require explanation 580, 581 n. 6. General rules of law in regard to the testimony of experts .... 581, 582 CHAPTER XXL RAILWAY DIRECTORS. SECTION I. EXTENT OF THE AUTHORITY OF RAILWAT DIRECTORS. 1. Notice to one director, if express, is sufficient 583, 584 vol. i. d I ANALYSIS OP CONTENTS. 2. Application* to the legislature for enlarged powers, and sale of company's works, require consent of shareholders 584 MUtutional requisites must be strictly followed 584,585 I |> .... in or shareholders, cannot alter the fundamental business of the company 585, 586 erent difficulty of defining the proper limits of railway enterprise . 580, 587 •pinion of Lord Langdale, and review of cases on this subject . . ._ 587-590 can only be confirmed by actual and not constructive 588-590 7. The directors of a trading company may give bills of sale in security for debts contracted by them 590, 591 Bctora cannot bind company except in conformity with charter . . . 591 B I mpany cannot retain money obtained by fraud of directors 591 in But it must appear the plaintiff was misled without his own fault . . . 591 mpany, bj adopting act of directors, are liable to make recompense . 591, 592 12, A prospectus and report should contain the whole truth 592 ! Din ctors cannot issue Bhares to procure votes and control corporation . 592 II What will amount to fraud in the reports of the company 592,593 16. Directors responsible for fraudulent acts and representations 593 I Extent of power of directors 593 17. Represent the company as to the employe's 593 it of equity w ill not require a useless or injurious act, even to remedy a proceeding ultra vires 593 19. If the corporation knowingly accept the avails of a contract it will amount to ratification 594 n. 25. Notice estoppel 594 SECTION II. WHEN DIRECTORS BECOME PERSONALLY LIABLE. 1. Not liable personally, for any lawful act done as directors 594, 595 '2. Mut are liable upon express undertaking to be personally holclen .... 595 :;. Are liable personally, if they assume to go beyond their powers .... 596 4. Extenl of powers affected often by usage and course of business . . . 596,597 5. But if contract is beyond the power of company, or not in usual form, directors personally liable 597 6. Statement of case illustrating last point 597, 598 SECTION III. COMPENSATION FOR SERVICE OF DIRECTORS. 1. In England, directors of railways not entitled to compensation for services 598 L But the company may grant an annuity to a disabled officer . . . .598 599 3. In this country are entitled to compensation, in conformity to the order of the board rqq e American cases follow the English rule '. '.'.'.'. 599 ... I 'Itinal bonds strictly limited to term for which executed' ..'..'. 599, 600 SECTION IV. RECORDS OF THE PROCEEDINGS OF DIRECTORS. I. Bug - require minutes of proceedings of directors and make it ■■ "»>l" ions in favor of their containing all that passed! .' .' '.'.'.'. 600 3. Company will ratify unauthorized act of directors by acquiescence ... 600 ANALYSIS OP CONTENTS. li SECTION V. AUTHORITY OF DIRECTORS TO BORROW MONET, AND BUT GOODS. 1. Authority of directors to bind company, express or implied 601 2. General agent will bind company within scope of his duties. Directors presumed to assent to his contracts 601, 602 3. Contracts under seal of company prima facie bind them 602,603 4. Strangers must take notice of general want of authority in directors, but not of mere informalities 603 5. Cannot subscribe for stock of other companies 603, 604 6. May borrow money if requisite 604 7. How far directors may bind company by accepting land in payment of sub- scription 604 SECTION VI. DUTT OP RAILWAT DIRECTORS TO SERVE THE INTERESTS OF COMPANT. 1. General duty of such office defined 605 2. Claim for secret service and influence with directors 605 3. Opinion of Justice Hoffman upon the legality of such contracts . . . 606-609 n. 3. Cases reviewed upon the subject of secret services 606-608 4. Directors cannot buy of themselves for the company. What amounts to ratification 609 5. The point further illustrated. Authority of directors 609,610 6. Purchase of shares to buy peace 610 7. Director may loan money to company 610 8. Director de facto sufficient 610 9. Hotel company may lease premises to others 610 10. Director cannot recover for work done for company 611 11. Contract of projector not binding on company 611 12. Director cannot act where interested 611 13. Court will not act on petition of member who is a mere puppet for others . 611 14. Cannot charge costs of libel suit to company 612 15. Directors responsible for wrongful acts of each other, if known at the time 612 16. Right of courts to appoint receivers and take the management of corpora- tions 612 17. Directors personally responsible for money expended in raising the prices of shares 612, 613 SECTION VII. RIGHT TO DISMISS EMPLOTES. RULE OF DAMAGES, WHEN DONE WRONGFULLT. 1. Some cases hold, that if wrongfully dismissed may recover salary . . . 613 2. English courts do not favor this view. Case stated by English judges . 613, 614 3. The American cases have sometimes taken the same view 614 4. Where the contract provides for a term of wages, after dismissal, it is to be regarded as liquidated damages 615 5. Statute remedy, in favor of laborers of contractors, extends to laborers of sub-contractors 615 lii ANALYSIS OF CONTENTS. CHAPTER XXII. kRRAXGEMENTS BETWEEN DIFFERENT COMPANIES. SECTION I. I | tg] i, iST> BIMIl Ut CONTBA( rS, KEQ1 IKK THE ASSENT OF LEGISLATURE. 1 By I'i lish Btatutes one company may pass over road of another, but con- ' tract binding •••••■ 616 • cannot transfer duty of one company to another, without legislative grant • • • 617 ina] company liable to public, after such lease. But lessee not ex- . . " 618-620 • equity enjoin companies from leasing, without legislative consent 620 contracts, made by legislative grants, are to he carried into effect 620 6 Majority of company may obtain enlarged powers, with new funds . . 620,621 the majority may defend against proceedings in legislature .... 621, 622 > Legislativi sanction will not render valid contracts ultra vires 622 [way company cannot assume duties of terry, without legislative grant 622 -rant to a railway of the implied right to establish a ferry over a pub- lic river directlj beyond the- terminus of its road, does not extend the risibility of the company to the ferry . . 622 11. Such a terry may become an encroachment upon another by carrying pas- rs gratuitously • • 622,623 12. The -rant to a railway of a terry in express terms will not authorize them ry any thing except passengers and freight passing over their line 623 13. Legislative confirmation of a railway and its location will not affect its past defaults 623 SECTION II. M> l-lll 0] CONTRACTS OF CORPORATIONS BEING UNDER SEAL. 1. The English courts manifest great reluctance to abandon the former rule of law on this subject 623 11.2. Extended review of the English and some of the American cases . . 623-630 :e i" later decisions 624-630 tat amounts to a seal according to modern use 630, 631 SECTION III. Dl H "I Tilt. RESPECTIVE COMPANIE8 TO PASSENGERS AND OTHERS. . bound to keep road safe. Act of other companies no excuse . 631, 632 -•- hold tl. era can only sue the company carrying them 632 .: Passenger-carriers bound to make landing-places safe 633,634 1 1'-.' those who ride upon freight trains, by favor, can only require such security a- i> usual upon such trains 635 • all property hound to keep it in state, not to expose others to 634 Is to railways, where persons are rightfully upon them . 634, 635 y of privity of contract existing reviewed . 632-634 ■ i public works is bound to keep them safe for use . 635,636 one presumptively responsible to the same extent as natural per- u the same situation 636 upany drawing the cars of a connecting road over its own line is reponsible as a common carrier 636 ANALYSIS OF CONTENTS. llii SECTION IV. EXTENT OF THE POWERS AND DUTIES OF LESSEES OF RAILWAYS. 1. Statement of the points in an important English case 637-640 2. Lessees of railways liable for their own acts, and for many acts of lessors 640, 641 SECTION V. CONTRACTS BETWEEN DIFFERENT COMPANIES REGULATING THE TRAFFIC. 1. Such contracts generally held valid and binding 641, 642 2. Arrangements to avoid competition valid 642 3. Construction, force, and operation of contracts between different railways 642, 643 SECTION VI. WHAT IS REQUISITE TO CONSTITUTE A PERPETUAL CONTRACT BETWEEN DIFFER- ENT RAILWAY COMPANIES. 1. Railway connections commonly temporary 643 2. The matter is one mainly of public convenience, and so subject to legisla- tive control 643 SECTION VII. CONTRACTS BY RAILWAYS ULTRA VIRES, AND ILLEGAL. 1. Contracts to make erections not authorized by their charter 644 2. Contracts to indemnify other companies against expense 644, 645 3. Contracts to divide profits 645 4. Illustration of the doctrine ultra vires 645, 646 5. How far railways may accept bills of exchange. Railway companies not empowered to make bills and notes except from necessity .... 646, 647 6. Contracts ultra vires cannot be specifically enforced against the directors . 647 7. Money unlawfully borrowed company must refund 647 8. How far acts ultra vires confirmed by acquiescence 647, 648 9. Company not restrained from making unlawful payments on the ground of policy 648 10. Decision rests on no safe grounds 648 11. It seems too much like paying black-mail to buy peace 648, 649 1. The power of a receiver to sue in the name of the corporation. . . . 649 2. Foreign railway corporation acquired no prerogative rights by leasing a portion of the track of a domestic railway 650 3. Statement of the contract and ground of holding it void, as being ultra vires 650 4. Further reasons why such contract cannot be specifically performed here 650 n. 3. Comments upon the preceding propositions 650-652 SECTION VIII. COMPANIES EXONERATED FROM CONTRACTS, BY ACT OF LEGISLATURE . . 651, 652 SECTION IX. WIDTH OF GAUGE. JUNCTION WITH OTHER ROADS. 1. Where the act requires broad gauge, does not prohibit mixed gauge . . . 652 2. Permission to unite with other road, signifies a road cle facto .... 652, 653 Jiv ANALYSIS OF CONTENTS. lity win sometimes enjoin company against changing gauge .... 653 I ,,, make gauge of the companies the same, although contrary to [aw of state, at its date, may be legalized by statute ....... 653 5 The import and construction of the terms " railway connection .... 6o3 PART VII. Till LAW OF MANDAMUS AND OTHER PREROGATIVE REM- EDIES AS APPLIED TO RAILWAYS. CHAPTER XXIII. MANDAMUS. SECTION I. GENERAL RULES OF LAW GOVERNING THIS REMEDT. 1. Regarded as a supplementary remedy 657,658 ■j Mode of procedure 658 (1.) Matter ol discretion 658 Alternative writ 659 ings in most of the American courts 659 l I glish courts do not allow application to be amended 660 English statute has essentially simplified proceedings 661 le of trying the truth of the return 661,662 -t in the discretion of court 662 • of service 662 9. By late English statutes mandamus effects specific performance .... 663 SECTION IT. PARTICULAR CASES WHERE MANDAMUS LIES TO ENFORCE DUTY OF CORPO- RATIONS 664, 665 SECTION III. SL1VDAJTD8 THE APPROPRIATE REMEDT TO RESTORE OFFICERS AND MEMBERS OF CORPORATIONS TO nil, DISCHARGE OF THEIR PROPER FUNCTIONS, WHERE Till V II WK BEEN DEPRIVED OF THE SAME THROUGH THE AGENCY OF THE < "KIOUATION. 1. The writ formerly granted only to restore to public office 666-669 inted in all cases where of value and sufficiently permanent . . 670, 671 lable, where election annual and facts traversed 671 .imant must have permanent and vested interest 671,672 SECTION IV. MANDAMUS TO COMPEL COMPANY TO COMPLETE THEIR ROAD. 1 '' - ' »urtl hive required this upon a general grant 672,673 • these cases overruled. Not required now, unless under peculiar circumstances . . . . , 673 674 3. Recent case in New York Court of Appeals . . . . . . . . . . . '674 ANALYSIS OP CONTENTS. lv SECTION V. IN WHAT CASES THIS IS THE PROPER REMEDY. 1. Where the act is imperative upon the company to build road 675 2. Mandamus more proper remedy than injunction 675,676 3. Commissioners of public works not liable to this writ 676 4. Public duties of corporations may be so enforced 676, 677 5. Facts tried by jury. Instances of this remedy 677 6. Cannot be substituted for certiorari, when that is taken away 678 7. Requiring costs to be allowed 678 8. Other instances of its application 678 9. Lies where the duty is clear, and no other remedy 678, 679 10. Not awarded to control legal discretion 679, 680 11. Does not lie to try the legality of an election 680 12. Lies to compel transfer of stock 681 13. Where a railway company omit to have damages estimated under the statute, they may be compelled to do so by mandamus 681 SECTION VI. PROPER EXCUSES, OR RETURNS TO THE WRIT. 1. Company may return that powers had expired at date of writ .... 681, 682 2. May show want of funds to perform duty 682,683 3. But cannot show that road is not necessary, or would not be remunerative 683 4. May quash part of return, and require answer to remainder 683 5. Counsel for writ entitled to begin and close 683 6. Cannot impeach the statute in reply to the writ 683 7. Peremptory writ cannot issue till whole case tried 683, 684 8. Will not quash return summarily 684 9. No excuse allowed for not complying with peremptory writ 684 SECTION VII. WHERE THE ALTERNATIVE WRIT REQUIRES TOO MUCH, IT IS BAD, FOR THAT WHICH IT MIGHT HAVE MAINTAINED 684, 685 SECTION VIII. ENFORCING PAYMENT OF MONEY AWARDED AGAINST RAILWAYS. 1. The enforcement of payment of money against corporations by manda- mus 685 2. Where debt will lie the party not entitled to mandamus 686 3. Mandamus proper to compel payment of compensation under statute . 686, 687 4. Mandamus not allowed in matters of equity jurisdiction 687 5. Contracts of company not under seal enforced by mandamus 687 6. Where a statute imposes a specific duty, an action will lie 688 SECTION IX. THE WRIT SOMETIMES DENIED IN MATTERS OF PRIVATE CONCERN. 1. Mandamus denied to compel company to divide profits 688, 689 2. Allowed to compel production and inspection of corporation books . . . 689 3. Will compel the performance of statute duty, but not to undo what is done 689, 690 lv j ANALYSIS OP CONTENTS. | Allowed to compel the production of the register of shares, or the registry of the Q ame of the owner oi shares, and in other cases . . • • • • bJU ., i- £ the common . I « restoring persons to corporate offices of which they are unjuBtly deprived SECTION X. nngUKIDl LOST B1 ACQUIESCENCE. — PROCEEDING MUST BE BONA FIDE. 1 Remedy must he sought at earliest convenient time . 692, 693 irts will not hear such case, merely to settle the question . . . ... wa |. l„ New York may be brought any time within statute of limitations ... oJd SECTION XL HANDAM1 S ALLOWED WHERE INDICTMENT LIES. 1. Party may have mandamus sometimes where act is i indictable 694 i Allowed to compel company not to take up their rails 694 :;. Will not lie where there is other adequate remedy 6J& section xn. JUDGMENT UPON PETITION FOR MANDAMUS REVISABLE IN ERROR . . 695 CHAPTER XXIV. WRIT OF CERTIORARI. SECTION I. TO REVISE PROCEEDINGS AGAINST RAILWAYS. - to bring ii]) unfinished proceedings, or those not according to the common law 696, 697 2. This writ is one of very extensive application, unless controlled by 697 3. Where the case is fully heard on the application, judgment may be en- 698 SECTION II. WHERE I llllli; IS AN EXCESS OF JURISDICTION 698 SECTION III. JURISDICTION AND MODE OF PROCEDURE. ' Lii of irregularity, unless taken away by statute 699 aisitione before officers, not known in the law 699 rit is matter of discretion. Defects not amendable .. . 699,700 allowed for irregularity in proceedings, or evidence, or form of "<"t 700 ANALYSIS OF CONTENTS. lvii CHAPTER XXV. INFORMATIONS IN THE NATURE OF QUO WARRANTO. 1. General nature of the remedy 701,702 2. Its exercise confined to the highest court of ordinary civil jurisdiction . . 702 3. In the English practice, this remedy not extended to private corporations . 702 4. In this country it has been extended to such corporations 703 5. This remedy will only remove a usurper, but not restore the one right- fully entitled 703 6. Will not lie where railway company open part of their road 704 7. Nor where company issue stock below par, or begin to build road before subscription full ' 704 8. Form of the judgment 704,705 9. Rules in regard to taxing costs 705 10. Used to test corporate existence and power 705 11. Penalties provided by charter cannot subsequently be increased to a forfeiture 705 12. But a grant of corporate franchises may be annulled when its purposes have failed 705, 706 13. Scire facias the proper remedy to determine forfeiture 706 14. Insufficient excuses for failure to repair a turnpike road 706 15. This remedy does not supersede any equitable redress 706 TABLE OF CASES. PAGE A. & N. L. R. Co. v. Smith 186 A. & S. Railw. v. Baugh 507 v. Carpenter 278 Aberdeen Railw. v. Blakie 92 Abervstwith Railw., in re 51 Abraham v. Great Northern Railw. 335 v. Reynolds 556 Ackland v. Lewis 121 Adair v. Shaw 182 Adams v. Ferick 162 v. Frye 135 v. London & Blackwall Railw. v. Saratoga & Wash. Railw. 811, 315 Adderley v. Storm & Bailey 148 Adler v. Milw. Patent Brick Co. 183 Adley v. Whitstable Co. 96 Agar v. Athenaeum Life Ass. Co. v. Regent's Canal Co. Agricultural Bank v. Burr v. Wilson Agricultural Branch Railw. v Winchester Aiken v. Western Railw. Alabama & Tenn. Railw. v. Kidd Albany N. Railw. v. Lansing 283, 311 Aldham v. Brown 50 Aldred v. North Midland Railw. Co. 45, 409 Aldrieh v. Cheshire Railw. 305, 350 Aldridge v. Great Western Railw. 474 Alexander v. Crystal Palace Railw. 370 Alexandra Park Co., in re 459 Algeo v. Algeo 614 Alger v. Miss. & Mo. Railw. 499 Alleghany v. Ohio & Pennsylvania Railw. 320 Alleghany City v. McClurkan 590 387 603 208 125 125 188 623 532 277, Allen v. Graves 137 v. Hay ward 529 v. Montgomery R. 177 Allyn v. Boston & Albany Railw. 569 v. Prov. W. & B. Railw. 287 Alton Railw. v. Nort ott 436 Ambergate, N. & Boston & E. J. R. v. Coulthard 192 v. Midland Railw. 350 v. Mitchell 159, 160 Ambergate River v. Norcliffe 192 American Railw. Troy Co. v. Haven 671 Ammermon v. Wyoming Land Co. 564 Anderson v. Kerns Draining Co. 73 v. N. & R. Railw. 73 v. Ohio & Miss. Railw. 179 Andover, Case of 660 Andover Turnpike v. Gould 174 v. Hay 174 Andrews v. City of Portland 428 v. Ohio & Miss. Railw. 187 Androscoggin Railw. Co. v. Rich- ards 104 Androscoggin & Kenebec Railw. v. Androscoggin Railw. 643 Anglo- Cahfornian G. M. Co. v. Lewis 180 Anonymous 63, 66, 690 Anstruther v. East Fife Railw. 675 Anthony Street, matter of 287 Antisdel v. Ch. & N. W. Railw. 518 Appleby v. Meyers 434 Appleford's case 679 Applegate v. Lexington & Ohio Railw. 315 Armington v. Barnet 246, 272 Armstrong v. Burnet 162 v. Waterford & Limer- ick Railw. 383 Ix TAHLE OF CASES. Anu.1.1 v. Hudson R. Railw. 274 I .\ or of Poole 86 627, 628 1 2 1 Arthur r Commercial Bank 266 Ashby d Eastern Railw. 286, 287, 355 iula >v New I.. Railw. i>. Smith 69, 218, til A - lit • 'ii r. Lord Longdale 1 1 9 Ashwoi tli o. M.inw i\ 5 1 1 Aspinwall v. Ohio & Miss. Railw. 214 v. Yates . r > 15 Aston 241 M v. I'll' nix Bank 67'.) Athenamm Life Lis. < '<-.., in re Sheffield 153 Atkinson v. Marietta & Cin. Railw. 281,413 Atlantic Cotton Mills r. Abbott 189 Atlantic & Ohio R. R. v. Sullivant 69, 256 A. & St. L. Railw. v. Commission- t < uinli irland ( iounty 286, 293 Atlee r. Backhouse 466 Attala Co. r. Grant 679 Att'y-Gen. d. Bir. and Oxford J.R. 675, 704 irporation of Rye 67 r. Davy 90 r. Detroit & Erie Plank- Road Co. lis v. Dorsel Railw. 284 v. E. H. & S. Railw. 593 v. Earl of Lonsdale 319 v. Great N"orth'n Railw. 67, 1 55 v. Hudson River Railw. 337 v. Leaf 702 ''■ London & South- ampton Railw. 425 ''■ Nichol 352 S Railw. 244 v. Sheffield Gas Con- sumers 1 < !o. 352 'ens ;;n v. Tewkesbury A- (ireat Malvern Railw. 11, 413 Railw. v. McElmurry 567 Annua Branch Railw. v. Grimes 194 West 411 Austin, ex />mle 677 Bank ofc. Cheny 568 1 Mail Co. v. Mar- 626 Williams 697 : E. Railw. 632 Mount 195, 198 >-. Thomson 168 ■ I ■ ■ . Railw. 95 B. B. <). & M. Railw. v. Smith _ 262 Babcock v. The Western Railw. 235, 341 Backhouse v. Bonomi 576 Backus r. Lebanon 273,276 Bagge, ex parte 123 Bagnall v. London & N". W. Railw. 358 Bagshaw v. Eastern Union Railw. 8 Bagshawe v. Same 30, 33 Bailey v. Hollister 214 v. Mayor of New York 346 v. Phil. & Wil. Railw. '337 v. Western Vermont R. 458 Baily v . De Crespigny 358 Baker, ex parte 591 v. Johnson 265, 299 Balch v. N. Y. & O. M. Railw. 615 Baldwin v. Western Railw. 575 Bale v. Clelland 592 Balls v. Met. Board of Works 369 Bait. &c. Co. v. Northern &c. Railw. 698 Baltimore City Passenger Railw. v. Wilkinson 116 Bait. & O. Railw. v. Bahrs 578 Baltimore & Ohio R. v. Blocher 106 v. Breinig 569 v. Lamborn 508 v. Thomson 307, 363, 581 v. Wheeling 212 Baltimore & Susq. Railw. v. Mus- selman 210 v. Nesbit 256, 301 v. Woodruff 476, 575 Banet v. Alton & Sangamon Railw. 176, 185, 211 Bangor Bridge Co. v. McMahon 175, 177 Bangor House Proprietary v. Hinckley 174 Bangor &Pisc. R. v. Harris 271 Rank v. McChord 135 Bank of Augusta v. Earle 63 of Australasia v. Cherry 596 of Columbia v. Patterson 430 of Commonwealth v. Curry 135 of Manchester v. Allen 76 of Metropolis v. Guttschlick 430 of Middlebury v. Edgei'ton 4 of Pennsylvania v. Common- wealth 410 of South Carolina v. Gibbs 65 of U. S. v. Dandridge 76 v. The Planters 1 Bank of Georgia 59, 65, 66 of Utica v. Smalley 125 of Waltham v. Waltham 121 TABLE OP CASES. lxi Bannor v. Baltimore & Ohio R. 578 Barber v. Essex 562 Barclay v. Howard's Lessee 268 Bardstown & Lou. Railw. v. Met- calf 59, 251 Baigate v. Shortridge Barker, ex parte v. Midland Railw. v. North Staffordshire Railw. v. Troy & Rutland R 12:3 K6 101 369 414, 431, 459 691, 702 155 3, 249 142 Barlow, in re Barnard v. Bagshaw v. Wallis Barned v. Hamilton Barnes v. Ward 634 Barnesley Canal Co. v. Twibill 351 Barret v. Great N. Railw. 104 Barrett, ex parte 157 v. Maiden & Melrose Railw. 542 v. Stockton & D. Railw. 253 Barrington v. Miss. Central Railw. 119 Barron v. Baltimore 247 v. Eldridge 4«3 Barrows v. Mass. Medical So. 6'J1 Barry v. Croskey 596 v. Merchants 1 Exchange Co. 117 619 531 ISO 618. Barter v. Wheeler Bartlett v. Baker Barton's case Barton v. Port Jackson, &c. Plank- Road Co. 589 Bass v. Chicago, Bur. & Quincy Railw. Co. 480, 500 Bassett v. Norwich & Nashua Railw. 550 Bateman v. Mid-Wales Railw. 646 Bates v. Boston & N. Y. Cen. Railw. 631 v. New York Ins. Co. 124 Bath River Navigation Co. v. Wil- lis 256 Batty v. Duxbury 561 Battve v. Gresley 91 Baxter v. B &. W. Railw. 511 Bayley v, Manch. S. & L. R. 537 v. Wilkins 139 Bayliffe v. Butterworth 139 Bavntine v. Sharp 474 Beach v. Smith 119, 203 Beardmer v. London & North- western Railw. 406 Beattie v. Lord Ebury 596 Beaty v. Knowler 253 Beaufort v. Swansea Harbor Trus- tees 399 Beaulieu v. Finglam 474 Beckett v. Midland Railw. 354, 389 Bcckitt v. Bilbrough 8 Bcckwith v. Sydbothain 581 Bedford R. Co. v. Bowser 192, 218 Beebe v. Ay res 110 Beekinan v. Saratoga & Sch. Railw. . 245 Beene v. Cahawba & M. R. 176 Beers v. Housatonic Railw. 494 Beisigel v. New York Central Rail- way 577 Belfast & Angelica Plank-Road Co. v. Chamberlain 74 Belli'. Railw. v. Suman 486 Bellf. & Iowa R. C. v. Bailey 496 Bell v. Francis 12 v. Cough . 336 v. Hull & Selby Railw. 343, 355 v. London & N. W. Railw. 584 v. Midland Railw. 420 Belmont v. Erie Railw. 612 Beman v. Rurford 81, 620 Bemfclly v. Green Bay Co. 280 Bemis v. C. & P. Railw. 519 Bend v. Susquehanna Bridge Co. 70, 195 Benedict v. Coit 317 Bennett, ex parte 178 Bennett v. C. & A. Railw. 698 v. Button HO v. Railway 285, 294 Benson, ex parte 679 Bentinck v. Norfolk Estuary Co. 260, 408 Bermingham v. Sheridan 143 Beverly v. Lincoln Gas Light & Coke Co. 430, 624, 628 Bigelow v. Miss. Central & Tenn. Railw. Co. 296 Bill v. Darenth Valley Railw. 629 v. Sierra Nevada L. W. Co. 67 Binney's case 120 Binney v. Hammersmith & City Railw. Co. 374 Birkenhead R. v. Pilcher 204, 205 Birkenhead, L. & Ch. Railw. v. Webster 192 Birmingham, B. & Th. J. Railw. v. Locke 8, 168, 178, 195 Birmingham & Oxford J. Railw. v. Reg. 373 Bish v. Johnson 210 Bishop v. North 2, 3 Bishop of Winchester v. Mid- Hants Railw. 301, 384 Bissell v. Mich. 'So. & N. Ind. Railw. 620 Black River Railw. v. Clarke 73, 201 lxii TAHLE OF CASES. Black River A Dtica Railw. v. Barnard '3 ■ •■il d Wiswall :1)V 468 I 529 r. Rich 268 birat 531 Blakemore p. Bristol & Exeter lw. ^ 633 p. Glamorganshire Canal Co. HO, 668,669,670, 673 Bland p. Crowley 31, 40 Bligfa P. l'.nnt ' 120 Hosmer 259 p. Pass. River Railw. 348 Blodgetl r. Morrill 171, 172 Lowell& Nashua Railw. 363 Bluod^ood r. M. & II. Railw. 246, 258, 285, 297, 299, 323, 533 Blount p. Hipkina 144, 162 Bloxam, ex parte 17 Bluck p. Mullalue 610 Blundell p. Winsor 122 i p. ( larpenter 150 Iman p. (lore 135 Bog Lead Co. p. Montague 131 p. Midland Railw. 361 Bonaparte p. Camden & Amboy Railw. 58, 285, 297 II 1 P. Morse .">y? Bonner p. v 691 I;mi. & Bur. Railw. 460, 461 Booker, ex parte 173 Boothby p. Androscoggin & K. Railw. < o. 360 Bordentown & South A. Turnpike < lamden & Amboy Railw. 495 Boron;:!, of Sewickley 696 luel p. Shortridge 122 ■ k i'. North Staffordshire Railw. 267 Bost ii & Lowell Railw. v. Boston & M line Railw. 643 p. Proctor 109 • ni & Lowell Railw. 274 Boston A: Maine Railw. v. Bab- cock 241 v. Bartlett 216, 242 r. City of Lawrence 420 ounty of Middlesex 313 V, B »v 1'. l; I, u. ,-. Magruder p. Mi. Hand Railw. Co. 345 298, 406, 410 306 476 1 '•■•'. p. ' lompton p. Woodruff Boston Type & Mereotype Foun dry *-. Spo mer 73 n Water PowerCo. v. Boston ,v \V r. ■ iter Railw. 272, 273, 336 Boston & Worcester Railw. v. Old Colony & F. R. Railw. 293 Boswell v. Townsend 464 Boughton v. Carter 344 Boultoii v. Crowther 317 ex parte v. Skelehley 164 Bowen, ex parte 14 Bowlby v. Bell 138 Bowman v. Troy & Boston Railw. 496 v. Wathen 342 Bowring v. Shepherd 138 Boyd v. Chesapeake & Ohio Canal Co. 584 v. Negley 271 Boyle v. Phil. & Reading Railw. 467 Boynton v. Peterboro' & Shirley Railw. Co. 297, 362 Brace v. New York Central Railw. 513 Bra-ken v. Rushville Gravel Road Co. 236 Bradley v. Boston & Maine Railw. 566 v. Holdsworth 120 v. London & N. W. Railw. Co. 398 v. N. Y. & N. H. Railw. 60, 246, 253, 312, 318 Bradshaw, in re 295 v. E. & W. I. Docks & Birm. J. Railw. 379 v. Rogers 248 Brainard v. Clapp 269 v. Conn. River Railw. 242, 316 Brand v. Hammersmith & City Railw. Co. 309, 354, 357 Branin v. Conn. & Pass. R. R. 464 Branson v. Philadelphia 239, 281 Braynton v. London & Northwest- ern Railw. 407 Breed v. Eastern Railw. 379 Breedlove v. M., &c. Railw. 74, 192 Brewer v. Boston Theatre 596 Brewster v. Hartley 86, 173 Briekett v. Morris 345 Bridges v. Wilts, Somerset, & Weymouth Railw. 385 Briggs, ex parte 151, 679 v. Ferrell 618 v. Taylor 524, 547, 567 Brigham v. Agricultural Branch R. 411 Bright p. Hutton 15 Brightwell v. Mallory 121 British Provident Life Ins. Co., ex parte Grady 648 Britton v. Great Western Cotton Co. 547 Broadbent ». Imperial Gas Co. 291 Broadway Bank v. MeElrath 166 Brock v. Conn. & Pass. Railw. 510 Brockett v. Railw. 411 TABLE OF CASES. lxiii Brockwell's case Brooklyn Central & J. Railw. v. Brooklyn City Railw. 317, Brooks v. Buffalo & Niagara Railw. v. New York & Erie Railw. 487, Broom v. Comm. Brotherhood, in re Broughton v. Manchester Water- works Brown v. Beatty 281, v. Bellows v. Byrne v. Cayuga & Susquehannah Railw. 312, 345, v. Chadbourne v. City of Cincinnati v. Duplessis v. Fellows v. Illius v. Maxwell 544, v. Overbury v. Peterson v. Providence, Warren, & Bristol Railw. 290, Browne v. Providence, Hartford, & Fishkill Railw. Co. Brownlee v. Ohio, Ind., & 111. Railw. 173, 187, Brownlow v. Metropolitan Board Bryan v. Lewis Bryon v. Met. Sal. Om. Co. Bryson v. Warwick & Birmingham Canal Co. Buck v. Squires Buckeridge v. Ingraham Buckfield Branch Railw. v. Irish Bucknam v. Bucknam Budge, ex parte Buffalo v. Holloway Buffalo & Alleghany Railw. v. Cary Buffalo, Corning, & New York Railw. v. Pottle Buffalo & New York City Railw. v. Dudley 177, 211, Buffum v. N. Y. & Boston Railw. Building Association v. Sende- meyer Bull v. Chapman Buncombe T. Co. v. McCarson Bunger v. Koop Burbridge v. New Albany & S. Railw. Burgess v. Gray 528, v. Great Western Railw. Burke v. Leclimere Burkinshaw v. Birm. & Ox. J. Railw. 375, 224 563 572 520 85 648 604 350 240 140 641 335 278 324 240 312 555 455 271 303 522 215 635 128 591 315 120 177 315 377 561 74 213 220 290 158 18 73 433 363 530 633 215 387 Burlington & Mo. River Railw. v. White Burmester v. Norris Burnes v. Pennell Burnet v. M. Bisco Burnett v. Lynch Burns v. Dodge v. Milw. & Miss. 214 80 153, 583 185 133, 148, 149 300 Railw. Co. 272, 351 Burnside v. Steamboat Co. 478 Burr v. Wilcox 196 Burrell v. Jones 595 Burroughs v. Housatonic Railw. 476 Burrows v. The March Gas and Coke Co. 483 Burt v. Farrar 70 Burton, ex parte 15 v. North Missouri R. Co. 498 v. Phil., Wil. & Bait. Railw. 311, 494, 538 v. Railw. Co. 573 Bush's case 169 Bush v. Beavan 657, 695 v. Steinman 529 Butler v. Hunter 531 v. Mehrling 293 Butman v. Vermont Central R. 306 Button v. American Tract Society 67 Butts v. Woods 599 497, 515 Buxton v. N. E. Railw. c. c. c. 488, 548, & C. Railw. v. Elliott v. Keary v. Terry C. H. & D. Railw. v. Waterson C. H. & N. W. Railw. v. Goss Cabot and West Springfield Bridge Co. v. Chapin Cadmus v. Central R. Cahill v. Kalamazoo Ins. Co. Calder Navigation Co. v. Pilling Caledonian Railw. v. Lockhart v. Ogilvy v. Sprot Caledonian & Dumbartonshire Junction Railway v. Helens- burgh Harbor Trustees Callender v. Marsh v. Painesville & H. Railw. Cambridge &Somervillet>. Charles- town Br. Railw. Cam. & Amboy Railw. v. Briggs Camden v. Mulford 508 555 116 488 524 189 294 91 95, 99 400 356 312 49 317 69 678 253, 467 696 I\!V TABLE OF CASES. ( lamden Bank v. I [alls ( lameron v. < baring < Irosa Railw. ( lampbell < . M( < anal • ". v. Ai cher I '.I tke •'• ( ' :i 1 1 il ( lommissioners v. People ( lanai S , Railw. v. Payne ( lape Sable < Company 1 ! ( apper v. Earl of Lindsey Card r, X. V. & II. Railw. < larden <•. < len < !emetery < !o. ( lardiff C. & C. ( lompany, in re ton ( !arington <\ W\ comb Railw. r. B Railw. 1 nan '•. Railw. Canal eV R. It. 545, < lahawba iV Marion Steubenville & Ind. 303, 304, < ii mi' hael, ex p ( larnocban o. Norw ich & Spaulding Railw. 364, < larpi nter v. Bristol <>77, v. Countj ' lommission- ers i'l Bristol r. [ns, « '". Carr o. Georgia Railw. & Banking i o. i, -jii, v. Royal Exchange Ins. < !o. I n v. Western Railw. ' real Eastern Railw. v. Thompson pole >-. Ambergati Railw. iin Railw. '•. London & Br. Railw. < ' izyer '■. Taj lor < ecil v. I'. Railw. < lentral Bridge I lorporation v. ( lity "i Lowell Central Military Track Railw. v. R k if< How ' /an;, < lentral < >hio Railw. r. Lawrence P Road < !o. v. Clem- • ' R lil. < ". /•. Bunn o. Midi. -1.1 R ilw. r. Kis li ' I Turnpike Co. v. Valen- tine < 'nt r.- Turnpike Co. v. Smith < I. ids Mi ' ri ■!•!• Cham e i iin p. Painesville& Hud- ■ ( ,i:i "" ! End of Lon- don & i rystal Palai e Railw. 135 360 60; 278 410 315 277, 310 L20 43 489 688 154 372, 395 555 L85 530 15 374 678 287 143 349 136 311 :;?i 297 156 KM 546 186 ■>12 520 197 212 210 238 225 118 465 68 186 857 Chamberlain v. West End of Lon- don & C. Railw. 354 Chambers v. London, Chatham, & Dover Railw. 370 v. Manchester & Mil- ford Railw. 646 ( lhampion v. Memphis & Charles- ton Railw. 212, 411 Champ lain & St. Lawrence Ilailw. r. Valentine 336 < lhamplin r. Pendleton 315 Chandler v. Broughton 538 Chapin v. Boston & Providence Railw. 289 v. Sullivan Railw. 265, 614 v. Verm. & Mass. Railw. 135 Chapman v. Albany & Sch. Railw. 311, 815, 318 v. Atlantic & St. Law- rence Railw. v. Mad River & Erie Railw. < lhapple's case Charitable Corporation v. Sutton 606 Charles River Bridge v. Warren » Bridge 76, 253, 274 Charles River Railway v. County Commissioners of Norfolk ( lharlestown Branch Railw. v. Mid- dlesex Charlotte & S. C. Railw. v. Blake- ly 176, 200 Cha.se v. New York Central Railw. 306, 468 Chasemore v. Richards 846 < lhatham v. Brainerd 315 < licali' v. Kenward 143 Cheltenham & Great Western Union Railw. v. Daniel 8, 13.'i, lilt v. Medina 194 < Iheney v. Boston & Maine Rail- | way' 107 Chesapeake & Ohio Canal Co. v. Baltimore and Ohio Railw. Chester Glass Co. v. Dewey 479 Lake 190 169, 205 366 298 Chestnut Hill Turnpike Co. v. Rutter C. & A. Rail 273 125, 175 v. 533 569 548 98, 112 489, 518 < rretzner v. Keefe v. Roberts v. Utley Chicago, Burlington, & Quincy Railw. V. < 'audinan 500 v. ( ioleman 601 ». Darks 98, 112, 114 v. Wilson 261, 078 Chicago & Miss. Railw. v. Patch- in 269, 494, 506, 508 TABLE OF CASES. lxv Chicago & Mont. Railw. v. Bull 293 Chicago & N. W. Railw. v. Pea- cock 98, 112 v. Simonson 477 Chicago & Rock Island Railw. v. Still 572 v. Ward 505 Child v. Coffin 125 v. Hudson Bay Co. 95, 96 Childs v. Somerset & Kennebec Railw. 431, 459 Chilton v. London & Croydon Railw. 97, 106 Chinnock, ex parte L69 Chouteau Spring Co. v. Harris 124 Church v. imperial Gas Light & Coke Co. 624, 628 v. Northern Cent. Railw. 287 Cincinnati Coll. v. State 253 Cincinnati & Spring Grove Ave. Railw. v. Cumminsville 323 Cincinnati, Indiana, & Chicago Railw. v. Clarkson 220 Cincinnati, \V. & Z. Railw. v. Clinton Co. Commissioners 246 City of Cincinnati v. Stone 528 City of London v. Vanacre 85 City of Janesville v. Milvv. & Miss. Railw. 324 Claflin v. Wilcox 537 Clarence Railw. v. Great North of England Railw. 234, 252 Clark v. Boston, Cone, & Mont. Railw. 348 v. Guardians of Cuckfield Union 625, 626, 627, 628, 629 Clark's case 96 Clarke v. Leicestershire & North- amptonshire Canal Co. 683 v. Mayor of Syracuse 246 v. Monongahela Navigation Co. 200 v. Syracuse & Utica Railw. 488, 490, 507, 520 v. Vermont & Canada Rail w. 278, 510 Clarke, ex parte 15 v. Dickson 151, 153 v. Imperial Gas Light Co. 599, 604 v. L. & N. Union Canal 677 v. M., Sh. & L. Railw. 284 v. Rochester, L. & N. F. Railw. 509 Clarkson v. Hudson River Railw. 295 Clary v. Hoagland 697, 698 Clay v. Rulford 584 Clayton v. Carey 691 Cleaver v. Commonwealth 701 Clement v. Caniield 509, 618 Cleveland Iron Co. v. Stephen- son 592 Cleve. & Pittsb. Railw. v. Ball 290, 293 v. Kelley 459 v. Spear 310, 464 Cleveland, Painesville, & Ashta- bula Railw. v. City of Erie 73, 653 C. P. & Indiana Railw. v. Simp- son 289 Cleveland & C. Railw. v. Bar- tram no Cleveland & Toledo Railw. v. Prentice 288 Cliff, v. Midland Railw. 568 Clipper v. Logan 581 ('live v. Clive 162 Clowes v. Staff Potteries Water Works Co. 347 ( 'oates v. Mayor of New York 246 Cobb v. Mid Wales Railw. 372 Cockburn, ex parte 124 v. Union Bank 679 Cockerell v. Van Dieman's Land Co. 227 Coe v. Wise 635 Coffin v. Collins 76, 92 Coggs v. Bernard 606 Coil v. Pittsburgh Female College 75 ( 'nlcock u. Louisville Railw. 433 Colcough v. Nashville & N. W. Bailw. 288, 312, 350 Cole v. Crystal Palace Railw. 370 v. Dyer 704 Coleman, ex parte 157 Colman v. Eastern Counties Railw. 33, 208, 209, 251, 587, 641 Coles v. Bristowe 129, 138 College of Physicians v. Salmon 66 Collins v. Blantuin 602 v. South Staffordshire Railw. 398 Collinson v. Newcastle & Darling- ton Railw. 362 Colonial Life Ass. Co. v. Dome & Col. Life Ass. Co. 68 Colt v. Roberts 693 Columbia Ins. Co. v. Lawrence 479 v. Wheelright 695 Columbine v. Chichester 145 Col. & Ind. Central Railw. v. Ar- nold 544, 593 Columbus, Piqua, & Ind. Railw. v. Indianapolis & Bellefontaine Railw. 621, 653 Columbus, P. & I. Railw. v. Simp- son 278 1 x. v i TABLE OF CASES. I m j Shelby Railw. v. 5 1 ( i Colvin v. Turnpike Co. 209 i •. Mori is <■> < onwealth v. B. & W. Railw. .'m p, Alger 339 rison 691,708 ston & Maine Railw. 293, 341, 379 v. Canal < lommissionera 91 I!- il Passenger Railw. 328 d. Clarkson 137,438 I - 1 1 . 1 1 wealth Bank 701 r. ( lommissionera 659 v. ( lommissionera of Alle- •j ll;ili %- 695 p. Cullen 209 v. Del. & Hud. Canal Co. 702 p. Erie & Northeastern R. 253, 320, 412 r. Fanners 1 Bank v. Pisher r. Fitchburg Railw 704 299, 317 406, 410, 411 rman Society 692 t. Guardians of the Poor of Phil. r. Hartford & New Haven Railw. v. 1 1 iverbill r. Mayor of Lancaster i. Mniis v. Penn. Benevolent Inst. v. Perkins r. Philanthropic Soc, > Pittsburgh v. Power v. Ritcher v. Roxbury r. St. Pat Benevolent Soc. r. Simpson ith wksbury steea of St. Mary's < !hur< h t-. I'm on I ire & Marine Ins. 691, 703 660 420 421 183 75 6 ( J2 670 692 657, 658, 677 101, 102, 106 248 339 692 696 703 246 87 »•. \ ■ ter Kailw. 1 [uehannah Kailw. I B ulw. v. ' lough 278, 291 73 256, 299 543 290, , 348 52 t I v. Gelena, &c. II. Railw. I R lilw. o. < llapp 283 Riven Railw. p. ■ y 172, 177, 210, 210 I Baxter 186 v. Holton 264 Connop v. Levy 15 < !onro v. Port Henry Iron Co. 87 Conservators of the Thames v. Railw. Co. 345 ( lonservators of the Tone v. Ash 62 Cotitoocook Valley Railw. v. Bar- ker 189 Conybeare v. New B. & Canada Railw. & Land Co. 152, 591 Cook v. Burlington 344 v. Champ. Trans. Co. 477 v. Parham 550 Cooke v. Oxley 185, 216, 217 Cooling, i» re 357 v. Great Northern Railw. 357 Coomb v. New Bedford Cordage Co. 546 Coon v. Syracuse & Utica Railw. 544, 547, 555, 556 Coope v. Eyre 61 Cooper v. M. & Prairie du Ch. Railw. 547 Cope v. Thames Haven Dock & Railw. 625 Copeland v. Copeland 120 v. Northeastern Railw. 132 Copper Mines Co. v. Fox 628, 629 Goppin v. Braithwaite 111 Corby v. Hill 236 Corey v. Buffalo, Corning, & N. Y. Railw. 321 Cork & B. Railw. v. Cazenove 204 v. Goode 205 Cork & Youghal Railw., in re 591 v. Patterson 206 Cornwall G. C. M. Co. v. Ben- nett 180 Cornwall v. Sullivan Railw. 519 Corpe v. Glyn 686 Corregal v. Lon. & Bl. Railw. 679, 686 Cort v. Ambergate, Not., B. & E. J. Railw. 433 Corwin v. New York & Erie Railw. 492 Coster v. New Jersey Railw. 269, 296 Costigan v. Mohawk & Hudson Kailw. 613 ( lotheal v. Brower 228 ( !other v. Midland Railw. 408 Cott v. Lewiston Railw. 347 Couch v. Steele 551 Cowell v. Buckelew 695 Coy v. Utica & Sch. Railw. 495 Cozens v. Bognor Railw. 257, 383 Cracknell v. Thetford 312 Craig v. Rochester City & Br. Railw. 322 Cram v. Bangor House 91 TABLE OF CASES. lxvii Crawford v. Chester & Holyhead Railw. 408 v. Lelawne 323 Crawfordsville Railw. v. Wright 538 Creed v. Lancaster Bank 119 Crittenden v. Wilson 349 Crocker v. Crane 72. 203, 295 v. New London, Willi- mantic & Palmer Railw. 112, 537 Croffe v. Smith 697 Croft v. Allison 533 ». London & N. W. Railw. 359 Cromford Canal Co. v. Cutts 358 Cromt'ord & High Peak Railw. v. Lacey "" 195, 200 v. Stockport, D. & W. Bridge Railw. 27 Crosby v. Hanover 263, 272, 276 Croskey v. Bank of Wales 17 Cross v. Mill Co. 178 Crouch v. Great N. Railw. 466 v. London & N. W. Railw. 466 Cruger v. Hudson River Railw. 295 Cullen v. Thompson 591 Cumberland Coal Co. v. Sherman 540 Cumberland Valley Railw. v. Baab 35, 185 v. Hughs 635 Cumming v. Prescott 86, 93, 162 CunlhT v. Manchester & Bolton Canal Co. 80, 207 Cunningham v. E. & K. Railw v. Rome Railw. Curran v. State of Arkansas Currier v. Boston & M. Railw. v. Lowell r. Marietta & Cin. Railw Curtis v. Eastern Railw. v. Leavitt v. Vermont Central Railw. 187 360 181 292 561 250 347 602 287, 505 Cushman v. Smith 258, 280, 297 Cutbill v. Kingdom 83 Cutler v. Middlesex Factory Co. 175 D. Dadson v. East Kent Railw. 369 Dalton v. Midland Railw. 156 Daly v. Thompson 9 Dana v. Bank of United States 87 Danbury & N. Railw. v. Wilson 176, 177, 204, 209, 211, 215 v. Town of Norwalk 421 Dance v. Girdler 13, 24 Dand v. Kingscote 2 Danforth v. Smith 392 Danner v. South Carolina Railw. 492 Danville, &c. Co. v. State 701, 705 D'Arcy v. Tamar, K. & C. Railw. 92 Darling v. Nt-ill 697 Darnley v. London, Chatham, & Dover Railw. 284, 510 Dart v. Houston 680 Dartmouth College v. Woodward 58, 63, 76, 274 Dartmouth & Torbay Railw., in re 51 Dascomb v. Buffalo & State Line Railw. 567, 569 Dater v. Troy T. & Railw. 533 Dauchy v. Brown 124 Davidson v. Boston & Maine Railw. 248, 287, 298, 299, 341, 398 Davidson v. Tulloch 152, 595 Davis v. Bank of England 157 v. Detroit & Mich. Railw. 545 v. Bur. & Mo. R. Railw. 512 v. Charles River Branch Railw. 286, 287 v. Combermere 42 v. E. T. & Ga. Railw. 256 v. La Crosse & Milwaukee Railw. 351 v. Lamoille County Plank- Road 634 v. Leominster 562 v. London & Bl. Railw. 351 v. Meeting House in Lowell 95 v. Ru-sell 300 Davison v. Seymour 605 Dawson v. Midland Railw. 487, 519 Day v. Day 163 v. Newark India Rubber Co. 63 v. Owen 95, 100 Dayton v. Borst 176, 182, 183 Dayton, &c. Railw. v. Lewton 301 Dean and Canons of the English Cathedrals 66 Dean v. Sullivan Railw. 265, 268, 351, 507 Dearborn v. Boston, C. & Mon- treal Railw. 58, 278, 303 Dedzell & Ind. & Cin. Railw. 560 Del. & Atlantic Railw. v. Irie 209, 215 Delaware Canal Co. v. Sansom 177 Denny v. North W. Christian Uni- versity 175 V. Trapnell 699 Denton v. Livingston 121 v. Macmel 12 Deposit & G. Life Ass. Co. v. Ayscough 204 Derby v. Phil. & Read. Railw. 532, 533 Degg v. Midland Railw. 544, 555 De Grave v. Mayor of Monmouth 629 lwiii TABLE OF CASES. 1>,. | 169 1>. V ■ i ne r. Fox 269 Devlin v. S< cond Avenue Railw. 4 Hi p. Penrose Ferry Bridge 887 Pike 595 1»,- Winl r. Willi.- 505 Dickinson r. Valpy 1 1 D trichp. Penn. Railw. 109 , p. London & Blackwall iw. 130, 625, 628, 629 l>ill n_li.nn p. Snow 62 Dimi .» p. » Irand June. < anal Co. 441 Dimick v. Brooks 294 Direct Shrewsbury and Leicester l!;iiiu ., in re 178 1 1 . & ■•■ r. Elailw. 287 I' or p. Railw. 288 Dixon p. Rankan 649 Doane p. Scannell 703 1 1 in, ex i>mte 135 Dodd p. Salisbury & Y. Railw. 262, 409 i I p. Burns 271 mnty Commissioners 303, 304, 305 1» e d. Armistead v. The North StaflTordshire Railw. 873, 387, 408 1> •■ <[. Hudson p. Leeds & Brad- ford Railw. 382 I 1 I. Hut binson v. Manchester, Bury, & Rosendale Railw. 381 I>" d Payi e p. Bristol & Exeter Railw. ' 408 D B 247 P.Georgia Railw. & Banking Co. 301 Domestic & Foreign Missionary S iety'a Appeal 07 Donaldson p. Fuller 014 Donaldson p. (iillot 158 I I iher o. St;ite of Mississippi 58, 246 D Ch. & X. \V. Railw. 509 D Lo don & Croydon Railw. 27, 375 D ic. E. Br. & \\\ Raihv. 279, 290 Doubl day p. Muskett n D gbty p. Somerville & Easton 1: ' ilw - 255,285 Jton p. Payne 267, 316, 519 Harboi p. L. C. & Dover Railw. •' Bank of Zanesville Downie p. White Downing p. Mount Washington Roa I I ■■■ nton, ex p u /■ Down. r. N. Y. & X. II. Railw. 284 125 172 540 680 109 Drake v. Hudson River Railw. 298, 315, 318 v. Phil. & Erie Railw. 521 Draper v. Gordon 146 v. Noteware 657, 695 v. Williams 235 Drew v. New River Co. 560 v. Sixth Avenue Railw. 541 Druid, Case of the 536 Drummond, ex parte 170 Drybutter v. Bartholomew 120 Dublin & W. Railw. v. Black 204 Du Bois v. Delaware & Hudson Canal Co. 435, 437 Dudden v. Union 312 Duke v. Cahawba Nav. Co. 73 Duke of Norfolk v. Tennant 389 Du Laurans v. Pacifip Railw. 114 Duncan v. Chamberlayne 162 v. Hodges 135 v. Luntley 123 v. Railroad Co. 549 Duncuft v. Albrecht 120, 142, 143, 144 Dundalk W. R. v. Tapster 679 Dunham v. Troy Union Railw. 584 v. Trustees of Rochester 249 Dunn v. City of Charlestown 235, 349 v. North Missouri Railw. 463 Dunston v. Imperial Gas Co. 430, 598 Durfee v. Old Colony & Fall River Railw. 645 Durgin v. Munson 557 Durham & Sunderland R. v. Walker 2, 3 Durkee v. Vermont Central Railw. 142 Dutchess Cotton Manufacturing Co. v. Davis 176 Duvergier v. Fellows 122 Duxbury v. Vermont Central Railw. 562 Dyer v. Jones 432 v. Walker & Howard 75 Dynen v. Leach 545 E. E. & W. I. Docks & B. J. Railw. v. Gattke 312, 349, 353, 388, 686 E. & A. Railw. v. Poor 610 Ea»le v. Charing Cross Railw. 354 Eakin v. Raub 297 Eakright v. L. & N. I. Railw. 73, 187 Eales v. Cumberland Black Lead Mine Co. 16 Earnest'. Boston & Worcester R. 517 v. Salem & Lowell Railw. 489, 518 TABLE OP CASES. lxix Earl of Jersey v. B. F. Floating Dock Co. ' 301 Earl of Lindsay v. Great Northern Railw. 45 Earl of St. Germans v. Crystal Palace Railw. 376 Earl of Shrewsbury v. North Staf- fordshire Railw. 611 Earle v. Hall 529 East Anglian Railw. v. Eastern Counties Railw. 30, 34, 45, 209, 645 East Lancashire Railw. v. Hatters- ley 453 East Lancashire Railw. v. L. & Yorkshire Railw. 620 East London Water Works Co. v. Bailey 23 East Pascagoula . Hotel Co. v. West 73, 119 East Penn. Railw. v. Heister 290 v. Hottenstine 290 East Tennessee & Ga. Railw. v. St. John 573 East & West India D. & B. Railw. v. Gattle 686 East Wh. M. M. Co., in re 157, 681, 690 Easter v. Little Miami Railw. 523 Eastern Counties Railw., ex parte 383 v. Broom 111 Eastham v. Blackburn Railw. 295 Eastwood v. Bain 591 Eaton v. Aspinwall 199 v. E. & N. A. R. 304, 419, 531 Eckert v. L. I. Railw. 567 Edgerly v. Emerson 91 Edgerton v. N. Y. & N. H. Railw. 578 Edinboro' & Dundee R. v. Leven 375 Edinburgh & G. Railw. v. Stirling & D. Railw. 641 Edinburgh, L. & N. H. Railw. v. Hibblewhite 178, 226 Edinburgh, Perth, & Dundee Railw. v. Philip 40, 50 Edmundson,- in re 698 Edwards v. Grand J. Canal Co. 36 v. Grand Junction Railw. 19, 22, 47, 49 v. Great Western Railw. 466 v. London &N.W. Railw. Ill v. Lowndes 687 v. Union Bank of Florida 534 Egbert v. Brooks 146 Elder v. Bemis 529 Elderton v. Emmins 614 Electric Tel. Co., in re 169 v. Bunn 169 Ellicottville Plank-Road v. Buffalo, &c. Railw. 316 Elliot v. Northeastern Railw. 358 Eliott, in re 398 Elliott v. Fairhaven & Westville Railw. 325 v. South Devon Railw. 372 Ellis v. Coleman 647 v. Essex Bridge Co. 125 v. London & Southwestern Railw. 487 v. Marshall 76, 208 v. Sheffield Gas Consumers' Co. 528, 530 v. Swanzey 315 Ellison v. Mobile & Ohio Railw. 187 Elsworth v. Cole 128 Elwood v. Bullock 95 Elysville v. O'Kisco 176 Embury v. Conner 235, 246 Emmerson's case 155 Enfield Toll Bridge v. Hartford & N. H. Railw. 253, 273, 274, 275 Enright v. San Fr. & San J. Railw. 518 Enthoven v. Hoyle 134 Eppes v. M. G. & T. Railw. 221 Erie & Northeastern Railw. v. Casey 270 Ernest v. Nichols 585 Ernst v. Croysdell 647 v. Hudson River Railw. 570, 577 Essex Bridge Co. v. Tuttle 177 Etty v. Bridges 162 Eustis v. Parker 58 Evans v. Haefner 265, 300 v. Smallcombe 590 v. The Heart of Oak Bene- fit So. 671 Evansville & C. Railw. v. Cochran 279, 504 Evansville & Crawf. Railw. v. Dick 250, 269 Evansville & C. Railw. v. Duke 322 Evansville & C. Railw. v. Fitz- patrick 279, 504 Evansville Railw. v. Stringer 504 Everhart v. West Chester & Phila- delphia Railw. 197, 201, 211 Eversfield v. Midsussex Railway 262, 409 Eward v. Lawrenceburg & Upper Miss. 539 Eyton v. D. B. & C. Railw. 374 F. F. Street, matter of Falconer v. Campbell Faley v. Hill 278 76 442 Ixx TABLE OF CASES. Fall River [ron Works r. Old Coloin & F. R. Railw. 886, 413, 706 Falls r. Belfast & B. Railw. 371 Farlon . 361 1 Bank of Maryland V. [glehart 125 Farnum p. Bla«kstone (anal Co. 63 Farrow p. Vansittarl 2 ;, Boston & Worcester [w. 644, 549, 554, 555, 556 1 o»er p. Erie Railw. 545 p. Hebard 210 Faonce p. Burke 428 Faviell p. Eastern Counties Railw. 365 Fawcett p. House 606 p. fork & North M. Railw. 491 Fearne vV Deane's case 86 1 nley v Morley 465 le & 1 >ean's case 150 Featherstonbaugh v. Porcelain < lompany 593 Felder p. Railw. Co. 537 F< It ham p. England 547 I . Memphis 691 Fenton p. Treni & Mersey Nav. Co. 358,687 Fenwick v. Bell 581 I fees of Heriot's Hospital v. Gibson 404 I p. Brighton & S. C. Iw 370 Fernow p. Dubuque & S. W. Railw 521 Feul p. T. P. & W. Railw. 483 p. \'an Buskirk 509 ngs p. Tisdal 615 Ffooka p. London & S. W. Railw. 81 Field p. Field 91 p. I. 'Iran 129 v Newport, Ab. & Hereford Railw. 465 r. New York Central Railw. 477 p. Vermonl & M iss. Railw. 286 Filder p. L. Brighton & South ilw. 611 I '•. Bristol & Exeter Railw. 625 I Gla jow & S. W. Railw. -Ilw Pai isb in Sutton p. ' 07 . Miss, & Tenn. Railw. 119 Fish p. I lodge 529 Fiahi : Hank 166 p. Evansville & Crawfords- ville Railw. 213 p. Price 128 Fishmongers 1 I p. Robertson 624 Fitch v. N. H. M. L. & Stoning- ton Railw. 623 Fitchburg Railw. v. Boston & Maine Railw. 236, 286, 288, 341. 355 v. Charlestown M. Fire Ins. Co. 478 Fitchburg Railw. v. Grand Junction Railw. & Depot Co. 426 Fitzpatrick v. New Albany & Sa- lem Railw. 551 Flagg, in re et als. v. Lowber, 608 Flamank, ex parte 234 Fleming, ex parte 660 Fletcher v. Auburn & Syracuse Railw. 299, 314 v. Boston & Maine Railw. 619 v. Great Western Railw. 313 v. Rylands 481 Flint & P. M. Railw. v. Dewey 609 Flowpr v. London, Br. & S. Coast Railw. Co. 252 Flynn v. San Fr. & St. J. Railw. 477 Fooks v. Wilts, Somerset, & Wey- mouth Railw. 381 Foote v. City of Cincinnati 111 Ford v. Ch. & N. W. Railw. 300, 324 Forrest v. Manchester, S. & L. Railw. 585 Forster v. Cumberland Valley Railw. 366 Fort Edward, &c. Plank -Road Co. v. Payne 183 Forward v. Hampshire & Hampden Canal Co. 273 Fosberry v. Waterford & Limerick Railw. 425 Foster v. Bank of England 229 v. Essex Bank 208, 533, 538 v. Fitch 464 v. Oxford W. & W. R. 92 v. Walter 67 Fotherly v. Met. Railw. 678 Fowler v. Kennebec & Portland Railw. 429 Fox v. Northern Liberties 534 v. State of Ohio 247 v. Western Pacific R. 381 Franklin Ben. Asso. v. Common- wealth 692 Franklin Bridge Co. v. Wood 3 Franklin Glass Co. v. Alexander 174 v. White 174 Franklyn v. Lamond 135 Fraser v. Whalley 592 Frazier v. Penn. Railw. Co. 545, 555 Frederick v. Clarke 696 Freedle p. North Carolina Railw. 289 Freeman v. Winchester 176 Fremont v. Crippen 657 Frost v. Union Pacific Railw. 547 TABLE OP CASES. lxxi Fry's Ex'r v. Lex. & Big. S. Railw. 118, 178, 210, 211, 411 Fuller v. Dame 606 v. Trus. of Academic School in Plainfield 692 Furniss v. Hudson River Railw. 305, 351 Fyler v. Fyler 161 G. Gage v. Newmarket Railw. Co. 32, 35, 38 Gahagan v. Boston & Lowell Railw. 576, 580 Galena & Chicago Railw. v. Grif- fin 501, 516 v. Jacobs 57-4 v. Loomis 573 v. Yarwood 580 Galloway v. Mayor & Commonalty of London & Metropolitan Railw. 251 Galvanized Iron Co. v. Westoby 15 Gandell v. Pontigny 614 Gano v. State 701, 703 Gardiner v. Boston & Worcester Railw. 319 v. Smith 510 Gardner v. Charing-Cross Railw. 374 v. Newburgh 245, 297, 299, 344 Garrett v. Salisbury & Dorset J. Railw. 428, 453 Garrick v. Taylor 131 Gari-is v. Portsmouth & Roanoke Railw. 488 Garrison v. Memphis Ins. Co. 478 Gaskell v. Chambers 598 Gawthern v. Stockport, Desley, & W. Railw. 334 Gayle. v. Cahawba R. 176 Gebhait v. Junction Railw. Co. 175 General Exchange Bank, in re 126 Gerhard v. Bates 154 Getty v. Hudson River R:»iiw. 337 Gibbons v. O^den 340 Gibbs v. Trustees of Liverpool Docks 634 Gibson v. East India Co. 430 v. Pacific Railw. 545 Giesy v. Cincinnati, Wil. & Zanesv. Railw. 268, 279 Gilbert v. Cooper 8 v. Havermeyer 363 Giles v. Hutt 178 v. Taff Vale Railw. 537 Gillet v. Moody 183 Gillett v. Western Railw. 420 Gillenwater v. Mad. & Ind. Railw. 551 v. Miss. & A. Railw. 255 Gillis v. Penn. Railw. 104, 105 Gilman v. Eastern Railw. 557 v. Hall 432 Gilpin v. Howell 121 Gillshannon v. Stony Brook Railw. 547, 556 Gittings v. Mayhew 13 Glover v. London & Northwestern Railw. 537 v. North Staffordshire Railw. 250, 310, 389 v. Powell 341 Goddard v. Hodges 15 v. Pratt 12 Goff v. Great Northern Railw. 541 Gold Mining Co., ex parte 611 Gold v. Vermont Central Railw. 294 Gooday v. Colchester & Stour Valley Railw. Co. 18, 32, 46 Goodman v. Pocock 613 Goodrich v. Eastern Railw. Co. 343 v. Reynolds » 196 Goodtitle v. Kibbe 247 Goodwin v. Glazer 695 v. Union Screw Co. 601 Gorman v. Board of Police 691 v. Pacific Railw. 490, 493 Goshen Turnpike Co. v. Hurtin 176 Gould v. Hudson River Railw. 248, 321, 336, 355 Governor & Company of Copper Miners v. Fox 625, 626, 628 Governor & Company of Plate Manufacturers v. Meredith 317 Grady, ex parte 157 Graff v. City of Baltimore 301 v. Pittsburg & Steubenville Railw. 125, 195 Graham, ex parte 75 v. Birkenhead, &c. Railw. 81 v. Columbus & Ind. Railw. 381 Grand Gulf Railw. & Bank v. State 703 Grand J. & Depot Co. v. County Commissioners 334 Grand Junction Railw. v. White 505 Grannahan v. Hannibal & St. Jo- seph Railw. 464 Gratz v. Redd 176 Gravenstine's Appeal 81 Gray v. Coffin 162 v. Hook 606 v. Liverpool & Bury Railw. 49, 234, 250 lwii TABLE OF CASES. (ir.i\ ;-. Monongahela Navigation Co. 208 r. Portland Hank 70 Grayble v. York & Gettysburg Turnpike ' ". 201 • . Turnpike ( !o. 177 r. Lynchb. cv Salem Turn- pike < o. 73 Greal Falls & Conway Railw. v. Copp 191 it Luxemburg Railw. v. Mag- na] 609 ■ North of England, Clarence A. Hartlepool Junction Railw. v. ( lii-. nee Railw. 393 Great North of England Railw. v. Biddulph 9, 159 Great Northern Railw., ex parte 383 r. Eastern Counties Railw. 616, 617 t\ Harrison 457 v. Kennedy 178 v. S. Yorks. Railw. 467 (lieat Western Railw. v. Uacon 500 v. Birmingham & Ox- ford June. Railw. 41, 621 v. Decatur 319 v. Geddis 501 v. Coodman 111 v. Helm 500 r. .Metropolitan Co. 155 r. Morthland 501 r. Oxford, Worcester, & Wolverhampton Railw. 652 o. Reg. 674, 67.5 v. Rushout 90, 620 r. Thompson 506 Greathed v. S. W. & Dorchester Railw. 8 Gre< ii v. African Ep. Meth. Soc. 692 v. Boodyj 265 v. .Miller 91 v. Morris &Es'x Railw. 282,296 V. Murray 141 v. Seymour 76 o. Winter 146 iway v. Adams 145 Greene o. 1 tennis 3 Greenville and Columbia R. v. Cathcart 177 '. I ioleman 209, 212 v. Nunnamaker 2s:i v. Partlow 277, 278 v. Smith 176 r. Woodsidea 201 away v. Mead 696 : P. Wilton Railw. 286, 348 Gregg v. Gregg Gregory v. Patchett Grippen v. N. Y. Cent. Railw Grissell v. Biistowe ( Irizewood v. Blane Groux & C. Co. v. Cooper (iue.st v. Homfray Guest v. W. B. & L. Railw. Gunn v. London & Ass. Co. H. 519 649 569, 577 133, 137 128 68 241 169 Lancashire 18, 611 H. B. Coal Co. v. Teague H. & P. Plank-Road Co. v. 180 Bryan 201,221 Habersham v. Savannah, &c. Canal Co. 675 Hackett v. Boston, Cone. & Mont. Railw. 292 Haddon v. Avers 610 Hagar v. Brainerd 363 Hager v. Reed 142 Hagerstown Turnpike Co. v. Creeger 3 Haight v. City of Keokuk 323 Haines v. Taylor 352 Haldeman v. Penn. Railw. 271 Hale v. Union Mutual Fire Ins. Co. 533 Hall v. Chaffee 242 v. Norfolk Estuary Co. 122, 141 v. Pickering 539 v. Power 101, 102 v. Railw. Cos. 478 v. Selma & Tenn. Railw. 201 v. U. S. Insurance Co. 125, 195 v. Vt. & Mass. Railw. 44, 598, 599 Halloran v. N. Y. & Harlem Railw. 486 Halstead v. Mayor, &c., of N. Y. 249 Hamden v. Northamp. Co. 562, 563 Hambro v. Hull & London Fire Ins. Co. 591 Hamilton v. Annapolis & Elk Ridge Railw. 271,297 v. Newcastle & Dan- ville Railw. 597 v. New Y r ork & Harlem Railw. 318 v. Smith 10 Hamilton Plank-Road v. Rice 209, 215 Hammersmith Railw. v. Brand 356, 475 Hammon v. Southeastern Railw. 475 Hanna v. Cin. & F. W. Railw. 210 Hannibal & St. Joseph Railw. v. Hattie Higgins 558 TABLE OP CASES. lxxiii Hannibal & St. Joseph Railw. v. Kenney 493 Hannibal & St. Joseph Railw. Co. v. Rowland 294 Hannuic v. Gohlner 127, 138 Hanover Railw. v. Coyle 569 Harlboroiiijh v. Shardlow 301 Harbv v. E. & W. I. Docks & B. J. Railw. 416 Hard, Adin'r, v. Vt. & Canada Railw. 548, 556 Harding v. Goodlett 235 v. The Met. Railw. 376 Hare v. London & N. W. Railw. 131, 642 v. Waring 138 Hargreaves v. Lancaster & Preston J. Railw. 45 v. Parsons 120 Harlaem Canal Co. v. Seixas 177 Harper v. Ind. & St. D. Railw. 544 Harrington v. Du Chastel 606 Harris, ex parte 131 v. Roof 607 v. Stevens 104 Harrisburg v. Crangle 298 Harrison's case 169 Harrison, Adm. v. Central Rail- way 545 Harrison v. Berkley 482 v. Heatliorn 11 v. Lexington & Ohio Railw. 236 Hart v. Mayor of Albany 249 v. The Western Railw. 478, 483 Hartford & N. H. Railw. v. Boor- man 168, 198 v. Croswell 207 v. Kennedy 176 v. N. Y. & N. H. Railw. 637 Hartly v. Harm an 615 Harty v. Central Railw. 567, 569 Harvard Branch Railw. v. Rand 293 Harvey v. Lackawana & Bloomsb. Railw. • 281, 360 v. Lloyd 288, 379 v. Thomas 385 Haslett's Executors v. Wother- spoon 17 Hastings v. Amherst & Belcher- town Railw. 704 Haswell v. Vermont Central Railw. 383 Hatch v. Cin. & Ind. Railw. 276 v. Vermont Central Railw. 250, 281, 310, 317, 345, 356 Hattersley v. Shelburne (Earl) 51, 648 Havens v. Erie Railw. 569 Hawkes v. Eastern Counties Railw. 28, 35, 37, 39 Hawkins, ex parte 392 v. Maltby 143 Hawley v. Baltimore & Ohio Railw. 544, 555 Hawthorne v. Newcastle-upon- ^yne & N. Shields Railw. 442 Hay v. Cohoes Company 303, 533 Hayden v. Cabot 562 v. Noyes 96 Hayes v. Shackford 260 v. Western Railw. 544, 547 Hayne v. Beauchamp 72, 119 Haynes v. Barton 364 v. East Tenn. & Ga. Railw. 547 v. Palmer 198 . v. Thomas 321 Hays v. Meller 581 Hayward v. Mayor of New York 270 Hazen v. Boston & Maine Railw. 260, 269, 539 Healey v. Story 595 Heane v. Rogers 12 Heart v. State Bank 121, 126 Heaston v. Cincinnati & F. W. R. 73, 74, 159, 160 Heathcote v. North Staffordshire Railw. 46, 675 Hedges v. Metropolitan Railw. 374 HefFner v. Commonwealth 680 Helm v. Swiggett 681, 690 Hemingway v. Fernandes 2 Hendee v. Pinkerton 604, 631 Henderson v. Australian Royal Mail Steam Nav. Co. 626 v. Mayor of New Or- leans 297 v. Railw. 173, 652 Henderson & Nashville Railw. v. Leavell 185 Hennessey v. Farrell 429 Henry v. Dubuque & Pacific Railw. 269, 281, 290, 300, 505 v. Pacific Railw. 508 v. Pittsburg & Alleghany Bridge Co. 310, 317 v. Rut. & Bur. Railw. 599 v. Vermilion Railw. 171, 183, 200, 219 v. Vermont Central Railw. 312 Hentz v. Long Island Railw. 318 Herbein v. The Railroad 292 Herkimer M. & H. Co. v. Small 176 Herrick v. Vermont Central Railw. 432, 436, 443, 449 Herrimz v. Wil. & R. Railw. 573 lxxiv TABLE OF CASES. Benej 9. Merrimac Mutual Fire Insurance 291 Hertford v, Boore 241 II stei p. Memphis & Charleston lw. 213 Hetheringl Hayden 266 11 irett v. Swift, el ais. 54 I Hewitt v. 1' 128 >n o. I. mdon & S. W. Railw. 370 Heyl o. V. W. & B. Railw. 243 II: ird '•. New York and Erie lw. ion, 111 Hibblewhite o. M'Morine l- ; 7, 128, 134, 138 Hibernia Turnpike Co. v. Hender- son 200 II jv. B. & L. Railw. 569 Hifkok r. Plattsburgh 249 Hick> v. Launceston 74 Higgins r. Livingstone 597 <■. \Y. &c. Railw. Ill Highland Turnpike Co. v. McKean 74, 118, 200, 201 Hightower v. Thornton 176, 183 Higley v. Lancaster & Y. Railw. 373 Hilcoat r. Archbishops of Canter- bury & York 362 1 X ill r. Greal X. Railw. 373 v. Manchester Waterworks 603 v. Mo awk & II. Railw. 271, 280 r. Port. & Rochester Railw. 578 v. South Staffordshire Railw. 625 r. Western Vermont Railw. 266 Hill.- r. Parish 64 Billiard v. Goold 98, 112, 114, 584 • Richardson 529 o. Giraud 120 Hitchcock v. Danbury & Norwalk Railw. 412 >'■ Giddings 154 Hoagland o. Bell 170 v. ('in. ^ F. AY. Railw. 175 Hoari 86, 149, 647 Hobbitl o. London & X. W. Railw. 528 Hocbster <•. De Latour 433 Rut. .V Bur. Railw. 599 Bodgkinson o.National Live Stock Ins. Co. 610 '-. Davies 140 11 . .- o. Zanesville Canal Co. 337 mb o. X. 11. I). B. Co. 91 Bolden v. Rut. & Bur. Railw. 510, 512 Hole o. Barlow 352 S ttin^bonne & Sheerness Railw. 531 11 ■ v '. Leonard's Shore- ditch 635 Hollister v. Union Co. 311 Bolmes, ex parte 86, 695 v, Gilliland 74 v. Higgins 15 Homan v. Stanley 531 Homersham v. Wolverhampton Waterworks 432, 625 Honner v. Illinois Central Railw. 544, Hooker v. N. H. & N. Y. Railw. 311 v. N. H. & Northampton Co. 305, 344 v. Utica & Minden Turn- pike 268 Hop & Malt Company, in re 151 Hopkins v. Prescott 606 Horn v. Atlantic & St. Lawrence Railw. 488, 509 Hornaday v. Ind. & 111. Cent. R. R. 214 Horner's Estate, in re 234 Hornstein v. Atlantic & G. Western Railw. 278 Horton v. Westminster Improve- ment Comm. 603 Hortsman v. Lexington & Cov. Railw. 235 Hosking v. Phillips 383 Hotchkiss v. Auburn & Rochester Railw. 286 Houldsworth v. Evans 157, 588, 590 Housatonic Railw. v. Waterburv 489 Howard v. Gage 671, 691 v. Wilmington & Susque- hannah Railw. 428 Howden v. Simpson 25, 26 Howe v. Derrel 704 v. Starkweather 121 Hubbard v. Chappel 69 v. Russell 346 Hubbersty v. Manch., Sheff. & Lincolnsh. Railw. 133 Hubgh v. N. O. & C. Railw. 551 Huddersfield Canal Co. v. Buckley 178, 195, 197 Hudson v. Carman 73, 92 Hudson & Delaware Canal Co. v. N. Y. & Erie Railw. 274 Hudson River Railw. v. Outwater 299, 385 Hueston v. Eaton & H. Railw. 351 Hughes v. Chester & Holyhead Railw. 420 v. Parker 44 v. Providence & Worces- ter Railw. 316, 418 Hull Co. v. Wellesley 17, 180 Humble v. Langston 124, 133, 134, 138, 144, 146, 147, 148, 149 v. Mitchell 120, 142 TABLE OF CASES. lxxv Humfrey v. Dale 139 Hunt v. Adams 135 v. Gunn 17 v. Test 607 Hurd v. Rut. & Bur. Railw. 507 Hutchins, Adm'r v. State Bank 121 Hutchinson v. Manchester, Bury, & Rossendale Railw. 385 v. York & Newcastle Railw. 529, 544, 555 Hutton v. London & S. W. Railw. 234, 388 Huyett v. Philadelphia & Read. Railw. 305, 476 Hyam, ex parte 169 Hyams v. Webster 261 Hyatt v. Whipple 74 I. 111. Cent. Railw. v. Buckner 570 v. Dickerson 517 v. Downey 537 v. Goodwin 500 v. Jewell 544 v. Kanouse 509 v. Middlesmith 506 v. Middlesworth 489 v. Phelps 500, 517 v. Phillips 548 v. Reedy 520, 580 v. Sutton 98, 112 v. Swearngen 501, 514, 517 v. United States 247 v. Whalen 521 v. Williams 518 Trunk Railw. v. 411 Illinois & Michigan Canal v. Chica- go & R. I. Railw. 260 Illinois River Railw. v. Beers 207 o. Casey 79 v. Zimmer 79 Illinois & Wisconsin Railw. u. Van Horn 290, 292 Imlay v. Union Branch Railw. 320 Imperial Gas Light & Coke Co. v. Broadbent 351 Imperial Mercantile Credit Asso- ciation, in re Ind., &c. Railw. v. Elliott Indianapolis Railw. v. Adkins v. Gapen v. Klein v. Love Sparr Illinois Grand Cook 82 521 517 512 548, 555 548, 555 498 v. Williams 498 Ind. Central Railw. v. Hunter 278 280 v. Leamon 515 v. Moore 517 521 v. Oakes 286, 350 Ind. & Cincin. Railw. v. Caldwell, 486, 508 Indiana, &c. Railw. v. Fisher 512 Ind. & Cin. Railw. v. Guard 517 v. Jewett 92 v. Kerch eval 512 v. Kinney 488 519 v. McKinney 517 v. Meek 511 524 v. Oestel 516 v. Snelling 521 v. Sparr 498 v. Townsend 511 v. Wharton 499 v. Williams 498 v. Wright 516 Ind. & Madison Railw. v. Solo- mon Ind., Pittsb., & Cleve. Railw. v. Truitt Indiana & Ebensburg Turnpike Co. v. Phillips Inge v. Birmingham W. & S. V. Railw. Co. Ingersoll v. Stockbridge & Pitts- field Railw. Inglis v. Great Northern Railw. Ins. Co. v. Smith v. Woodruff" Irish Peat Co. v. Phillips Irvine v. Turnpike Co. 207, 210, Irvine v. Swann v. Walker Isaacs v. Third Av. Railw. Isbell v. N. Y. & N. H. Railw. 523, Isham v. Ben. Iron Co. 633 516 208 143 618 178, 600 118 479 17 273 194 194 533 521, 572 121 Jackson v. Cocker 122, 144, 145 v. Lamphire 253 v. North Wales Railw. 451 v. People 696 v. Rutland & Burlington Railw. 267, 487, 519 v. Second Av. Railw. 533 Jacob v. Louisville 279 Jacobs v. Peterborough & Shirley Railw. 240 Jacques v. Chambers 144, 161, 162, 163 1 \ \ si ■['AISLE OF CASES. till" 156 .l.uii.-. River & Kanawha Co. o. iTs i p, Kennedy 1 1 i Ra h Vpplegate 511 r. Dougherty 51 1 ( oleman IK) Jenkins 1 oion Turnpike < '". 21 ii i .Kiii. 661 r. Broughton 224 i-. Great Western Railw. 115 Jepherson p. Hunt 864 Jetter N ••■ S & BL Railw. 632 r. Stead ■1 1 5 Joel r. Morrison 536 Johns d. Johns 121 Johnson, ex parti 585 v. Andei son 315 r. A. & St. L. Railw. 306 p. Bank of United States L35 . i oncord Railw. L09 r. Hudson River Railw. 567 r. McKissack 099 r. Shrewsbury & B. Railw. G17 r. Wabash & M. A'. Railw. 217 m o. S. W. R. R. Bank 72 Stoi k l>b sonnt ( o. <\ Brown 611, 612 . &c. Railw. d. Barrows 697 ,v N . 1 Railw. v. Jones 489 I '.ml 635 r. Festiniog Railw. 181 /•. Mersej Hoard 635 v. Portsmouth & Concord Railw. 460 1 <>lleb< rtaon 3 nith r. \\ lini. & Manchester Rail- way i I gton & < >hio Railw. v. Apple- r. < Irmsby • ■ & West 119 15 346 260 818 241 Rail*, v. < handler 288 3i 12 701 691 595 641 298 ( iambridge L76, 179, 189, 200 iples 179 Lidfield r. Old Colony Railw. 567 : a & K. Bank r. Richardson 208 Lincoln V. Saratoga & Schenecta :'<>'> i ' . Venables 163 I o. Kekule 142 »e No. 1 d. Lodge No. 1 80 'i '•. ( ionrtown 200 Londesborough, ex parte 14 1.. .v I'.. Railw. /•. Doak 473, 475 London & Bir. Railw. v. Grand • I inction Canal ( !o. 351. 393 V. Winter ' 630 : >n& Blackwall Railw. r. Board of Works 296 '' ■ '• 358 Mion Railw. v. Fair- clough 127, 135, 178 r. Wilson 199 I'-. & S. C. Railw., in re 364 V. L.& S. W. & Ports- mouth Railw. 617 London Dock Co. v. Knebell 42 v. Sinnott 630 London Grand J. Railw. v. Freeman 168, 194 v. Graham 8, 168, 194 London Insurance v. London & Westminster Insurance Co. 68 London & N.W. Railw. v. Ackrovd 239 v. Bradley 356, 388 / . McMichael 192 v. Skerton 425 v. Smith 388, 389 London & S. W. Railw., ex parte Stevens 383 v. Southeastern Railw. 617 Londonderry & Coleraine Railw., in re 159 Long Island Railw., matter of 88, 99, 168, 507, 703 Lord v. Wormwood 519 Lord Bailiffs, &c. v. Trinity House 483 Lord Belhaven's case 588 Lord Fitz Hardinge v. G. & B. Canal Co. 292 Lord James Stuart v. London & Northwestern Railw. 29, 38, 40, 41 Lord Petre v. Eastern Counties Railw. 28, 49 Lord Shrewsbury v. North Staf- fordshire Railw. 18 Lorymer v. Smith 128 Louisville Railw. v. Chappell 302 Louisville, Cincinnati, & Charles- ton Railw. v. Letson 78 Lou. & Frankfort Railw. v. Ballard 497, 523 v. Milton 489, 506 Louisville & Nashville Branch Turnpike Co. v. Nashville & Kentucky Turnpike Co. 410 Louisville & Nashville Railw. v. Collins 552 v. Felbern 556 v. Thompson 235, 278 Louisville, &c. Railw. v. State 679 Lovering v. Railw. 271 Low ». Conn. & Pass. Railw. 44, 52 v. Galena & Chicago Union Railw. 261, 696 Lowlier, in re, v. Mayor of New York 608 Lowe v. E. & K. Railw. 218 v. London & N. W. Railw. 458, 626 Lowell v. Boston & Lowell Railw. 529, 539, 562 Lowry v. Muldrow 143 Ludlow v. New York & Harlem Railw. 237 Lund, ex parte 169 Lund v. Midland Railw. 252 TABLE OP CASES. lxxix Lunt v. London & N. W. Railw. 577 Lycett v. Staff. & Uttexeter Railw. 376 Lycoming County v. Gamble 468 Lyman v. Boston & Worcester Railw. 476 v. Norwich University 575 Lyndsay v. Conn. & Pass. Rivers Railw. 494 Lyon v. Jerome 259, 297 M. M. & C. Railw. v. Blakeney 486 v. Orr 486 M. & M. Railw. v. Hodge 597 M. & M. Savings Co. v. O. F. Hall Ass. 600 Macedon Plank-Road v. Laphani 209, 216 MacGregor v. Dover & Deal Railw. 30, 34, 45, 209 Mackey v. New York Central Railw. 569 Maclaren v. Stainton 163 Macon v. Macon & Western Railw. 254 Macon & Western Railw. v. Davis 492, 567 v. McConnell 360 Maddick v. Marshall 16 Maddox v. Graham 686 Madison & I. Railw. v. Bacon 544, 555 v. Kane 508 Mahon v. Utica & Sch. Railw. 314 Maiden & Melrose Railw. v. Charlestown 419 Maltby v. N. W. Va. Railw. 179 Manchester & Lawrence Railw. v. Fisk 467 Manchester & Leeds Railw. v. Reginam 425 Manchester, Sh. & Lincolnshire Railw. v. Great Northern Railw. 267 o. Wallis 487, 519 v. Wood 480 Mangles v. Grand Collier Dock Co. 168, 171, 200 Manley v. St. Helen's Canal & Railw. Co. 560 Mann v. Cooke 163, 176, 219 v. Currie 168, 176, 195 v. Great S. & W. Railw. 282, 348, 508 o. Pentz 172, 176, 182, 198 Manning v. Commissioners under W. I. Dock Act 392 v. Eastern Counties Railw. 392 Manser v. N. & E. Railw. 351 Mansfield & Sandusky Railw. v. Veeder 436 March v. C. & P. Railw. 345 Marine Bank of Chicago v. Ogden 430 Markham v. Brown 102 Markwell, ex parte 15 Marlborough Man. Co. v. Smith 125, 584 Marquis of Salisbury v. Great Northern Railw. 322, 373 Marriage v. Eastern Counties Railw. &c. 371 Marsh v. Eastern Railw. 642 v. N. Y. & Erie Railw. 489 Marshall v. Baltimore & Ohio Railw. 606 v. Burton 698 v. Queensborough 604 v. Stewart 549 Martin, ex parte 297 v. Board of Police 691 v. Lon., Ch.. & Dover Railw. 364 Mason v. Brooklyn & Newtown Railw. 412 v. Kennebec & Portland Railw. 305, 349 v. London, Chatham, & Dover Railw. 368 v. Railway 286 v . Stokes Bay Pier & Railw. Co. 674 Mass. Iron Co. v. Hooper 126 Master's case 169 Masterton ». Mayor of Brooklyn 433 Maudslay, ex parte 15 Maund v. Monmouthshire Canal Co. 535 Maunsell v. M. Great Western (Ireland) Railw. 51, 647 Maxted v. Paine 138, 141 Mayberry v. Concord Railw. 520 Mayo Co., »» re 696,699 Mayor v. Randolph 317 Mayor and Burgesses of Lynne Regis 67 Mayor & Commonaltv of London & Met. R. Co. v. Galloway ' 254 Mayor, &c. of City of New York v. Second Avenue Railw. 238 Mayor, &c. of Pittsburg v. Penn. Railw. 271 Mayor, &c. of Savannah v. State 693 Mayor of Lichfield v. Simpson 351 Mayor of Ludlow v. Charlton 430, 625, 627, 628 Mayor of Lynn v. Denton 228 Mayor of New York v. Bailey 529 v. Furze 346 lxxx TABLE OF CASES. Mayor of Norwich o. Norfolk lw. 87, M | Southampton v. Greaves \ i , & Harlem Railw. M \ lister r Ind. & ( !in. Railw. M v i . i 1 . ■ p. [rish Lodine < !o. \l \m!.i\ r. Western Vermont Railw. 300, M< ill p. Byram Manuf. Co. ( bamberlain McClasky p. Grand Rapids & Ind. Railw. McCluer p. Manchester & Law- rence Railw. \| < lure v. V. W. & B. Railw. Mi ' luakej <•. < Iromwell ■ •11 p. ( laldwell M,( tool p. • ralena & Chicago Union Railw. ;n ick v. Terre Haute & Richmond Railw. M i ortnick p. Lafayette Mil ii', i-. Cal. & Pacific Railw. p. Harnett Co. 664, M.i Iready p. Railw. Co. McCulloch r. Maryland McCullough v. Annapolis & Elk Ridge R. McDaniels p. Flower Brook Man. Co. 85 McDougall D.Jersey Imperial Ho ti 1 I o. 71, McDowell p. X. Y. Central Railw. McElroj p. Nashua & Lowell Railw. McEwen p. Woods McFarland p. Orange & Newark I Imi -i--< ' ir Railw. M'< ratrick p. Wason McGinity p. Mayor of New York M 1 1 ■ ■■■ in p. Remington McGregor p. The Manager of Deal A: I » >ver Railw. Mi I [eran p. Melvin Mclntire p. State Mcintosh p. Great Western Railw. p. Mid. ( onirics Railw. McKinley p. Ohio, &c. Railw. M< Laughlan r. Charlotte & S. C. Railw. 317, '-. D. & M. Railw. 75, M'Laughlin p. Pryor M Mahan '•. Morrison McMahon p. < Cincinnati Railw. McManus p. < larmicbael ' • Cr 533, McMasterc p. ' Commonwealth McM chael p. London & X. W. Rai I w . 644 228 563 L86 628 463 64 199 175 619 108 464 697 523 349 299 488 677 476 62 91 85, 86 154 513 632 139 413 550 634 143 645 697 278 452 445 516 319 223 538 210 280 342 534 280 205 McMillan V. Mavsville & Lexing- ton Railw. 177, 185 v. Railroad Co. 544 v. Saratoga & Wash. Railw. 511, 544, 551 v. Scott 146 McRae v. Russell 201 McRee P. Wilmington & Raleigh Railw. 274 Meacham v. Fitchburg Railw. 277,286, 379 Mead v. Keeler 74, 602 Meason's Estate 120 Meikel v. German Savings Fund Society, &C. - 69 Mellen v. Western Railw. 345 Mellors v. Shaw 544, 555 Memphis & Charleston Railw. v. Payne 300 Memphis & Charlotte Railw. v. Bibb 496 Memphis Freight Co. v. Memphis 246 Memphis Railw. v. Wilcox 446 Mendon v. County Comrn. 696 Mercer v. McWilliams 258, 299 v. Whall 283 Mercer County v. Pittsburgh & Erie Railw. 461 Merrihew v. Milwaukie & Mis- sissippi Railw. 112 Merrill v. Ithaca & Owego Railw. 462 Merritt v. Northern Railw. 235 Mersey Docks v. Gibbs 575 Mersey Docks & Harbor Board v. Penhallow 635 Met. Railw. v. Woodhouse 373, 674 Metcalfe v. Hetherington 634, 635 Methodist Episcopal Church v. Jaques 146 Mexican & South American Com- pany, in re 169 Meyer v. North Missouri Railw. 498 Mich. Southern & Northern Ind. Railw. v. Fisher 490, 493 Michigan, &c. Railw. v. Shannon 512 Mieklethwait v. Winter 281 Middlesex Turnpike Co. v. Lock 207 v. Swan 175, 207 ». Walker 207 Middletown Bank v. Magill 125 Midland Counties Railw. v. Oswin 234, 392 Midland G. W. Railw. v. Gordon 7, 9, 168 Midland Railw. v. Daykin 487 Miers v. Z. & M. T. Co. 183 Mifflin p. Ilanisburg, Portsmouth, M. & L. Railw. 317 Milburn v. City of Cedar Rapids 323 TABLE OP CASES. lxxxi Miles v. Bough 160, 600 Milhau v. Sharp 250, 318 Mill-Dam Co. v. Dane 209 Miller v. Auburn & Syracuse Railw. 235, 314 v. Ewer 63, 64 v. Illinois Central Railw. & Schuyler 145 v. Pittsburg & Connellsville Railw. 188, 220 v. Second Jefferson Build- ing Association 198 Milligan v. Wedge 528 Milner v. Field 455 Milnes v. Gerry 240, 454 Milnor v. Georgia Railw. & Bank- ing Co. 437 v. New Jersey Railw. 276 v. Railway Companies 337 Milwaukie & Miss. Railw. v. Eble, 280, 297, 505, 508 Minis v. Macon & W. Railw Miners' Bank v. United States Minhinnah v. Haines Minor v. Mechanics 1 Bank of Alex- andria Minot v. Curtis Mississipjii Central Railway v. Mil- ler Miss. & Mo. Railw. v. Byington Miss. & Tenn. Railw. v. Devaney v. Harris Miss., O. & R. Railw. v 379 59 677 70 66 501 272 410 119 Cross 411, 701, 704 537 139 594 201, 207 474 591 Thomas 546 Mitchell v. Crassweller v. Newhall v. Rockland v. Rome Railw. Mitchil v. Alestree Mixer's case Mobile & Ohio Railw. v. Mohawk & Hudson Railw., matter of 89 Mohawk Bridge Co. v. Utica & Sch. Railw. 274 Mold v. Wheatcroft 243, 367 Mollett v. Robinson 137 Monchet v. Great Western Rail- way 388 Money v. Macleod 606 Moneypenny v. Hartland 11 Monkland & Kir. Railw. v. Dixon 394 Monmouthshire Canal Co. v. Har- ford 3 Monongahela Navigation Co. v. Coons 248, 250, 310 Montgomery & West Point Railw. v. Vainer 290 Mony penny v. Monypenny 42 Moody v. Corbett 395 Moore v. Fitchburg Railw. 541 Moore v. Great Southern & West- ern Railw. 354 v. Hudson River Railw. 459, 460 v. New Albany & Salem Railw. 211 Moorhead v. Little Miami Railw. 253, 410 Morgan v. Birnie 438 v. King 343 v. Met. Railw. 376 v. New York & Albany Railw. 183 v. Vale of Neath Railw. 545 Morris Canal & Banking Co. v. Ryerson 359 v. Townsend 94 Morris & Essex Railw. v. Blair 334 v. Central Railw. 411, 464 v. Newark 311, 318 Morrison v. Davis 482 v. Steam Nav. Co. 573 Morse, Petitioner 282, 662, 680 v. Auburn & Syr. Railw. 538 v. Rut. & Bur. Railw. 519 Morss v. Boston & Maine Railw. 507 Mortimer v. McCallan 128 v. South Wales Railw. 391 Morton v. Barrett 146 Moshier v. Utica & Sch. Railw. 495 Mount Washington Road Co., matter of 280 Mowatt, ex parte 14 v. Londesborough 14 Mozley v. Alston 93, 620 Mullins v. People 696 Mumma v. Potomac Co. 182 Munger v. Tonawanda Railw. 268, 271, 520 Munn v. Barnum 138 Munns v. Isle of Wight Railw. 301 Munt v. Shrewsbury & Chester Railw. 208, 209 March v. Concord Railw. 618, 632 Murdoch's Appeal 679 Murphy v. City of Chicago 239, 564 v. Deane 569 Murray v. Currie 528 v. De Rottenham 146 v. Railroad Co. 418, 492, 581 v. South Car. Railw. 555 v. South Sea Railw. 544 Mutual Savings Bank v. Meriden Agency Co. 604 Myers v. Myers 146 v. Perigal 120 / l\X\li TABLE OF CASES. Napier, ez parti 679 Narragansett Bank v. Atlantic Silk ■ 228 689 Nashville Railw. v. Cowardin 263, 111 v. Dickerson 278 Nashville & Ch. Railw. v. Peacock 511 Nason '. Woonsocket Union liailw. 307 Nathan v. Whitlock 182 Natusch r. Irving 207, 208 o. Pittsburgh & Connellsville Railw. 256 X. all r. Hill 703 Needham v. S. F. & S. J. Railw. 489 Nellia v. New York Central Railw. 468 r. Baton 604 o. Vt. . 1 Lenderson 16 Nevitt v. Bank of Port Gibson 183 New Albany & C. Railw. v. Ilig- man 312 ,-. Buff 312 New Albany & Salem Railw. v. Connelly 350 v. Grooms 663 V. .Maiden 514 v. Pickens 177 Albany, &c Railw. v. McNa- mara 488 Ubany Railw. v. O'Daily 325 v. Pace 514 v. Tilton 514 N. B. & Canada L. Co. v. Mug- gerid 131,592 l'x-dford Turnpike Co. v. Adams 174 Newbury v. Conn. & Pass. Rivers Railw. 562 iryport Bridge Co. v. Story 175 \ i '. ( lolt'a Patent Fire Arms Co. 63 & R. Railw. v. P. & .. Railw. 273 astle, &c. Turnpike Co. v. North Staffordshire Railw. 424 N. Hampshire Central Railw. v. Johnson 177,189 Ji rsey Railw. v. Suydam 283 London v. Brainard 253 in-, Jackson, &c. Railw. v. Harris 78, 79 N. O. & C. Railw. v. Second Mu- nicipalitv (if New Orleans 410 New < Means & O. Railw. v. Lea 229 Newport Mech. Co. v. Starbird 67 New River Co. v. Johnson 354 Newry & Enniskillen Railw. v. Coombe 205 v. Edmunds 159, 170 Newry, W. & It. Railw. v. Moss 169. Newton v. Belcher 12 v. Liddiard 12 New York Central Railw. in re 271 v. Marvin 295 New York City & Erie Railw. v. Patrick 196 N. Y. & Erie Railw. v. Skinner 492, 506, 507, 520 v. Young 263 New York Exchange Co. v. De Wolf 173 New Y. & H. Railw. in re 262 v. Forty-second Street & G. F. S. Railw. 563 New York & Md. Line Railw. v. Winans 618 N. Y. & N. H. Railw. v. Ketchum 599 Niagara Falls & Lake Ontario Railw. v. Hotchkiss 253 Nicol, ex parte 153 Nicholson v. Erie Railw. 569 v. New York & New Haven R. 283, 316, 319 Nicklin v. Williams 576 Nicoll v. N. Y. & Erie Railw. 269, 270 Nixon v. Brownlow 206 v. Taff Vale Railw. 432, 442 Norris v. Androscoggin Railw. 496 v. Cooper 10 v. Irish Land Co. 161 v. Vermont Central Railw. 235, 426 Northam, B. & Roads Co. v. Lon- don & Southampton Railw. 417 North American Colonial Associa- tion of Ireland v. Bentley 159 North British Railw. v. Tod 404, 672 North Carolina Railw. v. Leach 172, 205, 213 North Eastern Rail. v. Elliott, 238, 313 v. Payne 411 v. Sineath 506, 508 North Mo. Railw. v. Gott 252, 295 v. Lackland 252 v. Winkler 186 North Penn. Railw. v. Rehman 264, 518 North Shields Quay Co. v. David- son 172 North Staffordshire Railw. v. Dale 419 v. Landor 378 TABLE OF CASES. lxxxiii North Staffordshire Raihv. v. Wood 380 North W. Raihv. v. MeMichael 204 Northern Raihv. v. Concord & Claremont Raihv. 246 v. Miller 176, 210 v. Page 109 Northern Cent. Raihv. v. Canton Co. 236 Northern Ind. Railw. v. Martin 512 Northumberland v. At. & St. Law. Raihv. 570 Northwestern Railw. v. Martin 442 Norton v. Valentine 346 Norwich & Lowestoft Navigation Co. v. Theobald 119, 189 Norwich & Worcester Railw. v. Cahill 430 v. Killingley 419 Nowell v. Andover & R. Raihv. 596 Noyes v. Rutland & Burlington Railw. 532, 629 v. Smith 551, 555, 556 v. Spalding 124, 128 Nulbrown v. Thornton 144 Nutter v. Lexington & West Cam- bridge Railw. 188 0. Bait. 572, O'Brien v. Phil., Wih, & Railw. O'Connor v. Pittsburgh v. Spaight O'Donald v. E. Ind. & CI. Railw. O'Donnell v. Alleghany V. Railw. O'Harra v. Lexington Railw. O'Neal v. King Oakes v. Oakes Ogdensburgh, Rome & Clay Railw. v. Frost 71, Ogdensburg Railw. v. Wolley Ogle v. Graham Ohio, &c. Railw. v. Ridge Ohio & Miss. Railw. v. Dunbar v. Irvin v. Ind. & Cin. R. 617, v. Jones v. Meisenheimer v. Quier v. Shanefelt v. Taylor Ohio & Pennsylvania Railw. v. Wallace Old Colony Railw. v. Evans Old Colony & F. R. Railw. v. County of Plymouth Oldtown & Lincoln Railw. v. Vea- zie 575 317 442 68 551 297 190 163 176 188 135 58 618 499 649 518 518 512 477 500 282 143 420 190 Oriental I. Steam Co. v. Briggs Ormond v. Holland 546, Ornamental Pyrographic Wood- work Co. v. Brown Orono v. Wedgeworth Orpen, ex parte Orr v. Bank of United States v. Bigelow v. Gl. A. & M. J. Railw. v. Glasgow, A. & M. J. Raihv. Osborn v. Bank of U. States 62, Oswego Falls Bridge Co. v. Fish Others v. The Plank-Road Com- panies Ottawa v. Chicago, &c. R. Ottoman Co. v. Farley Overend Gurney & Co. v. Giff Overmyer v. Williams Overton v. Freeman Owen v. Purdy v. Van Uster Owings v. Speed Oxford, Worcester, & Wolver- hampton Railw. v. South Staf- fordshire Railw. 75, 131 555 71 74 126 111 128 180 598 208 253 337 697 612 596 267 528 77 596 228 267 P. P. & K. Railw. v. Dunn 177 Pacific Railw. v. Chrystal 279 v. Hughes 211 v. Renshaw 210 v. Seely 644 Pack v. Mayor of New York 529 Page v. Heineberg 265 Paige v. Smith 637 Paine v. Hutchinson 146 Palmer v. Hungerford Market, matter of 361 Palmer v. Lawrence 176 v. Woodbury 701 Co. v. Ferrill 280 Pardoe v. Price 687 Parish v. Pai'ish 143 Parker v. Adams 567 v. Boston & Maine Railw. 286, 288, 307, 399, 562 v. Bristol & Exeter Railw. 466 v. Cutter Milldam Co. 335 v. Great Western Railw. 466 V. Perkins 240 v. Rensselaer & Saratoga Railw. ' 618 v. Smith 701 v. Thomas 186, 187 Parkes, ex parte 693 lxxxiv TABLE OF CASES. Parke V\ ■ stern Railw. 439 ton 278 elee v. O Syracuse Iw. Parnab] p. Lancaster ( 'anal Co. 379 631, 634 597 259 336 .",11 Railw. 251, 558 602 (598 528 189 586 406 341 479 1 I ' Pat. & New. Railw. p. Stevens Gas Light ( 'u. p. Brady p. Northern Centra] Railw. 308 1 ; ScN.W. Railw. 458 Paulmi Railw. Popham :•. p. Buenfcillo Rowland Peake p. Wabash Railw. ML & I. & P. & I p. Wycombe Railw v p. i lalais Railw. .-. North Staffordshire Railw Pell p. Northampton & Banbury Railw. 374, 384 Pendl Railw. p. Shires 116 Railw. r . I lummer 177, 189, 190 v. White 92, 117, 188, 189, 594 . Kennebec Railw. v. 172, 190 I I anal ( !o. v. Bentley 569 Railw. I?. The Commonwealth 468 p. 1 taquesne Borough 424 v. Hi 294, 295 v. Keillor p. Kerr v. McClure 294 p. Porter 255 p.Riley 294 sylvania, State of, p. Wheel- ing Bridg 337,343 359, 699 I Albany & Vt. Railw. 674 Auditor of Public Ac- nts p. Batchelor p. B( i oton rd of Del ard of Health ry] illins 659 84, *5 661 436 696 696, 698, 699 99 337 Ii7! I 679 ' ia C. P. mmissioners of Hudson 661 »i N. York 679, 691 rett 661 '• i . I -l-idge of Columbia 294 People v. Hatch p. Haws r. Hayden p. Head v. Hester v. Hilliard 679 6"j8, 679 299 657, 691 696 695 v. J. & M. Plank-Road Co. 468, 705 v. Jillson 99 v. Kerr 276, 322 v. Mayor of Brooklyn 246, 279, 280 v. Mead 677 v. Michigan Southern Rail- way _ 300 v. New York & Central Railw. 573 v. N. Y. & Harlem Railw. 239, 327 v. Pacific Mail Steam S. Co. 689 v. Peabody 699 v. Rensselaer & Saratoga Railw. ' 337 v. Ridgely 701 v. River Raisin & L. Erie Railw. 703 v. Romert 659 v. Scannell 703 v. Superv. of West Ches- ter 693 v. Third Avenue Railw. 326 v. Thompson 691, 703 v. Throop 228, 661 v. Troy House Co. 71 v. Trustees of Geneva Col- lege 64 v. Van Alstyne 696 v. Vanderbilt 344 v. Wheeler 696 v. White • 268, 270 v. Wood 695 Peoria & Oquawka Railw. v. Elt- ing 178, 211 Perkins v. Eastern Railw. & The Boston & Maine Railw. 487, 519 Perkins v. Hart 614 Perley v. Eastern Railw. 483 Perrine v. Ches. & Del. Canal Co. 253 Perry v. Marsh 551 P. Simpson. &c. Co. 594 Perth Amboy Steamboat Co. v. Parker 73 Peru Railw. v. Hasketl . 511 Peters v. St. Louis & Iron M. Railw. 464, 615 Pettibone v. La Crosse & Milwau- kie Railw. 352 TABLE OF CASES. lxxxv Pfeifer v. Sheboygan & Fond du Lac Railw. Phelps v. Lyle Phene v. Gillan Philadelphia Railw. v. Trimble Phil., Germantuwn, & N. Railw. v. Wilt. Ill, 487, 534, Phil. & Erie Railw. v. Atlantic & Gt. W. Railw. Philadelphia & Reading Railw. v. City of Philadelphia v. Derby v. Yeiser 299, Philadelphia & Trenton Railw 310, Philad. & West Chester Railw. v. Hickman 201, Philadelphia, Wilmington, & Balti- more Railw. v. Cowell v. Howard 442, v. Kerr v. Quigley 540, v. Trimble Phillips v. Veazie Phoenix Life Assurance Co. Pickard v. Smith Pickering v. Ilfracombe Railw. v. Stephenson Pier v. Finel Pierce v. Wore. & Nash. Railw. Piggott v. Eastern Counties Railw. Pinkerton v. Manchester & Law- rence Railw. 158, Pinkett v. Wright Piscataqua Ferry Co. v. Jones 176, 187, Pitts. & H. W. Rail. v. Dunn Pittsburgh v. Scott Pittsburgh & Connellsville Railw. v. Clark 125, v. Stewart Pittsburg, Ft. W. & C. Railw. v. Devinney v. Evans v. Gilleland . 278, Pittsburg & Steubenville Railw. v. Hall Pittsfield & North Adams Railw.. v. Foster 286, Plank-Road v. Buff. & P. Railw. v. Payne Planche v. Colburn Plant v. Long Island Railw. 433, 315, Planters 1 & Merchants' Bank v. Leavens Plate Glass Ins. Co. v. Sunley 353 93 146 287 536 653 276 536 305 250, 314 219 224 630 578 595 505 562 170 635 184 612 108 479 473, 474 166 164 119, 201 569 300 166 220 545 571 310 288 296 268, 298 176 614 311, 317 121 198 Plum v. Morris Canal & Banking Co. and the City of Newark 317 Plymouth Railw. v. Colwell 266, 412 Pochelu v. Kemper 69 Pollard v. Hagan 247 Poler v. New York Central Railw. 494, 509 Pollock v. Stables 139 Polly v. S. & W. Railw. 258 Pomeroy v. Chi. & Milw. Railw. 324 Pontchartrain Railw. v. Lafayette & Pont. Railw. 412 Poole v. Middleton 131 Pope v. Great Eastern Railw. 376 Porchcr v. Gardner 35 Port of London Assurance Com- pany's case 88 Porter v. Androscoggin & Ken. R. 630 . v. Buckfield Branch Railw. 435 v. County Commissioners 286 Portland, Saco, & Portsmouth Railw. v. Graham 179, 200 Pott v. Flather 142 Potts v. Thames Haven Dock & Railw. Co. 42 Pottstown. Gas Co. v. Murphy 304 Poulton v. London & S. W. Railw. 541 Powell v. Han. & St. Jos. Railw. 498 Powers v. Bears 294, 300, 351 Powles v. Page 584 Poynder v. Great N. Railw. 258, 383, 385 Pratt v. Atlantic & St. Lawrence Railw. 479 Prendergast v. Turton 226 Presbrey v. O. C. & N. Railw. 307, 348 Preston v. Dub. & Pacific Radw. 265 v. Eastern Counties Railw. 346 v. Grand Collier Dock Co. 171 v. Liverpool & M. Rail. 19, 50 v. Liverpool, M. & New- castle-upon-Tyne J. R. 37, 41 v. Norfolk Railw. 346 Price v. Denb. R. & C. Railw. 143 v. Grand Rapids & I. R. Co. 175 v. N. J. Railw. 489 v. Powell 581 v. Price 120 Prichard v. La Crosse & Mil. Railw. 493 Priestly v. Foulds 424 v. Fowler 544, 549, 554 v. Manchester & Leeds Railw. 351, 394 Proprietors of Locks & Canals v. Nashua & Lowell Railw. 237, 287, 308, 359 Proprietors of Quincy Canal v. Newcomb 316 1 x \ x \ i TABLE OF CASES. Protzman v. Ind. \ Cin. Railw. 250, ■. 822 ence Bank r. Billings & Pittraan 63, 258 >sl \ Fellows of Eton < lolli r. ( Ireal Western Railw. 15 Pryse p. < 'ambrian Railw. 2 l"> Pulsford r. Richards 224 Pulling p. London, Chatham, & Dover Railw. 370 Pumpelly v. Green Bay Co. 249, 250 Putney r. < lape Town Railw. 488 Q. Quarman p. Burnett 528, 529 n r. Birmingham & Glouces- ter Railw. 533 p. Birmingham >A: Oxford .1. Railw. 372 p. Bloyzard 7":; p. Bristol & Exeter Railw. 659 p. ( lambrian Railw. 357 p. Commissioners of Woods & 1 ■ r. 1 Hxon 696 -■■. Eastern Counties Railw. 2 19, 250, 659, 671 p. I li of England Railw. v. Lane. & Yorkshire II. 665 v. Lofthome 703 p. Lon. & G. Rail. 3G9 p. London & S. W. Railw. 370 p. L. & Southampton Railw. 362 p. Man. & Leeds Railw. 660 p. Met. & D. Railw. 398 p. North Union R. 357, 660 r. Norwich & Brandon Railw. p. Stone 376 r. fork N. Midland R. 673, 685 Quicke, ex parte 373, 674 Quimby r. Vermont Central R. 504, 506, 575, 579, 580 Quiner v. Marblehead [ns. Co. 124 R. R. p. Comm. of Dean Enclosure 658 of York 660 B - 1 i 658 Severn & Wye Railw. R. p. Tower 689 D. B. Railw. p. Del. & R. Railw. 33] R. & (J. Railw. v. 1 1 tvis 58, 302 Radcliffo. Alavor of Brooklyn 310, 321, 346 Raiford p. M. Cent. Railw. 486 Railroad, ea parte 316 v. Boyer ^288 v. Davis 268 p, Johnson 293 v. Norton 574 p. Roderigues 172, 178, 215 v. Skinner 491, 506 Railsback p. Liberty & Abington Turnpike Co. 73, 210 Railstone p. York, Newcastle, & B. Railw. 387 Railw. Co. p. Barron 632 v. Burlier 288 v. Gilson 278, 283 p. Graham 178 v. Howard 604 p. Hummed 360 v. Lagarde 279 p. Washington 306 p. Whitton's Adm. 570 Ramsden v. Boston & Albany Railw. 533 v. Dyson 235 v. Manchester, S. J. & A. Railw. 296, 314, 369 Ranch v. Lloyd & Hill 574 Randleson p. Murray 529 Rami p. Townshend 393 p. White Mountain Railw. 142 Randall r. Cheshire Turnpike Co. 634 Randle p. Williams 699 Rangeley p. Midland R. 261 Ranger p. Great Western Railw. 407, 427, 436, 439, 442, 447 Ranken p. E. & W. I. & B. J. Railw. 383 Ranson v. Stonington Savings Bank 688 Raphael p. Thames Valley R. 243, 244 Rapson p. ( ubitt 528 Rathbone v. Tioga Nav. Co. 235, 265, 430 Rayner, ex parte 130 Reaveley, ex parte 205 •Redmond v. Dickerson 605 Reed p. Hanover Br. Railw. 296 Reedie v. London & N. W. Railw. ;">-_:*, 529 Reese & Fisher v. Bank of Com- merce 126 Reese River Silver Mining Co v. Smith 225 Reg. p. Abrahams 690 v. Ambergate & C. R. Co. 375, 673, 683 p. Baldwin 684 TABLE OF CASES. lxxxvii Reg. v. Bell 697 v. Bingham 693 v. Bir. & Glouc. Railw. 425, 677, 682, 683 v. Bir. & Oxford Railw. 663 v. Blackwall Railw. 693 v. Brighton & 8. C. Railw. 662 v. Bristol Dock Co. 676, 694 v. Bristol & Exeter Co. 687, 697, 698 v. Burslem Board of Health 664 v. Caledonia Railw. 407, 672, 676, 685 v. Chester 660 v. Comm. of Norfolk 621 v. Comm. of Woods & For- ests 676 v. Comm. for the So. Holland Drainage 377 v. Cottle 372 v. Dean & Chapter, of Ches- ter 679 v. Dean & Chapter of Rochester 680 v. Deptford Improvement Co. 685 v. Derbyshire & S. W. Railw. 660 v. Dundalk & Enniskillen Railw. 675, 682 v. E. Anglian Railw. 662 v. E. Lancashire Railw. 660 v. E. & W. I. Docks & B. J. R. 416, 417, 685 v. Eastern Counties R. 312, 355, 357,391,425,660,662,673, 677, 683 v. Ely 424 v. Fall 662 v. Fisher 358 v. Frere 107 v. Gamble & Bird 695 v. General Cemetery Co. 132, 157 v. Great W. Railw. 660, 673, 682 v. Green 662 v. Grimshaw 90 v. Hammond 697 v. Hampton 702 v. Heart of Oak Benefit So. 691 v. Hopkins 66 L v. Hull & Selby Railw. 686 v. Jones 660 v. Justices of Middlesex 662 v. Justices of Warwickshire 660 v. L. & C. Railw. 690 v. Lane. & Preston Railw. 699 v. Lane. & York Railw. 673, 682, 683, 692 v. Ledgard et als. M. of Boole 660 v. L. & L. Canal Co. 692 Res:. Liv. Man. & Newcastle- upon-Tyne R. Co. 156, 693 London & Bir. Railw. 425, 677 London & Blackwall Railw. 662 L. & Greenw. R. Bo. 368 Londonderry & Col. Railw. Co. 159 Lon. & Northwestern R. 389, 682, 692, 697 Lund it' 96 Mane. & Leeds R. Co. 377, 677, 694, 695, 700 Mariquita Mining Co. 229 Mavor of Bridgenorth 662 Mayor of Cambridge 662, 683 Major of Chester 680 Mavor of Dartmouth 662 Mayor of Poole 684 Mayor & Assrs. of Roches- ter 680 Mayor of Staniford 687 Mayor of York 683 Met. Comm. of Sewers 389 Met. Board of Works 354 Mid. Counties & Sh. Junc- tion Railw. 157, 690 Musson 335 Newcastle-upon-Tyne 677 N. Midland Railw. 358, 687 Norwich & Boston Railw. 658, 660 v. Pavn 684 v. Pickles 660 v. Port of Southampton 658, 684 v. Registrar 66 v. Revnolds 699 v. Rigby 425 v. Rochdale & Hal. & S. R. 693 v. Russell 423, 424 v. Saddlers' Co. 96, 229, 684 v. Saffron-Walden Railw. 414 v. St. Catherine's Dock 686 v. St. Margaret's, Leicester 684 v. St. Olaves v. St. Pancras v. St. Saviour v. St. Peter's College v. Sharpe v. Sheffield A. & M. Railw. 698, 699 v. Sheriff of Middlesex 368 v. Sheriff of Warwickshire 678 v. Southeastern Railw. 359, 418 v. South Holland Drainage 700 v. South Wales Railw. v. Thames & Issis Com. v. Townsend v. Train 698 683 662 662 425 697, 267 662 693 422 lxxxviii i \i;le OF CASES. Reg. p. Trustees of Balby & Work Bop Turnpike p. trustees of Luton Roads r. Trustees ol Swansea Har- bor r. United Kingdom Tele- graph < '". r. Victoria Park Co. 181, 687 676 :;77 422 686, 095 261 682 692 124 r. Waterford & L. Railw. r. YV. Midland R. r. \\ ilson r. \\ ing v. Woreesfo rshire & Staf- ford Railw. 690 o. York, N. & B. R. 682 : . 5 ork & N..M. Railw. 375, 503, 675, 683, 685 Reitenbaugh p. Chester Valley Railw. 255, 280, 281, 282 si laer iV Sar. Railw., matter of 506, 508 Rensselaer & W. PL Rd. Co. v. Barton Renthrop p. Bang Renwick v. N. York Cen. Railw Reuter p. Electric Telegraph Co e p. Boston Copper Co. Rex p. Allgood r. Amery p. Archbishop of C. p. Bagsbaw p. Hank of England p. Barker r. Bishop of Chester r. Bishop of Ely p. Bishop nf London p. I '■ ■ r. ( lambridge 178 268 571 629 79, 207 689 76 657, 679 :;77 679, 688 657,671 658 679, 690 658 690, 702 690 p. Churchwardens of Taunton 660 P. (lark.- 705 ii St. Aldwins 91 in. of C. Enclosure 692 p. < iommissioners of Nene Outfall 358 v. Doncaster 84 iversham 83 p. Fell 697 p. Guardians of Thame 660 o. Hertford 690 p. 1 1 ghmore 702 p. Ho tman of Newcastle-upon- Tj ne 689 r. Hungerford Market 361, 687 v. Inhabitants of Kent 42 1 p. Inhabitants of Lindsay 424 r. Justices of Kent 698 ticea of W. 1!. of York, in matter of Railw. 697 Rex r. fCerrison 12 i v. Kingston 660 p. Kirke 662 p. Lincoln's inn 690 v. Liverpool & .Manchester Railw. 361 v. London Assurance Co. 689 v. Marquis of Stafford 687 p.Martin 73 v. May 83 v. Mayor of Colchester 690 v. Mayor of Liverpool 377 p. M'Kay 702 v. Medley 539 v. Merchant Tailors' Co. 689 v. Montacute 660 v. Morris 425 v. M.itt 137 v. Mousley 702 v. Nottingham Old Water Works 393, 679 v. Quae Bank Com. 683 v. St. Catherine's Hall 690 v. Saunders 697 v. Severn & Wye Railw. 3, 694 v. Shelley 689 v. Sir William Lowther 702 v. Stainforth & Keadby Ca- nal ( 'o. 692 v. Tappenden 661 V. Thatcher 690 v. Tregony 690 v. Truro 703 v. Trustees of Norwich Roads 377 v. Trustees of Swansea Har- bor 685 v. Turkey Co. 690 v. Tyrrell 705 v. Vice-Ch. of Cambridge 76 v. Wallis 705 v. Williams 690, 702 v. Worcester Canal Co. 156, 161 v. Wright 422, 424 Rexford v. Knight 270, 280, 299 Reynolds v. Dunkirk & State Line Railw. 242 Rice v. Courtis 167 v. Dublin & Wicklow Railw. 415 v. Turnpike Co. 279 Rich v. Basterfield 529 Richards v. Sacramento Valley Railw. " 508 v. Scarborough Public Market Co. 409 Richardson, ex parte 17 v. Merrill 162 v. N. Y. Cent. Railw. 570 v. Hailw. Co. 223 t;. Southeastern Railw. 387 TABLE OF CASES. lxxxix Richardson v. Vermont Central Railw. 310, :U7 Richmond v. N. London R. :!71 Richmond & Petersburg Railw. v. Mrs. Jones 491 Richmond v. Sacramento Valley Railw. 499 Richmond Railw. v. Louisa Railw. 273 Richer v. Fairbanks 436 Rickett v. Met. Railw. Co. 354, 357, 360 Ricketts v. E. &W. I. Docks & B. i J. Railw. 487, 519 Ridley v. Plymouth Banking Co. 585, 601 Rioter's case 658 Ripley v. Sampson 175 River Dunn Nav. Co. v. N. Mid- land Railw. 208 Robbins, ex parte 686 v. Milwaukee & Horicon Railw. 279, 363 v. The Bury Improvement Commissioners 437 Roberts v. Button 595, 596 v. Great Western Railw. 512 v. Ohio & Mobile Railw. 193 v. Price 89 v. Read 575 v. Smith 550 Robertson v. Knapp 289 Robinson v. Chartered Bank 125 v. Nesbitt 184 v. New York & Erie Railw. • 312 v. Supervisors 696 Robson, in re 697 Rochester & Syracuse Railw. v. Budlong 278, 288, 292, 294 Roch. White Lead Co. v. Roch- ester 346 Roe v. Birkenhead, Lancashire, & Cheshire Junction Railw. 110 Rogers, ex parte 78,661 v. Bradshaw 273, 297, 298, 315 v. Huntingdon Bank 125 v. Kennebec & Portland Railw. 311, 335 v. Newburyport Railw. 511, 523 Romaine v. Kinshimer 697 Roman v. Fry 119, 125 Rood v. New York & Erie Railw. 476 Rose v. Truax 607 Rosenthal v. Madison PL Rd. Co. 66 Rosevelt v. Brown 148, 168 Ross v. Adams 363 v. Boston & Worcester Railw. 480 v. Elizabethtown & Somer- ville Railw. 285, 288, 296 Ross v. Lafayette & Ind. Railw. 192 v. Madison 536 Rouch v. Great Western Railw. 442 Rounds v. Mumford :!17 Rowe v. Shilson 425 Roxbury v. Boston &Prov. Railw. 242, 243 Royal British Bank, in re 153, 224, 591, 592 v. Turquand 602, 603 Royal Exchange Insurance ( !o. v. Moore 1 36 Rubottom v. McClure 299 Ruck v. Williams 635 Rundlc v. Delaware &Raritan Ca- nal Co. 58 Runyan v. Lessee of Coster 63 Russell v. Hudson River Railw. 548 Rust v. Low 267, 518 Rut. & Bur. Railw. v. Procter 586 Ryan v. Cumberland Valley Railw. 544, 555 v. New Y. Central Railw. 482 Ryder v. Alton & Sangamon Railw. 176, 194 s. S. F. &c. & S. Railw. v. Caldwell 278 S. T. & A. Railw. in re 360 Sabin v. Bank of Woodstock 166 v. Vermont Central Railw. 303, 404 Sacramento Railw. v. Moffatt 363, 504 Sadd v. Maldon, W. & Br. Railw. 376, 408 Saflfbrd v. B. & M. Railw. 483 Sagory v. Dubois 176 St. George v. Reddington 400 St. James' Club, in re 15 St. John v. Eastern Railw. 541 v. St. John 48 St. Louis, Alton & Terre Haute Railw. v. South 114 St. Louis & C Railw. v. Dalby 114 St. Louis C. Ct. v. Sparks 691 St. Luke's Church v. Slack 691 St. Mary's Church in the City of Philadelphia 66,78 St. Thomas Hospital v. Charing Cross Railw. 370 Salem v. Eastern Railw. 623 Salem Mill-Dam Co. v. Ropes 17, 118, 175, 189 Salem & So. Danvers Railw. v. County Comm. 700 Salomons v. Laine 33, 585, 588 xc TABLE OF CASES. Samp !; iwdoinhana Steam- Mill • ss Lewis '• ll) - ol - s ' ■ Neot - ; Union 62; Sand< »utb & Wash- tail w . ( " - indera 1 59, 160 Sir-, in o. Franklin [ns. Co. 124, 125, 126, 156 v. Webster 91 - r r. B. & Mi. PI. Railw. 278 lers, ex pa 157 S in r. I Make Railw. 18 Savings Bank v. Davis 84 Northfield 562 r. But. & Bur. Railw. 618, 632 Saxbv v. M. S., &c. Railw. 345 s r. Blane 133, 168 Sayre v. Louisville Union Benevo- lent Association 95 o. North W. Turnpike Co. 60 Scadding v. Lorant 85 rs o. Bait. & Wash. Railw. 486, 603 Schmidt v. M. & St. Paul Railw. 515 School 1 ;<>anl v. People 695 iol Directors of Bedford i; ii ough r . A: d< rson 689 er '•. Northern L. Railw. 271 meier v. St. Paul cc i'. Iw. 281 I i . Thoburn 278 Schwartz v. Hudson K. Railw. 578 \\ei-v 454, 155 l lark Till r. < orp • ation of Liverpool 437 r. Eagle Fire Co. 87 /•. Lord Ebury 12 v. London Dock Co. 46 1 v. Morgan 660 •akely 51 <■. W. &R. Railw. 486, 494 - ttiafa Northeastern Railw. v. v m 39, 51, 645, 674 518, 550, 555 Soci- Inatter of 183 le v. Lackawanna Railw. 309 v. Boston & Maine R. 5; 1 nnell 152 & Tenn. K. v. Tipton 72, 176, 201, 215 or of < !olumbus 608 !•■ p. London & Birmingham Railw. 263 i B .ii"-. v. A iburn & Roch. Iw. 310,315,318 Senior v. Met. Railw. 360 Serandat t>. Suisse 531 Sen-ell r. Derbyshire, Staff. & Wor. J. Railw. Sewall v. Boston Water Power Sewell V. Lancaster Bank Seymour V. Maddux v. Sturgess Sbamokin Valley Railw. v. Liver- more Sband v. 1 Lenderson Sharp r. Great Western Railw. Sharrod v. London &N. W. Railw. 486, 536 Shattuck v. Stoneham B. Railw. 289 Schauck V. Northern Central R. 545 Shaw v. Boston & Worcester 568, 576 142, 143, 144 142 598 165 117 546, . r ,;-,a 175 266 351 457 Railw. v. Fisher v. Holland v. Perkins 660 v. Rowley 133 v. Spencer 165 Shears v Jacobs 500 sin ild v. Troy & Boston Railw. 1U9 Sheffield, A. & M. Railw. v. Woodcock • 8, 11, 92, 127, 194 Sheldon r. Hudson River Railw. 476 Shepherd v. Buffalo, N. Y. & Erie Railw. 492 Shepardson v. M. & B. Railw. 300 Sherman v. Mayor of New York 438 v. New York Central Railw. v. Roch. & Sy. Railw 63 536, 544 v. Vermont Central Railw. 431 Shipley v. Mechanics' Bank 679 Shirley v. Ferrers 20, 48 Shoemaker v. Goshen Turnpike Co. 221 Shoenbergcr v. Mulhollan 288, 379 Shortridge v. Bosanquet 123 Shrewsbury & Birmingham Railw. v. London & Northwestern R. 37," 017, 621, 630, 041, 645 v. London & N. W. & Shrop- shire Union Railw. 017 Shrunk v. Schuylkill Nav. Co. 248, 317 Shurtz v. S. &T. Railw. 71, 72 Sigfried v. Levan 135 Silk Manuf. Co. v. Campbell 700 Sills v. Brown 581 Simpson v. Dcnison 465, 610, 642 v. Lancaster & Carlisle Railw. 376 v. Lord Howden 25, 37 v. Scottish U. Fire & Life Ins. Co. 658 TABLE OP CASES. XCl Simpson v. So. Staff. Waterworks Co. 251 v. Westminster Palace Hotel Co. 610 Sims v. Commercial Railw. 'M. r > Sinclair v. Pearson 536 Sixth Avenue Railw. v. Kerr 326 Skerratt v. North Staffordshire Railw. 503 Skip v. Eastern Counties Railw. 544, 547, ;>:>;> Slater, ex parte 169 v. Emerson 429 Slaymaker v. Gettysburg Bank 121 Sleath v. Wilson " 536 Small v. Herkimer M. & H. Co. 177 Smart v. Guardians of the Poor of Westham Union 626 v. Railway 300 Smith & Co. in re 130 Smith v. Allison 411 v. Birmingham Gas Com- pany 537 v. Boston 316, 678 v. Boston & M. Railw. 272 w. Commonwealth 661 v. Crooker 135 v. Eastern Railw. 488 v. Erb 660 v. Great Eastern Railw. 542 v. Helmer 300 o. Hull Glass Co. 602 v. Ind. & 111. Railw. 192 v. Law 85 v. London & St. Katherine's D. Co. 634 v. London & S. W. Railw. 483 v. Maryland 337 v. McAdams 800 v. New York & Harlem Railw. 546, 632 v. Pelah 474 v. Reese River Silver Min- ing Co. 151 Smyth, ex parte 702 v. Darley 89 Snodgrass v. Gavit , 455 Snow v. Housatonic Railw. 545 Snowden v. Davis 466 Snyder ». Penn. Railw. 305 Society of Practical Knowledge v. Abbott 119 Solomons v. Lang 155 Somerset Canal Company v. Har- court 366 Somerville & E. Railw. v. Doughty 278, 283 Som. & Ken. Railw. v. Gushing 191 Soper v. Buffalo & Roch. Kailw. 584 South Bay Meadow Dam Co. v. Gray 117, 177, 211 South Carolina Railw., ex parte 410 v. Blake 261, 366, 410 Southeastern Railw. v. Brngden 442 v. European & Am. Tel. Co. 421, 536 v. Queen 417 South Essex Gas Light & Coke Co. in re 610 Southampton Bridge & I. Co. V. Local Board of Health 635 Southmayd v. Russ 125 South Staffordshire Railw. v. Burn- side 169 v. Hall 388 S. Wales R. Co. v. Richards 697, 699 in re Richards 503 South Wales Railw., ex parte 383 Southwestern Kailw. v. Coward 387 Southwick v. Estes 533 South worth v. Old C. Railw. 569 South Yorkshire & Goole Railw. in re 660 South Yorkshire & River Dun Co. v. Great Northern Railw. 617, 646 South Yorkshire Railw. v. Great Northern Railw. 617 Spackman, ex parte 157, 588 v. Evans 590 vi, Lattimore 17 Sparks v. Liverpool Waterworks 226 Sparling v. Parker 120 Sparrow v. Evansville & Craw- fordsville Railw. 213 v. Oxford, &c. Railw. 251, 368, 369, 374 Spartanburgh & Union Railw. v. De Graffenreid 213 Spear & Carlton v. Newell 614 Spear v. Crawford 176 v. Richardson 292 Spering v. Smith 612 Spooner v. McConnell 337 Spottiswoods's case 16 Sjiringfield v. Conn. River Railw. 253, 260, 273, 315 Spry v. Emperor 466 Squire v. Campbell 404 Stacey v. Vt. Central Railw. 256, 801 Stahl v. Berger 135 Stainbank v. Fernley 150 Stamps v. Bir., Wolv., & Stour Valley Railw. 376, 383 Standish v. Mayor of Liverpool 382 Stanhope's Case 588 Stanley v. Chester & Birkenhead Railw. 27 mi TABLE OP CASES. St inli v r. Stanley 1 18 S . -.in 215 Staple i i. London, V>- & So. ilw. 600 Starr p. Child I ire [ns. Co. 648 A. P. Hunton & others 708 p.Ashley 691,702 v. B. \ 0. Railw. 251 . ( loncord, & Mon- treal Railw. 94, 263, 651, 691 o. Bank of Louisiana _ N ~ ■ idford Village 705 , . Brown 701, 702 o. < lamp 108 r & Evesham 660 ( Commercial Bank of Man- ster 703 Common < iouncil 691 Comm. of Mansfield 41 1 Concord ,\. M. Railw. 703 ( lounty Judge 677 Davenport 677 on 77,302 Digby 278 Directors of Bank Franklin Hank 121 Garretson 302 Goold 112 am Great Works Mill & Man. Co. 537 ford & X. Haven R. 675, 676, Hastings 660 Hessenkamp 326 Holiday 679 Hudson 699 Jersey City 696 uk 677 Lynch 691, 693 . McBride 7<>2 . Merchants 1 Ins. Co. 702 . Merry 702 Miller -. Railw. 701 Essex 1! lilw. 533 Norwalk & Danbury Turn- pike < o. 106, 246, 410 rton 106, 108 246, 27o 114 lis 1*. M. & Life 702 Thom] 109 'I'm lor 85 Turk 702 State v. Vermont Central Railw. 535 r. Wheeling Bridge < !o. 337 v. Wilmington & Manch. Railw. 622 State of Maryland r. Baltimore & Ohio Railw. 571 Stearns c. <>lii Colony cSc Fall River Railw. 511 Stears v. S. Essex Gas Light & Cuke Co. 611 Stebbing v. The Met. Board of Works 250 Steel v. Southeastern Railw. 332, 503, 528 604 371 47 346, 530 11 Steele v. Harmer v. Midland Railw. v. North Met. Raih v. S. Eastern Rail. Steigenberger v. Carr Siein r. [nd., &c. As-ociation Steinweg v. Erie Railw. Stephens v. De Medina Stetson v. Faxon Stevens v. P. & N. Railw. v. Rutland & Burlington Railw. v. South Devon Railw. 620, 652 Stewart's Estate, in re 234. Stewart v. Anglo-California Gold Mining Co. v. ( auty v. Hamilton College v. Raymond Railw. Stikeman v. Dawson Stiles v. Western Railw. Stilphin v. Smith Stockbridge v. West Stockbridge Stockton & Darlington Railw. v. Brown 252, 408 Stockton & Hartlepool Railw. v. Leeds & Thirsk & Clarence Railws. Stoddard v. Onondaga Annual Con- ference Stokes v. Grissell v. Lebanon & Sparta Turn- pike Co. Stone u. Cambridge v. Commercial Railw. 351, 368, 375 Stoneham Branch Railw. v. Gould 179, 189 Storey v. Ashton 536 Stormfeltz v. Manor Turnpike Co. 253 Straffon's Executors, . Lowe 137 Touehe v. Met. R W. Co. 45 Tower v. Prov. & Wor. Railw. 521 Prov. & I ' t i < ■ ; i Railw. 488 Towle r. The State 679 Towns v. Cheshire Railw. 486, 519 Townsend v. Ash 120 Townshend v. Susquehannah T. Co. 634 Tracy v. Troy & Boston R. 493 r. Fates 201 Trask o. Hartford & New H. Rail. 482 Tremain o. Cohoes Company 303 Trenton Water Power Co. v. Chambers 284 Troupe, in re 647 Trow v. Vermont Central Railw. 491, 572 Troy >•. Cheshire Railw. 315, 350 Troy >S: Boston Railw. v. Lee 278, 283 v. Northern Turnpike Co. 283, 288, 295, 310 v. Potter 264 r. Tibbitts 176, 202, 215, 216 o. Warren 215 Troy & ( rreenfield Railw. v. Newton 190 Troy & Rutland Railw. v. Kerr 176, 202, 617 Troy T. Co. v. McChesney 176 1 . . Loder 140 Truate 695 of Presbyt. Society of Waterloo P. Auburn & Roch. Railw. 58, 314 Tuckahoe Canal Co. v. Tuckahoe Railw. 253 Tucker r . S Lid Society 67 Tunnej p. Midland Railw. Co. 552 Tuohey v. G i W. Railw. 354 Turner v. Sheffield & R. Railw. 303, 351 Turnpike Co. V. Hosmer 410 r. Railw. Co. 177 Turnpike Co. v. Wallace Turnpike Road v. Brosi Turquand v. Marshall Tyrrell r. Woolley U. 59 363 596 595 Dnangst's Appeal 233 Underbill v. New York & Harlem Railw. 494 v. Saratoga & Wash. Railw. 237 Underwood v. Bedford & Cam- bridge Railw. 369 v. Hart ' 431 Union Bank v. Knapp 228 v. Laird 125 Union Bank of Tennessee v. State 121 Union Locks & Canal Co. v. Towne 206 Uniontown v. Commonwealth 677 U. S. v. Arredondo 253 v. Harris 265, 270 v. New Bedford Bridge Co. 337 v. Railw. Bridge Co. 247, 343 v. Robeson 455 v. Vaughan 125 United States Bank v. Dandridge 430 Unity Ins. Co. v. Cram 74 Unthank v. Henry County Turnp. Co. 179 Upfill's case 15, 173 Upton v. South Reading Branch Railw. 277, 289 Utica & Schenectady Railw. v. Brinkerholf 185, 216 Utica Bank v. Ilillard 228 Utica Railw., matter of 278 V. Vail v. Morris & Essex Railw. 285, 287, 295 536 573 Vanderbilt v. Richmond T. Co. Vardergrift v. Rediker 490, 520, Vanderkar v. Rensselaer & Sar. Railw. 504, 520 Vanderwerker v. Vermont Central Railw. 432 Vanegril't v. Railway 538 Van Wickle v. C. & A. Railw. 698 w. Railw. 256, 285, 294 Varick v. Edwards 145 Varillat v. N. O. & Car. Railw. 576 Varrick v. Smith 246 Vaughn v. Co. of Gunmakers 669 Vaughan v. Taff-Vale Railw. 475 TABLE OF CASES. xcv Vauxliall Bridge case 48 Yauxhall Bridge Co. v. Earl of Spencer 19, 24 Vawter v. Ohio & Miss. Railw. Co. 206 Veazie v. Mayo 239, 323 v. Penobscot Railw. 324, 419 Vermont Central Railw. v. Baxter 259, 263, 618 v. Burlington 411 v. Clayes 215 v. Hills 237 Vermont & Canada Railw. v. Vt. Central- Railw. 251 Vermont & Mass. Railw. v. Fitch- burg Railw. 636 Vicksburg & Jackson Railw. v. Patton 490 Vicksburg, Shreveport, & Texas Railw. v. McKean 168, 186, 200, 203 Victory v. Fitzpatrick 350 Vilas v. Milw. & Miss. Railw. 239, 352 Vinal o. Dorchester 562 Violet v. Simpson 575 Visebe.r v. Hudson River Railw. 385 Von Schmidt v. Huntington 80 Vose v. Grant 182 w. W. & L. Railw. v. Kearney 425 W. N. W. Co. v. Hawksford 17 W. & P. Railw. Co. v. Washington 294 W. & R. Railw. v. Stauffer 477 W. W. V. Railw. v. Quick 486 Wadhams v. Lackawanna & Blooms. Railw. Co. . 300 Wainwright v. Ramsden 362 Waitman, ex parte 162 Wakefield v. Conn. & Pass. Rivers Railw. 568 Waldo v. Chicago, St. Paul, & Fond du Lac Railw. 250 V. Martin 606 Waldron v. Portland S. & P. Railw. 488 v. Rensselaer & Sar. Railw. 487 Walker's case 125, 162, 611 Walker v. Bartlett 134. 146, 148 v. Boiling 550 v. Boston & Maine Railw. 248, 283, 286, 339 v. Devereaux 72, 171 v. Eastern Counties Railw. 239 v. Great Western Railw. 542 v. London & BI. R. 375, 677 v. Milne 120 v. Mobile & Ohio Railw. 187 Walker V. Old Colony & Newport Railw. 278, 307 V. South Eastern Railw. Co. Ill v. Ware Railw. 257 Wallingford Manufacturing Co. v. Fox 12 Walstab v. Spottiswoode 14 Walter v. Belding 661 Wanless v. The North Eastern R. 578 Wansbeck Railw. in re 427 Warburton v. Great Western R. 557 Ward v. Griswoldville Manuf. Co. 176 it. Londesborough 14 v. Lowndes 664, 677, 682 v. Southeastern Railw. 130 Ware v. Grand Junction Water Works 80, 207 v. Regents' Canal Co. 306, 358, 398 Waring w. Manch., Sheffield, & L. Railw. 442 Warner v. Callender '211 v. Erie Railw. 545 v. Mower 84 v. N. Y. Cent. R. 578 Warren v. Fitchburg Railw. 569 v. State 324 Warren Railw. Co. v. State 419 Warring v. Williams 135 Wash. & Bait. T. Road Co. v. State 706 Waterbury v. Hartford, Prov. & F. Railw. 680 Waterford, Wexford, & W. Railw. v. Dalbiac 189 v. Pidcock 198 Waterman v. Conn. & Pass. River Railw. 312, 359 Water Power Co. v. Chambers 236, 242 Waterman v. Trov & Greenfield Railw. 220 Waters v. Moss 499 v. Quimby 541 Watkins v. Great Northern Railw. 260, 349, 351 Watson v. N. Y. Cent. Railw. 286 v. Reid 241 Watts v. Porter 184 v. Salter 14, 15 v. Watts 146 Webb v. Direct London & Ports- mouth Railw. 28, 29,37, 40, 41, 42 v. Man. & Leeds Railw. 251, 259, 376, 581 v. P. & K. Railw. 569 Webber v. Eastern Railw. 290 XCV1 TABLE OP TASKS. Erie & Mad River lw. 220 Penn. Railw. 5 15 ecb 56 l Weld i & Southwestern ■.. Co. 11, 873, 413 Lailw. i?. Berrie 180 120 . [Iowell 519 a. a.- Ken. Railw. < Wesli jpaper Association, S. & W. Dire 595 . II. L. V. & T. II. Railw. 631 \\ . I -;.r Railw. v. Miles 1 15 West Cornwall R. v. Mowatt 168 1 'M Railw. v. London & N. W. Railw. 637 West Philadelphia Canal Co. v. [lines 195, 197 River Bridget*. Dix 272. 273, 275, 276 Western Maryland Railw. v. Ow- ings 351 em Penn. Railw. ( !ompany v. Hill 356 □ Railw. v. Babcock 241 m p. Bennett 430 o. Poster 268 Wesi 130 lomon 137 ry 318 We} nit v. N. V. & Harlem Railw. 550 Whaalan v. M. R. & Lake Erie Railw. 548, 555 Wheeler v. Roch. & Sv. Railw. 268, 16, 505 Wheelo I. v. Moulton 13, 121 r. Young & Pratt 259 Whipple v. Walpole 291 Whiteomb v. Vermont Central Railw. 234, 311 White's <'ase 669 . & Prov. Railw. 350 r. Brown 479 barlotte & S. C. Railw. 277 v. Concord Railw. 292, 506 o. Fitchburg Rail. ■ incy 425 p. S Shore Railw. 307 v. Vt. & Mass. Railw. 135 White Mountain Railw. v. East- man 91, 172. 177, 190 White Ri . p. Vt. Cent. lw. 272, 27:5, 315 Mitheastern Railw. 0, 595 Whitehouse v. Androscoggin Railw. 303, 304 r. Fellows C;J5 Whiteman v. Wilm. & Susq. Railw. 534 White River Bank 691 Whitfield v. Zellnor 428 Whitman v. Boston & Maine Railw. 235, 239, 280, 287 Whitney v. At. & St. L. Railw 509 Whittaker v. Boston & Maine Railw. 570 Whittier v. Ken. & Portland R. 311 Whitmarsh Township v. PhiLGer. & N. Railw. Co. 678 Whitwell v. Warner 17, 583, 594 \\ iggett v. Fox cf al. 550, 556 Wiggin v. Free-Will Baptist So- ciety 83 Wight v. Shelby Railw. 172, 199, 202 Wigmore v. Jay 544, 555 Wilcox v. Rome & Watertown R. 569 Wiley & Moor 135 Wilkins v. Roebuck 591 Wilkinson v. Anglo-California Gold Co. .„ 156 v. Lloyd 122, 127, 141 Willard v. Newbury 561 Willcocks, ex parte 86, 91 Willey v. Southeastern Railw. 383 Williams v. Androscoggin & Ken- nebec Railw. 429 v. Archer 124 v. Bank of Michigan 61 v. Chester & Holvhead Railw. 430 v. Great Western Railw. 99 v. Hartford & New Ha- ven Railw. 255 V. Jones 531, 686 v. Judge of County Ct. 695 v. Michigan Central R. 488, 490, 520 v. Natural Bridge Co. 316 v. New Albany A: Salem Railw. 511 v. New York Central Railw. 240, 315, 316, 318, 321, 507 v. Pigott 16 v. St. George's Harbor Co. 13, 46 v. South Wales Railw. 376 v. Wilcox 423 Willing v. Baltimore Railw. 294 Wills v. Bridge 132, 134 v. Murray 84, 90 Willyard v. Hamilton 299 Wilmington & Manchester Railw. v. Saunders 76 Wilmington & Raleigh Railw. v. Robeson 185 TABLE OP CASES. XCV11 Wilt. & Read. Railw. v. Stauffer 278 Wilmot v. Corporation of Coven- try 604 Wilson v. iEtna Insurance Co. 454 v. Anderson 3 v. Blackbird Creek Marsh Co. v. Cunningham v. Goodman v. Keating v. Merry v. Miers v. Railw. Co. 337, 340 3, 575 597 170 547 596 492 v. West Hartlepool Har- bor & Railw. Co. 593, 630 Win v. Wilson o. York & Md. Railw. & St. Peters R. v. Denman 93 438 279, 282 280 v. Waldron Winch v. Birkenhead, L. & C. Railw. 620 Winter v. Muscogee Railw. 207, 209 Winterbottoin v. Wright 632 Witmer v. Schlatter 17 Witter v. Miss. O. & R. Railw. Co. 411 Wolfe v. Covington & Lexington Railw. 311, 315 Wolverhampton N. W. Co. v. Hawksfor Wonder v. Bait. & Ohio Railw. Wood v. Auburn & Roch. Railw. v. C. & C. Railw. v. Duke of Argyll v. Dummer v. Epsom & L. Railw. v. McCann v. North Staffordshire R. v. Stourbridge Railw. Co. v. Vermont Central Railw Woodfin v. Insurance Co. Woodfolk v. Nashv. & C. Railw. 173 556 590 118 11 182 375 607 425 360 461 99 279, 280 531 657, 697 135 Woodman v. Joiner Woodstock v. Gallup Woolley v. Constant ' v. North London Railw. 229 Woolson v. Northern Railw. 519 Wootton's Estate 363 Worcester & Nashua Railw. v. Hiiuls 189 Worcester Turnpike v. Willard 175 Works v. Junction Railw. 343 Wormwell v. Hailstone 687 Worrall v. Judson 148 Worsley v. South Devon Railw. 373 Wright v. Coster 317 v. Fawcett 660 v. Gossett 512 v. Ind. &c. Railw. 521 v. N. Y. Central Railw. 545, 555, 556 v. Petrie 183 v. Scott 341 v. Warren 162 v. Wilcox 533 Wyatt v. Great Western R. Co. 565 Wycombe Railw. v. Donnington Hospital 242 Wyman v. Lexington & West Cambridge Railw. 289, 398 v. Pen. & Ken. Railw. 514 Wynn v. Allard 572 v. Shropshire Union Railw. & Canal 652 Wynne v. Price 144, 148 Wynstanley v. Lee 352 Wyrley Nav. v. Bradley 313 Yarborough v. Bank of England 533 Yates v. Milwaukie 337 Yeizer, case of 307 York & Cumberland R. v. Pratt 189 York & N. Midland R. v. Milner 685 v. Reg. 664, 674 Young v. Harrison 299 v. N. Y. Central Railw. 528 v. Yarmouth 562 z. Zabriskie v. C. C. & C. Railw. 74, 84, 584, 590 v. Jersey City & Bergen Railw. Co. 325 Zack v. Penn. Railw. 283 Zimmerman v. Union Canal Co. 248, 299, 317 ANALYTICAL INDEX OF APPENDIX OF LATER CASES, REPORTED WHILE THE WORK WAS IN PRESS. CORPORATIONS. PAGE of shares on stock exchange, custom, usage 709 bene of atock 709 Misapplication of joint stock 710 EMINENT DOMAIN. Constructive power to take private property 710 Compensation 711 Designation of route of railway 711 Surveys of the line and notice to land-owner 711 Taking land by railway company 711 Lands injuriously affected 711 Riparian owners 712 Railway station 712 Railway crossing highway 712 Right of way by dedication 713 Land damages do not pass to grantee 713 Right to take land tor national use 713 fires 713 FENCES 713 INJURY TO FELLOW-SERVANTS 715 contracts ultra vires. Between railways as to future legislation 715 To issue preferred stock 715 Money obtained from contract ultra vires '.'.'. 716 CONSTRUCTION. 1 1 stance, how measured 71g ............ 716 COMMON CARRIERS. sibUity for acts of servants 71« Baggage, what is 717 ANALYTICAL INDEX OF LATER CASES. XC1X "When carrier's responsibility attaches 717 Damages for non-delivery in time 717 Stoppage in transitu. Consignor, consignee 717 COMMON CARRIERS OF PASSENGERS. Regulations as to passengers 717 Using unnecessary force in expelling from cars 718 Leaving street cars 718 Evidence ; declarations of servant ; res gestae 718 MANDAMUS 718 CONSTITUTIONAL QUESTIONS. SECTION V. Power of Congress to regulate traffic on Interstate Railways. From whence such poioer is derived. How illustrated. ORIGINAL PURPOSE OF THE PROVISION. The natural import and construction of the terms 720 !Not restricted to the then existing modes of transportation 720 Commerce embraces all the intercourse among nations or states ; the means and appliances of trade and communication, in all its parts and bearings ; passengers as well as commodities 721-723 The railway traffic, extending beyond the limits of one state, must either be no part of the commerce of the country, or else be subject to the control of Congress. If not, it is not subject to any supervision 723 CONSIDERATION OF THE DECISIONS. Review of the decisions of the national courts on the question. The regula- tion of commerce extends to all waters in fact navigable for boats of ten tons burden and upwards. Communicating with different states .... 723 The exceptions from the powers of Congress to regulate commerce .... 724 The control and regulation, by Congress, of interstate traffic upon railways seems a necessity 724 It argues lameness in the government to suppose the contrary 725 CONGRESSIONAL LEGISLATION. Comments upon the legislation of Congress and the opinions of federal judges directly upon the point 725 Summary of the results, and the prospects for the future 727 TABLE OF CASES OF APPENDIX OF CASES. PAGE Agassiz r. Li union Tramway 718 Baird p. Pettil 715 I lity Railw. r. Sewell 709 Beckett p. Met. Railw. 712 Bigelow r. \V. W. Railw. 711 Bradley p. Ballard 716 Bryant p. Rich 71/ Burt v. Merch. Ins. Co. 713 Central Railw. p. Mayor of Macon 715 Chicago & X. W. Railw. v. Jack- 715 Chusan, The 723 City of Hannibal v. Hann. St. J. Railw. 710 ( !olcman v. X. Y. & N. II. Railw. 718 Comings v. Hann. & Cent. Mo. Railw. 714 Comstock P. De Moines V. Railw. 714 Connelly p. Warren 717 Cooley v. Board of Works 72-1 ( Irocker v. < Hd South Church 718 Curtis v. Emery 712 Dewey v. Chicago & N. W. Railw. Eaton v. B. C. & M. Railw. Ells v. Pacific Railw. Foster v. Davenport 714 711 714 724 Genesee Chief v. EitzIIughes 724 Gibbons p. Ogden 720, 721, 722, 723 Giliiiau r. Philadelphia 724 Gray V. Clinton Bridge 725 Halderman v. Beckwith 724 Hazlehursl O. Savannah Railw. 710 Holden p. Rut. & i'». Railw. 714 Unit p. Gas Light & Coke Co. 712 Iluddleston v. Lowell Math. Shop 715 Jark-on p. Ch. & X. W. Railw. 713 Jeff. M. & Iinl. Railw. v. Park- hiirat 714 PAGE Jolly v. T. II. Draw Bridge Co. 724 Lemraon v. Chic. & North West. Railw. 714 Maroney v. Old C. & N. Railw. 717 Maxted v. Paine 709 Mc( larthy v. Met. Bd. Works 712 McFadden v. Johnson 713 Merry v. Nickalls 709 Mohrw. B. & A. Railw. 717 Monflet v. Cole 716 Murphy v. Deane 718 New York & Boston Railw., ex parte 711 Nichols v. Middlesex Railw. 718 North London Railw. v. St. Ma- rys • 713 Norton v. Wallkill V. Railw. 711 Passaic Bridge, The 723, 724 Pennsylvania v. Wheeling Bridge Co. 723 Pickering v. Stephenson 710 Pittsb., Ft. Wayne & Ch. Railw. v. Maurer 713 Rennie v. Morris Rickett v. Met. Railw. 709 712 Scott v. B. & N. O. Steamb. Co. 717 Shipley v. Fifty Associates 716 Silliman v. Hudson River Br. Co. 723 Tinney v. Bost. & Alb. Railw. 715 Tomlin v. Dubuque, &c. Railw. 712 Trice v. Hann. & St. J. Railw. 714 United States v. Railroad Br. Co. 723, 724 Watts v. Boston & Lowell Railw. 717 Woodman v. Kilbourne Man. Co. 724 Veazie v. Moor 724 THE LAW OF RAILWAYS. *CHAPTER I. INTRODUCTION. 1. Origin of railways in England. 2. First built upon one's own land, or by special license from the owner. 3. Questions in regard to private railways. 4. Railways in America, public grants. 5. Use of steam power on railways. 6. The franchise of a railway not necessarily corporate, nor unassignable. § 1. 1. Although some of the Roman roads, like the Appian Way, were a somewhat near approach to the modern railway, being formed into a continuous plane surface, by means of blocks of stone fitted closely together, yet they were, in the principle of construction and operation, essentially different from railways. The idea of a distinct track, for the wheels of carriages, does not seem to have been reduced to practice until late in the seventeenth century. In 1676, some account is given of the transportation of coals near Newcastle, upon the river Tyne, upon a very imperfect railway, by means of rude carriages, whose wheels ran upon some kind of rails of timber. 1 About one hundred years afterwards, an iron railway is said to have been constructed and put in operation at the colliery near Sheffield. From this time they were put into very extensive use, for conveying coal, stone, and other like sub- stances, short distances, in order to. reach navigable waters, and 1 Roger North's Life of Lord Keeper North, vol. 2, p. 281 ; Ency. Americana, Art. Railway, vol. 10, p. 478. And in all the mediaeval towns in Europe, we notice double granite flagging along the streets, for the wheels of carriages. And in the main street in Milan, and some other Italian towns, there are double tracks of this kind for carriages to pass in opposite directions. These granite blocks in the streets, for the wheels of carriages, are seen in Canterbury and in York. England ; and in most of the Italian cities. But they seem never to have suggested the idea of railways. VOL. I. 1 [*1] •J INTRODUCTION. CH. I. BOmetimes near the cities, where large quantities of stone were requisite for building purposes. These railways, built chiefly by the owners of coal-mines and stone-quarries, either upon their own land or by special license, called way-leave, upon the land of others, had become numerous long before the application of steam power to railway transportation. 3. Some few questions in regard to the use of these railways, or tramways, at common law, have arisen in the English courts. 2 But as no such railways exist in this country, it would scarcely be expected we should here more than allude to such cases. 3 s Walford on Railways, 2; Hemingway ». Fernandes, 13 Simons, 228. This Beema to establish the rule, that a covenant to erect a railway across the land of another, and to use the same exclusively for a given transportation, is binding upon the assignees of the interest. But a mere covenant to use an adjoining railway, and pay a specified toll, does not run with the land then used by the covenanter, and from which he derives the material transported. Kep- pellr. Bailey, 2 My. & K. 517. ' Walford, 3-10. The points chiefly discussed in the reported cases in refer- ence to private railways and railways at common law, are : — 1. That these way-leaves, or reservations, by which one man has the right to build a railway upon the land of others, or in the rightful occupation of others, arc not to be limited to the kind of railway in use at the date of the reservation or grant, but will justify the building of a railway, suitable and convenient for the use tor which the reservation or grant is made, and with all such needful or useful improvements, as the progress and improvements of art and science will enable the grantee to avail himself of. Dand v. Kingscote, 2 Railw. C. 27 ; s. c. 6 -M. & W. 171. Hence it was considered that such railways might, upon the general application of steam power to railways, adopt that as an improve- ment, coming fairly within the contemplated use of their grantor reservation, although wholly unknown at the date of their grant. Bishop v. North, 3 Railw. C. 459; s.c. 11 M. &W. 418. 2. That this will not justify the grantee of a way-leave for a railway, for a special purpose, to erect one for general purposes of transporting merchandise and passengers. Dand v. Kingscote, 2 Railw. C. 27 ; s. c. 6 M. & W. 174. Far- row v. Vansittart, I Railw. C. 602; Durham & Sunderland Railw. et als. v. Walker, 3 Railw. < '. 36 ; s. c. 2 Q. B. 940. In this last case, which was a deci- sion ol the Exchequer Chamber, the way-leave Was retained by the landlord in leasing the land, and the court say, it is not an exception, for it is not parcel of the thing granted, and it is not a reservation, as it did not issue out of the thing ted, but it is an easement, newly created, by way of grant, from the lessee. And that it was to be presumed the deed was executed by both parties, lessor Bui it was held, that where, by a canal act (32 Geo. 3, c. 100, .. the i roprietore of coal-mines, within certain parishes, are empowered to make railways to convey coal over the land of others, by paying or tendering [•2] § 1. INTRODUCTION. o * 4. All railways and other similar corporations in this country exist, or are presumed to have originally existed, by means of an express grant from the legislative power of the state or sovereignty. 4 5. The first use of locomotive engines upon railways for pur- poses of general transportation does not date further back than October, 1829 ; and all the railways in this country, with one or two exceptions, have been built since that date. 5 satisfaction, that this power was not limited to such persons as were the proprie- tors, at the date of the act, but extended to subsequent proprietors. Bishop v. North, 3 Railw. C. 459 ; s. c. 11 M. & W. 418. 3. That if the railway was such an one as the company, at the time when it was made, might lawfully make, for the purposes for which, when made, they might lawfully use it, the plaintiff, as reversioner, had no ground of complaint, by reason of the intention of the company to use it for other purposes, for which they had no right to use it, until such intentions were actually carried into effect. Durham & Sunderland Railw. v. Walker, 3 Railw. C. 36; s. c. 2 Q. B. 940. But where other parties have acquired the right to use a railway originally erected by private enterprise and for private purposes, the English courts at an early day restrained the owners of the railway by mandamus from taking up their track, and required them to maintain it in proper condition for public use. Rex v. Severn & Wye Railw., 2 B. & Aid. 646. But see Thorne v. Taw Vale R., 13 Beavan, 10. 4. That such way-leaves, for the erection and use of railways upon the land of others, may exist by exjiress contract; by presumption or prescription; from necessity, as accessory to other grants; and by acquiescence, short of the limit of prescription. Barnard v. Wallis, 2 Railw. C. 162; s. c. 1 Cr. & Ph. 85 ; Mon- mouthshire Canal Co. v. Harford, 1 C. M. & R. 614. These railways, at com- mon law and by contract, impose certain burdens upon the proprietors, as the payment of rent sometimes for the use of the land, tenant's damages, and the keeping their roads in repair, so as not to do damage to the occupiers of the adjoining lands. Wilson v. Anderson, 1 Car. & K. 544 ; Walford, supra. 4 2 Kent, Comm. 276, 277; Stockbridge v. West Stockbridge, 12 Mass. 400 ; Hagerstown Turnpike Co. v. Creeger, 5 Har. & J. 122 ; Greene v. Dennis, 6 Conn. 292, 302, Hosmer, Ch. J. ; Franklin Bridge Co. v. Wood, 14 Ga. 80. But from the case of Wilson v. Cunningham, 3 Calilbrnia, 241, it seems that the municipal authorities of San Francisco did assume to grant a private railway within the limits of the city. The court held the proprietor liable for the slight- est negligence in its use, whereby third parties were injured. Post, § 250. 5 The celebrated trial of locomotive engines upon the Liverpool and Man- chester Railway, for the purpose of determining the relative advantage of stationary and locomotive power upon such roads, and which resulted in favor of the latter, was had in October, 1829. The Quincy Railway, for the trans- portation of granite solely, by horse power, was constructed about two years before this. But the Boston and Lowell Railway, one of the tirst railways in this country for general transportation of passengers and merchandise by tin' use of [*3] •4 INTRODUCTION. CH. I. * 6. There is nothing in the prerogative right of maintaining and operating a railway and taking tolls thereon which is necessarily of a corporate character, or which might not, with perfect pro- priety, belong to, or he exercised by, natural persons, or which in its nature may not he regarded as assignable. 6 steam power and locomotive engines, was incorporated in June, 1830. And rail- ways tin - purposes of general traffic were constructed about the same date in most of the older Btates, and very soon throughout the country. 8 Bennett, J., in Bank of Middlebury v. Edgerton, 30 Vt. 182. [*4] PAUT I. THE LAW OF PRELIMINARY ASSOCIATIONS. PART I. THE LAW OF PRELIMINARY ASSOCIATIONS. CHAPTER II. PUBLIC RAILWAYS AS CORPORATIONS. PRELIMINARY ASSOCIATIONS. SECTION I. Mode of instituting Raihvay Projects. 1. Subscribers' associatio?is in England. 2. Subscribers bound by subsequent charter. 3. Issue and registry of scrip certificates. 4. Original subscriber liable to unregistered purchaser. 5. Holders of scrip entitled to registry. 6. Preliminary associations not common in this country. 7. Petitioners for incorporation file plans and surveys. 8. Present English statutes. 9. Preliminary Associations may be regis- tered. 10. Not now held responsible as partners in England. § 2. 1. The mode of instituting railway enterprises, in England, is more formal and essentially different, from that adopted in most of the American states. There the promoters usually associate under two provisional deeds, the one called a " Subscribers' Agree- ment," and the other a " Subscription, or Parliamentary Contract," which are expected only to serve as the basis of a temporary organ- ization till the charter is obtained. This is specifically and often in detail to some extent provided for, in the subscribers' agreement. A board of provisional directors is provided to carry forward the enterprise, whose powers are defined in the subscribers' agreement or deed of association, and whose acts will not bind the members unless strictly within the powers conferred by the deed. 2. Under this form of association, the subscribers are bound by the act obtained, if within the powers conferred by the deed, even where it involves the purchase of canal, and other property by the company. 1 And courts of equity often interfere to restrain the 1 Midland Great Western Railway v. Gordon, 16 M. & W. 804. [*5] 8 PRELIMINARY ASSOCIATIONS. PAET I. provisional directors from exceeding their powers under the deed, 2 *or misapplying the funds, or delaying payment of the dents of the association. 8 3. The provisional directors usually issue scrip certificates, which pass from hand to hand hy delivery merely, and, after the charter is obtained, the scripholders are registered as shareholders in the company, and thereby become entitled to all the rights, and subject to all the liabilities of the shareholders. 4 1. And if the original subscriber sell the scrip to one who omits t,. have his name registered as a shareholder, by reason of which the original subscriber canst; his name to be registered and sell the shares again, he will be held to account for the avails of the second sale, as a trustee for the first purchaser. 5 5. But the company arc not obliged to accept of the holders of scrip as shareholders, in discharge of the original subscribers, it has been said, but may insist upon registering the original sub- scribers to the deed of association, to whose aid it may be presumed the promoters looked in undertaking the enterprise, which by their act of incorporation they are morally, and in some cases legally, bound to carry forward.'' But the English decisions, upon the whole, hardly seem to justify this proposition. The subscriber • .1 v. Cooper, I Railw. C. 396; s. c. 15 Sim. 343. All parties con- cerned must be made parties to the bill, even shareholders of whom it is alleged a rival company propose to purchase shares, to destroy the independency of one of the companies connected with the common enterprise. Greathed v. S. W. & Dorchester Railway, 1 Railw. ('. 213; s. c. 10 Jur. 343. J Lewis v. Billing, 4 Railw. C. 414; s. c. 10 Jur. 851. Bagshaw v. Eastern Union Railway, 6 Railw. C. 152; s. c. 7 Hare, 114; Bryson V.Warwick & Birmingham (anal Co., 23 Eng. L. & Eq. 91; s. c. 4 De G. Mae. & G. 711. In tlii- last case, the railway company being only provisionally registered, expended £10,0 >0 in the purchase of the stock of the defendants. The railway finally failing to go into operation, in the process of winding up, one of the shareholders was allowed to institute proceedings in equity, on behalf of him- Belf and others, being shareholders, to compel defendants to refund the money, and the court held the contract ultra vires and compelled the defendants to refund the money received under it. !7, Birmingham, B. & Th. J. Railway v. Locke, 1 Q. B. 256; I Ion Grand J. Railway v. Graham, id. 271; s. c. 2 Q. B. 281; The Chelten- ham & G. \V. ['. Railway, v. Daniel, 2 Railw. C. 728; Sheffield & A. & M. Railway v. Woodcock, 2 Railw. C. 522; s. c. 7 M. & W. 574. Bilbrough, 19 Law J. 522; s. c. 8 Hare, 188. 6 Hodges on Railways, 97. [*6] § 2. MODE OF INSTITUTING RAILWAY PROJECTS. 9 cannot abandon the obligation at will. 7 But if the scrip is trans- ferable, by delivery, it would be strange if the holder was not enti- tled * to be registered, as a shareholder, the same as the assignee of a fully registered share in the stock. And for the company, after having issued scrip certificates, in a form calculated to invite pur- chases, and when they were aware of the use constantly made of such scrip, to refuse to register the names of the holders, as share- holders and members of the company, would amount to little less than express fraud. Hence we conclude they have no right to decline accepting such scripholder, as a shareholder. 8 But where false scrip had been issued, beyond the amount allowed in the char- ter, and the full number of shares allowed by the charter already registered, it was held the company could not upon that ground refuse to register the shares of such as had purchased the genuine scrip. 9 But we shall have occasion to say more upon this subject elsewhere. 10 6. By the laws of some of the states a given number of persons associating, in a prescribed form, for particular purposes, as relig- ious, manufacturing, and banking purposes, and often for any lawful purpose, are declared to be a corporation. In such cases no application to the legislature is required. But, generally, rail- ways in this country have obtained special acts of incorporation. There is, in most of the states, no provision for any preliminary association, and these enterprises are, for the most part, carried forward, by individuals, or partnerships, and questions arising, in regard to the binding force of the acts of the promoters, either upon, or towards the corporation, must depend upon the general principles of the law of contract. 11 7. By the general law of some of the states the petitioners are required to furnish surveys of the proposed route, properly delin- eated upon charts, by competent engineers, with estimates, and other information requisite for the full understanding of the sub- ject. And these profiles and plans are required, where the peti- 7 Kidwelly Canal Co. v. Raby, 2 Price, 93 ; Great North of Eng. Railway v. Biddulph, 2 Railw. C. 401 ; s. c. 7 M. & W. 243, where the question is raised, but not determined. 8 Midland G. W. Railway v. Gordon, 5 Railw. C. 76 ; s. c. 16 M. & W. 804. 9 Daly v. Thompson, 10 M. & W. 309. 10 Post, §§ 39, 47. 11 Angell & Ames on Corporations, §§ 86-94. [*7] 10 PRELIMINARY ASSOCIATIONS. PART I. tion is granted, to lie deposited in some public office, for inspection and preservation. 12 s . Since the publication of the second edition of this work, the mode of procedure in obtaining parliamentary powers for railways, * in England, lias been considerably changed. The former laws havo been repealed, and the whole consolidated into one statute, 13 called -The Companies' Act, 1862," which applies to other com- panies as well as railways. 9. The usual course now is for the preliminary association to ster itself as a preliminary company under the Act of 1862, for the purpose of obtaining a special Act of Parliament. This is effected by the promoters signing a memorandum of association, in which the powers of the company are specially limited to certain acts or purposes. 10. If the association be not registered under the statute so as to constitute it a corporation with limited powers, there may be danger that the individual members, who are active in promoting the enterprise, may incur the responsibility of general partners. 14 But in England, it seems now settled that the promoters of rail- ways are not, ordinarily, to be held responsible, as partners, for the acts of each other. 15 '- Laws of Mass. 1833, ch. 176; 2 Railroad Laws & Ch. 616; id. 657; Laws of Mass. 18-18, ch. 140 ; Laws of Rhode Island, 1836 ; 2 Rail. Laws & Ch. 838 ; Laws of Conn. 1849, ch. 37 ; id. 1853; Rev. Statutes of Maine, ch. 81, § 1 ; 1 Rail. Laws & Ch. 305. Similar provisions exist in many of the other states. But they are very general, and ordinarily the plans furnished are so imperfectly ma le as not to afford much protection to land-owners. And a compliance with these requirements not being, in any sense, indispensable to the validity of special acts, they are probably not very strenuously enforced by legislative com- mittees, especially in cases where opposition is not made to the new incorpora- tion, which is not very common unless the project interferes with some rival ■work. 13 25 & 26 Vict. c. 89. 14 Hodges on Railways (ed. 1865), 2. : Hamilton v. Smith, 5 Jur. (N. S.) 32; post, § 4, n. 11; Norris v. Cooper, 3 II. Lds. Cas. 161. Statute 27 & 28 Vict. c. 121, facilitates, in certain cases, the obtaining of powers for the construction of railways. The act may be cited as "The Railways Construction Facilities Act, 1864." The recital to the pre- amble enumerates the cases to which the act is to apply ; it recites that it is expedient to facilitate the making of branch and other lines of railway, and de- viations of existing railways, and of railways in course of construction, and also the execution of new works connected with, or for the purposes of, existing rail- ways; and that the object aforesaid would be promoted, if, where all land-owners [*8] § 3. CONTRACTS OF PROMOTERS NOT BINDING UPON COMPANY. 11 ♦SECTION II. Contracts of the Promoters not binding at laxo upon the Company. 1. In this country, promoters only bind them- \ 3. But by consenting to a decree in equity selves and associates. 2. Contracts of promoters not enforceable by company. setting up the contract, the company will be held to have adopted it. § 3. 1. The promoters of railways, in this country, where the law makes no provision for the preliminary association becoming a corporation, can only bind themselves and their associates, at most, by their contracts. 1 The promoters are in no sense identi- and other parties beneficially interested are consenting to the making of a rail- way, or the execution of a work, the persons desirous of making or executing the same were enabled to obtain power to do so, on complying with the con- ditions of the general Act of Parliament, without being obliged to procure a special act. The promoters having contracted for the purchase of all the lands required for the railway, they are empowered to apply for a certificate from the Board of Trade, in the same manner, and subject to the same incidents, as ob- taining a certificate under the Railways Companies' Powers Act. The lines and works of a railway are sufficiently shown on the plans deposited by a black line, with dotted lines on each side, to mark the limits of deviation. Weld v. London & Southwestern Railway Co., 9 Jur. (N. S.) 510; s. c. 11 W. R. 448; 32 Beav. 340. Where the deposited plans and sections specify the span and height of a bridge by which a railway is to be carried over a turnpike road, the company will not, in the construction of the bridge, be allowed to deviate from the plans and sections. Attorney-General v. Tewkesbury & Great Malvern Railway Company, 1 De G. J. & Sm. 423; 9 Jur. (N. S.) 951; s. c. 8 L. T. (N. S.) 682. 1 Moneypenny v. Hartland, 1 C. & P. 352. Abbott, C. J., said: "Before an act passes for su-jh a work as this, the surveyor and other persons employed on it look to the committee, or body of adventurers, who first employ them." s. p. Kerridge v. Hesse, -9 C. & P. 200; Doubleday v. Muskett, 7 Bing. 110. And one who attends the meetings of such preliminary association, and takes part, will ordinarily be precluded from denying his liability as a partner. Har- rison v. Heathorn, 6 Man. & Gr. 81 ; Sheffield, Ash. & M. Railway v. Wood- cock, 7 M. & W. 574. If the defendants have suffered themselves to be held out as partners in the enterprise, and engaged in carrying it forward, and others have performed service for the association, upon their credit, they are liable. Wood v. The Duke of Argyll, 6 Man. & Gr. 928 ; Steigenberger v. Carr, 3 id. 191. But express proof is required of authority from the partners, or of a necessity to draw bills, in the conduct of the business, to justify the directors in drawing bills on the credit of the association. Dickinson v. Valpy, 10 B. & C. [*9] 12 PRELIMINARY ASSOCIATIONS. PART I. cal* with the corporation, nor do they represent them, in any rela- tion of agency, and their contracts could of course only bind the company, so far as they should be subsequently adopted by it, as their successors ; much in the same mode and to the same extent, and under the same restrictions and limitations, as the contracts of one partnership bind a succeeding partnership in the same house. 2. But a contract by a joint-stock association, that each member shall pay all assessments made against him, cannot be enforced by a corporation subsequently created, and to which, in pursu- ance of the original articles of association, the funds and all the effects of the former company have been transferred. 2 Nor is the 128. From the foregoing cases, and Bell v. Francis, 9 C. & P. 66, and some Others, it would seem, that the directors and managing committee are always liable for services rendered such associations, on their employment and credit, and that such other members of the association are liable also, as the terms of the association, or their own active agency in the employment of servants and its, fairly justify such employes in looking to, for compensation. It was held, in Scott v. Lord Ebury, Law Rep. 2 C. P. 255, that the promoters were responsible for money expended in obtaining the act of parliament, notwithstand- ing the incorporation and the assumption of these acts by the company. And one of the promoters cannot in equity compel others to contribute to expenses incurred by him, unless he is willing to have all the expenses brought into one account and adjusted together. Denton v. Macniel,. Law Rep. 2 Eq. 352 ; post, § 4, n. 11. In regard to admissions made by provisional committee-men, and others, who have taken part in instituting railway projects, some allowance is made in the English courts, for probable mistakes and misapprehensions, by those not well acquainted with the liabilities of such persons. Newton v. Belcher, 6 Kailw. C. 38; s. c. 12 Q. B. 921. And where others have not acted upon such admissions, the party has been allowed to show that they were made under mis- take, either of law, or fact, and if so, the party has been held not to have in- curred any additional liability thereby. Newton v. Liddiard, 6 Railw. C. 42; s. c. 12 <,>. B. 'JJ~>. The rule laid down by Bailey, J., in Heane v. Rogers, 9 B. & C. 577, upon this subject, is here expressly recognized by Lord Denman, C. J. "The general doctrine laid down in Heane v. Rogers, that the party is at liberty to prove that his admissions were mistaken, or untrue, and is not estopped, or concluded by them, unless another person has been induced by them to alter his condition, is applicable to mistakes, in respect of legal liability, as well as in ei t of fact." And this estoppel, it was held in the principal case, only ex- tends to parties and priviefe, to the particular transaction in which the admission was mad'-, and thai third parties having no interest in it, either originally or by derivation, can claim no benefit from it. This is in accordance with the estab- lished principles of the law of evidence, at the present time. See the opinion of the court in Strong v. Ellsworth, 26 Vt. 366. - Wallingford Manufacturing Co. v. Fox, 12 Vt. 304; Goddard v. Pratt, 16 [*10] 4. SUBSCRIBERS TO PRELIMINARY ASSOCIATION. 13 act of * all the corporators even, the act of the corporation, unless done in the mode prescribed by the charter and general laws of the state. 3 Nor can an incorporated company sustain an action at law, upon a bond executed to a preliminary association, by the name of the individuals and their successors, as the governors of the Society of Musicians, for the faithful accounting of A. B., their collector, to them and their successors, governors, &c, the com- pany being subsequently incorporated. 4 3. But the company, by consenting to a decree against them, upon a bill to enforce a contract with the promoters, by which they stipulated to withdraw opposition in parliament, upon condi- tion that the company, when it came into operation, should take the land of the opposers of the bill at a specified price, and pay all the costs and expenses of the opposition until the time of the com- promise, were held to have adopted the agreement, whether it would have been otherwise binding upon them or not. 5 SECTION III. Subscribers to the Preliminary Association inter sese. 1. Liability for acts of directors limited by terms of subscription. 2. Association not binding until preliminaries are complied with. 3. Contracts, how far controlled by oral rep- resentations of directors. 4. Subscribers not excused from paying calls by contract of directors. 5. Not liable for expenses, except by terms of agreement. 6. Deeds of association generally make pro- vision for expenses. 7. One ivho obtains shares, ivithout executing the deed, not bound to contribute, n. 11. No relation of general partnership subsists between subscribers. § 4. 1. The project for a railway being set on foot by a pro- visional committee of directors or managers, the subscribers may insist iipon the terms' of subscription. The subscribers are not bound by any special undertaking of the directors, or any portion Pick. 412, where it is held, the original copartners are still liable, upon contracts made with third parties, ignorant of the dissolution by the effect of the incorpora- tion, the company having carried on business in the name of the partnership. 8 Wheelock v. Moulton, 15 Vt. 519. 4 Dance v. Girdler, 4 Bos. & P. 34. See Gittings v. Mayhew, G Md. 11". 5 Williams v. St. George's Harbor Co., 2 De G. & J. 547; s. c. 4 Jur. (N. S.) 1066. [•11] 1 4 PRELIMINARY ASSOCIATIONS. PART I. of them, beyond or aside of the powers conferred by the terms of the deed or contract of association. 1 2. And the association is not binding, until the provisions by * which it is, by its own terms, to become complete, are complied with. \i' before that the scheme be abandoned, the provisional subscribers, or allottees, may recover back their deposits of the provisional committee, in an action for money had and received. 2 So, too, if one is induced to accept of shares in the provisional company, by fraudulent representations, he may recover back the whole of his deposits. 3 3. But if one actually become a subscriber, he is bound by the terms of subscription, without reference to prior oral representa- tions, and must bear a portion of the expense incurred, if the sub- scription so provide. 4 But if the directors, in such provisional company, in order to induce subscriptions, promise the subscriber, that in the event of no charter being obtained, he shall be repaid his entire deposit, this contract is binding upon them, and may be enforced by action, notwithstanding the subscriber's agreement authorized the directors to expend the money in the mode they did. 5 4. But the contract of the directors will not excuse the sub- scriber from paying calls, if the terms of the subscriber's agree- ment require it. 6 The contract of the directors in such case, and the deed of association, are wholly independent of each other, and neither will control the other. 7 5. But it has been held, that persons, by taking shares in a projected railway, do not bind themselves to pay any expense incurred, unless it is so provided in the preliminary contracts of 1 Londesborough ex parte, 27 Eng. L. & Eq. 292 ; s. c. 4 De G. M. & G. 411 ; Ea parte Mowatt, 1 Drewry, 247. - Walstab o. Spottiswoode, 4 Railway C. 321 ; s. c. 15 M. & W. 501. 3 Jarrett v. Kennedy, 6 C. B. 319. W aits v. Salter, 10 C. B. 477. And if one subscribe the agreement and parliamentary contract, he will be liable, although he have not received the shares allotted to him or paid the deposits. Ex parte Bowen, 21 Eng. L. & Eq. 422. ' Mowatt v. Londesborough, 25 Eng. L. & Eq. 25, and 3 El. & Bl. 307; s. c. in error, 28 Eng. L. & Eq. 119, and 4 El. & Bl. 1 ; Ward v. Same, 22 Eng. L. & Eq. 402. 8 Ex parte Mowatt, 1 Drewry, 247. 3 Dover & Deal Railway, ex parte Mowatt, 19 Eng. L. & Eq. 127; s, c. 1 Drew. _ 17. [•12] § 4. SUBSCRIBERS TO PRELIMINARY ASSOCIATION. 15 association, or the expense is incurred with their sanction and upon their credit. 8 And even where such shareholder consents to act on the provisional committee, it will not render him liable, as a contributory, to the expense of the company. 9 * 6. But in general, the form of the deeds of association is such, that if one takes shares without reservation, he is to be regarded as a contributory to the expense, 10 and especially where he acts as one of the provisional committee, and also accepts shares allotted to him. 10 7. But one who had obtained shares in a projected railway com- pany, but without executing the deed of settlement, or any deed referring to it, was held not liable to contribute to the expense incurred, in attempting to put the company in operation, 11 and especially if the acceptance of the shares was conditional, upon the full amount of the capital of the company being subscribed, which was never done. 11 8 Maudslay ex parte, 1 Eng. L. & Eq. 61; s. c. 14 Jur. 1012. 9 Carmichael ex parte, 1 Eng. L. & Eq. 66; s. c. 14 Jur. 1014; Clarke ex parte, id. 69 ; s. c. 20 L. J. (N. S.) ch. 14. 10 Burton ex parte, 13 Eng. L. & Eq. 435 ; s. c. 16 Jur. 967 ; Markwell ex parte, 13 Eng. L. & Eq. 456 ; s. c. 5 De G. & S. 528 ; UpfilPs Case, 1 Eng. L. & Eq. 13 ; s. c. 14 Jur. 843 ; Watts v. Salter, 12 Eng. L. & Eq. 482. See also St. James's Club in re, 13 Eng. L. & Eq. 589; s. c. 10 C. B. 477, as to the effect of proof of the subscriber being present when a resolution is passed. 11 The Galvanized Iron Co. v. Westoby, 14 Eng. L. &Eq. 386 ; S. C. 8 Exch. 17. It was formerly considered that all persons engaged in obtaining a bill in parliament for building a railway, were partners in the undertaking, and for that reason a subscriber, who acted as their surveyor, could not maintain an action for work and labor, done by him in that character, against all or any one of the subscribers. Holmes v. Higgins, 1 B. & C. 74. See also Goddard v. Hodges, 1 C. & M. 33. But it is now regarded as well settled, in all the courts in West- minster Hall, that there subsists between the subscribers to such an enterprise no relation of general partnership whatever, and no power to bind each other for expenses incurred in carrying forward the enterprise. Each binds himself only by his own acts and declarations, unless he acts by virtue of some authority con- ferred by the deeds of association. Parke, Baron, in Bright v. Hutton, 3 H. L. Cases, 341, 368. And an agreement, aside of the deed of association, that one of the promoters shall indemnify another, is held valid. Connop v. Levy, 5 Railw. C. 124; s. c. 11 Q. B. 769. But a general indemnity against costs will only extend to costs in suits lawfully brought. Lewis v. Smith, 2 Shelford (Ben- nett's ed.), 1030. And in regard to liability, for expenses incurred in carrying forward railway projects, it often happens, that one who has been active may thereby make himself liable to tradesmen and others who have performed service in behalf of the enterprise, upon the expectation he would see them paid. In [*13] llj PRELIMINARY ASSOCIATIONS. PART I. ♦SECTION IV. rUract8 of the Promoters adopted by the Company. 1. Liability may b transferred with assent of i n. '■'>. Powers of provisional company to con- }. But not unless that i tract limited by statute. § 5. 1. The company when fully incorporated may assume the liabilities of the preliminary association, incurred in obtaining Lake r. Duke of Argyll, G Q. B. 477, 479, Denman, C. J., said: " But when juts, .us meet to prepare the measures necessary for calling the society into exist- ence, attendance on such meeting, and concurrence in such measures, may be strong evidence, that any individual there present, and taking part in the pro- ceedings, held himself out as a paymaster to all who executed their orders; and though not liable as a member or shareholder, yet his declared intention to become the president, or a member, in whatever event, or to take a share under any conditions, may be material evidence to show that he authorized contracts with those whose services were required by what may be called the constituent body. 11 But a charge to the jury, that before surveyors, in such case, could recover of the provisional committee, they r must be satisfied that defendants did, by them- selves or their agent, employ the plaintiff to do the work, or that, being informed of their having done it, on their credit, by the employment of some one not authorized, they consented to be held liable, was affirmed in the Exchequer ( lumber. Nevins v. Henderson, 5 Railw. C. 684; Williams v. Pigott, 5 Railw. ( . 544; s. c. 2 Exch. 201. See also Spottiswoode's Case, 39 Eng. L. & Eq. 520. Since the publication of the second edition of this work, the English courts have made numerous decisions bearing upon the general subject discussed in this note. In Maddick v. Marshall, 10 Jur. (N. S.) 1201, the defendant was employed by the parties in interest to act as provisional director in connection with others, under the assurance from the solicitor of such parties, that they wen- safe and would incur no personal responsibility; and the directors there- upon appointed the principal party in interest secretary, and passed a resolu- tion to advertise, which resolution was signed by the defendant as director. The plaintiff, upon taking the order, was shown the resolution certified by the defend- ant as authority for the order. The court held this testimony for the jury to consider, tending to show a personal undertaking by defendant, and that they could not disturb a verdict against him. See also Swan v. The North British dasian I !o., 7 H. & X. 003; s. c. 8 Jur (N. S.) 940, as to what acts will cnatc an estoppel in such cases. Under the English statute, all the subscribers an- constituted directors until they designate who shall act in that capacity, and have authority to appoint one of their number to an office in the company. Eales V. The Cumberland Black Lead Mine Co., 6 II. & N. 481 ; s. c. 7 Jur. (N. S.) 169. It seems to be considered essential, in order to fix the liability of a sub- [*14] § 5. CONTRACTS OP PROMOTERS ADOPTED. 17 the special act, or as is sometimes the case, where the association * make an assignment of their property. 1 But even an express provision in the charter, that the company shall he solely liable for the debts of the association, will not exonerate the association unless by the consent of the creditors. 2 But when the company assume the debts of the association, by the assent of their cred- itors, they will be relieved. 3 But where the plaintiff contracted seriber to the articles of association on that ground alone, that the subscription should be in his own handwriting, and not by procuration merely. Richardson ex parte, 4 Law. T. (N. S.) 589. The company are not bound to give notice of the allotment of shares in order to bind the subscriber to take them. It is his duty to take notice of the allotment, and to make payment of all future dues fixed by law, or the terms of the contract. Bloxam ex parte, 10 Jur. (N. S.) 814 ; s. c. 33 Beav. 529. But in order to render the allottee liable to pay calls on shares, they should be specifically numbered and appropriated by number. Irish Peat Co. v. Phillips, 7 Jur. (N. S.) 413 ; s. c. affirmed 7 Jur. (N. S.) 1189, 1 B. & S. 598. But semble he may be estopped to deny his membership. So, too, it was considered in this case, that in order to bind an associate to pay future calls, it was essential that he should have subscribed the deed of association. The provision of the English statute as to the period within which the register of shareholders shall be made and sealed is regarded as directory, so far as the liability of shareholders is concerned, and they will not be exonerated from re- sponsibility by a failure of the company to comply with the direction. W. N. W. Co. v. Hawksford, 11 C. B. (N. S.) 456; 8 Jur. (N. S.) 844 in Exchequer Chamber. The company, when fully incorporated, may sue in their own name upon calls made by the directors of the preliminary incorporation. Hull Co. v. Wellesley, 6 H. & N. 38. A registered shareholder in a company, which was afterwards incorporated with a new company, is entitled to be regarded as a shareholder in the new company, if the act of incorporation so provide, although he may not have exchanged his certificate for shares in the old company for those in the new company. Spackman v. Lattimore, 3 Giff. 16 ; s. c. 7 Jur. (N. S.) 179. It was further decided in this case, that the subscribers could not charge their own subscriptions against the company as money advanced for their benefit. Where a subscriber has paid for the expenses of the promoters all that the terms of association required, he cannot be charged further, because he made the pay- ment without taxation. Croskey v. Bank of Wales, 4 Giff. 314. The property in shares vests in the subscriber upon the execution of the deed and complete regis- tration of the company, and the delivery of scrip certificates is not requisite to vesting the shares, but they are to be regarded merely as the indicia of prop- erty. Hunt v. Gunn, 3 F. & F. 223. 1 Haslett's Ex'rs v. Wotherspoon, 1 Strob. Eq. 209; Salem Mill Dam Co. v. Ropes, 6 Pick. 23. 2 Witmer v. Schlatter, 2 Rawle, 359. 3 Whitwell v. Warner, 20 Vt. 425. But by the English statutes companies provisionally registered are not allowed to make any contract, not indispensable to carrying forward the project to full registration. And where the directors of 2 [*15j 18 PRELIMINARY ASSOCIATIONS. PART I. * with the promoters of a railway bill to bear the costs of obtaining it. and the bill passed with the usual clause that the costs of obtaining it should be borne by the .company, it was nevertheless held, that the contract would preclude the recovery of the costs of the corporation. 4 SECTION V. //- ■ • //tracts of the Promoters may be adopted by the Company. ( 'annot assume the benefit without the burden. § 6. Wherever a third party enters into a contract with the promoters of a railway, which is intended to enure to the benefit of the company, and they take the benefit of the contract, they will be bound to perform it, upon the familiar principle that one who adopts the benefit of an act, which another volunteers to per- form in his name and on his behalf, is bound to take the burden with the benefit. 1 such a company contracted for plans, sections, and books of reference, to the value of £3,000, it was held a violation of the statute and illegal, and that no recovery could be had upon it. Bull v. Chapman, 20 Eng. L. & Eq. 488 ; s. C. 8 Exch. Ill; 7 & 8 Vict. c. 110. A contract made between the projector and the directors of a company provisionally registered, but not in terms made con- ditional on the completion of the company, is not binding upon the subsequently completely registered company, although ratified and confirmed by the deed of settlement. Gunn v. London and Lancashire Assurance Co., 12 C. B. (N. S.) 694. The promoters of a railway company agreed with the tenant for life of set- tled estates to pay him £20,000 for obtaining his support to their scheme. This agreement was afterwards adopted by the provisional committee of a second company, which stood in place of the first. The second company's bill passed, and an indenture was made under the company's seal, by which, on the ground of doubts as to the absolute right of the tenant for life to the £20,000, the com- pany was to retain the sum and pay interest on it. Interest was paid for some years, but at length the company refused to make any further payment. Upon a bill by a subsequent tenant for life of the estates to have the company's liability declared, and obtain payment of the £20,000 for the benefit of the settled estate : Ibid, thai the contract was ultra vires, and could not be enforced. Held, also, that this was not within the meaning of the Companies' Clauses Consolidation \ ] ■ 65, as being in respect of "costs incurred in obtaining the special act, and incident thereto." Lord Shrewsbury v. North Staffordshire Railw. V. C. Kindersley ; L2 -Jur. (N. S.) 6;>. * Savm v. llylake Railway, Law Rep. 1 Exch. 9 ; s. c. Law Rep. 1 Eq. 593. 1 Gooday v. The Colchester & Stour Valley Railway, 15 Eng. L. & Eq. 596 ; [*16] § 7. CONTRACTS BETWEEN PROMOTERS AND OPPOSERS. 19 ♦SECTION VI. Contracts between the Promoters and Opposers of a Bill for the Charter of a Railway. 1. English cases numerous. I 2-5. Lord Eldon's opinion, in case qfVaux- hall Bridge Co. §7. 1. The cases in the English books upon the subject of contracts between the promoters of railway projects in parliament and those who have counter interests, and who are ready to per- sist in opposition to such projects unless they can secure some compromise with the promoters, are considerably numerous, and involve a question of no inconsiderable importance. We shall therefore examine them somewhat in detail. 2. One of the earliest cases upon this subject 1 was decided by the Lord Chancellor, Cottenham, upon full argument, and great consideration, as early as 1836. But as this case professes to rest mainly upon a leading opinion of Lord Chancellor Eldon? upon a somewhat analogous subject, it may not be improper here to give the substance of that decision. 3. The application to parliament for the plaintiffs' company, if granted, it was conceded, would injuriously affect the tolls upon another bridge not far distant. The proprietors of this bridge were opposing the plaintiffs' grant before the parliamentary com- mittee, with a view to secure some indemnity against such loss, to be specially provided for by the plaintiffs' act, upon condition that the plaintiffs should open their bridge for the public travel. The promoters of the plaintiffs' grant and the proprietors of the rival bridge had come to an agreement in regard to the extent of the indemnity, and upon naming it to the committee, with a view to have it inserted in the act, one member of the committee objected to such course, as calculated to sanction improper influences upon s. c. 17 Beav. 132; Preston v. Liverpool & M. Railway, 7 Eng. L. & Eq. 124; 8. c. 1 Sim. (N. S.) 586 ; Edwards v. Grand Junction Railway, 1 Mylne & Cr. 650. The cases in support of this general proposition are very numerous, and will be more fully examined in the next section. 1 Edwards v. The Grand Junction Railway, 1 Mylne &*Cr. 650. * Vauxhall Bridge Co. v. The Earl of Spencer, Jacob, 64 (1821). [*17] 20 PRELIMINARY ASSOCIATIONS. PART I. public legislation. The promoters of the new bridge then pro- posed to the proprietors of the rival one to give them security for the proposed indemnity, by way of bond with surety which should quiet their opposition, and the bill pass. This was acceded to and the securities given, and the bill passed accordingly. The opinion *of Lord Eldon is an affirmance of the decision of the Vice-Chan- cellor, retaining the bill till the matter should be tried at law. 3 But the intimations of the Chancellor indicate certainly that he regarded the contract as perfectly valid, and the bill was after- wards dismissed by consent. Lord Eldon said: "In the view I take of the case, it will not be an obstacle to the plaintiffs that they do not come with clean hands, for it is settled, that if a trans- action be objectionable, on grounds of public policy, the parties to it may be relieved ; the relief not being given for their sake, but for the sake of the public. Thus it is in the case of marriage brocage bonds. The principle was much discussed in the case of Neville v. Wilkinson, 4 where Mr. Neville being about to marry, inquiry was made by the lady's father to what extent he was indebted. Wilkinson, who was applied to at the desire of Neville, concealed a demand which he had against him ; after the marriage he attempted to recover it, and a bill was filed to restrain him. I remember arguing it with obstinacy, but Lord Thurloiv thought that, having made a misrepresentation, a court of equity must hold him to it, and that, although the plaintiff was a particeps crimlnis ; so it was held in the case of Shirley .v. Ferrers, 5 in the Exchequer. 4. " It is argued that this was a fraud upon the legislature, but I think it would be going a great way to say so, for non constat, if it had been pushed to the extent of taking the opinion of the house, that it might not have passed the bill in its former shape. It cannot be said that the agreement is contrary to legis- lative policy, because one member of the committee makes an objection, which is not sanctioned or known by the house at large. Indeed, such things are constantly done, and with the knowledge of the house ; for they are in the habit of saying, with respect to these private acts, that though they will not of themselves pass them into laws, yet they will if the parties can agree ; and matters 3 s. c. 2 ^lad. 356. * 1 Br. C. C. 543. " Cited 11 Vesey, 536. [•18] § 7. CONTRACTS BETWEEN PROMOTERS AND OPPOSERS. 21 sometimes are permitted to stand over to give an opportunity of coming to a settlement. 5. " It is then said, that the money was to be paid ont of the funds of the Vauxhall Bridge Company, which by the act were devoted to other purposes. The proprietors of Battersea Bridge, however, say that they have nothing to do with the funds of the * company; that they have contracted with a number of inde- pendent persons, to whom they look for the payment of the bonds ; and if the obligors agree with the company to pay the bonds with their money, what have the obligees to do with that unless by ante- cedent contract ? They had no demand in law or equity against the company. If, then, the Vauxhall proprietors choose to sanc- tion what the legislature has not directed, namely, the indemnify- ing the persons who have become obligors in the bonds, that is one thing ; if they have not, then the individual officers who have paid the money over in discharge of the bonds ought not to have paid it, and may now be called on to pay it back ; as between them and the company, the money must be considered as being still in their hands. If the transaction is to be considered merely as between the obligors and the obligees, the latter not refusing the money from whatever hands it came, but not entangling themselves in any contracts between the obligors and the company, then the obligees would not be affected by those contracts. But if so, still the case depends upon the validity of the bonds ; for I think the Vauxhall Bridge Company may with propriety say, if the money was paid in consequence of an arrangement for the discharge of the bonds, and if the bonds were bad, that then it may be called back. When the cause was heard by the Vice-Chancellor, he did that which he was not bound to do ; for he certainly had jurisdiction, and might have decided upon the validity of the bonds. But he directed that to be tried at law, where all the objections may be raised upon the pleadings in the same manner as here ; and considering that in matters of this nature, both courts of law and equity have jurisdic- tion exercised upon the same principles, I do not see any occasion to vary the decree." [*19] PRELIMINARY ASSOCIATIONS. PARTI. SECTION VII. of the Promoter* enforced in Equity. 1-3. Case of Edwards v. Grand Junction Raihcay. § 8. 1. Edwards v. The Grand Junction Railway, 1 is an appli- cation to a court of equity to enforce such a contract against a railway company, whose charter was obtained by means of the quieting opposition in parliament, in conformity to the contract. * The trustees of a turnpike road were opposing in parliament the grant to the defendants, unless their rights were guarantied in such grant. The promoters of defendants' charter, and the trustees of the turnpike road, came to an agreement in regard to the proper indemnity to be inserted in the act, but to save delay it was secured by way of contract, on the part of the promoters, providing for a renewal of the covenants, on the part of the company, in a brief time specified, after it should go into operation. The controversy in the present case was with reference to the width of a bridge, by which the railway proposed to convey the turnpike road over their track. The contract stipulated that such viaducts should be of the same width as the road at that point, which was fifty feet. The charter only required them to be of the width of fifteen feet, and the company having declined to assume the contract of the promot- ers, were proceeding to build the bridges thirty feet wide only. The bill prayed an injunction, which was granted by the Vice- Chancellor, and confirmed by the Chancellor, who held that an agreement to withdraw or withhold opposition to a bill in parliament is not illegal ; and a court of equity will enforce a contract founded upon such a consideration ; and that an incorporated company will be bound by the agreement of its individual members, acting, before incorporation, on its behalf, if the company had received the full benefit of the consideration, for which the agreement stipu- lated, in its behalf. The opinion of the Lord Chancellor will best Bhow the grounds of the decision. "But then the railway com- pany contend that they, being now a corporation, are not bound by any thing which may have passed, or by any contract which 1 1 My. & Cr. 650. [*20] §8. CONTRACTS ENFORCED IN EQUITY. 23 may have been entered into by the projectors of the company before their actual incorporation. 2. " If this proposition could be supported, it would be of ex- tensive consequence at this time, when so much property becomes every year subjected to the power of the many incorporated com- panies. The objection rests upon grounds purely technical, and those applicable only to actions at law. Jt is said that the company cannot be sued upon this contract, and that Moss entered into a contract, in his own name, to get the company, when incorporated, to enter into the proposed contract. It cannot be denied, however, that the act of Moss was the act of the projectors of the railway ; it is, therefore, the agreement of the parties who were seeking an act of incorporation, that, when incorporated, certain things should * be done by them. But the question is, not whether there be any binding contract at law, but whether this court will permit the company to use their powers under the act, in direct opposition to the arrangement made with the trustees prior to the act, upon the faith of which they were permitted to obtain such powers. If the company and the projectors cannot be identified, still, it is clear that the company have succeeded to, and are now in possession of, all that the projectors had before ; they are entitled to all their rights, and subject to all their liabilities. If any one had in- dividually projected such a scheme, and in prosecution of it had entered into arrangements, and then had sold and resigned all his interest in it to another, there would be no legal obligation between those who had dealt with the original projector and such purchaser ; but in this court it would be otherwise. So here as the company stand in the place of the projectors, they cannot repudiate any arrangements into which such projectors had entered. They can- not exercise the powers given by parliament to such projectors, in their corporate capacity, and at the same time refuse to comply with those terms, upon the faith of which all opposition to their obtaining such powers was withheld. The case of The East Lon- don Water Works Company v. Bailey, 2 was cited to prove that, save in certain excepted cases, the agent of a corporation must, in order to bind the corporation, be authorized by a power of attorney ; but it does not therefore follow that corporations are not to be affected by equities, whether created by contract or otherwise, affecting those to whose position they succeed, and 2 -4 Bins- 283. [*21] 24 PRELIMINARY ASSOCIATIONS. PARTI. affecting rights and property over which they claim to exercise control. What right have the company to meddle with the road at all? The powers under the act give them the right ; but before that right was so conferred, it had been agreed that the right should only be used in a particular manner. Can the company exercise the right without regard to such an agreement ? lam clearly of opinion that they cannot ; and having before expressed my opinion that the contract is sufficiently proved, it follows that the injunction granted by the Vice-Chancellor is in my opinion proper, and thai this motion to dissolve it must be refused with costs." 3. * 4 The case of The Vauxhall Bridge Company v. Earl Spen- cer, 3 was cited for the trustees ; and it certainly is a strong authority in favor of their * claim ; Lord Mdon having in that case expressed an opinion, that the withdrawing opposition to a bill in parliament might be a good consideration for a contract, and having recognized the right of an incorporated company to connect itself with a contract made by the projectors of the com- pany, before the act of incorporation. On the other hand Dance v. Girdler, 4 was cited for the railway company ; but that was an attempt to make a surety liable beyond his contract ; and Sir James Mans- field, in his judgment in that case, relied much upon the want of iden- tity between the society with whom the contract was made and the corporation ; and the question there was as to a legal liability, not as to an equitable right. It was contended for the railway company that to enforce this equity would be unjust towards the share- holders of the company who had no notice of the arrangement. To this two obvious answers may be made : first, that the court can- not recognize any party interested in the corporation, but must look to the rights and liabilities of the corporation itself ; and, secondly, that there is nothing in the effect of the injunction incon- sistent with the provisions of the act ; for although the act provides that bridges shall not be less than fifteen feet in width, it does not provide that they shall not be made wider. The company might under this act clearly agree that this or any other bridge should be fifty feet wide." • 1 2 Mad. 356, Jac. 64 (4 Cond. Cha. Rep. 28). 4 1 Bos. & Pull. N. R. 34. [*22J § 9. CONTRACTS OP PROMOTERS BIND THE COMPANY. 25 SECTION VIII. Contracts of the Promoters binding upon the Company at Law. 1-3. Case of Howden v. Simpson. §9. 1. We have next in order of time the important case of Simpson v. Lord Howden, 1 before the Master of the Rolls, and the Lord Chancellor on appeal, where it is held, that equity will not interfere to decree the surrender of an illegal contract, where the illegality appears upon the face of the contract, the remedy at law being adequate. We have then the same case, at law, before the Queen's Bench, 2 and decided, on full argument, where it is held, that a contract to pay Lord Howden .£5,000, in consideration of * bis withdrawing opposition to a bill for incorporating " The York & North Midland Railway Company," he being a peer in par- liament, and owning estates in the vicinity of the proposed line, was illegal, being a fraud upon the legislature. This decision was subsequently reversed in the Exchequer Chamber. 3 The case be- ing the leading case upon the subject, at law certainly, may require a more extended statement. The agreement under seal, between the plaintiff and defendant (the case now standing, Howden v. Simpson), recited that a company had been formed for making a railway ; that defendants were proprietors ; that a bill had been introduced into parliament, according to which the line would pass 1 1 Railway Cases, 326 (1837) ; 1 Keen, 583 ; 3 Mylne & Cr. 97. 2 10 Ad. & Ellis, 793. 3 The case was reversed mainly on the ground that the plea did not allege that the parties, at the. time of entering into the contract, intended to keep it secret from the legislature. 10 Ad. & Ellis, 793; 1 Railw. C. 347. But the Exchequer Chamber held, that the agreement on the face of it was valid, and that the plaintiff was not bound to communicate to the legislature the bargain he had made with the company, and that a member of the legislature could make any terms for the sale of his land, and compensation for injury to his comforts and property, which it is lawful for a private individual to make. The judgment of the Exchequer Chamber was affirmed in the House of Lords, on full argument, before the Chancellor, Lord Lyndhurst, Lord Brougham, and in the presence of the- two chief justices, and ten of the judges. 3 Railw. Cas. 294; s. c. 9 CI. & Fin. 61. But Lord Campbell adhered to his former opinion that the contract must have been held illegal, if it had appeared that it was an element in the con- tract that it should be kept secret, and not communicated to parliament. [*23] 26 PRELIMINARY ASSOCIATIONS. PARTI. through plaintiff's estates and near his mansion, and that he was a dissentient, and opposed the passing of the bill ; that defendants had proposed that, if he would withdraw his opposition, and assent to the railway, they would endeavor to deviate the proposed line: and plaintiff agreed that, on condition of the stipulations in the agreement being performed, he did thereby withdraw his oppo- sition and give his assent; and defendants covenanted that in case the then hill should be passed in the then session, they would, in six months after it received the royal assent, pay plaintiff £5,000 as compensation for the damage which his residence and estates would sustain from the railway passing according to the deviated line, exehisive of and without prejudice to further compensation to plaintiff, in the event of the deviated line not being ultimately adopted and without prejudice to such further compensation for any damage as in the agreement after mentioned. 2. Plaintiff declared in debt, and averred that he withdrew his opposition to the bill, which passed into a law in the then session, * that six months had since elapsed, but that defendants had not paid the £5,000. 3. Plea, that the railway, at the time of making the agreement, and according to the act, was intended to pass through the lands of divers individuals ; that the agreement was made privately and secretly by the parties thereto, without the consent or knowledge of the said individuals, and was concealed from them continually until the act was passed, and was not disclosed to, or known in parliament, and was concealed from the legislature during the passing of the act; and that plaintiff at the time of passing the act and still, was a peer of parliament. SECTION IX. What Contracts between the Promoters of Railways and Others will be enforced, either in Law or Equity, against the Contracting Parties <>r the Company. 1. Contract to take land of opposing party. | 2. Contract prejudicial to the public. § 10. 1. Since the decision of Howden v. Simpson, in the Ex- chequer Chamber, and the House of Lords (1842), the English [•24] § 11. CONTRACTS OF PROMOTERS ENFORCED. 27 courts seem to have acquiesced in the principles there established, until a very recent period. The validity of such a contract is recognized, in regard to the company purchasing the interest of the lessee of lands near the line of the proposed railway. 1 And where the promoters of one railway entered into an agreement with a land-owner on the proposed line to take his land at a specified price (20,0002.), by which he was induced to withdraw opposition ; and the promoters of a rival line, who proposed also to pass through the same land, had petitioned for a charter, and the merits of the two projects were, under the sanction of the committee of the House of Commons, referred to arbitration, and the solicitors of the two bills agreed, that the adopted line should take the en- gagements entered into with the land-owners, by the rejected line, it was held, that the second company prevailing, were bound, as a condition of entering upon the lands of plaintiff, to fulfil the terms of the agreement of the first company. 2 * 2. And where one railway company was prohibited from open- ing their line for traffic, until they had built a branch railway, connecting their line with that of another company, it was held, that a court of equity was bound to enforce the prohibition, on motion of the other company, though the probable result would be, to cause inconvenience to the public, and not to benefit the other company. 3 SECTION X. Courts of Equity will enforce Contracts with the Promoters. 1. Bona fide contract not evading statute, i n. 3. Statement of English cases, valid. § 11. 1. The English courts of equity do not hesitate to restrain railways from proceeding to take land under their compulsory powers, where the proprietor of the estates had surceased opposi- tion to the bill, by an arrangement with the projectors, by which they stipulated that the company should pay a certain sum, which 1 Doo v. The London and Croydon Railway, 1 Railw. C. 257 ; s. c. 3 Jur. 258. 2 Stanley v. The Chester and Birkenhead Railw., 1 Railw. C. 58 ; 9 Simons, 264. 8 Cromford and High P. Railway v. Stockport, D. & W. Bridge Railway, 24 Beav. 74; s. c. 29 Law Times, 245. [*25] 28 PIIKLIMINARY ASSOCIATIONS. PARTI. it had declined to do. This was done notwithstanding the pro- prietor was a peer of parliament, and notwithstanding v the tender of an undertaking, on the part of the company, not to enter upon the land until the further order of the court, and notwithstanding the time, within which the company, by their charter, were author- ized to take land would have expired, before the hearing of the cause. 1 And although this case is questioned by some writers, 2 the Learned Lord Chancellor St. Leonards said the cases establish the proposition, that a bona fide contract of this sort, not evad- ing- the act of parliament, but enabling the company to assist its views, and carry the act into effect, was valid, without reference to the reasonableness of the amount agreed to be paid. 3 1 Lord Petre ». Eastern Counties Railway Co., 1 Railw. C. 462. 1 Shelford, -100. 3 Hawkes v. Eastern Counties Railway Co., 1 De G. M. & G. 737 ; s. c. 15 Eng. L. & Eq. 358; s. c. before the Vice-Chancellor, 3 De G. & S. 314; 8. c. 4 Eng. L. & Eq. 91, where it is considered that a railway company, having agreed to purchase an estate, although moved to do so for the quiet- ing of opposition to a bill before parliament to enable them to extend a branch in a certain direction, which was subsequently abandoned, were nevertheless bound to perforin their agreement with the owner of the estate. See also Shelford on Railways. 400. The case of Hawkes v. The Eastern Counties Railway < 'o. came before the Lord Chancellor, St. Leonards, on appeal from the Vice-Chancellor in 1852, where the whole subject of the legality and bind- ing character of this class of contracts is learnedly discussed, as well as the propriety of decreeing specific performances, and most of the cases elaborately and learnedly reviewed and compared. The conclusion to which that eminent judge- arrives is, that even in a case where the company were not able to carry their project into full effect, but had abandoned it, they were nevertheless bound specifically to perform contracts of this kind, and that it was no objection to decrcen,- specific performance, that it would involve the necessity of paying the price of the land out of the general funds of the company, which had been raised for provisional purposes merely, and with no view of ultimately purchasing land and building the road; and that the land could be of no use to the company under present circumstances. One can scarcely fail to perceive in this case, that a principle, perhaps sound and just under some circumstances, is here pushed quite to its extreme verge. Damages at law might have been the more proper disposition of all interests concerned. The opinion of the Lord Chancellor is a masterly exposition of the view which he adopts. After disposing of the preliminary questions he proceeds: " In the case ol Webb V. The Direct London and Portsmouth Railway, 1 De G. M. & G. 52] : 8. C. 9 Eng. L. . The corporations with which we are chiefly concerned, and which will be mainly considered in the following work, are aggre- gate business corporations, with a joint-stock capital, such as banks, railways, manufacturing and other similar organizations. 4. But, as almost all kinds of corporations have in some sense analogous powers and functions, it will not be practicable to dis- cuss the law applicable to one class without at the same time, to some extent, considering the law applicable to all other classes of corporations. It may be proper therefore to mention here, that aggregate corporations may be ecclesiastical or lay, i. e. their functions may have reference exclusively to religious matters, as a parish or church, whereby they are appropriately designated as ecclesiastical or religious bodies ; or they may have reference only * Co. Litt. 8 b, 250 a; 2 Kent, Comm. 273, 274. We have taken no time to discuss the nature or importance of sole corporations, since very few exist in the American states, and where any such do exist, it is so enacted by express statute, in order to secure perpetual succession and transmission of rights and duties, without encumbering the succession and transmission with those formalities which would always prove laborious and sometimes difficult; and by reason thereof, there would constantly arise embarrassing questions, which, by declaring the office a perpetual corporation, is wisely saved. In many of the cases already alluded to, and others which might be named, as to those individuals who sustain the official character of sole corporations, it is not deemed important that the Statute conferring such functions should declare them corporations, or to possess corporate rights and duties. All that is required is, that it should be provided that contracts made to them may be sued in the name of their official successors, or that in any other form such individual should be declared by his official name to have the power to contract for the benefit of himself and his successors, per- petuallv. [♦51] § 17. ORIGIN AND DIFFERENT CLASSES OF CORPORATIONS. 57 to secular matters, whereby they are more appropriately denomi- nated lay corporations. The distinction is, however, sometimes not easily determined, since the business and functions of a cor- poration may approach so nearly the one or the other as not in- appropriately to be classed among cither. Thus the English Universities of Oxford and Cambridge are now regarded as merely lay or civil corporations, although at one time they were, with propriety, classed among ecclesiastical corporations. 3 * 5. Corporations, too, are divided into eleemosynary, or such as disburse only charity and subsist for that purpose only, — such as schools, colleges, and hospitals, — and those which are of a busi- ness or pecuniary character, called civil or political bodies, intrusted with certain rights or duties, and required to perform certain functions, more or less connected with the polity of the state or nation, — such as towns, counties, school districts, or railways, banks, and manufacturing, or merely business corporations. 6. Corporations are either public or private. Public corpora- tions embrace all the municipal subdivisions of the state ; such as counties, towns, and cities, and school districts, and other similar organizations. Private corporations include all aggregate joint- stock, incorporated companies, whose capital stock is owned by private persons. But such joint-stock corporations as possess no shares not owned by the state or nation are also regarded as public corporations, the same as the municipalities of the state. The law in regard to railways was thus stated in the former edition of this work. 7. Railways 4 in this country, although common carriers of freight and passengers, and in some sense regarded as public works, are ordinarily private corporations. 5 By private corpora- tions nothing more is implied, than that the stock is owned by private persons. » Angell & Ames, § 40'; 1 Bl. Comm. 471. 4 There is no necessity for these public functions being confined to aggregate corporations, as is the universal practice in this country. The same franchises and immunities might be conferred upon any private person, at the election of the legislature, as was done by the legislature of New York upon Fulton and Livingston, in regard to steamboat navigation, which grant was held valid but for the United States Constitution. And whoever was the grantee, the same rights, duties, and liabilities would result from the grant, whether to a natural person or to a corporation. 6 Ante, § 1, pi. 6. [•52] 58 RAILWAYS AS CORPORATIONS. PART II. 8. If the stock is owned exclusively by the state, the corpora- tion is a public one. And such public corporations are under the control of the legislature, the same as municipal corporations, and ordinarily acquire no such vested rights of property as are beyond the control of legislative authority. 6 The American cases going * to confirm this proposition, and to show that railways are private corporations, are numerous. 7 " Dartmouth College p. Woodward, 4 Wheaton, 518, 568 ; 2 Kent, Comm. 7th ed. (275) : 505 and notes. If the question were entirely new, it might be re- garded as admitting of some doubt, perhaps, how far the American states could with propriety undertake such extensive public works, whose benefit enures almost exclusively to private emolument and advantage. But the practice is now pretty firmly established. And there seems to be no proper tribunal to determine questions between the states and the citizens. Public opinion is the only practical arbiter in such cases. And that is so much under the control of inter- ested parties, ordinarily, that its admonitions are not likely to be much dreaded by those who exercise the state patronage. 7 Donnaher v. State of Mississippi, 8 Smedes & M. 649, 661. By the court, in Trustees of the Presbyt. Society of Waterloo v. Auburn & Rochester Railw., 3 Hill, 570; Dartmouth Coll. v. Woodward, 1 N. H. Ill, 116; Eustis v. Parker, 1 N. H. 27;; : Dearborn v. Boston, C. & Montreal Ptailw. Co., 4 Foster, 179, 190; Ohio, &c. Railroad Co. v. Ridge, 5 Blackf. 78; Bonaparte v. Camden &AmbovR., 1 Bald- win's C. C 205, 222; Rundle v. Delaware & Raritan Canal Co., 1 Wallace, Jr. . 275 : K. & G. R. v. Davis, 2 Dev. & Batt. 451 ; Thorpe ». R. &B. R., 27 Vt. 140; s.c. 1 Redf. Am. Railw. Cases, 587. This last case discusses at some length the right of legislative control over private corporations, whose functions are essen- tially pub ic, like th se of banks and railways. The importance of such control, with n reasonable limits and under proper restrictions, both to the public interest ami that of these corporations, will be obvious when we consider the magnitude of the intere ts committed to such corporations, and the vast amount of capital invest d in bu h enterprises. We make no account of the banking capital of the country, most of which is occupied in business more or less connected with rail- way traffic. But the capital and business of railways is almost incalculable. The length of railway in the United Kingdom of Great Britain and Ireland in 1857, was 8,635 miles, and the cost, in round numbers, £311,000,000 sterling, being more than one and one-half billion of dollars. The amount invested in this country was about half as much in 1851, and the number of miles in opera- nt' nly twice as great, and almost as much more then in progress, a large portion of which is now complete (1857). When it is considered that these private corporations, possessing such vast capital, have engrossed almost the entir.- travel and traffic of the country, and that their powers and functions come in daily contact with the material interests of almost every citizen of this great empire, the importance of their being subjected to a wise and just supervision can scarcely be over-estimated. This can only be permanently secured by wise and prudent legislation. And to be of much security to public interests, it must be by general acts, as it is in many of the states, and in England, since 1845. It [•53] § 17. ORIGIN AND DIFFERENT CLASSES OF CORPORATIONS. 59 * 9. It does not alter the character of a private corporation, that the state or the United States own a portion of the stock. 8 is worthy of remark, we think, that while in the United States a large proportion of the capital invested in railways has proved hitherto wholly unproductive, and much of it has already proved a hopeless loss, and a very small proportion of the whole can be said to have been at all remunerative, in Great Britain the whole amount of their loan and preference stock, secured virtually by way of mortgage, has produced, upon an average, more than five per cent, and the ordinary stock has produced an average dividend of more than three per cent ; and in France railways have proved still more productive, making average dividends through- out the empire, for the year 1857, of nine per cent upon the whole investment, some as high as sixteen per cent, and one, the Lyons and Marseilles line, twenty- three per cent. It is difficult to account for the difference in results, without suspecting something wrong somewhere. Since the former edition of this work, • considerable advance has been made in railway enterprise throughout the world. Railways have become (1858) so nearly a military necessity, in order to enable any nation of considerable power and prominence in relative national position to maintain its due weight and importance, that very extensive, and in some in- stances vast, works of that kind have been accomplished, mainly upon that ground. The experience of the national government during the late civil war has removed all question of the right of that government to charter and construct, or aid in the construction of, extensive and independent lines throughout the country for military and mail purposes alone. It is stated that the present length of railway line in the United States is about 32,000 miles, at an average cost of $40,000 per mile, equal to $1,280,000,000 in all, and there is every reason to believe the Atlantic and Pacific coasts will speedily be united by railway. The advance in Great Britain and Ireland has been very great since the first edition of this work, but probably not in the same proportion as here. The number of miles of railway now (1867) in operation in France is about 8,000, at a cost of nearly $1,300,000,000, and producing, according to the late re- turns of the Minister of Public Works, a net income or dividend of nearly nine per cent. This is the same rate of income produced by the French railways in 1858, as stated above. The average income from railway investment in Great Britain and Ireland is probably not above half that sum ; and, in the United States, it is perhaps even below that. But our country is so immensely extensive, and easy and rapid intercommunication between all portions of the empire so much a state necessity, that it might naturally be expected that for a long time considerable portions of the line should remain unproductive in a pecuniary point of light. There have been great changes in the policy of railway construction and man- agement since this work first appeared, and mainly in the right direction. Reck- less and destructive railway management is now, we trust, becoming the rare exception in this country ; although there is still, no doubt, great room for im- 8 Bank of the United States v. The Planters' Bank of Georgia, 9 Wheat. 904 ; Miners' Bank v. United States, 1 Greene (Iowa), 553; Turnpike Co. v. Wallace, 8 Watts, 316 ; Bardstown & Lou. Railway v. Metcalfe, 4 Met. (Ky.) 199. [*54] GO B \ II. WAYS AS CORPORATIONS. PART II. • Bui a turnpike company or other corporation, managed exclu- sively by state officers, and at the expense and for the benefit of -■ ite at large, is a public corporation. 9 LO. The legal distinction between a corporation and a copart- nership is marked and important. A mere partnership is the result of voluntary association between two or more persons, to provement. There is probably no other country in the world where it is so difficult to bring the employe's, and others connected in various relations with railway management, to understand and appreciate the indispensable importance of bringing every thing to the unbending control of a single will. This is not only indispensable for success, but equally for security. From authentic sources it now (18G9) appears that the extent of railway in operation in Europe is not less than 50,000 miles. Of this, Great Britain has 1 1,000 miles, at a cost of £500,000,000 sterling; France has nearly 10,000 miles; Germany, including Austria, 13,000 miles; Spain, 3,000 miles; Sweden, 1,000 miles; Belgium, 1,000 miles; Switzerland and Holland, each, less than 1,000 miles; and Italy about 3,000 miles; and Eussia nearly 3,000 miles. There are also more than 3,000 miles of railway in British India; about that extent in the Canadas; and there is more than half the extent of railway line in the United States that there is in all the rest of the world; and -when the three lines of Pacific railway ^hall be completed, the extent will fall little short of equalling that of all the rest of the world. But a very large proportion of it is constructed with only a single track, and much of it is very imperfectly built, and has not pro\ed remunerative as a general rule. But it is the controlling interest of the country, far more important than any other pecuniary or political interest, both in peace and in war, and without which it is impossible to calculate what might have been the result of the late civil war. From the annual report of the English Board of Trade, 1871, in regard to British railways, it appears that there are 15,537 miles in the United Kingdom: viz. LI, 043 miles in England and Wales; 2,519 in Scotland; and 1,975 miles in Ireland. The capital stock of all these companies amounts to nearly £600,000,- 000 sterling, or about 83,000,000,000. The gross income of these companies - three-fifths of that of Great Britain and Ireland. The gross earnings of 1 • English companies exceed that of the income of some of the smaller or medium Mate- of Europe ; that of the London & Northwestern being £7,014,- 703, almost exactly the same as the national income of Belgium. i tide in the American Railway Times (1872), it would seem that the United States have now in operation 48,860 miles of railway, and 27,505 mdes more in process of building or already projected. Another account esti- mate- the length of railway in operation, January 1, 1871, at 53,399 miles; it may be safe now, to place it at 50,000 miles, in round numbers. Upon the same authority it i- estimated, thai there is in operation in Prussia an extent of rail- way of nearly 8, I English miles. e '•. North W. Turnpike Co., 10 Leigh, 454. But see Toledo Bank v. Bond, 1 Ohio (N. S.), 622, 657. Opinion of Storrs, J., in Bradley v. New Y. & New II. Kailw., 21 Conn. 294, 304, 305. [*o5] § 17. ORIGIN AND DIFFERENT CLASSES OF CORPORATIONS. 61 invest their capital and labor in the joint conduct of any business, mercantile or otherwise, either for a definite or indefinite time, according to the terms of the organic contract. This contract may be in writing or merely oral, and requires no legislative sanction to give it validity. 10 The result of such an association is to create a joint interest both in the capital and the business, unless there is some special stipulation as to the property remaining in those of the partners who furnish the capital. The several partners also become responsible for all the debts and legitimate contracts of the partnership; unless in special and limited partnerships, where, under certain conditions, the special partners are not liable for the partnership contracts beyond the amount of the capital invested by them. 11 11. But the organization of a corporation is essentially different. The individual members or corporators are not responsible, except by special statute, and that is an anomaly, for any of the acts of the corporation. The corporators are, so to speak, merged in the abstract being created by the act of incorporation, and can do no act binding the corporation except in accordance with the organic law by which this artificial being is created. And the corporation receives its powers and functions solely from the act of incorpora- tion ; and this act must, in all cases, emanate, either directly or indirectly, from the legislative power of the state or nation, and cannot be created by any mere contract among the members, as in the case of copartnerships. These principles are so elementary and fundamental to the very existence of corporations as scarcely to require to be stated, much less to be fortified by authority. 12 10 Story on Part. §§ 2, 3, and cases cited. 11 Coope v. Eyre, 1 II. Bl. 37, 48, where Lord Loughborough, C. J., defines a partnership to be a sharing both in profit and loss, and says that limited partner- ships are not allowed in England, although upheld upon the continent. But the law is now otherwise by special statute both in England and America. But, independent of statute, all the partners are responsible for all the liabilities of the concern. Angell & Ames, § 41 et seq., and cases cited. 12 Angell & Ames, § 591 et seq. And however extensive a joint-stock com- pany is, in point of members, it is responsible as a mere partnership, unless incorporated by act of the legislature or under some general statute. Williams . Bank of Michigan, 7 Wend. 539, 542. [*55] 62 RAILWAYS AS CORPORATIONS. PART II. SECTION II. Mow Corporations are created. Corporations created by grant of the sov- iiij. This may be proved, by im- Hon or by presumption. The sovereignty may establish corporations by general act, or delegation or procura- tion. Different forms of defining a corpora- 4. The corporate action of corporations re- stricted to state creating them. 5. It may act by its directors and agents in other states. n. 10. But cannot properly transfer its entire busitiess to another state. 6. A college located at one place cannot es- tion. tablish a branch at another. § IT a. 1. Strictly speaking, corporations can only be created by the authority of the sovereignty, either state or national. 1 Hence, the ordinary mode of creating joint-stock business corpora- tions is by charter, by way of legislative act of the several states. But as, in some cases, the record of such charters may not have been preserved, and, in other cases, the grant of corporate powers * may have been by way of implication rather than express legisla- tive act, the courts have allowed corporations to prove their cor- porate character and capacity, by evidence that such character and capacity is reasonably, or necessarily, implied from other legislative action ; 2 or else, that its existence is fairly to be presumed from the long continuance of its unquestioned exercise. 3 2. The legislature may create corporations by general acts of incorporation, as they are called, whereby a given number of per- sons, by forming an association in a prescribed form, shall become possessed of corporate powers, for certain defined objects and pur- poses. This is common, in many of the states, as to ecclesiastical and charitable, or benevolent associations, and not unfrequently 1 As the national sovereignty is limited to the subjects and powers enumerated in the Constitution, and such implied powers as are requisite to the successful exercise of those expressly granted ; and as no general power to create corpora- tions is expressly given, the construction of the court of last resort upon these questions, established at an early day, is, that Congress can charter only such corporations as are fairly to be esteemed necessary to the successful accomplish- ment of its delegated powers and functions. McCulloch v. Maryland, 4 Wheat. 316; Osborn v. Bank of United States, 9 Wheat. 733. 2 Conservators of the Tone v. Ash, 10 B. & Cr. 349. 3 Dillingham v. Snow, 5 Mass. 547 ; 2 Kent, Comm. 277 ; 1 Bl. Comm. 473. [*56] § 17 a. HOW CORPORATIONS ARE CREATED. 63 as to banking, railway, and other business corporations. And although at one time questioned, it seems now conceded, that the sovereign authority may grant to any one the power to erect cor- porations to an indefinite extent, upon the maxim : Qui facit per alium facit per se. This power is given to the Chancellor of the University of Oxford, 4 and exists in many other forms. 3. A corporation is defined by Lord Holt, C. J., 5 as an em civile, a corpus politicum, a persona politica, a collegium, an univer- sitas, a. jus hdbendi et agendi. A corporation is well defined, as to the general sense of the term, by Chief Justice Marshall? as " an artificial being, invisible, intangible, and existing only in contem- plation of law." It is, in fact, the mere creature or creation of the law. Endowed by its charter with the capacity of performing certain functions, and having no rights, and possessing no powers, except those conferred by the sovereignty by which it was created. 4. It is upon this ground, that it has been declared, upon the most unquestionable basis, both of principle and authority, that a " corporation can have no legal existence out of the boundaries of the sovereignty by which it is created." 7 " It exists only in con- templation * of law, and by force of the law ; and where that law ceases to operate, and is no longer obligatory, the corporation can have no existence. It must dwell in the place of its creation, and cannot migrate to another sovereignty." And the same thing, substantially, is repeated in another case 8 by Mr. Justice Thomp- son. But a corporation may transact business in a foreign state or country, and may be there sued in relation to the same. 9 5. There seems to be no question but the corporation may act, by its directors, agents, and servants, beyond the limits of the 4 1 Bl. Coram. 474. 5 Anonymous, 3 Salk. 102. 6 Dart. College v. Woodward, 4 Wheat. 518. The same learned judge, in another place, Providence Bank v. Billings, 4 Pet. (U. S.) 514, thus comments upon the purposes of acts of incorporation : " The great object of an incorpora- tion is, to bestow the character and properties of individuality on a collective and changing body of men." 7 Taney, C. J., in Bank of Augusta v. Earle, 13 Pet. (U. S.) 519, 588. 8 Runyanv. Lessee of Coster, 14 Pet. (U. S.) 122, 131. The same doctrine is maintained in other American cases, Miller v. Ewer, 27 Me. 509 ; Farnuin v. Blackstone Canal Co. 1 Sumn. (C. C.) 46; Day v. Newark India Rubber Co., 1 Blatchf. (C. C.) 628. 9 Newby v. Colt's Patent Fire-Anns Co., L. R., 7 Q. B. 293. (J4 RAILWAYS AS CORPORATIONS. PART II. sovereignty by which it was created, 10 but its first meeting, and all its subsequent meetings, in order to bind absent and dissenting members, Bhould, it would seem, be held within the limits and jurisdiction of the sovereignty creating the corporation. 11 But in one case in New Jersey, Hilles v. Parrish, 12 the general rule is reaffirmed, that a corporation can hold no meeting and trans- act no corporate business, except within the state from which * they derive their charter. And it was h^'e further held, that a resolution of the directors, at a meeting held out of the state where the corporation was created, for the purpose of transferring stock to sonic of their own number, was wholly inoperative. But the court declined to enjoin those holding under such title from voting at the election of corporate officers, until all parties could be heard upon the question of title. 6. But a college of learning, established in a particular place, has no power to establish a branch, for one of its departments or faculties, at a different place. It was accordingly held, that Geneva College, at Geneva, N. Y., could not establish a medical school in the city of New York. 15 10 M' Call v, Byram Manuf. Co., 6 Conn. 428. It was held in this case, that the directors of a manufacturing corporation might legally hold a meeting, out of the state, for the purpose of making the appointment of secretary of the cor- poration, and the appointment would not be rendered invalid thereby, or by the fad thai the person appointed had his permanent residence without the state. " .Miller v. Ewer, 27 Me. 509. The law seems so entirely well settled, that corporations, created by one sovereignty, cannot so transfer their locality as lv to exist and act in their organic corporate capacity in another sover- eignty, that it appears very singular that such multitudes uf speculative joint- corporations, deriving their charters from the legislature of the state, should attempt to transfer their entire local action to another sovereignty and jurisdic- tion. For there is no principle better settled than that the locality of a business corporation is determined by that of its principal business office. And there are, unquestionably, hundreds of business corporations chartered by the legislature of one state h iving their principal and only business offices in other states. This is done doubtless by holding the stockholders' meetings in the states where the charter was obtained, and appointing a board of directors with full powers, and then carrying forward the business of the company through the agency of the board ol directors, with a by-law for filling vacancies in the board by the action of the directors themselves. But that seems scarcely less than an evasion. And although it may be held binding upon the members of the company so long as acquiesce d in by them, it might at any time be enjoined by proper proceedings in equity. 12 1 McCarter, 380. People v. Trustees of Geneva College, 5 Wendell, 211. [*58J §17 b. THE CONSTITUTION OF CORPORATIONS. 65 SECTION III. The Constitution of Corporations, and mode of Proof. 1. Definitions of the different sense of the term "constitution,'' us applied to cor- porations. 2. How corporations may be composed or constituted. n. 1. The question illustrated more in detail. 3. Distinction of legislative, electoral, and ad- ministrative assemblies not essential. 4. Corporation can only act by its name. Subject discussed. 5. Any deflation from the name allowed, if the substance and sense be preserved. 6. Courts of equity will not restrain corpora- tions from applying for enlarged powi rs. 7. Change of Constitution. Effect of change of name. 8. Courts r,f equity will ■ njoin a ;/' u ration from assuming the name of one of establish/ 1! credit. 9. Promissory note payable to . I. />.. tn us- urer of a corporation, may h sued in the name of A. /<'. Promissory note for subscription waives condition. 10. Corporation may hi estopped to duty its existence. How described. 11. How the existence and non-existence of corporations may be proved. 12. Party to writtt n contract, payable to cor- poration, cannot deny corporate exist- ence. 13. Proof of corporation in fact sufficient in all cases. § 17 b. 1. The term " constitution," as applied to corporations, is susceptible of being used in very different senses. It may imply nothing more than the charter or formal grant of corporate organi- zation and powers by the sovereignty, or it may be applied to certain fundamental principles, declared by the corporators them- selves, as the unalterable basis of the organization of the body; or, if not wholly unalterable, not to be altered except by the * adoption and concurrence of certain formalities, not likely to occur, except in regard to changes of very obvious necessity ; or the term may be used to signify the constituent members, or dif- ferent bodies of which the corporation is composed. 2. A corporation may be composed of natural persons, acting in their separate and individual capacity ; or it may be composed of different bodies of natural persons, acting in separate assemblies; or it may be composed of separate and distinct corporations. 1 1 Joint-stock business corporations arc, for tbe most part, composed of natural persons. But as membership in such corporations grows out of the ownership of shares, it may exist in other corporations, who subscribe for or purchase shares ; or the shares may be in part owned by the sovereignty, either state or national. Bank of the United States v. The Planters' Bank of Georgia, 9 Wheaton, 904 ; Bank of South Carolina v. Gibbs, 3 McCord, 377. But, as said vol. i. 5 [*59] RAILWAYS as CORPORATIONS. PART II. writers have distinguished the meetings or assemblies of aggregate corporations into three kinds, — legislative, electoral, and administrative. But this is a distinction with reference to the different offices or duties of the same assembly, or meeting, and is consequently of no practical importance to be maintained or discussed. I. A corporation must be constituted by some corporate name, and ran only acl by such name. 3 A corporation by prescription may have several names, but by charter it can have, it is said, bui one name for the same' purpose and at the same time. For, • although it may have a new charter by a new name, it thereby loses the old name. 4 I,, Mi . ( Ihief Justice Marshall, in Bank of the United States v. The Planters 1 Bank, '.i \\ heat. 904. "As a member of a corporation, a government never exercises ivereignty. It acts merely as a corporator, and exercises no other power in tin- managemi nt of the affairs of the corporation than are expressly given by the incorporating act." A familiar instance of corporations, composed of different associations of natural persons, forming component parts of the corporation, will be found in the organization of municipalities, 1 Kyd. 36. So also the corporation may be composed of a defined number of persons of a particular class. As in the case of st. Mary's < Ihurch in the city of Philadelphia, 7 S. & R. 517. And a corporation is sometimes constituted of several subordinate corporations combined. As in the case of the Dean and Canons of the English Cathedrals, _' Burn's Eccl. Law, 'lit. Monasteries, 542. The same is also true of the cor- porations of the English Universities, which are composed of the subordinate corporations oi" tin- different Colleges and Halls. 1 Kyd. 36. Some English towns and cities are composed of several subordinate corporations. And a free- man of the city of London must tirst become a freeman of some of the Trades' incorporations. Angell & Ames, § 96. ■-' 1 Kyd. 399; Angell & Ames, § 98. ( lollege of Physicians v. Salmon, 3 Salk. 102. * Anonymous, 3 Salk. 102. But some writers have said that if the charter of a corporation allow them to act by different names for the. same purpose, there i- no good reason why they may not. 1 Kyd. 230. And in Minot v. Curtis, 7 Mass. HI, it is said a parish may be known by several corporate names. The poinl is not important, since few corporations make any claim to an alias dictus, ami where that is claimed there will commonly be no difficulty in determining how far the claim ] et seq., in the late edition of 1860. 13 ( 'olonial Lite Ass. Co. v. Home & Col. Life Ass. Co., 33 Beav. 548 ; s. c. 10 Jur. (X. S.) 967. " Chadsey v. McCreery, 27 111. 253. 18 ODnnald v. E. Ind. & CI. Railw. Co., 14 Ind. 259. [*62] § 17 b. THE CONSTITUTION OF CORPORATIONS. 69 corporate existence. 16 It is said in some cases, that if the corpora- tion contracts by a style which is usual in creating corporations, and which discloses the names of no natural persons, that the corporate existence will be implied and need not be averred. 17 But in general such a proposition would not be regarded as main- tainable in suits, either in favor or against a corporation ; it should be described as such in the declaration, with its location at its central place of doing business. 11. It has been held, that where defendants, sued as a corpora- tion, rely upon the fact that the corporate -existence has ceased before the institution of the suit, it must be pleaded in abatement and not in bar of the action. But in general the want of corporate existence and power may be shown at any time before judgment, upon proper notice and special plea. 18 A party who has sued a corporation and recovered judgment against them by a particular name, is afterwards estopped from denying the corporate exist- ence. 19 But this seems not altogether in accordance with the requirement that estoppels be mutual, unless the judgment were between the same parties. Such an estoppel would therefore only operate as between the plaintiff in the former suit and the corporation. 12. The cases are very numerous where it has been held that a * party who gives a written contract to a corporation by a particular name is estopped to deny the existence and name of such corpora- tion. 20 13. And in all cases of the plea of nul tiel corporation, proof of a corporation in fact will be sufficient. 20 16 Callender v. Painesville & H. R. R. Co., 11 Ohio (N. S.), 516 ; The Atlantic & Ohio R. R. v. Sullivant, 5 Ohio (N. S.), 276. See also Ashtabula & New L. R. R. Co. v. Smith, 15 Ohio (N. S.), 328. 17 Stein v. Ind. &c., Association, 18 Ind. 237. 18 Meikel v. The German Savings Fund Society, &c, 16 Ind. 181. 19 Poehelu v. Kemper, 14 La. Ann. 308. 20 Hubbard v. Chappel, 14 Ind. 601. [*63] 70 PROCEEDINGS UNDER THE CHARTER. PART II. ^CHAPTER IV. PROCEEDINGS UNDER THE CHARTER. SECTION I. Organization of the Company. Conditions precedent must he performed. must nil be subscribed, ordinarily. 1 '■ r-location of road, condition prece- i/t nt. Colorahli subscriptions binding at law. Conditions subsequent, how enforced. Stock distributed according to charter. Commissioners must all act. 8. Defect of organization must be pleaded specially. 9. Question cannot be raised collaterally. 10. Records of company, evidence. 11. Membership, how maintained. 12. By subscription and transfer of shares. 13. Ojfeis to take shares not enforced in equity, and may be withdrawn. § 18. 1. To give the corporation organic life, the mode pointed out in the charter must ordinarily be strictly pursued. Conditions precedent must be fairly complied with. 1 Thus, where a given amount of capital stock is required to be subscribed or paid in be- fore the corporation goes into operation, this is to be regarded as an indispensable condition precedent. 2 But if the charter is in the alternative, so that the stock shall not be less than one sura or greater than another, the company may go into operation with the less amount of stock, and subsequently increase it to the larger. 2 1 Angell & Ames on Cor. ch. 3, §§ 95-112 ; 2 Kent, Comm. 293 et seq. 2 Post, § 51, and cases cited. Bend v. Susquehanna Bridge, 6 Har. & Johns. 128 ; Gray v. Portland Bank, 3 Mass. 364 ; Minor v. The Mechanics' Bank of Alexandria, 1 Peters (U. S.), 46. Opinion of Story, J. And where a corpora- tion is formed, or attempted to be formed, under general statutes, the inchoate proceedings do not ripen into a corporation, until all the requirements of the statute, even the filing of the articles in the office of the Secretary of State, are complifd with. And until this is done, the subscription of any one to the articles is a mere proposition to take the number of shares specified, of the capital stock of the company thereafter to be formed, and not a binding promise to pay. The obligation is merely inchoate, and can never become of any force, unless the cor- poration goes into effect in the mode pointed out in the statute. And until that time, the subscriber may revoke the oiler, and if the articles are in his possession or control, erase his name. Burt v. Farrar, 24 Barb. 518. [*64] §18. ORGANIZATION OF THE COMPANY. 71 * 2. And where business corporations are created with a definite capital, it is regarded as equivalent to an express condition that the whole stock shall be subscribed before the company can go into full operation ; and in the case of banks, it must be paid in specie in the absence of all provision to the contrary, before they can properly go into operation. 3 3. In some cases it is a condition of the charter, or of the sub- scriptions to the stock, that the track of a railway shall touch certain points, or that it shall not approach within certain distances of other lines of travel. This class of conditions, so far as they can practically be denominated conditions precedent, must be strictly complied with, before the company can properly go into operation so as to make calls. 4. But it has been held, that colorable subscriptions to stock, in order to comply with the requisites of the charter, are not to be re- garded as absolutely void. They are binding upon the subscribers themselves. And they are binding upon the other subscribers, unless upon their first discovery, they take steps to stay the further proceedings of the corporation, which may be done in a court of equity. If there has been unreasonable delay in opposing the action of the corporators, upon the faith of such subscriptions, or if matters have progressed so far before the discovery of the true character of the subscriptions, by the parties liable to be injuriously * affected by them, as to render it difficult to restore the parties 8 King v. Elliott, 5 Sin. & Mar. 428 ; post, § 51. But a requirement in the charter of a railway company, that $1,000 per mile shall be subscribed, ami ten per cent paid thereon in good faith, does not require ten per cent to be paid by each subscriber, in order to the performance of the condition. It is a sufficient compliance with such requirement, if that proportion on the whole subscription be paid. Ogdensb., Rome, & Clay. R. v. Frost, 21 Barb. 541. But under the late English Statutes corporations are allowed to organize, and make calls to some extent, before all the capital is subscribed. Or. P. W. Co. v. Brown, 9 Jur. (N. S.) 578 ; s. c. 2 H. & C. 63. But in America the rule that all the stock must be subscribed before the company can go into operation is strenuously adhered to. Shurtz v. The S. & T. Railw. Co., 9 Mich. 269. And upon gen- eral principles it seems not to be held indispensable in England that all the stock be subscribed, either to enable the corporation to go into operation, or even to borrow money on mortgage. McDougall v. The Jersey Imperial Hotel Co., 2 H. & M. 528; 8. c. 10 Jur. (N. S.) 1043. But in America, the entire capital stock must be subscribed and paid in money, and it will not be sufficient to pay it in the equivalent for money, to the acceptance of the shareholders or directors, unless the charter or general laws of the State so provide. The People v. The Troy House Co., 44 Barb. 625. 3 [*65,66] 72 PROCEEDINGS UNDER THE CHARTER. PART II. to their former rights, the corporation will still be allowed to pro- ceed, notwithstanding the fraud upon the charter. 4 5. Conditions subsequent in railway charters, by which is to be understood such acts as they arc required to perform after their mization, will ordinarily form the foundation of an action at law, in favor of the party injured ; or they may be specifically en- forced in courts of equity, in cases proper for their interference in that mode; or, if the charter expressly so provide, proceeding's by way of 8 8, to avoid the charter may be taken. 5 6. Where a statute declares certain persons by name, and such other persons as shall hereafter become stockholders, a corpora- tion, the distribution of the stock, in the mode pointed out in the statute, is a condition precedent to the existence of the corpora - tion. 6 7. Where the charter of a railway company appoints a certain number of commissioners, to receive subscriptions and distribute the stock, in such manner as they shall deem most conducive to the interests of the company, making no provision in regard to a quorum, all must be present to consult when they distribute the siock, although a majority may decide, this being a judicial act. Receiving subscriptions is a merely ministerial act and may be performed by a number less than a majority. 6 4 Walker r.Devereaux, 1 Paige, 229 ; s. c. 1 Redf. Am. Railw. Cases, 29. The entire -round of chancery jurisdiction in regard to the conduct of commissioners or corporations in making colorable subscriptions of stock is lure, very fully dis- d by the learned Chancellor. And the conclusion arrived at seems the only practicable one, that colorable subscriptions or fraudulent distribution of stock will not defeat the legality of the organization of the corporation, unless the thing i arrested in limine. Johnston v. S. W. R. R. Bank, 3 Strob. Eq. 263; la & Tenn. U. v. Tipton. 5 Alabama, 787 ; Ilayne v. Beauchamp, 5 Sm. & M. 515. The decision of the commissioners is conclusive upon the c pany and shan at law certainly. Crocker v. Crane, 21 Wendell, 211 ; s.c. lRedf. Am. Railw. Cases, 42. And where the charter, or act of association, names com- ike up subscriptions, they alone have jurisdiction of the matter, and Bubt iken up by volunteers are not binding upon the subscribers unless led h) the commissioners. Shurtz v. The S. & T. R. R. Co., 9 .Mich. 269. imm. 305, and notes. :ker v. Crane, 21 Wendell, 211; s. c. 2 Am. Railw. C. 484 ; s.c. 1 Redf. Am. Raih 12. Where the statute- nanus a large number of persons, and • '"' anj three of them, may act as commissioners, either the whole number or any three may acl at the election of the individuals. No particular form of words i required to create the grant of a corporation. The grant of [*67] § 18. ORGANIZATION OF THE COMPANY. 73 If the organization of a corporation is regular upon its face, and the legislature have recognized it as such subsequently to its having gone into operation, it becomes ipso facto a legal corporation. 7 8. Questions in regard to the organization, or existence of the corporation, can only be raised ordinarily upon an express plea, either in abatement or in bar, denying its existence. 8 9. But all the cases concur in the proposition, that the existence of the corporation, the legality of its charter, and the question of its forfeiture, cannot be inquired into, in any collateral proceeding, as in a suit between the compan}^ and its debtors, or others, against whom it has legal claims. 9 10. The records of the corporation are prima facie, but not in- dispensable evidence, of its organization and subsequent proceed- ings. 10 But the authenticity of the books, as the records of the power to perform corporate acts implies the grant of corporate powers. Comm. v. West Chester Railw. Co., 3 Grant Cas. 200. 7 Black River & Utiea Railw. v. Barnard, 31 Barb. 258. 8 Boston Type and Stereotype Foundry v. Spooner, 5 Vt. 93, and cases cited; Railsback v. Liberty & Abington Tump. Co., 2 Carter. 656. But some cases seem to require such proof to establish the contract. Stoddard v. The Onondaga Annual Conference, 12 Barb. 573 ; Heaston v. Cincinnati & F. W. R., 16 Ind. 275. A party who executes his promissory note to a company by its corporate name is estopped to deny its corporate existence. Fast l'aseagoula Hotel Co. r. West, 13 La. Ann. ,341. s. p. Black River Railw. v. Clarke, 25 N. Y. 280. But in an action by a corporation upon a judgment, the defendant is estopped to plead that no such corporation exists, even if he propose to prove its dissolution after the date of the judgment. He should plead such matter specially. Perth Amboy Steamboat Co. v. Barker, 2 Phila. 67. But see Ander- son v. Kerns Draining Co., 14 Ind. 199. 9 Duke v. Cahawba Nav. Co., 16 Alabama, 372; post, § 212, note 6. But in an action against a stockholder lor the debt of the company under the statute, -the existence and organization of the. company must be proved; and judg- ment against the company is not evidence against the stockholder. Hudson v. Carman, 20 Law Rep! 216; s. c. 41 Me. 84; C. P. & A. Railw. v. City of Erie, 27 Penn. St. 380. See also Eakright v. L. & N. I. Railw., 13 Ind. 404. The subscription to the stock of a corporation estops the subscriber to deny the corporate existence, nor can the subscriber plead in defence of such sub- scription that other subscribers, by means of secret fraudulent agreements, were promised shares upon terms different from those specified in the agreement, since such fraudulent arrangements are of no validity, and cannot avail the par- ties on whose behalf they are made. Anderson v. N. & R. Railw., 12 Ind. 876. 10 Aug. & Am. §513; Grays v. Lynchb. & Salem T. Co., 1 Rand. 578; Bun- combe T. Co. v. McCarson, 1 Dev. & Bat. 306; 1 Greenl. Ev. § 493; Rex r. Martin, 2 Camp. 100; Hudson v. Carman, 20 Law Rep. 216; s. C. II Me. 84. 1*01] 74 PROCEEDINGS UNDER THE CHARTER. PART IT. 'corporation, must be shown by the testimony of the proper officer entitled to their custody, or that of some other person cog- nizant of the fact. 11 11. Questions sometimes arise as to what constitutes member- ship in a corporation. This has to be determined, in most aggre- gate corporations, by the just construction and fair import of the charter and by-laws of the body. The usage of the corporation and of other similar bodies will be of controlling force in deter- mining such questions. But the power of maintaining, in some mode, a supply of members of the body, is incident to all corpora- tions, as indispensable to its continued existence. 12 All that a corporation is called upon to prove, to establish its existence in a litigation with individuals dealing with it, is its charter and user under it. This constitutes it a corporation de facto, and this is sufficient, in ordinary suits, between the corporation and its debtors. The validity of its corporate exist- ence can only be tested by proceedings in behalf of the people. Mead v. Heeler, 24 Barb. 20. Between the company and strangers, the records of the company will ordinarily be held conclusive against them in regard to such matters as it is their duty to perform, in the manner detailed in the records. Zabriskie ». C. C. & C. Railw., 10 Am. Railw. Times, No. 15 ; s. c. affirmed, 23 How. 381; Ileaston v. Cincinnati, &c. Co., 16 Ind. 275. See upon the gen- eral question of proof and presumption of the organization of corporations, Leonaidsville Bank v. Willard, 25 X. Y. 574 ; Belfast and Angelica Plank Road Co. v. Chamberlain, 32 N". Y. 651 ; Buffalo & Allegany Railw. v. Cary, 26 N. Y. 75. Where the statute under which an incorporation is formed in another state, required, that before the corporation should commence business it should cause its articles of association to be published in a prescribed form, it was held that it might be regarded as sufficiently incorporated for the bringing of an action without the publication ; and that the general reputation and notoriety of the fact that such corporation was doing business in that capacity, coupled with the fact that the contract sued upon was made payable to them, was sufficient evidence of the corporate existence. Holmes v. Gilliland, 41 Barb. 568. See Unity Ins. Co. v. Cram, 43 N. H. 636, where the rule of con- struction is somewhat more strict. There seems to be no rule of practice better settled than that where the de- fendant, in a suit brought by a corporation, pleads the general issue, he thereby concedes the right of the plaintiff to sue in his corporate capacity. Orono v. Wedgeworth, 44 Me. 49. The members of a mutual insurance company can- not.dispute the corporate existence in a suit upon the premium notes in favor of a receiver appointed to wind up the concerns of the company. Hyatt v. Whip- ple, 37 Barb. 595. Misnomer of corporations must be plead in abatement, or it will be regarded as waived. Keech v. Bait. & Wash. Railw., 17 Md. 32. 11 Highland Tump. Co. v. McKean, 10 Johns. 154. See Breedlove v. M., &c. Railw. Co., 12 Ind. 114. 12 Hicks v. Launceston, 1 Roll. Ab. 513, 514 ; s. c. 8 East, 272, in n. See also [*68] § 19. MODIFICATION AND ACCEPTANCE OF THE CHARTER. 75 *12. But in joint-stock business corporations, like banks and railways, and other similar companies, membership is originally constituted by subscription to the shares in the capital stock ; and it is subsequently continued by the transfer of such shares, in con- formity with the charter and by-laws of the company, and no election by or assent on the part of the corporation is requisite, unless made so by the charter or by-laws. 13. Serious questions often arise in regard to the allotment and acceptance of shares. Courts of equity have sometimes declined to interfere to carry into effect, specifically, contracts with the pro- moters to accept shares in the company when it should be fully organized. 13 But we apprehend the rule is generally otherwise, as we have stated elsewhere. 14 And one who has made the requisite deposit and also the formal application to the company for an allotment of shares, is still at liberty to withdraw the application at any time before it is accepted or any allotment made. 15 SECTION II. Acceptance of Charter, or of Modification of it. 1. New or altered charter must be formally accepted. 2. Subscription for stock sometimes sufficient. 3. Inoperative unless done as required. [>. }[ittter of presumption and inference. 6. Organization or acceptance of charter may be shown by parol. 7. Corporators assenting are bound. 4. Assent to beneficial grant, presumed. \ 8. Charter subject to recall until accepted. § 19. 1. It is requisite to the binding effect of every legislative charter (or modification of such charter) of a joint-stock company, 2 Kent, Comm. 294. It is not competent for the defendant, in an action in favor of a corporation, to plead that the company lias committed acts working a for- feiture of its corporate franchises. That can only be determined by a suit on behalf of the public, brought expressly to try that question. Comm. v. Morris, 1 Phil. 411; Coil v. Pittsburgh Female College, 40 Penn. St. 430; Dyer v. Walker & Howard, id. 157. Membership in the corporation is not affected by the certificate of shares containing a promise to pay interest till a certain time. McLaughlan v. D. & M. R. Co., 8 Mich. 100. 13 Oriental I. St. Co. v. Briggs, 2 Johns. & II. 025 ; s. c. 4 L. Times (N. S.), 578. But this case was affirmed by the Lord Chancellor, on the ground that there was no valid or complete contract. 5 L. Times (N. S.), 477. 14 Post, § 34, pi. 0. 15 Graham ex parte. 7 Jur. (N. S.) 981. [*69] 76 PROCEEDINGS UNDER THE CHARTER. PART II. * tliat it should be accepted by the corporators. 1 This question more commonly arises, in regard to the modification of a charter, or the granting of a new charter, the company in either case, whether under the old or the new charter, going forward to all appearance much the same as before. In such case, it has usually been regarded as important to show some definite act of at least a majority of the corporation. 2 2. The question of acceptance becomes of importance often, where a partnership, or some of its members, obtain an act of in- corporation. But ordinarily, in the first instance, the assent of the stockholders, or corporators, is sufficiently indicated by the mere subscription to the stock. 3. Where a statute in relation to a corporation requires accept- ance, in a prescribed form, and that is not complied with, the cor- poration can derive no advantage from the act. 3 4. It has been held, that grants beneficial to corporations may be presumed to have been accepted by them, the same as in the case of natural persons. 4 ■ 5. And in the majority of instances, perhaps, the acceptance is rather to be inferred from the course of conduct of the company than from any express act. 5 6. It may always be proved by oral testimony, as may also the organization of the company, ordinarily. 6 7. In a case in Ohio, where an amendment of the charter of a bank was passed by the legislature giving the bank certain immunities and privileges, upon the assent of all the stockholders in writing, filed with the auditor of the state, to become personally responsible for the liabilities of the company in the manner pre- 1 The King v. Pasmore, 3 T. R. 200, 240 ; Ellis v. Marshall, 2 Mass. 269. This was a charter to certain persons by name, for the purpose of making a street, and subjecting them to assessment for the expense, and it was held not to bind a person named in the act, unless he assented to it. 2 Wilmot, J., in Rex v. Vice-Ch. of Cambridge, 3 Bur. 1647 ; Rex v. Amery, 1 T. R. 57."; ; Falconer v. Campbell, 2 McLean (C. C), 195. 3 (ire n r. Seymour, :i Sandf. Ch. 285. * Charles River Bridge v. Warren Bridge, 7 Pick. 344; by Parker, C. J., and Wilde, J. 3 Hank of U. S. v. Dandridge, 12 Wheat. 64, opinion of Story, J., and cases f-itcd. lin v. Collins, 17 Maine, 440; Bank of Manchester v. Allen, 11 Vt. 302; Angcll & Ames. Corp. ^ 81-87 ; Dartmouth College v. Woodward, 4 Wheat. 688 ; Wilmington & Manchester R. v. Saunders, 3 Jones, 126. [*70] § 20. ORDINARY CORPORATE POWERS. 77 scribed * in the act, it was held, that although all the stockholders did not subscribe the required written declaration, yet if the bank had enjoyed the benefits secured by the amendment, neither those stockholders who did subscribe it, or the bank itself, can deny the acceptance of the amendment, as against the claims of third persons. 7 8. And where the constitution of the state is so altered as to prohibit the grant of special acts of incorporation, it was held, that such an act granted before the new constitution took effect, and which had not been accepted by the corporators, could not be accepted, thereafter ; as the grant of a charter to those who had not applied for it, until it was accepted, remained a mere offer, and might be withdrawn at the pleasure of the grantors. 8 But where any amendment of the charter of a corporation was fully accepted by the shareholders before the new constitution took effect, it can- not be affected by any of the provisions thereof ; and what shall amount to such acceptance is matter of fact, depending upon the construction of the facts proved. 9 SECTION III. Ordinary powers — Control of majority. 10. But will, if to convert canal into railway. 11. Right to interfere lost by acquiescence. 12. Acquiescence of one plaintiff, fatal. 13. Railway a public trust. 14. Suit maintained by rival interest. 15. Courts of equity will not restrain the majority from winding up unless for fraud, ; \-r. 1. Ordinary franchises of railways. 2, 3. Majority control, unless restrained. 4. Cannot change organic law. 5. Except in the prescribed mode. 6. Cannot accept amended charter. 7. Or dissolve corporation. 8. May obtain enlarged powers. 9. Courts of equity will not restrain the use of their funds for that purpose. § 20. 1. The ordinary powers of a railway company are the same as those pertaining to other joint-stock aggregate corpora- 7 Owen v. Purdy, 12 Ohio (N. S.), 73. And a legislative permission to a plank road company to mortgage its corporate property is an amendment which may be accepted by the vote of the majority. And the same is true of all amend- ments calculated merely to facilitate the attainment of the existing objects and purposes of the corporation. Joy v. Jackson & Michigan Plank Road Co., 11 Mich. 155. 8 State v. Dawson, 16 Ind. 40. 9 State v. Dawson 22 Ind. Rep. 272. [*71] 78 PROCEEDINGS UNDER THE CHARTER. PART II. tions, unless restricted by the express provisions of their charter, * or by the general laws of the state. These are perpetual succes- sion, the power to contract, to sue and be sued by the corporate name, to hold land for the purposes of the incorporation, to have a common seal, and to make its own by-laws or statutes, not incon- sistent with the charter, or the laws of the state. 1 And it may be proper to say, that it is implied in the grant of all business cor- porations, that they possess the power to acquire and convey such property, both real and personal, as shall be found reasonably necessary and convenient, for carrying into successful operation the purposes of their incorporation. And when there is no limita- tion upon this power, in the act of incorporation, it can only be limited by writ of mandamus or injunction, out of chancery, at the suit of the attorney-general, or by some other proceeding on the part of the people. Until some such public interference, the title of the corporation will be good. 2. The right of the ma ority of a joint-stock company, whether a copartnership or a corporation, to control the minority, is a con- sideration of vital importance, and will be more extensively dis- cussed hereafter. 2 3. There can be no doubt the general principle of the right of the majority to control the minority, in all the operations of the company, within the legitimate range of its organic law, is implied, in the very fact of its creation, whether expressly con- ferred or not. 3 4. And perhaps it is equally implied in the fundamental com- 1 Walford, 69 ; 1 Black. Comra. 475, 476 ; 2 Kent, Coram. 277 ; where the power of amotion of members for just cause is added. ! Post, §§ 56, 212. 3 Louisville, Cincinnati, & Charleston Railw. v. Letson, 2 Howard (U. S.), 497 ; s. c. 15 Curtis, Cond. 193. The very definition of a corporation, that it is an artificial being composed of different members, and existing and acting as an abstraction, and having its habitation where its functions are performed, presup- poses that it must act in conformity with its fundamental law, which is according to tin- combined results of its members, or the will of the majority. But this will cannot change its fundamental law without changing the identity of the arti- ficial being to which we apply the name of the corporation. See also St. Mary's Church, 7 S. & R. 517 ; New Orleans, Jackson, &c. Railway v. Harris, 27 Miss. 517 : Ex parte Rogers, 7 Cowen, 526, which holds, that if the charter requires a certain number to be present, in order to the performance of a particular act, it is requisite that the number remain till the act is complete, and if one depart before, although wrongfully, it will defeat the proceedings. [*72] § 20. ORDINARY CORPORATE POWERS. 79 pact, that the majority have no power to change the organic law of * the association, except in conformity to some express provision therein contained. 5. This principle lies at the foundation of all the political or- ganizations in this country, which, in theory certainly, are not liable to be changed by the will of the majority, except in the mode pointed out in the constitution of the state or sovereignty. And corporations are not subject to the ultimate right of revolution, which is claimed to exist in the state, and which may be exercised by the lav/ of force, which is a kind of necessity, to which all sub- mit, when there is no open way of escape. This could have no application to a commercial company, whose movements are as much under the control of the courts of justice as those of a natural person. 6. And in this country it has been held, that the acceptance by the majority of a corporation of an amendatory act, does not bind the minority. 4 An amendment to the charter of a corporation to become binding, must either have been applied for in pursuance of a vote of the stockholders, or else have been accepted by such vote ; or it must have been acted under for such a length of time as to raise a reasonable presumption of knowledge in the shareholders and subsequent acquiescence. 5 7. And a contract of a manufacturing corporation to employ the plaintiff, a stockholder, during the time for which the corporation is established, that being indefinite, is not released by a majority of the company voting to dissolve the corporation and wind up its concerns, discharging the plaintiff from his employment, and trans- ferring the property to trustees, to pay the debts and distribute the surplus among the stockholders, and giving notice to the executive department of the state, that they claimed no further interest in their act of incorporation. 6 4 New Orleans, &c. Railroad v. Harris, 27 Miss. 517. But this rule will be understood with some limitations. If it be an amendment within the ordinary range of the original charter, giving increased facilities for the accomplishment of the same objects, it may be accepted by the majority, so as to bind the whole company. But if it be a fundamental alteration of the constitution of the com- pany, it must have either the express or implied assent of all the corporators, to make it binding. Post, pi. 8; § 56, pi. 3, 7. 5 Illinois River Railw v. Zimmer, 20 111. 654 ; Same v. Casey, ib. 6 Revere v. Boston Copper Co., 15 Pick. 351. This case, although put mainly upon the ground of plaintiff's rights being independent of the law of the asso- [*78] 80 PROCEEDINGS UNDER THE CHARTER. PART II. * 8. But the English cases seem to suppose, that it is incident to every business corporation to obtain such extension and enlarge- ment of its corporate powers as the course of trade, and enterprise, and altered circumstances, shall render necessary or desirable, not altogether inconsistent with its original creation. 7 9. Bence it was held that a court of equity will not, at the in- stance of a shareholder, restrain a joint-stock incorporated com- pany, whose acts of incorporation prescribe its constitution and objects, from applying, in its corporate capacity, to parliament, and from using its corporate seal and resources, to obtain the sanction of the legislature, to the remodelling of its constitution, or to a material extension and alteration of its objects and powers. 7 10. Jn one case where the purpose of the company was to apply to parliament for leave to convert part of its canal into a railway, the Vice-Chancellor granted the injunction against applying any of its existing funds to the proposed object. 8 This is the more common view of the subject in this country, and to a great extent in England. 9 ciation, yet incidentally involves the right of the majority of the corporators to change its constitutional law. See also Von Schmidt v. Huntington, 1 Cal. 55, and Kean v. Johnson, 1 Stockton, Ch. 401, where it is held, that where the charter is granted for a limited time, it must continue in operation till the term expires, unless, perhaps, in case of serious loss, or with the consent of all the cor- porators, and others having any legal interest in the question. The same rule was declared in Louisiana. Lodge No. I. v. Lodge No. I., 16 La. Ann. 53. And it was here considered, that a resolution passed by the majority of the members of a corporation donating all the property of the company to a new corporation of which the members voting are also members, and the delivery of the same to such corporation in pursuance of such resolution, is void. 7 Ware v. Grand Junction Waterworks, 2 Russ. & My. 470; (13 Eng. Ch. Rep. 12*'.). Lord Brougham seems here to suppose, that the right of petition to parliament, for enlargement of powers, is an implied incident of all business cor- porations, by which the subscribers are bound, unless some express prohibition is inserted in their charter. But the more common implication in this country certainly is, that the original shareholders are not bound by any such alteration, unless such power exists, in terms, in the original charter, or it is merely auxili- ary to its existing powers. H (unliil ,. Manchester & Bolton Canal Co., 2 Russ. & My. 480, in note. But it is here stated, that a few days afterwards, one Maudsley filed a bill against the same company and for a similar object. The cause was heard on its merits, and the suit dismissed with costs. Any act beyond the scope of the constitution of the company requires the consent of all the members. Burmester v. Norris, 6 Exch. 796 ; 8. c. 8 Eng. L. & Eq. 487. 9 Post, §§ 56, 181, 212. [*74] § 20. ORDINARY CORPORATE POWERS. 81 11. But this right of the minority of the shareholders to inter- fere * by way of injunction, to restrain the majority from obtaining permission to alter the constitution of the corporation, may un- doubtedly be lost by acquiescence. 10 Thus where the share- holders knew of the purpose of the directors to apply the funds of the company to the construction of part only of the road, to the abandonment of the remainder, and remained passive for eighteen months, while the directors were applying large sums to the completion of this part only, the court refused to interfere by injunction. 10 12. And if one of the shareholders, who has acquiesced in the diversion of the funds, be joined in the suit with others who have not, no relief can be afforded. 11 And there can be no doubt of the soundness of this principle, although the effect of its application may be to produce a fundamental alteration of the constitution of a corporation, and thus to enable them to do what they had no power before to do. But this is only applying to the case the principle of implied consent of all the shareholders, resulting from silence, which is all that is requisite in any case, to legalize the alteration of the charter of a private corporation. 13. It is said in one case by an eminent equity judge, Vice- Chancellor Stuart : 12 " although generally speaking" " there can be no doubt of the soundness of the principle, that the directors and the majority of the company may be restrained from employing money, subscribed for one purpose, for another, however advan- tageous," " and although this is the law as to joint-stock com- panies, unincorporated and unconnected with public duties* or interests, it has not been applied to corporate companies for a pub- lic undertaking, involving public interests and public duties under the sanction of parliament. In such cases the court of chancery 10 Graham v. Birkenhead, &c. Railway, 2 Mac. & G. 146 ; s. c. G Eng. L. & Eq. 132; Beman v. Rufford, 1 Sim. (N. S.) 550. Lord Cranwortk says, " This court will not allow any of the shareholders to say, that they are not interested in preventing the law of their company from being violated." Ffooks v. London & S. W. R., 1 Sm. & G. 142 ; s. c. 19 Eng. L. & Eq. 7. But one creditor of a corporation cannot, by injunction, restrain another creditor of the same grade from obtaining prior payment by virtue of an execution issued upon a prior judgment. Gravenstine's Appeal, 49 Penn. St. 310. 11 Ffooks v. London & S. W. R., 1 Sm. & G. 142; s. c. 19 Eng. L. &Eq. 7, opinion of Stuart, V. C. and cases cited. 12 Ffooks v. London & S. W. R. supra, vol. i. 6 [*75] 82 PROCEEDINGS UNDER THE CHARTER. PART II. has * permitted the use of the corporate seal, and the moneys of the company, to obtain the sanction of parliament to purposes ma- terially altering the interests of the shareholders, according to the contract inter se. This was done in the case of Stevens v. South Devon Railway Company." 13 The learned judge therefore con- cludes, that although the principle first stated by him may apply to the case of public railway companies in general, " it must be taken to be subject to many qualifications, and requiring much caution and consideration" in its application. 14. The same learned judge further adds, upon the important subject of such proceeding being taken by one in the interest of a rival company : " It has been suggested that this suit is constituted to serve the purposes of another set of shareholders. If it had been established that the real object of seeking this injunction had been to serve the interests of a rival company, I should have con- sidered that a circumstance of great importance in determining the rights of the plaintiffs to any relief. No doubt it has been held in several cases, that the mere fact that the plaintiffs are share- holders in a rival company is no reason for the court in a proper case refusing its aid to prevent the violation of contracts. But when the fact is established, that, under the pretence of serving the interest of one company, the shareholders in a rival company by purchasing shares for the purpose of litigation, can make this court the instrument of defeating or injuring the company into which they so intrude themselves, in order to raise questions and disputes on matters as to which all the other members of the com- pany may be agreed, I cannot consider that in such a case it is the province of this court ordinarily to interfere. In questions on the law of contracts, where there is a discretionary jurisdiction in this court, circumstances affecting the condition of the contracting parties, and the origin and situation of their rights in relation to the subject-matter of the contract, deserve great consideration. 15. But in a later English case 14 it was determined by Vice- Chancellor Wood, that the court will not, upon the application of the minority of the members of a corporation, interfere with a resolution of the company voluntarily to wind up its concerns unless the resolution was obtained by fraud, or by overbearing conduct, or by improper influences. 13 13 Beavan, 48; s. c. 12 Eng. L. & Eq. 229; s. c. 9 Hare, 313. 14 lie The Imperial Mercantile Credit Association, 12 Jur. (N. S.) 739. [*7b] §21. MEETINGS OF COMPANY. 83 * SECTION IV. Meetings of Company. 1. Meetings, special and general. 2. Special, must be notified as required. 3. Special and important matters, named in notice. 4. Notice of general meetings need not name business. 5. Adjourned meeting, still the same. 6. Company acts by meetings, by directors, by agents. 7. Courts presume meetings held at proper place. 8. Every shareholder may vote, but not by proxy. 9. General owner of shares entitled to vote and act as member. 10. Trustees act as owners. 11. If a corporation issue stock in the name of B. to secure a debt, which it owes to A., no one can vote upon the same. 12. Shares held as collateral security cannot be changed. §21. 1. By the English statutes meetings of railway companies are distinguished as " ordinary " and " extraordinary." That dis- tinction, in this country, is expressed by the term general and special. Ordinary meetings are the annual and semi-annual meet- ings of the company, and such others as are held at stated times and for defined objects, according to the provisions of the charter and by-laws ; and extraordinary meetings are such as are held by special call of the directors, or other officer, whose duty it is made to call meetings of the company, in certain contingencies usually denned by the statutes. 1 2. Notice of special meetings must be issued in conformity to the charter and statutes of the corporation, and, where no special provision exists, must be given personally to every member. 2 3. Notice of special meetings should ordinarily specify the gen- eral purpose and object of the call. But it is said this is not indispensable, when it is for the transaction of ordinary business, and that giving security for the debt of a bank, by mortgage of 1 8 & 9 Vict. c. 16, § 66. . 2 Wiggin v. Freewill Baptist Society, 8 Met. 301. This view seems to be countenanced by Lord Kenyon, in Rex v. Faversham, 8 T. R. 352 ; Rex v. May, 5 Burrow, 2681 ; The King v. Langhorn, 4 Ad. & El. 538. See, also, cases cited in the argument of this case. But all the cases agree, that if the members attend even without notice, it is sufficient. The King v. Theodorick, 8 East, 543. A meeting may be general for most purposes, and also special for a par- ticular purpose ; Cutbill v. Kingdom, 1 Exch. 494. [*77] g 1 PROCEEDINGS UNDER THE CHARTER. PART II. its real estate, is oi' this character. 8 But where the business is unusual and important, as the election or amotion of an officer, tin' making of by-laws, or other matter affecting the vital interests and fundamental operations of the corporation, and on a day not * appointed for the transaction of business of this character, or of all business of the corporation, the notice must state the business, or the action upon it will be held illegal and void. 4 I. But, as a general rule, it may be safely affirmed, perhaps, that in regard to general meetings of the company, which are for the transaction of all business, no notice of the particular business to be done is necessarj . And all the members of the corporation are presumed to have notice of their stated meetings and are bound by the proceedings at such meetings : but there is no presumption that they know what is done at such meetings, so as to affect them with notice of any thing done there contemplating future action at any other time than the stated meetings. 6 5. The adjournment of a general meeting is not a special meet- ing, hut the mere continuance of the general meeting, and requires no notice of the business to he transacted. 5 But if the adjourned meeting be for the transaction of any other business than the mere completion of the unfinished business of the stated or special meet- ing, as the case may he ; and more especially where the business is of a character which could not have been legally transacted at the former meeting, it will not afford any warrant for its legality that it is done at an adjourned meeting from one legally consti- 3 Savings Bank v. Davis, 8 Conn. 191. • Hex v. Doncaster, 2 Burr. 73S ; Angell & Ames, §§ 488-496. In the case of Zabriskie v. C. C. & C. Railw., before the District Court for the Northern District of Ohio, 10 Am. Railw. Times, No. 15; s. C. affirmed 23 How. (U. S.) 3S1 ; this subject i> discussed by Mr. Justice McLean, and he concludes, that where the question to be determined by the company was the guaranty of the bonds of a connecting railway to a large amount, under the statute of the state, which reijuired the consent of a meeting of the shareholders, in which two-thirds of the capita] stock should be represented, it was indispensable that the call for the meeting should state the business to be transacted, and should be given long enough before the time of the meeting to enable the remotest shareholders in the country to obtain notice and be able to attend, or communicate with their agents, or proxies, and also to enable the resident agents of foreign shareholders to com- municate with the owners. This seems but a just and reasonable limitation upon the power of corporations, in regard to special meetings. Warner r. .Mower, 11 Vt. o$o; s. c. 1 Redf. Am. Railw. Cases, 78; Wills v. Murray, 4 Exch. 843. 6 The People r. Batchelor, 22 N. Y. 128. [*78] § 21. MEETINGS OP COMPANY. 85 tuted originally. 7 But the publicity and general notoriety of a transaction may be sufficient * ground for presuming knowledge of the appointment of one to a corporate office, even to the extent of subjecting such corporator to a penalty for non-acceptance. 8 6. By the English statutes, railways may act in either of three modes : First, By the general assembly of the shareholders, which, as between them and the directors and other agents of the com- pany, has supreme control of its affairs ; Second, By its directors ; Third, By its duly constituted agents. 9 The same general princi- ple is applicable in this country, and at common law. 7. And where the by-laws require the meetings of the company to be held at a particular place, as the counting-house of the company, and the record, or evidence does not show that the meetings were held at a different place, it will be presumed they were held at the place designated. 10 8. Every shareholder is, ordinarily, entitled to participate in the meetings of members of the corporation duly called, and to vote upon all his shares, according to the mode prescribed in the char- ter and by-laws of the company, and in conformity with the gen- eral laws of the state. But it seems not well settled whether a by-law of the corporation will be sufficient to entitle the members to vote by proxy, and whether some legislative sanction is not requisite to that effect. 11 But where the charter provided that " each person being present at an election shall be entitled to vote," it was held to mean actual presence, and votes by proxy were properly excluded. 12 9. The question is sometimes made, where shares are held by creditors as collateral security for debts, which party, the debtor or the creditor, is entitled to represent the shares, so held, in the meetings of the company. Upon general principles the party who 7 People v. Batchelor, 22 N". Y. 128; Scadding v. Lorant, 5 Eng. L. & Eq. 16. See Smith v. Law, 21 N. Y. 296. 8 City of London v. Vanacre, 5 Mod. 438. 9 Walford on Railways, 70. 10 McDaniels v. Flower Brook Man. Co., 22 Vt. 274. 11 State v. Tudor, 5 Day, 329 ; where, in mere business corporations, it was considered that a by-law was sufficient to give the power to vote by proxy. But in Taylor v. Griswold, 2 Green, 222, the contrary opinion is maintained. See also, 2 Kent, Coram. 294. There seems no question that in public and elee- mosynary corporations the members must attend in person. 12 Broom v. Coram. 2 Phill. 156. [*79] 86 PROCEEDINGS UNDER THE CHARTER. PART II. pledges or mortgages, or in any other mode hypothecates, shares as security for a debt, is still to be regarded as the general owner, and entitled to all the privileges and subject to all the responsibili- ties of owner. 18 10. Trustees, whether testamentary or executors, guardians, or others holding shares in joint-stock companies for the ultimate benefit of others, are generally entitled to act as members, and are responsible as such, without reference to the extent of their in- terest or the amount of the trust estates. 14 But in New York even this is denied where the cestui que trust is sui juris, and, as said, the latter is entitled to vote upon the shares and to act as member, by virtue of the interest vested in the trustee for his benefit. 15 11. And in California, 16 where a certificate of shares was issued by a corporation in the name of B., in order to secure a debt of the corporation due to A., it was held that the same was illegally issued and that no one could vote upon it. B. could not, because he was a mere trustee for A., and, as between them, whatever interest was created vested beneficially in A. And A. could not vote upon the stocks because his property was not that of the general owner, but that of a pledgee. And the corporation could not vote upon its own stock. 12. Where shares are passed as collateral security, it is incum- bent upon the holder to return the identical shares received by him, whenever the purposes of the pledge are answered. And if the shares have been sold, and others purchased by the transferee at a less price, the transferor will be entitled to the difference. But if the transferor have parted with the shares, before he is aware that they have been changed, he cannot maintain a bill to restore the shares originally transferred, since he will be bound to first restore those received by him. 17 13 dimming v. Prescott, 2 Yo. & Coll. Eq. Exch. 488 ; Ex parte Willcocka, 7 Cow. 402 ; Barker, Ex parte, 6 Wend. 509 ; McDaniels v. Flower Brook Man. Co., 22 Yt. 274. Tlie same is declared by statute in Massachusetts. Gen. Stat. c. 68, § L3. 14 Hoare, Ex parte, 2 Johns. & Hem. 229; s. c. 8 Jur. (N. S.) 713; Fearne & Deane's Case, Law Rep. 1 Ch. App. 231. 15 Holmes, Ex parte, 5 Cow. 426. See post, § 40, pi. 5, and cases cited. 16 Brewster v. Hartley, 37 Cal. 15. 17 Langton v. Waite, 17 W. R. 475. [*79] §22. ELECTION OP DIRECTORS. 87 * SECTION V. Election of Directors. 1. Should be at general meeting, or upon spe- cial notice. 2. Shareholders may restrain their authority. 3. Company bound by act of directors, de facto. 4. Act of officer de facto, binds third persons. § 22. 1. The election of directors is regarded as more important to the interests of the company than most other business, inas- much as, when duly elected, they hold office for a considerable term, and have all the powers of the corporation in regard to the transaction of its ordinary business, unless specially restrained. They should, therefore, be elected at the regular meetings of the company, and even vacancies should not properly be filled at special meetings, unless special notice of that particular business had been given according to the laws of the company, which in- clude its charter and statutes, and the general laws of the state applicable to the subject. 2. The shareholders may, in a proper assembly, pass statutes, general or special, which shall control the directors, as between them and the company. 1 Where the by-laws of the company 1 But where the charter vests the control of the concerns of the company in a select board or body, the shareholders at large have no right to interfere with the doings of these, their charter agents. Commonwealth v. Trustees of St. Mary's Church, 6 Serg. & R. 508; Dana v. Bank of the United States, 5 Watts & Serg. 223, 247; Conro v. Port Henry Iron Co., 12 Barb. 27. And courts are always reluctant to interfere with the conduct of directors of a corporation, even at the instance of a majority of the shareholders, and ordinarily will not, when such directors have acted in good faith. State v. The Bank of Louisiana, 6 La. 745. But in Scott v. Eagle Fire Co., 7 Paige, 198, it was held, that "the directors of a joint-stock corporation may be compelled to divide the actual surplus profits of the company among its stockholders from time to time, if they neglect or refuse to do so, without any reasonable cause. But if they abuse their power to make dividends of surplus profits, by dividing the unearned premiums received by them, without leaving a sufficient fund, exclusive of the capital stock, to sat- isfy the probable losses upon risks assumed by the company, it seems they will be personally liable to such creditors of the company, if, in consequence of ex- traordinary losses, the company should become insolvent so as to be unable to pay its debts. [*80] SS PROCEEDINGS UNDER THE CHARTER. PART II. require notice of the meeting for electing directors, but do not specify tin' time or mode of such notice, it must be given accord- inn * to the requirements of the general statutes of the state upon the subject. 2 :'.. Bui the company cannot object that its directors, who have acted as such, were not elected at a meeting properly notified. 3 Nor can the validity of the acts of the directors be collaterally called in question on the ground of irregularity in the notice of the meeting at which the}' were elected. 4 Where the charter fixes the number of directors, and vacancies occur, the act of the board is not thereby invalidated, provided a quorum still remains. 5 4. An election of directors will not be set aside, because the inspectors of the election were not sworn as required by the 2 Matter of Long Island Railroad, 19 Wend. 37 ; s. c. 2 Am. Railw. C. 453. 3 Sampson v. Bowdoinham Steam Mill Co., 36 Maine, 78. Where persons have acted as directors of a railway company, the court will not summarily inquire into the validity of their appointment. Tindal, C. J., said: " If the shareholders allow parties to act as directors, it may be they have no right to turn round in a court of justice and say, that such parties were not properly elected." The Thames Haven Dock & Railw. Co. v. Hall, 5 Man. & Gr. 274- 286. In one case, Port of London Assurance Company's case, 5 DeG., M. & G. 165 : S. C. •">■"> Eng. L. & Eq. 178, one registered insurance company agreed to sell its business to another registered insurance company, and a deed of assignment was accordingly executed, whereby the latter company covenanted to indemnify the former against all claims. After the business had been carried on for some time by the purchasing company, that company failed, and both companies were wound up under the Winding-up Acts. On the official manager of the selling company tendering a proof against the purchasing company, in respect of claims satisfied by the selling company, one part of the deed of assignment was pro- duced having affixed to it the seal of the purchasing company, but another part, alleged to have been executed by the selling company, was not forthcoming. Held, fust, that after what had taken place, it was unnecessary to determine whether the selling company had executed the purchase-deed, or whether its din- tors hail exceeded their powers in making the sale. Secondly, that where a purchaser has enjoyed the subject-matter of a contract, every presumption must be made in ftivor of its validity. Thirdly; that if all the proceedings on the part of the directors of the purchasing company, with reference to the purchase, had not been in strict accordance with their own deed of settlement, still, if the contract with the other any was the means of the purchasing company coming into existence, they could cot acl in eontravention of that contract. ' I Ihamberlain v. Painesville & Hudson Railw. Co., 15 Ohio (N. S.), 225. 6 Walford on Railw. 71, 72 ; Thames Haven R. v. Rose, 4 M. & G. 552. [*81] 23. MEETINGS OF DIRECTORS. 89 statute. This statute is merely directory, and, so far as third per- sons are * concerned, it is sufficient that the inspectors were elected and entered upon the duties of the office, and became officers de facto? SECTION VI. Meetings of Directors. 1. All should be notified to attend. 2. Adjourned meeting still the same. 3. Board not required to be kept full. 4. Usurpations tried by shareholders or courts. 5. Usage will often excuse irregularities. 6. Decisions of majority valid. n. 8. Records of proceedings, evidence. 7. The action must be taken at a formal meet- ing. § 23. 1. As a general rule, where corporate powers are vested in certain members, whether the whole body of the shareholders, the directors, or a committee, and the general laws of the state, the charter of the company, or the corporate statutes, contain no directions in regard to 'assembling the body, it is requisite to give due legal notice to each member. Accordingly, when by the rules of a friendly society the power of electing officers was vested in a committee of eleven, at a meeting of the committee, where ten of the members were present, the eleventh not having received notice, and the defendant was removed from the office of treasurer, and the plaintiff appointed in his stead by a majority of votes, it was held that the election was void, although the absent committee- man had, for a considerable period, absented himself from the meetings, and intimated an intention not to attend any more, and although the defendant himself had demanded a poll at the election, and was now objecting to its validity. 1 6 Matter of Mohawk & Hudson River Railw., 19 Wend. 135; s. c. 2 Am. Railw. C. 460. 1 Roberts v. Price, 4 C. B. 231. In the course of the argument, Cresswdl, J. referred to The King v. Langhorn, 4 Ad. & Ellis, 538, and in giving his opinion said: "This case seems to me directly applicable." In a case in the House of Lords, Smyth v. Darley, 2 II. L. Cases, 789, 803, it is said: "The election being by a definite body, on a day, of which, till summons, the elector's had no notice, they were all entitled to be specially summoned ; and if there were any omission to summon any of them, unless they all happened to be present, or unless those not summoned were beyond summoning distance, as, lor instance, [*82] 90 PROCEEDINGS UNDER THE CHARTER. PART II. P.uf an adjourned general meeting of directors, which is provided for by the general regulations of the board, and is for the transaction of the general business of the company, requires no special notice of either time or place, or of the business to be transacted. 2 •".. But where the charter of a railway provides that its business shall be carried on under the management of twelve directors, to be elected in a particular mode, pointed out, and that where vacancies shall occur it shall be lawful for the remaining directors to fill them, it was held that this provision did not require that the board should be always full ; but was merely directory, as to the mode of filling vacancies. 3 4. Where it is complained that the existing board of directors have usurped their places in violation of the wishes of the ma- jority of the shareholders, the question should be referred to a meeting of such shareholders, 4 or it may be tried upon a quo war- ranto? 5. But in practice, in this country, it is believed that most of the routine business of railway and other joint-stock commercial companies is transacted through the agency of sub-committees of the board of directors, and that, where the voice of the board is taken it is more commonly done without any formal assembly of the board. And long-established usage as to particular companies, in regard to the mode of conducting an election, has been held of binding force in regard to such company. 6 And the same course of reasoning might induce courts to sanction a practice, which had become universal from its great convenience, although not strictly abroad, there could not be a good electoral assembly ; and even an unani- mous election by those who did attend, would be void. 11 Post, § 211; Great Western R. v. Rushout, 5 De G. & S. 290; s. c. 10 Eng. L. & Eq. 72. - Ante, § 21. Wills v. Murray, 4 Exch. 843. But see Reg. v. Grimshaw, 10 Q. B. 717. 3 Thames Haven Dock and Railway Co. v. Rose, 4 Man. & Gr. 552 ; ante, § 21 ; Wills r. .Murray, 4 Exch. 843. 4 Post, § 211. 5 Post, §166. ,; Attorney-General v. Daw, cited 1 Vesey, Sen. 419. It would savor of bad faith to allow the business of the company to be transacted in a particular mode, and then to attempt to repudiate the acts of their agents, because the transac- tion proved disadvantageous, when they were in a condition to take the benefit of it if it proved successful. [*83] § 23. MEETINGS OF DIRECTORS. 91 in accordance with the principles of the decided cases upon analo- gous subjects, or the results of a priori reasoning. 6. The decision of a majority of the board of directors is usually * regarded as binding upon the company ; and the assembling of a majority will be treated as a legal quorum for the transaction of business, unless the charter or by-laws contain some specific pro- vision upon the subject ; 7 and notice to the absent directors will be presumed unless the contrary appears. The general rule upon this subject is, that the act of a majority of a body of public officers is binding ; but that if they be of private appointment, all must act, and, in general, all must concur, unless there is some provision to accept the decision of a majority. In this respect, railway direc- tors certainly come under the former head. The proper distinction upon the general subject seems to be, that where the matter is of public concern, and of an executive or ministerial character, the act of the majority of the board will suffice, although the others are not consulted. But where the function is judicial, involving a determination of some definite question, the whole body must be assembled and act together. If the matter is of public concern, the decision of a majority will bind ; but in private concerns, as arbitrations, all must concur. 8 7 Cram v. Bangor House, 3 Fairfield, 354 ; Sargent v. Webster, 13 Met. 497 ; 2 Kent, Comm. 293 and notes ; The King v. Whitaker, 9 B. & C. 648 ; Com- monwealth v. Canal Commissioners, 9 Watts, 466 ; Ex parte Wilcocks, 7 Cowen, 402 ; Field v. Field, 9 Wend. 394, 403, where it is held, that in regard to the body of the stockholders, any number who attend is a quorum for doing business, if the others be properly summoned. But as to the directors, it is requisite that a majority attend. 2 Kent, Comm. 293 ; Cahill v. Kalamazoo Ins. Co., 2 Doug. (Mich.) 124; Holcomb v. N. H. D. B. Co., 1 Stockton, Cb. 457. 8 Green v. Miller, 6 Johns. 39 ; The King v. Great Marlow, 2 East, 'J H ; Battye v. Gresley, 8 East, 319 ; Rex v. Coin St. Aldwins, Burr. Settl. Cas. 136 ; The King v. Winwick, 8 T. R. 454. But it has never been held that the entire board of directors must assemble ; it is enough if all be summoned, and a majority attend. See note 7. Edgerly v. Emerson, 3 Foster, 555. If the doings of directors are not recorded, they may be proved by parol. lb. The president has a right to vote upon all questions to be determined by the presi- dent and directors. McCullough v. Annapolis & Elk Ridge R. 4 Gill, 58. The records of the clerk of a railway company, of the proceedings of the directors, in making calls, may be used as evidence by the company in suits for calls, against one who subscribed for shares, and was one of the grantees ol the charter and a director at the time of making such calls, and who had exercised the rights of a shareholder from the first. White Mountain R. v. Eastman, 34 N. H. 124. As to the effect of the records of the doings of the corporation kept [*84] 92 PROCEEDINGS CfNDER THE CHARTER. PART II. But where the authority of a quorum of directors is required for the execution of a bond, it must be given at a formal meeting, wherea! the members of the quorum are all present at once. 9 >i;ction VII. Qualification of Directors. • contractor and director, nicer and din by virtue of stock mort- : d. 1. Bankruptcy or absence will not vacate office. 5. Company compelled to Jill vacancies in board. \ 24. 1. By the Companies' Clauses Consolidation Act, 1 it is provided, that no person interested in any contract with the com- pany shall lie a director, and no director shall be capable of being interested in any contract with the company ; and if any director, subsequent to his election, shall be concerned in any such con- the office of director shall become vacant, and he shall cease as su.h. Under this statute it was held, that, if a director enters into a contract with the company, the contract is not thereby rendered void, but the office of director is vacated. 2 ■1. But it has been held, that being a member of a banking com- wlio were the bankers and treasurers of the railway, and win*, as such, received and gave receipts for calls, and paid checks drawn by the directors, will not disqualify one from acting as director, but that this clause only applied to such contracts re made with the company in the prosecution of its enter- prise. 3 by their own officer, being evidence, but not indispensable evidence of such facts, when proved by third parties, see Hudson v. Carman, 41 Me. 84; Coffin v. Col- lin-. 17 M. 140; Penobscot Railw. v. White, 41 Me. 512. See, also, Ind. & Cin I:, v. Jewett, L6 [nd. 273. ' D'Arcy v. Tamar, K. & C. Railw., 4 II. & C. 463; s. c. 12 Jur. (N. S.) 1 8 & 9 Vict, c 16. Foster v. Oxford \V. & W. R., 13 C. B. 200; s. c. 14Eng. L. & Eq. 306. This case is discussed in a later case in the House of Lords. Aberdeen Railway ikie, 1 McQueen, 11. L. 161. ish. & Man. Railw. v. Woodcock, 7 M. & W. 574 ; s. c. 2 Railw. I . . 22. [*85] § 24. QUALIFICATION OP DIRECTORS. 93 3. Where the qualification of a director consisted in owning a certain number of the shares, the qualification is not lost by a mortgage of the shares. 4 4. Neither the bankruptcy nor absence of a director, and volun- tarily * ceasing to act as such, will put an end to his character of director, unless it be so provided in the deed of settlement. 5 5. If shareholders are dissatisfied with the board of directors not being full, that may be a ground of applying for a mandamus to compel the company to complete the number. 6 4 Gumming v. Prescott, 2 Y. & Coll. Eq. Exch. 488. 5 Phelps v. Lyle, 10 Ad. & Ellis, 113. But if one abscond from his creditors the office is thereby vacated. Wilson v. Wilson, 6 Scott, 540. 6 Thames Haven Dock and Railway v. Rose, 3 Railw. C. 177 ; s. c. 4 Man. & Gr. 552. Maule, J. Mozley v. Alston, 1 Phillips, 790. By the Lord Chan- cellor. [*86] 94 PREROGATIVE FRANCHISES. PART II. ♦CHAPTER V. l'UKROGATIVE FRANCHISES. - immunication in a ■ ■ prerogative franchise. 2. Such a grant confers powers pertaining exclusively to sovereignty, as taking tolls, and the right of eminent domain. 8 J.">. 1. Railways possess also many extraordinary powers or franchises which partake more or less of the quality of sovereignty, and which it is not competent for the legislature even to delegate to ordinary corporations. These are sometimes called the preroga- tive franchises of the corporation. They exist in banks, which practically supply the currency of the country, or its representative, and railways, which have already engrossed the chief business of internal communication in this country, and almost throughout the civilized world. And both currency and internal communication between different portions of a state are exclusively the preroga- tives of sovereignty. 2. In saying that it is not competent for the legislature to con- fer prerogative franchises upon all corporations, nothing more is intended than that these prerogative franchises do not appertain to all the operations of business, and must therefore of necessity be limited to those persons, whether natural or artificial, which are occupied in matters of a sovereign or prerogative character, and which thus render an equivalent for the franchises conferred. 1 This subject will be discussed more in detail under the titles of Tolls and Eminent Domain. ' State o. Boston, Concord, & Montreal R. Co., 25 Vt. 433,442,443; s. c. 1 Redf. Leading Am. Railway Cases, 81. The right to build and use a railway, and take tolls or {area, in a franchise of the prerogative character, which no per- son can legally exercise without some special grant of the legislature. But it is competent lor the legislature to confer this franchise upon a foreign corporation, so as to eo&ble it to take land for the purpose of constructing a public improve- ment in the Btate. Morris 'anal and Banking Co. v. Townsend, 24 Barb. 658. what title Bhall be acquired by such foreign corporation, and whether the proposed amendment will be likely to prove beneficial to the citizens of the state, is a question solelv within the discretion of the legislature. lb. [•87] §26. POWER OF MAKING BY-LAWS OR STATUTES. 95 * CHAPTER VI. BY-LAWS AND STATUTES. SECTION I. Power of making By-Laws or Statutes. 1. May control conduct of passengers. 2. Must be reasonable and not against law. 3. Power may be implied, where not express. 4. Not required to be in any particular form unless by special provision. 6. Model code of by-laws framed by board of trade in England. 7. Company meiy demand higher fare if paid VI. Public statutes control by-laws. Cannot impose penalty. Cannot refuse to be responsible/or baggage. Statutes operate upon members from prom- ulgation ; upon others, from knowledge of the same. Regulations, for accommodation of pas- sengers, must yield to the right of others to be carried. §26. 1. It is incident to every corporation to enact by-laws or statutes for the control of its officers and agents, and to regulate the conduct of its business generally. And in the case of railways this includes the regulation of the conduct of passengers and others who are in any way connected with them in business, although not their agents. 2.* This power is subject to some necessary limitations. Such by-laws must not infringe the charter of the company or the laws of the state, must not be unreasonable, and must be within the range of the general powers of the corporation. 1 And the ques- tion, whether reasonable or not, is to be determined by the jury under instructions from the court, being a mixed question of law and fact. 2 But in a case in New Jersey 3 it was decided 1 Elwood v. Bullock, 6 Q. B. 383 ; Calder Navigation Co. v. Pilling, 14 M. & W. 76 ; Child v. Hudson Bay Co., 2 Peere Wins. 207 ; Angell & Ames, c. 10; 2 Kent, Com. 296. Davis v. Meeting H. in Lowell, 8 Met. 331. In a case in Kentucky it is said the power of a corporation to make by-laws is limited by the nature of the corporation and the laws of the country. It can make no rule contrary to law, good morals, or public policy. Sayre v. Louisville Union Benevolent Association, 1 Duvall, 143. 2 Day v. Owen, 5 Mich. 520. 3 Ayres v. Morris & Essex Railw. Co., 5 Dutcher, 393. [*88] 96 BY-LAWS AND STATUTES. PART II. * that the question whether the regulation of a corporation affecting third persons is reasonable is a question of fact; but the validity of a by-law of a corporation, which affects only its members, is a question of law to be determined by the court. The general powers of business corporations to enact by-laws was extensively and learnedly discussed in a somewhat recent case which passed through the Queen's Bench, the Exchequer Chamber, and was finally determined in the House of Lords. 4 The case turned mainly upon the reasonableness of the by-law, which excluded any person who had become bankrupt or notoriously insolvent from becoming one of the governing body of the company. The provi- sion of the by-law was held entirely reasonable; but that having admitted the party to the office, he could not be removed without formal proceeding upon notice and hearing. And where one part of a by-law is reasonable it may stand, although connected with another part which is not reasonable. 5 3. By-laws in violation of common rights are void. 6 The power to make by-laws is usually given in express terms in the charter. Ajid where such power to make by-laws is given in the charter upon certain subjects to a limited extent, this has been regarded as an implied prohibition beyond the limits expressed, upon the familiar maxim, Expressum facit cessare taciturn.' 4. By-laws, unless by the express provisions of the charter or general statutes of the state, are not, in this country, required to be enacted or promulgated in any particular form, but only to be enacted at some legal meeting of the corporation. But in England it is generally considered requisite that by-laws be made under the common seal of the corporation, and that in regard to railways, by-laws affecting those who are not officers or servants of the com- pany should have the approval of the Board of Trade or Railway Commissioners. 8 5. By many of the special railway charters in England, and by the Companies' Clauses Consolidation Act of 1845, it is provided 1 Reg. v. Saddlers 1 Company, 6 Jur. (N. S.) 1113; s. c. 7 id. 138; s. c. 9 id. 1081 ; 8. c. 4B. & S. 1059; s. c. 10 Ho. Lds. Cas. 404. 6 Reg. v. Lundie, « Jur. (N. S.) 640. ■ Hayden v. Noyea, 5 Conn. 891; Adley v. The Whitstable Co., 17 Vesey, 316 : < lark a ( ase, 5 Coke, 64. When the penalty of a by-law is imprisonment, id as againsl Magna < Iharta. But such power may be given by statute. 7 ' liild v. Hudson B. Co., 2 Peere Wins. 207. ' Walford, 249; Hodges, 552, 553. [•89] § 26. POWER OF MAKING BY-LAWS OR STATUTES. 97 * that railway companies may make by-laws under their common seal " for the purpose of regulating the conduct of the officers and servants of the company, and for the due management of the affairs of the company in all respects whatever." And they have power to enforce such by-laws, by penalty, and by imprisonment for the collection of such penalty. But a by-law requiring a passenger, not producing or delivering up his ticket, to pay fare from the place of the departure of the train, was held not to be a by-law, impos- ing a penalty, and therefore not justifying the imprisonment of such passenger. 9 6. The statute requires a copy of such by-laws to be furnished every officer and servant of the company, liable to be affected thereby. The code of by-laws framed by the Board of Trade in England for the regulation of travel by railway, and generally adopted there, is certainly very judicious, and if some similar one could be adopted and enforced here, it would accomplish very much towards security, sobriety, and comfort, in railway travelling, and tend to exempt the companies from much annoyance and very often from loss. 10 9 Chilton v. London & Croydon R., 16 M. & W. 212; s. c. 5 Railw. C. 4. Parke, B., says : " This is not the case of a penalty, but the mere demand of a fare. Any passenger who does not, at the end of his journey, produce his ticket, may have broken his contract with the company, and be liable to pay his full fare from the most remote terminus. But this is not a penalty or forfeiture, under section 163, giving a right to arrest for non-payment of a penalty or forfeiture." See also the opinion of Rolfe, B., from which it appears that the by-law was considered valid. 10 Hodges, 453. "1. No passenger will be allowed to take his seat in or upon any of the company's carriages, or to travel therein upon the said railway, with- out having first booked his place and paid his fare. Each passenger booking his place will be furnished with a ticket,; which he is to show when required by the guard in charge of the train, and to deliver up before leaving the company's premises, upon demand, to the guard or other servant of the company duly au- thorized to collect tickets. Each passenger not producing or delivering up his ticket will be required to pay the fare from the place whence the train originally started. " 2. Passengers at the road stations will only be booked conditionally, that is to say, in case there should be room in the train for which they are booked ; in case there shall not be room for all the passengers booked, those booked for the longest distance shall have the preference ; and those booked for the same dis- tance shall have priority according to the order in which they are booked. "3. Every person attempting to defraud the company by riding in or upon any of the company's carriages, without having previously paid his fare, or by VOL. I. 7 [*90] 98 BY-LAWS AND STATUTES. PART II. * 7. Iii a case in Vermont, it was held, that railway com- panies have the power to make and enforce all reasonable regula- tions in regard to the conduct of passengers, and to discriminate between fares paid in the cars and at the stations, and to remove all persona from their cars who persist in disregarding such regula- tions, in a reasonable manner and proper place, although between stations. 8. But this maybe controlled as to existing railways even, by gnu r.il legislation of the state. And where a statute gave all railways tbe power to remove those who violated any of the by- laws or regulations of the company from their cars, at the regular stations, this was held to carry an implied prohibition from remov- ing such persons at other points. 11 And where one refuses to pay ridi :i <^ in or upon a carriage of a higher class than that for which he has booked his place, or by continuing his journey in or upon any of the company's carriages beyond the destination for which he has paid his fare, or by attempting in any other manner whatever to evade the payment of his fare, is hereby subjected to a penalty not exceeding forty shillings. " 4. Smoking is strictly prohibited both in and upon the carriages, and in the company's stations. Ever}' person smoking in a carriage is hereby subjected to a penalty not exceeding forty shillings ; and every person persisting in smoking in a carriage or station, after being warned to desist, shall, in addition to incur- ring a penalty not exceeding forty shillings, be immediately, or, if travelling, at the first opportunity, removed from the company's premises, and forfeit his fare. " 5. Any person found in the company's carriages or stations in a state of intoxication, or committing any nuisance, or otherwise wilfully interfering with the comfort of other passengers, and every person obstructing any of the com- pany's officers in the discharge of their duty, is hereby subjected to a penalty not exceeding forty shillings, and shall immediately, or, if travelling, at the first opportunity, be removed from the company's premises and forfeit his fare. •• 6. Any passenger cutting the linings, removing or defacing the number- plates, breaking the windows, or otherwise wilfully damaging or injuring any of the company's carriages, shall forfeit and pay a sum not exceeding £5 in addi- tion to the amount of damage done." " Note. — Persons wilfully obstructing the company's officers, in cases where person J Bafety is concerned, are liable, under the 3 & 4 Vict. c. 97, § 16, to be apprehended and fined £5, with two months 1 imprisonment in default of payment." " Stilphin r. Smith, 29 Vt. 160; Chicago, Burlington & Quiney R. v. Parks, 1,s ''I. |l "- See a case in New Hampshire, in which it is held, railways may lawfully discriminate between fare paid in the cars and at the stations. Milliard r. Goold, .11 N. 11. 230, post, $ 28, n. 17; post, § 160. See also Chicago & Alien Railw. v. Roberts, 40111. 503; Illinois Central Railw. v. Sutton, 42 id. & X. W. Railw. v. Peacock, 48 id. 253 ; Tarbell v. Central Pacific Railw.. :;i CaL 616. [•91] § 26. POWER OF MAKING BY-LAWS OR STATUTES. 99 fare, and the train is stopped for the purpose of putting him off the train, at a dwelling-house, as by the statute of New York is * allowed, the right of the conductor is not affected by a subsequent offer to pay fare. 12 So, too, one may be ejected from the cars by the conductor for disorderly conduct, and in justification, it is com- petent to prove any improper conduct during the entire passage, and this cannot be controverted by general evidence of the good reputation of the person for sobriety. And one may be expelled, also, for refusing to surrender his ticket to the conductor on request, in conformity with the general regulations of the com- pany. 13 9. But it has been held, that a general power to make by-laws for the regulation of the use of a canal, will not justify the pro- prietors in closing the navigation of the canal on Sundays, 14 nor in making by-laws, subjecting the shares to forfeiture for non-pay- ment of calls, unless that power is expressly given by the charter or by statute. 15 10. And a by-law declaring that the company would not be responsible for a passenger's baggage, unless booked and the car- riage paid, is bad, as inconsistent with the general law, allowing railway passengers to carry a certain amount and kind of bag- gage. 16 11. The members of a joint-stock company are affected by all binding statutes of the corporation from the time of their enact- ment, without any formal notice of their existence. And all per- sons legally affected by such statutes, rules, or by-laws of the corporation, must conform to their requirements from the time they become aware of their existence. 17 12. Regulations as to the accommodation of passengers must 12 People v. Jillson, 3 Parker, C. 234. 13 People v. Caryl, -3 Parker, C. 326. 14 Calder Nav. Co. v. Pilling, 14 M. & W. 76 ; s. c. 3 Railw. C. 735. But it is questionable whether this case is maintainable, in this country, upon any such grounds. 15 Matter of Long Island Railw., 19 Wend. 37 ; s. c. 2 Am. Railw. C. 453. 16 Williams v. Great Western Railway, 10 Exch. 15 ; s. c. 28 Eng. L. & Eq. 439. But it seems somewhat questionable, whether the principle of this decision can ultimately be maintained. It seems to be no reasonable abridgment of the right of a passenger to carry a certain weight and kind of baggage, to require it to be booked and carriage paid. 17 Woodfin v. Ins. Co., Jones' Law, 558. [*92] 100 BY-LAWS AND STATUTES. PART II. yield to the rights of others to be carried, and the accommodation of passengers during the transit is subject to such general rules ♦ and regulations as the company see fit to make, provided they are reasonable, and whether that be so is to be determined by the jury, under suitable instruction from the Court. But these rules and regulations must have for their object the accommodation of tin- passengers generally, and must be of a permanent nature, and not made for a particular emergency or occasion. 18 - 1 1 [\ ,-. ( ►wen, 5 Mich. 520. We are aware it is the practice in America, in almost all modes of passenger transportation, to cram the carriages to the point of Buffocation almost, if passengers offer. But that is never attempted or al- lowed, in England, or upon the Continent. Whenever the seats in a carriage, or the accommodations in a boat, are all occupied, no more are allowed to enter the carriage or the boat. This sometimes results in putting a first-class passenger into a second-class carriage, and vice versa. But no man in Europe would ever be allowed to take passage in a railway carriage, without having a seat. It would be deemed the height of indiscretion, almost bordering on madness, to attempl to transport passengers by railway, in a standing position. And even in omnibuses no one can enter after the seats are filled. And in Paris a promi- gign, " Complet" is exposed, the moment the carriage is full. And it seems to us that a passenger-carrier who is supplied with sufficient ac- commodations for all who ordinarily offer, had better be excused from carrying any excess which might occasionally offer, than be compelled to carry them at the expense of the discomfort and suffering of all the other passengers. We think at leasi if railways took this ground, upon the score of safety merely, they would not fail to be sustained by the courts, unless the excited rush of all, to go by the first chance, is to override all other considerations, whether of safety or convenience. And we trust that public opinion here is more reasonable than to make any such demands. [*93] §27. BY-LAWS REGULATING STATIONS AND GROUNDS. 101 SECTION II. By-Laivs regulating the use of stations and grounds. 1. May exclude persons without business. 2. May regulate the. conduct of others. 3. Superintendent may expel for violation of rules. 4. Probable cause null justify. 5. In civil suit must prove violation of rules. 6. Regulation of stations and traffic by means of injunction. Equality of charges. 7. Through trains will not be required unless reasonably necessary for public accom- modation. 8. Mode of enforcing search warrants in freight stations. 9. The right of railway companies to exclude persons having no business, from their stations. 10. Company bound to maintain platforms about passenger stations in safe condi- tion. §27. 1. Questions have sometimes been made, in regard to the right of railway companies to exclude persons from their grounds who had no business to transact there, connected with the com- pany, * or to establish regulations or by-laws to govern the conduct of such persons as had occasion to come there, and to exclude others. But, upon the whole, there seems little ground to ques- tion the right. 1 2. A railway corporation has authority to make and carry into effect reasonable regulations for the conduct of all persons using the railway, or resorting to its depots, without prescribing such regulations by formal by-laws ; and the superintendent of a rail- way station, appointed by the corporation, has the same authority, by delegation. 3. Such superintendent may exclude from the stations and grounds persons who persist in violating the reasonable regulations prescribed for their conduct, and thereby annoy passengers, or interrupt the officers and servants of the company in the discharge of their duty. Thus, where the entrance of innkeepers and their servants into a railway station to solicit passengers to go to their houses, produces such effect, they may be excluded from coming within the station ; and if, after notice of a regulation to that effect, they attempt to violate it, and after notice to leave, refuse 1 Barker v. Midland Railw., 18 C. B. 46 ; s. c. 36 Eng. L. & Eq. 253 : Com- monwealth v. Power, 7 Met. 596 ; s. c. 1 Am. Railw. C. 389 ; Hall v. Power, 12 Met. 482. [*94] 102 BY-LAWS AND STATUTES. PART II. i bo, they may l>e forcibly expelled by the servants of the . using no unnecessary force. \. And where an innkeeper had been accustomed to annoy pas- in this manner, and had been informed by the superintend- itioo that he must do so no more, but still continued . and afterwards obtained a ticket for a passage in the cars, with the // intention of entering the cars as a pas- ind went into the station on his way to the cars, and the irinteudent, believing he had entered for his usual purpose, ordered him to go out. and he did not exhibit his ticket, nor give notice of his real intention, but pushed forward towards the cars, and the superintendent, and his assistants removed him from the station, using no unnecessary furce, the removal was held justifi- able. 2 and not an indictable offence. 2 .">. Hut the superintendent cannot remove a person from the station and grounds of the company, merely because such person, in the judgment of the superintendent, and without proof of the fact, violated the regulations of the company, or conducted himself * offensively towards the superintendent. 3 And it was said if such ' < .mmonwealth r. Power. 7 Met. 596; Markham v. Brown, 8 X. II. 523. 3 Hall r. Power. 12 s. c. 1 Am. Railw. C. 440. There is an ap- parent discrepancy in the manner of stating the point of the decision of this case, and that of The Commonwealth r. Power. 7 Met. 596, in regard to defendant bein" within the act. So also shares in a bank secured by mortgages. • Perigal, 16 Simons. 533; The King v. Chipping Norton, 5 East, 239. - Sparling v. Parker, 9 Beav. 450; Thompson v. Thompson, 1 Coll. C. C. 881 : Hilton v. Giraud, 1 De <;. & S. 183; Walker v. Milne, 11 Beav. 507. But Bee Tomlinson r. Tomlinson, 9 id. 459. ; Bradley v. Holdsworth, .3 M. & W. 422; Bligh v. Brent, 2 Y. & Coll. 268, 294. 1 his is an elaborate case establishing the proposition that the shares in a ition, whose works are real estate, are nevertheless personal estate, and this upon general principles of the common law. 4 Hargreaves >■. Parsons, 13 M. & W. 501. mble v. Mitch 11, 2 Railw. C. 70; s. c. 11 Ad. & Ellis, 205. See also i' v. .Ml. re hi, 12 Simons, ISO: Tempest v. Kilner, 3 C. B. 219; Knight W. 66. 6 Dryhutter v. Bartholomew, 2 Peere Wms. 127: Townsend v. Ash, 3 Atk. o. [ngrara, 2 Vesey, Jr. 652. lies v. Cowles, :.' Conn. 567. See also Cape Sable Company's case, 3 Bland's Ch Binney's case, 2 id. 99; Price v. Price, <; Dana, 107; M< Wan-, 341 ; Copeland v. Copeland, 7 Bush, 349. W ilford, 251 : mh, i 31, aid cases cited in n >tes 1. 2, :), and 4; Tippets r. Walker, I Mis-. 595, 596, opinion of /'arsons, ('. J. Speaking of a turnpike : •' When the road is made, the corporation is entitled to demand and receive a toll of travellers for the use of it, in trust for the members § 31. SHARES PERSONAL ESTATE. 121 *The fee of land being in the corporation, vests no interests of the nature of real estate in the separate shareholders. 9 of the corporation, in proportion to their respective shares. The property of every member is the right to receive a proportional part of the tolls, which is considered as personal estate." In Howe ». Starkweather, 17 Mass. 240, 243, Parker, C. J. says: "Shares in a turnpike or other incorporated company, are not chattels. They have more resemblance to choses in action, being merely evidence of property." In 1 Greenleaf's Cruise, 39, 40, the subject is very fully and fairly presented, and the following conclusion arrived at, in regard to the state of the law in the United States: " Latterly it has been thought that railway shares were more properly to be regarded as personal estate.' 1 The same view is held in Bank of Waltham v. Waltham, 10 Met. 334 ; Hutch- ins' Adm'r v. The State Bank, 12 Met. 421 ; Denton v. Livingston, 9 Johns. 96, 100 ; Planters' & Merchants' Bank v. Leavens, 4 Alabama, 753 ; Union Bank of Tennessee v. The State, 9 Yerger, 490 ; Brightwell v. Mallory, 10 id. 196 ; Heart v. State Bank, 2 Dev. Ch. Ill ; State v. Franklin Bank, 10 Ohio, 91, 97 ; Slaymaker v. Gettysburg Bank, 10 Penn. St. 373 ; Gilpen v. Howell, 5 Penn. St. 41, 57 ; Johns v. Johns, 1 Ohio (N. S.), 350 ; Arnold v. Ruggles, 1 Rhode Island, 165. A distinction has sometimes been attempted between the shares of a bank or manufacturing corporation, and a turnpike or railway, in regard to their partak- ing of the realty. But the slightest examination will satisfy us that there is no substantial ground for any such distinction. The one may be more intimately connected, in its existence or operation, with real estate, but both must have some connection, more or less intimate, and in both the shareholders have no title to the land, that residing altogether in the corporation, while the shares are merely a right to the ultimate profits of the company, and are as really and un- questionably choses in action as promissory notes, bills of exchange, or bonds and mortgages, of natural or corporate persons. Wheelock v. Moulton, 15 Vt. 519 ; Isham v. Ben. Iron Co., 19 Vt. 230. See also Johns v. Johns, supra. 9 Ackland v. Lewis, 1 K. & G. 334, Registration cases. [*112] l'J2 TRANSFER OF SHARES. PART II. ♦CHAPTER VIII TRANSFER OF SHARES. SECTION I. Restrictions upon Transfer . /vr/' ons of charter to be ob 7 sent iL 2. //' not made exclusive, held directory mere!//. 3. / r nu$ual and inconvenu m restrictions void. 4. Lien upon stock for the indebtedness of the owner is valid. 5. But such li' n is not implied. 6. Where transfer is wrongfully refused, ven- dee may recover value of the company. § 32. 1. We cannot here attempt to show in detail all the inci- dents of the transfer of stock in railway companies. It is transfer- able much the same as other personal property, excepting only that any express provision of the charter upon that subject must be regarded as of paramount obligation. 1 1 Strictly speaking, perhaps no shares in any joint enterprise are transferable so as to introduce the assignee into the association, as a member, unless it be joint-stock companies and corporations, formed in pursuance of legislative au- tlioiity. And in the case of legislative incorporations, the shares are transfer- able, only under the charter, and according to its terms. Duvergier v. Fellows, .') Bing. l'I*. li*, 7, opinion of Best, C. J. A mere partnership cannot be so constituted, a- to release the assignor of a share from all liability to third per- sons, and introduce the assignee at once, and completely, into his place. Blun- dell v. Winsor, 8 Simons, 601, opinion of Shadwell, V. C. ; Jackson v. Cocker, 4 Beavan, •"•!». (13. In tli.' English courts it has been held, that where the charter of a corpora- tion or the deed of settlement required the assent of the directors to complete the title of the purchaser of shares, it was the duty of the seller to procure this in order to comply with his contract to convey. Wilkinson v. Lloyd, 7 Q. II. l'7 : Bosanquel v. Shortridge, 1 Exch. 699. And all corporations may, in self-defence, require all calls made upon their stork to be paid, before they will substitute the name of the purchaser of shares upon their books, for the original subscriber, as after this substitution they have no longer any claim upon such subscriber, and it would be liable to defeat many public enterprises of moment, and after large expenditures have been incurred, if the subscribers could, at will, relieve themselves from all liability to pay calls, by transferrin- their .hares to irresponsible persons. Hall v. Norfolk Estuary [*113J § 32. RESTRICTIONS UPON TRANSFER. 123 * 2. In many cases, however, where the charter only provides a mode of transfer, and does not declare this mode exclusive of all Co., 7 Railw. Cas. 503 ; s. c. 8 Eng. L. & Eq. 351. But the assignee of a share may always insist upon becoming a member upon paying all calls. Questions of some difficulty often arise between shareholders and the company, in regard to an informal transfer having been confirmed by acquiescence. In Shortridge v. Bosanquet, 16 Beav. 84 ; s. c. 17 Eng. L. & Eq. 331, and in ex p arte Bagge, 13 Beav. 1G2 ; s. c. 4 Eng. L. & Eq. 72, it is held that if the entry of the transfer is made upon the books of the company, and especially where the com- pany liave dealt with the shareholder claiming under the transfer, they cannot treat the transaction as void, for any want of form in the transfer, though in a matter specially required by the charter and not immaterial, but which their own irregularities had rendered it impossible to observe. And where the secretary of a joint-stock company fraudulently transferred shares, and the proprietor of the shares treated the transaction as being valid against the transferee, but filed a bill against the company for damages, it was held he was not entitled to relief. Duncan v. Luntley. 2 McN. & Gord. 30 ; s. c. 2 Hall & Twells, 78. In ex parte StrafFon's Executors, 4 De G. & S. 256 ; s. c. 10 Eng. L. & Eq. 275, the Lord Chancellor, St. Leonards, thus characterizes these transactions, which, although informal in some respects, are constantly acquiesced in by both parties, until there comes some crisis in the affairs of the company, perhaps, or the trans- feree becomes insolvent. " There would be no safety for mankind in dealings of this kind, extensive as they are, with so much money embarked in them, if the courts had ever held, as they never have held, that every minute circumstance must be obeyed, which the directors themselves ought to have obeyed ; but if they disregard them, if the shareholders do not call them to account for doing so, if a course of action has been adopted in the particular company, without complaint, although they may have arrived at making a man a shareholder, by what I should call a short cut, instead of going through all the necessary formalities, they mav be perfectly good as between parties thus dealing with the directors, and the directors themseves, so as to bind them." And in Bargate v. Shortridge, 5 Ho. Lds. 297 ; s. c. 31 Eng. L. & Eq. 44, in the House of Lords, upon elaborate argument and great consideration, it seems to have been definitively settled in England, that where the deed of a joint-stock company required the certificate of consent of three directors to the transfer of the shares of the company, and in practice this had never been given, but, for ten years, transfers had continually been made upon the verbal assent of the managing director upon the spot, and about nine-tenths of the original shares had been transferred in this manner, and S. having transferred his shares in the same mode to T., and his name having been entered upon the books of the com- pany, they could not afterwards refuse to regard T. as a member. But in such case, where the directors afterwards cancelled the name of T. in their share register-book, on the ground that the consent of the directors was wanting, it was held that S. had ceased to be a member of the company, and was entitled to an injunction against a scire facias prayed out against him by a creditor of the company, as a shareholder. It was said by Lord St. Leonards, who delivered the leading opinion : " Where [*114] 124 TRANSFER OF SHARES. PART II. •others, the provision has been regarded as merely directory, and not indispensable to the vesting of title in the assignee. And this has generally been so regarded, where the express provisions, in relation to the transfer of shares, exist only in the by-laws of the corporation. 3. A ii.l any unusual restriction in the by-laws of a corporation upon the transfer of stock, as that it shall be made only upon the books of the corporation, in person, or by attorney, and with the consent of the president, or other officers of the corporation, has been regarded as void, as an unreasonable restraint upon trade, 2 the directors of a company do acts in a matter in which they have no authority, such acts are altogether null and void. But where the acts are within their power and duty, and are either omitted or improperly done, and thereby third parties arc damaged, neither a court of law nor of equity will allow the company to take advantage of their neglect." This it seems to us, is a sound distinction, and one which will have an im- portant bearing upon the fraudulent over-issue of stock by the directors of a company whose capital is limited, and all issued and in the hands of bona fide owners. This is the same case in 4 Exch. 699. See also Taylor ». Hughes, 2 Jones & La Touche, 24 ; Humble v. Langston, 7 M. & W. 517 ; S. C. 2 Railw. C. 533 ; Ex parte Cockburn, 4 De G. & Sin. 177 ; s. c. 1 Eng. L. & Eq. 139. But where the charter, or the general law, requires all debts of the owner to be paid the company before transfer of shares, the company are not bound to accept a transfer otherwise made. Reg. v. Wing, 33 Eng. L. & Eq. 80. 2 Sargeant o. Franklin Ins. Co., 8 Pick. 90; Quiner,?;. Marblehead Ins Co., 10 Mass. 470; Noyes v. Spalding, 27 Vt. 421; Bates v. New York Ins. Co., 3 Johns. Cas. 238; Chouteau Spring Co. v. Harris, 20 Missouri, 382. In this last case the charter of the company provided that the stock might be "trans- ferred on the books of the company," and the company were authorized " to regulate the transfer of stock," by by-laws. And a provision in the charter authorized the company, in certain eases, to make assessments of stockholders beyond their shares of stock. It was held that no such assessment could be made on a party, alter he had ceased to be a member, by a transfer of his stock; that the power " to regulate the transfer" did not include the power to restrain transfers, or to prescribe to whom they might be made, but merely to prescribe the formalities to be observed in making them, and that the company could not prevent a part} from selling his stock, even to an insolvent person; that an assignment " upon the books of the company" was sufficient to effect a change of ownership, without taking out a new certificate in the name of the assignee; and that any transfer in writing was valid against the company, if, being notified, they refused to allow it to be made according to their by-laws. And in Dauchy V. Brown, •_' 1 Vt. 197, which was an action against stock- holders, upon the proper debt of the corporation, where the charter provided, that the persons and property of the corporators shall be holden to pay its debts, and that any execution, which should issue against the corporation, might be [*115] § 32. RESTRICTIONS UPON TRANSFER. 125 * unless as a provision to secure the indebtedness of shareholders. In such case it is sometimes said the assignee need only make his right known to the company, and require the transfer entered upon the books, and his title becomes perfected. 3 4. But if the former owner was indebted to the corporation, and the charter required all such indebtedness to be liquidated, before transfer of stock, such indebtedness will remain a lien upon the stock, in the hands of the assignee. 4 And where the charter of levied upon the person or property of any individual thereof, it was held, that the stockholders were only liable, in default of the corporation, and that judg- ment should first be recovered against the corporation, and the statute remedy strictly pursued. See, also, in regard to the remedy against stockholders, who are by statute made personally liable, Southmayd v. Russ, 3 Conn. 52 ; Middle- town Bank v. Magill, 5 Conn. 28; Child v. Coffin, 17 Mass. 64; Roman v. Fry, 5 J. J. Marshall, 634. And in an English case, Robinson v. Chartered Bank, Law Rep. 1 Eq. 32, where the charter required that no one should become a transferee of shares unless with the approval of the directors, it was held that the directors must use this power reasonably and would be controlled in equity. But where the charter of a corporation required all transfers to be executed by both parties and approved by the directors, and the transferror's name had been entered upon the registry upon his own execution merely, and the company was being wound up, the court refused an application to remove his name from the registry. Walker's case, Law Rep. 2 Eq. 554. 3 Sargent v. Franklin Ins. Co., 8 Pick. 90; United States v. Vaughan, 3 Binney, 394; Ellis v. Essex Bridge Co., 2 Pick. 243; Chester Glass Co. v. Dewey, 16 Mass. 94; Agricultural Bank v. Burr, 11 Shepley, 256; Same v. Wilson, id. 273. 4 Union Bank v. Laird, 2 Wheat. 390; Bank of Utica v. Smalley, 2 Cow. 770; Rogers v. Huntingdon Bank, 12 Serg. & R. 77 ; Downer v. Bank of Zanes- ville, Wright, 477 ; Farmers' Bank of Maryland v. Iglehart, 6 Gill, 50 ; Hall v. U. S. Insurance Co., 5 Gill, 484. See Angell & Ames, § 355 and note. In Marlborough M. Co. v. Smith, 2 Conn. 579, it was said the transfer of shares to constitute the assignee a stockholder must be in strict conformity to the charter and by-laws. And in the case of Pittsburg & Connellsville Railw. v. Clark, 29 Penn. St. 146, C. J. Lewis goes into an elaborate review of the cases to show, that under the Pennsylvania statutes, which provide, that no transfer of shares shall be made while the holder remains indebted to the company, except by con- sent of the board of directors, and no transfer shall discharge any liabilities before incurred ; that both the stock and the holder remain liable for all calls due before the transfer, and that the original subscriber, who promised to pay fifty dollars on a share, is indebted to the company, before calls made, within the meaning of the statute ; and even where the transfer is made with the consent of the directors, will remain liable until all calls are paid, notwithstanding the statute subjects the transferee also to a like liability. The same principle was reaffirmed in Graff v. Pittsburg & Steubenville Railw., 31 Penn. St. 489. [*116] 126 TRANSFER OF SHARES. PART II. *the company requires the payment of all sums due before regis- tering a transfer, this will embrace all calls made and which are payable at the date of the transfer. 5 * "). A corporation has no implied lien upon stock for the liabili- of tin- stockholders to the company. *6. And when the company wrongfully refuse to record trans- fers of shares on their books, the vendee may recover the price of such shares, the company having caused them to be sold, as the property of the vendor. 6 1 Open ex parte, Jur. (N. S.) 615. This question is elaborately discussed in a case in Maryland, with the following results: — Tlu- charter of a bank provided that its shares of stock shall be transferable u]H, n the books of the corporation only according to such rules as shall be estab- lished by the president and directors ; but all debts actually due and payable to the corporation 1<\ a stockholder, requesting a transfer, must be satisfied before such transfer .-hall be made, unless the president and directors shall direct to the contrary. Ibid, 1. That this lien on the stock is not waived by the form of a certificate for stock declaring that the stockholder " is entitled to shares of stock transferable only at said bank personally or by attorney on surrender of this cer- tified!. .'" L'. The assignee of a stockholder takes the equitable assignment subject to the rights of the bank against the stockholder, under its charter, of which he is bound to take notice. :;. This lien attaches to balances due the bank by the stockholder, for over- drafts on (hecks, but not to notes or bills on which the stockholder may be a party, as maker *or indoi'ser, and not due at the time the transfer is demanded. 1. The words " debts actually due and payable," imply more than mere in- debtedness; the indebtedness contemplated is only a deb Hum solvent! urn in pre- . not in futuro. 5. Where an assignee demands a transfer, but refuses to pay the debts then due the bank by the stockholder, and afterwards makes a second demand, when other notes of the stockholder had become due and payable, he cannot obtain a transfer without paying all the debts due at the time of the last demand. Reese & ! isher d. Bank of Commerce, L4 Md. 271. And such lien will be good against the money, for which the shares were sold, in the hands of the official liquidator, for the shareholder. In re General Exchange Bank, L. R. 6 Ch. App. 818. " Mass. 1 1 .,n Go. v. Hooper, 7 Cush. 183; Heart v. State Bank, 2 Dev. Ch. Ill; Sargent v. Franklin Ins. Co., 8 Pick. 90, and cases cited supra, note 2. But dividi nds due and unpaid may be said to he a fund, in the hands of the corporation, which they are not obliged to pay to the assignee of the stock, in. til their debts from the assignor are liquidated. Dividends are strictly due only to the assignor, and would not probably pass by a mere sale of the stock, - there were -wne special ground for giving the transfer of the stock that ion. [♦117-119] §33. CONTRACTS TO TRANSFER STOCK. 127 SECTION II. Contracts to transfer Stock. 1. Transfer under English statutes. Regis- tered companies. 2. Contracts to transfer stock valid, where bona fide. 3. Vendor must have the stock, when due. n. 3. Vendor viust procure the consent of di- rectors, where requisite. 4. Force of usages of stock-exchange. 5. Company will reform their registry at its peril. 6. 10. Company may compel one to accept shares on contract. 7. Stock standing in joint names belongs to survivors. 8. Mode and effect of correcting registry. 9. If the company vary the contract, spe- cific performance will be denied. 10. Closing contracts by offer and acceptance. 11. Form of transfer. Two may join in one transfer. § 33. 1. Questions often arise in regard to transfers of stock in incorporated companies, as to the quantity of interests conveyed, the title of the person making the conveyance, and many other in- cidents. The English statutes in regard to the registration of * railway companies are not intended to affect the property in the shares, 1 and a transfer is valid, although made before the registra- tion. 2 2. It would seem, too, that a contract to transfer stock in rail- way companies, at a future time, which the party neither has, nor is about to have, but expects to purchase in the market, for the purpose of fulfilling his undertaking, is nevertheless a valid con- tract, and not illegal, or against the policy of the law, 3 and that 1 The London & Brighton Railw. Co. v. Fairclough, 2 Railw. Cases, 544 ; s. c. 2 M. & G. 674. 2 The Sheffield, Ashton-under-Lyne, & Manchester Railw. Co. v. Woodcock,- 2 Railw. Cases, 522 ; s. c. 7 M. & W. 574. 3 Hibblewhite v. MIMorine, 5 M. & W. 462. Mr. Walford, in his Treatise, 256, and note, intimates that the law of France regards this class of contracts as illegal, and cites Hannuic v. Goldner, 11 M. & W. 849, in confirmation. But the case does not expressly decide the point. That was pleade.d, and the court held the plea bad, as amounting to the general issue, and the party had leave to amend. Perhaps it is chai'itable, both to the pleader and to the country, to sup- pose such is the law there, as Mr. Walford seems to have done. But where the deed of settlement requires the assent of the directors to a transfer of shares, and the vendor did not obtain it, and in the mean time the price of shares fell in the market, held the vendee might recover back his money. Wilkinson v. Lloyd, 7 Q. B. 27. But where the plaintiffs covenanted to subscribe for stock [*120] 128 • TRANSFER OP SHARES. PART II. the intimation of Lord Tenterdi n, 4 that such contracts were illegal, ;U1 ,1 qoI to be encouraged by the law or its ministers, is not to be irded, at this time, as sound law, however good sense, or good morality, it may seem to be. 8, It is clearly not a stock-jobbing transaction within the Eng- lish statute. 6 But to the performance of such a contract it seems * to be requisite, that the seller should bona fide procure the stock, by the time appointed for the transfer. in a railway, and pay ten per cent thereon, and then transfer it to defendant, who agreed thereupon to pay the residue and save the plaintiffs harmless, and tlie plaintiffs subscribed for the stock and paid the ten per cent; but the by-laws of the company provided for the transfer of the stock on the books of the com- pany only alter the payment of thirty per cent of its amount, unless by the con- sent of the directors, which they refused to giv°, in this case, and the plaintiffs tendered the defendant an instrument whereby they assigned and transferred the stock and constituted him their attorney to transfer the same on the books of the company, which was refused as not being a compliance with the contract: It was held, in an action to recover damages for the breach of the contract, that the plaintiffs bad complied with their covenant, and might recover, not the difference between the value of the stock at the time of refusal, and the sum due upon the subscription, but the whole sum due and interest. See also Orr v. Bigelow, 14 N . V * in Bryan V. Lewis, Ry. &M. ,'586, and in Lorymer v. Smith, 1 B. & C. 1. " Hewitt v. Price, 4 M. &. G. :555; Mortimer v. M'Callan, 6 M. & W. 58. « Hibblewhite v. M'Morine, 2 Railw. C. 51-66; s. c. 6 M. & W. 200. The comments of [sham, .).. in Nbyes v. Spaulding, 27 Vt. 420, 42!), may be regarded, perhaps, as giving the present state of the English law upon this subject. "Con- tracts for the sale of stock of this character on time are valid at common law, and can be enforced by action. The statute 7 Geo. 2, c. 8, made perpetual by 10 Geo. 2, C. «. has rendered some contracts of that character illegal. They are rendered void so far as the public slocks of that country are concerned, when the seller had no stock at the time of making the contract, and none was ever nit. mlid to be transferred by the parties, but their intention was to pay the dif- ference merely that may exist between the market value of the stock at the time of the transfer, and the price agreed to be paid. Such contracts are rendered void by that .statute, and are treated as wagering contracts ; ' the seller virtually betting that the stock will fall, the buyer that it will rise.' Chitry on Bills, 112, note (w). It ha- been held, that railroad stock is not within the act. Hewitt v. Price, I M. & G. ■'>■'<■'>:, s. c. .". Railw. C. 175; Fisher v. Price, 11 Beav. 194. In the case of .Mortimer v. M'Callan, (J M. & W. 70, Lord Abinger observed, ' that tli«' act was made for the purpose of preventing what is declared to be ille- gal trafficking in the funds by selling fictitious stock merely by way of (inferences ; but it never was intended to affect bona fide sales of stock.' Elsworth v. Cole, 2 M. A: W. 81 ; 2 Knit, Comm. 168, note (b). In the case of Grizewood v. Blane, 20 Ei g. L. & Eq. 290, it was held, that a colorable contract for the sale of railroad shares, where no transfer is intended, but merely 'differences,'' [*121] .§33. CONTRACTS TO TRANSFER STOCK. 129 4. The English reports, both in law and equity, and especially the more recent ones, abound in cases more or less affecting trans- fers of shares on the stock-exchange, and the practice and law governing transactions between brokers. These rules are allowed to have great weight in fixing the construction and effect of con- tracts made through the instrumentality of brokers. In the sale of shares in companies requiring the consent of the directors or of the company itself to the transfer, it is not understood, according to these rules, that the vendor or his broker undertakes to procure that consent, and if he does all that is requisite to effect a trans- fer of the equitable interest of the property, and there is no ob- struction to the vendee in obtaining the registration of such transfer, by taking the prescribed steps, the transfer will be re- garded as complete. 7 There have been somewhat recently two English decisions bearing upon the sale of shares upon the stock- exchange which seem to require an extended statement here. In Coles v. Bristowe 8 the question was heard in chancery. The custom of the stock-exchange seems to be that shares are bought and sold for the next settling day, when the jobber is either to take the liability on himself, or pass the names of transferees to whom no reasonable objection can be taken ; and on such names being accepted by the vendor, and the transfers made and the price paid by the transferees, the personal liability of the jobber to the ven- dor ceases. It was accordingly held, that, where the plaintiff in- structed his brokers to sell certain shares for him, and they disposed of them to the defendants for the next settling day, both plaintiff and defendants being familiar with the usages of the stock-exchange, and the transaction being confessedly subject thereto, and on the settling day the defendants passed the names of persons whom the plaintiff accepted, and executed transfers to them, and received the price of them, but the suspension and winding up of the- company between the sale and the settling day amounting to the rise or fall of the market, is gaming within the 8 & 9 Vict. ch. 109, § 18; s. c. 11 Common Bench, 538." 7 Stray v. Russell, 1 Ellis & Ellis, 888, 916; s. c. 5 Jur. (N. S.) 1295; s. c. affirmed in Exch. Chatnb. 2 Ellis & Ellis, 592. See also Field v. Lelean, G H. & N. 617, where a custom of the stock-exchange in regard to a particular class of shares, not to deliver them on contracts of sale until the payment of the price, was held binding. a 17 W. R. 105, before the full Court of Chancery Appeal, Lord Chancellor Cairns, and Lords Justices Wood and Selwin. 9 [*121] 130 TRANSFER OF SHARES. PART II. having rendered the registration of the transfers impossible, it was held that the defendants, who, up to the acceptance of the trans- ferers, and transferring the shares to them, were liable to indemnify the vendor in respect of his liability on the shares, became there- upon exonerated from all liability; and the transferees became liable to the same extent by accepting the transfer as if they had executed it on their part, but how far that liability will extend was not determined here. But it was here held that the vendor of shares on the stock-exchange cannot excuse himself from being bound by the usages of the exchange, so long as he continues to sell there by any private instructions to his broker. The same subject is very extensively discussed by Lord Chief-Justice Cockburn in delivering the opinion in Gressell v. Bristowe, 9 with the same general results ; so that it must now be regarded as settled in England that one who sells upon the stock-exchange through a broker, will be bound by the known usages of the place, and whether such usages are in fact known to the vendor or not will not probably be held essen- tial, so long as they are of general notoriety and understood both by his broker and that of the other party. The precise point of the decisions seems to be, that any usage of the stock-exchange which is uniform and reasonable will be understood to form one of the terms of sales made there, unless there is something to show that the parties understandingly waived or departed from it. And the fact that one of the parties gave special instructions to his broker, which were not communicated to the broker of the other party, will make no difference. * 5. Where the company assume to erase transfers from their books on the alleged ground that they are merely colorable, and made for the purpose of injuriously affecting the interest of the company or others, they assume the burden of showing such to be the facts ; and the transferees will be entitled to a mandamus to compel the company to restore their names to the registry as the proprietors. 10 3 17 \\ . R. 128, before the Exchequer Chamber, on error from the Com- mon Pleas, L6 W. EL 428; 8. c. Law Rep. 3 C. P. 112; post, § 36, pi. 4, n. 4. Ward v. South Eastern Raihv., 2 Ellis & Ellis, 812; s. c. 6 Jur. (N. S.) 890. The owner of shares, unless precluded by the charter of the company, may lawfully transfer them to any one who will accept the same, although it be done to escape the responsibility of membership. Weston's Case, lie Smith & Go., 17 \Y. R. 62; Ex parte Rayner, id. 64. [*122] § 33. CONTRACTS TO TRANSFER STOCK. 131 6. It is competent for the company to maintain a bill in equity against one upon an agreement to accept shares, although no writ- ing has been signed by the defendant according to the statute re- quiring the acceptance to be in writing. The contract may be enforced, as an agreement to do what the statute requires, and the decree will settle the question whether the defendant or some other one is the lawful holder of the shares in question. 11 7. Where stock is allowed to stand in the joint names of two persons, they will be regarded as joint tenants, unless something is shown to the contrary, and the company may treat the survivor as the owner of the whole. 12 8. A court will not interfere to compel a joint-stock company to correct their registry by removing one name and inserting another while an action at law is pending in regard to the same matter. 13 Where the registry is altered under a misapprehension as to the genuineness of a transfer it will not have the effect to transfer the shares. 14 Specific performance of a contract to sell shares will be decreed in equity, notwithstanding the constitution of the company provides that no shares shall be transferred except in such mode as the board shall approve, and the board refuse to give its consent to the transfer. 15 9. If the company in their notice of allotment annex a condition which they have no power to do, it will be regarded as such a variation * of the contract that a court of equity will not interfere to decree specific performance of the original contract. As when the company in such notice require the allottee to sign the deed of set- tlement on pain of forfeiture of the shares, when the constitution of the company gave no such power. 16 10. The learned judge, Lord Chancellor Westbury, here dis- 11 N. B. & Canada L. Co. v. Muggeridge, 4 Drew. 686 ; Bog Lead Co. v. Montague, 10 C. B. (N. S.) 481 ; s. c. 8 Jur. (N. S.) 310. 12 Garriek v. Taylor, 3 Law T. (N. S.) 460. And this will be so, notwith- standing, by the rules of the bank, there was to be no benefit of survivorship, it appearing to have been the purpose of the deceased to have her share go to the survivor. Garriek v. Taylor, 29 Beav. 79; 7 Jur. (N. S.) 116, affirmed by Lords Justices, 10 W. R. 49. 13 Harris ex parte, 29 Law J. Exch. 364 ; s. c. 5 H. & N. 809. 14 Hare v. London & N. W. Railw., 1 Johns. (Eng. Ch.) 722. 15 Poole v. Middleton, 29 Beav. 646 ; s. c. 7 Jur. (N. S.) 1262. 16 Oriental I. Steam Co. v. Briggs, 2 Johns. & H. 625 ; s. c. 8 Jur. (N. S.) 201. [*123] 132 TRANSFER OF SHARES. PART II. sees the general questions involved, and concludes, that in gen- eral the cunt will specifically enforce a contract to accept of shares in a joint-stock company. His lordship explains much at length his own views of the true modus operandi in effecting contracts by means of written offers and acceptance, and concludes, very justly, we think, that one who attempts to enforce such a contract must show that the acceptance on his part was prompt, simple, and un- qualified : and that where new conditions are made in the accept- ance the contract will not be regarded as closed until assent is given by the other party, either expressly or by fair implication, to such conditions. 11. The transfer of shares intended to be recorded on the books of the company should contain nothing but the transfer of the title. And where there are shares in different companies transferred between the same parties at the same time, it will be more con- venient to have a separate transfer for each company. 17 But as to the mere conveyance of title between the parties, one conveyance e Mifficient. And it is held even that two different owners may join in one conveyance to the same person. 18 SECTION III. Intervening Calls, or Assessments. 1. Vi ndor must pay calls, if that is requisite in pass title. , it is matter of construction, and i nee. n. 2. Calls paid by vendor transfer. after executing | 34. 1. It has been said, too, that the contractor to transfer stock must see to it that all calls are met, up to the time of the * transfer, as in general the charters of such companies, or their by-laws, prohibit the transfer of stock while calls remain unpaid. 1 17 Lord Campbell, C. J., in Reg. v. General Cemetery Co., 6 E. & B. 415, 419; Copeland V. North Eastern R. Co., id. 277. ■ Wills©. Bridge, 4 Exch. 193. 1 Walford, 266, 257. And under the English statute 8 Vict. ch. 16, § 16, providing that no transfer of shares shall be valid until he shall pay any call due upon such shares, or upon any other shares held by him, does not apply to the transfer of shares upon which no calls are due, notwithstanding the transferror [*124] § 34. INTERVENING CALLS, OR ASSESSMENTS. 133 But we have seen that this is a provision for the protection of the company, and in which they alone are interested, and which will not ordinarily avoid a sale, hetween other parties, otherwise valid. 2. And it would seem that the question, upon which party the duty to pay future calls shall rest, is one of construction, in the absence of express stipulation ; at all events, one of intention. It may perhaps be safe to say that the sale of stock, in the present tense, ordinarily implies that it is free from incumbrance of any kind, unless there is some exception or qualification in the con- tract. And that may be the common presumption, in regard to contracts to deliver stock, in future. But in the latter case the presumption is not, by any means, of so conclusive a character as in the former, and sometimes, in such cases, it has been held not incumbent upon the seller to pay intervening calls. 2 may hold shares not fully paid up. Hubbersty v. Mancb., Sbeff. & Lincolnsh. Railw., Law Rep. 2 Q. B. 59. 2 Shaw o. Rowley, 16 M. & W. 810 ; s. g. 5 Railw. C. 47. In this case it was held no impediment to the seller's readiness to convey the shares, that he had not paid an intervening call, as he might do it at the moment of executing the trans- fer, and the court say the call was ultimately to be paid by the purchaser. In Humble v. Langston, 7 M. & W. 517 ; s. c. 2 Railw. C. 533, it is decided, that upon the sale and transfer of the shares, where the purchaser's name is not substituted on the register of the company, for that of the seller, but the stock still standing in his name, and he is thereby subjected to the payment of future calls, he cannot recover the money of the purchaser, because there is no implied contract to that effect, resulting from the transaction. This is certainly a most remarkable decision, and it is something of a task to be able to read the opinion of the court, by which this result is reached, with tolerable patience. The con- clusion is certainly not fortified either by reason or analogy. And in the Cheltenham & Great W. Union Railw. Co. v. Daniel, 2 Q. B. 281 ; S. c. 2 Railw. C. 728, it is decided, that the purchaser of shares may, by way of estoppel in pais, be made liable for calls, before his name is actually substituted for that of the seller upon the register of shares. If so, both parties are liable for the calls, and the seller, while his name remains upon the register, is the mere surety of the purchaser, as to future calls. And what is a more natural or neces- sary conclusion in the mind of any one having the common sense of justice, than to imply, that while the purchaser suffers the seller's name to remain upon the register, and liable to the payment of calls, through his neglect, he does impli- edly promise to indemnify him against all loss on that account ? See Burnett v. Lynch, 5 B. & C. 589. But the case of Humble v. Langston is reaffirmed in the subsequent case of Sayles v. Blane, 6 Railw. C. 79. These cases can only be accounted for, upon the principle of discouraging blank unregistered transfers, which have the effect [*124] 134 TRANSFER OF SHARES. PART II. ♦SECTION IV. Transfer by Deed in Blank. ink transfer formerly held invalid in r< //' in America. 4. Deed executed in blank and filled by pro- curation valid. . 1. Ordinarily the transfer of stock, or a contract to trans- tor, i-; not required to be in any particular form. All that is requisite, is, the same as in any other contract, the meeting of the minds of the parties. But in some cases the shares are, by the express requirements of the charter, made transferable only, by deed executed by both parties to the transfer. 2. And in such case it was considered, that a deed executed by tin' seller, with a blank for the name of the transferee, was no com- pliance with the statute. 1 The opinion of the court seems to rest * upon the early cases, in which it is held that the party cannot effectually execute a deed, leaving such important blanks as the name of the grantee, or obligee, while it is considered that less im- portant ones, like the date, etc., may be supplied, after the execu- to evade the -tamp duties. Shelford, 108, and Report on Railw. 1839, No. 517, p. I. Since writing tin- above, the later case of Walker v. Bartlett, 18 C. B. 815 ; s. c. A: Eq. 368, has come to hand, where a blank transfer seems to be regarded as perfectly valid, and that the transfer in this mode does impose upon the vendee the duty of paying calls upon the shares, while they remain his property. i i_\ be allowed to say, that this result ©f the English decisions, upon this sub- ject, is not altogether without gratification, as the former decisions had so effectu- ally mystified the subject, that it seemed not improbable that the difficulty of comprehending them might very likely be ultimately found with ourselves, rather than at the door of the eminent jurists, who have so long clung to the now acknowledged inconsistency of Humble v. Langston, which pertinacity in error, il thing, is far more uncommon in Westminster Hall than with courts of Less experience. But it is probably on the ground of authority. Men of the learning and experience of the English judges, generally feel that they can afford to acknowledge their common share of human fallibility, without serious pre- judice, when the proper time coin s for doing so. 1 Hibblewhite v. M'Morine, 2 Railw. C. 51 ; s. c. 6 M. & W. 200. It is con- Bidered thai two or more several owners of shares may join in one deed to convey their shares. Wills v. Bridge, 4 Exch. 193; Enthoven v. Hoyle, 13 C. B. 373; • I Eng. L. & Eq. 134. See ante, § 34, n. 2. [*125, 126] § 35. TRANSFER BY DEED IN BLANK. 135 tion, by permission of the party executing the same. This seems to have been the undoubted rule of the English law, from the authorities cited, in the last case. 3. But it seems to be rather technical than substantial, and to found itself either in the policy of the stamp duties, or the supe- rior force and sacredness of contracts by deed, both of which have little importance in this country. And the prevailing current of American authority, and the practical instincts, and business experience and sense of our people, are undoubtedly otherwise. 4. There is no good reason why one should not be as much bound by a deed executed in blank, and filled according to his directions, as by a blank acceptance or indorsement, of a bill, or note, and accordingly we find a large number of decisions of the American courts leading in that direction. 2 2 Stahl v. Berger, 10 S. & R. 170 ; Sigfried v. Levan, 6 id. 308 ; Wiley v. Moor, 17 id. 438 ; Ogle v. Graham, 2 Penn. 132 ; Woolley v. Constant, 4 Johns. 54, 60; ex parte Kerwin, 8 Cow. 118; Boardman v. Gore et al., 15 Mass. 331. And the following certainly incline in the same direction. Smith v. Crooker, 5 Mass. 538, and the opinion of Parsons, C. J.; Hunt v. Adams, 6 id. 519; Warring v. Williams, 8 Pick. 326 ; Adams v. Frye, 3 Met. 103 ; Bank of Com- monwealth v. Curry, 2 Dana, 142; Bank v. McCbord, 4 id. 191; Johnson v. Bank of the United States, 2 B. Monroe, 310 ; Camden Bank v. Halls, 2 Green, 583 ; Duncan v. Hodges, 4 M'Cord, 239. In the London & Brighton Railw. Co. v. Fairclough, 2 Man. & Gr. 674; s. c. 2 Railw. C. 514, the deed of transfer where one name was first inserted, as trans- feree, and subsequent!}' that erased, and another inserted, and the deed re-exe- cuted, by the vendor, was held void, because it had not been restamped. Post, §§ 239, 241. An auctioneer, who sells shares at public auction without disclosing the name of his principal, makes himself personally responsible for the fulfilment of the contract of sale. Franklyn v. Lamond, 4 C. B. 637 ; Hodges on Railways, 119. But where one borrowed money, and deposited certificates of railway shares, with blank assignments upon them, as security, and the blanks were not filled up till the shareholder .became bankrupt, it was held that the depositary had a lien upon the shares, for money advanced by him, or paid on calls upon the shares. Dobson ex parte, 2 Mont. D. & De G. 685. And railway bouds issued with the name of the obligee blank, were held negotiable in that form, although not in terms negotiable ; and that any holder for value, before the blanks were filled, might maintain an action in his own name against the company. Chapin r. Ver- mont & Mass. Railw., 8 Gray, 575. See, also, White v. Vt. & Mass. Railw., 21 How. (U. S.) 575. [*126] 136 TRANSFER OF SHARES. PART II. ♦SECTION V. v >' spurious Shares. — Rules of Stock Exchange. bona fide, must refund money. a. 1. Discussion of the extent of implied warranty. '.',. No implied warranty in such case, which will entitle the vendee to special damage. 4 ;j- n. 4. Rule of the stock-exchange, made after the sate, not binding upon parties. How far such rules bind parties. § 36. 1. Where one employed a share-broker to sell in the mar- ket what purported to be scrip or certificates of shares in a pro- jected railway company, which subsequently proved to have been forged, and the broker paid the price at which he sold them to the defendant, but being called upon by the purchaser to make good the loss, repaid the money, and a further sum, according to a reso- lution of the committee of the stock-exchange, as to the value of genuine shares in the same railway company, which resolution was passed after the sale of the spurious shares; the defendant declin- ing to pay this further sum, the broker brought an action, claiming to recover, as upon a warranty, that the shares were genuine, with a count for money paid. 1 1 Hodges, 4th ed. (1865). This writer thus defines the rule: "If a share- broker, directed to buy shares, buys what is ordinarily bought and sold in the stock-market as shares, he has fulfilled his commission, and cannot be made responsible for the fraud or misconduct of parties, who may have issued the pea without authority. There is no warranty or undertaking, on the part of the broker employed to buy shares or scrip, that the article which merely passes through his hands is any thing more than what it purports on its face to be, and what it is generally understood to be in the market. Addison on Cont. 5th ed. 191. But if a broker sell stock-shares or debentures for an undisclosed principal, and sign the sold note, he is responsible for any loss sustained by the purchaser, through the fraud of the undisclosed principal, although the purchaser knew thai he waa dealing with a broker. Carr v. Royal Exchange Insurance Co., 5 B. & S. G'iG; s. c. nam. Royal Exchange Insurance Co. v. Moore, 11 Weekly Rep. 592. We know of no good reason why the vendor of shares in a joint-stock com- pany Bhould not lie held responsible for the genuineness of the article the same a- any other vendor. It may not follow that either of the brokers of the con- tracting parties could be so held, since, in general, they act merely in a repre- sentative capacity. lint the ultimate vendor must be responsible upon an implied warranty to that extent . And as was held, in the last case cited, if the broker with- holds the name of his principal he thereby assumes that responsibility, personally. [*127] §36. SALE OP SPURIOUS SHARES. — RULES OP STOCK EXCHANGE. 137 * 2. Upon the latter count the defendant paid into court the money received upon the original sale, with interest. 3. It was held, the plaintiff could not recover upon the ground of the warranty, there being no promise, express or implied, that the certificates were genuine ; and that under the other count he could only recover the money paid defendant. 4. It was also held, that the resolution of the committee of the stock-exchange, made after the transaction was completed, however it might bind the members of that body, could not affect the defend- ant. 2 There has been considerable discussion in the English courts, as we have seen, in regard to the binding effect of a rule of the stock-exchange, by which the purchasing broker of shares is held entitled at the settling day, in case of the purchase of shares, to bring forward a responsible party to whom the shares are to be trans- ferred, and thus exonerate himself from any further responsibility in the matter; the seller being bound to look to the party to whom the shares are thus transferred for indemnity against future calls, provided the company shall decline to register the transfer. The Court of Common Pleas, 3 Byles dissenting, held the custom not reasonable, and of no force. But this judgment was reversed in the Exchequer Chamber, 4 where the custom was held entirely rea- 2 Westropp v. Solomon, 8 C. B. 345. We think it probable that the cases, in this country, would be regarded as favoring the view, that upon a sale of this kind there is an implied warranty that the article is what it purports to be, and, consequently, that the seller is liable to pay its value in the market at the time its spuriousness is discovered. But see cases collected post, § 235. It would seem that in England it is an indictable offence for persons to conspire to fab- ricate shares, in addition to the limited number of shares of which a company con- sists, in order to sell them as good shares, notwithstanding any imperfection in the original formation of the company. Rex v. Mott, 2 C. & P. 521 ; post, § 37, n. 3. 3 Grissell v. Bristowe, Law Rep. 3 C. P. 112. 4 Same case, Law Rep. 4 C. P. 36. It seems from this case, and that of Tor- rington v. Lowe, Law Rep. 4 C. P. 26, that the seller has no remedy, after he accepts the purchaser, against any other party. But he is not obliged to accept him, unless he is ready to pay the price and is a responsible party. Kelly, C. B., in Exchequer Chamber, p. 51. But where the broker offers the name of a non- resident foreigner, the other party is not obliged to accept him as the purchaser ; and, on his refusal to do so, the broker will remain personally responsible to his customer, not having offered the name of a purchaser against whom no reason- able objection could be made. Allen v. Graves, L. R. 5 Q. B. 478. In the very recent case (1872) of Mollett v. Robinson, L. R. 7 C. P. 84; s. C. 20 W. R. 544, the effect of custom in regard to a particular trade, in a particular city, [*128] L38 TRANSFER OF SHARES. PART II. Bonable and binding. The courts could scarcely pronounce so convenient and universal a custom to be unreasonable. ' SECTION VI. /,', adhtess to perform. — Custom and Usage. 1. J ', ndor must be ready and offer to convey. 2 I '■ < 'mis' be ready to pay price. "cal usage. 4. The party taking the initiative must pre- pare the writings. n. 3. Oral evidence to explain memoranda of contract. £ 37. 1. The obligation resting upon the vendor of railway shares is to have, at the time specified in the contract for delivery, a good title to the requisite number of shares, and to manifest bis readiness to convey, which is usually done by tendering the proper conveyance. But this is not necessary. Any other mode of show- ing readiness is sufficient. 1 2. The corresponding obligations upon the vendee are readiness to receive the proper conveyance, at the specified time and * place, and to pay the price, and it would seem to prepare a proper con- veyance, and tender the same for execution, upon having a -good title made out. 2 in binding persons not resident at that place or shown to be cognizant of the cus- tom, is very extensively discussed, in the Exchequer Chamber, by six of the judges, who were equally divided on the point, and who therefore gave separate opinions. In Masted v. Paine, L. R., in Exchequer Chamber, 6 Exch. 132 ; s. c. & id. 203, the question of the effect of the seller having accepted such a pur- » chaser as tin; broker offers, although not responsible for indemnifying against future 266, 20 Law Rep. 227, in regard to the necessity of relaxing the rule of the admissibility of oral evidence to explain the import of commercial terms and memoranda in written contract- between merchants and business men, are cer- tainly worthy of his lordship's eminent reputation for wisdom and learning: — •• The only remaining question is, having stated a purchase for a third person ..- principal, is there evidence on which they themselves can be made liable? Now neither collateral evidence, nor the evidence of a usage of trade, is receiv- able to prove any thing which contradicts the terms of a written contract; but subject to this condition both may be received for certain purposes. Here the plaintiff did not seek, by the evidence of usage, to contradict what the tenor of the note primarily imports; namely, that this was a contract which the defend- ants made as brokers. The evidence, indeed, is based on this. But the plaintiff seeks to show that, according to the usage of the trade, and as those concerned in the trade understand the words used, they imported something more ; namely, that if the buying broker did not disclose the name of his principal, it might become a contract with him, if the seller pleased. The principle on which evi- dence is admissible is, that the parties have not set down on paper the whole of their contract in all its terms, but those only which were necessary to be deter- mined in the particular case by specific agreement, and which of course might vary infinitely, leaving to implication and tacit understanding all those general and unvarying incidents which an uniform usage would annex, and according to which they must in reason be understood to contract, unless they expressly ex- clude them. To fall within the exception, therefore, of repugnancy, the incident must be such as, if expressed in the written contract, would make it insensible or inconsistent. Brown v. Byrne, 3 El. & Bl. 703. [After alluding to several cases, especially Trueman v. Loder, 11 Ad. & El. 589, in which case is found a dictum adverse to admissibility of this evidence, the learned judge continued :] We may refer to Eodson v. Davies, 2 Camp. 530, not as a legal decision opposed to Truman v. Loder, — for Lord Denman, in his judgment in the latter case, showed that it could not lie supposed to carry with it the weight of Lord Ellenborougli's decision, — but because both cases, we think, disclose how entirely the minds of lawyers are under a different bias from that which, in spite of them, will always influence the practice of traders which creates the usage of trade. Lawyers de- sire certainty, ami would have a written contract express all its terms, and desire that no parol evidence beyond it should be receivable; but merchants and tra- ders, with a multiplicity of contracts preparing on them, and meeting each other daily, desire to write little, and leave unwritten what they take for granted in every contract. It is the business of courts reasonably to shape these rules of evidence so as to make them suitable to the habits of mankind, and such as are not likely to exclude the actual facts of the dealings between parties, when they are to determine on the controversies which grow out of them. The rule to enter a nonsuit must be discharged." See Taylor v. Stray, 29 Law Times, 95; s. c. 2 I .11. (N. S.) 175. [*130, 131] § 37. EEADINESS TO PERFORM. — CUSTOM AND USAGE. 141 to both parties, is regarded as if incorporated into the contract, the parties being presumed to have contracted with reference to it. 3 But it may be questionable, perhaps, whether the custom in regard to sales of stock, in this country, would require the pur- chaser to be at the sole expense of preparing the proper con- veyance. 4. It is safe, perhaps, to say, that the party tendering a convey- ance, or he who demands it, in practice, ordinarily causes the instrument, required to be executed, to be prepared in the one case and executed in the other. But less will often suffice, where the other party refuses to proceed. 4 4 Walford, 262, note, where it is said, " It would seem, that if the vendor fails to make out a title, this dispenses with a tender of conveyance." But if stock is to be delivered on demand, it is necessary to show an actual request to deliver, in order to sustain an action for non-delivery. Green v. Murray, 6 Jur. 728. Where the contract is to deliver stock in a reasonable time, or no time being specified, which the law regards as in a reasonable time, or on or before a day named, it is presumed each party is entitled to the whole time in which to perform. Stewart v. Cauty, 2 Railw. C. 616 ; s. c. 8 M. & W. 160. It seems that where the deed of settlement required the consent of the directors to the validity of the transfer of shares, it is incumbent upon the vendor to obtain such consent ; and where the transfer was duly made, executed, and delivered, and the money for the price paid, but the directors refused to give their assent, it was held the purchaser might recover back the money paid, and that the return of the transfer was collateral to the contract of purchase, and not a condition precedent to the plaintiff's right to recover. Wilkinson v. Lloyd, 7 Q. B. 27. And where the charter of the company or the statute, prohibits the transfer of the shares while calls remain due, it has been held that a deed of transfer made, while calls remained unpaid, was altogether null and void, so that the company may refuse to register such a transfer, although the calls have been subsequently paid. It is said it would be necessary to re-execute the deed, after the payment of the calls, before the company could be compelled to register it. Hodges, 121, 122. But it has been said, that if a deed be delivered as an escrow in such case, to take effect when the calls are paid, it may be good. Patteson, J., in Hall v. Norfolk Estuary Co., 7. Railw. Cas. 503 ; s. c. 8 Eng. L. & Eq. 351. As to the binding effect of the usages of the stock-exchange, see Maxted v. Paine, 17 W. R. 886 ; ante, § 36, pi. 4, and n. 4. [*131] 142 TRANSFER OP SHARES. PART II. ♦SECTION VII. Damages. — Specific Performance. 1. Damages, difference between contract price I 2. Equity will decree specific performance of and price at time of delm ry. contract for sale of shares. *§ 38. 1. The damages which either party is entitled to recover, is the difference between the contract price and the market price, at the time for delivery, or, in some cases, a reasonable time after, which is allowed either party for resale or repurchase. 1 2. And a court of equity will decree a specific performance of a contract to transfer railway shares, but not for the transfer of stock in the funds, as any one may always obtain that in the market, but railway stock is not always obtainable. 2 This sub- 1 Barned v. Hamilton, 2 Raihv. C. 624; Humble v. Mitchell, 11 Ad. & El. 205; s. c. 2 Railw. C. 70; Shaw v. Holland, 15 M. & W. 136. But the pur- chaser is not entitled to recover any advance in the market price of such shares, after a reasonable time for repurchase. Tempest v. Kilner, 2 C. B. 300 ; s. c. 3 C. B. 249. See also Pott v. Flather, 5 Railw. C. 85 ; Williams v. Archer, id. 289 ; s. c. 5 C. B. 318. But a broker is not entitled to commissions unless he complete the sale, but may be entitled to reimbursement of actual expenses. Durkee v. Vermont Central Railway, 29 Vt. 127. In a case in the Com- mon Pleas, Lo e v. Kekule, 3 C. B. (X. S.) 128; s. c. 30 Law Times, 64, it was decided, in regard to the subject of damages for breach of contract, by delivery of an inferior article, that if the article was one that could be immediately sold in the market, the rule was, the difference between the market value of the article delivered and that contracted for. But where the article cannot be immediately resold, as where the resale is delayed by the defendant, the measure of damages is the difference between the value of the article con- tracted for, at the time and place of delivery, and the amount made by the resale, within a reasonable time of the delivery of the article. See also Rand r. White Mountain Railw., 40 N. H. 79. It is here said that such a contract creates no debt, attachable by process of foreign attachment, but is merely a claim for unliquidated damages. And see Hager v. Reed, 11 Ohio (N. S.), 626, where the general question of the enforcement of contracts to transfer stock is idered, and the effect of judgment for the price without an actual transfer or an order of court therefor. - Duncuft v. Albrecht, 12 Simons, 189; Shaw v. Fisher, 2 De G. & S. 11 ; s. c. 5 Railw. ('. 461. Leach v. Fobes, 11 Gray, 506. There has been the most controversy in the English courts of equity as bearing upon the question of decreeing specific performance of contracts to transfer shares in joint-stock [*132] § 38. DAMAGES. — SPECIFIC PERFORMANCE. 143 ject * has been largely discussed in the English Court of Chancery Appeal, 3 and the same rule declared, which is stated above. But in that case the plaintiff failed to obtain a decree, for the reason that he had already conveyed the stock to the defendant's vendee, in ignorance that the defendant was the real purchaser ; and the matter having lain by for a whole year, it now seemed impossible to say that the plaintiff had made, or could make, good title to the stock, which is always an insuperable barrier to a decree for spe- cific performance. A later case upon the subject in the English Court of Chancery Appeal holds, that an agreement to accept a transfer of railway shares, on which nothing had been paid, was not nudum pactum, but a contract which may be specifically en- forced in equity. Lord Chelmsford, chancellor, in delivering his judgment, quotes with approbation the words of the Vice-Chan- cellor of England, in Duncuft v. Albrecht. " There is not any kind of analogy," said that learned judge, " between a quantity of three per cent, or any other stock of that description, (which is always to be had by any person who choses to apply for it in the mar- ket,) and a certain number of railway shares of a particular de- scription, which railway shares are limited in number, and which are not always to be had in the market." We regard this as the latest authoritative declaration of the English equity courts upon the subject. 4 So it was held, that a court of equity will decree a specific performance against a railway company of a contract to take land and pay a stipulated price. 5 companies, upon tbe point of the sufficiency of the proof. See Parish v. Parish, 32 Beav. 207 ; Bermingham v. Sheridan, 33 Beav. 660 ; s. c. 10 Jur. (N. S.) 415. 3 Shaw v. Fisher, 5 De G., M. & G. 596 ; Sullivan v. Tuck, 1 Md. Ch. Dec. 59, id. 112; McGowin v. Remington, 12 Penn. St. 56. See, also, upon the subject of specific performance in courts of equity, Adams, Eq. (ed. 1859) 77-91, and cases cited; Carpenter v. Ins. Co., 4 Sandf. Ch. 408; Lowry v. Muldrow, 8 Rich. Eq. 241. 4 Cheale v. Kenward, 3 De G. & J. 27. There has been a similar decision by the Supreme Court of Massachusetts. Leach v. Fobes, 11 Gray, 506 ; s. p. Todd v. Taft, 7 Allen, 371. 5 Inge v. Birmingham W. & S. V. Railway Co., 3 De G., M. & G. 658 ; s. c. 23 Eng. L. & Eq. 601 ; post, § 213. So also in their favor, Old Colony Railw. v. Evans, 6 Gray, 25. And the fact that the price of shares has unexpectedly fallen in the market will not preclude a decree for specific performance. Hawk- ins v. Maltby, 17 W. R. 557 ; s. c. L. R. 4 Ch. Ap. 200 ; approving case be- tween same parties, 16 id. 209 ; overruling same case, 15 id. 1075 ; Price v. Denb., R. & C. Railw., 17 id. 572. [*133] 144 TRANSFER OF SHARES. PART II. ♦SECTION VIII. Specific Performance. mince decreed against the r< ndee. '2. This was denit bts of the company. 6. The ostensible owner must respond to all responsibilities. 7. Executors responsible personally. 8. The mortgagor is entitled to redeem on re- storing the shares as stipulated in his deed. § 10. 1. It seems to be regarded as the general rule of chancery law. that the trustee of property is entitled to indemnity, for ex- penses bona fide incurred, in the management and preservation of the trust-fund, or estate, either out. of the property, or as a personal duty from the cestui que trust, in most cases. 1 ■1. We apprehend there is no good reason why this principle should not receive a general application to the case of shares in a railway company, held as security for a debt, by way of mortgage or pledge. And it would seem, that no serious question could ever have arisen upon the subject, but for the strange inconsistencies into which the English courts and judges have been led, by at- tempting, for so long a period, to maintain the doctrine laid down in Humble v. Langston, 2 but which is now effectually overruled, in the tribunal of last resort. 3 3. But we shall refer briefly to the decisions, upon this point, in regard to railway shares and stock, in other similar companies. It was held, by Wigram, Vice-Chancellor, 4 that where there was the surrender of the receipt with certain indorsements, showing plaintiff's interest, alter the resolution to issue the stock, fixing the mode of distribution, could not bind them to allot shares to the plaintiff upon the 300 shares. 1 Murray v. De Rottenham, 6 Johns. Ch. 52, 67; Green v. Winter, 1 Johns. Ch. 27; Watts v. Watts, 2 M'Cord, Ch. 82; Myers v. Myers, 2 M'Cord, Ch. 264; McMillan v. Scott, 1 Monroe. 151; Morton v. Barrett, 22 Maine, 257; Draper v. Gordon, 4 Sandf. Ch. 210; Egbert v. Brooks, 3 Harring. 110; Methodist Episcopal Church v. Jaques, 1 Johns. Ch. 450; Story on Bailments, §§ 306, 306 a, 357, • ^ 7 M. & W. 517. 3 Walker v. Bartlett, 18 C. B. 845; s. c. 36 Eng. L. & Eq. 368. See also Paine o. Hutchinson, Law Rep. 3 Eq. 257. * Phene v. Gillan, 5 Hare, 1. In this case, it was held, that where the mort- [*136] § 40. INDEMNITY AGAINST FUTURE CALLS. 147 *a contract for retransfer, claimed by the mortgagor, or found, in express terms, in the contract of pledge, or mortgage, or inferable from circumstances, this was sufficient ground for implying a contract, by the mortgagor, to indemnify the mortgagee, against liability to the creditors of the company, for debts incurred, while his name remained upon the register of shares, as owner, and a decree was made accordingly. 4. The same learned judge, in the same case, considered, that where the mortgage was made simply as an absolute transfer, subject to redemption, and nothing had passed, binding the mort- gagor to take a retransfer of the shares, the mortgagor was not bound to indemnify the mortgagee against debts incurred after the transfer made in the mortgage, and before the mortgage debt was paid off. But it is here maintained, that the mortgagee has not in such case any right, at law, against the mortgagor, as to payments, which he has been compelled, to make, while he remained the ostensible owner of the shares, even where a contract for retrans- fer is shown. But an English writer upon this subject 5 seems to incline to the opinion that, in such case, an action of trespass on the case might be maintained against the purchaser of shares who fails to cause his name to be registered as owner, or to in- demnify the seller against liabilities after the sale. And the same principle will apply to the mortgagee, after the debt is paid. But all these refinements must now, we think, be regarded as effectu- ally abrogated, by the virtual abandonment, by the English courts, of the rule laid down in Humble v. Langston, and the recognition of the contrary doctrine. 5. It has been held, in this country, that, where B. being in- debted, transferred shares to his creditors, as security, with the power of sale, and upon condition that the shares should be re- turned or accounted for, whenever the debt should be paid, the debt being paid off, and an informal power of retransfer given the mortgagor, and subsequently a more formal one, the mortgagees were to be regarded as stockholders, until the actual retransfer of gagor is entitled to claim a retransfer of shares, standing on the register of shares, in the name of the mortgagee, the debt being paid off, he is entitled to take pro- ceedings to compel such retransfer on the books of the company, in the name of the mortgagee, giving the proper indemnity for costs. And either the company or the directors, who have prevented the shares from being transferred, are proper parties to the bill, and, it would seem, necessary parties. 6 Hodges, 122. [*137J 14S TRANSFER OF SHARES. PART II. the Bhares, and as such liable to the creditors of the company, under the charter. 1 As the case of Humble v. Langston is not in puis overruled, although it is in principle we think, we here in- sert the substance of the opinion of the court in Walker v. Bart- let i. as showing the present state of the English law on the Bubj 6 Adderly v. Storm & Bailey, 6 Hill, 624. Bronson, J., argues the liability of the in to the creditor- of the company, while their names remained on the books ol the company, as absolute shareholders, on the ground that "they might receive dividends, vote at elections, and enjoy all the rights pertaining to the ownership <>f the property, and with the privileges they must take the bur- den* of a stockholder." A query is here started whether a retransfer to the mort- gagor of tin' shares, upon the payment of the debt, might not release the mortgagee. " The assignment, as between the parties to it, would have passed the 1 gal interest in the stock." But are the creditors of the company bound to look beyond the register of share.*? Rosevelt v. Brown, 11 N. Y. 148; Wor- rall o. Judson, 5 Barb. 210; Stanley v. Stanley, 13 Shepley, 191. In Adderly orm, supra, it is intimated, that a fraudulent transfer of stock by a solvent own< r i" an insolvent party, for the purpose of avoiding liability to the creditors of the company, might not avail the party, even at law. 7 •• The case of Wynne v. Price, 3 De G. & S. 310, shows that in equity the plaintiff would be entitled, under the circumstances of the present case, to in- demnity: but it was contended for the defendant, that, however the case might be in equity, there was no contract for indemnity to be implied by law; and the of Humble v. Langston, 7 M. & W. ol7, was relied upon as a direct author- ity against the plaintiff upon this point ; and the Court of Common Pleas, in the judgment appealed against, considered that it was bound by that decision, though it was intimated that but for that express decision their own judgment might have been. different. It must be admitted that, in principle., no substantial difference ■ ■an be taken between that case and the present, except this, that in Humbler. Langston, the plaintiff claimed to be indemnified by the defendant against all future calls, even though made after the defendant had himself transferred the - to other persons; and the Court of Exchequer, at the end of the judg- ment, observes, that if there were any analogy in principle between the case of ett v. Lynch, and that before the court, the defendant's implied promise I only be to indemnify against such calls as should be made while he was beneficially interested, whereas the plaintiff Humble claimed an indemnity ills mad.; after the defendant had parted with his interest. This, no a very important distinction; and though the Court of Exchequer ex- 1"' "■- an "pinion that there was no contract of indemnity at all, it adverts to between a claim to indemnify during the time the defendant is d, and a claim to be indemnified after he has ceased to be The i ircumstances ol the present case are, therefore, distinguishable in Humble v. Langston, and it consequently is not so direct an author- ir . v :l plaintiff's claim in the present case, as at first sight it might ir to be. [*18 § 40. INDEMNITY AGAINST FUTURE CALLS. 1-19 *6. It seems most unquestionable that a trustee may be made liable for assessments or calls upon the shares standing in his name, beyond the amount of the trust property. 8 And the trans- feree of shares, having taken upon himself the position and attitude of owner, cannot be allowed to excuse himself from responsibility by pleading irregularity in transfers, and it makes no difference in this respect whether he hold as trustee or beneficially. " It seems to us, therefore, that the circumstances of this case bring it directly within the principle upon which Burnett v. Lynch was decided. In the present case, the defendant entered into no express agreement to pay calls or indemnify, but he accepted the only transfer the plaintiff could give, and which invested him with full power to become the registered owner of the shares when he pleased. That transfer expressed that the transferee took them subject to the same rules as those under which the plaintiff held them, one of which was, that the registered owner should pay the calls. It could hardly have been the intention of the par- ties, that if the defendant, for his own benefit, omitted to make a perfect transfer, by registration in the company's books, the plaintiff should still continue to pay the calls; and if that was not the intention, was it not understood between them that the defendant should save the plaintiff harmless from any calls made during the time when he was virtually owner of the shares? " In Burnett v. Lynch, a lease had been granted to Burnett, in which he cov- enanted to pay the rent and repair the premises ; his executors assigned the lease to Lynch, subject to the performance of the covenant, but without any express covenant or contract by him that he would pay the rent or perform the covenant. The executors were called upon by the landlord, and obliged to pay damages for not repairing, according to the covenant, during the time Lynch was assignee ; the executors brought an action on the case against Lynch, founded on a breach of duty in not repairing. In giving judgment for the plaintiffs, Abbott, C. J., says, ' It is true, the defendant entered into no express covenant or contract that he would pay the rent or perform the covenants ; but he accepted the as- signment subject to the performance of the covenants ; and we are to consider whether any action will lie against him. If we should hold that no action will lie against him, the consequence will follow, that a man having taken an estate from another, subject to the payment of rent and performance of covenants, and hav- ing thereby induced an undertaking in the other that he would pay the rent and perform the covenants; will be allowed to cast that burden upon the other person. Reason and common sense show that that never could be intended.' He then goes on to say, that though an action on the case would lie, there might also be an action of assumpsit. " With the distinction of circumstances to which we have already adverted between this case and that of Humble v. Langston, we think that the principle upon which the case of Burnett v. Lynch was decided, is directly applicable to the present case, and that the plaintiff is entitled to make the rule absolute to set aside the nonsuit, and enter a verdict upon the first count of the declaration, and so much of the pleas as may be applicable to that count." 8 Hoare ex parte, 2 Johns. & Hem. 229 ; s. c. 8 Jur. (N. S.) 713. [*139] L50 Ti; kNSFER OF SHARKS. PART II. 7. Thus where reserved shares were offered to the shareholders and the executory of such as arc deceased, in proportion to the original shares, it was held that executors who accept shares must •be placed upon the list of contributories in their own right, and not in their representative capacity. 9 8. Where the owner of shares in the public stocks, or in joint- stork ctuiip anies, sells the same to raise money, and loans the money upon mortgage of real property, with conditions for having the Bharea replaced, at a given time, which is not done, but the mort- gage continued, the court will allow the redemption of the mortgage upon retransfer of the shares stipulated at the price on the day of the decree, although the funds had fallen. 10 SECTION X. Fraudulent Practices to raise the Price of Shares. ! ' Is of i quity will vacate sales so pro- '_'. Necessary parties. Extent of redress. '.',. 4. Dtvidi rids declared wh n none are earned will vacate sales, and subject directors to iridictrm nt. 5. Equity will not interfere where vendor mird bona fide, unless the shares were valueless. 6. Managers of company liable in tort to party injured. 7 Sf n. 10. Purchasing shares in another company considered. 8. Bona fide purchaser of shares fraudulently issued acquires same riyhls as other shareholders. §41. 1. All fraudulent practices, either of the shareholders, or directors, resorted to for the purpose of raising the price of shares in the market, where sales have been induced in faith of the truth of such representations, will be relieved against in a court of equity. 1 As where the directors of a joint-stock company, in order ' Fearnside & Dean's Case, Law Rep. 1 Ch. App. 231. 10 Blyth v. Carpenter, 12 Jur. (N. S.) 898; s. c. L. R., 2 Eq. 501. 1 Stainbank o. Fernley, '.) Simons, 556. And in a more recent case, the plaintiff, a director in a bank, who had been such from its organization, who usually attended the meetings, and was actually present and took part in the proceedings of tin- board of directors when the last dividend was declared, hav- ing purchased from the cashier of the institution twenty sliares of the capital stock, brought an action to have such contract rescinded, and to recover back the money paid, on the ground of false representations and concealments by the cashier as to the value of the stock and the condition of the bank at the time of [*140] § 41. PRACTICES TO RAISE THE PRICE OP STOCK. 151 * to sell their shares to advantage, represented in their reports, and by their agents, that the affairs of the company were in a very prosperous state, and declared large dividends, at a time when the affairs of the company were greatly embarrassed. 2. A person who had been induced, by these means, to purchase shares of one of the directors, filed a bill against that director, praying to be paid his purchase-money and offering to rctransfer the shares ; a demurrer for want of equity, and. because all the other the purchase: Held, that the plaintiff was not estopped from setting up his actual ignorance of the condition of the bank at the time of the sale. That although the purchaser was a director of the bank, having the means of knowledge, he was not in the particular transaction chargeable with notice of the condition of the bank. That if he was actually ignorant of its condition, the fraudulent vendor would be equally responsible to him for the deceit as to any stranger to the institution. That it was not a case in which the plaintiff was legally bound to know the truth or falsity of the vendor's representations. Held, also, that the evidence in such action plainly showing that at the time of the alleged sale and transfer of the stock, on the 29th August, 1857, the bank was, by the application of all the ordinary tests, sound, solvent, and prosperous, and the stock worth all that the defendant had represented it to be, the plaintiff could not be allowed to show the contrary by introducing in evidence what purported to be a certified copy of proceedings had in November, 1857, on the petition of certain stockholders for the re-establishment of the bank. Lefever v. Lefever, 30 N. Y. 27. In the case of Smith v. The Reese River Silver M. Co., Law Rep. 2 Eq. 264; s. c. 12 Jur. (N. S.) 616 (April, 1866), where a person was induced to take shares in a company on the faith of a statement in the prospectus, as to the nature of the property contracted to be purchased, which statement the pro- moters had no ground for believing to be true, and which turned out to he untrue, Sir W. Page Wood, V. C, held, he was entitled to an injunction restraining the company from enforcing calls against him, notwithstanding the articles of associ- ation to which the prospectus referred would have informed the purchaser that the statement in the prospectus was not justified. The learned judge said : " He is not bound to call at the office for the mere purpose of ascertaining whether the representations are- false or not. He was entitled to rely upon the representa- tions made to him as being true to the knowledge of the directors." But the party who claims to be injured by such fraudulent practices of direc- tors and other agents of corporations must bring his action for relief at the earliest practicable opportunity after having learned the probable fact of such fraudulent practices. Clarke v. Dickson, 1 EL, Bl. & El. 148; s. c. 5 Jur. (N. S.) 1029; Hop & Malt Co. in re, Law Rep. 1 Eq. 483. One who purchases upon the facts stated in a prospectus must be held to have notice of facts stated in other docu- ments expressly referred to unless there is special grounds for presuming the contrary. lb. See also Briggs ex parte, 12 Jur. (N. S.) 322; s. c. L. R. 1 Eq. 483. [*141] [52 TRANSFER OP SHARES. PART II. partners in the transaction ought to have been made parties, was overruled. Bui where a bill was filed against the public officer of a joint-stock bank, charging a similar fraud, through the fraudu- lent representations of the directors, in their reports, as to the prosperous state of the company's affairs, and that the plaintiff had thereby been induced to purchase five hundred shares in the hank, and praying that the sale might be declared void as between him and the company, and that they might be decreed to repay the purchase-money, it was held, that as the litigation was between one member of the partnership and the other members, the public * officer was improperly made a party, as representing the company, and a demurrer was allowed. 2 But in a case before the Court of Chancery Appeal, it was decided that the directors of a railway company are in the position of trustees, and if the purchaser has not by his own conduct affected his rights, the company cannot, as against him, retain money acquired from a fraudulent sale of their property to him, through the false representations of their direc- tors. But the court held that the plaintiff was not entitled to a decree against the directors, but was entitled to a decree against the company for his money and interest. 8 And it seems to be settled, by the decision of the House of Lords, that in England and in Scotland, for any fraudulent act done by the di- rectors, without the range of the powers of the company, whereby third persons suffer damage, they are personally liable to an action: but for all such acts within the power of the body of the share- holders to sanction, although the directors might not have been justified in what they were doing, there could be no right of ac- tion. 4 And a director cannot screen himself from responsibility for any imposition which is brought upon others by means of the circulation of a prospectus through his instrumentality, upon the ground that the document is capable of a construction by which it - I Ion o. Connell, 10 Simons, 58. It was further held, in this ease (10 Simons, 79) that it is not competent for the party in such case to file a bill against the company and some of the directors, praying, that if lie is not entitled to relief agail ipany, he may have it against the directors, and that such a bill is demurrable, <>n the ground that the prayer for relief should be absolute, for relief against the directors, in order to maintain the bill against them. But it is not necessary to make all the parties to a fraud defendants in a bill for relief. 3 Conybeare v. New Brunswick & Canada Railw. & Land Co., 1 De G., F. & J. 578 3. C, 6 Jur. (X. S.) 518. * Davidson v. Tulloch, 3 McQu. Ho. Lds. 783; s. c. Jur. (N. S.) 543. [*142] §41. PRACTICES TO RAISE THE PRICE OF STOCK. 153 may be regarded as true. It is for the jury to say whether that is the natural sense. 5 And it is not necessary that there should have been any direct communication between the plaintiff and defend- ant in order to subject the defendant to an action for false repre- sentation. If the defendant authorized the circulation of the prospectus before the public, containing false representations, by * which the plaintiff was misled, it is the same as if the defendant had made such representations to him personally. 5 And the fact that other inducements were also held out to plaintiff by other parties by which he was partially influenced, will not excuse the defendant. 5 But the representation of an officer of the company as to the effect of deeds, which it forms no part of his duty to expound, will not release the party executing the deed from his liability. 6 3. The declaring of dividends by the directors, where none have been earned, if done by them for the purpose of fictitiously enhancing the price of shares, for their own benefit, is regarded as such a fraud as will relieve a party who has purchased shares in faith of such facts, at prices greatly beyond their value, 7 and the transfer of the shares will be set aside. 4. In this case," Lords Campbell and Brougham concurred in saying: " Dividends are supposed to be paid out of profits only, and where directors order a dividend to be paid, when no such profits have been made, without expressly saying so, a gross fraud is practised, and the directors are not only civilly liable to those whom they have deceived and injured, but are guilty of conspiracy, for which they are liable to be prosecuted and pun- ished." 5. Where both parties labored under the same delusion in re- gard to the value of stock, relief could not be granted, of course, on the ground of fraud in the sale, and a court of equity will not ordinarily interfere to set aside a sale on the ground of mutual misapprehension as to the state and condition of the subject-mat- ter, unless in extreme cases, as where that is sold as valuable 5 Clarke v. Dickson, 6 C. B. (N. S.) 453; s. c. 5 Jar. (N. S.) 1029. See also Nicol ex parte, in re Royal British Bank, 3 De G., F. & J. 387 ; s. c. 5 Jur. (N. S.) 205. 6 Athenanim Life Ins. Co. in re Sheffield, 5 Jur. (N. S.) 216; s. c. John- son, Eng. Ch. 451. 7 Burnes v. Pennell, 2 House of Lords' Cases, 197. [*14G] 154 TRANSFER OF SHARES. PART II. which is wholly valueless, or does not exist. 8 To constitute a fraud in Buch cases, it is requisite, ordinarily, that the parties should have been upon unequal looting in regard to their means of access to the knowledge of* the true state of the company's funds and property, and that the party gaining the advantage in the bargain should, in some way, participate in giving curreney to the false estimate of its condition, beyond the mere fact of repeat- ing * the report of the directors, where both parties have equal means of judging of its correctness. (J. It seems to be regarded as settled law, that in case of such false representations to raise the price of stocks, and damage thereby sustained, the suffering party may maintain an action of tort against the party making the false representation, although it were not made directly to such injured party, there being no necessity for any privity between the parties to support an action of tort for a false representation. But where the action is ex contractu or quasi ex contractu, some privity is indispensable to the maintainance of the action. 9 7. It has recently been decided that a bona fide sale and trans- fer of property of one company to another, in consideration of shares in the one company being transferred to the other, is not such a return of capital as would be in contravention of the Eng- lish statute, which is in confirmation of the general rule of law, prohibiting the conversion by corporations of capital into income, and thus virtually reducing the stock of the company below the requirements of the charter; and on the other hand giving the shares of the company a false value in the market by reason of fictitious dividends. 10 8 1 Story's Eq. Jur. § 142 ; Hitchcock v. Giddings, 4 Price, 135, 141 ; 2 Kent, ( 'innlii. 46 . ■ Gerhard v. Bates, 2 El. & Bl. 47C ; s. c. 20 Eng. L. & Eq. 129. In tliis case the defendant was one of the promoters and managing directors of a joint-stock company, and, in offering the shares for sale, had guaranteed a certain semi- annual dividend to all who should purchase, but without any other communication witli the plaintiff personally, but the plaintiff purchased upon the faith of such eral guaranty or representation; and it was held that he could not maintain an action upon tin- guaranty, but that he might recover in tort, as for a fraudulent representation. Post, §§ 234, 240. diffC. & C.Co. in re Norton, 11 W. Rep. 1007. See also MeDougall v. !) Imp. H. Co., 2 B. &M. 528; s. c. 10 Jur. (N. S.) 1043. This point of [•144] 42. LIABILITY OP COMPANY FOR NOT REGISTERING. 155 * 8. But the bona fide purchaser of shares fraudulently issued acquires the same right as other shareholders, unless he buys after the company is in the process of liquidation ; and even in that case he may come in for his equal proportion of the assets, by proving that he bought of one who was a bona fide holder before the company was subjected to the process of being wound up. 11 But it was held that a bona fide sale of shares in a company, en- tered into after the presentation of the petition, but before the first advertisement for winding up the company, both vendor and purchaser being ignorant that such a petition was pending, was held sufficient to have passed the title. But the rule was reversed. 12 SECTION XI. Liability of Company for not registering Transfers. 1. The company liable to action. 2. May be. compelled to record transfers by mandamus. 3. But not compellable to record mortgages of shai'es. 4. Grounds of denying mandamus. 5. Bill in equity most appropriate remedy. 6. Rule of damages. 7. A fraudulent cancellation of an unregis- tered transfer will not affect the title. § 42. 1. It seems to be settled in England, that an action will lie against a joint-stock company, who neglect or refuse, upon proper request, to register shares and deliver new certificates, after the deed of transfer has been sent to the secretary. Damages one company taking shares in another company is discussed, to some extent, in the Court of Chancery Appeal in the case of Great Western Railw. Co. v. Metropolitan Co., 9 Jur. (N. S.) .562. There can be no doubt, as a general rule, this will not be allowed, unless by the express sanction of legislative per- mission. And it was here considered, that such an express sanction will not be con- strued to extend to additional shares, issued by the same company, and expressly required to be allotted to the existing shareholders. Vice-Chancellor Wood, when the case was before him, cited the case of Solomons v. Lang, 12 Beav. 377, as establishing the right of the defendant in the suit, to raise the question of the plain- tiff's right to take these additional shares, beyond the amount which the special legislative permission authorized. The case of the Attorney-General v. The Great Northern Railw. Co., 1 Drew. & Sm. 154 ; s. c. 6 Jur. (N. S.) 1006, is also cited by the learned judge as analogous to the case then before him. 11 Barnard v. Bagshaw, 1 H. & M. 09. 12 Emmerson's Case, Law Rep. 2 Eq. 231 ; s. c. reversed on Appeal, Law Rep. 1 Ch. App. 433. [*145] 156 TRANSFER OF SFIARES. TAUT II. may be recovered, it seems, by reason of such refusal of the com- pany, whereby the party Is deprived of the right to attend and vote at the meetings of the company, and especially where calls are made upon the shares, and in consequence of non-payment the shares are declared forfeited and sold. 1 There can be no question probably in this country, that where the company refuse on reasonable request, to make the proper entry upon their books of the transfer of shares, whereby the owner is liable to be deprived of any legal right, or pecuniary advantage, the company may be compelled to do their duty, in the premises, by writ of mandamus. 3. Bui it has been held, that the company are not bound to reg- ister trust-deeds or mortgages, and especially such as contain other property, or the stock of other companies. The mandamus was refused in such a case, in the Queen's Bench, so late as May, 1856, and upon the ground, as stated by Lord Campbell, C. J., that " if the company were bound to register this deed, they must become the custodians of it, and must incur great responsibility as to its safe custody, and that therefore convenience requires that they ; Bodges on Railways, 123; Catchpole v. Ambergate Railw. Co., 1 Ellis & Black, 111; 16 Eng. L. & Eq. 163. See also Wilkinson v. Anglo-California Gold ( !o. 18 Q. B. 728; s. c. 12 Eng. L. & Eq. 444. In regard to the right to sustain a writ of mandamus in ngland, to compel such transfer, upon the books of the company, sec Rex v. Worcester Canal Co., 1 M. & R. 529; Regina v. I. rerpool, Manchester, & Newcastle-upon-Tyne Railw. Co., 11 Eng. L. & Eq. 408: Sargent v. Franklin Insurance Co., 8 Pick. 90. So also an action on the will lie for not transferring stock. The rule of damages, where the stock has been sold, as the property of the vendor, is the value of the shares at the time of the, refusal, 8 Pick. 90, or it has sometimes been held, the highest value, between the time of refusal and the commencement of the action. Kartright v. Buffalo ( lommercial Bank, 20 Wend. 91 ; s. c. 22 Wend. 348. And some cases e.\t. nd it even to the time of trial. But see ante, §§ 36, 38. W here stuck in a railway is purchased and registered in the name of a married woman, out of her earnings, she and her husband may sue jointly for dividends, a " ' if »he sue alone, it is only ground of abatement. Dalton v. Midland Railw. ! C. B. 474; s. c. 20 Eng. L. & Eq. 273. mot be transferred so as to pass the title after the dissolution of the corporation, the shareholders being then only entitled to a share in the assets. James v. Wood: nil', 2 Denio, 574. Where a company have registered a transfer, which is alleged to he a forgery, and are threatened with a suit from both the tr. nsferror and transferee, the court will not grant an interpleader. Dalton v. Midland Railw. Co. 12 C. B. 13 C. B. 474; 22 Eng. L. & Eq. 452. [*146] § 42. LIABILITY OF COMPANY FOR NOT REGISTERING. 157 should only bo bound to register mere transfers, passing the legal title, and showing who is the legal owner of the shares." 2 4. But a mandamus to compel the registry of the transfer of shares in a railway company to an infant, 3 was denied. And the * court of equity declined to interfere to compel the registry of the transfer of shares when the company are denied the opportunity of inspecting the certificates by their directors. 4 5. The more effectual, and at present the more usual, remedy against corporations for refusing to allow the transfer of stock upon their books into the name of the real owner is by bill in equity. And in one case, 5 where the party whose stock had been allowed by the bank to be transferred into the names of those who had pur- chased it under forged powers of attorney sought .redress by an action at law, the court said, " We cannot do justice to this plain- tiff unless we hold that the stocks are still his," and therefore de- 2 Regina v. General Cemetery Co., 6 El. & Bl. 415; s. c. 36 Eng. L. & Eq. 126. 3 Reg. v. Mid. Counties & Sh. Junction Raihv. Co., 15 Ir. Com. Law, 514, 525; s. c. 9 Law T. (N. S.) 151. But the practice of compelling the registry of transfers, by mandamus, seems well established, even where they are not of a character to induce the most favorable consideration, as where it was a transfer to a pauper to enable the transferror to get rid of liability, it being intended to be out and out, with no secret trust for the transferror. lb. The transfer of shares for special purposes is so frequent, and the motives and occasions are so various, that it could not be expected to give an abstract of all the cases. As a general rule, one who understandingly consents to have shares transferred into his name upon the public registry of shares, must be content to assume all the responsi- bility towards the public and the other shareholders not conusant of the special contract, which any other shareholder would incur. But as between the com- pany and the purchaser there may be .• pecial grounds of relief. Coleman ex parte, 1 De 6., J. & Sm. 495; Grady ex parte, id. 488; Barrett ex parte, 10 Jur. (N. S.) 711 ; Saunders e parte, id. 246 ; s. c. 4 Giff. 179. Any transaction of this kind will not be disturbed, after considerable lapse of time. Spackinan ex'parte, 1 De G., J. & Sm. 504- ; s. c. 10 Jur. (N. S.) 911 ; Lane ex parte, id. 25 ; Spackinan ex parte, reversed, 11 Jur. (N. S.) 207. In Houldsworth v. Evans, L. R, 3 IIo. Lds. 263, it is distinctly declared, as the settled doctrine of the English courts, that any arrangement between the com- pany and the shareholders, although irregularly entered into, as between the directors and the shareholders, will nevertheless bind the i ody of the share- holders, unless they take active steps to have it set aside within some short and reasonable time after it becomes known to them. Post, § 135, pi. 6, and note. 4 East Wh. M. M. Co. in re, 3;! Beav. 119. 5 Davis v. Bank of England, 2 Bing. 303; post, § 241. [*147] 158 TRANSFER OP SHARES. PART II. nied the action for the value of the stocks, but allowed a recovery for the dividends which had been declared after the transfer. 6. And there is the same difficulty in compensating the purchaser of stocks, where a transfer on the books has been denied in an action at law. In some cases this has been attempted to be done by allowing the party to recover the highest market price of the stock between the refusal to transfer and the trial. But the only rule at all analogous to settled principles seems to be that the corporation shall pay the value of the stock at the date of their refusal to transfer it, as that is the time when the corporation became in default, and when by said default the stock, as between the parties, became theirs. 6 The question of the effect of forged and fraudulent transfers is very ably discussed by the Court of Chancery Appeal in Tayler v. Great Indian Peninsular Railway. 7 7. In a somewhat recent case, 8 one A. authorized a stock-broker to purchase for him some shares in a company, and paid the pur- chase-money, and the shares were duly transferred to him, by writ- ten instrument, but his name was not registered. Afterwards the stock-broker, on a false pretence, prevailed on A. to cancel his signature to the instrument of transfer, and to sign a deed of transfer to him, the broker ; A. believing, on the representation of the broker, that he was executing a fresh transfer to himself in the place of that which had been cancelled. The broker transferred them to an in- nocent holder as security for £5,000, money lent a short time be- fore. Held, on a bill filed by A., that the original transfer to him must have its effect ; and that the shares were thereby vested in him, and still remained, notwithstanding the cancellation and sub- s' •<|iient transactions. 6 Pinkerton v. M. & L. Railw., 1 Am. Law Reg. (N. S.) 96 ; s. c. 42 N. H. 424. 7 5 Jur. (X. S.) 1087 ; s. c. 4 De G. & J. 559. See post, §§ 46, 241. And Building A f -Mxiation v. Sendemeyer, 50 Penn. St. 67. ■ Donaldson v. Gillot, 12 Jur. (N. S.) 969; s. c. L. R. 3 Eq. 274. [*147] §43. WHEN CALLS BECOME PERFECTED. 159 ♦SECTION XII. When Calls become Perfected. 1. Calls are made when the sum is assessed, notice may be given afterwards. 2, 3. Directors the proper authority to make calls. 4. The manner of giving notice and of proof §43. 1. The English statute of 1845, called the Companies' Clauses Consolidation Act, requires all calls to be paid before any valid transfer can be made. Under this statute,, and similar pro- visions in special charters, it has often been made a question, when a call may be said to be made. It seems to be considered that the word call in this connection, may refer to the resolution of the directors, by which a certain sum is required to be paid to the com- pany, by the shareholders, 1 or secondly to the notice to the share- holders of the assessment, and the time and place at which they will be required to make payment, and the amount to be paid. But it seems finally to be settled, that the company are not obliged to regard any transfer, made after the resolution of the directors, making the assessment, which need not specify the time of pay- ment, but that may be determined by a subsequent act of the board. 2 1 Ex parte Tooke, In re The Londonderry and Coleraine Railw. Co., 6 Railw. C. 1 (1819) ; North American Colonial Association of Ireland v. Bentley, 19 L. J. (Q. B.) 427; 15 Jur. 187. A resolution of the board of directors requiring the stockholders to pay an instalment of ten per cent every thirty days, on all cash subscriptions, until the whole is paid, and that due notice thereof be gi\en, is admissible evidence of calls for the whole subscription. It was here considered that the words " month," and " thirty days," used in different portions of the act, must be considered of the same import. Heaston v. Cincinnati & C. R. R., 1G Ind. 275; Sands v. Sanders, 26 N. Y. 239. 2 Great North of England Railw. Co. v. Biddulph, 2 Railw. C. 401 ; s. c. 7 M. & W. 243; Newry and Enniskillen Railw. Co. v. Edmunds. 5 Railw. C. 275; s. c. 2 Exch. 118, 122. Parke,. B., in the Ambergate, &c, and Eastern Junction Railw. Co. v. Mitchell, G Railw. C. 235; s. c. 4 Exch. 510; Regina v. Londonderry & Coleraine Railw. Co., 13 Q. B. 998. Unless there is something in the subscription, or the charter and by-laws of the company requiring notice of calls, or making the subscription payable upon calls, it is said in Lake Ontario, A. & N. Y. v. Mason, 1G N. Y. 451, that it is [*148] 100 TRANSFER OF SHARES. TART II. •j. Ii seems the directors, and not the company, are the proper parties to make calls, under the English statutes. 3. This semis to have been decided upon the general ground of the authority of the directors. 8 1. The question of what shall amount to a good call, and how the Bame may l>e shown in court, is considerably examined in Miles v. Bough. 4 It is here decided, that no person could be sued lor non-payment of a call till he had received due notice thereof, although the statute did not require notice in express terms; that an order to pay the money at a given broker's was a good call ; that in the declaration it was sufficient to allege that the calls were made and the defendant duly notified, without further specification of particulars ; and that the jury may infer sufficient notice from the fact of an express promise to pay, notwithstanding it appeared hat a defective notice had been sent, unless it appeared that was the only notice given, when the case must be decided upon the sufficiency of the notice in fact given. not indispensable that notice of calls should be given the subscribers before suit. But this seems contrary to the general course of decision upon the point, and soniewhal at variance with the idea of a call, or assessment upon subscriptions to stock. And such seems to lie the general understanding of the rule in the American courts. But these questions will depend very much upon the special provisions of the statutes, in the different states, by which the matter is controlled, and somewhat upon the special terms of the contract of subscription. Heaston v. Cincinnati & ('. R. R. 1G Ind. 275. Thus, in the present case it was held the pal railway law of Indiana did require notice and a personal demand before proceeding to forfeit the stock, but not before suit to recover instalments ; that as to calls the statute required the subscribers to take notice of the action of the direc- tors. It is further said, that where the articles of association or the preliminary articles of subscription, or both combined, contain an undertaking to pay the amount subscribed on certain terms and conditions, an action will lie to enforce the stipu- lations upon proof of the subscription and the performance of the conditions. ' Am tf. & I!. & Eastern Junction Railw. Co. v. Mitchell, 4 Exch. Ch. B. "The next objection is, that the directors made these calls; lint they were competent to do so, as they may do all things, except such as are !■> In- dune by the shareholders at a general meeting; and there is nothing in the act which makes it ne< essary that the company should make calls at a general meeting." . B. "The director- may exercise all the powers of the company ex- cept those which are to be exercised by the company at their general meeting, and the power of making calls is not such a power as is required to be so exerci 1 :; Q. B. 845. Defective notice by publication is not aided by personal notice of a shorter tune. .Sands v. Sanders, 26 N. Y. 239. [*14'.»J § 44. TRANSFER BY DEATH, INSOLVENCY, OR MARRIAGE. 161 ♦SECTION XIII. Transfer by Death, Insolvency, or Marriage. 5. Stock in trust goes to new trustees. 6. Assignees of insolvents not liable for the debts of the company, 7. Effect of marriage of feme sole. 1. Mandamus lies to compel the registry of successor. 3. In case of death, personal representative liable for calls. 4. Notice requisite to perfect the title of mort- gagee. § 44. 1. The title to shares in a railway is liable to transfer by the death, bankruptcy, or insolvency of the proprietor, or by mar- riage of the female owner of such shares. In such case the Eng- lish statute requires a declaration of the change of ownership, to be filed with the secretary of the company, and the name of the new owner is thereupon required to be entered upon the register of shareholders. A mandamus will lie to compel the clerk to make the proper entry in such case. 1 2. These incidents are so much controlled by local laws, in dif- ferent jurisdictions, that it would scarcely comport with our object to state more than the general principles affecting them. In most of the United States all property (especially personal estate as railway shares), in the first instance, upon the decease of the pro- prietor, vests in his personal representative, in trust, first for the payment of debts, and afterwards for legatees, or in default of them, the heirs of such proprietor. 3. And so far as regards voting upon such shares, the title of the executor or administrator will ordinarily be sufficient. Before the name of the executor or administrator is entered upon the books of the company, as a shareholder, the estate only could be held liable for calls probably, and perhaps the same rule of liability would obtain after that. 2 But in general where shares in a joint- 1 Rex v. Worcester Canal Company, 1 M. & R. 529. ? Fyler v. Fyler, 2 Railw. C. 873; s. c. 3 Beav. 550; Jacques v. Chambers, 2 Coll. (C. C.) 435 ; s. C. 4 Railw. C. 499. But the administrator or other personal representative of a deceased shareholder, may, under the recent English statute, the Common-law Procedure, maintain an action against the company for refusal to register his name, as successor, to the title to the shares, and after having re- covered damages, he is entitled to a mandamus to compel the company to register his name. He is also entitled to the prerogative writ of mandamus in such cases at common law. Norris v. The Irish Land Co., 8 El. & Bl. 512 ; s. c. 30 Law Times, 132. 11 [*150] 162 TRANSFER OF SHARES. PART II. stock * company are bequeathed specifically, the legatee takes them subject to all future calls. 3 But where the payment of future calls is indispensable to bring the shares into the state in which the testator regarded them in his will, such calls should be paid by the estate. 4 4. In case of death or insolvency, the title of a mortgagee first notified to the company, will commonly have priority. 5 Notice to the company is necessary to perfect the title of a mortgagee, in case of bankruptcy or insolvency. 6 5. As to the title of the bankrupt, all shares standing upon the register of the company in his name will be regarded as under his control, order, and disposition, and will, under the English statutes, go to the assignees. 7 But stock in any incorporated company standing in the name of the bankrupt as trustee, is to be trans- ferred by the assignee to the name of new trustees, and a court of chancery will so order. 8 6. The assignees of an insolvent estate, a portion of whose assets consists of shares in a manufacturing corporation, are not liable under special statutes, making shareholders liable for the debts of the corporation. That is a provision of positive law, and is to be construed strictly. 9 7. The marriage of a feme sole, being the owner of shares, will have the effect to transfer them into the control of the husband, the same as any other personal estate, unless where it is provided otherwise by statute, or the husband chooses to leave them still under the control of the wife. 10 3 Blount v. Ilipkins, 7 Sim. 43, 51 ; Jacques v. Chambers, 2 Coll. 435 ; Clive V. I live. Kay, 600; Wright v. Warren, 4 De G. & Sm. 367; Adams v. Ferick, 26 Beav. 384. 4 Armstrong v. Burnet, 20 Beav. 384. 1 dimming p. Prescott, 2 Yo. & Coll. Eq. Exch. 488. * lint wln-re all parties are partners, notice will sometimes be implied. Ex parte Waitman, 2 Mont. & Ayr. 364; Duncan v. Chamberlayne, 11 Simons, L28; Ettj v. Bridges, 2 Yo. & Coll. 486. 7 Bhelford, L18-121. H Ex parte Walker, 10 Law J. Bank. 3. 9 Gray v. Coffin, 9 < lush. 192. 10 Schouhr Dom. Bel. Ill ei seq. and cases cited; Richardson v. Merrill, 32 Vt. 27 and cases cited. [*151] §45. LEGATEES OF SHARES. 163 SECTION XIV. Legatees of Shares. 1. Entitled to election, interest, and new shares, but not to bonds. 2. Shares owned at date of will pass, although converted into consolidated stock. 3. - Consolidated stock subsequently acquired will not pass. § 45. 1. Legatees of railway shares have the election out of which class of shares their legacy shall be paid, when there is more * than one class of the same description found in the will. And they are entitled to the income of the shares, after the death of the testator, and to receive any advantage, by way of new shares result- ing from the ownership of the shares. 1 But a specific legatee of shares is not entitled to a bonus on such shares, declared after the decease of the testator, but arising out of moneys due the com- pany from the testator, and which claim was compromised by his executors, but such bonus belongs to the general fund of personal estate. 2 And such legatee must bear the calls which are made after the testator's death, unless there is something in the will to show a different intent. 3 2. A bequest of the testator's railway shares, of which he should be possessed, at his decease, was held to pass such rail- way shares specifically named in the will as the testator had at the date of his will, although subsequently converted into con- solidated stock of the same company, by a resolution of the company. 3. But that other consolidated stock of the same company owned by testator at his decease, did not pass under the will, the same having been purchased after the execution of his will. 4 1 Jacques v. Chambers, 2 Coll. (C. C.) 435 ; 8. c. 4 Railw. C. 205 ; Tanner v. Tanner, 5 Railw. C. 184; s. c. 11 Beav. 69. And it is held in this last case, that upon a bequest of railway shares and all right, title, and interest therein, money paid beyond the calls will pass to the legatee. 2 Maclaren v. Stainton, 27 Beav. 460 ; s. c. 6 Jur. (N. S.) 360 ; Loch v. Ven- ables, 27 Beav. 598 ; s. c. 6 Jur. (N. S.) 238. 3 Day v. Day, 1 Drew. & Sm. 261 ; s. c. 6 Jur. (N. S.) 365. 4 Oakes v. Oakes, 9 Hare, 666. [*152] 164 TRANSFER OF SHARES. PART II. SECTION XV. Shares in Trust. ■ y may safely deal with regis- ten iscnssion of the rights of cestuis que trust in stock certificates. 8 16. 1. By the English statute, railway companies are not bound to see to the execution of trusts in the disbursement of their dividends, but are at liberty to treat the person in whose * name the shares are registered as the absolute owner. It would seem that in the case of the bankruptcy of a shareholder in a joint- stock company, a court of equity will sometimes protect trust funds, although registered in the name of the bankrupt, both from the claim of the assignee and the company, who have made ad- vances to the nominal owner, upon the faith of his being the true owner, but without any pledge of the stock. 1 2. In general, in this country, it is believed railway companies will be protected in dealing bona fide with the person in whose name shares are registered on the books of the company, as the absolute owner, notwithstanding any knowledge they may have of the equitable interest of third parties. 3. But there can be no question, a court of equity will always protect the interest of a cestui que trust, when it can be done with- out the violation of prior or superior equities, which have bona fide attached. 1 Pinkett V. Wright, 2 Hare, 120. This is a very elaborate opinion of the learned Vice-Chancellor Wigram, upon the subject of protecting the interest of cesiii- the tock of a banking company, standing in the name of a trustee who had become bankrupt. The trustee was also the proprietor of shares in his own ri^'lit. all standing in his name, without any tiling on the books of the comp iisb which were trust funds. It was held that the trustee most be presumed to have pledged such stock as belonged to himself and not tbat ol bit que ti-ust, and that shares which stood in the name of the truste at the time of the bankruptcy, and thenceforward remained in his name, might fairly be presumed to be identical with those in which the trust funds were invested, the number of shares being the same. Notice to he company is indis- in equitable mortgage of railway shares. Ex parte Boulton v. Bkelehley, 29 Law Tim s, 71 ; s. c 1 De G. & J. 173. [•153] § 46 a. TRANSFER EXEMPT FROM CREDITORS. 165 4. It was recently held after careful examination of the author- ities, 2 that the holder, of stock, as trustee, has prima facie no right to pledge it as security for his private deht, and one who accepts the pledge under such circumstances, acquires no rights against the cestui que trust. And the word " trustee " in the cer- tificate, in connection with the name of the holder, is notice to all persons to whom the certificate may be delivered, sufficient to put the party on inquiry, as to the nature of the holder's title, and the character and extent of the trust. * SECTION XVI. The extent of Transfer requisite to exempt from claim of Creditors. 1. How transfer of stock perfected as to i 3,4. In some of the states no record required. creditors. 2. Reasonable time allowed to record transfer. n. 3. Question further considered. § 46 a. 1. The question of what constitutes a valid transfer of shares in a joint-stock corporation, so as to exempt them from attachment and levy by creditors of the transferror, is consider- 2 Shaw v. Spencer, 8 Am. Law Reg. (N. S.) 299 ; s. c. 100 Mass. 382. The de- cision here falls short, probably, of what the authorities will justify, if the case had required it. But the usages of the Stock Exchange, whereby trustees are enabled to defraud their cestuis que trust, for the benefit of speculators, receives a moder- ate but very just rebuke. 1. By declaring that certificates of stock in blank are not to be regarded as negotiable instruments, cutting off all equities of bona fide parties in interest, s. P. Sewall v. Boston Water Power, i Allen, 272. 2. By declaring that no usage or custom of brokers, or course of business, can avail to defeat, or qualify, the established rules of law, recognized in courts of equity. The following significant intimation of the court is worthy of repetition : "The circumstance that stock certificates, issued in the name of one as trustee, and by him transferred in blank, are constantly bought and sold in the market without inquiry, is likewise unavailing. A usage to disregard one's legal duty, to be ignorant of a ride of law, and to act as if it did not exist, can have no standing in the courts.'''' We should be rejoiced to persuade ourselves, that we had reached a point where the dishonest practices of trade could no longer receive counte- nance by the courts, either directly or indirectly. We regard this case as falling far short of the truth, but as it is all which the case required, it is gratifying to believe the courts are moving in the right direction, and may ultimately be able to convince men who shut their eyes to exclude the light, that they need not feel [*154] 166 TRANSFER OF SHARES. PART II. ably discussed in a case in New Hampshire by a judge of large experience, and the result reached, that upon a pledge of stock in a railway corporation in New Hampshire, there should be such de- livery as the nature of the thing is capable of, and to be good :ist a subsequent attaching creditor the pledgee must be clothed with all the usual muniments and indicia of ownership ; that by the laws of New Hampshire, a record of the ownership of shares must be kept, by domestic corporations, within the state, and by officers resident there; and that on the transfer of stock the delivery will not be complete, as to creditors, until an entry is made upon such stock-record, or it be sent to the office for that purpose, and the omission thus to perfect the delivery will be prima facie, and if unexplained * conclusive evidence of a secret trust, and therefore, as matter of law, fraudulent and void as to creditors. 1 2. But in the case last cited it is said that when 2 the transfer is made at a distance from the office and the old certificate surren- dered and a new one given by a transfer agent residing in a neigh- boring state, proof that the proper evidence of such transfer was sent by the earliest mail to the keeper of the stock record to be duly entered, although not received until an attachment had inter- vened, would be a sufficient explanation of the want of delivery and the transfer would be good against the creditor. Any unrea- sonable delay in perfecting the record title to such shares leaves them liable to the claims of creditors. 3. But where the charter of the company or the general laws of the state contain any specific restriction or requirement in regard to the transfer of shares, it must be complied with or the title will not pass. 2 4. In a case in New Jersey, 8 it seems to be considered that surprise, to find their blind booty turning to ashes in their grasp; and the in- terests "1 the widow and the fatherless finally regarded as of more value, in the publir esteem, than the accumulation of gain, by indirection and evasion, intended to defraud them of their last penny. 1 Pinkerton v. Manchester & Lawrence Railw., 1 Am. Law Keg. (N. S.) 9G ; 8. c. 42 X. II. 424. * Fisher v. Eases Bank, 5 Gray, 373; Sabin v. Bank of Woodstock, 21 Vt. 362 : Pittsburgh & Connellsville R. Co. v. Clarke, 29 Penn. St. 146. 3 Broadway Bank v. McElrath, 2 Beasley, 24. We think it proper to say, that there is considerable difference in the decisions of the different states as to the point of time from which the transfer of equitable titles is to be reckoned, as [•155] §46 a. TRANSFER EXEMPT FROM CREDITORS. 167 nothing more is required to make an effectual transfer of stock in a bank, even as against creditors, than an assignment of the certif- icates and a delivery to the assignee, and that this will be regarded as effectual against an attaching creditor without notice, even where the charter of the company declares the stock personal estate, and provides that " it shall be transferable upon the books of the cor- poration," and also, " that books of transfer of stock shall be kept, and shall be evidence of the ownership of said stock in all elections and other matters submitted to the decision of the stockholders." between purchasers for value and creditors. It is generally considered that the transfer takes effect from the date of notice to the trustee, who holds the legal title, subject to all equities, and these do not attach ordinarily until after notice brought home to the trustee. Some of the states regard the equitable rights of the purchaser as dating from the period of the actual purchase, provided notice to the trustee be given within reasonable time' after. We have discussed the question and the cases, to some extent, in Rice v. Courtis, 32 Vt. 460 ; s. c. 1 Redf. Am. Railw. Cases, 111 ; 1 Story Eq. Jur. 400 b. [•155] L68 ASSESSMENTS OR CALLS. PART II. CHAPTER IX. ASSESSMENTS OR CALLS. SECTION I. Party liable for Calls. 1. The party upon the register liable for calls. 'J /. krupts /' main liable for mils. 3. Cestuis que trust not liable for calls in law or equity. Trustee compelled to pay for shares. One on registry may show his name im- properly placed there. § 47. 1. It seems to be settled law that the registered owner of railway shares is liable for all calls thereon, so long as his name remains upon the register. 1 The effect of the transfer of railway scrip is only to convey an equitable interest in the shares, with the right to have the shares formally assigned to him, and his name entered upon the register as a shareholder. 1 2. In case of bankruptcy, the bankrupt remains liable for all calls unless the names of the assignees are registered on the books 1 Midland Great Western Railw. Co. v. Gordon, 5 Railw. C. 76 ; s. c. 16 M. & W. 804; Mangles v. Grand Collier Dock Co., 10 Sim. 519: s. c. 2 Railw. C. 359 ; Sayles v. Blane, 14 Q. B. 205 ; s. c. 6 Railw. C. 79 ; West Cornwall R. v. Mowatt, 1") Q. B. 521. In this case it was said, even if the transaction by which the title to the stock and the registry of defendant's name were made, were illegal, it could not avail him in an action for calls. See post, § 236; Long Island R. Co., 19 Wend. 37; Mann v. Currie, 2 Barb. 294; Hartford & N. H. It. r. Boorman, 12 Conn. 530; Mann v. Cooke, 20 Conn. 178; Rosevelt v. Brown, 11 N. Y. 148. The registry-book of shareholders is prima facie evi- dence of the liability to calls, of those whose names appear upon it, although irregularly kept. Birmingham R. v. Locke, 1 Q. B. 256 ; London Grand J. R. v. Freeman, 2 M. & (',. 606; Same v. Graham, 1 Q. B. 271; Aylesbury R. v. Thomson, 2 Railw. C. 668. This last case holds that the purchaser of shares is only liable for calls made after bis name is upon the register. The company may, by its charter, and probably by a by-law, provide that the original sub- scriber shall be holden for all calls, or until a certain amount is paid in. Vicks- burg, Shreveport, iV Texas Railw. v. McKeen, 14 La. Ann. 724. [♦156] §47 PARTY LIABLE FOR CALLS. 169 of the company, as this is not regarded as a debt payable in future, and which may be proved under the commission. 2 * 3. The trustee of shares, whose name appears upon the books o the company, is alone liable for calls, and the company have no remedy in equity even for calls against the cestui que trust. 21 But if a shareholder when the company is in extremis makes a colorable transfer to an irresponsible person, it has been held it will not relieve him from liability to contribute. 4 But in the absence of fraud or mala fides, the cestui que trust cannot be subjected to a call although lie may be compelled to indemnify his trustee. 5 And it seems finally to be settled in the English Court of Chancery, that a shareholder may transfer his shares in an abortive company, where such shares pass by delivery, to an insolvent person, for the purpose of getting rid of liability to contribute to its responsibilities, provided the transaction be a real one, and not a false or hollow contrivance. 6 But where the transaction exhibits no motive except escape from the liability of the company, and especially where it transpires after the company is publicly declared insolvent, it was held it will be regarded as merely colorable and not valid. 7 But where the holder of shares threatened to put the company into in- 2 South Staffordshire R. v. Burnside, 2 Eng. L. & Eq. 418; 8. c. 5 Exch. 129; 6 Railw. C. 611. 3 The Newry, W. & R. R. v. JMoss, 4 Eng. L. & Eq. 34 ; s. c. 14 Beav. 64. But where, in winding up the affairs of a company, the name of one of the mem- bers, who had obtained his certificate since the expenses were incurred, was placed among the eontributories, it was held he was not liable. Chappie's case, 17 Eng. L. & Eq. 516; s. c. 5 De G. & S. 400. Where shares were pledged at a bank as security for a loan, and the name of the bank, or of the chairman and manager of the bank, was entered on the register of shareholders simply as holders of the shares, which had been represented as fully paid-up shares, at the time of pledge, it was held that they were not liable for calls. Guest v. W. B. & L. Railw., Law R. 4 C. P. 9. 4 Lund ex parte, 27 Beav. 465 ; Hyam ex parte, 6 Jur. (N. S.) 181 ; s. c. 1 De G. F. & J. 75. See also De Pass's case, 4 De G. & J. 5 14 ; Chinnock ex parte, 1 Johns. (Eng. Ch). 714; post, § 242. 5 Electric Tel. Co. v. Bunn, 6 Jur. (N. S.) 1223. 6 Mexican & South Am. Co. in re, 2 De G. F. & J. 302; Slater ex parte, 12 Jur. (N. S.) 242. All that seems to be required is that the transfer be absolute, or " out and out." Bush's case, L. R. 6 Ch. App. 246. And even the fact that the transferror guaranteed the transferee against future calls will not defeat the effect of the transfer. Harrison's case, id. 286. Even the most suspicious, cir- cumstances will not defeat the transfer. Master's case, 7 id. 292, which is the latest decision. 7 Electric Tel. Co. in re, 30 Beav. 143. [*157] 170 ASSESSMENTS OR CALLS. PART II. solvency unless the directors would find some one to purchase his ■ shares and give him an indemnity, which was done twelve months before the company became insolvent, it was held to he a valid transfer. 8 Trustees under a will are properly made contributories. 9 I. The trustee into whose name the cestui que trust had caused shares to be transferred by deed, reciting that the price of the same bad been paid to the vendor, who executed the deed, may never- theless be compelled to make good such price to the vendor, if it * wen 1 not in fact paid, although he accepted the transfer in the belief that it had been paid. 10 5. Notwithstanding the defendant's name appear upon the register of shares, be will be permitted, in a suit for calls, to bIiow that it was illegally placed there, and without his authority. But a purchaser of shares, or even an original subscriber, cannot be sued for calls, under the English statute, until his name is placed on the registry. 11 But one's name appearing upon the books of the company as a shareholder is prima facie evidence of the fact, in an action against such person to enforce against him the personal responsibility of a stockholder for the debts of the company. 1 '- And in such an action the judgment against the corporation is prima facie evidence of its indebtedness as against the stockholder. 12 SECTION II. Colorable /Subscriptions. 1. Col", iptions valid. 2 Directo smaybt compelled to register them. :ir, to vary the written subscrip- tion inadmi 4. Register evidence although not made in the time prescribed. 5. Confidential subscriptions void. 6. Shares cannot be issued to secure debts of company. ^ 4 s 1. Equity will not restrain a railway company from en- forcing calls, by action at law, upon the ground that one of the 9 Phoenix Life Assurance Co., 7 Law T. (N. S.) 267. » Drummond ex parte, 2 Gif. 189; s. c. 6 Jur. (X. S.) 908. 10 Wilson v. Keating, 27 Beav. 121. 11 Eodges on Railways, 101, 4th ed. ; Newry & Inniskillen Railw. v. Edmunds, 2 Exch. lis. 15 Hoagland v. Bell, 36 Barb. 57. [*158] § 48. COLORABLE SUBSCRIPTIONS. 171 conditions of the charter, requiring a certain amount of subscrip- tions of stock before the incorporation took effect, had not been complied with, but that a fraud upon the provision had been prac- tised by means of colorable subscriptions. The Court of Chancery regards colorable subscriptions, made in the course of getting a bill through the House of Lords (to comply with one of the standing rules of that house, requiring three-fourths of the requisite outlay to be subscribed before the bill passes), to be binding upon the directors and managers, who make the same, and that they are in fact valid and binding subscriptions, although such subscriptions were made with the purpose of being subsequently cancelled, and * had never been registered upon the books of the company, or any calls made upon them. 2. It is within the proper range of the powers of a court of equity to compel the directors to register such shares, and enforce the payment of calls upon them. 1 1 Preston v. Grand Collier Dock Co., 11 Sim. 327; s. c. 2 Railw. C. 335; Mangles v. The Same, 10 Sim. 519. The principle of these cases is very dis- tinctly recognized in the case of Blodgett v. Morrill, 20 Vt. 509 ; s. c. 1 Redf. Am. Railw. Cases, 138, and it lies at the foundation of all fair dealing, that one is bound by his own representations, upon which he had purposely induced others to act, although at the time he did not intend to be himself bound by them, but expected, through favor, to be relieved from their performance. See also Henry v. Vermillion R. Co., 17 Ohio, 187. But if one obtain shares in a distribution by commissioners by fraud, he may be compelled, in equity, to surrender them to other subscribers, to whom they would have been awarded but for such fraud. Walker v. Devereaux, 4 Paige, 229 ; s. c. 1 Redf. Am. Railw. Cases, 29. A subscription to the stock of a railway made in the common form upon the books of the company, the subscriber at the time of subscription taking the fol- lowing writing, signed by the clerk of the company, by order of the direc- tors : — " In consideration that Ebenezer E will subscribe, for thirty shares in the White Mountains Railway, said company agree to release him from twenty-five of said shares, or such portion of said twenty-five shares, as he may within one year elect to withdraw from his subscription, and if he has been assessed, and has paid any thing on said shares, that he elects to be released from, that these payments shall be allowed him, on the shares that he retains, and that the treasurer shall regulate his stock accounts and assessments accordingly," is a valid subscription for the thirty shares, it having been understood, at the time of making the sub- scription, between the subscriber and the directors, that tbe same was to be held out to the public, as a bona fide subscription for the thirty shares, and no dis- closure made of the writing given to the subscriber. It was held that the agreement to release the subscriber was a fraud upon [*159] 172 ASSKSSMENTS OR CALLS. PART II. In one rase- where this subject came under discussion in equity, where the provisional directors, in the process of carrying a bill through parliament, proposed to the contractor that he should have the contract for the company's works provided he would accept payment partly in shares, the number to be settled by the company's engineer; but contracted for him to sign for a sufficient number of shares to make up the amount required by the standing orders of parliament, which was 630 of <£10 each, which he accordingly subscribed and the bill passed ; * but when the contract was closed he was to take but 300 shares, the scheme being abandoned before the works were commenced, it was held that (he arrangement made by the directors with the con- tractor was ultra vires, and if not a fraud upon the orders of parliament ii was void as against such subscribers as were not privy to it; and that the circumstance of the contractor having subscribed the deed last but one, and the last subscriber being privy to the arrangement, did not alter the rights of those sub- Bcribers who were not privy to it; and that the contractor was liable, as a contributory, for the entire number of shares for which be signed the deed. •".. Oral evidence is inadmissible to vary the terms of a sub- scription to the stock of a railway unless it tend to show fraud or mistake. 8 But where the subscriber is really misled, and induced other subscribers, and void, and the subscription may be enforced. White Mountains Railw. v. Eastman, 34 N. H. 124; Downie v. White, 12 Wis. 176. > Conn. & Pass. Rivers R. v. Bailey, 24 Vt. 465; Mann v. Pentz, 2 Sand. ( !h. 257 : Penobscot & Kennebec R. v. Dunn, 31) Maine, 601. 2 North Slii.l Is Quay Co. v. Davidson, 4 Kay & J. 688. 3 Wighl r. Shelby Railw., 16 B. Mon. 5; Blodgett v. Morrill, 20 Vt, 509; s.c. 1 Redf. Am. Railw. Cases, 138; Kennebec & Portland R. v. Waters, 34 Maine, 369. Rut mere mistake, or misapprehension of the facts, by the sub- scriber, is no ground of relief unless it amount to fraud and imposition, brought about by some agent of the company. Hence when one subscribed for shares lilway, under the mistaken belief that he might forfeit his stock at will, and 1m- do further liable, he was held liable, notwithstanding this belief was the i assurances made by the person taking the subscription at the time of its being made, that such were the terms of subscription secured by the charter, Sl "''» •'< g founded in mistake, and not wilfully false. Railroad Company v. Roderigues, L0 Rich. (S. C.) 278; N. C. Railw. v. Leach, 4 Jones Law, 340. It is here -aid. that one of the commissioners, in taking subscriptions t0 ''"' -' "' : nl a railway company, has no right to give any assurances as to the line of location which will be adopted. And if the location is different from [*160] §48. COLORABLE SUBSCRIPTIONS. 173 to subscribe for stock, upon the representation of a state of facts in regard to the time of completing the road, or its location, made by those who take up the subscription, and in good faith, and upon proper inquiry, and the exercise of reasonable discretion, believed by the subscriber, and which constitutes the prevailing motive and consideration for the subscription, and which proves false, it would seem that the contract of subscription should be held void, both in law and equity. 4 4. When the statute requires the registry of shares to be made * within a limited time, such requirement is regarded as merely directory, and the registry, although not made within the pre- scribed time, will still be competent evidence, and to the same extent as if made within the time required. 5 5. Subscriptions made under an agreement that they are not to be binding unless a specified sum is subscribed, are not valid to bind other subscribers, as it is essential that there should be no conditions as to the liability of any of the subscribers not applicable to all. Confidential subscriptions in such case made for the purpose of making up the required sum are a fraud upon the other sub- scribers ; and should not be treated as valid subscriptions., Where by deducting such confidential subscriptions the required sum is not subscribed, the contract of subscription does not become opera- tive, so as to bind the subscribers. Parol evidence is admissible to show that certain of the subscriptions were confidential in char- acter and therefore fraudulent. 6 6. Where the corporation was indebted for borrowed money, and issued stock to a 'third person in trust for the security of the debt, on condition to be retransferred to the company upon payment of the debt, it was held the shares were illegally issued. 7 that provided in the charter of the company, the party may lose the right to object to paying his subscriptions on that ground, unless he resort to mandamus or in- junction, at the" earliest convenient time. Booker ex parte, 18 Ark. 338; Brown- lee v. Ohio, Ind. & 111. Railw., 18 Ind. 68. 4 Henderson v. Railway Company, 17 Texas, 560. 3 Wolverhampton N. W. Co. v. Hawksford, 7 C. B. (N. S.) 795; 6 Jur. (N. S.) 632. Affirmed in Exch. Chamber, 10 W. Rep. 153; 11 C. B. (N. S.) 456; 8 Jur. (N. S.) 844. 6 New York Exchange Co. v. De Wolf, 31 N. Y. 273. But see ante, n. 1 . 7 Brewster v. Hartley, 37 Cal. 15 ; ante, § 20, pi. 11. [*161] 171 ASSESSMENTS OR CALLS. PART II. SECTION III. Mode of enforcing Payment. I S scription t» indefinite stock, raises no implied promise to pay the amount as- S( BSl d. 2. If shares are definite, subscription implies a promis< to pay assessments. Bight of forfeitun a cumulative remedy. Ii. Whether issuing new stock will bar a suit - r, quaere. 4. It would st i m not. 5. I 'nit the requirements of the charter and li;uvs. This ma)' now be regarded as settled, both in this country and in England, and that the power given the company to forfeit and sell Hie shares, in cases where the shareholders fail to pay calls, is not an exclusive but a cumulative remedy, unless barter or general laws of the state, provide that no other remedy Bhall be resorted to by the company/ 3 Bartford & New Haven Railway Co. v. Kennedy, 12 Conn. 499. In this case it was held, that, from the relation of stockholder and company thus created, a promise was implied to pay instalments; that the clause authorizing a sale of the stock was merely cumulative; and that, whether the company resorted to it or not, the personal remedy against the stockholder remained the same. The same points are confirmed by the same court, in Mann v. Cooke, 20 Conn. 178. And in Danbury Railw. Co. v. Wilson, 22 Conn. 435, the defendant was held liable for calls upon a subscription to the stock of a company whose charter had expired, and been revived by the active agency of defendant. See also Dayton o. B irst, 31 N. V. -i;i."i ; Fiscataqua Ferry Co. v. Jones, 39 N. H. 491. All the cases, with slight exceptions, hold, that where the subscription is of such a character as to give a personal remedy against the subscriber, in the ab- sence of all other specific redress, the mere fact that the company have the power to forfeit the shares for non-payment of calls, will not defeat the right to enforce the payment of calls by action. Goshen Turnpike Co. v. Hurtin, 9 Johns. 217; Dutchess Cotton Manufacturing Co. v. Davis, 14 Johns. 238; Troy T. Co. v. McChesney, 21 Wend. 29 ; Northern R. v. Miller, 10 Barb. 260; Plank-Road Co. v. Payne, 17 Barb. 567. In this last case it was held to be matter of inten- tion and construction, whether the remedies were concurrent and cumulative, or in the alternative. And in Troy & Boston R. v. Tibbitts, 18 Barb. 297, it is said to be well settled, that the obligation of actual payment is created, by a subscription to a capital stock, unless plainly excluded by the terms of the sub- scription, and that the forfeiture is a cumulative remedy. Ogdensburg & C. Railw. v. Frost, 21 Barb. 541. See also Herkimer M. & H. Co. v. Small, 21 Wend. 273; s. c. 2 Hill, 127; Sagory v. Dubois, 3 Sandf. Ch. 466; Mann ». Currie, 2 Barb. 294; .Mann v. Pentz, 2 Sandf. Ch. 257; Ward v.. Griswoldville Manuf. Co., 16 Conn. -V.);;; Lexington & Wet Cambridge R. i?. Chandler, 13 311 : Klein v. Alton & Sangamon R., 13 Illinois, 514; Ryder v. Same, id. 516 Cahawba R., 8 Ala. 586 ; Beene v. Cahawba & M. R., 3 id. 660; V. Crawford, 14 Wend. 20; Palmer v. Lawrence, 3 Sandf. Sup. Ct. 161, where /'" . ■)., iys the law must now be considered as settled, " that the obli- gation of actual payment is created in all cases, by a subscription to a capital stock, unless the terms of subscription are such as plainly to exclude it." Flys- ville r. O'Kisco, 5 Miller, 152; Greenville & Columbia R. v. Smith, 6 Rich. 91 ; ( lharlotte & S. ' '. R. R. Co. v. Blakely, 3 Strob. 245; Banet v. Alton & Sanga- mon I!., 13 Illinois, 504, 514; Hightower v. Thornton, 8 Georgia, 486 ; Freeman r. Winchester, 10 Sm. & M. 577; Tar River Nav. Co. v. Neal, 3 Hawks, 520; /. r. Redd, 4 B. Mon. 178; Selma R. v. Tipton, 5 Ala. 7i->7 ; Troy & R. R. r. Kerr, 17 Barb. 581, Where the statute gives an election to the company either to forfeit the shares for non-payment of calls, or to sue and collect the [*1G3J § 49. MODE OF ENFORCING PAYMENT. 177 * 3. The question in the English cases seems to be whether, after the forfeiture of the shares, and a confirmation of the same amount of the shareholder, it was held that no notice of such election was neces- sary to be given before suit brought. New Albany & Salem R. v. Pickens, 5 Ind. 247. The terms of the charter must be pursued where they provide specifi- cally for the redress for non-payment of calls ; as if the shareholder is made liable only for deficiency after forfeiture and sale of the stock. Grays v. Turnpike Co., 4 Rand. 578; Essex Bridge Co. v. Tuttle, 2 Vt. 393. But some of the American cases seem to hold, that a corporation has no power to enforce the payment of calls, against a subscriber for stock, unless upon an express promise, or some express statutory power, and that a subscription for the stock is not equivalent to an express promise to pay calls thereon to the amount of the shares . Kennebec & Portland R. v. Kendall, 31 Maine, 470. But this class of cases is not numerous, and is, we think, unsound. See also Allen v. Montgomery R., 11 Ala. 437. It has been held, that after the forfeiture is declared, the company cannot longer hold the subscriber liable. Small v. Herkimer M. & H. Co., 2 Comst. 330. So if the company omit to exercise their power of forfeiture, as the successive defaults occur, until all the calls are made, it thereby loses its remedy by sale. Stokes v. The Lebanon & Sparta Turnpike Co., 6 Humph. 241. See also Harlaem Canal Co. v. Seixas, 2 Hall, 504; Delaware Canal Co. v. Sansom, 1 Binney, 70. The fact that the commissioners have by the charter an option to reject sub- scriptions for stock, does not make them less binding, unless they are so rejected. Connecticut & Passumpsic R. R. v. Bailey, 24 Vt. 465. An agreement made at the time of subscription inconsistent with its terms, and resting in oral evidence merely, cannot be received to defeat the subscription. lb. In a case in Kentucky this subject is very elaborately discussed by the counsel, and, as it seems to us, very wisely and very justly disposed of by the court. McMillan v. Maysville & Lexington Railw. Co., 15 B. Monroe, 218. It was there held, that subscriptions to the stock of a railway company, like other contracts, should receive such construction as will carry into effect the probable intention of the parties. That the stock subscribed was to be the means by which the road should be constructed, and hence, that a subscription for stock, on condition that the road should be so "located and constructed as to make the town of Carlisle a point," imposed upon the subscribers the duty to pay, upon the location of the road in that place, and that the construction of the road was not a condition pre- cedent to the right to recover for calls on the stock. See also New Hampshire Central R. v. Johnson, 10 Foster, 390 ; South Bay Meadow Dam Co. v. Gray, 30 Maine, 547 ; Greenville & Columbia R. v. Cathcai t, 4 Rich. 89 ; Danbury & Norwalk R. v. Wilson, 22 Conn. 435. An agreement to take and fill shares in a railway company, is an agreement to pay the assessments legally made. Ban- gor Bridge Co. v. McMahon, 10 Maine, 478; Buckfield Br. R. v. Irish, 39 id. 44; P. & K. R. v. Dunn, id. 587; Penobscot R. v. Dummer, 40 Maine, 172; White Mountains Railw. v. Eastman, 34 N. H. 124. So, too, an agreement to take shares before the act of incorporation is obtained, creates an implied duty to pay calls duly made thereon. Buffalo & N. Y. City Railw. v. Dudley, 14 N. Y. 336. The general subject is discussed somewhat at large in this case, vol. i. 12 [*164J 17s ASSESSMENTS OR CALLS. PART II. * by the company, and the issuing of new stock in lieu of the for- feited Bhares, the subscriber is still liable for any deficiency. The cases all regard him as liable, under the English statutes, to a personal action, until the confirmation of the forfeiture of his stock. 4 1. But in the House of Lords, 6 it seems to have *been settled, upon gre it consideration, that where the charter or general statutes give ilh' right to forfeit the shares, or to collect the amount of the shareholder, and the forfeiture, sale, and cancellation of the shares, do nut produce the requisite amount, the company may issue new Bhares for the deficiency, and at the same time maintain an action for it. aga dsI the former owner. 5. It seems to be well settled, that to entitle the company to sue for calls, the provisions of their charter, and of the general laws of the state, must be strictly pursued. And if the shares have been forfeited and sold without pursuing all the requirements, pro- vided in such case, no action will lie to recover the balance of the and the results arrived at confirm tlie doctrines laid down in the text. Rensse- laer & W. PI. Rd. Co. v. Barton, 1G X. Y. \bl . The same rule is mentioned in Fry's Ex'rs '•. Lex. & Big S. Railw., 2 Met. (Ky.) 314, where the question of the extent "f implied obligation assumed by subscription to the capital stock of a corporation is very fully and fairly illustrated. 4 Greal Northern R. r. Kennedy, I Exch. 417. So the allottees of shares in a projected railway company are made liable lor a proportionate share of the expense. Uptiirs case, 1 Sim. (X. S.) 395; s. c. 1 Eng. L. & Eq. 13; The Di- rect S ■ .'.-bury & Leicester Railw. Co., in re, 1 Sim. (N. S.) 281 ; s. c. 7 id. 28 ; London & lb R. v. Fairclough, 2 M. & G. 674; Edinburgh L. & N. H. R. v. Bebblewhite, 6 M. & W. 709; s. c. 2 Railw. C. 237; Birmingham, Bristol & Tii. .1. K. v. Locke, 1 Q. B. 256; s. c. 2 Railw. C. 867; RailwayCo. v. Graham, 1 Ad. cV Ellis (X. S.), 271 ; Iluddersfield Canal Co. v. Buckley", 7 T. R. 36. It lias been held, that a shareholder cannot absolve himself from calls by paying the directors a sum of money for his discharge, even though the money be accepted, and tie shares transferred. Bennett ex parte, 18 Beav. 339; s. c. 5 . M. &G. 284. See also § 4, ante. I ;lis» Great Northern R., IMcQu. H.L. 1112; 8. c. 16 Eng. L.&Eq. 55. Seealso Peoria & OquawkaR. v. Elting, 17 111. 120; Cross v. .Mill Co., 17111.54. But v. he;.- t'i" deed of settlement gave the right to forfeit the shares at once, or to enforce the payment, if they should think fit, it was held, that a judgment for the amount due is a bar to any subsequent forfeiture. Giles ». Hutt, 3 Exch. 18. And where the charter of the company provided, that the shares of a delinquent shareholder " shall be liable to forfeiture, and the company may ne forfeited and vested in the company," it was held the option, in declaring I feiture, was in the company, and not in the shareholders. Railway Company v. Rodrigues, 10 Rich. (S. C.) 278. [*165, 166] § 49. MODE OP ENFORCING PAYMENT. 179 subscription. 6 And if the shares be sold for the non-payment of several assessments, one of which is illegal, the corporation cannot recover the remainder of the subscription. 7 But where the by- laws of the company prescribe a specific mode of notice to the delinquent, through the mail, of the time and place of sale, this is not to be regarded as exclusive, but other notice which reaches the party in time will be sufficient. 8 But in another case 9 the law in regard to proceedings in forfeit- ure * of shares is held very strictly. It is here considered that notice must be given in the precise time and in the exact form re- quired by statute, and that the sale must in all respects correspond precisely with the requirements of the provisions of the law. The rule is carried so far here that posting notice in a public place was held no sufficient compliance with the law requiring it to be in a "conspicuous" place; and it was here considered that subscrip- tions to preferred stock could not be reckoned to make up the requisite amount of capital to enable the corporation to go into operation. 6. But notice that shares in a railway corporation will be sold for non-payment of assessments on a day fixed, and by an auc- tioneer named, who is and has long been an auctioneer in the place at which the notice bears date, is insufficient if it do not name" the place of sale. 10 7. The validity of calls cannot be called in question upon the 6 Portland, Saco, & Portsmouth Railw. v. Graham, 11 Met. 1. 7 Stoneham Branch R. Co. v. Gould, 2 Gray, 277. 8 Lexington & West Cambridge Railw. v. Chandler, 13 Met. 311. And where the charter required notice of the instalment three weeks prior to the same becoming due, it was held prima facie evidence of compliance by producing the publication, and oral evidence of its being repeated the requisite number of times, without producing all the papers. Unthank v. Henry County Tump. Co., 6 Porter (Ind.), 125. And in a later case, Anderson v. The Ohio & Miss. Railway Co., 14 Ind. 169, where the charter limited the amount of calls to ten per cent per annum upon subscriptions to stock, and ten per cent had been paid, a call was held sufficient without specifying the place of payment or the percentage to be paid, only five remaining within the power of the directors to call for, and the notice fixing the time and place of payment. 9 Lewey's Island Railw. v. Bolton, 4S Me. 451. The rules of law as to what is requisite to constitute a valid subscription to a stock in a railway com- pany and to justify calls, are much considered in the recent case of Maltby v. N. W. Va. Railw., 16 Md. 422. 10 Lexington & West Cambridge Railway v. Staples, 5 Gray, 520. [*167J 180 ASSESSMENTS OR CALLS. PART II. ground that the directors making the same are acting in the inter- est and for the benefit of a rival company, and have in consequence unnecessarily retarded the construction of the company's works. 11 But the directors must be duly appointed. 12 B. And the proceedings in making the calls must have been substantially in conformity with the charter and by-laws of the company and the general laws of the state at the time of making the same. Any subsequent ratification by the directors of an in- formal call will only give it effect from the date of the ratifica- tion. 12 9. A subscriber who has executed the deed of settlement, pur- chased shares and received dividends upon the same, is not at liberty to object to their validity upon the ground that the company were by the deed of settlement authorized to issue shares for XI 00, and these were issued as half shares at £50 ; this acquiescence estops him from doing so. 14 10. It seems that unless the constitution of the corporation or the general laws of the state contain a provision justifying a for- feiture * of shares, it is not competent for the majority of the share- holders by prospective resolution to establish a regulation whereby the shares shall be forfeited upon failure to comply with the re- quirements of such resolution. 15 11. It is no valid reason for making more calls than are justified by the constitution and laws affecting the question, that some of the calls were not regularly made and were therefore void, and were not paid by the defendant. It should appear that such irreg- ular calls had been declared void, otherwise the directors may have secured most of the money demanded by them. 16 11 Orr v. Gl. A. & M. J. Railw., 3 McQu. Ho. Lds. 799 ; s. c. 6 Jur. (N. S.) 877. » II. B. Coal Co. v. Teague, 5 H. & N. 151 ; s. c. 6 Jur. (N. S.) 275. 13 Cornwall G. C. M. Co. v. Bennett, 5 H. & N. 423; s. c. 6 Jur. (N. S.) jlo California G. M. Co. v. Lewis, 6 H. & N. 174; s. c. 6 Jur. (N. S.) 1376. 11 Hull Flax & Cotton Co. v. Wellesley, 6H.&N. 38. 15 Barton's case, 4 De G. & J. 46. 16 Welland Railw. v. Berrie, 6H.&N. 416. [*168] §50. CREDITORS MAY COMPEL PAYMENT OF SUBSCRIPTIONS. 181 SECTION IV. Creditors may compel Payment of Subscriptions. 1. Company compelled to collect of subscribers by mandamus. 2-4. Amount due from subscribers, a trust- fund for the benefit of creditors. 5. If a state oivn the stock it will be the same. 6, 7. A diversion of the funds from creditors is a violation of contract on the part of the company, and a state law authorizing it invalid. 8, 9. The general doctrine above stated found in many American cases. 10. Judgment creditors may bring bill in equity. 11. Promoters of railways liable as partners, for expenses of procuring charter. 12. Railway company may assign calls before due, in security for bona fide debt. No notice required to perfect assignment against attachments or judgment liens. § 50. 1. By the present English statute, the creditors of a com- pany may recover their judgment debts, against shareholders, who have not paid the full amount of their shares to the extent of the deficiency. 1 Before this statute, it was considered that a writ of mandamus would lie, to compel the company to make and enforce calls against delinquents. 2 2. In this country this question has arisen, not unfrequently, in * the case of insolvent companies, no such provision existing in most of the states as that of the English statute just referred to. 3. This subject is very extensively examined, and considered by the national tribunal of last resort, in a case of much importance and delicacy, 3 and the following results arrived at: — 4. On the dissolution of a corporation, its effects are a trust- fund, for the payment of its creditors who may follow them, into the hands of any one, not a bona fide creditor, or purchaser without notice ; and a state law, which deprives creditors of this right, and appropriates the property to other uses, impairs the obligation of their contracts and is invalid. 1 8 & 9 Vict, c. 16, §§ 36, 37. 2 Walford, 277; Hodges, 106, n. («) ; Reg. v. Victoria Park Co., 1 Q. B. 288, where the opinion of the court very clearly intimates, that the writ of man- damus will lie, to compel the company to enforce the payment of calls, where it appears that judgments against the company remain unsatisfied for want of assets. But, under the circumstances of this case, it was not deemed requisite to issue the writ. 3 Curran v. State of Arkansas, 15 How. (U. S.) 304. [*109] 182 ASSESSMENTS OR CALLS. PART II. 5. The fact that a state is the sole owner of the stock in a banking corporation, does not affect the rights of the creditors. 6. The capital stock of a company is a fund set apart by its charter for the payment of its debts, which amounts to a contract, with those who shall become its creditors, that the fund shall not be withdrawn and appropriated to the use of the owner, or owners, of the capital stock. 7. A law which deprives creditors of a corporation of all legal remedy against its property, impairs the obligation of its contracts, and is invalid. 8. These propositions, with the exception of the constitutional question, in regard to the impairing of an assumed or implied contract with the creditors of the corporation, are all fully sus- tained by numerous decisions of the highest authority in this country. 9. Thus in a case before Mr. Justice Story, in the Circuit Court, 4 it was held that the capital stock of a corporation is a trust-fund, for the payment of its debts, and being so, it may, upon general principles of equity law, be followed into other hands, so long as it can be traced, unless the holder show a paramount title. 5 And in cases where the capital stock or assets of a corpo- ration have been distributed to the stockholders without providing for the payment of its debts, a court of equity will allow the cred- itors to sustain a bill against the shareholders, to compel contri- bution to the payment of the debts of the company, to the extent of funds obtained by them, whether directly from the company, or * through some substitution of useless securities for those .which were good. 6 4 Wood V. Dummer, 3 Mason, 308. " A.lair v. Shaw, 1 Sch. & L. 243, 261. See Dayton v. Borst, 31 N. Y. 435. 8 Nathan v. Whitlock, 9 Paige, 152; s. c. 3 Edward's Ch. 215. But it has been held, that the distribution of the capital stock among the shareholders, before the debts of the company are paid, and leaving no funds for that purpose, will not render the shareholders liable to an action of tort, at the suit of the creditors of the company, there being no such privity as will lay the foundation of an action at law, even in states where no court of chancery existed. Vose v. Grant. 15 Mass. 505. In equity the suit may be in the name of the receiver, Nathan v. Whitlock, 9 Paige, 152, or in the name of a creditor, suing on behalf of himself and others, standing in the same relation. Mann v Pentz, 3 Comst. 415, 422. And all the shareholders, who have not paid their subscriptions, should be made parties to the bill, and compelled to contribute proportionally. lb. The same principle is recognized in numerous other cases. Mumma v. The [*170] § 50. CREDITORS MAY COMPEL PAYMENT OF SUBSCRIPTIONS. 183 10. Where a corporation have abandoned all proceedings under their charter, from insolvency, and still owe debts, the subscrip- tions to the capital stock not being all paid, a judgment creditor may proceed, in equity, against the delinquent share-owners, there being no longer any mode by which calls upon the stock may be enforced, under the provisions of the charter, or by action at law, in favor of the company. 7 11. It is held under the English statutes, in regard to fully registered companies, which never go into full operation, but have to be closed under the winding-up acts, that a shareholder, who has paid up the full amount of his shares, is still liable to pay the necessary calls, to defray the expenses of winding up the company, * the subscribers to such joint-stock companies, under the statute, being held liable to the same extent as partners. 8 12. The company may assign, as security for a debt due from them, an existing unpaid call upon shares not yet due, and if the assignment contains a power of sale, that will not invalidate the assignment, since if held void, a court of equity will expunge it, or restrain its exercise, and it cannot have any effect to avoid the assignment until acted upon ; and a shareholder from whom such call is due will be affected with notice of the assignment, if pre- Potomac Co., 8 Pet. (U. S.) 281 ; Wright e. Petrie, 1 Sm. & M. Ch. 282, 319 ; Nevitt v. Bank of Port Gibson, 6 Sm. & M. 513; Hightower v. Thornton, 8 Georgia, 486 ; Fort Edward, &e. Plank Road Co. v. Payne, 17 Barb. 567 ; Gillet v. Moody, 3 Comst. 479. This case is where the bank, of which the plaintiff was receiver, had transferred specie funds to defendant, in exchange for his own stock in the bank. The transaction was held illegal, and the defendant was compelled to refund, for the benefit of the creditors of the bank. And where the subscriber to a bank, which became insolvent, assigned all his interest in the bank, it was held not to exonerate him from liability to assessments upon his subscription, to pay debts due from the bank, although contracted subsequent to the assignment. Dayton v. Borst, 7 Bosw. 115. See also Morgan v. New York & Albany R., 10 Paige, 290. 7 Henry v. The Vermillion & Ashland Railw., 17 Ohio, 187. See also Miers v. Z. & M. T. Co., 11 Ohio, 273; s. c. 13 Ohio, 197. And where the com- pany retains its organization and officers, it may be compelled, by writ of man- damus, to enforce calls against the shareholders, to the extent of their liability, as well as to perform other duties. Commonwealth v. Mayor of Lancaster, 5 Watts, 152. 8 Matter of the Sea, Fire, and Life Assurance Society, 3 De G., M. & G. 459 ; 8. c. 23 Eng. L. & Eq. 422. The form of proceeding and the extent of responsibility is extensively considered, as to delinquent subscribers to an nsolvent corporation, in Adler v. Milw. Patent Brick Co., 13 Wis. 57. [*171] 184 ASSESSMENTS OR CALLS. PART II. Biding at the meeting when it was made, although having no further knowledge in regard to it. 9 But it was doubted if any notiee were required to perfect an assignment in security of a bona fide debt, against a subsequent judgment or attachment lien. And in a later case, 10 it was decided that no notice is required in such case, and that Watts v. Porter, 11 where the majority of Queen's Bench held such notice indispensable, was no longer law. SECTION V. Conditions precedent to making Calls. 1. Conditions precedent must be performed before calls. 2. But collateral, or subsequent conditions not. 3. Definite capital must all be subscribed be- fore calls. 4. It is the same where defined by the com- pany, as in the charter. 6. Conditional subscriptions not to be reck- oned. 6. Legislature cannot repeal conditions prece- dent. 7. Limit of assessments cannot be exceeded for any purpose. 8. Where charter fails to limit stock, corpo- ration may. 9. Alteration in charter reducing amount of stock. § 51. 1. Conditions precedent must be complied with, before any binding calls can be made. Any thing, which, by the express pro- visions of the charter, or the general laws of the state, is made a condition to be performed on the part of the company, or its * agents, before and as the foundation of the right to makecalls, upon the subscriptions to the stock ; or where the thing is re- quired to be done, before calls shall be made, and is an important element in the consideration of the agreement to take stock in the company, it should ordinarily be regarded as a condition prece- dent. 2. But where the matter to be done is rather incidental to the main design, and only affects the enterprise collaterally, it will commonly be regarded as merely directory to the company, or at most as a concurrent or subsequent condition, to be enforced by 9 Pickering v. Ilfracombe Railw. Law Rep., 3 C. P. 235. 10 Robinson i\ Xisbitt, id. 264. 11 3 El. & B. 743. [*172] § 51. CONDITIONS PRECEDENT TO MAKING CALLS. 185 independent proceedings, and in the performance of which time is not indispensable. 1 1 Carlisle v. Cahawba & Marion Railway Co., 4 Ala. 70; ante, § 18; Banet v. Alton & Sangamon Railway Co., 13 111. 504; Utica & Schenectady Railway Co. v. Brinkerhoff, 21 Wend. 139. This last case is an action upon a special undertaking to pay land damages, on condition the company would locate their road so as to terminate at a particular place, which the company alleged they had done, and defendant was held not liable, for want of mutuality, the com- pany not being bound by the contract. Cooke v. Oxley, 3 T. R. 653. But it admits of some question, we think, whether the case of 21 Wend. 131), comes fairly within the principle upon which it was decided. The case of Cooke v. Oxley, which has been sometimes questioned, is an obvious case of want of con- sideration on the part of defendant, it being a mere naked refusal of goods, for a fixed time, the plaintiff in the mean time having an election, to take tliera or not. This class of cases is numerous and sound, resting upon the mere want of consideration. Burnet v. M. Bisco, 4 Johns. 235. But where such an option is given upon consideration, or as a standing offer, and in the mean time the other party proceeds to perform the contract on his part, it is as binding in this form as in any other. And it was so held, in the case of the Cumberland Valley Railway Co. v. Baab, 9 Watts, 458. In this case the inhabitants of one portion of Harrisburg made a subscription to induce the company to cross the river at a particular point, and to build their depot upon a particular street, which being done, the subscribers were held liable to pay their subscriptions to the company, and, as we think, upon the most obvious and satisfactory grounds. In Henderson & Nashville Railway Co. v. Leavell, 16 B. Monr. 358, it was held, that a subscription to the stock of a railway, conditioned that the road should pass through a certain town, and the money subscribed should be ex- pended in a certain county, was a valid subscription. The Court, Stimpson, J., say : " The stock in this case is not conditional, although the defendant has, in the act of subscribing for it, brought the company under certain obligations to him, in relation to if, with which they are bound to comply. Such stipulations are not incompatible with sound policy, or with any of the provisions of the charter. They do not render the subscription void, but operate, as it was intended they should, for the benefit of the stockholder. But even if the sub- scription had been made, upon the express condition that the money should not be paid until certain acts were done by the company, when these acts were done, the stock would then be unconditional, and the subscribers would then be compelled to pay it, as was held in McMillan ». Maysville & Lexington Railway Co., 15 B. Monr. 218." If a subscription for stock be conditioned, that the subscriber may withdraw his subscription, at his election, if the whole stock is not taken, at a given time, and the defendant pay part of his subscription after that date, he is liable for the balance, unless he show the failure of the condi- tion, and his own election, in a reasonable time after, to withdraw. Wilming- ton & Raleigh Railway Co. v. Robeson, 5 Iredell, 391. On a subscription to stock in a railway upon condition the road should "pass" on a certain route through a certain county, it is not a condition precedent to the right to demand payment, that the road should be actually constructed upon that line ; it is suffi- [»172] L86 ASSESSMENTS OR CALLS. PART II. •And where tlie company voted to issue six hundred additional Bhares and to allow each stockholder to take one new share for cient if the road be permanently located there. North Missouri R. Co. v. Winkler, 29 Mo. 818; A. & N. L. Railw. Co. v. Smith, 15 Ohio (N. S.), 328. Iso Vicksburg, Shreveport, and Texas Railw. v. McKean, 12 La. Ann. 038. There is a case in Vermont, Conn. & Pass. Railw. Co. v. Baxter, 32 Vt. 805, where the court seem to hold, that, where the subscription defined the route of the proposed railway, the representations of the agent who carried about the paper, that the written words really defined one particular route, and not another, the subscribers themselves being equally conusant of the facts with the agent, was binding upon the company, and would preclude them from recovering calls upon such subscription, provided the road were not in fact located upon the particular route indicated by the agent, although in fact so located as to comply with the conditions of the written subscription, and although the agent in express- ing the opinion he did, acted in perfect good faith. The case is not one of suffi- cient importance to require much discussion, but it may be well to bear in mind, what seems to have escaped the apprehension of the court for the moment, that the point ruled as stated in the marginal note and in the opinion of the court, seems to lie adopting the oral representations of the agent, made at the time of the subscription, as part of the written contract of subscription. The charge of the court below puts the case upon the ground, that the subscriber is bound by the legal construction of his written subscription, and that he cannot escape such responsibility by showing that those who acted on behalf of the company main- tained a different opinion, unless that was done fraudulently, with a view to di ceive the defendant. We understood that to be the law at the time, and we cannot fairly say that we understand it differently now. In ( lhamberlain v. Painesville & Hudson R. Co., 15 Ohio (N. S.), 225, it was decided that where a subscription was made for a given number of shares of stock in a railway company, payable at such times, and in such instalments, as the directors may prescribe, provided the road is " permanently located" on a given route, and that a " freight house and depot be built" at a point named : — 1. Thar on the permanent location of the road in accordance with the terms proposi d, the subscription became absolute. 2. That the provision in relation to the erection of the buildings must be regarded as a stipulation merely, and its performance could not be reasonably considered a condition precedent to the righl to collect the amount of the subscription. 3. The giving by a subscriber, of his note for the balance of his subscription, and taking, therefor, from the company, a receipt, stipulating, that when paid, the amount of the note should be applied on bis stock, was prima facie a waiver of conditions precedent. But this i- denie 1 in a later case, Parker v. Thomas, 19 Ind. 213. And in McAllister v. The Ind. & Cin. Railw. Co., 15 Ind. 11, a question similar to the one stated in Conn. & l'a-s. Railw. Co. v. Baxter, supra, arose and received a fir more just and reasonable determination. The plaintiff made an unconditional subscription to the stock of the plaintiff's company, and paid the amount and took and retained his certificate without, offering to surrender the smie. But at the time of the subscription the company promised that a branch of their line should come to M-ilford, the place of the plaintiff's residence, [*178j §51. CONDITIONS PRECEDENT TO MAKING CALLS. 187 * every two held by him, if he subscribed for the same, paid a cer- tain sum and gave his note for the balance, before a day named ; which had not been done. The suit was brought to recover the money paid. Held, that the parol promise to construct the branch to Milford, could not be proven as part of the written contract of subscription ; and hence the money paid could, not be recovered on the ground of a breach of contract. 2. A recovery could not be had on the ground of fraud : the parol promise and representation being, under the circumstances, no more than the expression of an existing in- tention to make the branch. 3. Under the circumstances the company was not liable to repay the money. See also Andi-ews v. Ohio & Miss. Railw. Co., 14 Ind. 169; Eakright v. L. & N. Ind. Railw., 13 Ind. 404, where the question of controlling written sub- scriptions by oral declarations of those who solicit them, as to the probable route of the road, is further discussed and placed upon the true ground, that such rep- resentations can have no effect, unless upon the ground of fraud. See also Parker v. Thomas, 19 Ind. 213; Cunningham v. E. & K. Railw. Co., 2 Head, 23; Brownlee v. O., Ind. & 111. Railw., 18 Ind. G8. There are some cases which go the length of saying that as the directors of a railway company have no power to give any binding assurance as to the route which shall be finally adopted, it being their duty to place it where, in their ultimate judgment, the public good requires,- it is the folly of any subscriber to rely upon any such representation, and that even where it could be shown that such representations were fraudulently made, to induce subscriptions, and had the purposed effect, the subscriptions could not be avoided on that ground. Ellison v. Mobile & Ohio Railw., 36 Miss. 572; Walker v. Same, 34 id. 245. See also Piscataqua Ferry Co. v. Jones, 39 N. H. 491. The verbal promise of the agent who takes up subscriptions for a railway, that the time of payment shall be delayed beyond the time named in the charter, and which induces the subscriptions, is not binding upon the company. Thigpen v. Miss. Central Railw., 32 Miss. 347. One subscribed, in 1853, for twenty shares of the stock of the P. & C. R. R. Co., on the express condition that the company "should locate and construct their railway along the i - oute contemplated by the Meyer's Mill Plank Road Co., for their road," paid one instalment, part of the second, but delayed the payment of the residue, as the calls were made, until the company, before the road was constructed along the route mentioned, suspended operations, alter which pay- ment was refused on the ground that though the road had been located by the company, they had not constructed it, according to the condition in the subscrip- tion. In an action brought by the company, it was Held, 1. That the promise of subscription being precedent to that of construction, upon the part of the company, the defendant could not insist upon performance by the railroad com- pany, while he refused performance on his part, and that the road having been located as stipulated, and completed so far as the means of the company would allow, it was a compliance with the condition, and the company were entitled to recover. 2. That the condition in the contract of subscription was not a condi- tion precedent, and did not require the completion of the road before payment could be required, but only that when located and constructed it should occupy [*174] 188 ASSESSMENTS OR CALLS. PART II. * it was hold there was no implied condition that the whole six hundred shares should be issued, and the failure to do so was no •ground lor allowing an action to be maintained for the money paid, or any defence to the notes given for the balance. 2 3. It is an essential condition to making calls, in those com- panies where the number of shares and the amount of capital is the route designated, the undertaking being on the part of the subscriber, to pay, as calls should be made by the directors, and on the part of the company to locate as stipulated, and construct as fast as their means would allow. 3. That the suspension of operations made by the directors long after the pay- ments upon defendant's stock had been due, was not a defence in an action brought against him for the unpaid balance thereon. Miller v. Pittsburg & Connellsville Railw., 40 Penn. St. 237. It was held in one case that where the charter required subscriptions by responsible persons of a certain proportion of the estimated cost of the work before entering upon the construction, it was not necessary for the company to show compliance with this requirement in order to enforce calls. Nor does the right to make calls depend upon the extent or nature of the indebtedness of the company ; nor can a subscriber defend against calls by showing that a portion of the requisite amount of subscriptions to bind the defendant were made by persons of no actual or reputed pecuniary responsibility, unless he also show that they were not made or taken in good faith. Penobscot Railw. v. White, 41 Me. 512. And the. bad faith cannot be shown by the declarations of the subscribers, made long after making such subscriptions. lb. And where the charter of a corporation requires that one thousand shares shall be subscribed before the organization of the company, the decision of the majority of the sub- scribers that this condition has been complied with, and the actual organization of the company in pursuance of the decision, are binding upon the minority. lb. This will not preclude the minority from defending on the ground that the pro- ceedings of the majority were in bad faith. See also Taggart v. West Maryland Railw., 24 Md. 503. And where the subscriber gives the company his note for tin' sum required to lie paid at the time of subscription, and subsequently pays the same, his subscription is binding, and makes him a member of the company, and he cannot escape the responsibility of his position on account of any previous irregularity. Ogdensburg Railw. v. Wolley, 38 N. Y. 118. Subscribers can- not defend against calls, on the ground that subscriptions were taken for two sections of the road without distinguishing how much was to be applied on each ; or on the ground that the construction of the road was begun before twenty per centum of each subscription was paid, according to the requirements of the charter; or that by a subsequent statute the amount of capital stock required to build the road bad been reduced below the requirements of the charter; or that interest had been paid on subscriptions according to the recommendation of the terms of subscription; or that the charter of the company had been amended by extending the time for completing the road. Agricultural Branch Railw. v. Wine-luster, 13 Allen, 29, * N itter o. Lexington & W r est Cambridge Railw., 6 Gray, 85. [*175, 176] § 51. CONDITIONS PRECEDENT TO MAKING CALLS. 189 fixed, that the whole stock shall be subscribed before any calls can lawfully be made. 3 And if calls are made before the requisite stock is subscribed, although the subscription is completed before action brought, no recovery can be had. 4 But it has been held, that the general provision in the charter of a railway act, that so soon as 1,500,OOOZ. shall have been subscribed, it shall be lawful for the company to put in force all the powers of the act, author- izing the construction of the railway, and of the acts therein recited, being the general railway acts, did not require such sub- scription to be made before making calls, but only before exercis- ing compulsory powers of taking land. 5 *4. And where the charter provides that the members might divide the capital stock into as many shares as they might think proper, and by a written agreement the subscribers fixed the cap- ital stock at 850,000, divided into 500 shares of $100 each, and only one hundred and thirty-eight shares had been subscribed, it was held no assessment for the general purposes of the corporation could be made. 6 3 Stoneham Branch Railway Co. v. Gould, 2 Gray, 277 ; Salem Mill-Dam Co. v. Ropes, 6 Pick. 23 ; s. c. 9 Pick. 187 ; s. c. 1 Redf. Am. Railw. Cases, 89 ; Cabot & West Springfield Bridge Co. v. Chapin, 6 Cush. 50 ; Worcester & Nashua Rail- way Co. v. Hinds, 8 Cush. 110; Lexington & West Cambridge Railway Co. v. Chandler, 13 Met. 311; N. Hampshirj Central Railway Co. v. Johnson, 10 Foster, 390. But a subscriber for shares in a railway company is liable for calls, although by a subsequent amendment of the charter of the company the capital stock is limited to four thousand shares, and that number has not been subscribed, there being no such condition, either in the charter of the company or the terms of sub- scription, at the time of subscribing. York & Cumberland Railway v. Pratt, 40 Maine, 447. But the number of shares required by the charter must be sub- scribed, as stated in the text. Penobscot Railway v. Dummer, 40 Maine, 172. The records of the company are evidence of such fact. lb. Same v. White, 20 Law Rep. 689 ; s. c. 41 Maine, 512 ; Peake v. Wabash Railw., 18 111. 88. 4 Norwich & Lowestoft Navigation Co. v. Theobold, 1 Moody & M. 151 ; Stratford & M. Railway Co. v. Stratton, 2 B. & Ad. 518. And see Atlantic Cotton Mills v. Abbott, 9 Cush. 423, where a condition in a subscription for stock, that the capital stock of the company should not be less than $1,500,000, was held a condition precedent to making calls. B Waterford, Wexford, & W. Railway Co. v. Dalbiac, 6 Railw. C. 753; s. c. 4 Eng. L. & Eq. 455. But the American cases will not justify such a construc- tion. It would here be held a condition precedent to the right to make calls, or even to maintain a corporate existence, probably. 6 Littleton Manufacturing Co. v. Parker, 14 N. Hamp. 543; Contoocook Valley Railway Co. v. Barker, 32 N. Hamp. 363. Where the condition of a bond given for the amount of a railway subscription [*177] 190 ASSESSMENTS OR CALLS. PART II. .".. And where the charter of a railway company requires their Btock to consist of not less than a given number of shares, assess- ments cannot be made before the required number is taken. And in such case conditional subscriptions are not to be reckoned, even where the condition is acceded to by the company, if the sub- scriber still repudiates the subscription, on the ground that the condition is not fully performed by the contract drawn up in form. And the plea of the general issue, is no such admission of the existence of the company, as to preclude subscribers from con- testing the amount of subscriptions, to enable the company to make calls." *6. And where the chatter originally required 11,000 shares to be the minimum, and when less than 10,000 were subscribed, the was, that the same should be paid when the road was " completed" to a certain village, it was held that the condition was performed when the road was made to the suburbs of the village, in such a manner, as to allow daily trains on it, carrying all the freight and passengers that offer, although some portion of the work was only temporary. O'Neal v. King, 3 Jones, 517 ; Chapman v. Mad River & Lake Erie Railway Co., 6 Ohio (N. S.), 119. 7 Oldtown & Lincoln Railw. Co. v. Veazie, 39 Maine, 571. Any condition the subscriber sees fit to annex to his subscription must be complied with before the subscriber is liable to assessments. Penobscot & Kennebec Railw. Co. v. Dunn, 39 Maine, 587. A condition, that not more than five dollars on a share shall be assessed at one time, is not violated by two or more assessments being made at one time, if only five dollars is required to be paid at one time. lb. Penobscot Railw. v. Dummer, 10 Maine, 172. And the same principle already stated, that where the conditions of a subscription required seventy-five per cent of the estimated cost of any section of the road to be subscribed, by responsible persons, before its ructi m should be commenced, if the subscriptions were obtained in good faith, assessments will be valid, although some of the subscriptions to make up the amount, prove worthless, is here also maintained. lb. And where the (barter of the company requires that the capital stock be not li 38 than l\w hundred, nor more than ten thousand .-hares, of $100 each, and authorizes the directors to assess upon five hundred shares, as soon as subscribed, and from time to time to enlarge the capital to the maximum amount named in the charter, all the shares to be equally assessed, it is not necessary for the com- pany to define their capital, within the prescribed limits, before making calls. White Mountains Railw. v. Eastman, 34 N. II. 121. • ' is doubtful if the directors of a railway have power to release subscribers to Btock, but at all events, where the release is optional with the subscriber, he must make his i lei tion to be released, and in a reasonable time. Penobscot & Ken. Railw. v. Dunn, 39 .Maine, 587. See also Troy & Greenfield Railw. v. Newton, - i. a . 6. [*178] § 51. CONDITIONS PRECEDENT TO MAKING CALLS. 191 company was organized, and the subscriptions accepted, and assessments made, and afterwards, by an act of the legislature, accepted by the corporation, the minimum was reduced to 8,000 shares, in an action to recover assessments, made on defendant's shares, before and after such alteration of the charter, it was held : 1. That the minimum was a condition precedent, to be fulfilled by the corporation, before the subscribers were liable to assess- ments. 2. That the alteration of the charter will not affect prior sub- scribers. 3. Nor will the defendant be estopped from relying upon this condition, by having acted as a shareholder and officer in the cor- poration, and contributed towards the expenses of the company. 4. That corporators, by any acts or declarations, cannot relieve the corporation from its obligation, to possess the capital stock required by its charter. 8 7. Where the charter of a railway company provided for assess- ments by the directors of the company upon the shares of the stock", as they might deem expedient and necessary in the execu- tion and progress of the work, provided " that no assessment shall be laid upon any share in said corporation of a greater amount than one hundred dollars in the whole, . . . and if a greater amount of money shall be necessary to complete said road it shall be raised by creating new shares," it was held that the charter limited the amount of all the assessments to one hundred dollars on a share, and that assessments beyond that sum, made for the purpose of paying the debts of the company, were illegal. 8 * 8. Where the charter of a railway company fails to fix the number of shares of the capital stock, it must be presumed to have been the purpose of the legislature that the corporation should limit the number. And this must be done before any valid as- sessments can be made. In such case, if the number fixed exceed the number subscribed, the company may change the number; but the assessments must be made upon the whole number, and if an assessment be made before the number ultimately fixed is subscribed, it will be irregular and void. A subscriber who has paid one assessment is not thereby precluded from insisting upon this irregularity in defence to others. 9 8 Great Falls & Conway R. Co. v. Copp, 38 N. H. 124. 9 Som. & Ken. R. Co. v. Cushing, 45 Me. 524. [*179] 192 ASSESSMENTS OR CALLS. PART II. 9. Where the charter of a railway company as originally granted limited the amount of stock at a point which the subscription never readied, but by a subsequent alteration of the charter the amount of the capital stock was reduced, and after the subscrip- tions reached that amount the company was duly organized, it was held that the alteration in the charter did not release prior sub- scribers. 10 But this seems questionable. 11 SECTION VI. Calls may be made payable by Instalments. § 52. It was at one time considered that calls made payable by instalments were invalid. 1 But it seems now to be settled that such mode of making calls, where the directors of the company have an unlimited discretion, as to the time and mode of requiring payments of the subscriptions, is unobjectionable. 2 But where the subscription contains a provision, that payment shall be made, at such times and places as should thereafter be directed by the directors, and shall be applied to the construction of the road, it was held, that the subscription did not become payable, until the directors, at a regular meeting, had fixed the time * and place of payment. 3 But it is further held, in this case, that it is not necessary to give notice to the subscribers of the time and place of payment. 3 This point in the decision seems not altogether in accordance with the usual practice in such cases, or the general course of decision in regard to calls, which upon general principles must be notified to subscribers before an action can be maintained. But where the subscription is made payable in instalments of ten per cent every sixty days as the work progresses, it is not impor- tant that any formal call or demand be made for the successive payments. 4 10 Bedford Railw. Co. v. Bowser, 48 Perm. St. 29. " Ante pi. 6 n. 8. 1 Ambergate, N. & Boston & E. J. R. v. Coultbard, 5 Exch. 459; Stratford & M. It. v. Stratton, 2 B. & Ad. 518. 2 London & N. W. R. v. M'Michael, 6 Exch. 273; Ambergate R. v. Nor- eliffe, 6 Exch. 629; s. c. 4 Eng. L. & Eq. 461 ; Birkenhead, L. & Ch. R. v. Webster, 6 Exch. 277 ; s. c. 6 Railw. C. 498. 3 Ross v. Lafayette & Ind. Railw., 6 Porter (Ind.), 297. 4 Breedlove v. M & F. Railw., 12 Ind. 114 ; Smith v. Ind. & 111. Railw., id. 61. [*180] §53. PARTY LIABLE FOR CALLS. 193 Where the charter gives the corporation power to collect sub- scriptions to the capital stock by such instalments as the president and directors shall deem proper, they may make contracts with subscribers for the payment of subscriptions in any reasonable in- stalments, as to time and place, and if such condition were ultra vires, it would render the whole contract void, and not the con- dition merely. 5 SECTION VII. Party liable for Calls. 1. Subscribers liable to calls. 2. G. ]Yhat constitutes subscription to a cajti- tal stock. 3. How a purchaser of stock becomes liable to the company. 4. One may so conduct as to estop him from denying his liability. 5. The register of the company evidence of membership. 6. Subscriptions must be made in conformity to charter. 7. Transferee liable for calls. Subscriber also in some cases. 8. Original books of subscription primary evidence. 9. If lost secondary evidence admissible. 10. What acts will constitute one a share- holder. 11. May take and negotiate or enforce notes for subscriptions. 12. But note fraudulently obtained not en- forceable. 13. Subscriptions as executor distinct con- tracts from those in private capacity. § 53. 1. All the original subscribers to the stock in a railway company are usually made liable to calls, by the charter of the company, or by general statute. 2. Some question has arisen in the English courts, as to what is necessary to constitute one a subscriber. In an early case l * upon this subject, it was held, that the word " subscriber," in the act of parliament constituting the company, applied only to those who had stipulated that they would make payment, and not to all those who had advanced money ; and that one, who was named in the recital of the act, as one of the original proprietors, and who had paid a deposit on eight shares, but who had not signed any contracts, was not a subscriber within the meaning of the act, and not liable to be sued by the directors for calls on the remainder of such shares. 5 Roberts v. Ohio & Mobile Railw., 32 Mississippi, 373. 1 Thames Tunnel Company v. Sheldon, 6 B. & C. 341. 13 [*181] 194 ASSESSMENTS OR CALLS. PART II. 3. This is the generally received opinion upon that subject, in tins country. In one case, 2 a plea to an action to recover calls on stock subscribed, that another person had agreed to take the stock, and thai the commissioners had counted this stock to such other person, is insufficient. The signature of the first subscriber should have been erased, and that of the other substituted, or something done to hold the latter liable. A subscriber for stock cannot sub- rogate another person to his obligation, without a substitution of his name upon the books of the company, or some other equivalent act recognized by the charter and by-laws of the company. 4. But the principal difficulty, in regard to liability for calls, arises, where there have been transfers, and the name of the trans- feree not entered upon the books of the, company. For whenever the name of the vendee of shares is transferred to the register of shareholders, the cases all agree that the vendor is exonerated, (unless there is some express provision of law, by which the liabil- ity of the original subscriber still continues,) and the vendee becomes liable for future calls. 3 And the vendee having made such representation to the company, as to induce them to enter his name upon the register of shares, is estopped to deny the validity of the transfer. 4 And even where the party has represented him- self to the company as the owner of shares, and sent in scrip cer- tificates, which had been purchased by him, claiming to be registered as a proprietor, in respect thereof, and had received from the com- pany receipts therefor, with a notice that they would be exchanged * for sealed certificates on demand, he was held estopped to deny his liability for calls, although his name had not been entered upon the register of shareholders, or any memorial of transfer entered, as required by the act. 5 And where one has paid calls on shares, or attended meetings of the company, as the proprietor of shares, he is estopped to deny such membership. 6 2 Ryder v. Alton & Sangamon It., 13 111. 51G. 3 Sheffield & A^hton-under-Lyne & Man. R. v. Woodcock, 2 Railw. C. 522; s. c. 7 M. & W. 574 ; London & Grand J. R. v. Freeman, 2 Railw. C. 468; s. c. iJ M. & <;. 606; post, §54. 4 Sheffield, Ash. & M. R. v. Woodcock, supra; London & Grand J. R. v. Freeman, supra. • ( beltenbam & Great Western Union R. v. Daniel, 2 Q. B. 281, and Same v. Medina. 2 Railw. < '. 728. And this being matter of estoppel in pais, may be used in evidence, in answer to the defence, without being pleaded. 6 London & Grand J. R. v. Graham, 2 Railw. C. 870; s. c. 1 Q. B. 271. [*182] § 53. PARTY LIABLE FOR CALLS. 195 5. The holders of scrip certificates are properly entered as pro- prietors of shares before the passing of the act, although they have neither signed the parliamentary contract, nor been original sub- scribers ; and the register-book of shareholders, which is required by the statute to be kept in a prescribed form by the company, though irregularly kept, is prima facie evidence who are proprie- tors. 7 6. The subscription for stock to be valid, must be made in con- formity with the act. So that where it was required to be made in such form as to bind the subscriber and his heirs, it was deemed requisite to be made under seal. 8 But such a provision is of no force in this country, simple contracts being of the same force as against heirs as specialties. 7. If by the act of incorporation the shares are made assignable without restriction, and no express provision exists in regard to the party liable for calls, it would seem to follow, upon the general principles of the law of contract, that the proprietor of the share, for the time being, is liable for calls. And where certain formali- ties are requisite in the transfer of shares, and these have been complied with on the part of the transferee, or waived by the com- pany at his request, his liability to calls then attaches. 9 The liabil- ity of the original subscriber often continues, at the election of the * company, after that against the vendee attaches, but when the com- pany consent to accept the name of the transferee, that of the sub- scriber, or former proprietor, ceases. 10 8. It seems to be regarded as settled law, that the best evidence of an original subscription to the capital stock of a railway company is the production of the original subscription book, or the book of records of the company on which the subscriptions were made. 11 7 Birmingham, Boston & Th. J. R. v. Locke, 2 Railw. C. 867 ; s. c. 1 Q. B. 256. - 8 Croinford & High Peak R. v. Lacey, 3 Y. & Jer. 80. See ante, § 18, n. 2. 9 Huddersfield Canal Co. v. Buckley, 7 T. R. 36 ; Aylesbury R. v. Mount, 5 Scott, New R. 127 ; West Philadelphia Canal Co. v. Innes, 3 Whart. 198 ; Mann v. Currie, 2 Barb. Sup. Ct. 294; Hall v. U. S. Insurance Co., 5 Gill, 484; Bend v. Susquehannah Bridge Co., 6 Har. & J. 128; Angell & Ames, ch. 15, § 534. 10 Post, § 54. 11 Graff v. Pittsburgh & Steubenville Railw. Co., 31 Penn. St. 489. These subscriptions are, in fact, sometimes made upon different books, and then brought together upon one book, for the purpose of permanent preservation. But it would seem there should be evidence of the original subscription. [*183] 196 ASSESSMENTS OR CALLS. PART II. 9. But where the books are shown not to be in the proper place of deposit and custody, and no trace can be found of their present existence elsewhere, secondary evidence is admissible. And the court decide the question of loss, as a preliminary one to. the admis- sion of the secondary evidence. 11 10. One who accepts a subscription made by another on his behalf, and pays the calls made thereon and receives a certificate of ownership, is responsible as a shareholder ; and it makes no differ- ence that his name does not appear upon the transfer books or the alphabetical list of stockholders as a transferee of stock. And one may become a shareholder without receiving a certificate of stock. 12 11. It seems clear that railway companies may accept promis. sory notes in payment of subscriptions, and either negotiate or enforce them by suit. 13 The questions of pleading and evidence which may be raised in suits upon such notes are extensively dis- cussed in the case last cited. 12. And where the subscription to railway stock is dependent upon the condition that no calls shall be made until work should be begun upon a particular section of the road, and the subscriber was induced to execute his note for the amount upon the rep- resentation of the agents of the company that work had been so commenced, when in fact it had not, the note cannot be en- forced. 14 * 13. Subscriptions in the capacity of executor are to be regarded as distinct contracts from those in the personal capacity of the subscriber, so that the pendency of a suit for one will not abate or render vexatious a subsequent suit for the other. 15 12 Burrr. Wilcox, 6 Bosw. 198. 13 Goodrich v. Reynolds, 31 111. 490. See also Straus v. Eagle Ins. Co., 5 ' Ohio (N.S.), 59. 14 Taylor v. Fletcher, 15 Ind. 80. 15 New York City & Erie Railw. v. Patrick, 39 N. Y. 256. [*184] §54. RELEASE PROM LIABILITY FOR CALLS. 197 SECTION VIII. Release from liability for Calls. 1, 2. Where the transfer of shares, without registry, will relieve the proprietor from calls. 8. Where shares are forfeited, by express con- dition, subscriber no longer liable for calls. 4. Dues cannot be enforced which accrue upon shares afier they were agreed to be can- celled. § 54. 1. One may relieve himself of his liability for calls, by the transfer of his shares, and the substitution of the name of his assignee for his own upon the books of the company. But until this change upon the books of the company is made, they are at liberty to hold the original subscriber liable, if they so elect. 1 But where the act of incorporation of a joint-stock company de- clared the shares should be vested in subscribers, their executors and assigns, with power to the subscribers to assign their shares, and a committee, to be appointed under the act, were authorized to make calls upon the proprietors of shares, it was held, that an original subscriber, who had transferred his shares, was no longer liable to calls. 2 2. But this case is determined upon the express provisions of the charter of the company. The general rule, in England, at pres- ent, under their consolidated acts, is undoubtedly as stated above. And we see no good reason why it should not equally apply in this country. It would seem to be the only mode of securing the ulti- mate payment of calls. But some of the cases seem to assume, that the mere transfer of the shares in the market *does exonerate the subscriber from the payment of future calls. But this depends chiefly upon the provisions of particular charters, and the general laws of the state applicable to the subject. 3 1 Ante, § 47, and cases there cited. In Everhart v. West Chester and Phila- delphia Railw., 28 Penn. St. 339, it is said that a transfer of stock, made for the purpose of exonerating a subscriber, without the consent of the company, is not a valid defence to an action against him for the purchase-money of the shares subscribed. Ante, § 32. 2 Huddersfield Canal Company v. Buckley, 7 T. R. 3G, 42. 3 In West Philadelphia Canal Co. v. Innes, 3 Whart. 198, it was held, that where the proprietor of shares of the plaintiff's stock transferred them upon the [*185] 198 ASSESSMENTS OR CALLS. PART II. 3. Where shares are allotted to one upon the express condition to be forfeited if a certain deposit is not paid in a certain time, and nothing more is done by the allottee, he is not liable for calls, although the company have entered his name upon the register of shares as a shareholder. 4 4. Where the corporation resolve to release subscribers and to cancel their stock upon making certain payments, which are made ' and the stock cancelled, the company cannot enforce any dues on such shares which subsequently accrue, 5 since the former arrange- ment amounted to an accord and satisfaction of all claim on the part of the company. But if the company thereby materially lessened the remedy of creditors, they might possibly interfere. books of the company, after calls were made, but before they fell due, that the transferee was liable for such calls, although he had never received certificates, or given notice of the acceptance of the transfer. And it was held to make no difference, that the transfer was from an original subscriber, witliout considera- tion, and that the holder is nevertheless liable for unpaid calls. Mann v. Pentz, 2 Sandf. Ch. 258; Hartford & New H. R. v. Boorman, 12 Conn. 530; Ayles- bury R. v. Mount, 5 Scott, New R. 127. • Waterford, Wexford, Wicklow & D. R. v. Pidcock, 18 Eng. L. & Eq. 517 ; 8. c. 17 Jur. 26 ; s. c. 22 Law J. Rep. (N. S.) Exch. 146 ; s. c. 8 Exch. 279. Where the company accept a conveyance of shares to themselves, it will exoner- ate the owner from calls. But a sale to another company of all the effects of the company, will not release the shareholders from calls already made. Plate Glass Insurance Co. v. Sunley, 8 El. & Bl. 47. 5 Miller v. Second Jefferson Building Association, 50 Penn. St. 32. And where the company accept another in the place of the original subscriber, the latter is wholly released. Haynes v. Palmer, 13 La. Ann. 240. [*185] 55. DEFENCES TO ACTIONS FOR CALLS. 199 ♦SECTION IX. Defences to actions for Calls. 1. Informality in organization of company insufficient. 2. Slight acquiescence estops the party in some cases. 3. 4. Default in first payment insufficient. 5. Company and subscriber may ivaive that condition. 6. Contract for stock, to be paid in other stock. 7, 8. Infancy. Statute of limitations and bankruptcy. 9. One commissioner can give no valid as- surance as to the route. 10. What representations matters of opinion. § 55. 1. It is certainly not competent for a subscriber, when sued for calls, to go, in his defence, into every minute deviation from the express requirements of the charter, in the organization and proceedings of the company. Any member of the association, who intends to hold the company to the observance of those mat- ters which are merely formal, should be watchful, and interpose an effectual barrier to their further progress, at the earliest oppor- tunity, by mandamus, or injunction out of chancery, or other ap- propriate mode. 1 In cases of this kind often, where vast expense has been incurred, and important interests are at stake, courts will incline to conclude a member of the association, by the briefest acquiescence in any such immaterial irregularity, and often, in regard to those, which, if urged in season, might have been regarded as of more serious moment. In one case, 1 Tindal, C. J., says, in regard to the offer of a plea, that the money sued for, being the amount of a call, was intended for other purposes than those warranted by the act, " It seems to me it was never in- tended, nor ought it to be allowed, that so general a question as that should be litigated, in the question, whether a call is due 1 The London & Brighton Railw. Co. v. Wilson, 6 Bing. N. C. 135. This case decides, that a plea, that the company had made deviations in their line, and that the money sued for was needed only in regard to such deviations, could not be entertained or regarded as a proper inquiry in an action for calls upon shares ; and so also of a plea, that fewer shares had been allotted than the act required. Walford, 279; Wight v. Shelby Railway, 16 B. Monr. 5. Nor can a share- holder defend against a suit to enforce his personal liability for the debts of the corporation, on the ground of defects in the organization of the company ; espe- cially where he has acted as a member, and his name so appeared, when the debt was contracted. Eaton v. Aspinwall, 19 N. Y. 119. [*186] 200 ASSESSMENTS OR CALLS. PART II. from an individual subscriber." And it was held no sufficient ground of enjoining the directors from making calls, that the proceedings had been such as to amount to an abandonment of the enterprise, as it was possible that there were still legal obliga- tions * to answer. 2 And where the directors were authorized to limit the number of shares, but could not proceed with the road until two hundred and fifty shares were subscribed, and after that number were taken they resolved to close the books, it was held that this vote was equivalent to a vote fixing the number of shares, and that the company might therefore proceed to make and en- force calls, under the statute, and to collect the deficiency remain- ing, after the sale of forfeited stock. 3 2. But where the statute prescribes the terms on which shares may be sold, it must be strictly followed, or the sale will be void, as where the prescribed notice is not given. 4 And it would seem, that the courts are reluctant to admit defences to actions for calls, upon the ground of informality in the proceedings of the com- pany, or even of alleged fraud, where there has been any consid- erable acquiescence on the part of the shareholder. 5 3. It seems to have been held, in some cases, that a subscriber for stock may defend against an action for calls, upon the ground that he did not pay the amount required by the charter to be paid down at the time of subscription. 6 4. But it is questionable how far one can be allowed to plead his own non-performance of a condition in discharge of his undertak- ing. And a different view seems to have obtained to some extent. 7 It has been held the stockholder cannot object, that he has not complied with the charter, after having voted at the election of officers, or otherwise acted as a shareholder. 8 And so also where 2 Logan v. Courtown, 5 Eng. L. & Eq. 171. 3 Lexington & West Cambridge R. v. Chandler, 13 Met. 311. * Portland, Saco, & Portsmouth R. v. Graham, 11 Met. 1. 5 Walford, 278, 279 ; Cromford & High P. R. v. Lacey, 3 Y. & Jer. 80 ; Mangles v. Grand Collier Doek Co., 10 Sim. 519 ; s. c. 2 Railw. C. 359 ; Thorpe r. Hughes, 3 Mylne & Cr. 742. 6 Highland Turnp. Co. v. MeKean, 11 Johns. 98; Jenkins v. Union Turnp. Co., 1 ( laines's Cas. in Error, 86 ; Hibernia Turnpike Co. v. Henderson, 8 S. & II. 219 ; Charlotte & C. R. v. Blakely, 3 Strob. 245. : Henry v. The Vermilion R., 17 Ohio, 187. A similar rule is recognized in Louisiana, in the case of Vicks. S. & Texas Railw. v. MeKean, 12 La. Ann. 038. 8 Clark v. Monongahela Nav. Co., 10 Watts, 36L Nor can a subscriber, [*187] § 55. DEFENCES TO ACTIONS FOR CALLS. 201 * the subscription is made, while defendant held the books of the company and acted as commissioner. 9 And payment before the books are closed, has been held sufficient to bind the subscriber. 10 So also if the sum have been collected by suit. 11 And a prom- issory note has been held good payment, where the charter re- quired cash on the first instalment, at the time of subscription. 12 And, by parity of reason, if the subscription binds the subscriber to pay for the stock taken, in conformity to the requisitions of the charter, which is the more generally received notion upon the sub- ject at present, we do not well comprehend why the subscription itself may not be regarded as effectual, to create the subscriber a stockholder, and as much a compliance with the condition to pay, as giving a promissory note. In either case, the company obtain after having transferred his stock to another, thus treating it as a valid security, object, in the trial of a suit against him on the original subscription, that the same was originally invalid, by reason of the non-payment of the sums requisite to give it validity, at the time of making the subscription. Everhart v. West Chester & Ph. Railw., 28 Penn. St. 339. And where commissioners were appointed, by an act of the legislature, and were authorized to receive subscriptions for the purpose of constructing a rail- way, no subscription to be valid unless five dollars was paid upon each share at the time of subscribing ; the act providing that when a certain number of shares shall have been so subscribed, and the same certified under the oath of the commissioners to the governor, he should issue letters-patent, incorporating the subscribers, and such as should thereafter subscribe, and this was done, and the company duly organized, it was held : That the act imposed no restriction upon the corporation after it was organ- ized, in regard to the payment of the five dollars at the time of subscription. That the condition, that subscriptions should not be valid till a certain amount was subscribed, was one which the parties had a right to annex to the contract of subscription, and as such, was valid, and the subscriptions could not be en- forced till the condition was performed. Philadelphia & West Chester Railw. v. Hickman, 28 Penn. St. 318. See also Black River & Utica Railw. Co. v. Clarke, 25 JSf. Y. 208; H. & P. Plank Road Co. v. Bryan, 6 Jones Law, 82; Piscataqua Ferry Co. v. Jones, 39 N. H. 491. 9 Highland Turnp. Co. v. McKean, 11 Johns. 98; Grayble v. The York & Gettysburg Turnp. Co., 10 Serg. & Rawle, 269. So also if one act as a stock- holder in the organization of the company. Greenville & Columbia Railw. v. Woodsides, 5 Rich. 145. 10 Klein v. Alton & Sangamon Railw., 13 111. 514. 11 Hall v. Selma & Ten. Railw., 6 Alabama, 741. 12 McRae v. Russell, 12 Ired. 224; Selma & Ten. Railw. v. Tipton, 5 Ala- bama, 787; Tracy v. Yates, 18 Barb. 152; Greenville & Columbia Railw. v. Woodsides, 5 Rich. 145 ; Mitchell v. Rome Railw., 17 Georgia, 574. [*188] 202 ASSESSMENTS OR CALLS. PART II. but a right of action for the money, and if the party can be allowed to urge bis own default in defence, it is perhaps no com- pliance with the charter. But upon the ground that, so far as the subscriber is concerned, the company may waive this condition, upon what is equivalent to payment, it ought also to be equally 1k1<1. that when * the subscriber has obtained such a waiver, for his own case, he shall be estopped to deny, that it was so far a compliance with the charter as to render the contract binding. 5. And, upon the other hand, the company having consented to accept the subscriber's promise, instead of money, for the first in- stalment, cannot defeat his right to be regarded as a stockholder, on account of his not complying with a condition which they have expressly waived. It would seem, that under these circumstances, the immediate parties to the contract could not obtain any advan- tage over each other, by reason of the waiver, of strict performance of such condition, by mutual consent. But the objection must come properly from some other quarter, either the public, or the other shareholders. And possibly the cases decided upon this sub- ject do not justify any such relaxation, even between the parties to the immediate contract of subscription. Upon general principles, applicable to the subject, as educed from the law of contracts, we see no objection to the waiver of such a condition on behalf of the company. And if there be any objection upon other grounds, it is not for the benefit of the subscriber. 13 13 It has been held that the misstatement of the length of the road, in the articles of association, if there be no fraud ; or the lease, or sale, of the fran- chises of the corporation to another company, which is void ; or the neglect to make the whole road, even without legislative sanction, will not exonerate a sub- scriber from paying calls. Troy & Rutland Railw. v. Kerr, 17 Barb. 581. But where a preliminary subscription is required, it must be absolute and not depend- ent upon conditions. Troy & Boston Railway v. Tibbits, 18 Barb. 297. But a condition that provides for interest, by way of dividends, to paying subscribers, until the full completion of the road, at the expense of subscribers who do not pay, or one that imposes a limitation upon the directors in calling in stock, is void as being against good policy. lb. In a case in Kentucky, Wight v. Selby Railw., 16 B. Monr. 5, it was held, that a subscription to stock, in a railway, is not rendered invalid by reason of the subscriber's failure to pay a small sum required by the charter to be paid upon each share when he subscribed. Simpson, J., " It was their duty to pay it, at the time the stock was subscribed, but they should not be allowed to take advantage of their own wrong, and release themselves from their whole obligation, by a failure to perforin part of it." This seems to us a sound view of [*189] § 55. DEFENCES TO ACTIONS FOR CALLS. 203 *6. An agreement to take stock and pay in the stock of a canal company, and an offer of the canal stock, will not make the party liable to pay money. 14 the subject, and the only one which is consistent with the general principles of the law of contract, as applicable to the question. In a more recent case, S. subscribed for $500 of stock in a railway com- pany upon the understanding that the first ten per cent required by law to be paid in cash upon subscribing should be paid by his services in securing subscrip- tions and right of way. He subsequently presented an account against the com- pany for services, from which it appeared, that at the date of the subscription the company was indebted to him in an amount greater than the cash payment required, in which account he applied and credited $50 for ten per cent upon his subscription, and $50 for the first call made thereon. The account was allowed by the company, and the balance paid by S. Held, that this was a sufficient compliance with the statute in respect to the payment of the first ten per cent, and made the subscription obligatory upon S. Beach v. Smith. 30 N. Y. 116. See also Vicksburg, Sh. and Texas R. Co. v. McKean, 12 La. Ann. 638. In this case it is further held, to be no valid defence to a subscription to the stock of a railway, that it was delivered as an escrow to one of the commission- ers appointed to receive subscriptions. It should have been delivered to a third person, to become effectual as an escrow. Such subscribers are presumed to know the conditions of the charter under which the subscription is taken, and that if they desire to make their subscriptions conditional, it must be so expressed in the written terms of subscription, and that it is not competent to deliver a written contract, as an escrow, to the party himself. For, to admit oral evidence of such a condition, in the delivery of a written contract to the party benefited thereby, is a practical abandonment of the rule of evidence, that such testimony is incompetent to control a written contract. It has been held, that it is not competent for the commissioners to accept the check of a subscriber in payment of the amount required by the charter to be paid at the time of subscription, but that specie or its equivalent, must be demanded. Crocker v. Crane, 21 Wend. 211 ; s. c. 2 Am. Railw. C. 484; s. c. 1 Redf. Am. Railw. Cases, 42. But this is at variance with the general course of decision, unless in regard to banks, where the charter expressly requires the payment to be in specie. King v. Elliott, 5 Sm. & M. 428. And where the charter of a railway company was made to depend upon the condition of the company expending $50,000 in two years, and completing the road in four years from the date of the grant, and the company having failed in the first part of the condition, but having obtained subscriptions to their stock to a large amount, and the defendant being one of the subscribers, the company having organized, and chosen directors, the defendant being one of them, the legislature revived and renewed the charter, and extended the time for the performance of such condition; and subsequently to this, a meeting of the stock- holders was called by the commissioners, in which the defendant took part, 14 Swatara Railw. v. Brune, 6 Gill, 41. [*190] 204 ASSESSMENTS OR CALLS. PART II. [nfancy is a good defence, if the person l>c an infant at the time of suit brought, or if he repudiate the subscription within a reasonable time after coming of full age. 15 By the general pro- visions of tlic English statute, all persons may become shareholders, there being no exception, in terms, in favor of infants; and if one be registered while an infant, and suffer his name to remain on the registry after he becomes of full age, he is liable for calls, whether made while he was an infant, or afterwards. 10 It seems to be additional directors being appointed, and at a meeting of the directors, the defend- ant being present, a call was made upon the subscriptions, it was held that this amounted to an acceptance of the renewal of the charter, and was such a recog- nition of tlie former organization of the company, as to amount to a sufficient organization under the new charter, and the defendant was held to be estopped by his conduct from denying the regularity of these proceedings, and to be lia- ble to pay calls on his stock. Danbury & Norwalk Railw. v. Wilson, 22 Conn- 435. Where the general railway law, under which a company is organized, requires a payment often per cent upon each subscription before the filing of the articles of association with the secretary of state, it is sufficient, if the cash payments, by whomsoever made, amount in the aggregate to ten per cent upon $1,000 for cahio & Miss. R. Co., 14 Ind. 174. 1 Union ! ks & (anal Co. v. Towne, 1 N. Hamp. 44. But where the origi- nal charter or preliminary contract provides for modifications, the subscribers are still bound by all such as come fairly within the power. Cork & Youghal Railway v. Patterson, 18 C. B. 414; s. c. 37 Eng. L. & Eq. 398 ; post, § 254, n. 6 ; Nixon v. Brownlow, 30 Law Times, 74; s. c. 3 H. & 1ST. 686. [*193] § 56. FUNDAMENTAL ALTERATION OP CHARTER. 207 2. Iii an important case 2 where it appeared that after calls fell * due, but before suit brought, the company, being incorporated for the purpose of building a railway, procured an additional special act, by which they were authorized to purchase steamboats : it was held, that a subscriber, not having assented to the alteration, was absolved from his obligation to pay calls. 3. In a very elaborate opinion of Bennett, Chancellor, 3 upon this subject, the following propositions are established : — 2 Hartford & New Haven Railw. v. Croswell, 5 Hill, 383. In Winter v. Muscogee Railw., 11 Ga. 438, the charter was so altered as to allow the road to stop short of its original terminus and pass in a different route, and subscribers to the stock were held thereby released, unless they assented to the alteration. But where one gave his note for the first instalment, and his stock was forfeited, for non-payment of calls, he is not relieved from payment of his note by a mate- rial alteration of the charter. Mitchell v. Rome Railw., 17 Ga. 574. But any modification of the charter which affects merely the detail of proceedings in making and enforcing calls will not release subscribers to the stock, when such modification has been accepted by the corporation. Illinois River Railw. Co. v. Beers. 27 Illinois, 185. 3 Stevens v. Rutland & Burlington Railw., 29 Vt. 545. The opinion at length is a valuable commentary upon this important subject. In this opinion the learned chancellor maintains, — 1. That by the implied contract, among the proprietors of all joint-stock undertakings, there is a tacit inhibition against applying the funds, for any pur- pose beside the general scope of the original enterprise, and that this applies to corporations equally with commercial partnerships. Natusch v. Irving, Gow on Part. App. 5G7. And that courts of equity will restrain a corporation from thus misapplying its funds by injunction. Ware v. Grand Junction Water Co., 2 Russell & Mylne, 461. And that this will be done upon the application of those shareholders who dissent. And in some instances will restrain the company from applying to the legislature for an enlargement of their powers. Cunliff v. Manchester & Bolton Canal Co., 13 Eng. Cond. Ch. 131; 8. c. 2 Russell & My. 470, 475 ; Livingston v. Lynch, 4 Johns. Ch. 573. 2. That if the proposed alteration is only auxiliary to the main design of the original organization, it will not be enjoined ; but if it be fundamental, it will be. That a variation in the course of a turnpike road has been regarded as a fundamental alteration in the charter, Middlesex Turnpike Co. v. Lock, 8 Mass. 268, and, as such, to exonerate subscribers to the stock of the original company. [But Irvine v. The Turnpike Co., 2 Penn. 46G, holds it will not have that effect.] And that in such cases it will make no difference, that the subscriber was a di- rector in the company, and joined in the petition to the legislature for the altera- tion. Same v. Swan, 10 Mass. 384; Same v. Walker, 10 Mass. 390. The learned chancellor regarded the case of Revere v. The Boston Copper Co., which was cited by the counsel for the defendants, as making rather against his purpose. 15 Pick. 351, 363. The case of Hartford & New Haven Railw. v. Croswell, 5 Hill, 383, 385, is relied upon, as having defined a fundamental alter- am] 208 ASSESSMENTS OR CALLS. PART II. *1. That a majority of a joint-stock company cannot use the oinl property except within the legitimate scope of their charter, * and if they attempt to do so equity will restrain them. 2. The shareholders are hound by such modifications of the charter as are not fundamental, but merely auxiliary to the main design. 3. If a majority of a railway company obtain an alteration of their char- ation of the charter of a corporation, in the language of C. J. Nelson, to be one " by which a new and different business is superadded to that originally contemplated." S. No one can be made a member of a joint-stock corporation without his consent. Ellis v. Marshall, 2 Mass. 269. Nor can he be compelled to remain a member of such company after its fundamental organization is altered by act of the legislature. But an act of the legislature allowing a navigation company to raise their dam above the point of the original charter limit, is in furtherance of the original grain, and will not exonerate the subscribers. Gray v. Monongahela Navigation Co., 2 Watts & Serg. 156. And an alteration in the number of votes, to be cast by stockholders, if it impair the obligation of the contract resulting from the grant, is void, and so cannot release the subscribers. Osborn v. Bank of United States, 9 Wheat. 788. But any statute which has the force to effect an alt. ration in the structure of the corporation, will release subscribers. Indiana & Ebensburg Tump. Co. v. Phillips, 2 Penn. 184. [. That statutes extending the term of a corporation, for closing up its busi- ness, on petition of the directors, have no proper bearing upon the question. Lincoln & K. Bank v. Richardson, 1 Greenl. 79; Foster v. The Essex Bank, 16 Mass. 2 15. 5. That it is no fatal objection to the application that it is made at the insti- gation of a rival enterprise. Colman v. Eastern Counties Railw., 10 Beav. 1. [But sec ante, § 20.] 6. That an existing railway company will be restrained in equity from apply- ing its present funds to extend their line, or improve the navigation of a river connected with their line, or for obtaining an act of the legislature, authorizing them to do so. Munt v. Shrewsbury & Chester Railw., 13 Beav. 1 ; 8. c. 3 Eng. L. & Eq. Ill; Colman v. Eastern Co.'s Railw., 10 Beav. 1. 7. That members of an existing company cannot be compelled to surrender their interest to the company, or to others, and retire, in order to enable them to change the character of the enterprise. Lord Eldon, Chancellor, in Natusch r. [rving, s/i/na. 8. In favor of the importance and necessity of having this constant supervision exercised over joint-stock companies, in order to keep them within the range of their legitimate functions, the learned chancellor thus concludes: — " U here it is clearly shown that a corporation is about to exceed its powers, and to apply their funds or credit to some object beyond their authority, it would, if the purpose of the corporation was carried out, constitute a breach of trust; a court of equity cannot refuse to give relief by injunction. Agar v. The Regent's (anil Co., Cooper's Eq. 77; The River Dun Navigation Co. v. North Midland Railw. Co., 1 Railw. C. lo:j, 15-4; post, § 211. [*195, 196] § 56. FUNDAMENTAL ALTERATION OP CHARTER. 209 ter, which is fundamental, as to enable them to build an extension of their road, any shareholder who has not assented to the act, may restrain the company, by injunction, from applying the funds of the original organization to the extension. 4. In a case before the Master of the Rolls, 4 it was held *that directors have no right to enter into or to pledge the funds of the company in support of any project not pointed out by their act, although such project may tend to increase the traffic upon the railway, and may be assented to by the majority of the shareholders, and the object of such project may not be against public policy. And that acquiescence by shareholders in a project for ever so long time, affords no presumption of its legality. And in a case in this country it is held, that the subscriber having acted as director of the corporation, and as such having participated in the proceed- ings to effect the alteration, will not make him liable for calls, upon his original subscription. 5 5. But it is no defence to an action for calls, that the directors have altered the location of the road, if by the charter they had the discretion to do so. 6 And if the charter contain a provision that the legislature may alter or amend the same, the exercise of this power will not absolve the shareholders from their liability to pay 4 Colman v. Eastern Counties Railw., 10 Beav. 1; s. c. 4 Railw. C. 513. See also Munt v. Shrewsbury & Chester Railw., 13 Beav. 1 ; s. c. 3 Eng. L. & Eq. 144; East Anglian Railw. v. Eastern Counties Railw., 11 C. B. 775; s. c. 7 Eng. L. & Eq. 505 ; MacGregor v. Deal & Dover Railw., 18 Q. B. 618 ; s. c. 16 Eng. L. & Eq. 180 ; Danbury & Norwalk Railw. v. Wilson, 22 Conn. 435 ; Mill-Dam Co. v. Dane, 30 Maine, 347 ; post, § 232 ; Winter v. Muscogee Railw., 11 Ga. 438; Hamilton Plank Road v. Rice, 7 Barb. 157; Commonwealth v. Cullen, 1 Harris, 133 ; 3 Woodbury & Minot, 105. But the House of Lords held in Taylor v. C. & M. Railw., L. R. 4 Ho. Lds. 628, where an existing railway was empowered by act of parliament to enter on a new undertaking and to add the new undertaking to the old, and to treat the capital intended to be raised for the new undertaking as capital added to the old, that the company is thereby authorized (should it be unable successfully to raise the new capital, which is a matter not to be assumed) to apply to the new undertaking funds previously applicable to the old ; sed quaere ? 5 Macedon Plank Road Co. v. Lapham, 18 Barb. 312. But see Greenville & Columbia Railw. v. Coleman, 5 Rich. 118. 6 Colvin v. The Turnpike Co., 2 Carter, 511 ; id. 656. Nor is it a defence to an action for calls, that the name of the company, or the length and termini of the road, have been materially altered. Del. & Atlantic Railw. v. Lick, 3 Zab. 321. vol. i. 14 [*197J 210 ASSESSMENTS OR CALLS. PART II. calls." Ami all subscriptions to stocks, and all contracts for the * purchase of stock, to be delivered at a future day, must be under- stood to be made subject to the exercise of all the legal powers of the directors and of the legislature, and an illegal exercise of power by either will, it has sometimes been said, bind no one, and should exonerate no one from his just obligations. 8 6. But where subscriptions are made upon the express con- dition that the road shall go in a particular place, the perform- ance of such condition is commonly regarded as indispensable to the liability of the subscribers, the same as in other contracts. 9 7 Northern Railw. v. Miller, 10 Barb. 260; Pacific Railw. v. Renshaw, 18 Missouri, 210. And* where a subscription is made to the capital stock of a rail- way, while an act of the legislature exists, allowing the consolidation of such com- pany with another, the fact that such consolidation is subsequently made affords no ground for avoiding the subscription. Bish v. Johnson, 21 Ind. 29[). And if, from the articles of association of the company, it is obvious that consolida- tion with another company was one of the leading purposes of the incorporation, the fact of such consolidation, after the date of a subscription, will be no defence against its enforcement, even when the statute authorizing the consolidation is subsequent to the date of the subscription. Hanna v. Cin. & F. W. Railw., 20 Ind. 30. The consolidation of two corporations does not effect the dissolution of either, so as to work the abatement of pending actions. Baltimore & Susq. Railw. v. Musselman, 2 Grant Cas. 348. But see McMahan v. Morrison, 16 Ind. 172, contra. For many purposes the liabilities of the original companies remain, as before the consolidation. Central Railw. Co. v. Bunn, 3 Stockt. Ch. 336. It is here decided, that where the original company and a new company formed by the mortgagees after sale of the road bear the same name and have the same president, a suit to enforce a claim contracted before the sale, served upon the president, cannot go to judgment against the new company, nor will a court of equity allow a general judgment, at law, to be taken. The plaintiff must elect to take judgment, in terms, against the original company. This seems to be a very judicious course, but one for which courts of equity will afford no precedent. The order should have been made, most obviously, in the court of law. 8 Irvin v. Turnpike Co., 2 Penn. 466 ; Conn. & Pas. Rivers Railw. v. Bailey, 24 Vt. 479; Faulkner v. Ilebard, 26 Vt. 452 ; s. c. 2 Redf. Am. Railw. Cases, Fry's Exr. v. Lex. & Big S. Railw., 2 Met. (Ivy.) 314. ; ' See cases under notes 2 & 3, supra; and also Railsback v. Liberty & Abington Turnp. Co., 2 Carter (Ind.), 656. And in Kenosha, Rockford, and Rock Island R. Co. v. Marsh, 17 Wis. 13, it was held, that where the legisla- ture had the general power to repeal or alter acts of incorporation, and accord- ingly allowed an existing company, chartered to carry a railway over a given line, and whose subscriptions had been taken with that view, to change their route very essentially , the subscribers were thereby released from their obliga- tion to pay calls. [*198] § 56. FUNDAMENTAL ALTERATION OP CHARTER. 211 But an alteration in the line of the road, which does not affect the interest of the subscriber, will not absolve him from his sub- scription. 10 And when the subscription was made upon condition that the road be located upon a given line, and providing that such location should be sufficiently evinced by an order of the board of directors accepting such subscription upon the condition named, it was held sufficient to bind the subscriber, that the road had been in fact located and built upon the line designated, and that this was known to him, although there had been no formal action of the board accepting the subscription. 11 7. And an alteration in the charter, which consists only of an increase of the corporate powers, or of a different organization of the corporate body, leaving it with lawful power to execute, what * may be regarded as substantially the original object of its crea- tion, will not exonerate subscribers to the stock of the company. 12 So too where the general laws of the state provide that all acts of incorporation may be altered, amended, or repealed by the legislature, it is no defence to a subscription for stock, that subsequently the legislature increased the liability of the stock- holders. 13 8. And notwithstanding much apparent conflict in the cases upon this subject, it will be found to be the general result of the best considered cases, that the alteration, either in the charter of 10 Banet v. Alton & Sangamon Railw., 13 111. 504; Danbury & Norwalk Railw. v. Wilson, 22 Conn. 435. 11 Moore v. New Albany & Salem Railw. Co., 15 Ind. 78; Warner v. Callen- der, 20 Ohio (N.S.), 190. 12 Pacific Railw. v. Hughs, 22 Missouri, 291 ; Peoria & Oquawka Railw. v. Elting, 17 111. 429. In Everhart v. West Chester and Philadelphia Railw., 28 Penn. St. 339, the subscribers for stock were held not released by such a change in the charter of the company as empowered them to issue preferred stock, to enable them to raise the means of making and equipping the road in the man- ner originally contemplated. It was considered that such an amendment of the charter was merely ancillary to the main design, and might be accepted by a majority of the stockholders and thus become binding upon all ; that it is im- plied in every subscription for the stock in a railway company, that they may resort to the ordinary and legal means for accomplishing the object proposed by the charter. It is here said, that an alteration of the charter, which superadds an entirely new enterprise, will release subscriptions to the stock. See also Fry's Exr. v. Lex. & Big S. Railw., 2 Met. (Ky.) 314. 13 South Bay Meadow Dam Co. v. Gray, 30 Maine, 547 ; Buffalo & New Y. City Railw. v. Dudley, 14 N. Y. 336. But see ante, n. 9. [*199] 212 ASSESSMENTS OR CALLS. PART II. Ilir company, or the line of the road, to exonerate the subscriber for Btock, must be one which removes the prevailing motive for the subscription, or else materially and fundamentally alters the responsibilities and duties of the company, and in a manner not provided for, or contemplated, either in the charter itself or the general laws of the state. 14 * 9. Where a town or city stipulate with a railway company for adequate consideration to terminate their route, at a point bene- ficial to such town or city, this will not preclude the company from forming connections with other routes, by land or water, at the same point. 15 10. And where the plaintiff made it a condition of his subscrip- tion to the capital stock of a railway, that it should pass through some portion of the counties of Monroe and Ontario, and the road 14 But in tbe Greenville & Columbia Railvv. v. Coleman, 5 Rich. 118, where the charter gave the stockholders the right to designate the route they preferred, and if any stockholder was dissatisfied with the route selected, the right to with- draw his subscription, "provided, at the time of subscribing, he designated the route he desires to be selected," and one subscribed without designating the route he preferred, under an assurance from one, who was soliciting subscrip- tions, that he might pay $5 on $100, and be free from liability as to the residue, it was held, that he was liable, as a stockholder, without the right to withdraw. But some of the American cases do not seem to recognize any alteration in the route of the road, even one which renders it practically a different enterprise, as a defence to subscriptions for stock. Central Plank Road Co. v. Clemens, 16 Mo. 359. But in Champion v. Memphis & Charleston R. Co., 35 Miss. 692, it was decided, that when the route on which a railroad is to be located/ is pre- scribed by its charter, a subsequent material deviation from the route therein prescribed will release the stockholders who had previously subscribed, and who did not consent to the deviation. It is not every deviation in the location of a railroad from the route prescribed in the charter which will release non-assenting stockholders, and it is impracti- cable to lav down any general rule to serve as a guide in determining the ques- tion of the materiality of the deviation. Each case must be determined by its own particular circumstances; and hence, where a stockholder resists the collec- tion of his subscription for stock, upon the ground of a deviation from the route prescribed by the charter, he ought to set out in his plea such deviation clearly and distinctly, so that its materiality can be determined. A plea by a stock- holder in a railway company, setting up a deviation from the route prescribed by the charter as a defence to a suit, to enforce his subscription for stock, which describes the deviation as follows : " That said road was not constructed in accord- ance witli the requirements of the charter," is bad for uncertainty. 16 Baltimore & Ohio llailw. r. Wheeling, 13 Grattan, 40. [*200] § 56. FUNDAMENTAL ALTERATION OP CHARTER. 213 was so located as not to touch either of those counties, it was held, that he was released from his subscription. 16 16 Buffalo, Corning & N. Y. Railw. v. Pottle, 23 Barb. 21. And where a party, who was not a stockholder, executed a promissory note to a railway com- pany, promising to pay them $200, in consideration that they would locate their depot in block 91, in Indianapolis, to be paid when the company should com- mence the construction of their depot, and the line of the company's road ex- tended from Terre Haute, through Indianapolis, to Richmond, a distance of 150 miles, at the date of the note, but by subsequent act of the legislature, was divided, at Indianapolis, and the portion between Indianapolis and Richmond, being about one-half, was given to another company, which built their depot in another portion of Indianapolis, the former company only constructing a freight depot, on block 94, it was Held, that by the alteration of the charter of the Terre Haute and Richmond Railway Company, and the acceptance thereof by the company, the company became substantially a different corporation, and were unable to perforin the condition upon which the note was to become payable, and that the circumstance, that the depot located on block 94 was of some advantage to the plaintiff in error, was of no importance. But an amalgamation of two railway companies, effected subsequent to the date of a subscription to the stock of one of them, but which had been authorized by an act of the legislature prior to that time, will not release the subscription. And it is of no importance, that the consolidation took place without the knowledge of the subscriber. Sparrow v. Evansville & Crawfordsville Railway, 7 Porter (Ind.), 369. The subscription of stock to an amalgamated company is a sufficient consent to the amalgamation. And such consent by the stockholders seems to be re- garded as requisite to the power of the legislature to amalgamate existing rail- way companies. Fisher v. Evansville & Crawfordsville Railway, 7 Porter (Ind.), 407. Where one of the stockholders of a railway company agreed with the com- pany to subscribe and take a given number of shares in the capital stock, if the company would adopt a particular route, there being two under consideration, and the company in consequence adopted that route, it was held that the party was bound by his contract to take and pay for the number of shares he had thus agreed to subscribe. Spartanburgh & Union Railw. v. De Graffenreid, 12 Rich. 675. But where in such a case, by a subsequent amendment of the charter, the route in consideration of which the subscription was made was abandoned, and another adopted, the subscriptions were held to be thereby avoided. Hester v. Memphis & Charleston Railw., 32 Miss. 378. But one who makes an absolute subscription to a railway, cannot avoid it by proving a parol condition upon which it was made, not complied with, unless he show that fraud also existed in the contract. North Carolina Railw. v. Leach, 4 Jones Law, 310. This case is referred to ante, § 55, pi. 9, and one important point of the decision there given. It was also here held that if the party have any remedy in such case by mandamus or injunction, where the directors locate the road differently liom the require- ments of the charter, and omit to report to it at once, he is bound by such acqui- escence. [*200] 214 ASSESSMENTS OR CALLS. PART II. * 11. Where the articles of incorporation of a railway company restrict calls upon subscriptions to twenty per cent in one year, and ten per cent at one time, and also provide that said articles may at any time be changed by the unanimous consent of the board of directors, it is competent for the board to so change the mode of making calls, as to require them to be made not exceed- ing five per cent a month, and such change in the articles as to the mode of making calls will be binding upon previous subscrip- tions. 17 12. And in a somewhat recent case 18 it was held, where the Legislature had reserved, in the charter of a corporation, the power to modify or repeal the same, that members of the corporation hold their shares subject to such liability as may attach in consequence * of the extension or renewal of the charter, although obtained with- out their consent. 13. And it was also here considered, that the estate of an in- testate shareholder succeeded to the personal responsibility of the deceased in the corporation, and this will render the administrator liable for the debts of the corporation contracted after the decease of the intestate, to the same extent the deceased would have been if still living ; and that the stockholder or his personal representa- tive can only relieve himself from responsibility by a bona fide and absolute sale of the stock. 14. A railway company do not release money-subscriptions by accepting large land subscriptions at a subsequent date. 19 15. And a railway corporation, chartered in one state to con- struct and operate a road within that state, cannot emigrate into another state, even where that state had given legislative permis- sion to act therein. And after having transferred its business office into another state, where it performed all its corporate func- tions, it is not competent for it to make valid calls in such other state upon subscriptions taken in the place of its creation. 20 17 Burlington & Mo. River Railw. v. White, 5 Clarke, 409. ,h Bailey v. Hollister, 26 N. Y. 112. But it is here suggested, that after the charter of a corporation has expired, there is no power to revive it, by any agen.y less than the consent of all the corporators. 18 Horoaday r. Ind. & 111. Central Railw., 9 Ind. 263. 2 ' Aspinwall v. Ohio & Mississippi Railw. Co., 20 Ind. 492. [*201, 202] § 57. SUBSCRIPTIONS BEFORE DATE OF CHARTER. 215 SECTION XT. Subscriptions before date of Charter. 1. Subscriptions before, date of charter good. 2. Subscriptions upon condition not performed, n. 4. When the condition is performed. 3. Subscription by a stranger to induce com- pany to build station. 4. Subscription on condition, an offer merely. 5. Conditional subscription takes effect upon performance of the condition. 6. How far commissioners may annex con- ditions to subscription. 7. Such conditions void, if fraudulent as to company. § 57. 1. It has been held that one who subscribes before the act of incorporation is obtained, and, by parity of reason, before the organization of the company, although after the act of incorpora- tion, is holden to the corporation, to pay the amount of his sub- scription. And a suit is sustainable, in their name, upon any securities given in the name of the association, or of the commis- sioners for organizing the company, and equally upon the sub- scription * itself in the name of the corporation. 1 And it is not competent for one, who is a subscriber to such an enterprise, to withdraw his name while the act of incorporation is going through the legislature. 2 2. But an informal subscription, which is never carried through the steps necessary to constitute the subscribers members of the 1 Kidwelly Canal Co. v. Raby, 2 Price, Exch. 93 ; Selma & Term. Railw. Co. v. Tipton, 5 Alabama, 786 ; Vermont Central Railw. Co. v. Clayes, 21 Vt. 30 ; Delaware & Atlantic Railw. v. Irick, 3 Zab. 321. In the last case, the very point ruled, is, whether the company were proper plaintiffs, in an action to enforce calls against one who signed the commissioners 1 paper for shares before the or- ganization. Held, the commissioners were to be regarded as agents of the com- pany. See also Troy & Boston Railw. v. Tibbits, 18 Barb. 297 ; Stanton v. Wilson, 2 Hill, 153; Troy & Boston Railw. v. Warren, 18 Barb. 310; Hamilton Plank Road Co. v. Rice, 7 Barb. 157 ; Stewart v. Hamilton College, 2 Denio, 417 ; Danbury & N. Railw. v. Wilson, 22 Conn. 435. So also a subscription to the capital stock of a railway, made on the solicitation of one who was not a commissioner, but who felt an interest in the road, and volunteered to take up subscriptions to its stock, was held valid in one case. Railway Company v. Rodrigues, 10 Rich. (S. C.) 278. An agreement to take a certain number of shares of the stock of a railway company made by signing a paper with others, in advance of obtaining the act, is equivalent to a subscription for shares after the act is obtained. Burke v. Lechmere, L. R. 6 Q. B. 297. 2 Kidwelly Canal Co. v. Raby, 2 Price, Exch. 93; Brownlee v. Ohio, Ind. & 111. Railw. Co., 18 Ind. 68. [*203] 21(3 ASSESSMENTS OR CALLS. PART II. company, lias been held inoperative, as no compliance with the act. 8 And a subscription, upon condition that the road is built through certain specified localities, the company at the time not lining to build the road through those places, will not, it has been held, make the subscriber liable to an action for calls, even if the condition be ultimately performed by the company. 4 But 1 Troy & Boston Railw. r. Tibbits, 18 Barb. 298. 4 Macedon & Bristol Plank R. v. Lapham, 18 Barb. 313. In this case it seems to have been decided that such a subscription is not good, as a subscrip- tion for stuck, not upon the ground mainly that it was conditional and so against publif policy, or from want of mutuality, but upon the ground of an extension of the road and an increase of the capital stock. But see also Utica & Sch. Railw. v. Brinckerhoff, 21 Wend. 139, where such a decision is made. But the current of authority, both English and American, is almost exclusively in a counter direction. It is impossible, upon any fair ground of construction, to consider such a subscription, where the road is located in a given line, in faith, and in fulfilment of the condition, as a mere offer, unaccepted. It is a proffer, a propo- sal, accepted, and as much binding as any other possible consideration. But if it were to be regarded as a mere offer, standing open, upon every principle of reason and law, when accepted, according to its terms, it is binding as a contract and no longer revocable, and the only case of much weight, which ever attempted to maintain the opposite view, that of Cooke v. Oxley, 3 T. R. 653, has been regarded as overruled upon that point for many years. See L'Amoreux v. Gould, 3 Selden, 349 ; Conn. & Passumpsic Rivers Railw. v. Bailey, 24 Vt. 478. Mr. Benjamin, in his book on Sales, pp. 47-50, attempts to uphold the case of Cooke v. Oxley, on the ground that it has been constantly misunderstood by the American courts and text-writers. That may be so. But we fail to perceive any sensible ground upon which that case can be upheld to the full extent. If a continuing offer is made without consideration, no doubt it may be withdrawn at any time before it is accepted ; and after the withdrawal is made known to the other party he is no longer afc liberty to act, upon it. But until that event, or the expiration of the offer by lapse of time, he is at liberty to accept it; and if he do so, a valid contract is thereby created between the parties, upon the basis of the offer. This view is placed upon very satisfactory grounds by Mr. Justice Nelson, in Taylor v. Merchants 1 Fire Ins. Co., 9 How. (U. S.), 390. There is, unques- tionably, this difference between a standing offer made upon consideration and one made gratuitously ; that in the former case it cannot be withdrawn, and in the latter it may lie. But even in the case of a gratuitous offer, the withdrawal does not become effective until notice of such withdrawal reaches the adverse party. If the latter, before such notice, do that, which by the terms of the offer amounts to unconditional acceptance, the contract is complete, and both parties irrevoca- bly bound by it. In the case of Boston & Maine Railw. v. Bartlett, 3 Cush. 224, the subject is very justly illustrated by Mr. Justice Fletcher: " In the present case, though the writing Bigned by the defendants was but an offer, and an offer which might be revoked, vet, while it remained in force and unrevoked, it was a continuing offer [*203] § 57. SUBSCRIPTIONS BEFORE DATE OF CHARTER. 217 *one might perhaps raise some question, whether, upon general principles, such a subscription ought not to be binding, as a * standing offer accepted and acted upon by the company, which is sufficient consideration for the promise. 5 during the time limited for acceptance; and, during the whole of that time, it was an offer every instant, but as soon as it was accepted it ceased to be an offer merely, and then ripened into a contract. The counsel for the defendants is most surely in the right, in saying that the writing when made was without con- sideration, and did not, therefore, form a contract. It was then but an offer to contract ; and the parties making the offer most undoubtedly might have with- drawn it at any time before acceptance. " But when the offer was accepted, the minds of the parties met, and the con- tract was complete. There was then the meeting of the minds of the parties, which constitutes and is the definition of a contract. The acceptance by the plaintiffs constituted a sufficient legal consideration for the engagement on the part of the defendants. There was then nothing wanting in order to perfect a t valid contract on the part of the defendants. It was precisely as if the parties had met at the time of the acceptance, and the offer had then been made and accepted, and the bargain completed at once. " A different doctrine, however, prevails in France, and Scotland, and Hol- land. It is there held, that whenever an offer is made, granting to a party a certain time within which he is to be entitled to decide whether he will accept it or not, the party making such offer is not at liberty to withdraw it before the lapse of the appointed time. There are certainly very strong reasons in support of this doctrine. Highly respectable authors regard it as inconsistent with the plain principles of equity, that a person who has been induced to rely on such an engagement should have no remedy in case of disappointment. But, whether wisely and equitably or not, the common law unyieldingly insists upon a consid- eration, or a paper with a seal attached. " The authorities, both English and American, in support of this view of the subject, are very numerous and decisive ; but it is not deemed to be needful or expedient to refer particularly to them, as they are collected and commented on in several reports as well as in the text-books. The case of Cooke v. Oxley, 3 T. R. 653, in which a different doctrine was held, has occasioned considerable discussion, and, in one or two instances, has probably influenced the decision. That case has been supposed to be inaccurately reported, and that in fact there was in that case no acceptance. But, however that may be, if the case has not been directly overruled, it has certainly in later cases been entirely disregarded, and cannot now be considered as of any authority. " As, therefore, in the present case, the bill sets out a proposal in writing, and an acceptance and an offer to perform, on the part of the plaintiffs, within the time limited, and while the offer was in full force, all which is admitted by the demurrer, so that a valid contract in writing is shown to exist, the demurrer must be overruled." 6 See this subject more fully discussed in §§ 51, 55, ante. See, also, Johnson v. Wabash & M. V. Railw., 16 Ind. 389. [*204, 205] 218 ASSESSMENTS OR CALLS. PART II. 3. And even where a mere stranger subscribes to a railway company, with others, in order to induce the company to build a Station-house and improve the roads to it, and to aid the company in such work . and the company perform the condition on their part, the subscription is upon sufficient consideration, and may be en forced against the subscribers. 6 I. And a subscription to the stock of a railway company, con- ditioned to be void unless the company would accept the convey- ance of a specific tract of land at a given price, is a mere offer to invest the land in shares, and until accepted by the company is of no validity. 7 5. A subscription upon the performance of a condition becomes absolute upon such performance. The subscription takes effect from that time ; the first instalment required to be paid at the time of subscription then becomes due and payable, and the subscriber liable to assessment for the remainder. 8 6. There is another case 9 wherein propositions are declared which seem at variance with the general rule, that subscriptions dependent upon conditions are not effectual until such conditions are complied with. It was here held, that commissioners ap- pointed to receive subscriptions to the stock of a projected railway company are so far limited in their authority that they have no power to attach conditions to subscriptions received by them, and where they do so the act is not binding upon the company, and that after the organization of the corporation, the directors have no power to assume the subscriptions upon the conditions named, i. e. that the company assume the payment of the subscriptions and release the subscribers. 7. But we apprehend that if this decision is maintainable upon * recognized rules of law, it must be because the whole scheme of such a subscription evidences a covert fraud upon the contem- plated corporation, and that the act of the directors is but one step in fulfilment of the scheme, as the case shows the action of the first board of directors was immediately repealed upon the coming in of a new board, and the court held it competent to show what s Kennedy v. Colton, 28 Barb. 59. 7 Junction Railway Company v. Reeve, 15 Ind. 236. 5 Ashtabula & New L. Railw. v. Smith, 15 Ohio (N. S.), 328. Bedford Railw. Co. v. Bowser, 48 Penn. St. 29. See, also, Lowe v. E. & K. Railw., 1 Head, 659. [*206] 58. SUBSCRIPTION UPON SPECIAL TERMS. 219 took place at the time of passing the first resolutions with a view to establish the fraudulent purpose. SECTION XII. Subscription upon Special Terms. 1. Subscriptions not payable in money. 2. Subscriptions at a discount, not binding, n. 2. Contracts to release subscriptions not binding. 3. 4. Subscriptions before and after organiza- tion. Preside?it may accept conditional subscriptions. 5. Recent case in Alabama. 6. True rule to be deduced from all the cases. 7. Important case on par values. 8. Difficulty of maintaining them. 9. Sad effects of opposite course on com- mercial fair dealing. 10. Can a corporation stipulate to pay in- terest on stocks ? 11. Such a certificate of stock is not thereby rendered inoperative for legitimate pur- poses. § 58. 1. It is well settled, that a railway, or other joint-stock company, cannot receive subscriptions to their stock, payable at less sums, or in other commodities, than that which is demanded of other subscribers. Hence subscriptions, payable in store-pay, or otherwise than in money, will be held a fraud upon the other subscribers, and payment enforced in money. 1 2. So too in a case where subscriptions to stock of such a com- pany * are, by the agents of the company, agreed to be received at a discount, below the par value of the shares, it will be regarded as a fraud upon the other shareholders, and not binding upon the company. 2 1 Henry v. Vermilion & Ashland Railw. Co., 17 Ohio, 187. But in one case, Philadelphia & West Chester Railw. v. Hickman, 28 Penn. St. 318, it is said the company may compromise subscriptions for stock, which are doubtful, upon receiving part payment ; or may receive payment in labor or materials, or in damages which the company is liable to pay, or in any other liability of the corporation. The certificates of stock in this case were issued to the contractors, in part payment of work done by them upon the road ; to others, in part pay- ment for a locomotive, for sleepers, for land-damages, and for cars. We do not understand how there can be any valid objection to receiving payment for sub- scriptions to the capital stock of a railway company in this mode, if the shares, so disposed of, are intended to be reckoned at their fair cash value, at the time of the contract being entered into. It is certain, contracts of this kind have been very generally recognized by the courts as valid, and no fraud upon the other subscribers. 2 Mann v. Cooke, 20 Conn. 178. In this case the defendant subscribed for [*207] 220 ASSESSMENTS OR CALLS. PART II. * 3. In a case in Pennsylvania, 3 it is said that subscriptions made to the capital stock of a corporation before its organization, fortv shares in the capital stock of a railway company, upon condition that all future calls should be paid, as required, or the shares should become the prop- erty of the company. He thereupon received certificates of ownership of the forty shares, the special terms of his subscription not being known to the other Bubsci ibers. Si niie time afterwards, the company being largely indebted, and insolvent, and the greater part of the instalments on its stock being unpaid, the president made an arrangement with defendant that he should immediately pay the instalments on twenty shares of his stock, in full, and he was thereupon to be discharged from all liability on the other twenty shares. Defendant complied with these terms, and the money paid went for the benefit of the company. The plaintiff was appointed receiver of the effects of the company, and brought this bill in equity to obtain payment of the balance due upon the other twenty shares, and it was held : — 1. That the subscription for the stock was in legal effect the same as an ordi- nary subscription for stock, without condition. 2. That the arrangement made with the president of the company was void, as a fraud upon stockholders and creditors. 3. That the company, being created for public purposes, could not receive subscriptions under a private arrangement at less than the par value of the stock, as this would deprive the company of so much of its available means, and thus operate as a fraud upon all parties interested. But where one paid for stock in a railway company, under a secret agreement with the commissioner of contracts that he might receive land of the company at a future day, and pay in the stock certificate, and the company declined to ratify the contract, it was held the subscriber was released from his portion of the contract, and might recover the money he paid for the stock of the com- pany. Weeden v. Lake Erie & Mad River Railway, 1-4 Ohio, 563. But in the case of the Cincinnati, Indiana, & Chicago Railw. v. Clarkson, 7 Ind. 595, it seems to be considered, that the company are bound by a contract to compen- sate a solicitor of subscriptions to the capital stock, payable in land, but no ques- tion is made in regard to the validity of the subscriptions. The solicitors were ordered by the directors to accept such subscriptions, and were to have two per cent on all which were accepted by the company, and the contract was held binding upon the company. An agreement by a railway company, that a sub- scriber for stock may pay the full amount, or any part of his subscription, and receive "interest thereon until the road goes into operation" does not oblige the company to pay interest before the road goes into operation. Waterman v. Troy & Greenfield Railway, 8 Gray, 433. See, also, Buffalo & N. Y. City Railw. v. Dudley, 1-4 N. Y. 336 ; ante, § 54, pi. 4. An agreement to pay interest upon stock " as soon as paid," means fully paid. Miller v. Pittsburg & Connellsville Railw., 40 Penn. St. 237. 3 Pittsburg & Connellsville Railw. v. Stewart, 41 Penn. St. 54. The question of the presumptive effect of the conduct of a subscriber after the organization of the company, in attending and taking part in the meetings of the company [*208] § 58. SUBSCRIPTION UPON SPECIAL TERMS. 221 must always be payable in money only. But after the organiza- tion, the company may stipulate with the subscriber for pay- ment in any other mode, and can only enforce the contract according to its terms ; and the act of the president of the com- pany in accepting conditional subscriptions is binding upon the company. 4. It is also held in the same case, 3 that the fact the subscriber makes part payment in money before call, will not estop him from setting up the special contract in defence of an after call. 5. But in a somewhat recent case in Alabama, 4 it was held that a subscription to the capital stock of a railway company in ex- press terms made payable in work, in grading the line, to be taken at the public or private letting and performed to the accept- ance of the company's engineer, could not be enforced against the subscriber until he had had reasonable opportunity to perform the contract in the manner specified by its terms. But if after that, the defendant failed on his part to perform it, he was liable to pay the amount in money. It is here said that the subscriber must take notice of the published lettings of the work. 6. The cases may seem conflicting upon this point ; but the true principle seems to be, that the corporation can only enforce the contract of subscription according to its terms, and of this the subscriber cannot complain, or resist successfully the enforcement of his subscription in that mode. But so far as the creditors of the eompanj^ are interested in the matter, they may hold the directors responsible for having received the amount of the capital stock in money. And as to the duty of the directors, they cannot, in strictness and fairness, receive subscriptions payable in any thing but money ; nor can they launch the company until the whole capital stock is subscribed in money. And any fraud or evasion in this particular will render the directors responsible for the debts of the .company, as in equity and fair dealing it should. * 7. There is a very sensible case 5 in North Carolina bearing upon the proper construction of any special contract with the company, is here considerably discussed. 4 Eppes v. M. G. & T. Railw., 35 Alabama, 33; H. & P. Plank R. Co. v. Bryan, 6 Jones Law, 82. 5 Neuse River Nav. Co. v. Commissioners of Newbern, 7 Jones Law, 275. But in Shoemaker v. Goshen Turnpike Co., 14 Ohio (N. S.), 5G9, from the mere permission in the statute to submit the question of subscription to the voters of a township, the court implied the power to issue bonds in payment of such sub- [*209] 222 ASSESSMENTS OR CALLS. PART II. upon this question. The legislature had authorized the town of Newborn to take stock in a company for improving the navigation of the river Neuse, by which the business of the town was ex- pected to be advanced. The town was, by the act, authorized to pay for the stock subscribed by them with their bonds, to be is- Bued and sold on certain terms, but the amount of bonds issued was restricted to the amount of the stock subscribed, and it was held, that as the corporation could not, except by legislative sanc- tion, accept anything but money in payment of stock, and could not issue stock at any rate below par, the bonds could not be sold below par ; and that to a mandamus to compel the town to pay for stock thus subscribed, it must be regarded as a sufficient return, that the authorities of the municipality had prepared and executed the bonds, and had offered the same for sale by public advertisement, and had diligently endeavored otherwise to effect a sale of the same on the terms prescribed by the statute, and had not been able to sell the same. 8. This case unquestionably puts these perplexing inquiries upon the true basis ; that is of fair dealing or no dealing at all. But we apprehend that railway contractors and builders would regard it as placing the matter in a very impracticable light. And we are not prepared to say how far the courts will feel justi- fied in departing from the strict letter of the law in these particu- lars, out of deference to the speculative tendencies of the age. 9. It is certain that corporate stocks, from the first, are now always more or less a matter of speculation in the market ; and the same is true of all municipal bonds issued in aid of enter- prises affecting the interests of such corporations. And, in fact, no one ever dreams of demanding strictly par values, in dealing either with the bonds or the stock, and we do not suppose it can now ever be brought back to the strictly par basis. There is, too, another great embarrassment in the way of return to par values. We have, in fact, no par basis to which to return. Until a specie • basis is reached, every thing is at the mercy of speculators and monopolists. This is, no doubt, a very melancholy state of affairs to have a great commercial country in. But so long as commer- cial men endure it, and the government submits to it, we do not see how the courts can remedy it. But it is certainly refreshing scription in the usual negotiable form, and to negotiate them to the company at par, in payment for the stock subscribed. [*210] § 58. SUBSCRIPTION UPON SPECIAL TERMS. 223 to see courts struggling to resist in every way in their power such a fearful tide of evil. In our humble judgment, unless some mode of escape is found, speculation and monopoly will eat out all honesty and fair dealing in all commercial transactions, and the country will in its commerce become a band of legalized plunderers upon each other. The monopoly in flour and grain and some of the other staples of the country is scarcely less than that, at the present time. 10. There seems to be some question whether a corporation can stipulate to pay interest upon its stock certificates from the first without regard to the earnings of the company. It is certain such a stipulation is at variance with the ordinary duties of corpor- ations, and will not therefore come within the range of the implied authority of the directors of the company. But in one case, 6 it seems to have been considered, that the stockholders might so ratify such a stipulation as to render it binding upon the company. But we should very seriously question if any such authority is im- plied from the general grant of corporate power for ordinary busi- ness purposes, like that of railways. It would seem to require a special delegation of authority by the legislature, and in that form it is nothing else but a device for borrowing money, in advance of launching the corporation upon its legitimate functions. 11. The case last cited 6 decided that such a stipulation, super- added to a certificate of stock, will not defeat its original effect of making the holder a member of the corporation ; and that if certi- ficates of stock be so issued by the directors, it will be regarded as a sufficient ratification of them by the corporation that at a stock- holders' meeting a majority voted to pay such interest in the bonds of the company ; but the holders are not thereby compellable to ac- cept payment in that mode, unless they assented to the vote. 6 McLaughlin v. Detroit & Milw. Railw., 8 Mich. 100. It seems scarcely allowable to treat the vote of the majority as a ratification of an act of the direc- tors beneficial to the minority, and at the same time not binding upon the minority except by their own consent. Richardson v. Railw. Co., 44 Vt. 613, where the question is very extensively examined and placed upon the most plausible ground, that such a condition in the subscription may be binding upon the company, whenever its surplus earnings will enable them to meet the payment, which amounts to nothing more than a guaranty of a dividend to that amount. [*210] 224 ASSESSMENTS OR CALLS. PART II. ♦SECTION XIII. /v / nil '«/>(,■ Relief from Subscriptions obtained by Fraud. 1 . - stantial misrepresentations in obtaining subscriptions will avoid them. 2. But for circumstantial misconduct of the din dors, in the matter, they alone are liable. Party purchasing must make reasonable examination of papers referred to on all doubtful points. Bui no relief will be granted, where there is no fraud, or in- tentional misrepresentation. Directors cannot make profit for themselves. $ 59. 1. The directors of a railway company, who make repre- sentations on behalf of the company to induce persons to sub- scribe for the stock, so far represent the company in the transaction, that if they induce such subscription by a substantial fraud, the contract will be set aside in a court of equity. 1 The proper inquiry in such case is, " Whether the prospectus, so issued, contains such representations, or such suppression of existing facts, as, if the real truth had been stated, it is reasonable to believe the plaintiff would not have entered into the contract ; that is, that he would not have taken the shares allotted to him, and those which he pur- chased." 2 1 Sir John Eomilly, M. R., in Pulsford v. Richards, 17 Beav. 87; 8. c. 19 Eng. L. & Eq. 387, 392. The prospectus issued in such cases is to be regarded as a representation. And where one is induced to take shares in a joint-stock company, through the false and fraudulent representations of the directors, he is not liable to calls for the purpose of paying the expenses of the company. The Royal British Bank, Brockwall's case, 29 Law Times, 375; s. c. 4 Drew. 205. And where one of the directors of a company put the name of an extensive stockholder in the company, who resided in a foreign country, to a new sub- scription for forty additional shares, without consultation with such person, upon the belief that he would ratify the act, and upon being informed of such act, he made no objection for the period of nearly seven years, during which time the company had applied the dividends upon his stock in payment of such subscrip- tion, having no intimation of any dissent upon his part, it was he d the subscrip- tion thereby became binding, and that the party could not recover such dividends of the company. Philadelphia, Wilmington, & Baltimore Railw. v. Cowell, 28 Penn. St. 329. - Pulsford v. Richards, 17 Beav. 87; s. c. 19 Eng. L. & Eq. 392; Jennings v. Broughton, 17 Beav. 234; s. c. 19 Eng. L. & Eq. 420. One, to entitle him- self to be relieved from bis subscription, must show that he acted upon the false representations of the directors in a matter of fact material to the value of the enterprise, and not upon the mere speculation of the directors, or upon his own [*211] § 59. SUBSCRIPTIONS OBTAINED BY FRAUD. 225 * 2. Bat the omission to state in a prospectus the number of shares taken by the directors, or other persons, in their interest, is no such fraud as will enable a subscriber to avoid his subscrip- tion. 2 The fact that the directors of the company had entered into a contract with one, as general superintendent of construction, for four per centum upon the expenditure ; and that this was an ex- orbitant compensation, and was, in fact, intended to compensate such person for his services, in obtaining the charter, and that this is not stated in the prospectus, is no such suppression as will exon- erate subscribers for stock. " There was not the suppression of a fact, that affected the intrinsic value of the undertaking. That value depended upon the line of the projected railway, the popu- lation, the commercial wealth, the traffic of the places through which it passed, the difficulties of the construction, and the cost of the land required. Extravagance in the formation of a line of railway is a question of liability of the individual directors to the shareholders, but not a ground for annulling the contract be- tween them." 2 3. There can be no question one will be affected with notice of all facts discoverable by examination of papers referred to in a prospectus for the sale of shares, provided such papers are accessi- ble to him, unless the facts stated in the prospectus are so specific as to divert interest from all further inquiry. It was accordingly held that where the contract of subscription bound the subscriber to the terms of the articles of association, an examination of which would have disclosed the facts upon which the party claimed to be relieved from his subscription, but that trusting to the state- ments contained in the prospectus, he did not look further, this neglect or omission was no answer to his claim for relief. 3 But the party is not entitled to relief by reason of the repre- sentation of any fact, made in good faith, and upon reason- exaggerated expectations of the prospective success and value of the undertaking. See, also, upon this general subject, the remarks of the Master of the Rolls, p. 427. In the case of Reese River Silver Mining Co. v. Smith, 17 W. R. 1042, s. c. LawRfp. 4 H. L. 64, Lord Cairns is reported to have said, " If persons take upon themselves to make assertions, as to which they are ignorant whether they are true or untrue, they become, in a civil point of view, as responsible as ff they had asserted that which they knew to be untrue ; " provided it prove to be so, his lordship intended to imply, of course. 3 Central Railw. v. Kisch, Law Rep. 2 H. L. 99. vol.i. • 15 [*212] 226 ASSESSMENTS OR CALLS. PART II. able grounds of probability, but which proves unfounded upon grounds equally unknown to both parties. 4 4. But the learned judge in one case 2 suggests, with great pro- priety, that if the directors have made contracts, in the course of the performance of their duties, from which advantage is expected to * arise to themselves, or to others, for their benefit, mediately or immediately, they may, in a court of equity, be made to stand in the plaoe of trustees to the shareholders. 5 SECTION XIY. Forfeiture of Shares. — Relief in Equity. 1. Requirements of charter and statutes must be strictly pursued. 2. If not, equity will set aside the forfeiture. 3. Must credit the stock at full market value. 4. Provisions of English statutes. 5. Evidence must be express, that all requisite steps were pursued. § 60. 1. The company, in enforcing the payment of calls by forfeiture of the stock, must strictly pursue the mode pointed out in their charter and the general laws of the state. This is a rule of universal application to the subject of forfeitures, and one which the courts will rigidly enforce, and more especially where the forfeiture is one of the prescribed remedies, given to the party, and against which equity does not relieve, when fairly exercised. 1 2. But as the company, in such case, ordinarily stand in both relations of vendor and vendee, their conduct, in regard to fair- ness, will be rigidly scrutinized, and the forfeiture set aside in courts of equity, upon evidence of slight departure from perfect fairness. 4 Kennedy v. Panama Mail Co., Law Rep. 2 Q. B. 580. 5 Post, § 140. 1 Sparks v. Liverpool Water- Works, 13 Vesey, 428 ; Prendergast v. Turton, 1 Younge & Coll. (N. R.) 98, 110-112. This case is put mainly upon the ground of delay and acquiescence, but there is little doubt it would have been maintained, upon the general ground stated in the text. See Edinburgh, Leith, & N. H. Railw. v. Hibblewhite, 6 .M. & \V. 707 ; s. c. 2 Railw. C. 237. But where the deed of settlement 01 a joint-stock company provides for a forfeiture of the shares with- out notice to the subscriber, the forfeiture determines the title without notice. [*213] §60 a. RIGHT TO INSPECT BOOKS OF COMPANY. 227 3. Henco where the company declared the stock cancelled, and credited the value at a less sum than the actual market price at the time, but more than it would probably have sold for if that number of shares had been thrown at once into the market, the court set aside the forfeiture, on the ground that the company were bound to allow the highest market price which could be * obtained, without speculating on what might be the effect of throwing a large number of shares into the market. 2 4. By the English statute the company are not allowed to forfeit a larger number of shares than will produce the defi- ciency required. 3 And upon payment to the company of the amount of arrears of calls, interest, and expenses, before such forfeited shares are sold by them, the shares revert to the former owner. 3 5. The evidence of the company having pursued the require- ments of their act, in declaring the forfeiture, must be express and not conjectural. 4 SECTION XV. Right of Corporators and Others to inspect Boohs of Company. 1. May inspect and take minutes from books. 2. Discussion of the extent to which such books are evidence. 3. For what purposes such books are impor- tant as evidence. 4. This will not embrace the books of pro- ceedings of directors. 5. Party claiming to be shareholder may in- spect register. 6. Allowed when suit or proceedings pending. 7. Party may have aid in the inspection. § 60 a. 1. It seems to be conceded as a well-settled rule of law, that the shareholders or corporators in a joint-stock corpora- tion are entitled, as matter of right, to inspect and take minutes from the books of the company at all reasonable times, 1 as they are the best evidence of the facts there registered, and equally the Stewart v. Anglo-California Gold Mining Co., 18 Q. B. 736; s. c. 14 Eng. L. & Eq. 51. 2 Stubbs v. Lister, 1 Y. & Coll. (C. C.) 81. 3 8 & 9 Vict. c. 16, §§ 34, 35. 4 Cockerell v. Van Diemen's Land Co., 18 C. B. 454 ; s. c. 36 Eng. L. & Eq. 405. 1 Angell & Ames on Corp. § 681. [*214] 228 ASSESSMENTS OR CALLS. PART II. property of all the proprietors. 2 And the board of directors of the company have no power to exclude any member from the exercise of this right, even upon the ground that he is unfriendly to the interests of the company. 3 •J. But it seems to be now settled that strangers cannot obtain the inspection of such books, even by application to the court, their contents being regarded as private memoranda, in no sense possessing any public character, 4 notwithstanding a contrary ♦practice obtained 5 for a time. It may sometimes have been as- Bumed, that the books of private corporations possessed a higher quality of evidence than is the fact. We do not apprehend that they are in any sense indispensable primary evidence of the facts there recorded. As a general thing, as to the organization of the company and the choice of officers, all that is requisite will be to prove, de facto, the .organization of the company and the exercise of such offices by the persons named. Where it is requisite that an authority be given by the majority vote of the company, it may most conveniently be shown by the record, and perhaps in .such a case - the records of the corporation may fairly be considered the best proof of the facts, if in the power of the party, as if the cor- poration itself were called to prove such vote. But any party not entitled to the custody of the papers can only prove their contents, unless the corporation is the opposing party, in which case he may give notice to produce the books, and, in default, may prove the contents by secondary evidence. It has been decided that the clerk of the company cannot be compelled to produce the books on a subpoena duces tecum!' 3. It has been held that a bank depositor has the right, under proper circumstances and in a reasonable manner, to inspect the books of the bank. 7 In practice it is not one time in ten where the record books of a corporation are ever referred to in court, unless to fix a date or the precise form of a vote upon which a power is made to depend. But the registry of shareholders may 1 Owinga v. Speed, 5 Wheaton, 420, 424. 3 People D.Throop, 12 Wend. 183; Cotheal v. Brower, 1 Seld. 5G2. 4 Mayor of Southampton v. Greaves, 8 T. R. 590. 5 Mayor of Lynn v. Denton, 1 T. R. 689, and cases cited. 6 I'tiea Bank v. llillard, 5 Cow. 419; Narragansett Bank v. Atlantic Silk Co., 3 Met. 282. 7 Union Bank i\ Knapp, 3 Pick. 96. [*215] § 60 a. RIGHT TO INSPECT BOOKS OF COMPANY. 229 be properly regarded as the primary evidence of membership, but by no means indispensable or conclusive. 8 4. Where the deed of settlement under which a corporation is registered contained a provision " that the books wherein the proceedings of the company are recorded shall be kept at the principal office of the company, and shall be open to the inspection of the shareholders," it was held that the clause gave shareholders power only to inspect the books of minutes of proceedings of the general meetings, and not of the minutes of the proceedings of the directors. 9 * 5. In a somewhat recent English case 10 it was held, that a party whose claim to be a shareholder is disputed by the company may, in an action brought against the company, inspect any en- tries in the register which relate to the matter in dispute. 6. And in a still more recent case, where one of the members of the corporation was in controversy with the company in regard to his right to act as one of the governing body, which right de- pended upon an inspection of the records of the company in order to determine its usages, the court granted permission to inspect the books. 11 But it is here said this will not be done unless there is a suit or some proceedings pending. 7. And in the inspection of all documents, by order of the Court of Chancery, the party in whose favor the order is made has the right to have such aid in the inspection, either by coun- sel, interpreters, or experts, as will make the inspection available to him. 12 8 We refer to what we have before said upon the subject. Ante, § 18, pi. 10- 13; § 23, n. 8. 9 Reg. v. Mariquita Mining Co., 1 El. & El. 289. 10 Foster v. The Bank of England, 8 Q. B. 689. 11 Reg. v.. Saddlers' Co., 10 \V. R. 87. At Chambers, Grompion, J. 11 Swansea Vale Railw. Co. v. Budd, Law Rep. 2 Eq. 274 ; s. c. 12 Jur. (N. S.) 561. As to the effect of the certificate of the clerk of a corporation under its seal, see New Orleans & O. R. Co. v. Lea, 12 La. Ann. 388. A passenger who has brought suit against a railway company for injury sustained on its line has the right to inspect the record of accidents kept by the company, on the report of the conductor, in obedience to the statute. Woolley v. North London Railw., 17 W. R. 650 ; s. c. id. 797, L. R. 4 C. P. 602. [*216J PART III. THE LAW OF RIGHT OF WAY, EMINENT DOMAIN, ETC. PART III. THE LAW OF RIGHT OF WAY, EMINENT DOMAIN, ETC. ^CHAPTER X. RIGHT OP WAY BY GRANT. SECTION I. Obtaining Lands by excess Consent. 9. 10. 11. Leave granted by English statute. Persons under disability. n. 2. Money to take the place of the land. Consent to pass railway. Duty of railway in all cases. License to build railway. Extent of du- ration. Company bound by conditions in deed. Parol license good till revoked. Sale of road no abandonment. Deed conveys incident; not explainable. One cannot derogate from compulsory grant. 12. But this does not apply to accidental in- cidents. 13. Case in New York Court of Appeals somewhat at variance with the preced- ing cases. 14. A municipal corporation may be bound by implied contract in the qrant of land so as not to be at liberty to recede from it. 15. A mere agreement to sell, although in writing, will not justify the company in entering upon the land, or defeat pro- ceedings under the statute to recover damages for taking the land. §61. 1. The English statute 1 enables railway companies to purchase, by contract with the owners, " all estates or interests (in any lands) of what kind soever," if the same, or the right of way over them, be requisite for their purposes. 1 8 & 9 Vict. c. 18, § 6. And companies have the right, upon general prin- ciples, in this country, to acquire the right of way by contract with the land- owners. But such concessions by natural persons to public companies will receive a reasonably strict construction, so as to secure the rights of land-owners. Unangst's Appeal, 55 Penn. St. 128. [*217] 234 BIGHT OF WAY BY GRANT. PART III. •J. Ami by another section of the same statute such companies are empowered to purchase such lands of persons legally inca- pacitated to convey the litle, under other circumstances, as guar- dians of infants, committees of lunatics, trustees of charitable or Other uses, tenants in tail, or for life, married women, seised in their own right, or entitled to dower, executors or administrators, and all parties, entitled, for the time being, to the receipt of the rents ami profits. 2 * :'». The valuation in this latter class of cases is to be made by disinterested persons, and the price paid into the bank for the benefit of the parties interested. 1. And where a railway act provided, in terms, that nothing therein should authorize the company to do any damage or preju- dice to the lands, estate, or property of any corporation or person whatsoever, without the consent in writing of the owner and oc- cupier, it was held they could not pass the line of another railway without their consent, although the withholding of such consent should frustrate the purpose of the grant. 3 5. In this country most of the railway charters contain a power to the company to acquire lands, by agreement with the owner. In such case it has been held the rights of the company are the same as where they take their land under their compulsory powers. 4 And they are bound to the same care in constructing their road. 4 2 Ilutton v. The London & South W. Railw., 7 Hare, 264. Some suggestions are here made by Vice-Chancellor Wigram, in regard to the time within which it is requisite to make compensation in the several modes of taking lands. The principal question decided is, that in regard to lands, injuriously affected by railway works upon other lands, it is not requisite to make compensation in ad- vance. Hut where lands are purchased from persons under disability, the course of devolution of the property is not thereby changed, but the money paid in compensation is to take the place of the land, and to be treated as real estate. Midland Counties Railw. v. Oswin, 1 Coll. (C. C.) 74; s. c. 3 Railw. C. 497; Ex parte Flamank, 1 Simons (N. S.), 260; In re Horner's Estate, 5 De G. & • s - 183; -. i . 13 Eng. L. & Eq. 531; In re Stewart's Estate, 1 Sm. & G. 32; 8. c. 13 Eng. I.. & Eq. 533. ' ( larence Railw. v. Great North of England Railw., 4 Q. B. 45; Gray v. The Liverpool & Bury Railw. 9 Beav. 391; s. c. 4 Railw. C. 235. 4 Whitcomb v. Vermont Central Railw., 25 Vt. 49, 69. This right to acquire lands, by contract with the owners, is, by implication, if not expressly limited to the necessities of the company, we presume, the same as taking lands in invitum, and cannot be extended to any private use. But if the owner of the land con- [*218] §61. OBTAINING LANDS BY EXPRESS CONSENT. 235 6. And where the railway have the power to take five rods, through the whole course of their line, and a land-owner deeds them the full right to locate, construct, and repair, and for ever maintain and use their road over his land, if, in laying the drains or ditches through the land, it becomes necessary to go beyond the limits of the five rods, in order to guard against the effect of a stream to be passed, the company may lawfully do so under the grant. 5 * 7. In case of a deed to a railway company of land, on which to construct their road, the assent of the company will be pre- sumed, and they are bound by the conditions of the grant, as that the road shall be so constructed as not to interfere with buildings on the land. 6 8. An oral permission to take and use land for a railway is a bar to the recovery of damages for such use, until the permis- sion is revoked. 7 In one case before the House of Lords, 8 a sent to the use, the constitutional objection is removed, and the right to hold the land is a question between the company and the public, probably. Dunn v. City of Charleston, Harper, 189; Harding v. Goodlett, 3 Yerg. 41; 11 Wend. 149; Embury v. Conner, 3 Comstock, 516. 5 Babcock v. The Western Railw., 9 Met. 553 ; s. c. 1 Redf. Am. Railw. Cases, 191. But a conti-act with the owner of land, for leave to build the road through his land, and staking out the track through the land, is no such occupation as will be notice of the right of the company against a subsequent mortgagee. Merritt v. Northern Railw., 12 Barb. 605. But the payment by the company of the price of the land, and changing their route in faith of the title, might give them an equity superior to that of a subsequent mortgagee. lb The deed of one tenant in common is a good release of his claim for damages, although it convey no right as against his co-tenant. Draper v. Williams, 2 Mich. 536. But an agreement to sell land to a railway company, and a tender of the price by the company, creates no title in them. Whitman v. Boston & Maine Railw., 3 Allen, 133. 6 Rathbone v. Tioga Navigation Co., 2 Watts & Serg. 74. And the rights and duties of the company, in such case, are precisely the same as if the land had been condemned, by proceedings in invitum, under the statute. Norris v. Vt. Central Railw., 28 Vt. 99. Such grant carries the incidents necessary to its enjoyment. And if it becomes necessary, in constructing the road, to make a deep cut, that may be done, and the company are not bound to protect the banks of the excavation by a wall. Hortsman v. Lexington & Cov. Railw., 18 B. Mon. 218. See also Louisville & Nash. R. v. Thompson, 18 B. Mon. 735. 7 Miller v. Auburn & Syracuse Railw., 6 Hill, 61. It seems to have been made a question whether the company, after the revocation of such license, could 8 Ramsden v. Dyson, Law Rep. 1 Ho. Lds. 123; s. c. 12 Jur. (N. S.) 506. [*219] 236 RIGHT OF WAY BY GRANT. PART III. very important, and as it seems to us reasonable and just quali- fication L8 annexed to the familiar doctrine of implied assent to the appropriation of land to a permanent use by the owner stand- ing by and not objecting. It is here ruled, "If a stranger builds upon the land of A., supposing it to be his own, and A. remains wilfully passive, equity will not allow him to profit by the mistake ; but if the stranger knows that the land upon which he is building belongs to A., then A. may assert his legal rights and take the ' benefit of the expenditure. And a tenant building upon his land- lord's land, in the absence of such special circumstances, acquires no right against him at the expiration of the tenancy. But a mere license to build works connected with a railway, the dam- ages to be settled with a person named, or " on equitable terms hereafter," does not amount to any definite agreement. 9 9. Where land is conveyed, for the use of a railway, upon con- dition that it shall revert to the owner upon the abandonment of the road, and the road was sold, under a mortgage, to the state, and by the state and by new companies chartered for that purpose completed, it was held, that the grantor was not entitled to hold the land. 10 be allowed to remove the fixtures of their road from the land, such as rails, spikes, &c. But it was held they might, as trade fixtures. Northern Central Railw. f. ( lanton Co., 30 Md. 347. And such license, when executed, by the construc- tion of the work, is not allowed to be revoked. The only relief the party is entitled to is compensation for his land. Water Power v. Chambers, 1 Stock. Ch. 471. And it was held in a somewhat recent English case, Corby v. Hill, 4 C. B. ( X. S.) 556; s. c. 31 Law Times, 181, that where the owner of land had given oral permission to one for a private way, he could not obstruct, or give permission to others to obstruct, such way ; and that where a third person, by permission of the land-owner, placed building materials in the way, whereby an injury accrued to the person having the way, he might sue for such injury. 9 Fitchburg Railw. v. Boston & Maine Railw., 3 Cush. 58. But a writing whereby the owner of land along the line of a contemplated gravel road gave the road-company the right to enter upon his landflfcnywhere within a mile of the contemplated road and dig and remove gravel, as much as they might require, was beld not a mere license, but a grant irrecoverable. Bracken v. Ruskville Gravel Road ( '..., l'7 Ind. 346. 10 Harrison r. Lexington & Ohio Railw., 9 B. Mon. 470. So, too, if land is conveyed on condition that an embankment (water-tight) over a brook crossing the land shall be erected by the grantors, and that the embankment, or dam, with the floodgates or sluices therein, might be used for hydraulic purposes by the grantors, their heirs, and assigns, the grantees not to be liable to the grantors for any damage they might sustain by a break in such dam, unless the same [*220j § 61. OBTAINING LANDS BY EXPRESS CONSENT. 237 10. Where land was conveyed to a railway company, for the purpose of constructing their road, on which was a tenement, and to this water was conveyed by an aqueduct from another portion of the land of the defendant, and the price of the land was fixed by the commissioners, the defendant at the time claiming the right to withdraw the water, and this not being objected to by the presi- dent and engineer of the company, who were present at the * time, it was held, that the deed containing no exception in regard to the water, the company acquired the right to its use, in the manner it had been before used, and the defendant was liable to an action for diverting it, 11 and the intention of the parties could not be deter- mined by extraneous evidence. 11. So, also, the principle that a grantor, knowing the purpose for which his deed is accepted, cannot derogate from his own grant, applies to the case of a compulsory conveyance, under legis- lative authority, and the act is sufficient notice to the grantor of the purposes of the conveyance. But this rule wiU not apply to any accidental state of facts, existing at the time of the grant, as the support resulting from an excavation being filled with water at the time, so as to entitle the grantee to insist upon its continu- ance. 12. And accordingly, where a railway took the land above a mine for the support of the abutments of a bridge, the mine hav- ing been abandoned for forty years and full of water, it was held should happen through the gross neglect or wilful misfeasance of the grantees, but that the grantees should repair the dam forthwith, it was held to be a condi- tion subsequent, the failure to perform which would give the grantors, or their heirs, a right of re-entry at their election. But it was further said, that the con- veyance of the estate by the grantees defeated the condition, and that the assignee had no remedy upon it. Underbill v. Saratoga & Wash. Eailw., 20 Barb. 455. And such conditions may be waived by the party in whose favor they are made, as in a grant of land for a railway track, the road to be completed by a day named, or the deed to be void, which was not done ; but the grantor continued to treat the company as having*the right to use the land for the purposes of the grant, and it was held a waiver of the condition. Ludlow v. New York & Har- lem Railw., 12 Barb. 440. The mere permission by a railway company, that some of their warehouses or engine-houses shall be used by private dealers for warehousing purposes on payment of rent, will not operate as a forfeiture of the rights of the company in favor of the owner of the fee, but will entitle him to maintain a writ of entry against the company for the establishment of his right therein, and to recover mesne profits during such misappropriation of the land. Proprietors of Locks & Canals v. Nashua & Lowell Railw., 104 Mass. 1. 11 Vermont Central Railw. v. Hills, 23 Vt. 681. • [*221] 238 RIGHT OF WAY BY GRANT. PART III. they could not insist upon having the water remain in the pit, as a support to t ho earth, but that they were entitled to be protected from damage likely to result from working the mine. 12 L3. It a railway have power to take land by consent of the owner, an oral consent is sufficient. 13 And if the company take land and put it to their use without the consent of the owner, or any other proceeding under their powers, it is a trespass, but can only be sued for by the person then owning the land, and not by his grantee. 18 But this case was reversed upon error, and it was de- cided, somewhat at variance with the present English rule, that such a license, coupled with an interest, was still revocable at the option of the licensor. But the final conclusion of the court of error, that " consent," in such an act, meant the effectual consent of the law expressed with due formality, seems altogether the more reasonable ground upon which to place the case. 14. The New York Court of Appeals 14 held that municipal cor- porations, as to their rights and powers over lands owned by the corporation, were to be viewed the same as any other owner * of land, and that their acts and resolutions in regard to the use of such land by others were not to be regarded as either of a legisla- tive or governmental character ; and that although such corpora- tions have no power as a party to make contracts which shall control or embarrass their legislative powers and duties, yet, as these legislative duties, or powers, only extend to regulations of police and internal government, and not to the mere imposition of a sum of money for revenue purposes, consequently an ordinance imposing a license duty upon city cars, for revenue purposes only, is not an ordinance for police and internal government, and the imposition of an annual tax upon a city passenger railway, in derogation of its rights, as defined by a specific agreement between the city and the railway company, for purposes of revenue merely, is unlawful and void. 15 18 North Eastern Railw. Co. v. Elliott, 1 Johns. & H. 145 ; s. c. G Jur. (N. S.) 817. 13 Central Railw. Co. v. Hitfield, 5 Dutcher, 206; s. c. in error, id. 571. M Mayor, &c of the City of New York v. The Second Avenue Railw., 32 X. "> . 261 ; s. c. 3-1 Barb. 4-1, where the case was similarly ruled. Che terms of this contract appear more fully where the case is reported in Barbour. [I prescribed the regulations to which the company should be liable, requiring no further license, and reserving no power to require one thereafter. This was hi Id to preclude the city authority from making the imposition de- §62. SPECIFIC PERFORMANCE IN EQUITY. 239 15. Proof of a written agreement to sell land to a railway com- pany at a given price, within a limited time, and a tender of the same within the time, and a refusal to accept, will not justify the company in locating their road upon the land, or defeat proceedings under the statute to recover damages for such location. 16 ♦SECTION II. Specific Performance in Equity. 1. Contracts before and after date of charter. 2. Contracts where all the terms not defined. 3. Contracts for land umpire to fix price. 4. Where mandamus also lies. 6. Contracts not signed by company. 6. Where terms are uncertain. 7. Contracts giving the company an option. 8. Contracts not understood by both parties. 9. Order in regard to construction of high- ways may be enforced at the suit of the municipality. 10. The courts sometimes decline to decree specific performance on the ground of public convenience. 11. No decree of specific performance when contract vague and uncertain, and for other reasons. 12. Courts of equity will not in the final decree make the price a charge on the land, unless so declared at first. § 62. 1. There can be no doubt courts of equity will decree specific performance of contracts for land, made by consent of the owners, as well after the act of parliament as before. 1 2. If the agreement contains provisions for farm-crossings, manded. It would seem, the case might have been decided, in conformity with the dissenting opinion of Mr. Justice Ingraham, in the court below, without any great violence to principle. See also Branson v. Philadelphia, 47 Penn. St. 329 ; Veazie v. Mayo, 45 Me. 560; People v. New York & Harlem R. Co., 45 Barb. 73 ; Vilas v. Mil. & Miss. R. Co., 15 Wis. 233. A grant of land to the use of a highway seems to be regarded as giving the municipal authorities the same rights in regard to its use as where the land is condemned for that purpose. Murphy v. The City of Chicago, 29 111. 279. The grant to a railway company of a right to build a tunnel will not preclude the owner of the land from digging minerals under the tunnel, in conformity with the general railway acts. London & N. W. Railw. Co. v. Ackroyd, 8 Jur. (N. S.) 911. 16 Whitman v. Boston & Maine Railw., 3 Allen, 133. This written contract might be evidence of the value of the land, or an admission by the owner, and as such might probably be used in the proceedings under the statute for estimat- ing damages. 1 Ante, § 13, el seq. ; Walker v. The Eastern Counties Railw. Co., 5 Railw. C. 469 ; s. c. 6 Hare, 594. [*223] 240 RIGHT OF WAY BY GRANT. PART III. fences, and cattle-guards, cither express or implied, the master will In 1 directed to make the proper inquiry, and any decree for specific performance should provide minutely for all such inci- dents.' 2 But, upon general principles, if the agreement provide that the price of land is to he fixed by an arbitrator or umpire, it has generally been held that a suit for specific performance is not maintainable. 8 3. But if the arbitrator have acted and fixed the price, 4 and by parity of reason, if the umpire is named, and ready to act, there being no power of revocation, a court of equity may decree spe- cific performance. Hence in the case above, 1 the Vice-Chancellor held, that, as the contract was to take the land on the terms pre- scribed in the act of parliament, the court had the means of * applying those terms, so as to get at the price, and might there- fore require the party to put them in motion, and then, in its dis- cretion, decree specific performance. 4. And the consideration, that possibly the party might proceed by mandamus, will not deprive him of this remedy in equity, un- less the aict specially provides the remedy by mandamus. 5 5. But if the company take a bond of a land-owner, to convey so much land as they shall require, and subsequently appropriate the land, but decline accepting a deed and paying the price, equity will not decree specific performance of the contract, the bond not being signed by the company. 6 But in such a case specific performance will be decreed against the party signing the bond upon refusal." 6. A contract to sell a railway company " the land they take " from a specified lot of land, at twenty cents a foot, " for each and every foot so taken by said company," imports a taking by the company, under their compulsory powers, and will not be specifi- cally enforced until so taken by the company. And if the terms 2 Sanderson v. Coekermouth & Washington Railw. Co., 19 Law Jour. Ch. 503; 11 Beavan, 497. 3 unities v. Gerry, 14 Vesey, 400. But in this case the umpire was not agreed upon, ami the court held they could not appoint one. But the Master of the Rolls held that an agreement to sell, at a fair valuation, may be executed. See Tilh t v. Charing Cross Company, 26 Beav. 419; s. c. 5 Jur. (N. S.) 994. 4 Brown r. Bellows, 4 Tick. 179. 6 Hodges on Railways, 189. 8 Jacobs v. Peterborough & Shirley Railw., 8 Cush. 223. 7 Parker v. Perkins, 8 Cush. 318. [*224] § 62. SPECIFIC PERFORMANCE IN EQUITY. 241 of a contract are doubtful, a court of equity will not decree specific performance. 8 7. Where one contracts with a railway company, under seal, to permit them to construct their road over his land, in either one of two routes, and to convey the land after the road shall be definitively located, with a condition that the deed shall be void, when the road shall cease, or be discontinued, if the company take the land and build their road upon it, specific performance will be decreed, although the company did not expressly bind themselves to take the land, or pay for it. And where the com- pany had been in the use of the land for their road three or four years, it was held no such unreasonable delay as to bar the relief * sought. The party cannot excuse himself by showing, that, from his own notions, or the representations of the company, or of third persons, he was induced to believe that a different route would have been adopted by the company, or that there was an inadequacy in the price stipulated, unless it be so gross as to amount to presumptive evidence of fraud or mistake. 9 8. But it is a good defence, in such case, that the party was led into a mistake, without any gross laches on his part, by an uncertainty or obscurity in the descriptive part of the agreement, so that it applied to a different subject-matter from that which he understood at the time, or that the bargain was hard, unequal, or oppressive, and would operate in a manner different from that which was in the contemplation of the parties when it was executed. 8 Boston & Maine Railw. v. Babcock, 3 Cush. 228 ; s. c. 1 Am. Railw. C. 561. But under a contract with a railway company, giving them all the land they desired, not exceeding four poles in width, upon which to construct their road, " provided said road shaU not run farther north of my southwest corner than ten feet, and not farther south of my northeast corner than 140 feet," it was held the company had a right to 66 feet through the whole land, and were only re- stricted in relation to the distance the road went from the corners named. Lexington & Ohio Railw. v. Ormsby, 7 Dana, 276. 9 Western Railw. v. Babcock, 6 Met. 316 ; s. c. 1 Am. Railw. C. 365. The delivery of a deed to the agent of a corporation, in such case, is sufficient. And where the party, in disregard of his contract, had obtained an assessment of damages for the land, under the statute, his liability upon the contract is, to the difference between the appraisal and the stipulated price in the contract. Un- reasonable delay is ordinarily a bar to specific performance in a court of equity. Guest v. Homfray, 5 Vesey, 818 ; Hertford v. Boore, Aston v. Same, 5 Vesey, 719; Watson v. Reid, 1 Russ. & My. 236; 2 Story's Eq. Jur. §§ 771, 777, and cases cited. vol. i. 16 [*225] 242 RIGHT OF WAY BY GRANT. PART III. But in such case the burden of proof is upon the defendant, to show mistake or misrepresentation. 9 In an English case 10 before the Courl of Chancery Appeal, after elaborate argument, the Lord Justice Knight Bruce, an equity judge of the most extended learn- in-- and experience, thus Btates the rule upon this point. This courl will not enforce specific performance of a contract, where the defendant proves that he understood it in a sense different from the plaintiff, even although the plaintiff's construction may be the plain meaning of the contract. 9. Where the county commissioners made order in regard to the mode of construction of a railway, in crossing a highway, it was held, that the mayor and aldermen of a city, or the select- man of a town, are the only proper parties to a bill for specific performance, and that the land-owners, over which the railway j, are not to be joined in the bill. 11 But where the * order " Wycombe Railw. Co. t>. Donnington Hospital, Law Rep. 1 Ch. App. 268; 8. c. 12 Jur. (X. S.) 347. " Brainard r. Conn. River Railw., 7 Cush. 506. In Roxbury v. Boston & l'r.'V. K.iil-.v., 6 Cush. 424, it was also held the commissioners must make such order specific, and not in the alternative, and that laches, in regard to such order, will not defeat the claim for a decree for specific performance, where public -entially concerned. And courts of equity have held a parol license to erect public works, and the work- erected in faith of it, irrevocable, and the company entitled to hold the land upon making compensation, and have virtually decreed specific perform- ance. Water Power Co. v. Chamber. 1 Stockton, Ch. 471. See also Hall v. Chaffee, 13 Vt. 150; Boston & Maine Railw. v. Bartlett, 3 Cush. 224. But it was held that an action for the price of land will not lie upon a parol contract of sale, where there had been no conveyance of the land, although the company had taken possession and paid part of the price. Reynolds v. Dunkirk & State Line Railw., 17 Barb. 612. This is undoubtedly according to the generally recognized rule upon the subject, in those states where the Statute of Frauds is in force. In the ease of Laird r. Birkenhead Railw., 6 Jur. (X. S.) 140; s. C. 1 Johns. (Eng. Ch.) 500, the question of an estoppel in fact becoming so fixed upon a railway company by acquiescence as to be enforced by a court of equity, is discussed by Viee-( 'hancellor Wood, and placed upon higher and sounder ground ins to us, than in most of the earlier cases. The leading facts were, that the plaintiff, by agreement with the company, without writing, had built a tunnel through their land, in order to facilitate access to his own business, and had Ulid raill upon the work, and had been in the use of the same for two years, paying tolls a-; agreed between the parties. The company now claimed that the plaintiff was merely a tenant at will, and subject to their absolute dicta- tion as to tin- right to use and the terms upon which he could use the works and [*226] § 62. SPECIFIC PERFORMANCE IN EQUITY. 243 required the highway to be so. raised as to pass over the rail- way, at a place named, but without defining the height to which it should be raised, the grade, the nature of the structure, or the time within which it should be made, it was held too indefinite to justify a decree for specific performance. 12 * 10. The Master of the Rolls, Lord Momilly, in Raphael v. The Thames Valley Railway, 13 held, that in deciding whether specific performance should be enforced against a railway company, the court must have regard to the interests of the public, and there- fore, where a bridge had not been constructed in conformity with an agreement with a land-owner, but the injury to the land-owner was small, and the railway had since been opened for traffic, and the relief, if granted, would have necessitated an interference with the traffic, the court refused to compel specific performance. 11. And it has been more recently declared by the English courts of equity, that where a contract is vague and so uncertain that no compensation could be awarded, a decree for specific per- formance could not be made. 14 So also the court will not interfere after considerable lapse of time and when the company are not possessed of funds for completing the purchase. 15 So refusal to gave notice in writing of the immediate and absolute termination of the contract, and in pursuance of such notice removed the rails and permanently erected a board across the passage. The learned judge overruled the demurrer, and said "it must be inferred, from the nature of the transaction, and after all this expense, that it was not to be determined by three months' notice. . . . The necessary inference is, that it is to be the right of user, as long as the plaintiff is the owner of the yard, and it would be a most unreasonable proposition to say that the company should have the power of determining it at three months' notice. ... I consider that a contract had been made out upon the face of the bill," and it was further con- sidered, that, aside from the actual use, a court of equity would have decreed specific performance upon reasonable terms ; but after the use for a considerable term on the basis of an unsigned memorandum, the court will regard that as evi- dence of the ultimate agreement of the parties. 8. p. Mold v. Wheatcroft, 27 Beav. 510. But the railway companies of a sovereignty so far represent or par- take of the prerogative character, that any acquiescence on their part in a use of their lands inconsistent with the permanent rights of the public, will be construed as merely temporary, and will create no permanent rights in the party exercising such use. Heyl v. P. W. & B. Railw., 51 Penn. St. 469. 18 City of Roxbury v. Boston & Providence Railw., 2 Gray, 460. 13 Law Rep. 2 Eq. 37 ; s. c. 12 Jur. (N. S.) 656. 14 Tillett v. Charing Cross Co., 26 Beav. 419 ; s. c. 5 Jur. (N. S.) 994. is p rvse j,, Combrian Railw., Law Rep. 2 Eq. 444. [*227] 244 RIGHT OF WAY BY GRANT. PART III. decree specific performance may be based upon the public safety and convenieni L2. A:,i a Court of Equity will not make the amount to be paid for land a charge upon the land, under leave to apply for further directions, where it was not made so by the original decree. 17 18 Raphael v. Thames Valley Railw., Law Rep. 2 Eq. 444. 17 Attorney-General v. S. & S. Railw., Law Rep. 1 Eq. 636. [*227] §63. GENERAL PRINCIPLES. 245 *CHAPTER XI. EMINENT DOMAIN. SECTION I. General Principles. 1. Definition of the right. 2. Intercommunication. 3. Necessary attribute of sovereignty. 4. Antiquity of its recognition. 5. Limitations upon its exercise. 6. Resides principally in the states. 7. Duty of making compensation. 8. Navigable ivaters. 9. 10, 11. Its exercise in rivers, above tide- water. § 63. 1. This title is very little, found in the English books, and scarcely in the English dictionaries. But with us, it has been adopted from the writers on national and civil law, upon the continent of Europe, 1 and is perhaps better understood than almost any other form of expression, for the same idea. It is defined to be that dominium eminens, or superior right, which of necessity resides in the sovereign power, in all governments, to apply private property to public use, in those great public emer- gencies which can reasonably be met in no other way. 2. It is a distinct right from that of public domain, which is the 1 land belonging to the sovereign. This is a superior right which the sovereign possesses in all property of the citizen or subject, whether real or personal, and whether the title were originally derived from the sovereign or not. One of the chief occasions for the exercise of this right is, in creating the necessary facilities for intercommunication, which in this country is now very generally known by the name of Internal Improvement. This extends to the construction of highways (of which turn- pikes and railways are, in some respects, but different modes of construction and maintenance), canals, ferries, wharves, basins, and some others. 2 1 Vattel, B. 1, ch. 20, § 244; Code Napoleon, B. 2, tit. 2, 545; 1 Black. Coram. 139; Gardners. Newburgh, 2 Johns. Ch. 162; 2 Dallas, 310. a 3 Kent, Comm. 339 et seq. and notes; Beekman v. Saratoga & Sch. Railw., 3 Paige, 45, 73 ; 12 Pick. 407 ; 23 id. 327 ; 3 Selden, 314. This right, as some [*228] 246 EMINENT DOMAIN. PART III. ... This is a right in the sovereignty, which seems indispen- sable to the maintenance of civil government, and which seems to of the above cases show, extends to numerous matters not named in the text. It would be "lit of place here to enter into the discussion of the general subject. Tin' indispensable prerequisites to the exercise of the right will appear, as tar as they apply to the subject of this work, in the following sections. That railways are but improved highways, and are of such public use as to justify the exercise of the right of eminent domain, by the sovereign, in their construction, is now almost universally conceded. Williams v. N. Y. Central Railw., L8 Barb. 222, 246; State v. Rives, 5 Ired. 297; Northern Railw. v. Concord & Claremont Railw., 7 Foster, 183; Bloodgood v. M. & H. Railw., 18 Wend. 9; 8. c. 14 Wendell, 51 ; s. c. 1 Redf. Am. Railw. Cases, 209; 1 Bald. C. C. Reports, 205. See also 3 Paige, 73 ; 3 Seld. 314. A freight company has been regarded as not of such public interest as to justify taking land by the right of eminent domain. This was for loading and unloading freight. Memphis Freight Co. v. Memphis, 4 Cold. 419. But this case is perhaps questionable. A railway for the purpose of transporting freight is as much a public use as if it em- braced passenger transportation. And a freight company of more limited extent might be said to be in aid of the company carrying greater distances. The mar- ginal railways in cities for the purpose of connecting the different lines of traffic, are as much public companies and entitled to exercise the sovereign right of eminent domain, as any other railway. But no railway company can take land for other than public uses, as for the deposit of dirt, &c, not connected with the efficient use of their right of way. Lance's Appeal, 55 Penn. St. 16. It seems to be well settled, that the legislature have no power to take the property of the citizens for any but a public use ; but that a railway is such use. Bradley v. N. Y. & N. H. Railw., 21 Conn. 294; Symonds v. The City of Cin- cinnati, 14 Ohio, 147; Embury v. Conner, 3 Comst. 511. But this is a power essentially different from that of taxation, in regard to which there is no constitutional restriction, and no guaranty for its just exercise, except in the discretion of the legislature. The People v. Mayor of Brooklyn, 4 Comst. 419; Cincinnati, W. & Z. Railway v. Clinton Co. Comm., 1 Ohio (N. S.), 77. The legislature must decide, in the first instance, when the right of eminent domain may be exercised, but this is subject to the revision of the courts, so far as the uses to which the property is applied, are concerned. 2 Kent, Comm. 340. But as to the particular instance, the decision of the legislature, and of the commissioners appointed to exercise the power, is ordinarily final and not revis- able in the courts of law. Varrick v. Smith, 5 Paige, 137 ; Armington v. Bar- net, 15 Vt. 745. And the legislature may restrain the owners of property, in regard to its use, when in their opinion the public good requires it, unless with compensation to those injured, as this is not the exercise of the' right of eminent domain. Com- monwealth v. Tewksbury, 11 Met. 55; Coatesr. Mayor of New York, 7 Cowen, I lark v. Mayor of Syracuse, 13 Barb. 32. The following case recognizes the general right stated in the text. Donnaher v. The State, 8 Sm. & M. 649. [*229] § 63. GENERAL PRINCIPLES. 247 * be rather a necessary attribute of the sovereign power in a state, than any reserved right in the grant of property to the subject or citizen. 4. It seems to have been accurately denned, and distinctly recognized, in the Roman empire, in the days of Augustus, and his immediate successors, although, from considerations of policy and personal influence and esteem, they did not always choose to exer- cise the right, to demolish the dwellings of the inhabitants, either in the construction of public roads or aqueducts, or ornamental columns, but to purchase the right of way. 5. But in the states of Europe and in the written Constitution of the United States, and in those of most of the American states, an express limitation of the exercise of the right makes it depend- ent upon compensation to the owner. 3 But this provision in the United States Constitution is intended only as a limitation upon the exercise of that power, by the government of the United States. 3 6. And it would seem, that notwithstanding this right of sov- ereignty may reside in the United States, as the paramount sov- ereign, so far as the territories are concerned, in reference to internal communication, by highways and railways, and notwith- standing the ownership of the soil of a portion of the lands, by the United States, in many of the states, as well as territories, still, when any of the territories are admitted into the Union, as inde- pendent states, the general rights of eminent domain are vested exclusively in the state sovereignty. 4 7. The duty to make compensation for property, taken for pub- lic use, is regarded, by the most enlightened jurists, as founded in 3 Barron v. Baltimore, 7 Peters (U. S.), 243; Fox v. The State of Ohio, 5 How. (U. S.), 410, 434, 435. 4 Pollard v. Hagan, 3 How. (U. S.) 212 ; Goodtitle v. Kibbe, 9 How. 471; Doe v. Beebe, 13 How. 25; United States v. Railw. Bridge Co., 6 McLean, 517. In the Court of Claims, in the case of The Illinois Central Railway v. United States, 20 Law Rep. 630, it was held, that the abandonment of a military reserve, which had become useless for military purposes, causes it to fall back into the general mass of public lands, and that a state, by virtue of its right of eminent domain, may authorize the construction of railways through land owned but not occupied by the United States. And the United States being in pos- session of land owned by the plaintiffs, and which was necessary to carry out the objects of their charter, it was held, that a payment made by the plaintiffs, to obtain possession thereof, was made under duress, and might be recovered back. [*230] 248 EMINENT DOMAIN. PART III. the fundamental principles of natural right and justice, and as * lying at the basis of all wise and just government, independent of all written constitutions or positive law. 5 B. Bui the public have a right, by the legislature, through the proper functionaries, to regulate the use of navigahle waters, and the erect inn of a bridge, with or without a draw, by the authority of the Legislature, is the regulation of a public right and not the deprivation of a private right, which can be made the ground of an action, even where private loss is thereby produced, nor is it the taking of private property for public use which will entitle the owner to compensation. 6 9. And where a ford-way was destroyed, by the erection of a dam across a river, in the construction of a canal, or other public work, under legislative grant, the river being a public highway, although not strictly navigable, in the common-law sense ; (which only included such rivers as were affected by tide-water,) it was held the owner of the ford-way could recover no compensation from the state, or their grantees, the act being but a reasonable exercise of the right to improve the navigation of the stream, as a public highway. 7 10. Neither can the owner of a fishery, which sustains damage or destruction by the building of a dam to improve the navigation of a river above tide-water, under grant from the state, sustain an action against the grantees. 8 So also in regard to the loss of the use of a spring, by deepening the channel of such a stream, by legislative grant. 9 11. Nor is the owner of a dam, erected by legislative grant upon a navigable river, and which was afterwards cut off by a canal, granted by the same authority, entitled .to recover damages. 10 nicer, C. J., in Bradshaw v. Rodgers, 20 Johns. 103; 2 Kent, Comm. 339, and note, and cses cited from the leading continental jurists. '■ Davidson v. Boston & Maine Railw., 3 Cush. 91; Gould v. Hudson River Railw., 12 Barb. 616; s. c. 2 Selden, 522. Nor have the state any such right in flats, where the tide ebbs and flows, as to require a railway company to pay them damages for the right of passage. Walker v. Boston & Maine Railw., 3 Cush. 1 ; s. c. 1 Am. Railw. C. 462. 7 Zimmerman v. Union Canal Co., 1 Watts & S. 346. B Shrunk r. Schuylkill Navigation Co., 14 Serg. & Rawle, 71. 9 Commonwealth v. Ritcher, 1 Penn. 467. 16 Susquehannah Canal Co. v. Wright, 9 Watts & Serg. 9; Monongahela Nav- igation Co. v. Coons, 6 id. 101. [*231] §64. TAKING LANDS IN INVITUM. 249 ♦SECTION II. Talcing Lands in invitum. 1. Legi shit ire grant requisite. 2. Compensation must be made. 3. Consequential damages. 4. Extent of such liability. 5. These grants strictly construed. 6. Limitation of the power to take lands. 7. Interference of courts of equity. 8. Rule of construction in American courts. 9. Strict, but reasonable construction. 10. Rights acquired by company. 11. Limited by the grant. 12. Decision of the House of Lords. §64. 1. In England railways can take lands by compulsion, only in conformity to the terms of their charters, and the general laws defining their powers. 1 And in this country a railway com- pany or other corporation must show, not only the express warrant of the legislature 2 (which it must for all its acts) for taking the land of others for their own uses, but also that the legislature, in giving such warrant, conformed to the constitutions of the states, in most of which it is expressly required that compensation should be made for all lands taken. And upon this subject, the circum- spection of the English courts, in requiring damage and loss to the land-owners to be fairly met, is shown very fully by the language of Lord Denman, C. J., in The Queen v. The Eastern Counties Railway. 3 • 1 Taylor v. Clemson, 2 Q. B. 978; s. c. 3 Railw. C. 65. Tindal, C. J., here said, " This authority to take land, if exercised adversely, and not by consent, is undoubtedly an authority to be carried into effect, by means unknown to the com- mon law." And in Barnard v. Wallis, 2 Railw. C. 177, the Master of the Rolls declares, tbat aside from the provisions of the act of parliament, the owner of one rod of land may insist upon his own terms, to the utter overthrow of the most important public work. " The price of his consent must be determined by him- self." All kinds of property and estate are subject to this right of eminent domain, and a dwelling-house, so long regarded as the inviolable sanctuary of the owner or occupant, forms no exception. Wells v. Som. & Ken. Railw. Co., 47 Me. 345. The right of compensation for property taken by virtue of the right of eminent domain is regarded as a fundamental principle of the common law 6*f England and of the other European nations. Pumpelly v. Green Bay Co., 13 Wall. 166. 2 Hickok v. Plattsburgh, 15 Barb. 435 ; 4 Barb. 127 ; Halstead v. Mayor, &c, of New York, 3 Comst. 430; Hart v. Mayor of Albany, 9 Wend. 571, 588; 2 Denio, 110; Dunham v. Trustees of Rochester, 5 Cowen, 462. 3 2 Q. B. 347 ; s. c. 2 Railw. C. 736, 752. It has been repeatedly decided that the corporate authorities of a city have no power to confer upon any person, [*232] 260 EMINENT DOMAIN. PART III. • •_. •• We think it not unfit to premise, that when such largo powers are intrusted to a company to carry their works into exe- cution. \s iili«»iit the consent of the owners and occupiers of the land, it is reasonable and just that any injury to property which can be shown to arise from the prosecution of those works should be fairly compensated for to the party sustaining it." 3. In the English statute, too, railway companies are made lia- ble to pay damage to the owner of all lands " injuriously affected" by any of their works. Such a provision does not exist in many of the American states, and consequently no liability is imposed for merely consequential damages to lands, no part of which is taken. 4 4. Under the English statute, giving damage where lands are " injuriously affected," railways have been held liable for all acts, which, if done without legislative grant, would constitute a nuisance, and by which a particular party incurs special dam- age. 5 5. These grants, being in derogation of common right, are to receive a reasonably strict and guarded construction. 6 The Mas- natural or corporate, the franchise of operating a railway. Such a grant for an indefinite period is void as a perpetuity. Such powers are held by the city for the publii 1" aefit, and cannot be abrogated or delegated. And such a grant is not an act of municipal legislation merely, but a contract which, if valid, it could not revoke or limit, and which is consequently void as a perpetuity. Milhau v. Sharp, 27 X. Y. 611 ; j^st, § 76. * Hatch v. Vermont Central Railw., 25 Vt. 49; Philadelphia & Trenton Kailw., 6 Whart. 25; Monongahela Nav. Co. v. Coon, 6 Watts & Serg. 101. See also Protzman v. Ind. & Cin. Railw., 9 Ind. 467 ; Evansville & Crawfords- villc Kailw. v. Dick, id. 433. But the full extent of the doctrine in the text seen^ to be questioned or doubted in Pumpelly v. Green Bay Co., 13 Wall. 166. & Queen v. Eastern Co.'s Railw., 2 Q. B. 347 ; Glover r. North Staffordshire Kailw., 16 Q. B. 912; s. c. 5 Eng. L. & Eq. 335. The English rule of com- pensation seems to be to estimate what the land-owner will lose rather than what the company will gain. Stebbing r. The Met. lid. of Works, L. R. 6 Q. B. 37. ay o. Liverpool & Bury Railw., 9 Beav. 391 ; s. c. 4 Railw. C. 235-240. II. ace under a general grant of power to take laud for the track of a railway, with sidings and branches to the towns along the line, the company have no power t<> take land for a temporary track during the period of constructing the main line. ( urri< r v. Marietta & Cin. Railw. Co., 1 1 Ohio (N. S.), 228. Nor can a railway company, under their general powers, take lands at a distance from their line not intended to be used in its construction. Waldo v. Chicago, St Paul, & Fond du Lac Kailw. < !o., 1 1 Wis. 575. Nor can a railway company land compulsorily for the purpose of erecting a manufactory of railway cars, or dwellings to be rented to the employes of the company. But they may take [*233] § 64. TAKING LANDS IN INVITUM. 251 ter * of the Rolls, in this last case, says, " In these cases it is always to be borne in mind, that the acts of parliament are acts of sover- eign and imperial power, operating in the most harsh shape in which that power can be applied in civil matters, — solicited, as they are, by individuals, for the purpose of private speculation and individual benefit." And in another case 7 the rule of construc- tion is thus laid down : — 6. " These powers extend no further than expressly stated in the act, except where they are necessarily and properly acquired for the purposes which the act has sanctioned." This last cate- gory, as here observed, is often a most perplexing one, in regard to its true extent and just limits. And doubtful grants are to be construed most favorably towards those who seek to defend their property from invasion. 8 And a railway, having an option between different routes, can only take lands on that route which they ultimately adopt ; and if they contract for land upon the other routes, cannot be compelled to take it. 9 The time for exercise of these compulsory powers, by the English statutes, is limited to three years, 10 except for improvements necessary for the public safety, in conformity with the certificate of the Board of Trade. land for the purpose of storing wood and lumber used on the road, or brought there for transportation upon it. And when land is taken for a legitimate pur- pose, the decision of the locating officers of the company is conclusive as to the extent required for that purpose, unless the quantity so taken is clearly beyond any just necessity. Vt. & Canada R. v. Vt. Cent. R., 34 Vt. 2. 7 Colman v. The Eastern Counties Railw., 10 Beav. 1 ; s. c. 4 Railw. C. 513, 524; State v. B. & O. Railw., 6 Gill, 3G3 ; Simpson v. So. Staff. Waterworks Co., 11 Jur. (N. S.) 453. And in a case in Kentucky, the rule is thus stated: The rules of construction which apply to charters delegating sovereign power to corporations do not depend upon the question whether the corporation is a private or a public one, but on the character of the powers conferred, and the purposes of the organization. The power of a railway, or other private cor- poration, to take private property for its use, being a delegation of sovereign power must be construed as it would be if delegated to a municipal corporation. And the powers of private and public corporations, with respect to their property, are governed by the same principles, and, in the absence of express provisions of law, depend upon the purposes for which the corporation was formed. Bardstown & Lou. R. R. Co. v. Metcalfe, 4 Met. (Ky.) 199. 8 Sparrow v. Oxford, W. & W. Railw., 9 Hare, 436 ; s. c. 12 Eng. L. & Eq. 249 ; Shelford on Railways, 233. 9 Tomlinson v. Man. & Birm. Railw., 2 Railw. C. 104; Webb v. Man. & Leeds Railw., 1 Railw. C. 576. 10 Such a limitation is held obligatory wherever it exists. Peavey v. Calais Railw., 30 Maine, 498 ; s. c. 1 Am. Railw. C. 147. [*234] EMINENT DOMAIN. PART III. It was decided by the House of Lords, reversing the judgment of the Lords Justices, but affirming that of the Vice-Chancellor, that where the legislature authorizes a railway company to take, for their purposes, any lands described in their act, it constitutes * them tin 1 Bole judges as to whether they will or will not take those lands, provided that they take them bona fide with the purpose of using them fur the purposes authorized by the legislature, and not I'm- any sinister or collateral purpose. 11 And that a court of equity cannot interfere, even upon the decision of an engineer, to curtail the power of'the company, in regard to the quantity of land sought obtained by it, so long as it acts in good faith. But in a later ease '- it was said that the House of Lords, in the case of Stockton & Co. v. Brown, did not decide that the company, by its engineer, had an unlimited discretion to take any land which the engineer would make affidavit the company required for use in the construction of their works, without stating what works; but that it must appear to what use they proposed to put the lands, and if that came fairly within the range of their powers, the company could not be controlled in the bona fide exercise of its discretion as to the mode of constructing their works, w 7 ithin the powers con- fided to them by the legislature. The company will not be re- strained from taking land for the purpose of depositing waste upon, although not confident of requiring it for any other purpose connected with the construction. 13 7. Asa general rule in the English courts of equity, if the con- struction of a railway charter be doubtful, they will remit the party to a court of law to settle the right, in the mean time so ex- ercising the power of granting temporary injunctions as will best conduce to the preservation of the ultimate interests of all parties. 14 8. Similar rules of construction have prevailed in the courts of this country. The language of C. J. Taney, in the leading case upon this subject, in the national tribunal of last resort, is very " Stockton & Darlington Railw. Co. v. Brown, 6 Jur. (N. S.) 1168; s. c. 9 II ■ '• C. 246; North Missouri Railw. v. Lackland, 25 Mo. 515; Same v. Gott, id. 540. - 1 lower v. London Br. & S. Coast Railw. Co., 2 Drew. & Sm. 330; s. c. 11 Jnr (N. S.) W6. ia Lund r. Midland Railw. Co., 34 L. J. Cb. 276. » Clarence Railw. p. Great North of England, C. & H. J. Railw., 2 Railw. But the practice of courts of equity, in this respect, is by no means uniform. Si e post, chap. xxix. [•235] § 64. TAKING LANDS IN INVITUM. 253 explicit " It would present a singular spectacle, if, while the courts of England are restraining within the strictest limits the spirit of monopoly and exclusive privilege in nature of monopoly, and confining corporations to the privileges plainly given to them in their charter, the courts of this country should be found enlarg- ing * these privileges by implication." 15 And in commenting upon the former decisions of that court, upon this subject, the same learned judge here says, "The principle is recognized, that in grants by the public nothing passes by implication." 10 And other cases are here referred to in the same court, in support of the same view. 17 9. But it is not to be inferred that the courts in this country, or in England, intend to disregard the general scope and purpose of the grant, or reasonable implications, resulting from attending circumstances. But if doubts still remain, they are to be solved against the powers claimed. 18 10. But where the right of the company to appropriate the land is perfected under the statute, they may enter upon it with- out any process for that purpose, and the resistance of the owner is unlawful, and he may be restrained by injunction, but that is unnecessary. The statute is a warrant to the company. 19 15 Charles River Bridge v. Warren Bridge, 11 Pet. 420. 16 U. S. v. Arredondo, 6 Pet. 691, 738. 17 Jackson v. Lamphire, 3 Pet. 280; Beaty v. Knowler, 4 Pet. 152, 168; Providence Bank v. Billings & Pittman, 4 Pet. 514. And that court not only adheres to the same view still, but may have carried it, in some instances, to the extreme of excluding all implied powers. See also, upon this subject, Common- wealth v: Erie & Northeast Railw., 27 Penn. St. 339 ; and Bradley v. New York & New Haven Railw., 21 Conn. 294. 18 Perrine v. Ches. & Del. Canal Co., 9 How. 172; Enfield Toll-Bridge v. Hartford & N. H. Railw., 17 Conn. 454; Springfield v. Conn. River Railw., 4 Cush. 63; 30 Maine, 498; 9 Met. 553; 1 Zab. 442; 3 Zab. 510; 21 Penn. St. 9 ; 15 111. 20. The following cases will be found to confirm the general views of the text: Tuckahoe Canal Co. v. Tuckahoe Railw., 11 Leigh, 42; Greenleaf's Cruise, vol. 2, 67, 68; Thompson v. N. Y. & H. Railw., 3 Sandf. Ch. 625; Oswego Falls Bridge Co. v. Fish, 1 Barb. Ch. 547; Moorhead v. Little Miami Railw., 17 Ohio, 340; Stormfeltz v. Manor Turnpike Co., 13 Penn. St. 555; Toledo Bank v. Bond, 1 Ohio (N. S.), 636; Cincinnati Coll. v. State, 17 Ohio, 110 ; Cam. & Aniboy R. v. Briggs, 2 Zab. 623 ; Carr v. Georgia Railw. & Bank- ing Co., 1 Kelly, 524; 7 Ga. 221; New London v. Brainard, 22 Conn. 552; Bradley v. N. Y. & N. H. Railw., 21 Conn. 294 ; 9 Ga. 475 ; Barrett v. Stockton & D. Railw., 2 M. & G. 134. ,9 Niagara Falls & Lake Ontario Railw. v. Hotchkiss, 16 Barb. 270. [*236] 25 1 EMINENT DOMAIN. PART III. 1 1 . Bui a grant to a railway to carry passengers and merchan- i, A. to M.. does not authorize them to transport merchan- Mii their depot in the city of M. about the city, or to other points, For the accommodation of customers. 20 I_. There lias been considerable discussion in the English •courts, within the last few years, in regard to many recent statutes there, for the improvement of markets and streets in the metropolis or districts adjoining, through the agency of the municipal corporations. And while the courts there, and espe- cially the House of Lords, in one case, 21 adhere strenuously to the former rule, in regard to private corporations, that they can only take lands compulsorily, for the needful purposes of the works which they are authorized by the legislature to construct; on the other hand, they hold that it is competent and proper under parlia- mentary powers granted for that purpose, to allow municipal cor- porations to reimburse the expense of any improvements which they are authorized to carry forward, in their streets and squares or markets, by taking the lands adjoining such improvements, at the price of their value before such improvements, and selling them at the advanced prices caused by such improvements. And it was held that the municipality having, before the act passed, contracted for the sale of such of the lands so to be taken as they should not require for the purpose of the public improvement, did not dis- qualify them from exercising the discretion reposed in them by the act. as to how much land they would take. This rule of law in . 1 to the proper mode of reimbursing the expense of great public improvements is not very different from that which has been extensively in use in America under the name of betterment acts, whereby the expense is assessed upon the adjoining property- owners, upon some scheme of equalization, presumptively appor- tioning the loss and benefit equitably. 22 5 M i n r. Macon & W.-stern Railw., 7 Ga. 221. n Galloway v. The Mayor & Commonalty of London and the Metropolitan Railw. Co., et vice versa, 12 Jur. (N. S.) 747. (1866.) s. c. Law Rep. 1 H. " Post, § 235, and cases cited in n. 22, 23. [*237] §65. CONDITIONS PRECEDENT. 255 SECTION III. Conditions Precedent. 1. Conditions precedent must be complied with. 2. That must be alleged in petition. 3. When title vests in company. 4. Filing the location in the land office is no- tice to subsequent purchasers. 5. After damages are assessed and confirmed by the court the owner is entitled to exe- cution. 6. If the company use the land. 7. Subscriptions payable in land without com- pensation, a court of equity will enforce payment. §65. 1. It has been held that a railway company must comply with all the conditions in its charter, or the general laws of the * state, requisite to enable it to go forward in its construction, before it acquires any right to take land by compulsion. In England one of these conditions in the general law is, that stock, to the amount of the estimated cost of the entire work, shall be subscribed. And where the charter, or the general laws of the state gave the right to take land for the road-way only upon the legislature having approved of the route and termini of the line, it was held the com- pany could not proceed to condemn lands for that purpose until this approval was made. 1 2. And where the act of the legislature, under which a railway was empowered to take lands, required the company to apply to the owner, and endeavor to agree with him as to the compensa- tion, unless the owner be absent or legally incapacitated, they have no right to petition for viewers until that is done. 2 The petition should allege the fact that they cannot agree with the owner. 2 The right of such companies to take land is held in some states to depend upon the legal sufficiency and validity of the certificate and public record of organization ; and it was held the company 1 Gillinwater v. The Mississippi & A. Railw. Co., 13 111. 1. * Reitenbaugh v. Chester Valley Railw., 21 Perm. St. 100. But where the company have the right to lay their road, not exceeding six rods in width, and have fixed the centre line of the same, they may apply for the appointment of appraisers, and determine the width of the road, any time before the appraisal. Williams v. Hartford & New Haven Railw., 13 Conn. 110. But slight, if indeed any, evidence of this failure to agree with the land-owner is required, where the claimant appears and makes no objection on that ground. Doughty v. Somerville & Eastern Railw., 1 Zab. 442. And the petition maybe amended where this averment is omitted. Pennsylvania Railw. v. Porter, 29 Penn. St. 165. [*238] EMINENT DOMAIN. PART IB. must show these prerequisites to be strictly in conformity with the requirements of the law. 3 .".. Where the charter of a railway company provides that the title of land condemned for the use of the company shall vest in the company, upon the payment of the amount of the valuation, no title vesta until such payment. 4 In a late case, 5 the law upon * this subject is thus summed up : Where the charter of the com- pany provides, that after the appraisal of land, for their use, " upon lyment of the same" or deposit, (as the case may be,) the company shall be deemed to be seized and possessed of all such lands, " they must pay or deposit the money before any such right accrues." — " The payment or deposit of the money awarded is a condition precedent to the right of the company to enter upon the land for the purposes of construction ; and without compliance with it they may be enjoined by a court of equity, or prosecuted in tres- pass at law, for so doing. The right of the land-owner to the damages awarded is a correlative right to that of the company to the land. If the company has no vested right to the land, the land-owner has none to the price to be paid." 1. And where the charter contained the usual power to take land, it was held, that after laying out their road and filing the location in the land-office, the company had acquired a right of entry, which subsequent purchasers were bound to respect. 6 5. And where the road has been laid and the damages assessed, andj confirmed by the court, the owner of the land is entitled to execution, although the company have not taken possession of the land, and may desire to change the route. 7 6. But where the railway enter into the possession of the land, and construct their road without having paid the whole of the damages assessed therefor, a court of equity will enforce the pay- Railw. v. Sullivant, 5 Ohio (N. S.), 276. 1 Baltimore & Susquehanna Railw. v. Nesbit, 10 How. (IT. S.) 395. See ' mpton v. Susquehanna Railw., 3 Bland, 386, 391 ; Van Wicfcle v. Railw., icy r. Vermont Central Railw., 27 Vt. 39 ; Levering v. Railw. ' I. And upon payment of the compensation assessed missioners, and taking possession afterward, the title of the company is linst the party to the proceedings. Bath River Navigation Co. r. Wii is, 2 Eta Iw. C. 7. ntral Railw., 27 Vt. 39. • Davii v. E. T. & Ga. Railw.. 1 Sneed, 9-4. onnelsville Railw., 31 Penn. St. 19. [*2i § 65. CONDITIONS PRECEDENT. 257 ment by an order for such payment within a time named, and in default will restrain the company by injunction from using the land until the price is paid. 8 In one case it was held, that where the railway is surveyed and located and the land-owner consents to the company entering and building their road before the damages are ascertained, under an agreement that this shall be done thereafter, and the road is thereupon constructed, the title to the land passes, and the owner retains no lien thereon for his damages, but must look for payment to the party contracting. 9 But in an English case, 10 it was held that the owner of lands * taken possession of by a railway company, either under statutory power or by agreement, has a lien thereon for the purchase-money and also for the damages to the adjoining land, if not the subject of a special agreement, inconsistent with the continuance of such lien. Of this lien he is not deprived by a deposit and bond under the statute, or by accepting a deposit, less than the whole amount due him, and a court of equity will enforce this lien, although the railway has been opened for public use. 7. And where a subscription of land is made to a railway com- pany, upon some condition precedent to be performed by the company, such condition is waived by conveying the land and accepting certificates of stock. But if such conveyance is induced by false representations, the company may be compelled to per- form it, or by tendering a return of the certificates the entire con- veyance may be set aside, even after the company have conveyed the land to others connusant of the facts at the time of such con- veyance. 8 8 Cozens v. Bognor Railw., Law Rep. 1 Ch. App. 594; s. c. 12 Jur. (N. S.) 738. 9 Knapp v. McAuley, 39 Vt. 275. But in this state the vendor's lien upon real estate for the price is expressly repealed by act of the legislature. 10 Walker v. Ware, &c. Railw., Law Rep. 1 Eq. 195. 17 [*240] 258 EMINENT DOMAIN. PART III, SEC T ION IV. Prelim inary Surveys. 1. .1/ without compt nsation. !S< r. ;;. / irAal purposes company may enter amis. 4. Company liable for materials. 6. /.'/',■/ streets of a city. 10. Lava not the same in all the states. 1 1. Rule in Mussachusi tts. 12, 18. Land reverts to the owner. 14. True rule stated. 15. Conditions must be performed. 16. Further assurance of title. 17. Condemnation cannot be impeached. is. Where public acrjuire fee, it will never r, vert to grantor. § 69. 1. Questions have sometimes arisen, in regard to the pre- tle acquired by a railway company in lands purchased by them, where the conveyance is a fee-simple. It is certain, in this coun- try, upon general principles, that a railway company, by virtue of their* compulsory powers, in taking lands, could acquire no absolute fee-simple, but only the right to use the land for their purposes. And it is wry questionable whether a railway, in such case, is en- titled to the herbage growing upon the land, or to cultivate the same, or to dig for stone, or minerals, in the land, beyond what is - i iv for their purposes in construction. 2. In England, the statutes 1 give all such minerals to the for- i 9 Vict. c. 20, § 17. In Conn. & Pass. Railw. Co. v. Holton, 32 Vt. 18, it was decided, that the land-owner, after liis land was legally appropriated for the track of a railway, lias no right to enter upon or use such land for any purpose which in the least degree endangers or embarrasses its use for any pur- ■ :• which the railway has appropriated it. And consequently the owner could not enter upon the land with teams to remove turf therefrom, the effect of which entry would be to enhance the danger of cattle getting upon the track, and to in' pease the dusl by the passage of the cars after the sward is removed from the Bides of the track. And the land-owner has no rij^ht to cross the track of the company at any other point than that established by the taking of the land; nor can he build a farm-crossing, unless established by law. And a railway company may maintain trespass for all unlawful entries and acts upon the land appropriated to their use when such :nts interfere with their exclusive possession. B. P. in N- Penn. R. v. ELi ■hman, 5 Am. Law Reg. (N. S.) 49. And in Troy and Boston Railw. v. Potter, 42 Vt. 265, it was decided that the owner of the ind condemned for the use of a railway has no right to enter upon the land while in the use of the railway, and take therefrom the herbage and other products of the soil. [•247] § 69. TITLE ACQUIRED BY COMPANY. 265 mer owner of the land, except such as are necessary in con- struction, unless the same shall have been expressly purchased. And in this country, no doubt, the same construction would be adopted, in regard to all lands taken by compulsory proceeding. 2 * 3. But it admits of some question, we think, what is the precise effect of a deed, in fee-simple, to a railway company. It would seem, upon general principles, that the grantor should be estopped from claiming any interest in the land, after the execu- tion of his deed. But it seems to be agreed, in all the books, that, to the efficacy of a deed of land, it is requisite that the grantee be capable of taking the estate. And if the grantee be an alien, or a corporation incapable of holding such estate, the deed is inopera- tive. Hence, in some of the cases, it seems to be a just inference from the reasoning of the court, that a railway, by a deed in fee- simple, acquires only a right of way, 3 that being all which such corporation is capable of taking. 2 Baker v. Johnson, 2 Hill (N. Y.), 342. It was held here, that a con- tractor to build a canal, who stipulated with the commissioners to find all the materials necessary to the performance of the work, with stipulations in the con- tract that he might use all the earth obtained by excavation, might also use the stone obtained by excavating the bed of the canal across plaintiff's land, and that trover will not lie for such use. Timber standing on land taken for a rail- way belongs to the owner of the land, except so far as necessary for the con- struction and repair of the road. Preston v. Dub. & Pacific Railw. Co., 11 Iowa, 15. Earth and minerals above the grade of the road may be used by the com- pany, but those below belong to the owner of the land. Evans v. Haefner, 29 Mo. 1-41. The condemnation of land for the construction of a railway justifies the entry and necessary excavation of the soil by the company and its servants. Green v. Boody, 21 Ind. 10. But stone excavated in the construction, and which is not used upon any portion of the line, belongs to the owner of the land. Chapin v. Sullivan Railw. Co., 39 N. H. 561. But it seems from this, and from the general practice in the construction of railways, that earth or any other material which is excavated upon one portion of the line may be used upon any other portion, if required. 3 Uean v. Sullivan Railw., 2 Foster, 316 ; United States v. Harris, 1 Sumner, 21. It is held in some cases, that a grant to a railway, before its incorporation, is valid, not being the conveyance of a fee, and, to its operation and effect, not requiring the existence of a grantee, at the time of the conveyance. Rathbone v. Tioga Navigation Co., 2 Watts & Serg. -47. But it seems now to be con- sidered that railway companies may acquire the absolute fee in land by purchase and deed in fee-simple, and the title will remain in the company after it has changed the location of its road, and ceased to use it for corporate purposes. Page v. Heineberg, 40 Vt. 81. [*248] 266 EMINENT DOMAIN. PART III. I. It has been held in some of the states, that the lands of a railway company are subject to sale upon execution against them, or may be assigned by them. 4 So, too, they may purchase and ' Arthur r. Commercial & Railroad Hank, 9 Smedes & Marshall, 394. But this right to levy upon the lands of a railway company only extends to such lands, however acquired, as are not required to the full exercise and enjoyment of the corporate franchise. Plymouth Railw. Co. v. Colwell, 39 Penn. St. 337. And a canal basin is not Buch a legitimate incident of a railway franchise as to be protected from levy, where there is no authorized canal connection. lb. And town lots held by a railway company are not to be regarded as an incident of the franchise, so as to pass by a mortgage of the road "with its corporate privileges and appurtenances," unless directly appurtenant to the road and indis- jsary to the exercise of its franchises. Shamokin Valley Railw. v. Livermore, 17 Penn. St. 465. It has been held, that railway bonds were liable to lew on execution, but that seems questionable. Hetherington et al. v. Hay- den. 11 fowa, 335. In a case in Vermont, Hill v. Western Vermont Railw. Co., 32 Vt. 68. the company, before the road was laid out or surveyed, procured a bond from B. to sell them such lands owned by him as should be required for their road. Their charter provided that the directors might cause such surveys of the road to be made as they deemed necessary, and fix the line of the same, and that the company might enter upon and take possession of such lands as were necessary f>r the construction of their road and requisite accommodations. The survey of the road, made by order of the directors, designated certain land belonging to depot grounds; and the company paid him for and took the same, but never received any conveyance thereof from him. The plaintiff, having recov- ered a judgment against the company, levied his execution upon a portion of this land, and brought ejectment against the company to recover possession thereof. The referee, to whom the case was referred, found that a part of the land embraced in the levy was never necessary to the company for radway purposes, and would not become so prospectively. Held, that by B.'s contract ■with the company he was not bound to convey to them any greater quantity of, or estate in, his land than they required for depot accommodations; that under their charter the company could not acquire anymore land, or any greater estate therein, for the purposes of a road-bed or stations, than was really requisite for sncli uses; that the estate so requisite was not one in fee-simple, but merely an easement, and was, therefore, not subject to be levied upon by the creditors of the company; that when taken for such purposes, the rule was the same, whether the land was taken compulsorily by condemnation and the award of commissioners, as to its extent and price, or under the agreement of tin- parties as to one or both of these particulars; that under their charter the directors had power to lay out their road and stations as they saw fit; and that, so long as they acted in good faith and not recklessly, their decision as to the quantity of land required for depot accommodations would be regarded as conclusive. [*248] § 69. TITLE ACQUIRED BY COMPANY. 267 * hold land for the procurement of materials, or for the economical construction of the road. 5 In an English case, 6 it was held that the railway could not use land, thus conveyed, for any other pur- pose than that expressed in the acts of parliament, by virtue of which the company exercised their functions. 5. It has been held that, where one railway has power in their act to cross another railway, there being no express permission in the act for one company to take land, or for the other company to sell, that the first company could not be compelled, by mandamus, to purchase any of the land upon which the other road was con- structed, their only claim being one for damages. 7 So, also, the right to make a junction with a pre-existing railway, does not im- ply the power to take the title to any of the lands of such railway, unless that is indispensable to effect the junction, but only to enter upon such lands, by way of easement, for the purpose of effecting the junction. 8 6. But where the legislature confer the power upon two railway * companies to purchase compulsorily the same piece of land, and one company has taken the land and constructed their road upon it, equity will enjoin the other company from proceeding to take it compulsorily for their use, until the conflicting rights of the com- panies are determined by a trial at law. 9 7. The general course of decisions in this country coincides with the English common-law rule, in regard to the title acquired by the public, by the exercise of the right of eminent domain, that is, that no more of the title is divested from the former owner than what is necessary for the public use. 10 The owner may still maintain tres- pass, for any injury to the freehold by a stranger. 10 8. And in regard to railways, in particular, it has been repeat- edly decided in the different states, that they take only an ease- 5 Overmyer v. Williams, 15 Ohio, 26. 6 Bostoek v. The North Staffordshire Railw., 3 Sm. & Gif. 283. 7 Reg. v. South Wales Railw., 13 Q. B. 988; s. c. 6 Railw. C. 489. 8 Oxford, Worcester, & Wolverhampton Railw. v. South Staffordshire Railw., 1 Drew. 255 ; s. c. 19 Eng. L. & Eq. 131. 9 Manchester, S. & L. Railw. v. The Great N. Railw., 9 Hare, 284; s. c. 12 Eng. L. & Eq. 216. 10 Dovaston v. Payne, 2 H. Bl. 527; Rust v. Low, 6 Mass. 90; Jackson v. Rutland & Burlington Railw., 25 Vt. 151 ; s. c. 1 Redf. Am. Railw. Cases, 362 ; 2 RohVs Ab. 566, pi. 1. [*249, 250] EMINENT DOMAIN. PART III. men1 in land condemned for their use. 11 In an important case 12 in the Supreme Court of the United States, involving questions of title in regard to the streets in the city of Pittsburgh, Mr. Justice .1/ Lean thus sums up the general doctrine: — " By the common law, the fee in the soil remains in the original owner where a public road is established over it; but the use of the n»;ul is in the public. The owner parts with this use only ; for ' if the road shall be vacated by the public he resumes the exclu- sive possession of the ground; and while it is used as a highway he is entitled to the timber and grass which may grow upon the surface, and to all minerals which may be found below it. He may bring an action of trespass against any one who obstructs the road." '.'. But a query is expressed here, as in many other cases, whether this rule applies to the streets and thoroughfares of cities. In a case in one of the British provinces on this continent, Nova Scotia, it is said to have been held, by a divided court, after long debate and deliberation, that the title to land, covered by a highway or street, vested absolutely in the crown, and that the owner had no reversionary interest. 13 10. Some of the American cases seem to intimate a different rule from that which generally prevails in reference to highways, in r< gard to the title acquired by railway companies. 14 But in " Railroad r. Davis, 2 Dev. & Bat. 457; Dean v. Sullivan Railw., 2 Foster, 316 : I'l ink Road v. Hull'. A: P. Railw., 20 Barb. 644; Weston v. Foster, 7 Met. 2'.'7. In a case in Ohio, where the subject seems to have been examined with cure- anil ^tudy, it is laid down, as the result of the law upon the subject, tliit only such interest as will answer the public wants can be taken; and it can be beld only so long as it is used by the public, and cannot be diverted to any other purpose. Giesy v. < iincinnati, Wil. & Zanesv. Railw., 4 Ohio (X. S.), 308. Hooker ». Qtica & Minden Tump. Co., 12 Wend. 371; People v. White, 11 Barb. 26 ; Blake o. Rich, 34 N. H. 282. The title of the land-owner is thus defined in tins last case. The exclusive right of property in the land, in the ige upon its surface, and in the minerals below it, remains un- changed, subject always to the right of the company to construct and operate their road, in any loyally authorized mode. " Barclay©. Howell's Lessee, 6 Pet. (U. S.) 498. Cases to establish the general principle here announced might be multiplied to any extent. They will be found extensively collected in 3 Kent, Comm. 432, and notes. By the civil law, it is said, the soil of public highways is in the public, and the law of Louisiana is the vim.-. Renthorp r. Bang, 1 Martin, 97. 13 Kurh r Dauphin, .James, 159. 4 Wheeler i\ Rochester & Syra. Railw., 12 Barb. 227 ; Hunger v. Tonawanda [•251] § 69. TITLE ACQUIRED BY COMPANY. 269 one case 15 it was held, that the municipal authority of a city have no power to grant permission to a railway company to take or in- jure the property of a citizen ; but the companies have an implied authority to make such side-tracks and continuations at the ter- mini of their road as may be reasonable and necessary for the transaction of their business and the accommodation of the public, and may take private property for these purposes. The right to *use and enjoy the street is an appurtenance to the adjoining land, and an injury to the appurtenance is an injury to the whole prop- erty ; and as for such an injury the statute prescribes no remedy, the land-owner must resort to his common-law remedy. 11. But in a case in Massachusetts, 16 the title seems to us Railw., 4 Comst. 349; Coster v. New Jersey Railw., 3 Zab. 227. The New York Court of Appeals, quite recently, upon elaborate examination, came to the conclusion, that a deed to a railway company, granting land to it and its succes- sors, conveys an estate in fee. Nicoll v. New York & Erie Railw., 12 N. Y. 121. But see Henry v. Dubuque & Pacific Railw., 2 Clarke (Iowa), 288. In De Varaigne v. Fox, 2 Blatchf. C. C. 95, it was held, that where the statute conferred the right to take the fee of land, and it was taken upon compensation accordingly, the court will not construe the grant as a conditional fee or usufruct, leaving a possible reverter to the original proprietor, but will regard the entire property as vested in the grantee for ever, and that if any right accrues to the former owner in consequence of the change of the destination of the property, after the continuance of the use for twenty-six years, it is an equitable and not a legal right. 15 Protzman v. Ind. & Cin. Railw., 9 Ind. 467. What shall be a reasonable extension of the track of a railway in a city beyond the depot is here discussed. It seems to be more a question of fact than of law. Evansville, &c. Railw. v. Dick, id. 433. 16 Hazen v. B. & M. Railw., 2 Gray, 574. But the company have no right to do any act upon the land except what is conducive to the use of the land for the purposes of their grant, of which they are the judge. Brainard v. Clapp, 10 Cush. 6. In this case, Shaw, C. J., thus defines the title of the railway, in lands taken for their use : " The railroad company are authorized to do all acts, within the five rods, which by law constitute their limits, in taking away or leaving gravel, trees, stones, and other objects, which in their judgment may be neces- sary and proper to the grading and levelling of the road, in adjusting and adapt- ing it to other roads, bridges, buildings, and the like, so as to render it most conducive to the public uses which the railway is intended to accomplish. What- ever acts, therefore, are requisite to the safety of passengers on the railway, to the agents, servants, and persons employed by the company, and to the safe passage of travellers, on and across highways and roads connected with it, and which can be done within the limits of the five rods, the company have a right under their act of incorporation to do. This is embraced in the idea of taking land for public use." See Chicago & Miss. Railw. v. Patchin, 16 111. 198. [*252] 270 EMINENT DOMAIN. PART III. to be explicitly and fully stated, and the only ground of distinction between railways and common highways, as to the title of the land taken, y.tv intelligibly pointed out. The court here say, "The right acquired by the corporation, although technically an ease- ment, yet requires for its enjoyment a use of the land permanent in its nature ami practically exclusive." L2. Hence, it seems to be admitted that, even in cases where the statute provides for the taking of the fee, upon the discontinu- ance of the public use, the land reverts to the former owner. 17 But where a special act authorizes a municipal corporation to hold tlif fee of the soil for the site of an almshouse, it was held that the original owner and his representatives could claim no exclusive interest therein, or any reversionary title thereto, after the removal of the almshouse to another site. 18 * 13. In some of the cases in this country, it has been held, that it is only the residuum of title remaining in the corporation, at the time a railway is discontinued, that reverts to the former owner of the land, and that, in the mean time, the company may wholly defeat the reversion, by a conveyance in fee-simple; and this remarkable proposition is distinctly announced in one case, 19 — l * Corporations have a fee-simple for purposes of alienation, but they bave only a determinable fee for purposes of enjoyment." 14. If it were said that corporations, created for special pur- poses of intercommunication, like railways and canals, and in- ed with the sovereign prerogative of eminent domain for these purposes only, had no interest, or estate, in lands whatever, except for the mere purpose of carrying on the functions with which they were invested by the state, and could neither use nor convey the lands, to be used for any other purpose whatever, it would seem far more in accordance with established principles and generally received notions upon the subject. In the same case it is said, pie r. White, 11 Barb. 2G ; United States v. Harris, 1 Sumner, 21. But by the repeal of a charter the lands do not revert to the former owner, but the franchises of the corporation are resumed by the state, and the railway re- mains public property, subject to the management and control of the state. Erie & Northeast Railw. v. Casey, 26 Penn. St. 287. But see Rexford v. Knight, infra. ■ Bayward r. Mayor of New York, 3 Seld. 314. So also in regard to lands appropriated to the use of the state canals. Rexford v. Knight, 11 X. Y. 308. Nicol v. New York & Erie Railw., 12 Barbour, 460. See State v. Rives, 5 Ired. 297. [*253] § 69. TITLE ACQUIRED BY COMPANY. 271 a grant to a corporation, created only for a term of years, purport- ing to convey a fee, will not be construed to convey only a term for years. 15. In all these cases where the title of the company depends upon conditions, they must be strictly performed and strictly construed. 20 16. But where, by the law of the state, railways, upon discov- ery that the title they are acquiring may prove defective, have the right to take new proceedings, it was held, that the discov- ery of a mortgage upon lands will justify the abandonment of pending process, and instituting procedure under the section which allows them to extinguish incumbrances, on that por- tion required for their road. 21 And the appraisal of land sub- ject to an easement in the grantor, is irregular, and no title passes. 22 17. After land is condemned for the use of a railway, the adju- dication * can no more be impeached by any collateral proceeding, or by evidence, than the judgment of any other court of exclusive jurisdiction. 23 And it was held, under the Pennsylvania statute, 24 that after the award of land damages, and payment of the money, the company become the owners of the land, notwithstanding the pendency of a certiorari to remove the case into the Supreme Court. 25 18. Where the Commonwealth of Pennsylvania, in the construc- tion of her public works, acquired the fee-simple of land taken therefor, either by purchase or the right of eminent domain, and the land was devoted to the use of a highway, a cessation of that use does not revest the title in the former owner. 26 20 Bangor & Piscataqua Railw. v. Harris, 8 Shepley, 533 ; Lovering v. Railw., 8 Watts & Serg. 459; Munger v. Tonawanda Railw., 4 Comst. 349; Carr v. Georgia Railw. & Banking Co., 1 Kelly, 524. 21 New York Central Railw. in re, 20 Barbour, 419. 22 Hill v. Mohawk & H. Railw., 3 Seld. 152. 23 Hamilton v. Annapolis & Elk Ridge Railw., 1 Md. Cb. 107. 24 Stat, of 1829, § 15. 25 Sehuler v. Northern L. Railw., 3 Whar. 555 ; ante, § 65 ; post, § 73. 26 Haldeman v. Penn. R. Co., 50 Penn. St. 425. See also as to proceedings under Lateral Railroad Acts of Pennsylvania, Brown v. Peterson, 40 Penn. St. 373; Boyd v. Negley, id. 377; Mayor, &c. of Pittsburgh v. Penn. R. Co., 48 id. 355. It seems scarcely necessary to state that the final judgment of condem- nation and the payment of the award vests in the company the absolute right to use the land embraced in the judgment for all their legitimate purposes. Dodge [*254] EMINENT DOMAIN. PART III. ♦SECTION VIII. Corporate Franchises condemned. 1 Road franchisi may betaken. ,-' '.. uuidi . franchise may be taken, led. n rtitvtional restrictions. 6. Not well di 7 M ■ . in ti ruts. v / • slative discretion. 9. //• jhways and railways compared. 10. Extent of eminent domain. 11. Exclusiveness of the grant, a subordinate franchise. 12. Legislature cannot create a franchise, above the reach of eminent domain. 13. Legislature may apply streets in city to any public use. 14. Rule of compensation, in such cases, to the owner of the fee, converting canal into railway. i; 70. 1. The franchise of a turnpike, or bridge, or other similar corporation may be taken for a free road, or for a railway, which, as we have said, is an improved highway. 1 And it will make no difference that the franchise is situate partly within the limits of different states as in the case of a bridge across a river which forms the divisional line between different states. But the pro- - in one state can only take what lies within its limits. 2 2. But compensation, either for the entire franchise, which is the more common course, and ordinarily the only just mode of r. Hums, 6 Wis. 514; Burns v. Milw. & Miss. Railw. Co., 9 Wis. 450. And the acceptance of the value of the land by the land-owner, however the amount may have been ascertained, is an acquiescence in the taking, as much as if he had conveyed the land by deed. lb. The party cannot accept the amount of an award of damages, and also appeal therefrom. Miss. & Mo. Railw. Co. v. Byington, II [owa, 572. But where by mutual submission the land-owner and railwaj company referred the amount of damages to be paid by the company to arbitrators, who awarded the amount to be paid for the title conveyed simul- taneously, which the company offered to do on their part, but the land-owner declined to perform on his part, or to give any encouragement of ever doing, but many years after brought an action against the company for not performing the award, it was held he could not.recover. Smith v. Boston & Maine Railw., en, 262. 1 Armington p Barnet, 15 Vt. 745; West River Bridge v. Dix, 6 How. (U. L6 Vt. 446; White River Turnpike Co. v. Vermont Central Railw., 21 Vt. 594; Boston Water Power Co. v. Boston & Worcester Railw., 2 I Pick. 360; Central Bridge Corporation v. City of Lowell, 4 Gray, 474. isby v. Hanover, :3G N. II. 404. [*255] § 70. CORPOEATE FRANCHISES CONDEMNED. 273 procedure, or for the special injury, must be made. 3 But it is no objection to the validity of an act of the legislature, allowing a railway to carry its track across the land of a mill-dam company, incorporated by the legislature, that it contains no express provi- sion for compensation to such mill-dam company. This is implied, as in other cases, where land is taken. 4 And the same implica- tion has been held to extend to the case of a subsequent grant of a railway which materially depreciated the use and value of a prior grant of a bridge. 5 But it is the more commonly received opinion, that a subsequent grant, which only incidentally * operates injuri- ously to an earlier one, does not require compensation to be made for such injury, unless expressly so provided. 6 3. So also may the franchise of one railway be taken for the construction of another railway. 7 4. In one case the law upon this subject is thus stated, by Shaw, C. J. : " The court are of opinion, that it is competent for the legislature, under the right of eminent domain, to grant authority to a railway corporation, to take a highway longitudinally in the construction of their road. The power of eminent domain is a high prerogative of sovereignty, founded upon public exigency, according to the maxim, Salus reipublicce lex supi-ema est, to which all minor considerations must yield, and which can only be limited by such exigency. The grant of land for one public use must yield to that of another more urgent." 8 5. The great question of the inviolability of corporate franchises, which we shall have occasion to discuss more at large hereafter, 9 is, no doubt, to a certain extent, involved here. For, upon gen- 3 West River Bridge v. Dix, 6 How. (U. S.), 507 ; Boston Water Power Co. ». Boston & Worcester Railw., 22 Pick. 360. But see 11 Leigh, 42. 4 Boston Water Power Co. v. Boston & Worcester Railw., supra. 5 Enfield Toll-Bridge Co. v. The Hartford & New H. Railw., 17 Conn. 454; s. C. 17 Conn. 40. 6 White River Turnpike Co. v. Vermont Central Railw., 21 Vt. 594. 7 Grier, J., in Richmond Railw. v. Louisa Railw., 13 How. (U. S.), 81, 82; 8. c. 2 Redf. Am. Railw. Cases, 600 ; Newcastle & R. Railw. v. P. & Jnd. Railw., 3 Ind. 464. 8 Springfield v. Conn. River Railw., 4 Cush. 63 ; s. c. 1 Redf. Am. Railw. Cases, 299. See also, upon the general subject, Chesapeake & Ohio Canal Co. v. Balti- more and Ohio Railw., 4 Gill & Johns. 1 ; Forward v. Hampshire & Hampden Canal Co., 22 Pick. 462, where the prior company is held bound by acquiescence in the transfer of its franchises to another company. Irvin v. Turnpike Co., 2 Penn. 466 ; Rogers v. Bradshaw, 20 Johns. 735 ; Backus v. Lebanon, 1 1 N. H. 19. 9 Post, § 231. vol. i. 18 [*2.06] 274 EMINENT DOMAIN. PART III. oral principles of legislative authority, there could be no question that a corporation, which is the mere creature of the legislature, might be, at once and unconditionally, extinguished, by repeal of the charter. This is confessedly within the power of the legisla- tive authority of the British parliament; and the legislative authority of the parliament of Great Britain is no more extensive than that of the legislatures of the American states, aside from restrictions contained in the constitutions of the United States and of the several states. 10 6. The only limitation upon this power over private corpora- tions, in most of the states, perhaps in all, is found in that pro- vision of the United States Constitution which prohibits the Legislatures of the several states from passing any law impairing the * obligation of contracts. And the proper limits of this restriction, in regard to corporations, is not altogether well defined, in the different opinions of the several judges of the Bupreme national tribunal upon this subject; nor is there any thing approaching unanimity among them. 7. But it may perhaps be regarded as settled, for the time at least, that where exclusive privileges are conferred upon private corporations, by express words, or necessary implication, the grant is irrevocable and inviolable. But that the grant of any privilege or franchise carries no implied exclusion, of similar privileges and franchises being conferred upon other persons, natural or cor- porate. 11 8. The legislature may in all instances determine when and where the public necessities require additional facilities, of a similar or analogous character, where the former grant is not exclusive. 11 '•'. And in some cases of exclusive and perpetual grants, for common highways or bridges, it has been held, that this did not preclude the legislature from granting railways and railway bridges within the limits of the former grant. 12 In the case just referred I • trtmouth ( lollege v. Woodward, 4 Wheat. 518. River Bridge v. Warren Bridge, 11 Pet. 420; Thorpe v. Rut. & Bur. Railw., 27 Vt. 140; 8. c. 2 Redf. Am. Railw. Cases, 587 ; Boston & Lowell Railw. >■. Salem & Lowell Railw., 2 Cray, 1; Mohawk Bridge Co. v. Utica & Bch. Railw., 6 Paige, 554 ; Hudson & Delaware Canal Co. v. New York & Erie Railw., '.' T Ree r. Wilmington & Raleigh Railw., 2 Jones Law, 186. But see Enfield Bridge I ... c. Hartfurd & New II. Railw., 17 Conn. 40, 454. [•257] § 70. CORPORATE FRANCHISES CONDEMNED. 275 to, 12 the court held, that a perpetual grant of a toll-bridge across the Cape Fear River, which in terms subjected all persons to a penalty for transporting persons or property across that river in any other manner, within six miles of the plaintiff's bridge, would not subject the defendant's company to the penalty for carrying persons and property across the river, upon their road, by means of a bridge erected within the six miles ; that the grant was in- tended to be exclusive only as to all modes of travel and trans- portation then known, but not to exclude all improvements thereon, in all future time. 13 10. But the exclusive character of a corporate grant will not preclude the power to take the franchise, upon making compensa- tion, * under the right of eminent domain, the stipulation in the charter, that the grant shall be exclusive of all others, being sub- ject to the same law as other property, whether in possession or action ; all which is confessedly subject to the exercise of the right of eminent domain, by the sovereign. 14 11. It has sometimes been characterized, as a refinement or an invention, to identify the covenant, in the charter of a private cor- poration, that the grant shall be exclusive of all others, with the charter itself, and thus subject it to the law of eminent domain. But it seems to us entirely a sound view, in all cases where the whole franchise of the corporation is proposed to be taken, and that the charge of refinement is rather to be laid at the door of such as attempt to raise a distinction between the exclusive- ness of the grant and the grant itself, in order to preserve the in- violability of the former, which is the lesser and subordinate franchise, when the latter, and paramount, and vital franchise of a corporation is confessedly subject to the law of eminent domain. 15 13 But this distinction is certainly not attempted to be maintained in the majority of the cases upon this subject, either in England or in this country. Post, § 231 et seq. 14 Enfield Toll Bridge Co. v. Hartford & New Haven Railw., 17 Conn. 40 and 454. This doctrine has been so repeatedly asserted in all the courts of the country, that it seems scarcely requisite to multiply references. And the right to take the franchise of another corporation, by parity of reason, carries the right to impair another franchise to any extent, upon making indemnity. Matter of Kerr, 42 Barb. 119. 15 West River Bridge Co. v. Dix, 16 Vt. 446; s. c. 6 How. (U. S.), 507, 539, Opinion of Woodbury, J. : who argues that it is difficult to comprehend why [*258J EMINENT DOMAIN. PART III. L2. li is intimated in West, River Bridge Company v. Dix, by try, J., that if the charter of the corporation contained an ezpresB stipulation againsl the exercise of the right of eminent domain upon the corporation, this might secure the franchise. But this is certainly not the prevailing opinion. 10 The fee of the streets of a city, where it has been acquired by the municipality under the right of eminent domain, becomes • a public trust for general public purposes, and is under the un- qualified control of the legislature, and any legislative appropria- tion of it to public use is not to be regarded as the appropriation of private property, so as to require compensation to the city or municipality to render it constitutional. 17 The mere possibility * of reverter to the original owner, or his heirs or grantees, is not led in such cases as any appreciable interest requiring to be compensated. 17 14. Courts seem sometimes to have entertained doubts if it is competent for a railway company to appropriate the franchise of a canul company along the same line so as to supersede the canal by its own works. 18 But we apprehend there can be little doubt on that point; and the case last cited holds, that if this is attempted and acquiesced in by the canal company, it is not competent for the owner of the fee in the land to claim a reverter of the title by rea- son of the want of power in the railway company. The most the owner of the fee could claim in such case is to recover compensa- ness of the grant to a private corporation should, upon principle, be any more inviolable by legislative authority than any other part of the corporate franchise. It is only as property that it is valuable, or that it is protected at all. Ami all property is, in cases of proper necessity, subject to the law of eminent domain. It i.s very questionable whether this law should be held to extend to portions of public works which may always be obtained in the market, and ■ , by consequence, there is no practical necessity. " In regard to the right of eminent domain, it seems now to be conceded, that do legislature, upon any consideration or pretence whatever, can deprive a future legislature of its exercise, in the absolute annihilation of corporate fran- apon jusl and adequate compensation. In Backus v. Lebanon, 11 N. Hamp. 19, Parker, C. J., gave a very able exposition of the question. See also, .in- effect, the opinion of Mr. Justice Grier, of the United States Circuit Court, in Milnor r. The New J. Railw., 6 Law Reg. 6, 7 ; and Crosby v. Hano- B 646; s. c. 36 N. H. 404. I pie « . Kerr, 27 N. Y. 188. See also Philadelphia & Reading Railw. v. of Philadelphia, 47 Penn. St. 325. Hatch <■. < in. ,v Ind. Railw., 18 Ohio (N. S.), 92. [*259-261] §71. COMPENSATION. MODE OF ESTIMATING. 277 tion for any additional land taken, and for any additional burden imposed upon the land appropriated to the canal, as well as for any additional damage to the adjoining lands of the same owner. 18 SECTION IX. Compensation. — Mode of Estimating. 1. General inquiry simple. 2. Remote damage and benefits not to be con- sidered. 3. General rule of estimating compensation. 4. Prospective damages assessed. 5. In some states value " in money " is re- quired. 6. 7. Damage and benefits cannot be consid- ered in such cases. 8. Rule of the English statute. 9. Farm accommodations. 10- Benefits and damage, if required, must be stated. n. 13. Course of the trial in estimating land damages. 11. Items of damages not indispensable to be stated. 12. In contracts for land statutory privileges must be stated to be secured. 13. Questions of doubt referred to experts. 14. Special provisions as to crossing streets only permissive. 15. In an award of farm accommodations, time of the essence of the award. § 71. 1. The inquiry in regard to what compensation shall be made, for land taken for public works would, on the face of it, seem to be a very simple one. One would naturally suppose the value of the land taken or the damage sustained, to be the fair measure of compensation, and that there could be no serious diffi- culty in ascertaining the amount. 2. But in consequence of numerous ingenious speculations in regard to possible advantages and disadvantages arising from the public works, for which lands are taken, the whole subject has become, in this country especially, involved in more or less uncer- tainty. All the cases seem to concur in excluding mere general and public benefit, in which the owner of land shares in common with the rest of the inhabitants of the vicinity, from being taken into consideration in estimating compensation. 3. It has been said, the appraisers are not to go into conjectural and speculative estimations of consequential damages, 1 but con- ' Meachamu.Fitchburg Railw., 4Cush. 291; 8. c. 1 Redf. Am. Railw. Cases, 276. Upton v. South Reading Branch Railw. Co., 8 Cush. 600 ; Albany N. Railw. Co. v. Lansing, 16 Barb. 68; Canandaigua & N. Railw. v. Payne, 16 Barb. 273; Green- ville & C. Railw. Co. v. Partlow, 5 Rich. 428 ; White v. Charlotte & S. C. Railw. [*261] •27^ EMINENT DOMAIN. PART III. fine * themselves to estimating the value of the land taken to the owner. This is most readily and fairly ascertained, by determin- ing the value of the whole land, without the railway, and of the portion remaining after the railway is built. The difference is the true compensation to which the party is entitled. 2 I. Bui the appraisers are to assess all the damages, present and pective, to which the party will ever be entitled, by the prudent construction and operation of the road. 3 Co., 6 Rich. 17 ; A. & S. Railw. Co. v. Carpenter, 14 111. 190; Symonds v. The City of ( lincinnati, 14 Ohio, 147; Brown v. Cincinnati, id. 541 ; Mclntire v. State, 5 Blackf. 884; Stale v. Digby, 5 Blackf. 543; James River & Kanawha Co. r. Turner, 9 Leigh, 313 : Schuylkill Co. v. Thoburn, 7 Serg. & R. 411. A jury may take into the account, in estimating the dan.ages, the effect the construction of the railway will have in diminishing deposits of sediment, which had been made by a river, in higli water flowing upon the land and greatly enriching it. >rd Railw. v. Greeley, 28 N. H. 237. And the deterioration of the adja- cent parts of the same land (but which are not taken), either for agriculture, or sale for building lots ; by risk from fire, care of family and stock, inconvenience caused by embankments, excavations, and obstructions to the free use of build- ings, is to be taken into the account, in estimating damages. Somerville & E. Railw. v. Doughty, 2 Zab. 495. The increase or decrease in the price of the remaining land, and the expense of fencing, are to be taken into the account, in -sing compensation. Greenville & Columbia Railw. v. Partlow, 5 Rich. 428. The value of the land taken, considering its relation to the land from which it is severed, is to be given, and such further sum as the incidental injury to the land not taken, from the construction of the road, exceeds the incidental benefits. Nashville Railw. v. Dickerson, 17 B. Monr. 173, 180. Louisville & Nash. Railw. r. Thompson, 18 id. 735. 2 Troy & Boston Railw. v. Lee, 13 Barb. 169, 171; Matter of F. Street, 17 U '• ad. 649 ; Canal Co. v. Archer, 9 Gill & J. 480; Parks v. City of Boston, 15 Pick. 198; Somerville Railw. v. Doughty, 2 Zab. 495; Hornstein v. Atlantic & o Railw., .",1 Perm. St. 87; S. F., &c, & S. Railw. v. Caldwell, 31 Cal. 367. See also Wil. & Read. Railw. v. StaufFer, 60 Penn. St. 374; Pitts- burg, It. W. & < !. Railw. v. Gilleland, 56 Penn. St. 445 ; Walker v. Old Colony & Newport Railw., 103 Mass. 10; and Arnold v. Hudson River Railw., 49 Barb. 108, a- to damage to land not taken. See also Matter of Utiea Railw., 56 Barb. 156. But no account is to be taken, in estimating land damages, of the benefit the railway may have been to other property of the plaintiff, disconnected with that taken. Railw. v. Gilson, 8 Watts, 243; but see Columbus, P. & I. Railw. 3 mpson, 4 Am. Law Reg. 696; s. c. 5 Ohio (N. S.), 251; Rochester & Sy. Railw. r. Budlong, 6 How. Pr. 467; Sater v. B. & Mt. PL Railw., 1 Clarke, I he value of the land, at the time of trial, or at any time subsequent to the construction of the work, cannot be referred to in determining the benefits d upon that portion of the land not taken. Ind. Central R. v. Hunter, 8 Ind. 74. 3 Dearborn v. Boston, Concord, & Montreal Railw. Co., 24 N. H. 179. Clark [*262] §71. COMPENSATION. — MODE OP ESTIMATING. 279 * 5. Some of the state constitutions in terms provide, that com- pensation for private property, taken for public use, shall be made " in money," and many eminent jurists have strenuously main- tained that compensation, to the extent of the value of the land taken, must always be made in money, and that no deduction can be made on account of any advantage which is likely to accrue to other property of the owner, by reason of the public work for which the property is taken. 4 Such accidental advantages to the portion of land not taken as drainage by means of cuts in the soil from grading the railway cannot be taken into account. 5 6. In a case in Vermont the court held, that taking land for a public highway is not appropriating it to public use, within the meaning of the constitution of that state, which requires com- pensation in such cases to be made " in money," but that this pro- vision only applies, where the fee of the land is taken ; and that where an easement only is taken for the purpose of a highway, and the remaining land is worth more than the whole was before v. Vt. & Canada Railw., 28 Vt. 103. The expense of fencing is to be included in the estimate of land damages. Winona & St. Peter Railw. Co. v. Denman, 10 Minn. 267. The matter of estimating land damages to the owner of a farm, a portion of which is taken for the construction of a railway, is discussed very much in detail, and with a very considerate regard to the equitable interests of all parties, in the case of Robbins v. Milw. & Hor. Railw. Co., 6 Wis. 636. Damages done to mill property in lessening the advantages of the water-power, present and prospective, should be taken into the account in estimating land damages. Dorian v. E. Br. & Waynesburg Railw. Co., 46 Penn. St. 520. 4 2 Kent, Comm. 7th ed. 394, and note; Jacob v. The City of Louisville, 9 Dana, 114; The People v. The Mayor of Brooklyn, 6 Barb. (S. C.) 209. But this last case was subsequently reversed in the Court of Appeals. 4 Comst. 419 ; Rice v. Turnpike Co., 7 Dana, 81 ; Woodfolk v. N. & C. Railw., 2 Swan, 422. In this case it was said, benefits to the remaining land may be set off against injury, but the party cannot be compelled to apply such benefits towards the price, of his land. Railways. Lagarde, 10 La. Ann. 150. Under such a pro- vision in the constitution of Ohio, it was held, that in assessing damages, the jury had no right to take into consideration the fact, that the value of the land had been increased by the proposal or construction of the work. Giesy v. Cin., Wil. & Zanesv. Railw., 4 Ohio (N. S.), 308. General benefits resulting from the erection of a railway, to all who own property in the vicinity, are not to be taken into the account, in estimating land damages; and it was doubted if special benefits, accruing to the remainder of the land, could be so taken into account. Little Miami Railw. v. Collett, 6 Ohio (N. S.), 182. Pacific Railw. v. Chrystal, 25 Mo. 544. 6 Evansville & C. Railw. v. Fitzpatrick, 10 Ind. 120 ; Same v. Cochran, id. 560. [*263] EMINENT DOMAIN. PART III. the laying out of the road, the party is entitled to no compen- sation. 6 •7. Thia is certainly not in conformity with the general course of decision upon this subject. It is the only case, probably, where an attempt is made to escape from such a constitutional provision, in this manner. Some will doubtless regard it as too refined to sound. And if it is true, as is sometimes claimed, that the legislature had no right to resume the fee of land for highways 6 Livermore v. Jamaica, 23 Vt. 361. This case has been questioned. 1 Ben- nett's Shelford on Railways, 441. And the opposite view maintained in Bem- felly v. Green Bay Co., 13 Wall. 166. See also Reitenbaugh v. Chester Valley Railw., 21 Penn. St. 100. Contra, McMahon v. Cincinnati Railw., 5 Ind. 413; 3 id. 543. Benefits arising to the owner of the land "by the construction of the read" held not to have reference to the whole work, but to that particular por- tion which runs through the party's land. Milwaukee & Mis. R. v. Eble, 4 Chand. 72. An act which provides for setting off the advantages to other land against the value of the land taken, is not, on that account, unconstitutional. McMastera v. Commonwealth, 3 Watts, 292. But it has very often been held, that such accidental advantages, especially where they are not peculiar to the particular laud-owner, cannot be set off against the specific value of the land taken. State v. Miller, 3 Zab. 383 ; Woodfolk v. Nash. & Ch. Railw., 2 Swan, 422; Hill v. M. & II. Railw., 5 Denio, 206; Keasy v. Louisville, 4 Dana, 154; . Louisville, 5 Dana, 28; People v. Mayor of B., 6 Barb. 209. But many cases hold the contrary. People v. Mayor of Brooklyn, 4 Coinst. 419, where 8. C. 6 Barb. 209, is reversed; Rexford v. Knight, 15 Barb. 627. But where profits are to be taken into the account, the title to have them considered obtains at the time the servitude is located. Palmer Co. v. Ferrill, 17 Pick. 58. • fits by increase of business and population, markets, schools, stores, and other like improvements, cannot be considered, in estimating damages, for flow- ing land, by a mill-dam. lb. In a case in Xew Hampshire, petition of the Mount Washington Road Com- pany. 35 X. II. 134, it was decided, that in assessing damages for land taken for a turnpike, or free highway, compensation is to be given for the actual value of the land taken, without regard to any speculative advantages or disadvantages to the owner from the making of the highway. See Cushman v. Smith, 34 Maine, 1' 17. But in Indiana Central Railw. v. Hunter, 8 Ind. 74, the same rule is adopted, as in the case first cited in this note. And in Whitman v. Boston & Maine Railw., 7 Allen, 313, it was decided, that in estimating the damages to land by reason of the location of a railway across it, and the filling up of a canal in which the owner of the lot had a privilege, if the value of the lot is so en- hanced, that what remained was worth more than the whole lot was before, the owner has no claim for damages. S. P. in the s. C, 3 Allen, 133. But the benefits to be deducted from the value of land taken must accrue to the remain- ing land, and not to all land in the same vicinity. Winona & St. Peter Railw. v. Waldron, 11 Minn. 515. [*264] §71. COMPENSATION. — MODE OF ESTIMATING. 281 and railways, such a constitutional provision, with such a construc- tion, would have little application to the taking of land for such uses. 7 * 8. The English statute provides, that, in estimating compen- sation for land damages " regard shall be had, not only to the land taken, but also to damage, by reason of severance from other lands or otherwise injuriously affecting such lands." There are, too, in the English statute, provisions for compensation to sundry sub- ordinate interests in lands, as to lessees for years, and to tenants from year to year. And also in regard to mines. The company are not entitled to mines or minerals under lands, except such parts as shall be necessary to use in the construction of the road, unless expressly purchased. It has been held that stone got from quarries are minerals, 8 and that mines are quarries, or places where any thing is dug. 9 By the English statute, the company may re- move or displace gas or water pipes, making compensation to all parties injured. 7 Hatch v. Vermont Central Railway Co., 25 Vt. 49 ; s. c. 1 Redf. Am. Railw. Cases, 285; Reitenbangh v. Chester Valley Railw., 21 Penn. St. 100. Contra, Little Miami Railw. v. Naylor, 2 Ohio (N. S.), 235. And in a case in Mississippi, Brown v. Beatty, 34 Miss. 227, where the constitution required "compensation first to be made " for land taken, it was held the provision secured to the owner the right to receive the cash value in money, and, in addition, full indemnity for all damages by means of severance, and that no enhanced value of the portion of land - not taken could be taken into the account. See also Branson v. Philadelphia, 47 s VPenn. St. 329. Henry v. Dubuque & Pacific Railw. Co., 10 Iowa, 540. It is said in one case, what is very nearly a truism, that corporate existence and the right of eminent domain can only be derived from legislative grant, and that both must be shown to justify taking lands compulsorily, and also compliance with all condi- tions of the grant. Atkinson v. Marietta & Cin. Railw. Co., 15 Ohio (N. S.), 21. Post, § 76. The dedication of land to the use of a street willnot authorize the legislature to appropriate it to the use of a railway track without compensation to the owner, and, if this is attempted, it may be restrained by injunction. Schur- meier v. St. Paul & P. Railw., 10 Minn. 82. 8 Micklethwait v. Winter, 6 Exch. 644 ; s. c. 5 Eng. L. & Eq. 526. 9 Hodges on Railways, 238, note (y). The more common mode of estimating land damages unquestionably is, to give the company the specific benefit caused to land, a portion of which is taken, in the enhancing the value of the same, and only to allow the land-owner such a sum as will leave him as well off in regard to the particular land as if the works had not been built, or his land taken. This is done by giving the land-owner a sum equal to the difference between what the whole land would have sold for before the road was built, and what the remain- der will sell for after the construction. Harvey v. Lack. & Bloomsburg. Railw., 47 Penn. St. 428. But this rule will, in many cases, prove entirely inadequate [*265] EMINENT DOMAIN. PART III. 9. And where commissioners appraise the damages upon the basis of the railway making and maintaining- certain works for the accommodation of the land-owner, as a culvert and waste-way, etc., it was held this portion of the award was not void ; but if acquiesced in by the company, and the land taken, and compensation made * upon that basis, they thereby became bound by its provisions. 10 J>ut where it was referred to arbitration to estimate the damages caused to the plaintiff, and the company by the express terms of its charter was bound to make suitable crossings for the accomoda- tion of land-owners through whose land the right of way was taken, and the land-owner told the agents of the company, at the hearing before the arbitrators, that he should require a crossing to be provided for his convenience ; and the agents claimed that the arbitrators had nothing to do with this matter, and that claim was acquiesced in by the arbitrators and the parties, and the award only embraced the damage to the land, and subsequently the land- owner was induced to convey to the company the right of way, without annexing a condition binding the company to maintain a crossing for his accommodation ; upon the assurance of the coun- sel of the company that such deed would not affect his right to claim a crossing, it was held, upon a bill to reform the deed and to establish his right to the crossing, that he was entitled to the relief sought, and an injunction was granted accordingly. 11 But where a private way crossed the line of railway obliquely, and the award of land damages only indicated the point at which the company were to supply a crossing, it was held a sufficient compliance with the obligation of the company to give a crossing at right angles, although this did not connect with the termini of the road or afford any access to it. 12 10. In some of the states in this country, the advantages and disadvantages of taking land for a railway are required to be stated in the report of appraisal, and the omission to make such specific statement was held a fatal omission. 13 So, too, where and unsatisfactory, and where it has been adopted it may be regarded as only extending to other cases of a very similar character. Win. & St. Peter's Railw. '•• Denm in, L0 Minn. 267. 1 M :•-", Petitioner, IS Pick. 443. " Green v. Morris & Essex Railw. Co., 1 Beasley, 165. *-' Mann v. Great S. & W. Railw. Co., 9 Ir. Com. L. Rep. 105. 13 Ohio & Pennsylvania Railw. v. Wallace, 14 Penn. St. 245 ; Reitenbaugh v. [*266] § 71. COMPENSATION. — MODE OP ESTIMATING. 283 * additional expense of fencing is allowed in improved land, the report must specify that fact. 14 11. But in general there is no discrimination made in the report Chester Valley Railw., 21 Perm. St. 100; R. R. Co. v. Gilson, 8 Watts, 243; Zack v. Perm. Railw. Co., 25 Perm. St. 394. But it has been held, in some cases, where the advantages resulting to the land-owner were to be taken into the account, that the value of the land need not be stated separately from the damage, in an award of arbitrators, but only the amount of the whole injury. At all events, such amendments will be allowed, as to cure such defects. Greenville & Columbia Railw. v. Nunnamaker, 4 Rich. 107. Questions have sometimes been made, in regard to which party, in proceedings of this character, is entitled to go forward, in the proofs and argument. Upon principle, and in analogy to similar proceedings upon other subjects, we think there can be little doubt this right is with the land-owner, in the proceedings before the jury and the commissioners or arbitrators, where he is to all intents actor. But after having obtained an award, it has been more usual, in practice, to allow the excepting party to go forward. 1 Greenleaf 1 s Ev. §§ 76, 77 ; Connecticut River Railw. v. Clapp, 1 Cush. 559; s. c. 1 Am. Railw. C. 450; Mercer v. Whall, 5 Q. B. 447. But see Albany N. Railw. Co. v. Lansing, 16 Barb. 68, where the court say, "The commissioners have the right and power to exercise their own discretion in reference to the order that they take in appraising the land. They may view the land first and hear the proofs and allegations afterwards, or vice versa. So whether one party or the other should first be heard, is for them to determine- Having decided that the railway corporation might open and close the hearing, the defendant was concluded by their decision, as also would their decision have been conclusive on the company had the same privilege been awarded to the owner of the land." But where the error in the exercise of this discretion does manifest wrong, at nisi jn-ius, the verdict will be set aside for this reason alone in the full bench. 1 Greenleaf 's Ev. 104, and note, § 76. Awards of land damages have been set aside for excessive damages. Som- erville & Easton Railw. v. Doughty, 2 Zab. 495. But this subject was some- what considered in Troy & Boston Railw. v. Lee, 13 Barb. 169; Same v. Northern Turnpike Co., 16 Barb. 100; and it was held that such award should not be set aside, unless it appeared that the commissioners erred in the principles by which their judgment should be guided, or were clearly mistaken in the appli- cation of correct principles. This is putting them much upon the same ground as awards in other cases. And in Walker v. Boston & Maine Railw., 3 Cush. 1, it was held, that the Common Pleas, to whom the verdict of a sheriff's jury is to be returned, and who may set the same aside, for any good cause, were justified in doing so, for irregularity in impanelling the jury ; or in the conduct of the jury; or in the instructions given the jury by the sheriff; or for facts affecting the purity, honesty, or impartiality of the verdict, such as tampering with the jury or other misconduct of the party ; or any irregularity or misconduct of the jurors. But in a court of error the verdict can only be set aside for error appearing of record. But see § 72, post; Nicholson v. New York & New Haven Railw., 22 Conn. 74. 14 New Jersey Railw. v. Suidam, 2 Harrison, 25. [*267] 284 EMINENT DOMAIN. PART III. estimating damages for taking land for public works, between the value of the land appropriated and the incidental injury from ■■• and otherwise; and, unless specially required by the charter of the company or some other legislative act, such discrim- ination does not seem indispensable to the validity of the report, but would unquestionably, in the majority of cases, tend to render the report more satisfactory. 15 * 12. In contracts between railway companies and land-owners, in regard to farm accommodations, if the company desire to retain any special distinction conferred by statute, they must incorporate the statute, either in terms or by reference, into the contract. Otherwise the company will be held strictly to the terms of the contract as applied to the subject-matter. 16 13. Where there is any controversy in regard to the mode of crossing highways and turnpikes by railway companies, the court will refer the matter to men of experience and skill in such ques- tions. 17 14. A permission in a railway charter to cross a street or high- way by a level crossing, by making a bridge over the street for the accommodation of foot passengers, is not peremptory upon the company. They may still be permitted to cross the street other- wise than on a level, on their undertaking to abide by any order the court might make as to damages. 18 15. Where land is sold to a railway company upon condition of furnishing such farm accommodations as the land-owner should notify to the company within one month, time is regarded as of the essence of the condition, and if notice is not given within the time limited the court will neither order the company to make such accommodations as are demanded, or even such as are proper. 19 14 Trenton Water Power Co. v. Chambers, 2 Beasley, 199. ,G Clarke v. M. Sh. & J,. Railw. Co., 1 Johns. & H. 631. ,T Atty.-Genl. v. Dorset Railw. Co., 3 Law T. (N. S.) 608. ! ~ 1 >over Harbor v. L. C. & Dover Railw. Co., 7 Jur. (N. S.) 453. ondon, Chatham, & Dover Railw. Co., 3 De G., J. & S. 24; s. c. 11 Jur. (X. S.) 520; s. c. 9 id. 148, where the Vice-Chancellor decided other? 72. MODE OF PROCEDURE. 285 * SECTION X. Mode of Procedure. 9. 10. 11. 12. 13. 14. Legislature may prescribe. Must be upon proper notice. Formal exceptions indeed by appearance. Unless exception is upon record. Proper parties, those in interest. Title may he examined. Plaintiffs must show joint interest. Jury may find facts and refer title to the court. Land must be described in verdict. Distinct finding on each claim. Different interests. What evidence competent. Proof of value of land. Opinion of ivitnesses. 15. Testimony of experts. 16. Matters incapable of description. 17. Costs. 18. Expenses. 19. Commissioners' fees. 20. Appellant failing must pay costs. 21. Competency of jurors. 22. Power of couft to revise proceedings. 23. Debt will not he on conditional report. 24. Excessive damages ground of setting aside verdict. Note. Other matters of practice. 25. No effort to agree required in order to give jurisdiction. 26. Interest on value from time of taking. § 72. 1. It seems to be universally admitted, that where the organic law of the state does not prescribe the mode of procedure, in estimating land damages, for the use of a railway company, or other public work, it is competent for the legislature to pre- scribe the mode, and that the mode, so prescribed, must be strictly followed. 1 2. Thus, it has been held, that notice in writing to the owner of the land to be taken, its situation and quantity, must be given. 2 But the form of the notice, or whether signed by the company or by the commissioners, is not important. 3 And it is requisite, not only that proper notice should be given, but that it should appear upon the face of the proceedings that the particular notice re- quired by the statute was given. 4 But in general, we apprehend, if it appears upon the proceedings that notice was given to the 1 Bonaparte v. C. & A. Railw., Bald. C. C. R. 205 ; Bloodgood v. M. & H. Railw., 14 Wend. 51 ; s. c. 18 id. 9 ; s. c. 1 Redf. Am. Railw. Cases, 209. 2 Vail v. Morris & Essex Railw., 1 Zab. 189. But the notice to appoint com- missioners need not describe the land, it is held in other cases. Doughty v. Somerville & Easton Railw., id. 442. 3 Ross v. Elizabethtown & Somerville Railw., Spencer, 230. 4 Van Wickle v. Railw. Co., 2 Green, 162. See also Bennet v. Railw., id. 145. [*269] EMINENT DOMAIN. PART III. Land-owner, it might, upon general principles, be presumed it was the notice required. Bui merely formal exceptions to the mode of procedure, and the competency of the triers, in such cases, must be taken at rliest opportunity, where there is an appearance, or they will be regarded as waived. 6 4. Ami after appeal, it should appear by the record that merely formal exceptions were made in the proceedings below, and over- ruled, or they cannot be revised. 5 So, too, where the party, ex- cepting to proceedings before commissioners, applies for a jury to - vssment of damages, it will be regarded as a waiver of the exceptions. 5 He should have applied for a certiorari, if he intended to revise the case upon his exceptions. 5 5. in regard to the proper parties to such proceedings, almost infinite variety of questions will arise. The only general rule which can be laid down, perhaps, is, that those having an in- terest in the question, may become parties plaintiff, or be made parties defendant, according to the character and quality of the inter 6. h\ the English courts, it has been held, that these summary tribunals for estimating land damages are not to inquire into the title of the claimants. 7 But in some cases, in this country, it has been held, that the claimant's title to the land is a proper subject & Fitchburg Railw. v. Boston & Maine Railw., 3 Cush. 58 ; s. c. 1 Am. Railw. : Walker v. Boston & Maine Railw., 3 Cush. 1 ; Pittsfield & North Adams Railw. v. Foster, 1 Cush. 480 ; Field v. Vermont & Massachusetts Railw., 4 Cush. 160 : Taj lor v. < lounty Commissioners, 13 Met. 449 ; Porter v. County Commis- sioners, id. 47'J ; Meacham v. Fitchburg Railw., 4 Cush. 291 ; s. C. 1 Redf. Am. Railw. Cases, 276; Davis v. Charles River Branch Railw., 11 Cush. 506. 6 Fitchburg Railw. v. Boston & Maine Railw., 3 Cush. 58 ; Ashby v. Eastern Railw., 5 Met. 368; Greenwood v. Wilton Railw., 3 Foster, 261; Parker v. Boston & .Maine Railw., 3 Cush. 107; Mason v. Railw., 31 Me. 215; A. & St. I.. Railw. Co. v. Cumberland Co. Comm., 51 .Me. 36. And it seems to be re- garded as indispensable that parties under disability should be properly repre- sented in the proceedings the same as in other suits. Hotchkiss v. Auburn & Rochester Railw., 36 Barb. 600. But where a demand and tender of the value ol hind taken, together with other legal damages, are required before instituting compulsory proceedings, the requirement cannot apply to the case of an infant, i igbts will be saved till of full age. Indiana Central Railw. Co. v. Oakes, 20 Ind. 'J. Judgment creditors not necessary parties. Watson v. New Y. d Railw.. 47 X. Y. 157. 7 /' -'""J § 72. MODE OF PROCEDURE. 287 of inquiry, before the jury, in estimating damages. 8 And where the commissioners refuse to allow the petitioner damages, on * account of his not being the owner of the land, this is such a final decision as may be revised by a jury, and the Supreme Court will allow a mandamus, if that is denied. 9 7. Parties who join must show a joint interest in the land, but this need not always be shown by deed. Oral evidence is some- times admissible, where one owns the fee, and others have a joint interest, in consequence of erections, and the jury may properly pass upon the title, as matter of fact. 10 8. But the jury are not bound to decide upon conflicting titles, but may report the facts, without determining the owner. 11 And it has been held that the jury are not bound to find a special ver- dict, in regard to the title of the claimant, or where there are con- flicting claims, but may do so with propriety. 12 9. The jury should describe the land with intelligible boun- daries. 13 8 Directors, &c. v. Railw., 7 Watts & Serg. 236. Allyn v. Prov. W. &. B. Railw., 4 Rhode Is. 457. 9 Carpenter v. County Commissioners of Bristol, 21 Pick. 258. The trustee, and not the cestui que trust, is the proper party to such proceeding. Davis v. Charles River Branch Railw., 11 Cush. 506. The title of the petitioner may be inquired into, either on the return of the petition or of the report. Church v. Northern Central Railw. Co., 45 Penn. St. 339. The mode of proceeding on certiorari, and in other writs, is here discussed. 10 Ashby v. Eastern Railw., 5 Met. 368. So also where the land belonged to a partnership, and was not needed for the payment of partnership debts, one of the partners having deceased, it was held the title remained in the partners as tenants in common, and that proceedings to recover damages by reason of laying a railway upon it, were properly taken in their joint names. Whitman v. Boston & Maine Railw., 3 Allen, 133. 11 Matter of Anthony Street, 19 Wend. 678. So, too, where one owns the fee, and another has a bond for a deed, the condition of which is not yet per- formed, they may join. Proprietors of Locks and Canals v. Nashua & Lowell Railw., 10 Cush. 385. 12 Davidson v. Boston & Maine Railw., 3 Cush. 91 ; 1 Am. Railw. C. 534. The sheriff is bound to give the jury definite instructions, in regard to the effect of a conveyance. lb. 13 Vail v. Morris & Essex Railw., 1 Zab. 189. But see Philadelphia Railroad V. Trimble, 4 Whart. 47. The jury are not to include in their estimate the ex- pense of farm accommodations, which it is the duty of the railway to furnish. lb. But if this be done, and the party have judgment on the verdict, he is bound to make the erections. Curtis v. Vermont Central Railw., 23 Vt. 613. One tenant in common cannot proceed in his own name to have the damages done, by a rail- [*271] EMINENT DOMAIN. PART III. - LO. Where the claim for damages consists of several items, it is more conducive to a final disposition of the case to state the finding upon each item. In such case any objectionable item m;iv be remitted or deducted without the necessity of a rehear- II. Bui where the petition alleges several distinct causes of damage, and a general verdict is rendered, if one or more of the 3 is insufficient, it will not be presumed the jury gave any damages, on such insufficient claims, in the absence of any instruc- by the sheriff in relation to them. 15 But it is not necessary to apportion the damages to several joint-owners, and a tenant for life may lake proceedings to obtain damages done to his estate by the construction of a railway, without joining the remainder- man 10 12. The character of the proof admitted to enable the triers to learn the value of land is so various, that it is not easy to fix any undeviating rule upon the subject. It seems to have been the in- tention of the courts to allow only strictly legal evidence to be red, such as would be admissible in the trial of similar ques- tions before a jury in ordinary cases. 17 It has been allowed to show what price the company had paid by voluntary purchase for land adjoining, but in the same i was held not competent to inquire of adjoining land-own- way, to the common land, assessed even where he has authority from his co-tenant to do so. Railw. r. Bucher, 7 AVatts, 33. But if the petition be signed by the lessee and the agent of the owner of this is a. sufficient representation of the interest. Harvey v. Lioyd, 3 Penn. St. 331. See also Shoenberger v. Mulhollan, 8 Penn. St. 134. See also Cleveland & Toledo Railw. v. Prentice, 13 Ohio (N. S.), 373; Strang v. Beloit & M. Railw. Co., 16 Wis. 035. It is here said that the description, by way of an approximating diagram, may be sufficient without an actual survey. 14 Fitchburg Railw. v. Boston & Maine Railw., 3 Cush. 58; s. c. 1 Am. 1 . ."-08. ]i Parker B( ton & .Maine Railw., 3 Cush. 107. road v. Boyer, 13 Penn. St. 497 ; Directors of Poor v. Railw., 7 Watts 286; Pittsburgh & Steuben Railw. v. Hall, 25 Penn. St. 336. In one ud to be the duty of the commissioners to assess damages to joint s v. Elizabethtown & Somerville Railw., Spencer, 230. Ii v. Nashville & X. W. Railw. Co., 2 Head, 171. oy & Boston Railw. v. Northern Turnpike Co., 16 Barb. 100; Johnson, J., in Rochester & Syracuse Railw. v. Budlong, 6 How. Pr. 467; Lincoln v. Sarafc aectady Railw., 23 Wend. 425, 432. [*272] § 72. MODE OF PROCEDURE. 289 ers, who were farmers, and had occasionally bought and sold land, what was the value of their own laud adjoining. 18 Nor is * it competent to show for what price one had contracted to buy land adjoining. 19 Nor can the claimant prove, what the com- pany have offered him for the land ; 20 nor what the company have been compelled to pay for land adjoining, which was taken compulsorily. 21 18 Wyman v. Lexington & West Cambridge Kailw., 13 Met. 316. But in Robertson v. Knapp, 35 N. Y. 91, it was held, that farmers and residents of the immediate neighborhood are competent to fix the price of land in their vicinity ; one who bad been a farmer, but had changed Lis occupation to that of a mechanic, was nevertheless held a competent witness to testify to the value of land in the neighborhood. And in Shattuck v. Stoneham Branch Railw., 6 Allen, 115, it was held, that in such proceedings the land-owner, being a competent witness, may testify to his opinion of the amount of damage which he has sustained, and may prove recent sales of other lands in the vicinity, similarly situated, and about the same time ; but he cannot give evidence of the opinions of others, as to the value of other lands in the vicinity. But it is rather matter of discretion with the court, whether sales of other lands were sufficiently recent, or the land sufficiently like that in question, to afford aid to the jury. And on such hearing the company may prove that they have located a passenger station, since the hearing began, near the petitioner's land over which the railway passed. 19 Chapin v. Boston & Providence Railw., 6 Gush. 422. 80 Upton v. South Reading Railw., 8 Cush. 600. 21 White v. Fitchburg Railw., 4 Cush. 440. Only such damages as are pecu- liar to the owner of the land taken, and not those which are common to all land in the vicinity, can be considered. Freedle v. North Carolina Railw., 4 Jones Law, 89. It has been held that the benefits resulting to the land-owner from the construction of the road are to be deducted, in estimating damages for land taken for a railway ; and that consequently a statute providing for such deduc- tion is not thereby rendered unconstitutional. C. P. & Ind. Railw. v. Simpson, 5 Ohio (N. S.), 251. But as the constitution of this state expressly required that compensation to the land-owner should be made in all cases when land is taken for public use in money, it seems scarcely consistent to say that the benefits to the land-owner can in all cases be deducted, since in some cases the benefits to the particular piece of land, a portion of' which is taken, might more than com- pensate for that Avhich is taken, thus leaving nothing to be compensated " in money." The force of this embarrassment was felt by the court in a highway case in Vermont, where the constitution requires, that " whenever private prop- erty is taken for public use, the owner ought to receive an equivalent in money." .The court escaped from the embarrassment here by a device, which some might possibly regard as more ingenious than ingenuous, by saying, that as the consti- tution only applied to property " taken for public use," this could not reach cases where only an easement in property was taken. The court might, with almost equal propriety, have said, that the provision of the constitution "ought to re- ceive," being in the optative mood, did not imply an imperative duty, as few per- vol. i. 19 [*273] EMINENT DOMAIN. PART III. • 1 I. And it has been held that witnesses cannot be allowed to their opinion of the value of the land or materials taken. 22 This inquiry leads to the discussion of the general question, of whai matters may l)e proved, by the opinion of witnesses who are Dot possessed of any peculiar knowledge, skill, or experience upon the subject. 15. And it must be admitted the cases are not altogether recon- cilable upon the subject. Experts are admitted to express their opinions, not only upon their own observation, but upon testimony given in court, by other witnesses, and where the testimony is conflicting, upon a hypothetical state of facts. 23 The testimony of such witnesses is intended to serve a double purpose, that of instruction to the jury upon the general question involved, and elucidation of the particular question to be considered by them. 2 3 The resort to the assistance and instruction of persons skilled in particular departments of art or science is constantly adverted to, as of great advantage in enabling the triers to properly corn- sons expect to obtain by process of law all which they "ought to receive." Livennore v. Jamaica, 23 Vt. 361, Redjidd, J. dissenting, sub silentio. Ante, § 71, pi. 6. See also C. & P. Railw. v. Ball, 5 Ohio (N. S.), 568; Kramer v. Clev. & Pittsb. Railw., id. 140. Montgomery & West Point Railway v. Varner, 19 Ala. 185; Concord Railway r. Greely, 23 N. H. 237; Buffum v. New York & Boston Railway, 4 U. 1. 221; Cleve. & Pittsb. Railway v. Ball, 5 Ohio (N. S.), 568. But the witness may give an opinion as to the value of the whole land, both before and after the location of the road. lb. And so also in Illinois & Wisconsin Rail- way v. Van Horn, 18 111. 257. See also Dorian v. E. Br. & Way. Railw. Co., 46 I 1 ' mi. St. 520. In a case in Pennsylvania (East Penn. Railway Co. v. Hiester, 40 Penn. St. 53), it is said that the only proper test of the value of land bo taken is the opinion of witnesses as to the value of the land taken, in view of its location and productiveness, its market value, or the general selling jin e of land in the neighborhood. And this seems to us exceedingly sensible and tree from refinement or conceit. See also Same v. Hottenstine, 47 Penn. St. 28. rreenleaf Ev. § 440. Thus the testimony of persons employed in making insurance of buildings against fire, may, in actions against railways for conse- ntial damages to buildings, by the near approach of the track, express their opinion of the effect thereby produced upon the rent, or the rate of insurance ich buildings. Webber v. Eastern Railw., 2 Met. 147. See also Henry v. ique & Pacific Railw., 2 Clarke, 288. And in the case of Brown v. Provi- dence, W arren, & Bristol Railw., 5 Gray, 35, it was held, that the company could not Bbow that liquors were sold, or to be sold, upon land, as a part of the indui en ent to pay so high a rent, or that it was "contemplated" having a station near the point ; such testimony being too indefinite and remote. [•274] § 72. MODE OF PROCEDURE. 291 prehend those subjects out of the range of their general knowledge, * or the particular studies of judges, or jurors, in some of the best- considered English cases, within the last few years. 24 But the testimony of scientific witnesses will not establish facts in con- flict with the axiomatic principles of science and philosophy, or those which contradict the evidence of the senses, or of con- sciousness. 24 16. But there is certainly a very considerable number of sub- jects, in regard to which the jury are supposed to be well instructed, and altogether capable of forming correct opinions, and in regard to which the testimony of experts is not competent, or not requi- site, but which it is more or less difficult for the witnesses to describe accurately, so as to place them fully before the minds of the jury, as they exist in the minds of the witnesses. Among these are inquiries in regard to the extent of one's property, sol- vency, health, affection, or antipathy, character, sanity, and some others. In such cases the witnesses' knowledge is chiefly matter of opinion, and it is impossible to enumerate each particular fact. Of this character seem to us to be questions in regard to the quality and value of property. One may enumerate some of the leading facts upon which such an opinion is based ; but after all, the testimony,' as to facts, is excessively meagre, without the opinion of the witness, either upon the very subject of inquiry, or some one as near it as can be supposed. Hence in those courts where the opinion of witnesses, in regard to the value of property, real or personal, is not admitted, it leads to sundry shifts and evasions, in the course of the examination of witnesses upon that subject, which, while it is not a little embarrassing in itself, at the same time illustrates the inconsistency, not to say absurdity, of the rule. 25 84 Broadbent v. Imperial Gas Co., 7 De G., M. & G. 486, 4C6, opinion of Lord Chancellor Cranworth. 25 Opinion of the court in Concord Railw. v. Greely, 23 N. H. 237. " A wit- ness may state what was the cost of property of a particular description at a given place, in order to ascertain the value of property of a similar description. Whipple v. Walpole, 10 N. H. 130. But evidence of the price for which the corporation offered to sell a tract adjoining Greely's, and how much they refused to take for it, is certainly of doubtful competency. We have held at this term, in the case of Ilersey v. The Merrimack County Mutual Fire Insurance Company, in Merrimack county, that what the owner of a piece of real estate said he would sell the same for, was competent evidence against him, as tending [*275] 292 EMINENT DOMAIN. PART III. •IT. In regard to costs, in such proceedings, the more general ra le i- D01 to allow them, unless specifically given by statute. 26 .. its value. But thai was a statement in regard'to the value of the land while the evidence admitted here was going one step further; it was a Btatemenl in regard to other lands; and it is quite questionable whether it could bave any legitimate tendency to prove the value of Greely's land. •• ( )n questions of science, skill, or trade, or others of a like kind, experts may not onh testify to tacts, but are permitted to state their opinions. 1 Greenl. Ev. 5 UO. But upon subjects of general knowledge, which are understood by men in general, and which a jury are presumed to be familiar with, witnesses must as to facts alone, and the jury must form their opinions. In such cases, the testimony of witnesses, as experts merely, is not admissible." It an inquiry arose in regard to the value of a cargo of flour, it would cer- tainly sound Btrange to hear witnesses testify what precisely similar flour is worth, and at the same time be gravely told, that they were studiously to avoid iing any opinion of the value of this very flour, which they had seen and examined, and in regard to which the whole testimony was received. Yet such i-, from necessity, the course resorted to, under the rule. The more general course is, we think, to receive the opinion of witnesses, acquainted with the property and the state of the market, as to the value of the particular property in question. White V. Concord Railw., 10 Foster, 188. But in New Hamp- shire, in a late case, it is held that the opinion of witnesses, in regard to apparent health, i- competent to be given; and this seems to be yielding the main point -in before insisted upon. Spear v. Richardson, 84 N. H. 428. In se the opinion of witnesses, whether a horse was sound, or had a particular disease, the heaves, was excluded because the witness was not shown to be an expert. We are not surprised that the judge regarded the distinction .(■what nice." And in Currier v. Boston & M. Railw., 34 N. H. 498, beld that a witness could give an opinion in regard to the occurrence of bardpan in an excavation ; and in Hackett v. Boston, Con. & Mont. R., 35 N. II. 390, it was held that a witness might express an opinion in regard to distances, dimensions, and qualities. See also Roch. and Sy. Railw. v. Budlong, 6 How. Pr. 467. In Illinois v.V Wisconsin Railw. v. Van Horn, 18 Illinois, 257, it is held that it is proper to have the opinion of witnesses in regard to the value of city w Her! ein ,-. The Railroad, 'J Watts, 272. The English statute, 8 Vict. c. 18, thai where the land-owner refuses an offer equal or exceeding his recov- ,r . v • '■■ >ver no costs. This is construed to embrace all offers up to the land-owner taking steps to have his case tried. Lord Fitzllardinge • G & B. < ;l i,,l Co., 20 W. K. 800. The party taking the initiative in pro- timate land damages under this statute is required to state at what price lie will Bell or purchase the land, and then the other party is at liberty to ... modify the offer, and costs are awarded with reference to the party assessment better for him than the offer of the other party. This us just and reasonable, upon general principles, independent of the statute. [•276] § 72. MODE OF PROCEDURE. 293 * But where the statute provides for an assessment of land dam- ages, by a jury, at the suit of the party aggrieved, the costs to be paid by the company, this was held not to include the fees of witnesses examined by the jury, on the part of the claimant. 27 18. But the terms " costs and expenses incurred," were held to include the costs of witnesses, and of summoning the viewers. 28 19. If the act makes no provision for compensation to the com- missioners, they have no power to order the company to pay the cost of their expenses and services. 29 20. But where the party whose costs are rightfully denied in the Court of Common Pleas, appeals upon that question, and the judgment is affirmed, he must pay costs to the other party, conse- quent upon the appeal. 30 lots, "as they have no stated value." Skinner, J., said: "To describe to a jury a piece of ground, however minutely, with its supposed adaptations to use, advantages and disadvantages, and demand of them, upon this information alone, a verdict as to its value, would be merely farcical ; and this, indeed, is all that can be done to enable them to arrive at a conclusion as to the value, unless the witnesses are allowed to state their judgment or opinion, together with the facts upon which such opinion is founded. Butler v. Mehrling, 15 111. 488 ; Kel- logg v. Krauser, 14 Serg. & Rawle, 137." In Cleve. & Pittsb. Railvv. v. Ball, 5 Ohio (N. S.), 568, it is said, witnesses maybe allowed to express an opinion as to the value of the land taken, but not as to the extent of damages whicli the land- owner will sustain by the appropriation of the land to public use, that being the very question to be settled by the triers. This seems to us placing the matter upon its proper basis. One must have had experience in regard to the particu- lar point, as laying a railway over a wharf, in order to give an opinion of the extent of the injury caused thereby, and it is not sufficient that he may have had experience and skill in other matters pertaining to the building and opera- tion of railways. Boston & Worcester Railw. v. Old Colony & F. R. Railw., 3 Allen, 142. The court in this case declined to set aside the verdict for land damages, because testimony of the sale of upland at a considerable distance from the wharf, and of the price paid four months before the time of making the location, was received, and also of the number of trains passing over the land taken, and of the number of vessels and amount of lumber, wood, and coal, &c, coming to the wharf. 27 Railroad v. Johnson, 2 Wharton, 275. 28 Penn. Railroad v. Keiffer, 22 Penn. St. 356 ; Chicago & Mont. Railw. ». Bull, 20 Illinois, 218. 29 At. & St. L. Railroad v. The Commissioners, 28 Maine, 112. 30 Harvard Branch Railw. v. Rand, 8 Cush. 218; Commonwealth v. Bos- ton & Maine Railw., 3 Cush. 56. But see § 71, note 12, ante, in regard to the course of proceeding, in estimating land damages. Where the statute gives an appeal, in estimating land damages, to a court of common-law jurisdiction, and does not prescribe the mode of trying the appeal, it will be tried by com- [*277] 294 EMINENT DOMAIN. PART III. 21. it is no objection to the competency of a juror, in this class of cases, that he had been an appraiser of damages upon another railway, in the same county, or that he is a stockholder in another railway which had long before acquired the lands necessary for its us Courts do not generally possess the power to revise the issmeni of land damages, by a jury or other tribunal appointed by them for that purpose, upon its merits, and set it aside, upon the mere ground of inadequacy, or excess of damages. 32 23. Where commissioners assessed land damages at a sum named, and stated further, that the plaintiff was to receive an additional sum in a certain contingency, and the report became matter of record, it was held that debt would not lie, for the additional sum, upon averring the happening of the contin- gency. 24. Where the statute gave the court a discretion, to accept and confirm the inquest of land damages, or order a new inquest, " if justice shall seem to require it," it was held they might set aside the report for mere excess of damages, and that the Supreme ( 'ourt might do the same, when the proceedings are brought up by certiorari.^ mi-.-ioners, that being the usual course of trying cases of that class, in common- law courts. And a statute requiring parties to be allowed a trial by jury, in all ea proper for a jury, will not alter the mode of trying such appeals. Gold v. Vt. Centra] Railw., 19 Vt. 478. 31 People v. First Judge of Columbia, 2 Hill (N. Y.), S9S. The tribunal for assessing land damages should be free from interest or bias in order to meet the constitutional requirement for just compensation. Powers v. Bears, 12 Wis. 218. Bui Bee Strang v. Beloit & M. Railw. Co., 16 Wis. 635. But where it clearly appears that injustice has been done through some mistake or misappre- hension of the jury, the verdict should be set aside. Cadmus v. Central Railw., 2 Vr iom, 179. Willing v. Baltimore Railw., 5 Whart. 460. As to what is good cause for ig aside tin- report of commissioners, see Bennet v. Railw., 2 Green, 145; Van Wickle V. Same, id. 162; R. & S. Railw. v. Budlong, 6 How. Pr. 467. In Missouri, when the report oi commissioners is set aside, the court must ap-' poinl a new board. Hannibal & St. Joseph Railw. Co. v. Rowland, 29 Mo. 337. I '.nt this rule will not apply where the report is recommitted to the same board, with instructions to pursue a different rule in estimating damages. lb. W. & 1'. Railroad Co. v. Washington, 1 Robinson (Va.), 67. See also Dimick v. Brooks, 21 Vt. 569. ; Pennsylvania Railw. v. Ileister, 8 Penn. St. 445; Same v. McClure, ib. ; < . Riley, ib. ; Same cases, 2 Am. Railw. C. 337. [*278J 72. MODE OF PROCEDURE. 295 OTHER MATTERS OF PRACTICE, IN REGARD TO ASSESSING LAND DAMAGES. All the commissioners must be present and act, in all matters of a judicial character. Crocker v. Crane, 21 Wend. 211 ; s. c. 1 Redf. Am. Railw. Cases, 42. In regard to the mode of selecting and impanelling juries, for assessing land damages against railways, the following cases may be referred to : Penn. Railw. v. Heister, 8 Penn. St. 445, which decides that where the statute requires the sheriff to summon the jury, it is irregular for him to select them from a list prepared by his deputy; and Vail v. Morris & Essex Railw., 1 Zab. 189, where it is held, that commissioners appointed to value the land of E. V. upon one route, adopted by the company, cannot appraise the land of the same person, when the company adopt a different route, across the land. In regard to the right of appeal, which is given in terms to the party aggrieved, it has been held to extend to the railway company, as well as the land-owner. Kimball r. Kennebec & Portland Railw., 35 Maine, 255. No appeal lies from the order of the Supreme Court, confirming the report of commissioners on the appraisal of land damages for land taken under the general railway act. The act provides for no such appeal to the Court of Appeals, and the remedy, in the act, is intended to be exclusive. And besides, the Supreme Court exercise a discretion, to some extent, in confirming such reports, and ap- peals will not, upon general principles, lie to revise such adjudications. New York Central Railw. v. Marvin, 11 N. Y. 276 ; Troy & Boston Railw. v. North- ern Turnpike Co., 16 Barb. 100. Where the special act of a railway company required them to give the land- owner ten days 1 notice of the time when a jury would be drawn to assess dam- ages, it was held that a strict compliance with this requirement was indispensable to give jurisdiction, and that the objection was not waived by appearance before the officer at the time the jury were drawn, and objecting to the regularity of the proceedings, without stating the grounds, or by appearing before the jury, when they met to appraise the damages, and objecting to one of them, who was set aside. Cruger v. The Hudson River Railw., 12 N. Y. 190. Mere informalities in the summons, which do not mislead the company, will not avoid the proceeding. Eastham v. Blackburn Railw., 9 Exch. 758 ; s. c. 25 Eng. L. & Eq. 498. It is not important that the award should specify the finding upon the separate items of claim. In re Bradshaw, 12 Q. B. 562. Where the special act of a railway company prescribes a different mode of procedure, in condemning land, from that required by a general law of the state, subsequently passed, the company may pursue the course prescribed by their special act. Clarkson v. Hudson River Railw., 12 N. Y. 304. But it seems to be here considered, that the company may adopt the course prescribed by the general act, if they so elect. And upon general principles it would seem that they should do so, unless there is something in the general act by which the existing railways are at liberty to proceed under their charters. This is the ground of the decision in the last case. North Mo. Railw. v. Gott, 25 Mo. 540. Where the company's special act vests specific and special powers in them, [*278J EMINENT DOMAIN. PART III. It does not scorn important, where the statute in terms allows either party to take compulsory proceeding to assess land damages upon the parties failing to agree, that there should have beeu any previous attempt to agree, in order to give jurisdiction to the courts to assess the amount of such compensation. 35 26. I! has been decided that where land is taken for a railway, the owner is entitled to recover damages assessed, as of the time taking, with interest thereon to the time of the assessment. 36 ♦SECTION XL Tlie Time Compensation to be made. 1. 0/ ding. 2. Cham Kent? s definition. ;!. Thai of the Code Napoleon. ilutions require it to be con- taking, lish rases do not require this. 6. Adequate legal remedy sufficient. 7. Where required, payment is requisite to vest the title. 8. Some states hold that no compensation is requisite. §73. 1. In general, railway acts require compensation to be made, before the company take permanent possession of the land. 1 And it has even heen made a question, in this country, whether the legislature could give a railway company authority to take permanent possession of lands, required for their use, previous to making or tendering or depositing, in conformity with their charter or the general law, compensation for the same. 2 for the benefit of the public (as to build stations of given dimensions larger than leral act provides), it is not controlled by subsequent general acts. I Blacl wall Railw. v. Board of Works, 3 Kay & J. 123 ; s. c. 28 Law I ,140. In regard to the mode of proceeding in such cases, see Coster" v. N •' I: lilw. & Tr. Co., 4 Zab. 730; Green v. Morris & Essex Railw., id. 486; i i Id & North Adams Railw. v. Foster, 1 Cush. 480. low r. Miss. Central & Tenn: Railw. Co., 2 Head, 624. M Ree I 0. Hanover Branch Railw., 105 Mass. 303. 1 L Clauses Consolidation Act, 8 Vict. c. 18, § 84 et seq. • Ramsden v. Ml '"' ; 3 •'• lV -' A - Railw., 1 Exch. 723; s. c. 5 Railw. C. 552. In such of equity will enjoin the company from taking possession until com- ition s made, unless the owner consent. Ross v. E. T. & S. Railw , 1 G ' i,. 422. ' ■ Grand Gulf Railw. Co., 3 Howard (Miss.), 240. The consti- [♦279,280] § 73. THE TIME COMPENSATION TO BE MADE. 297 2. The learned and sensible author of the Commentaries on American Law 3 thus states the rule upon this subject : " The settled and fundamental doctrine is, that government has no right to take private property, for public purposes, without giving just compensation ; and it seems to be necessarily implied, that the indemnity should, in cases which will admit of it, be previously and equitably ascertained, and be ready for reception, concurrently, in point of time, with the actual exercise of the right of eminent domain." 3. The language of the Code Napoleon 4 is specific upon this point : " No one can be compelled to give up his property except * for the public good, and for a just and previous indemnity." A similar provision existed in the Roman civil law. 4. It is embodied, in different forms of language, into the writ- ten constitutions of most of the American states, but not generally, in terms requiring the indemnity concurrently with the appropria- tion. But practically that view has generally prevailed in the courts. 5 tution of this state, however, requires a previous compensation to be made. See also Cusbman v. Smith, 34 Maine, 247. 8 2 Kent, Comm. 340 (7th ed.), 393, and note. The Milwaukee & M. Railw. Co. v. Eble, 4 Chandler, 72 ; Cushman v. Smith, 34 Maine, 247. 4 Code Napoleon, Book II. Title II. 545. 6 Lyon v. Jerome, 26 Wend. 485, 497 ; Opinion of Sutherland, J., Case v. Thompson, 6 Wend. 634. In this case it was held, that it was not indispensable to the opening of a road over the land of an individual, that the price should be paid or assessed even, before the opening of the road. And in Bonaparte v. C. & A. Railw. Co., 1 Bald. C. C. 205, 216, it was held, that a law taking private property without providing for compensation was not void, for it was said, that may be done by a subsequent law. But the appropriation was enjoined, in that case, till com- pensation should be made. See also Gardner v. The Village of Newburgk, 2 Johns. Ch. 162; Henderson v. The Mayor, &c. of New Orleans, 5 Miller's Louis. 416 ; Rogers v. Bradshaw, 20 Johns. 735 ; Duncan, J., in Eakin v. Raub, 12 Serg. & R. 330, 366, 372 ; OTIara v. Lexington Railw., 1 Dana, 232 ; Hamilton v. Annapolis & Elkridge Railw., 1 Md. Ch. 107 ; Martin ex parte, 8 Eng. (Ark.) 198. In Blood- good v. The Mohawk & Hudson Railw. Co., 14 Wend. 51, it is held that this con- stitutional requirement merely contemplates a legal provision for compensation, and not that such property shall be actually paid for before taken, s. c. reversed, 18 id. 9 ; s. c. 1 Redf. Am. Railw. Cases, 209. In Boynton v. The Peterboro' and Shirley Railw. Co., 4 Cush. 467 ; Shaw, C. J., says, "The right to damages for land taken for public use accrues and takes effect at the time of taking, though it may be ascertained and declared afterwards. That time in the case of rail- roads, prima facie, and in the absence of other proof, is the time of the filing of [*281] EMINENT DOMAIN. PART III. It was held in one case, 6 where the act of parliament gavt the right to take Lands for the purpose of building a turnpike* the location." Charlestown Branch Railw. v. Middlesex, 7 Metcalf, 78; s. c. 1 \ m Rail, Davidson v. Boston & Maine Railw., 3 Cush. 91. In Massachusetts the remedy is limited to three years by statute, and the time from the filing of the location. Charlestown Branch Railway v. County Commissi its of Middlesex, 7 Met. 78; s. c. 1 Am. Railw. C. 383. So where :i corporation, after locating a railway over a wharf more than sixty feet, and filing the location with the county commissioners, agreed with the owners of the wharf tn extend the road sixty feet on and over the same before a certain day, and the owners, in consideration, agreed to demand no damages for the exten- sion, and the road was constructed according to the location filed before the agreement : Held, that this was not an agreement not to extend the road more tli.tn Bixty feet, and that the owners of the wharf were not thereby entitled to apply, after three years from the filing of the location, for an estimate of the damages caused by an extension of the road more than sixty feet over the wharf. lb. By the New York statute of 1851, railway companies have no right to enter opon, occupy, or cross a turnpike or plank road without consent of the owners, except on condition of first making compensation for damages to such turnpike or plank-road company. Plank Road Co. v. Buffalo, &c. Railw. Co., 20 Barb. ■■■. ('. J., in Boston & Providence Railw. Corporation v. Midland Railw. Gray, 31<>, 860, says: "The effect of the location is to bind the land described to that servitude, and to conclude the land-owner and all parties hav- ing derivative interests in it from denying the title of the company to their ease- nniit in it. We think, therefore, that the filing of the location is the taking of the land. It is upon that the owner is forthwith entitled to compensation, it is i which gives the easement to the corporation and the right to have dam- the owner of the land." See, also, Drake v. Hudson River Railw., 7 I Kirl. . 508, 552. In those states, where the constitutions contain express provisions requiring a - compensation to the right to appropriate the land, as in Pennsylvania, Kentucky, and Mississippi, the decisions upon this point would not be much guide, in regard to the general rule, in the absence of any express pro- of the kind. But see Ilarrisburg v. Crangle, 3 Watts & Serg. 460. And in Borne of the states, even where a concurrent right to compensation, with tlic appropriation of the land, is recognized, it seems to be considered by ome that i Btatute, authorizing the appropriation of land for public uses, and which makes no provision for compensation, is not on that account unconstitu- < (pinion of the Chancellor in Rogers v. Bradshaw, 20 Johns. 735. But the prevailing opinion, even in New York, seems to be, that the statute • Lister r>. Lobley, 7 Ad. & Ellis, L24, Lord Denman says: " The amount of < ompenaation cannot generally be ascertained till the work is done. The effect of the words in question is that they shall not do it without being liable to make omp.-nv,;,,.,,." p 3eemt ,,, have been supposed here, that if the company did not m dee compensation they might be compelled to do so by mandamus. [•282] § 73. THE TIME COMPENSATION TO BE MADE. 299 road, * making or tendering satisfaction, that this need not be done before, or at the time of entering upon or taking the lands. 6. But this subject was largely discussed, in an early case in New York, 7 and finally determined by the court of errors reversing should provide some available remedy for adequate compensation, and that un- less that is done, the act, if not positively unconstitutional, is so defective, that no proceedings should be suffered under it, until compensation is secured, and that a court of equity should interfere. Gardner v. Newburgh, 2 Johns. Ch. 162; Rexford v. Knight, 11 N. Y. 308; Willyard v. Hamilton, 7 Ham. 449; Rubottom v. McCluer, 4 Blackf. 505; McCormick v. Lafayette, Smith (Indi- ana), 83; Mercer v. McWilliams, Wright, 132. Some cases have made a distinction (in regard to the necessity of a previously ascertained compensation being made and so situated as to be capable of being made available to the owner of land, concurrently with its appropriation to pub- lic use) between ordinary cases and that class of cases where the property is put to the use of the state directly, and that in such cases it is not indispensable. Young v. Harrison, 6 Ga. 130. And the grant of the right to bridge a navigable river, or arm of the sea, or to obstruct the flow and reflow of the tide upon the flats of private persons although it may abridge their beneficial use, is not such an invasion of private property as to entitle the party to compensation. It is but the regulation of public rights, and if private persons thereby suffer damage, it is damnum absque injuria. Davidson v. Boston & Maine Railw., 3 Cush. 91. See, also, upon the subject generally, Zimmerman v. Union Canal Co., 1 Watts & S. 346; Phila- delphia & Reading Railw. v. Yeiser, 8 Penn. St. 366; 2 Am. Railw. C. 325; Commonwealth v. Fisher, 1 Penn. 462 ; ante, § 63. But it is very generally held, that in the absence of all express provision by statute in regard to the time when compensation shall be made, the party is at all events entitled to have it ascertained and ready for his acceptance, concur- rently with the actual appropriation of the estate to public use, and that he is not obliged to wait till the work is completed. People v. Hayden, 6 Hill (N. Y.), 359; Baker v. Johnson, 2 Hill, 342. But no right to compensation vests in the land-owner till the acceptance and confirmation of the appraisal by the proper tribunal, under any statutory pro- visions, in most of the American states, and until that, the company may change the location of their road, and abandon proceedings pending against land-owners, on the first surveyed route, by paying costs already assessed. Hudson River Railw. v. Outwater, 3 Sandf. Sup. Ct. 689. And where the statute of the state provides that no valuation of property taken for railway and canal purposes need be made before taking possession of the same, in those cases where the property is not obscured, so that its value cannot be judged of, it was held there should be no unreasonable delay in having the valuation made. Compton v. Susquehanna Railw., 3 Bland, Ch. 886. 7 Bloodgood v. M. & H. Railw. Co., 14 Wend. 51 ; s. c. 18 id. 9, 59 ; s. c. 1 Redf. Am. Railw. Cases, 209. See, also, upon this subject, Fletcher v. Auburn [*283] 800 EMINENT DOMAIN. PART III. * the judgmenl of the court below, that if provision was made for compensation in (he act, giving [tower to take the lands, it was not A Syi k use Etailw., 25 Wend, 462; Smith v. Helmer, 7 Burl). 416; Pittsburgh v. - r. i lvim. St. :;(>!); People v. Michigan Southern Railw., 3 Gibbs, 496. In tlii> case it is said the party who makes no application for compensation for many years should be regarded as having waived all claim. Id. p. 506. See, also, Smith v. .McAdam. 8 Gibbs, 506. And where the statute provided for depositing the value of tlie land taken before entry upon it, it was held this was a provision for tlie security of the land-owner, and might be waived by him; and if so, and entry was made by the company without making the deposit, he might recover the assessment in an action of debt. Smart i). Railway, 20 N. H. 233. But in one case it was held indispensable to the validity of the power, that the party, wiinsc land was taken should have something more than a right of action for the value of his land. Shepardson v. M. & B. Railw., 6 Wisconsin, 605. See Powers r. Bears, 12 id. 213; Ford v. Ch. & N. W. Railw. Co., 14 id. 609. And by the construction of the statute of Maine, a railway corporation, as soon as their track is located, may take immediate possession, and the land-owner, failing to agree with the company, as to the amount of damages may apply to the courts to have the same assessed, and thereupon the company are required to pay or give security for the same, and their right of possession is suspended until the requirement is complied with ; but no action of trespass lies in such cases. Davis v. Russell, 47 Me. 443. Where by statute a bond is required to be filed by the company to secure damages to the land-owner, upon failure of the parties to agree upon the amount, such bond extends to all the lawful dam- age caused to the owner by the construction of the company's works; and the fad of its being approved and ordered to be filed is presumptive proof that the parties had failed to agree. Wadhams v. Lackawanna & Blooms. Railw. Co., 1- Penn. St. 303. Bui in most of the states the assessment of the damages due to the land-owner, and the payment, tender, or deposit of the same, is held a condition precedent to the right of entry upon the land, and the company entering before this will, prima facie, be regarded as trespassers. Memphis & Charleston Railw. Co. v. tie, 37 .Miss. 700; Henry «.' Dubuque & Pacific Railw., 10 Iowa, 540; Evans v. Baefner, 29 Mo. 141 ; Burns v. Dodge, 9 Wis. 458. In McAulay v. Western Vermont Railw. Co., 33 Vt. 311; 8. C. 1 Redf. Am. Etailw. Cases, 245, it was decided that the payment of land damages was a condition precedent to the acquiring of title by a railroad company of lands taken for tlieir road. But that where the land-owner acquiesces in the occupa- tion of h\< land for the construction of a railway without prepayment of land damages, upon a contract or understanding for future payment by the company, and tlie road is constructed and put in operation, he cannot afterwards, on failure to obtain payment, maintain trespass or ejectment for the land. And whether, under such circumstances, he would still retain an equitable lien on the land, •em- doubtful. The mere prosecution of a controversy by the land-owner with the company, before commissioners or on appeal, as to the amount of the dam-' ich a prohibition of the taking of the land by the company without prepayment of land damages as is necessary to enable the land-owner to maintain § 73. THE TIME COMPENSATION TO BE MADE. 301 indispensable that the amount should be actually ascertained and paid before the appropriation of the property. 7. In Mississippi it is required, by the constitution of the state, that the compensation be paid before the right to use the land is vested. 8 So also in Georgia the title does not vest in the company until the ascertained compensation is paid or tendered. 9 A similar decision was made by the Supreme Court of the United States, 10 where the charter of the company provided that the payment, or tender, of the valuation, should vest the estate in the company, as * fully as if it had been conveyed. And a similar decision was also made by the Supreme Court of Vermont. 11 trespass or ejectment for the land after the road is put in operation. Nor will no- tice to the laborers on the railway employed by the contractor be considered as sufficient to entitle the land-owner to maintain trespass or ejectment against the company, the company not being affected by such notice. In Dayton, &c. Railw. v. Lawton, 20 Ohio (N. S.), 401, where the defendant agreed to convey to the plaintiffs the right of way through his lands on payment of the agreed price, and they entered before payment, it was held that the land-owner had a lien on the land for the unpaid purchase-money, which could be enforced by the sale of the whole road. In Earl of Jersey v. B. F. Floating Dock Co., L. R. 7 Eq. 409, it was held that the land-owner, after the construction of the works, could retain no lien upon the lands for payment of a rent-charge. Wickens, V. C, said the en- forcement of such a lien by entry upon the land would be contrary to any probable intention of the parties. But in Bishop of Winchester v. Mid-Hants Railw., L. R. 5 Eq. 17, the court held that Avhcre railway companies had been allowed to build their line across lands by promising payment of agreed land damages in six months after the completion of the works, the vendor's lien might be enforced against the companies by appointing a receiver, or in any other proper manner. See, also, Munns v. Isle of Wight Railw., 8 id. 653, where the Vice-Chancellor said the land-owner, after having obtained a decree for payment of land damages, had the right to say to the company, "pay me the purchase-money or give me back my property." 5 Stewart v. Raymond Railw. Co., 7 Smedes & M. 568. See also Thomp- son v. Grand Gulf Railw., 3 Howard (Miss.), 240. 9 Doe v. The Georgia Railw. Banking Co., 1 Kelly, 524. 10 Baltimore & Susquehanna Railw. Co. v. Nesbit, 10 How. 395. 11 Stacey v. Vermont Central Railw. Co., 27 Vt. 39. The opinion of Isham, J., in this case, will show the correlative rights of the company and land-owner, and by what act the right of each becomes perfected. Where the statute requires the company to contract in writing, it is not competent to show title in any other mode, unless by formal conveyance. Harborough v. Shardlow, 2 Railw. C. 253 ; 7 M. & W. 87. In Graff v. The City of Baltimore, 10 Md. 544, it was held, under a statute for enabling the city to supply pure water, and to take land upon valuation by a jury, and compensation to the owners, and that where " such val- uation is paid, or tendered, to the owner or owners" of the property, it " shall [*285] - EMINENT DOMAIN. PART III. g, 1,, one case in North Carolina, 12 it was held that compensa- tion Deed not be made prior to appropriating land for public use. The constitution of the state is said to contain no prohibition Rgainsl taking private property for public use, without compensa- tion. Ami the same is 'true of the constitution of South Carolina. And tin' latter state held 1:J that private property might be taken withoul compensation. But this decision is certainly at variance with the generally received notions upon that subject, since the period of the Roman Empire. ♦SECTION XII. Appraisal includes Consequential Damages. 1. Consequential damage barred. 2. Such as damage, by blasting rock. ... I. I I 'here other land is used unneces- sarily. loss by fires, obstruction of access, and cutting off springs, is barred. •'■ / s» by flowing land not barred. 6. Damages, from not building upon the plan contemplated, are barred. 7. Special statutory remedies reach such dam- ages. 8. Exposure of land to fires. 9. No action lies for damage sustained by the use of a railway. § 74. 1. It is requisite that the tribunal appraising land darn- for lands condemned for railways, should take into considera- tion all such incidental loss, inconvenience, and damage, as may reasonably be expected to result from the construction and use entitle the city to the use, estate, and interest in the same, thus valued, as fully ib it it had been conveyed by the owners; " that the city is not bound by the mere inquisition and judgment thereon, but could rightfully abandon the loca- tion; and that payment, or tender, under the statute, was indispensable to the of the title, lint it was held, that the city may be made liable, in another form of proceeding, to the land-owner, for any loss or damage he may have sus- tained, by reason of the conduct of the municipal authority in the premises. u It. & <.. Railw. Co. v. Davis, 2 Dev. & Bat. 451. But in New Jersey it WU held that the supervisors, in laying out roads, are bound to award damages to land-owners, with their return, or the whole proceeding is illegal and void. 1 irretson, 3 Zab. 388. I >awson, :; Hill (S. C), 100. In this case Mr. Justice Richardson m the decision of the court, and it is generally allowed that his opinion contains the better law. His argument, in the language of the author of the Commentaries, vol. 2, ubi supra, "was very elaborate and powerful." See rille Railw. Co. v. Chappell, 1 Rice, 383; Lindsays. The Commissioners, 2 Bay, [•286] § 74. APPRAISAL INCLUDES CONSEQUENTIAL DAMAGES. 303 of the road, in a legal and proper manner. And as all tribu- nals, having jurisdiction of any particular subject-matter, are presumed to take into consideration all the elements legally con- stituting their judgments, such incidental loss and damage will be barred, by the appraisal, whether in fact included in the estimate or not. 2. Hence damage done by the contractors to the remaining land, by blasting rocks, in the course of construction, has been held to be barred, as included in the estimated compensation for the land taken. 1 1 Dodge v. The County Commissioners, 3 Met. 380; s. c. 1 Redf. Am. Railw. Cases, 279 ; Sabin v. Vermont Central Railw., 25 Vt. 363; s. c. 1 Redf. Am. Railw. Cases, 282 ; Dearborn v. Boston, Concord, & Montreal Railw., 4 Foster, 179, 187; Whitehouse v. Androscoggin Railw., 52 Me. 208. But in Hay v. Cohoes Company, 2 Comst. 159, the defendants, a corporation, dug a canal upon their own land, for the purposes authorized by their own charter. In so doing, it was necessary to blast rocks, and the fragments were thrown against and injured the plaintiff's dwelling, upon land adjoining, and it was held the defendants were liable to a special action for the injury, although no negligence or want of skill was alleged or proved ; and in Tremain v. Cohoes Company, 2 Comst. 163, a precisely similar action, it was held that evidence to show the work done in the most careful manner was inadmissible, there being no claim for exemplary damages. But there is probably an essential difference between the case of a railway in the construction of which blasting rocks is almost indispensable, and that of a man- ufacturing company, or other proprietor, who may find it convenient to blast rocks upon his premises, to increase their utility or beauty. But for doing what the act does not authorize, or doing what it does authorize, improperly, a railway com- pany is liable to an action. Turner v. Sheffield & R. Railw., 10 M. & W. 425. In Carman v. Steubenville & Ind. Railw., 4 Ohio (N. S.), 399, it seems to be taken for granted, that throwing fragments of rock, by blasting, upon the land of adjoining proprietors, is an actionable injury, and as in this case it was done by the contractor in the performance of his contract, in the manner stipulated, the company were held liable. The- result of the cases would seem to be, that where the damage done, by blasting rocks, or in any similar mode, in the course of the construction of a railway, is done to land, a portion of which is taken by the company under com- pulsory powers, this damage will not lay the foundation of an action, in any form, as it should be taken into account in estimating the compensation to the land- owner for the portion of land taken. Brown v. Brov., Warren, & Bristol Railw., 5 Gray, 35. And if not included in the appraisal, it is nevertheless barred. Dodge v. County Commissioners, supra. But if the damage is done to land, no part of which is taken, and where no land of the same owner is taken, it may be recovered, under the statute, if pro- vision is made for giving compensation for consequential damage, or where lands [*286] EMINENT DOMAIN. PART III. Bui it was held (hat this did not preclude the land-owner from recovering damages for using land adjoining the land taken or a cart-way, where six rods were allowed to be taken by the company throughout the line of the road, which would give ample space for cart-ways upon the land taken. 2 But it was held, in another case, that the company were not liable for entering upon the adjoining lands, and occupying the same with temporary dwell- are " injuriously affected." But if the statute contain no such provision, the only remedy will be by a general action. And in this view many of the cases i above seem to assume, that blasting rocks, by an ordinary proprietor of land is a nuisance to adjoining proprietors if so conducted as to do them serious damage. And this is the ground upon which the case of Carman v. Steubenville & Ind Railw. i^ decided, without much examination of this point, indeed, and by a divided court. But if a railway is not liable for necessary consequential dain- . inless the statute gives a remedy (post, § 75), it may perhaps be questioned how far ;i recovery could be maintained, in a general action for damage done by blasting rocks, as that is confessedly within the range of their powers. See opinion ol Shaw, C. J., in Dodge v. County Commissioners, 3 Met. 380: "An authority to construct any public work carries with it an authority to use the appropriate means. An authority to make a railway is an authority to reduce the line ol the road to a level, and for that purpose to make cuts, as well through ledges of rock as through banks of earth. In a remote and detached place, where due precaution can be taken to prevent danger to persons, blasting by gunpow- der is ;t reasonable and appropriate mode of executing such a work; and, if due precautions are taken to prevent unnecessary damage, is a justifiable mode. It follows that the necessary damage occasioned thereby to a dwelling-house or other building, which cannot be removed out of the way of such danger, is one of the natural and unavoidable consequences of executing the work, and within the provisions of the statute. " ' (| course, this reasoning will not apply to damages occasioned by care- i negligence in executing such a work. Such careless or negligent act would be a tort, for which an action at law would lie against him who commits, or hun who commands it. But where all due precautions are taken, and damage i- still necessarily done to fixed property, it is alike within the letter and the equity ol the statute, and the county commissioners have authority to assess the damages. This court are therefore of opinion, that an alternative writ of manda- ie awarded to the county commissioners, to assess the petitioners 1 damages, or return their r< asons lor not doing so." See also Pottstown Gas Co.. v. Mur- phy. :;:> Penn. St. 257 : Whitehouse v. Androscoggin Railw., 52 Me. 208. In the •• it was held that the damage resulting to the land-owner, for not removing the Btone thrown upon land adjoining that taken, could not be taken Jount in estimating damages, since it was presumable the company would '•'" in proper time, according to their duty; and, if they did not, the remedy would he by Hpecial action. • • Vermont < lentral Railw., 25 Vt. 363 ; s. c. 1 Redf. Am. Railw. Cases, 2S2: E ' '- 'V- X. A. Railw., 59 Me. 520. [*287, 288] § 74. APPRAISAL INCLUDES CONSEQUENTIAL DAMAGES. 305 ings, stables, and blacksmith shops, provided no more was taken than was necessary for that purpose. 3 4. So it is settled that the appraisal of land damages is a bar to claims for injuries by fire, from the engines obstructing access to buildings, exposing persons or cattle to injury, and many such risks. 4 And it will make no difference, that the damages were not known to the appraisers, or capable of anticipation at the time of assessing land damages ; 5 as where a spring of water is cut off by an excavation for the bed of a railway fifteen feet below the sur- face, from which the plaintiff's buildings had been supplied with water. *5. But it was held, that where, in the construction of a canal, with waste weirs, erected by direction, and under the inspection of the commissioners appointed to designate the route of the canal, with all the works connected therewith, and to appraise damages, the waste water, after flowing over the land of adjoining proprietors, flowed upon the land of the plaintiff, and thereby greatly injured it, that he was entitled to recover damages. 6 3 Lauderbrun v. Duffy, 2 Penn. St. 398. But it seems questionable whether this case can be maintained as a general rule. But if a party is entitled to com- pensation for injuries of this kind, as where his lands adjoining a railway, and no part of which is taken, are injuriously affected, as by blasting rocks, his only remedy is under the statute. Dodge v. County Commissioners, 3 Met. 380. 4 Phila. & Reading Railw. v. Yeiser, 8 Penn. St. 366; s. c. 2 Am. Railw. C. 325; Aldrich v. Cheshire Railw., 1 Foster, 359; s. c. 1 Am. Railw. C. 206; Mason v. Kennebec & Port. Railw., 31 Maine, 215. See also Furniss v. Hudson River Railw., 5 Sandf. 551 ; Huyett v. Phil. & Read. Railw., 23 Penn. St. 373 ; ante, §§71, 72. See also Lafayette Plank-Road Co. v. New Albany, &c. Railw. Co., 13 Ind. 90. The land-owners can claim no additional damages because the company move their track in the street nearer to their land than it was at first laid. Snyder v. Penn. Railw., 55 Penn. St. 340. 3 Aldrich v. Cheshire Railw., supra. But see Lawrence v. Great Northern Railw., 16 Q. B. 643; s. c. 4 Eng. L. & Eq. 265. So, also, where the com- pany's works cut off a spring of water below high-water mark, on a navigable river, it was held the riparian owner was entitled to claim damages of them on that account, in a proceeding under the statute. Lehigh Valley Railw. v. Trone, 28 Penn. St. 206. 6 Hooker v. New Haven & Northampton Co., 14 Conn. 146 ; s. c. 15 Conn. 312. But in such case, the owner of property overflowed by water, through the defective construction of a railway, is bound to use reasonable care, skill, and diligence, adapted to the occasion, to arrest the injury ; and if he do not, not- withstanding the first fault was on the part of the company, he must be regarded as himself the cause of all damage, which he might have prevented by the use vol. i. 20 [*289J EMINENT DOMAIN. PART III. Bui the occasional How of land by water, caused by public works, is to be estimated as part of the damages under the English Btatute. 7 \ ml where the appraisal of land damages is reduced below what it otherwise would have been, by the representations of the ■ its of the company that the road would be constructed in a particular manner, made at the time of the appraisal to the com- mission. -rs. " and which representations are not fulfilled in the actual construction of the road, whereby the plaintiff sustained serious loss and injury, it was held, that the adjudication of the commissioners was a merger of all previous negotiations upon the Bubject, and that no action could be maintained for constructing the railway contrary to such representations, provided it was done in a prudent and proper manner. 8 of such care, diligence, and skill. Chase v. The N. Y. Central Railw., 24 Barb. The Bame rule was adopted by a special referee, in Lemmex v. Vermont Cen- tral Railw., iu regard to damage to wool, by being exposed to rain at one of the company's stations, through the fault of the agents of the company, where the owner did tint remove it, as soon after he obtained knowledge of its condition, or take as effective measures to arrest the injury, as he reasonably should have done. It was held the company were only liable for such damage as necessarily resulted from their own fault, and beyond that the plaintiff must be regarded as the cause of his own 1- ss. See also post, § 191. The asst ssment of compensation for land taken for a railway covers all dam- s, whether foreseen or not, and whether actually estimated or not, which result from the proper construction of the road. But the company are liable to an action lor damages resulting to anyone from the defective construction of their road. In the present case the plaintiff's meadows were injured, in conse- quence of the insufficient culverts in the defendant's road, there being no imped- iment to the construction of proper ones. Suitable bridges and culverts to convey the water across the railway, at or near the places where it naturally flows, arc necessary to the proper construction of the road, except where they cannot be made, or where the expense of making them is greatly disproportion- ate to the interests to be preserved by them. Johnson v. At. & St. Law Railw., II. 669. • Ware • . Regent's 'anal Co., 3 De G. & J. 212. Butman Vt. C. Railw. Co., 27 Vt. 500. See also Railw. Co. v. Washing- ton. 1 Rob. 67; B. & S. Railroad Co. v. Compton, 2 Gill, 20, 28, ante, § 71; Kyle r. Auburn & Koch. Railw., 2 Barb. Ch. 489. But see Wheeler v. Roch. 5y, Railw., 12 Barb. 227, where it is held that a railway company will be ned from building a road-crossing at a different place from that named at the time damages were assessed. But it has been held, that it was competent for the company to show, by experts, the necessity of putting a culvert through an § 74. APPRAISAL INCLUDES CONSEQUENTIAL DAMAGES. 307 7. But where no part of the plaintiff's land is taken, and the statute gives all parties suffering damage by the construction of railways the right to recover, as in England and some of the American states, and the water is drawn off from plaintiff's well upon lands adjoining the railway, he may recover. 9 So, too, may the proprietor of a mill-pond recover damages, sustained by the construction of a railway across the same, although the dam was authorized by the legislature, upon a navigable river ; and in constructing it, the conditions of the act were not complied with. 10 8. But it has been held that the appraisers are not to estimate increased damages to a land-owner in consequence of the ex- posure of the remaining land to fires by the company's engines. 11 embankment, at a particular point, in order to preserve the work, as an answer to a claim for damages on account of the prospective obstruction of the water, and setting it back upon the land at that point, by the embankment. But it should be shown that such culvert is absolutely indispensable, before any deduc- tion can be made on that account, unless the company are in some legal way bound to make it. The company are not estopped from proving this necessity because the plat of the location of the road does not indicate a culvert at that point. Nason v. Woonsocket Union Railw., 4 Rhode Island, 377 ; post, § 93. 9 Parker v. Boston & Maine Railw., 3 Cush. 107. 10 White v. South Shore Railw., 6 Cush. 412. 11 Sunbury & Erie Railw. v. Hummel, 27 Penn. St. 99, Lewis, C. J., and Black, J., dissenting. The general current of authority seems to us with the minority of the court. And in Lehigh Valley Railw. v. Lazarus, 28 Penn. St. 203, the case of Yeizer, 8 Penn. St. 366, ante, n. 4, is regarded, by the reporter of that state, as overruled. It has been held that the appraisers of lands taken for railways are to consider, in estimating the damage done to the owner, the depreciation in value to his estate caused by the proximity of the railway, so far as it is brought about solely by reason of taking the land. Walker v. Old C. & N. Railw., 103 Mass. 10. And the turning of surface water by reason of a rail- way embankment is also to be considered in estimating the damages to the owner of the estate. lb. See also Presbrey v. Old C. & N. Railw., id. 1. But in an action of trespass against a railway company for constructing their road through plaintiff's land, and thereby preventing his cattle thriving, this latter injury is not so remote a consequence of the act charged that it may not be made a ground of claiming damage, when specially alleged in the declaration. Bal- timore & Ohio R. v. Thomson, 10 Md. 76. If we understand the ground assumed by the court in Pennsylvania, at the present time, it is, that an injury to buildings, standing near the line of a railway, by fire from the com- panies' engines, when properly constructed and prudently managed, is too remote and uncertain to form an element in estimating damages to the land- owner, either when part of the land is taken, or the statute provides for [*290] 308 EMINENT DOMAIN. PART III. ' Nor caD any common-law action be sustained for such damage unless where actual loss intervenes through the negligence of the company. damages to all persons "injuriously affected" by the company's works. We are entirely conscious of the embarrassment attending all attempts to define the olaas of injuries, which do, or which do not, come within the rule of legal conse- tial injuries, by the construction or operation of railways. But it seems important to distinguish between a railway, as one of the legitimate uses to which the proprietor of land might pu it, for the purpose of private transportation, and upon which he might no doubt use locomotive steam-engines, and the use of such engines upon a pu lie railway. In the former case the land-owner would not be liable to an adjoining pro- prietor exo pt for want of care, skill, or prudence in the construction or use of his engines. The same would probably be tme of a public company, if the legislature did not subject them to any consequential damage resulting from the nature of their business. But where they are, as in England, and many of the American states, made liable, either as part of the price of land taken, or as a distinct ground of claim, to all consequential damage caused to the land-owner, both by the construction and operation of their road, or either of them, in a prudent and proper manner, it seems difficult to escape the conclusion, that the exposure of property along the line of a railway to loss by fires communicated by the company's engines, is one of the most direct sources of consequential injurv which can be imagined. It is more direct and substantial than that from noise, dirt, dust, smoke, and vibration of the soil, all which, under circumstances, have been held proper elements of damage to be considered. Perhaps none of them are absolutely grounds of giving damage in all cases. That depends very much upon the. nearness of the track to the land. And other circumstances may perhaps deserve consideration, in many cases. But where the track passes directly through lands, near where buildings are already erected, it is difficult to conjecture upon what ground it could be claimed, that the increased exposure to fire was not a serious detriment to the owner. It is certain it must very seri- ously enhance the rate of insurance, and proportionally diminish the value of the nut. and of the buildings. A- v. as -■tnl by Shaw, C. J., Proprietors of Locks and Canals v. Nashua & Lowell Eailw., 10 Cush. 385, it is incumbent upon one who claims damage on this ground, to show that the company's track ran so near his buildings .use imminent and appreciable danger by fire." When it is undertaken to be decided, as a question of law, that in no case is danger from fire, by the prop.-r use of the company's engines, to be considered in estimating land dam- it is certainly contrary to the general course of decisions upon the subject, ii not to the very principle upon which such companies have been subjected to u they cause to land-owners, beyond what accrues from the ordi- nary use of lands for building and agricultural purposes. These decisions in 1 , \ Ivania are still maintained there, and the rule has been applied to the case of buildings where the owner is compelled to pay a higher rate of insurance in ioi.m quence of the proximity of the railway. Patten v. Northern Central llailw., 38 Penn. St. 426. It is here maintained that any claim for damages in conse- [*291] 75. ACTION FOR CONSEQUENTIAL DAMAGES. 309 * 9. In an English case 12 it was held, after extended argument and careful consideration, that the owner of a house situated close to a railway, and which suffers depreciation in value from vibration and smoke, not caused by any negligent use of the railway, but being the inevitable result of the ordinary use, has no right to compensation under the English statute, or by dis- tinct action at law. The case is put upon the ground that the legislature having legalized the use of locomotive steam-engines by railway companies, adjoining proprietors must submit to the inevitable consequences of a lawful business, however inconvenient it may become ; and can sustain no action for damages any more than for the exercise of any other legal business which might depreciate the value of property in the neighborhood. The English statutes are construed to give compensation only for injuries sus- tained by the construction and not by the use of a railway. *SECTION XIII. Action for Consequential Damages. 1. Statute remedy for lands " injuriously af- fected." 2. Without statute not liable to action. 3. Are liable for negligence in construction, or use. 4. Statute remedy exclusive. 5. Minerals reserved. 6. Damages for taking land of railway for highway. 7. Compensation for minerals, when recover- able. § 75. 1. The liability of railways for consequential damage to the adjoining land-owners must depend upon the provisions in quence of the mere intrusion of noise and bustle upon one's seclusion is essen- tially anti-social, and at war with the fundamental laws of society, which we should hot be inclined to question. And as to all mere conjectural or contingent advantages and disadvantages, it may well be said they are too remote to form an element in estimating land damages. Searle v. Lackawanna Railw., 33 Penn. St. 57. But we cannot admit that either of these rules has any just application to exposure to fire from the company's engines, where the danger is certain and inevitable. Post, § 82. 12 Brand v. Hammersmith & City Railw. Co., Law Rep. 2 Q. B. 223 ; 12 Jur. (N. S.) 336 ; s. c. affirmed in House of Lords by a majority of the law lords, Lord Cairns and a majority of the judges dissenting, 18 W. R. 12 ; 4 L. R. H. L. 171. See also Lafayette Plank-Road Co. v. New Albany Railw. Co., 13 Ind. 90. [*292, 293] 310 EMINENT DOMAIN. PART III. their obarters, and the general laws of the state. In England railway companies are, by express statute, 1 made liable to the owners of all hinds ''injuriously affected" by their railways. And under this statute it has been determined, that if the company do any act, which would be an actionable injury, without the pro- tection of the special act of the legislature, they are liable under the Btatute. 2 So that, there, any act of a railway company amount- ing to a nuisance in a private person, and causing special damage to any particular land-owner, is good ground of claiming damages under this section of the statute. 3 ■2. But in the absence af all statutory provision upon the subject, railways are not liable for necessary consequential damages to land-owners, no portion of whose land is taken, where they con- struct and operate their roads in a skilful and prudent manner. 4 1 8 and 9 Vict. c. 8, § 68. * Glover v. The North Staffordshire Railw. Co., 16 Q. B. 912 ; s. c. 5 Eng. L. & Eq. 335 ; post, § 82. 3 Hatch v. Vt. Central Railw. Co., 25 Vt. 49; s. c. 1 Redf. Am. Railw. Cases, 285 ; see § 82, post. * Monongahela Nav. Co. v. Coons, 6 Watts & S. 101 ; Radcliff v. The Mayor of Brooklyn, 4 Comstock, 195; Phil. & Trenton Railw. Co., 6 Wharton, 25; Seneca Road Co. v. Aub.-& Roch. Railw. Co., 5 Hill (N. Y.), 170; Hatch v. Vt. Central Railw., 25 Vt. 49; Richardson v. Vt. Central Railw. Co., 25 Vt. 465; Arnold v. Hudson River Railw., 49 Barb. 108; Cleveland & Pittsburgh v. Speer, 56 Penn. St. 325. And even such acts of a railway company as might have been taken into account in estimating land damages, will afford no ground of action against the company. P. F., &c. Railw. v. Gilleland, id. 445. There are many other cases confirming the same general view stated in the text. Henry v. Pittsburgh & Alleghany Bridge Co., 8 Watts & Serg. 85; Can- andaigua & Niagara Railw. v. Payne, 16 Barb. 273, where it is held, that injury to a mill upon another lot of the same land-owner, in consequence of the con- struction and operation of the railway, is a matter with which the commissioners have nothing to do in estimating damages for land. So in Troy & Boston Railw. v. Northern Turnpike, 16 Barb. 100, it was held that the consideration that the business of a turnpike, which claimed damage, would be diminished by the con- Btrnction of the railway along the same line of travel, should be disregarded in estimating damage to such turnpike. "Every public improvement," say the court, " must affect some property favorably, and some unfavorably, from the necessity of the case. When this effect is merely consequential the injury is il'imnuja absque injuria. Though their property has undoubtedly depreciated by the <,,n>truction of the railway, yet the turnpike company enjoy all the rights and privileges secured to them by their charter, and no vested rights have been violated." Nor is one entitled to damage, in consequence of a highway being laid upon [*293] § 75. ACTION FOR CONSEQUENTIAL DAMAGES. 311 *3. But if the railways are guilty of imprudence, or want of skill, either in the construction or use of their road, they are liable * to any one suffering special damage thereby, 5 as in needlessly his line, thus compelling him to maintain the whole fence. Kennett's Petition, 4 Foster, 139. In Albany Northern Railw. v. Lansing, 16 Barb. G8, it is said, " The commissioners, in estimating the damages, should not allow consequential and prospective damages." In Plant v. Long Island Railw., 10 Barb. 26, it is held not to be an illegal use of a street to allow a railway track to be laid upon it, and that the temporary inconvenience to which the adjoining proprietors are subject while the work of excavation and tunnelling is going on is damnum absque injuria. So also in re- gard to the grade of a street having been altered, by a railway, by consent of the common council of the city of Albany, who by statute were required to assess damages to any freeholder injured thereby, and who had done so in this case, it was held that no action could be maintained against the railway. Chapman v. Albany & Sch. Railw., 10 Barb. 360; Adams v. Saratoga & Wash. Railw., 11 Barb. 414. And in a case in Kentucky, Wolfe v. Covington & Lexington Railw., 15 B. Monr. 404, it was held, the municipal authority of a city might lawfully alter the grade of a street, for any public purpose, without incurring any responsibility to the adjacent landholders, and might authorize the passage of a railway through the city, along the streets, and give them the power to so alter the grade of the streets, as should be requisite for that purpose, this being done at the expense of the company, and by paying damages to such adjacent proprietors as should be entitled to them. But one, who urged the laying of the road in that place, on the ground that it would benefit him, and who was thereby benefited, cannot re- cover damages of the company, upon the maxim, "volenti non Jit injuria.' 1 '' A railway, when so authorized, " is not a purpresture, or encroachment, upon the public property or rights." And where a railway company erect a fence upon land which they own in fee, for the purpose of keeping the snow off their road, they are not liable for dam- ages sustained by the owner of land upon the opposite side of the fence, by the accumulation of snow, occasioned by the fence. Carson v. Western Railw., Mass. Sup. Court, 20 Law Rep. 350; s. c. 8 Gray, 423. See also Morris & Essex Railw. v. Newark, 2 Stock. Ch. 352. And where the act complained of is the construction of an embankment, by a railway company, at the mouth of a navigable creek, in which the plaintiff has a prescriptive right of storing, landing, and rafting lumber, for the use of his saw- mill, whereby the free flow of the water is obstructed, and the plaintiff thereby deprived of the full enjoyment of his privilege, the injury is regarded as the direct and immediate consequence of the act of the company, and they are liable for the damages thereby sustained. Tinsman v. The Belvidere Delaware Railw. Co., 2 Dutcher, 148. See also Rogers v. Kennebec & Portland Railw., 35 Me. 319 ; Burton v. Philadelphia W. & B. Railw., 4 Harr. 252; Hollister v. Union Co., 9 Conn. 436; Whittier v. Portland & Kennebec Railw., 38 Maine, 26. 5 Whitcomb v. Vt. Central Railw. Co., 25 Vt. 69 ; Hooker v. N. H. & N. Y. [*294, 295] 812 EMINENT DOMAIN. PART III. diverting watercourses and streams, and not properly restoring them, 6 whereby lands are overflowed or injured. 5 I. And the remedy given by statute for taking or injuriously affecting lands is exclusive of all remedies, at common law, by action, or bill in equity, unless provided otherwise in the statute. 6 ."». Bui in one English case, 7 the House of Lords held, that * a railway company which had been condemned to pay for land, the owner reserving the minerals, were not liable to the land- owner, by reason of his inability to work a mine which he had discovered under the railway. The Lord Chancellor said, " The conveyance of the surface of land gives to the grantor an implied right of support, sufficient for the object contemplated, from the soil of the grantor adjacent as well as subjacent." Railw. Co., 14 Conn. 146; post, § 79. And there is the same liability although the lands are not situate upon the stream. Brown v. Cayuga & Susquehanna Railw., 12 N. Y. 486. A party is liable to an action for diverting the water from a spring, which ran in a well-defined channel into a stream supplying a mill, at the suit of the mill- owner, notwithstanding he had permission from the owner of the land where the spring arose. Aliter if the spring spread out upon the land, having no channel. As the land-owner might drain his land, so he may give permission to others to do so. Dudden v. The Union, 1 Hurl. & Nor. 627. See also Brown v. Illius, 27 ' !onn. 84 ; Robinson v. New York & Erie Railw., 27 Barb. 512 ; Waterman P. Conn. & Pass. Riv. Railw., 30 Vt. 610; Henry v. Vermont Central Railw., id. 638. But in this last case it was decided that the effect of erecting a bridge in a stream upon the course of the current below was so far incapable of being known or guarded against, that there was no duty imposed upon railway corn- pan its to guard against an injury to land-owners below by a change of the cur- rent See also New Albany & C. Railw. Co. v. Higman, 18 Ind. 77 ; Same v. Huff, 19 id. 315; Colcough v. Nashville & N. W. Railw. Co., 2 Head, 171. And in Cracknell v. Thetford, Law Rep. 4 L. R. C. P. 629, it was held that where a municipality, by act of parliament, is authorized to improve the navigation of a navigable river, and in so doing erect staunches in the stream, whereby seaweed and Band accumulate, so as to cause the stream to overflow and do damage to a riparian owner, he would have no remedy against the corporation, unless some duty, in that respect, were imposed by the act. na r. Eastern Counties Railw., 2 Q.B. 347, 569 ; s. c. 3 Railw. C. 466. But in this case the act expressly provided, that the verdict and judgment should be conclusive and binding, which most railway acts do not ; but it seems ques- tionable if this will make any difference. E. & W. I. Docks, &c. v. Gattke, 3 Mac. & Got. L55; s. c. 3 Eng. L. & Eq. 59; post, § 81. 7 Caledonia Railw. v. Sprot, 2 McQu. Ho. Lds. 499; s. c. 39 Eng. L. & Eq. 16. But in Bradley v. N. York & New H. Railw., 21 Conn. 294, where the defendants' charter gave them power to take land, and made them liable for all damages to any person or persons, and they excavated an adjoining lot to plain- [*2!<«iJ § 75. ACTION FOR CONSEQUENTIAL DAMAGES. 313 6. And it has been held, that in estimating damages to a railway in consequence of laying a highway across land occupied by them, it is not proper to take into account the probable increase of busi- ness to the company in consequence. 8 7. And where the company take land, but decline to purchase the minerals after notice from the owner of his intention to work them, pursuant to the English statute, the company is not entitled to the subjacent or adjacent support of the minerals. And where the company gave notice, under the statute, that the working of the mines was likely to injure the railway, the owner was held entitled to recover compensation which had been assessed under the statute. 9 tiff's, so as to weaken the foundations of his house, and erected an embankment in the highway opposite his house, so as to obscure the light, and render it other- wise unfit for use, it was held, that this did not constitute a taking of plaintiff's land, but that defendants were liable to consequential damage under their charter. But in the early case of the Wyrley Nav. v. Bradley, 7 East, 368, it is con- sidered that, where the act of parliament reserved the right to dig coal to the proprietor of mines, unless the company, on notice, elected to purchase and make compensation, where the canal was damaged by the near approach of the mine, after such notice, and no compensation made, the coal-owner was not lia- ble, although it is there said to be otherwise in case of a house, undermined by digging on the soil of the grantor. But this case seems to turn upon the reser- vation in the grant. 8 Boston & Maine Railw. v. County of Middlesex, 1 Allen, 324. The reser- vation in a deed of land to a railway company of the right to make a crossing over the land, creates an easement in the land, but does not extend such ease- ment across the other lands o the company. lb. 9 Fletcher v. Great Western Railw., 4H.&K 242. And in North Eastern Railw. Co. v. Elliott, J. & H. 145; s. c. 6 Jur. (N. S.) 817, it was held that the general principle, that a vendor of land sold for a particular use cannot derogate from his own grant by doing any thing to prevent the land sold from being put to that use, applies to sales to railways under compulsory powers. But it was here said that this principle will not compel the vendor of land to perpetuate any thing upon the portion of the land retained by him, which is merely accidental, though existing and of long standing at the date of the sale. Hence, where a railway company took land for a bridge in a mining district, where a shaft had been sunk many years before, but the working of the mines abandoned and the shaft filled with water for a long time before the taking of the land, it was held that the land- owner was not precluded from draining the water and working the mine, although the effect must be to lessen the support of the bridge to some extent, by with- drawing the hydrostatic pressure upon the roof of the mine, and the consequent support of the superincumbent strata of earth. [*296] 314 EMINENT DOMAIN. PART III. ♦SECTION XIV. Right to occupy Highway. 1. Decisions conflicting. ' held that owners of the fee were en- :,, additional damages. 3. Principle veins to require this. I .1/ my cases take a different view. :,. / lislatures mag and should require such additional compensation. 6. Courts of equity will not enjoin railways from occupying streets of a city. 7. Some of the states require such compensa- tion. n. 11. All do not. But the English courts, principle, and many of the state courts, do requin it, as matter of right. 8. lliri nt d< visions upon the right to occupy the highway. 1. The decisions in the state of New York require compensation to the owner of the fee. 2. Distinction between streets of cities and highways in the country. 3. Legislature may control existing rail- ways. 4. In Ohio the owner of the fee may claim indemnity against additional injury. 5. True distinction, whether the use is the same. 6. The present inclination seems to be to require additional compensation for laying street railway in highway. 7. Cases in the opposite direction. Judge Ellsworth's opinion. 8. Explanation of the apparent confusion. 9. Where permanent erections made in street, compensation must be made. 10. Rights of land-oivners as to obstructing railway. 11 $• n. 25. Recent cases in New York. § 76. 1. The decisions are contradictory, in regard to the right of a railway company to lay its track along a common highway, without making additional compensation to land-owners adjoining such highway, and who, in the country, commonly own to the middle of the highway. 2. In some of the early cases, upon this subject, it seems to have been considered, that, under such circumstances, the land- owners were entitled to additional compensation, when the land was converted from a common carriage-way to a railway. 1 1 Trustees of the Presbyterian Society in Waterloo v. The Auburn & Roches- ter RaUw. Co., 3 Hill (N. Y.), 567. The case of Fletcher v. Auburn & Syra- Lailw. Co., 25 Wend. 462, might have been put upon the same ground, but is not. The ground assumed is, that the land-owners are entitled to consequen- tial damage, in consequence of the new use to which the land is put, which amounta to nearly the same thing. Philadelphia & Trenton Railw., 6 Wharton, 26; Miller v. The Auburn & Syracuse Railw. Co., 6 Hill (N. Y.), 61; Mahon Dtica & Schenectady Railw., Lalor's Supp. to Hill & Denio, 156. And in Ramsden v. The Manchester South Junction & Alt. Railw., 1 Exeh. 723, the Court of Exchequer expressly decide, that a railway company has no right even to tunnel under a highway, without making previous compensation to the land- [*297] § 76. RIGHT TO OCCUPY HIGHWAY. 315 * 3. There is certainly great reason in this view, inasmuch as the land-owner's entire damage is to be assessed, at once, and it owner. Seneca Road v. Auburn Railw., 5 Hill, 170; Troy v. Cheshire Railw. Co., 3 Foster, 83. But a distinction is taken between the property of adjoining land-owners in the highway or street in cities, and in the country. In the former it has been held that the fee of the streets is under the sole control of the munici- pal authorities, and that it is no perversion of the legitimate use of the streets to allow a railway company to lay their track upon them. Plant v. Long Island Railw., 10 Barb. 26; Adams v. Saratoga & Washington Railw., 11 Barb. 414; Chapman v. Albany & Schenectady Railw., 10 Barb. 360; Drake v. Hudson River Railw., 7 Barb. 508 ; Applegate v. Lexington & Ohio Railw., 8 Dana, 289 ; Wolfe v. Covington & Lexington Railw., 15 B. Monr. 404. In Williams v. New York Central Railw., 18 Barb. 222, 246, the court say: " A railroad is only an improved highway, and the use of a street, by a railway, is one of the modes of enjoying a public easement." But see this case reversed, post. A general power to pass highways in the construction of a canal, or rail- way, has been held to include turnpikes also. Rogers v. Bradshaw, 20 Johns. 735; White River Turnpike Co. v. Vermont Central Railw., 21 Vt. 590. But the grant of a railway from one terminus to another, without prescribing its precise course and direction, does not, prima facie, confer power to lay out the railway upon and along an existing highway. But it is competent for the legis- lature to grant such authority, either by express words, or necessary implication ; and such implication may result, either from the language of the act, or from its being shown, from an application of the act to the subject-matter, that the rail- way cannot, by reasonable intendment, be laid in any other line. Springfield v. Connecticut River Railw., 4 Cush. 63; s. c. 1 Redf. Am. Railw. Cases, 299. But, in general, the adjoining owner of land to a highway is entitled to additional com- pensation, where it is put to a different and more dangerous use. And towns have an interest in highways and bridges, which will enable them to maintain an action upon the case for their obstruction or destruction, and the conversion of the materials. Troyw. Cheshire Railw., 3 Foster, 83. But the town is not liable to pay damages assessed, by the selectmen, in laying out a highway, at the request of a railway company, made necessary to supply the place of one taken by the company for their track. Ellis v. Swanzey, 6 Foster, 266. In general, it may be stated as the settled doctrine of most of the states, that the ow-ner of land, bounded upon a highway, owns to the centre of the way. Buck v. Squiers, 22 Vt. 484, 495. The general rule as to monuments, referred to in deeds of land, undoubtedly is, that the centre of such monuments is intended, whether it be stake, stone, tree, rock, or a highway or stream. It is undoubt- edly more a rule of policy than of intention, and, as such, to answer its end, should be applied in every case, unless a clearly defined intention to the contrary be made to appear. 3 Kent, Coram. 433; Chatham v. Brainerd, 11 Conn. 60; Champlin v. Pendleton, 13 Conn. 23 ; Livingston v. Mayor of New York, 8 Wend. 85, 106 ; Starr v. Child, 20 Wend. 149 ; s. c. 4 Hill, 369 ; Canal Coram. v. People, 5 Wend. 423 ; s. c. 13 Wend. 355 ; Johnson v. Anderson, 18 Ale. 76 ; Bucknam v. Bucknam, 3 Fairfield, 463; Leavitt v. Towle, 8 N. Hamp. 96; [*298] 816 EMINENT DOMAIN. PART III. • oould neyer be done understandingly, unless the use to whieh it to be put were known to the assessors. And it is obvious, Dovaston v. Payne, l' Smith's Leading Cases, 90, and notes by Wallace & Hare; Nicholson v. New York & New Haven Railw., 22 Conn. 74. Hut tl wner of the fee of land, over which a highway passes, cannot main- tain a I'll i" equity, to enforce an order of commissioners, as to the manner of constructing a railway, where it crosses the highway, but the same should be brought by the principal executive officers of the town or city. Brainard v. Conn. River Railw., 7 Cush. 506. The court say: " It is only where the owner suffers souk- special damage, differing in kind from that which is common to others, that a personal remedy accrues to him, and certainly no rule of law rest's on a wiser or more sound policy. Were it otherwise, suits might be multiplied to an indefi- nite extent, s<> as to create a public evil, in many cases, much greater than that whirli was sought to be redressed." Stetson c, Faxon, 19 Pick. 147; Proprie- tors of Quincy Canal «. Newcomb, 7 Met. 276; Smith v. Boston, 7 Cush. 254; Hughes '-. Providence & Worcester Railw. Co., 2 Rhode Island, 493. In Williams r. Natural Bridge Plank-Road Co., 21 Missouri, 580, it is held, that the grant of the right of locating a plank-road upon a county road, does not exclude the idea that the owner of the soil over which the road passes should have compensation for any injury he may sustain by converting a county road into a plank-road. This case is put, by the court, upon the ground, that the plank- road is an additional burden upon the soil, and that for this the land-owner is as much entitled to compensation as if his land had originally been taken for the purpose of the plank-road, and that to deny all redress in such case is a virtual violation of that article of the Constitution giving compensation to the owner of property taken for public use. This is undoubtedly the rule of the English law, and of reason and justice, and we should rejoice to see it prevail more extensively in this country. The American courts seem to have been sometimes led astray upon this subject by the fallacy, that a railway is merely an improved highway, which for many pur- poses ii is, but not for all, any more than a canal. See also Railroad ex parte, 2 Rich. l:;i. And the New York statute, giving railways the right to pass upon, or over turnpikes, plank-roads, rivers, &c, by restoring such ways, rivers, &c, so as not unnecessarily to have impaired their usefulness, was construed not to preclude a plank-road from recovering of the railway all damages sustained by them in a common action for damages, under the code, the company having entered upon the plank-road without causing damages to be assessed under the statute. Elli- cottville Plank-Road v. Buffalo, &c. Railw., 20 Barb. 644. As the New York Court of Appeals have changed the rule upon this subject, in that state, since the body ol this work was through the press, in the former edition, and only a note of the case was inserted at the close of that edition, we deem it proper here to repeal the ruling. Williams v. New York Central Railw., 16 N. Y. 97. The point decided is, that the dedication of land to the use of the public as a highway ol authorize it being taken by a railway company for their track, without compensation to the owner of the fee, although done by the consent of the legislature, and of the municipal authorities. It has been sometimes held that [*299] § 76. RIGHT TO OCCUPY HIGHWAY. 317 *that it would ordinarily be attended with far more damage to the remaining land to have a railway than a common highway laid across it. * 4. If the rule of estimating damages, according to the money value of the land taken, were adopted, there would be more * rea- son in saying the public would thereby acquire the right to use it for any purposes of a road, which any future improvement * might suggest. And this is the view which seems very extensively to prevail in this country. It was long since settled that * the land- owner was not entitled to any additional damage, by reason of any alteration in the construction of the highway. 2 Or in applying it to the use of a turnpike road where toll was paid, this being but a different mode of supporting the highway, of which the land- owner had no just cause of complaint, since it did not materially alter the use of the land. 3 And the same rule has now been pretty extensively extended to improvements in erecting railways along the streets and highways. 4 These questions depend much upon the terms of the charter of the railway company. the laying out and operating a horse railway in the streets of a city is not an additional servitude upon the soil, for which the owner is entitled to compensa- tion. Brooklyn Central & Ja. Railw. v. Brooklyn City Railw., 33 Barb. 420. And if one company lay their track across the track of another, they are entitled to no compensation. lb. 2 Zimmerman v. The Union Canal Co., 1 Watts & Serg. 346 ; Mayor v. Ran- dolph, 4 Watts & Serg. 514; Gov. & Co. of Plate Manufacturers v. Meredith, 4 T. R. 790; Sutton v. Clark, 6 Taunton, 29; Boulton v. Crowther, 2 B. & C. 703 ; The King v. Pagham, 8 B. & C. 355 ; Henry v. The Alleghany & Pitts- burgh Bridge Co., 8 Watts & Serg. 86; Shrunk v. Schuylkill Nav. Co., 14 S. & R. 71; Commonwealth v. Fisher, 1 Penn. 467; Hatch v. Vermont Central Railw., 25 Vt. 49; Taylor v. City of St. Louis, 14 Misso. 20; Richardson v. Vermont Central Railw., 25 Vt. 465; Callender v. Marsh, 1 Pick. 418; Rounds v. Mumford, 2 Rhode Island, 154; O'Connor v. Pittsburgh, 18 Penn. St. 187~; Plum v. Morris Canal & Bank Co. and the City of Newark, 2 Stock- ton's Ch. 256. 3 Wright v. Coster, 3 Dutcher, 76. 4 Plant v. Long Island Railw. Co., 10 Barb. 26. But see Mifflin v. Harris- burg, Portsmouth, M. & L. Railw. Co., 4 Harris (Penn.), 182. In this case the act required payment of damage to all who were injured by converting a turnpike into a railway, and it was held a receipt in full to the turnpike company did not bar the claim of an adjoining land-owner for additional damages. But the levelling of a street, preparatory to laying the structure of a railway, is not an obstruction. McLaughlin v. Charlotte and S. C. Railw., 5 Rich. 583; Ben- edict v. Coit, 3 Barb. 459. [*300-304] ;,|s EMINENT DOMAIN. PART III. Vii.l as it is confessedly competent for the legislature to require railways, iii laving their track along the highways, to make compensation to the adjoining land-owners, for any increased detriment, or to be liable for all consequential damage, 5 and as it is assuredly just and equitable to do so, it seems desirable it should be done. And in those states and countries where such enter- prises have become so far matured as to have assumed the form of a settled system, it more commonly is done. And where it is not, it may be regarded as the result of oversight in the legislature. It was held that a railway is liable to pay damages for crossing a turnpike company's road, notwithstanding the legislature gave the right. 8 • I. Injunctions in equity have been denied, when applied for, to restrain railways from occupying the streets of cities and towns with their track, 7 by consent of the municipal authority. 5 Bradley v. N. Y. & N. H. Railw. Co., 21 Conn. 294. 6 Seneca Railw. Co. v. Aub. & Roch. Railw. Co., 5 Hill, 170. And the amount of damage is immaterial. The maxim, de minimis, does not apply to cases of plain violation of right. Id. Coiven, J. 7 Hamilton v. New York & Harlem Railw., 9 Paige, 171 ; Hentz v. Long Is. Railw., 13 Barb. 646; Chapman v. Albany & Sch. Railw., 10 Barb. 360; Lexington & Ohio Railw. v. Applegate, 8 Dana, 289; Drake v. Hudson River Railw., 7 Barb. 508; Wetmore v. Story, 22 Barb. 414; Milhau v. Sharp, 15 Barl>. 193. But where the railway is constructed without the legal permission of the municipal authorities or the legislature, along the streets of a populous city, it becomes a nuisance, and courts of equity will prohibit its continuance, at the suit of individuals who are tax-payers and property owners on the streets through which the rails are laid. In a case in New Jersey, Morris & Essex Railw. v. City of Newark, 2 Stockton's Ch. 352, the right of a railway company to occupy the streets of a city seems to have been examined with considerable care by the chancellor, but the cases upon the subject are not examined very extensively, and reliance is there placed upon the case of Williams v. The New Yuik < ientral Railw., 18 Barb. 222, which has since been reversed in the Court Appeals, ante, n. 1. 'I hero is one distinction here adverted to that is not named in other cases, so far as we have noticed, that so long as the highway or street continues to be used as such, tho concurrent use of it by a railway company for their track, by con- g. lit ol the legislature and the municipal authorities, does not entitle the owner of the fee to additional compensation. But if it is appropriated exclusively to tin- use ol the railway, the owner is then, by constitutional provision, entitled to compensation, the discontinuance of the highway causing a reverter of the fee to the owner. This qualification takes away the most offensive feature of what is claimed, in some of the cases, the right, in the legislature and the municipal [*305] § 76. EIGHT TO OCCUPY HIGHWAY. 319 * 7. But in one well-considered case, 8 it was held, that where a railway company, in carrying their road through the streets of the city of New Haven, found it necessary to carry one of the streets over the railway, upon a high bridge, with large em- bankments at each end, the plaintiff owning the land upon both sides of the street, and no compensation being assessed to him, he * might recover of the company in an action of trespass, for any authorities, to transmute a common highway or street into a public railway, as one of those improvements in the mode of intercommunication which the progress of events had brought about, and which must be regarded as fairly within the contemplation of the parties at the time of the original taking. But, in the present case, there being no necessity for the use of the street in question by the railway, but merely a convenience, and no express consent of the municipal authorities for such use, it was held that no right to such use could be implied, from the grant of their charter, between certain termini, which might be obtained by a route less injurious to the public, and that the consent of the municipal authorities was not to be inferred from their not interfering until the track had been laid and used for several years, and large sums of money thus invested, and important interests accrued, and the injunction restraining the au- thorities from removing the track was dissolved. The extent to which a railway company must obstruct the highway, at an intersection of the two, to create an actionable impediment to the public travel, is extensively considered in the case of Great Western Railw. Co. v. Decatur, 33 111. 381. It was here decided, that twelve feet of the hig*hway remaining unobstructed, so that a steady team might have passed in safety, is not enough to exonerate the railway company from a charge of obstructing the passage of the highway. The obstruction of the public right of way in a river, whether navigable in the old sense of being a tidal stream, or not, is a public nuisance, for which an injunction will be granted at the suit of one suffering special damage, or of the Attorney-General. Atty. -General v. Earl of Lonsdale, 17 W. R. 219 ; s. c. 7 L. R. Eq. 377. 8 Nicholsons. New York & New Haven Railw., 22 Conn. 74. If there is any departure from general principles, in this case, it is in holding the railway company justified in making alterations in highways, which cause no appreciable injury to the land-holders, and this certainly commends itself to our sense of reason and justice. It may be somewhat questionable, perhaps, whether the charge of the judge, who tried the case at the circuit, was not based upon the technical rules applicable to the case, namely, that the company were, at all events, liable for nominal damages, and for all actual damages in addition. But where a railway company, by consent of the mayor and aldermen of a city, under the Revised Statutes, raise a street to enable them to carry their road under it, they become primarily liable to the adjoining land-owners for any damage to their estates thereby. And it will not affect the liability of the company, that the city took of them a bond of indemnity, and appointed a superintendent to take care of the public interests in the execution of the work. Gardiner v. Bos- ton & Worcester Railw., 9 Cush. 1. [*306, 307] EMINENT DOMAIN. PART III. appreciable incidental damages, occasioned by thus constructing their road, and the consequent alteration of the highway or street. Ami as the company, in thus constructing their road, acted under the authority of the legislature, they were, prima facie, not to be regarded as trespassers, but where they caused any appre- ciable damage to" the land-owners along the line of the road, they were liable in this form of action. The court in this case, Hin- man, J., assumed the distinct ground, that the railway, by laying their track upon the plaintiff's land, which was before subject to the servitude of the highway, or street, would become liable " for such entry " upon the land. " In such case," says the learned judge, " the subjecting the plaintiff's property to an additional Bervitude, is an infringement of his right to it, and is, therefore, an injury and damage to him. It would be a taking of the prop- erty of the plaintiff, without first making compensation." And the same court, in a later case, 9 held that the location of a rail- way upon a public highway is the imposition of a new servitude upon tbe land, and the owner of the fee is entitled to compensation for tbe damage caused thereby. And this includes all incidental damage to land adjoining, and which belongs to the same pro- prietor. In a case in Pennsylvania, 10 it is held that the legislature may authorize the construction of a railway on a street, or public highway, and the inconvenience thereby incurred by the citizens must be borne for the sake of the public good. But where this is claimed by construction and inference, all doubts are to be solved against the company. And where, by the act of incorporation of a municipality, it was provided that the "streets, lanes, and alleys thereof" should for ever be and remain public highways, it was held that the municipal authorities could not authorize the con- struction of a railway thereon. 10 But where the state conveys to a city the title of a common, reserved in the grant of the township for a " common pasture," subject to the easement of the lot hold- ers, of common of pasturage, * it was held that the city might law- fully grant a portion of tbe same to a railway company for the purpose of constructing their road. 11 [ml ..v / . The Union Branch Railw. Co., 26 Conn. 249. I mmonwealth v. Erie & Northeast Railw., 27 Penn. St. 339. See also Alleghany v. Ohio & Pennsylvania Railw., 26 Penn. St. 355. 11 Alleghany v. Ohio & Pennsylvania Railw., 26 Penn. St. 355. Rut the grant 308] § 76. RIGHT TO OCCUPY HIGHWAY. 321 * 8. Since the second edition of this work, the decisions have been considerably numerous in regard to the right of railways of fifty feet, through such a common, in a densely populated city, will only con- vey the right to the railway to erect their road thereon, and to receive and dis- charge passengers and freight, and will not give the right to erect depots, car-houses, or other structures, for the convenience or business of the road ; or to permit their cars and locomotives to remain on their track longer than is necessary to receive and discharge freight and passengers. lb. And it might have been regarded as the settled doctrine of the New York courts, until the case of Williams v. N. Y. Central R. ante; n. 1, that the owner of the fee of land dedicated to the use of a highway or street, and which the legislature devote to the use of a railway, had no claim upon the company for compensation, by reason of the additional servitude thereby imposed upon the land. Corey v. Buffalo, Corning, & New York Railw., 23 Barb. 482; Rad- cliffy. Mayor of Brooklyn, 4 Comst. 195 ; Gould v. Hudson River Railw., 2 Seld. 522. But this is now otherwise in New York. And so late as January, 1857, the subject is elaborately examined by Vice- Chancellor Kindersley, in Thompson v. West Somerset Railw., 29 Law Times, 7, in relation to the cestui s que trust of a pier, over which the act of parliament, in express terms, authorized the company to construct their road, but which they had done without proceeding under the statutes, to appraise compensation, and the court held them trespassers and an injunction was granted until the company made compensation. And in a case in Indiana, the subject is considered, and although the author- ities are not much reviewed, the conclusions of the court conform so closely to the broadest views of reason and justice, that we shall insert an extended note of the points decided. A city ordinance authorized the construction of a railway, on either of two streets, through the corporate limits, under suitable restrictions as to grade. It was considered that the ordinance did not authorize the company to substantially alter the grade of the street. It was further : Held, that besides the right of way, which the public have in a street, there is a private right, which passes to a purchaser of a lot upon the street, as appurte- nant to it, which he holds by an implied covenant, that the street in front of his lot shall for ever be kept open, for his enjoyment, and for any obstruction thereof to the owner's injury, he may maintain an action. The right which the owner of a lot has to the enjoyment of an adjoining street is part of his property, and can only be taken for public use, on just compensa- tion being made, pursuant to the constitution. Tate v. Ohio & Miss. Railw., 7 Porter (Ind.), 479. And in Haynes v. Thomas, id. 38, where the cases are more fully examined, the same general propositions are maintained. It is there said, the right of the owner of a town lot, abutting upon a street, to use the street, is as much prop- erty as the lot itself, and the legislature has as little power to take away one as the other. These general propositions are repeated, and somewhat varied, in the notes of this case. And although we think, upon principle, the right as against a rail- vol. i. 21 [*oO ( Jj 322 EMINENT DOMAIN. TART III. to occupy the Btreeta and highways, without making additional compensation to the owners of the fee of the lands across which in,- are laid. The principles involved are much the same as have I d already stated ; bill it will be important to the pro- fession to knew them in detail. 1. In a Bomewhat recent case 12 it was decided, that the occupa- tion of the highway by the track of a railway company, is the imposition of an additional servitude, and is the taking of the property of the owner of the fee in the lands over which the same is laid, within those constitutional prohibitions requiring compen- sation where private property is taken for public use ; and that consequently the company can acquire no right to such use, under legislative and municipal license, without compensation, and that there is no difference in this respect between railways operated by Bteam and by other motive power. But in another case it was held, that any legislative act empowering a railway company to occupy certain streets and avenues in the city of New York, should not he construed as not intended to give such permission without compensation. 13 In the main, this case assumes the opposite ground from that declared by Craig v. Rochester City and Br. Railway Co. 12 The question came up for revision in the Court of A.ppeals, in the case of the People v. Kerr, 14 where the court way company should be placed upon the basis of its being an additional and more O] pressive burden and servitude upon the land, which" entitles the land-owner to additional compensation, there can be, in our judgment, no manner of question of the general soundness of the above decisions. And the latter case, being that of the voluntary dedication of property, by the owner, for the purposes of a Btreet and highway, is very well calculated to illustrate the hardship and injustice of wresting such use to the purposes of a railway, so much more burdensome and injurious. So that the general current of the American law upon this subject may now be regarded as the same with the English rule already stated. Protz- inau v. End. & (in. Railw., 9 Ind. 4G7 ; Evansville & C. Railw. v. Duke, 9 Ind. See al o Marquis of Salisbury v. Great Northern Railw., 5 C. B. (N. S.) 17! : B.C. 5 Jur. (N. S.) 70. 11 < Iraig < . Roi hester City & Br. Railw. Co., 39 Barb. 494. 13 People o. Kerr, 37 Barb. 357. 14 -Jl N. Y. 188. This case must be regarded as settling the law in this notwithstanding Borne conflict in the decisions of their different supreme I Le is thus laid down by Emott, J., in the case last cited. "It must be regarded as settled, in the jurisprudence of this state, that the appro- priation of property to the construction or use of a railway for the transportation of property, is an application of such property to the use of the public. The 109] § 76. . RIGHT TO OCCUPY HIGHWAY. 323 maintained * the proposition that the construction of a city rail- way upon the surface of the streets, and without change of grade, is an appropriation of the land to some extent to public use, but the court held that the original owner of the fee of the streets in the city of New York had no such remaining interest as to justify any demand for compensation on his part for reasons before stated. 15 2. The same distinction, as to the right of the owner of the fee to demand compensation, between the use of the streets of towns and cities for the track of railways, and of highways in the country, is observed in many of the other states. Thus in two cases in Iowa this distinction is maintained. 16 3. The question of the location of railways across or along the streets and highways of cities and towns as well as in the rural districts, is extensively discussed in a case in Maine, which came more than once before the courts. 17 But most of the proposi- tions here maintained are more or less affected by statutory pro- visions. It is here declared (which indeed is found in many other cases, and is sufficiently obvious in itself) that statutes regulating the operation of railways are to be considered as affecting only the general police of the state, and as applying equally to existing and future railways ; but even matters of police affecting the construc- tion of railways cannot reasonably be construed as having a retro- active operation, so as to require a railway company to undo and do over again the work of construction. 4. The cases 18 decided in Ohio, in regard to the use of highways * and streets for the purpose of street railways, do not appear to be altogether decisive of the principle involved. It seems to be there doctrine applies to all railways, whether traversing the state or the streets of a city, and of course the motive power used does not affect the question. So, also, the uniform course of decisions and legal proceedings since Bloodgood v. Mohawk & Hudson Railw. (18 Wend. 1), and founded upon the principles there asserted, is conclusive that it does not affect the question of public use in such cases, that the property applied to it is to be appropriated by a corporation or by individ- uals, and not directly by the state or the people, or that the road is not of a character to be actually used by any and every citizen with his own vehicle. 15 Ante, § 70, pi. 13. 16 Milburn v. City of Cedar Rapids, &c, 12 Iowa, 246 ; Haight v. The City of Keokuk, &c, 4 id. 199. 17 Veazie v. Mayo, 45 Me. 5G0; s. c. 49 id. 156. 18 Crawford v. Delawne, 7 Ohio (N. S.), 459; Cincinnati & Spring Grove Avenue Railw. Co. v. Cumminsville, 14 Ohio (N. S.), 523. [*310, 311] EMINENT DOMAIN. PART III. regarded, so far as a street or highway can be appropriated for such use, without appreciable damage to the owner of the land adjoining, that he is not entitled to any additional compensation, but that if from change of grade or any other cause, there is any mtial damage inflicted upon the abutters, by obstructing access i i lands or buildings, or in any other respect, more than would have resulted from the use in the ordinary mode for a highway, the owner of the fee will be entitled to demand additional compen- sation. 5. Hut it is obvious that the difficulty, in point of principle, lies somewhat deeper. For although the rule there laid down, in point of equity, may 1 »e entirely just and reasonable, it must always prove embarrassing in practice, and compel an appraisement in each particular case, in order to insure security. The true prin- ciple undoubtedly is, that if the use is substantially the same as that of an ordinary highway, no additional compensation can be required ; but if the use is new, and distinct from that of an ordinary highway, the owner of the fee is entitled to additional compensation in every case, without reference to special damages ; so that the question turns upon the point whether the use of a street or highway, for the support of a railway track, is using it for a highway only. As such use of the street for street railways is of necessity solely under municipal control, and is a use to which the municipal authorities might themselves devote the street by constructing the tracks at their own expense, allowing all trav- ellers to use them with every species of carriage, it seemed nat- ural to conclude that it could not be regarded as an additional servitude ; but the current of authority seems to be setting in the opposite direction. •i. The present inclination seems to be to make no distinction between the use of streets by steam and street railways, and to require compensation in both cases alike. 19 i . There arc some few cases in different states which still ad- * to the doctrine that the laying of a railway track for the pas- 18 Fori r. Chicago and North Western Railw. Co., 14 Wis. 609; City of Janearrffle >•• Milw. & Miss. Railw. Co., 7 id. 484; Pomeroy v. Chi. & Milw. Railw. Co., 16 id. 640; Warren v. State, 5 Dutcher, 393; Veazie v. Penobscot Railw., 49 Me. 119. The same principle is maintained in Brown v. Duplessis, 1 1 La. Ann. 842. But by statute in this state the cities may sell the use of the streets i'..r city passenger railway purposes. [*312J § 76. RIGHT TO OCCUPY HIGHWAY OR STREET. 325 sage of street railways, at the ordinary grade of the highway, is not an appropriation of any estate in the land to public use beyond that already appropriated by devoting the land to the use of a highway or street. 20 And there is an elaborate opinion of Mr. Justice Ellsworth, of the Connecticut Supreme Court, 21 where the same views are maintained, and, as it seems to us, with more plausibility than any case we have found in the opposite direction. 8. The explanation of the singular vacillation of the courts upon the subject of railways being located on the highways, and whether the owner of the fee was thereby entitled to additional compensa- tion, seems to arise in the following manner. At the first it was so common to designate steam railways as only an improved high- way that the courts, almost universally in this country, held the owner of the fee entitled to no additional compensation by reason of such railways being laid upon the highway, either across or along their route. But this view, upon more careful consideration, being found untenable, the retrocession of the courts from their former false assumption naturally gave them an unnatural impulse in the opposite direction, by which the conclusion was arrived at, that all railways must equally be an additional burden upon the fee. Whether the proper distinction between street railways and those occupying a distinct route and transacting mainly a distinct business will ever be clearly defined is perhaps questionable. 9. It seems very certain that the grant to a railway company of the right to pass along the streets of a city or town can confer no right to erect stations and other permanent structures in the streets and thereby render them unfit for use as streets. 22 In such cases the adjoining land-owners will be entitled to redress by way of damages, whether they own to the middle line of the street or only to the margin. 22 10. But the owner of an unimproved building lot upon a street cannot be regarded as suffering any such injury from the location of a railway along the public street adjoining as will entitle him to an injunction. 23 And the fact that the defendant owned the * land across which a railway track is laid, and had never released the right of way to the railway, is no ground of defence for placing ob- 20 New Albany Railw. Co. v. O'Daily, 12 Ind. 551. 21 Elliott v. Fairhaven & Westville Railw. Co., 32 Conn. 579. 22 Lackland v. North Missouri Railw. Co., 31 Mo. 180. 23 Zabriskie v. Jersey City & Bergen Railw. Co., 2 Beasley, 314. [*313] 826 EMINENT DOMAIN. PART III. Btructions upon the track. 24 Nor will the breach of contract by which the company secured the right of way give any color of justification to the land-owner for placing any such obstructions on the track. 2 * 1 1. Some recent cases affecting the location of street railways in tli,' city of New York may be of interest to the profession, and we haw therefore inserted in the note below 25 the leading points decided. State V. Ilessenkamp, 17 Iowa, 25. Sixth Av. Railw. Co. v. Kerr, 45 Barb. 138, where the following points are ruled : — Where a railroad is laid in a public street, under a permissive grant to the company to use a portion of the street for that purpose, the company does not acquire the same unqualified title and right of disposition to the land occupied which individuals have in their lands. Tlic only exclusive power conferred by such grants is that of using railway carriages in the same manner as the grant of a stage line confers, for the time being, the grant of a monopoly of using such stages for the transportation of passengers for hire on that route. lb. After a railway company has obtained permission from the common council of New York to lay a railway through certain streets of the city, and such grant is subsequently confirmed by an act of the legislature, the legislature has the power to grant similar privileges to another company, and to authorize the latter to run upon, intersect, or use any portion of the tracks already laid, on condi- tion of making compensation or payment to the first grantees, to be assessed, if the parties do not agree. lb. Such a grant is not a violation of any right of property. The grantees must be considered as holding the grants for the public use, in the public street, which is open to all the public. The right to grant a crossing of the road necessarily involves a right to pass over a Larger portion of such road, when the legislature so directs. lb. A railway corporation, by acquiring the right to construct its road across a highway, and obtaining title to the land for its road-bed, does not destroy or impair the public easement. The perfect and unqualified right of every citizen to pass over the road at that point remains the same as before. lb. The common council of the city of New York has no power to authorize an snsion of a city railway, unless possibly where such extension is really neces- sary to the enjoyment of a previous valid grant. People v. Third Av. Railw., 1-. B irbour, 63. It il be claimed that such extension is a necessary incident to the principal subject of the grant, that is a question of fact, and the burden of proving it rests OS the railway company. lb. By the act incorporating the New Y"ork & Harlem Railw., passed April * 25, 1882, the company was empowered to construct a single or double rail- way from any point on the north bounds of 23d Street, in the city of New S : k. to any point on the Harlem River between the east bounds of the Third [*314] §76. RIGHT TO OCCUPY HIGHWAY OR STREET. 327 Avenue and the west bounds of the Eighth Avenue, with a branch to the Hud- son River, between 124th Street and the north bounds of 129th Street. Held, 1. That the practical location of the railway within the proscribed limits would exhaust the powers conferred, and prevent a subsequent change of location, except by consent of the legislature. 2. That the location of the tracks (if there were two) would have to be substantially upon the same route. That the permis- sion to build a double track should be construed to mean two tracks essentially upon the same location, for the purpose of enabling cars to run in opposite direc- tions, and not two essentially different routes through different streets and ave- nues, such as would be occupied by parallel railways ; especially as the right of granting to other persons or corporations authority to construot parallel railways on streets or avenues not occupied by the New York and Harlem Railw., was expressly reserved to the legislature by the sixteenth section of the same act. People v. N. Y. & Harlem Railw., 45 Barbour, 73. By an amendatory act of the 6th of April, 1832, the company was " author- ized and empowered, with the permission of the mayor, &c, of New York, to extend their railway along the Fourth Avenue to 14th Street, and through such other streets as the mayor, &c, might from time to time permit, subject to such prudential rules" as were prescribed by the act, and as the said mayor, &c, in common council convened, might prescribe. Held, that the precise route of the extension was not intended to be defined by the act, but this was designedly left to the sound discretion of the common council ; and the road was to be extended through such other streets as the mayor, &c, might from time to time permit. lb. That this was a continuous power, left to be exercised from time to time as the wants of the community should require. It was not, therefore, a power which was spent by a single grant or permission, but might be repeatedly exercised, according to the exigency of the case. lb. Held, also, that the extension authorized by the act of April 6, 1832, was a longitudinal and not a lateral one ; and it was not meant that it should pursue the same precise direction with that portion of the road to which it was attached, and not in any degree diverging from such a course, but that it should have the same general direction as a southern, southeastern, or southwestern direction, and not a direction to opposite or widely divergent points of the compass. lb. Held, further, that a reasonable interpretation of the act required that the extension should be made from the termination of the road already constructed, so as to be a legitimate continuation and prolongation thereof. That it was to go further, not to return back. It was to be continued, not to branch off. It was to be a single route, not several routes. It was to be an extension, and not a branch. lb. Accordingly, the common council of New York having professedly, in pursu- ance of the authority given by the act of April, 1832, passed an ordinance on the 21st of April, 18G3, granting permission to the New York & Harlem Railw. to extend its railway, and construct a double track from their present Fourth * Avenue track, between 17th and 18th Streets, through Broadway to the foot of Whitehall Street, with an additional track around Bowling-Green and State Street, and another additional single track around Union Square; with further permission to construct an additional single track to the Fulton Ferry, through [*315] 328 EMINENT DOMAIN. PART III. John Street, &C., returning through Fulton Street; and to extend its railway ami construct a double track in Fourth Avenue, through 23d Street to Madison Avenue, and thence through Madison Avenue as far as it is or hereafter may lie opened; with further permission to connect therewith by a single or double track from Fourth Avenue to Madison Avenue, through 24th Street. Held, that the permission attempted to be granted by the ordinance was not warranted by (be terms, intent, or fair interpretation of the act of (ith April, 1832. lb. Held, also, that the permission granted by the common council to the railway company was not maintainable as a lawful exercise of power granted to the com- mon council under the ancient Dongan and Montgomery charters, independent of any statutory grant or authority. lb. And in a case in Pennsylvania Commonwealth v. Central Passenger Railw., in. St. 506, where a proviso in the defendants 1 act of incorporation pro- hibited the company from using any railway, turnpike, or artificial road, with- out first obtaining the consent of the owners, it was held it could not use the paved Btreets of the city of Philadelphia without first obtaining the consent of the municipal authority. NATURE AND EXTENT OF STREET RAILWAY FRANCHISES. We have thought it proper to here insert the substance of our views on some of the questions just discussed, as contained in a report to the legislature of Massachusetts, upon the rights, duties, and interests of street railways in the Commonwealth, in January, 1865. THE PROPERTY RIGHTS OF THE COMPANY CONSIDERED. 1 / interest demands reasonable protection. '1. The legislature have power to impose a per- manent burden upon streets. 1 , ■ this is not to be assumed as matter of construction. 4. Devi [form. Generally held that • ill franchise exists in the ease- iiii ntfor the highway. Analogy of steam I railways do not increase the servitude of the highway. B M •' always be regarded, and treated, as a m "filn highway. 1 I tie or franchise of street railways, ■ner traffic. rther illustrated. 10. How far the legislature may affect the ex- clusiveness of this franchise. 11. Where compensation is required, no abridgment of right implied. 12. The franchise and property must remain subject to legislative and municipal control. 13. Some states allow additional land-dam- ages for change of grade of the street. 14. This is not demandable, unless the change is required for something in addition to highway, or unless given by special statute. 15-19. Summary of the argument under this head. 1. Wo shall now state, as briefly as practicable, and make it intelligible, the true nature- of the property of the companies in their locations, as we understand it, and uh.it further legislation, if any, is demanded on their behalf. During ing it was a good deal pressed upon our consideration, that some further provision of law was demanded, in order to render so large an amount of capital, * a- tint already invested in street railways, as secure as possible, its present inse- curity tending very unjustly and unnecessarily to depreciate its value in the [♦316] § 76. RIGHT TO OCCUPY HIGHWAY OR STREET. 329 market. There is great reason and justice in this claim, provided it can be done ■without too great infringement of other interests, or too great departure from the established policy of the law, in regard to such other interests. 2. We make no question of the right of the supreme legislative power of the Commonwealth to impose a permanent burden upon the streets and highways, throughout its limits, in favor of street railway companies. 3. But such a step is so much at variance with the general policy of states in this country, and everywhere, so far as we know, that it cannot be assumed, as matter of construction, upon any general and doubtful provisions of legislation. And we have felt it to be our duty to examine carefully into the legislation and decisions of the different states, in order to determine, if we could, the nature and extent of the franchise, or estate, of the street railway companies, conse- quent upon the grant of their charters and the location of their tracks. 4. In looking into these decisions, we find no uniformity, and no such view of the principles involved, as will be likely to result in the attainment of uniformity of decision, at least for many years to come. In a large number of the cases which have come before the courts, in the different states, it seems to have been assumed, as matter of course, that street railways, laid in the public streets and highways, become a part of the public easement in such streets and highways, and that the owners of the fee of the land covered by such railways, or the adjoining proprietors, have no claim for additional damages. And the same rule has been extended to steam railways, laid in the public streets and highways, in a majority of the states where the question has been decided. This we cannot regard as a sound principle, as to steam railways. For although they may be regarded, in a certain sense, as a public highway, for the passing and repassing of all persons who choose to avail themselves of the privilege, in that particular mode of travel, it is very obvious that they are, in no sense, a common highway for public travel, in the ordinary sense, or the ordinary mode. They do not admit of such communication along their line. They are confined to a single mode of communication, which is exclusively under the control of a private company, and they impose a servitude upon the land, for the exclusive benefit of this private company, as distinct, and as clearly an additional burden, from the easement for the ordinary highway, as a canal, or any other public work which it is possible to conceive. Hence, in the state of New York the Court of Appeals have reversed their former decisions, and now follow the English courts, and hold the owner of the fee, covered by a highway, entitled to addi- tional compensation, where a steam railway is laid either across or along its course. Some other states have of late taken the same view, and we feel con- fident that so reasonable* a doctrine must ultimately prevail throughout the country. It may be proper here to state, what will occur to any one, that while the track of the street railway is not, or should not be, an impediment to the use of the highway for ordinary vehicles, the rail of the steam road is required to be so constructed as to prove a very serious impediment to ordinary travel ; and there are other important grounds of distinction between the steam railways, as at present operated, and the street railways. * 5. In regard to street railways, therefore, the question is very different, as to creating an additional servitude upon the land. They are confined to the public highways; as a general thing, no alteration in grade is required. They are not [*317] 330 EMINENT DOMAIN. PART III. allowed to use such motive power as will seriously annoy other travellers, or the adjoining proprietors. The statutes, whether general or special, under which these companies have gone into operation, have been studiously drawn, with ial view to make this new mode of transportation inherent merely in the public easement of the highway. This has been done, probably, with the double purpose of escaping the payment of additional land damages, and at the same time to quiel the public mind as to any apprehension that the companies might ultimately sel up a claim for vested rights, which should prove to be beyond the control of the municipal authorities, or even of the legislature. 6. From the form of these grants, the manner of the construction and opera- tion of tin roads, and the early current of decisions upon the subject, no doubt entertained thai they would always be regarded and treated as a portion of, and inhering only in, the highway, and as creating no estate in the soil beyond that of the public easement for the highway. 7. This being assumed, the inquiry becomes nice, and somewhat difficult, as to what precise estate or interest is vested in the corporations. It is certain, we think, that the grant of an act of incorporation to a company for the purpose of constructing and operating a railway for the transportation of passengers, although located in and along the highway, is a franchise, and one of an exclusive char- acter, to some extent. The extent of the exclusiveness of a grant of this character, where no exclusive words are contained in the grant, must depend opon the reasonable and fair implications, to be gathered from the nature of the business, and other surrounding circumstances. And in a case of this kind, where the incorporation is exclusively for the purpose of transporting passen- atnl taking tolls, we think it must be regarded as a fair implication, from the very nature of the grant, the investment requisite to carry it into operation, and the necessity of avoiding competition in order to produce any adequate return, for the franchise must be considered as being exclusive of all similar transportation upon the same route, by mere private enterprise. It would be little short of. absurdity to suppose that it could have entered into the contem- plation of the legislature, or of the companies, that after obtaining their location, and after having erected and equipped their roads, at large expense, it was still competent for any person, natural or corporate, at his own mere option, to con- struct cars and divide the business, by running upon the same track laid by such company. 8. This will be more obvious by considering the nature of the business. It is not like ordinary mechanical or manufacturing business, which any one may institute at pleasure. A grant of incorporation, for such or any similar business, implies nothing exclusive in the conduct of the business. The franchise, in Buch a corporation, does not extend beyond the mere fact of acting in a corporate capacity, or being a corporation. That only is exclusive in the grant which is of a prerogative character, and requires the consent of the sovereign for its cre- «. If it were competent for any one to lay a passenger railway in the streets, at his own option, or if any one could obta : n such a right from the municipal * authority, or from any source except the legislature, then the grant of an incorporation for carrying on the business would not naturally be construed to xclude others from carrying on the same business, at the same place. And this was the view at first attempted to be maintained, as to street railways, i. e., [*318] § 76. EIGHT TO OCCUPY HIGHWAY OR STREET. 831 that the cities and towns might create them, by special grants, to individuals or companies. 9. But this view has long since been abandoned, and it is now entirely well settled that such a franchise in the highways can only be created by legislative grant. It is a franchise to carry passengers, and to demand tolls. This is one of the prerogatives of sovereignty, and only derivable through the action of the legislature. It must, therefore, in its very nature, be exclusive of all interference from any quarter subordinate to the authority from which it was derived. There can then, we think, be no question whatever, that the franchise of these street railway companies is exclusive of all competition, or interference in their business, except under the paramount authority of the legislature. See R. & D. Br. Itailw. v. Del. & Rar. Canal Co., 3 C. E. Green, 546. 10. It was indeed made a question before us, how far it was competent for the legislature even, after granting an exclusive franchise of this character to one company, to virtually repeal it, by permitting other companies to come upon the same track and do a competing business. This is one of those things, where the legislative power of a state may sometimes do that indirectly, provided they act in good faith (which is always to be presumed), which they could not do directly. For instance, it could not be claimed that the legislature, after creating such a franchise, could, by a direct act of legislation, either repeal the charter, or take away the right of compensation by way of tolls or fare. But they may, neverthe- less, allow other persons, either natural or corporate, to do a similar business in the same streets ; or to do it, upon the tracks of an existing company, by making compensation to the other company, whenever in their judgment the public good requires it. In the one case, the grant being wholly independent, is understood to be made because the amount of travel is supposed to require two such modes of conveyance ; and, in the other, the compensation is regarded as an equivalent for the use. 11. But where the legislature do not create a distinct company to do similar business along the same routes, it is fair to conclude that there is no purpose of abridging, or in any manner qualifying, the rights before conceded to the first company. And the mere permission of a branch road to come upon the track of an existing trunk route, where the object, whether for the transportation of its own passengers, or to take up and set down other passengers along the line of the trunk route, is not specifically defined, is not, ordinarily, to be so construed, as to effect an essential abridgment of the rights and interests of the trunk line. All reasonable implications should be made in the opposite direction, both upon the ground that the legislature must be presumed to intend to act with entire justice towards the company first chartered, and first investing capital upon the route, and also, upon the ground that the provision for compensation clearly shows that there was no purpose of abridging the rights of the first company, by allowing the second company to run its cars over the track of the former. 12. It is upon this ground that we have come to the conclusion already stated * in regard to compensation for the use of a trunk line by a branch company, when it diverts a portion of the traffic. But we cannot regard this rule of com- pensation, or the presumptions of law upon which it is based, as imposing any restrictions' upon the power of the legislature, *or that the general law of the Commonwealth or the Constitution of the United States restrains the legislature, [*319] EMINENT DOMAIN. PART III. ird to permitting subsequently chartered companies to come upon the track of other and older companies. From the very fact that the franchise of street railways i- made to exisl only in the public easement .of the highway, there arises I presumption, thai the use of such tracks was intended to remain for ever subject t" the control of the legislature, and that they could either control such use, by legislation, or make it subject to the absolute control of the municipalities. It does not seem to us possible for the companies to escape this state of uncer- tainty, so long as their franchise is vested only in the public easement of the highway, unless they can induce the legislature to give them exclusive and inde- pendent rights in the highway, by express grant; and it is doubtful whether even this would bind future legislatures. 18. A claim, for additional compensation to the abutters, has been maintained against such companies, in some states, wherever it becomes necessary to alter i le of the streets in laving the rails, in such a manner as to cause .special damage to such adjoining proprietors. But this, we think, unless allowed by special statute, is a virtual concession, that the laving a street railway may, in certain contingencies, prove an additional servitude upon the soil, requiring compensation beyond that of the easement for the highway; and if this proposi- tion be conceded, it will be impossible to escape the conclusion that the street railway is something distinct from the public easement of the highway. And if it be not a part of the same thing, and identical with it, then the owner of the f< I the land in which such easement exists, may always claim damages for the location of a street railway. But this is not the view of the rights of such com- panies which has generally been taken, or which we think sound. 14. On the other hand, if the street railway is only a part of the highway, inherent in the public easement, then no additional compensation to the land- owner is due, in consequence of any alteration in the grade of the street or highway, unless granted by special statute. That will be only one of those legitimate contingencies which were fairly within the range of the purposes for which the easement of the highway was originally taken, and which should have been taken into account, and is therefore presumed to have been taken into account, in estimating compensation to the land-owner in the first instance. For, in assessing damages for a highway, there must be taken into the judgment, not only the present injury, from building the highway in the first instance, but from all future and allowable alterations of the same. And this will embrace, not only the accommodation of the way to the present modes of ordinary travel and transportation, but to all such modes of travel and transportation as may er arise in the ordinary course of improvement, without extending it beyond the contemplated use of an ordinary highway. And if the street railway comes within this range, the fact that it is new, or that in some instances it may require to be accommodated with a different grade, to some extent, will be no ground for claiming additional compensation to the owner of the fee. This is ten true in laying a plank road over an ordinary highway, but we are not aware that any additional compensation is ever required, on that account, in e of laying a plank road upon an existing highway. So, too, in altering ide oi tie- highway, without introducing any change in the mode of construction, great injury may'occur to the abutters, and one not contem- plated, precisely in that form, at the time the land was taken; and still no [*320] § 76. RIGHT TO OCCUPY HIGHWAY OR STREET. 333 additional compensation can be claimed, or allowed, unless by statute, since it comes within the range of the purpose for which the land was originally taken. Each party assumes the risk of any change in the use, or its entire abandonment as a highway. In the one case no additional compensation can be claimed, and, in the other, there is no duty of refunding what has been already paid by way of damages. 15. We must, therefore, to sum up the results of the argument upon this point, conclude, that the street railway companies in the Commonwealth, by the grant of their charters, acquired a franchise of a prerogative character, not liable to be intruded upon, after the location and construction of their roads, except by authority derived from the legislature, or by virtue of some condition annexed either to the grant or the location. 16. But we think, so long as the grant is not exclusive in terms, it must be regarded as a fair implication, from the fact of the franchise residing only in the public easement of the highway, that the legislative authority of the Common- wealth has entire control of the use of such erections as are made by virtue of the first grant; and that it may, at any time, define such use by the public gen- erally ; and by natural or corporate persons, for transporting passengers for hire, by making compensation. And from the same view it must equally result, that i he legislature may delegate the control of this use to the municipal authorities. 17. And consequently Ave have not been able to devise any legal mode in which the property rights of these companies can, with propriety, so long as they exist only in the public franchise of the highway, be made more secure. The franchise is exclusive of all interference except by authority derived from the legislature, but it exists where its continuance is only at the will of others who have the legitimate control of the highways. 18. If it is taken or interfered with, by the authority of the legislature, for merely public uses, such as the greater accommodation of public travel, then no compensation is deinandable, since that is one of the conditions or contingencies upon which -the grant was accepted. But so far as this franchise is taken, or interfered with, for the advancement of private ends and enterprises, the first grantee is entitled to full compensation, as much as for any other property. 19. This, then, although an exclusive franchise, so far as the carrying of pas- sengers and taking tolls is concerned, is a mere estate at will, so far as the legis- lative power is concerned, or the general demands of the public interest may require, through the action of the municipal authorities. [*320] EMINENT DOMAIN. PART III. ♦SECTION XV. ( inflicting Bights in different Companies. • Zab. 624, it is held, that if the riparian owner have made improve- ments on the land below high water, so as to have reclaimed it, the part so re- claimed belongs to him, and cannot be granted by the state. And three of the judges, in the trial of this case, in the Court of Appeals, which consisted of nine judges, held that riparian owners have a vested right in the benefits and advan- tages arising from their adjoining the water, of which they cannot be deprived without compensation. But this case, although exhibiting great research and ability and considerable learning, is not altogether in accordance with the gen- eral current sf the decisions upon the subject, and is probably based upon the custom or usage which has prevailed to a great extent in some sections of this country from its first settlement, originally founded upon Colonial statutes prob- ably, and in others, perhaps, growing up by common consent, as a kind of local law. In a later ease, before the same court, Pat. & New. Railw. v. Stevens, 10 Am. Law Keg. (N. S.) 165, in a very elaborate and learned opinion by the < Ihief Justice, Beasley, it was decided, in conformity to the general law upon the subject, that the state is the absolute owner of the land below high-water mark, under all navigable water within its territorial limits, and such land can be granted to any purpose, either public or private, without making compensation to the owner of the shore. But a grant of a railway along the shore of such water, carries no implication of the right to use the lands of the state below the high-water line. Where the riparian owner on the Milwaukie river built a wh irf in front of his land projecting into the stream, it was held the city of Mil- waukie being empowered by statute to establish, along the shore of the river, [*323] § 78. ERECTIONS OVER NAVIGABLE WATERS. 337 3. But in tide-waters, and navigable lakes, the rights of the owner of land adjoining such waters, are subservient to the public rights, and are consequently subject to legislative control, and any loss the owner of such land may thereby sustain is damnum absque injuria.* 4. It seems to be considered, that the state legislatures have unlimited power to erect bridges and railways, and make any other public works across navigable waters, subject only to the para- mount authority of the national government. 5 dock and wharf lines, and to prevent encroachments upon such line, could not declare the plaintiff's wharf a nuisance on the ground of its encroaching upon the line established by the city ; that whether the riparian owner's title extended beyond the dry land or not, he had a right to build a wharf for his own and the public use, subject to such regulations as the legislature might establish, and that if the city deemed its removal necessary for the public good they should make compensation to the owner. Yates v. Milwaukie, 10 Wall. 497. 5 The People v. Rensselaer & Saratoga Railw., 15 Wend. 113 ; Bailey v. Phil. & Wil. Railw., 4 Harring. 389; People v. City of St. Louis, 5 Oilman, 351; Spooner v. McConnell, 1 McLean, C. C. 337 ; State of Pennsylvania v. Wheel- ing Bridge Company, 13 How. (U. S.) 518 ; Wilson v. The Blackbird Creek Marsh Co., 2 Pet. (U. S.) 245 ; Hogg v. The Zanesville Canal Co., 5 Ham. 410 ; United States v. The N. Bedford Bridge Co., 1 W. & M. 401 ; Atty.-Gen. v. Hudson River Railw., 1 Stockton, Ch. 526 ; Getty v. Same, 21 Barb. 617. In the case of Smith v. Maryland, 18 How. (U. S.) 71, it is held that the soil, in the shores of Chesapeake Bay, in the State of Maryland, below low-water mark, belongs to the state, subject to any prior lawful grants by the state, or the sovereign power, before the Declaration of Independence. But that this right of soil in the state is a trust, for the enjoyment by the citizens of certain public rights, among which is the common right of fishery ; that the state may lawfully regulate the exercise of this right, and declare vessels forfeit, for violations of regulations so established ; and that the exercise of such powers by the state is no infringement of the paramount authority of Congress, or of the exclusive admi- ralty and maritime jurisdiction of the United States courts. In the case of Milnor v. The Railway Companies, and Others v. The Plank- Road Companies, in New Jersey, before the Circuit Court of the United States, where it was sought to restrain the companies from bridging the Passaic River, below Newark, which had been erected into a port of entry by Congress, and had some foreign commerce, and some internal navigation, the following points were ruled by Mr. Justice Qrier, 6 Am, Law Reg. 6 : "A court of the United States has no jurisdiction to restrain, by injunction, the erection of a bridge over a navigable river lying wholly within the limits of a particular state, where such erection is authorized by the legislature of the state, though a port of entry has bem created by Congress above the bridge. Dicta, in Devoe v. Penrose Ferry Bridge Co., 3 Am. Law Reg. 83, overruled; and, in Pennsylvania v. Wheeling Bridge Co., 13 How. (U. S.) 579, explained. The point overruled by the learned vol. i. 22 [*323] 338 EMINENT DOMAIN. PART III. The Commonwealth of Massachusetts has no interest in Ihts where the tide ebbs and flows, which it is necessary to have judge is thus stated by him : " That although the courts of the United States cannot Danish, by indictment, the erection of a nuisance on our public rivers, erected by authority ol a state, yet that as courts of chancery they may interfere at the mce of an individual or corporation who are likely to suffer some special injury, and prohibit, by injunction, the erection of nuisances to the navigation of the great navigable rivers leading to the ports of entry within a state." 3 Am. Law Reg. p. 83. The following extract from the opinion gives the point of the decision : " The Passaic River, though navigable for a few miles within the State New Jersey, and therefore a public river, belongs wholly to that state; it is no highway to other states, no commerce passes thereon from states below the bridge to states above. Being the property of the state, and no other state having any title to interfere with her absolute dominion, she alone can regulate the harbors, wharves, ferries, or bridges, in or over it. Congress has the ex- clusive power to regulate commerce, but that has never been construed to include the means by which commerce is carried on within a state. Canals, turnpikes, bridges, and railways are as necessary to the commerce between and through the pal states, as rivers. Yet Congress has never pretended to regulate them. When a city is made a port of entry, Congress does not thereby assume to regu- late its harbor, or detract from the sovereign rights before exercised by each state over her own public rivers. Congress may establish post-offices and post- roads ; but this does not affect or control the absolute power of the state over its highways and bridges. If a state does not desire the accommodation of mails at certain places, and will not make roads and bridges on which to transport them, (Cngress cannot compel it to do so, or require it to receive favors by compulsion. Constituting a town or city a port of entry, is an act for the con- venience and benefit of such place, and its commerce; but for the sake of this benefit the constitution does not require the state to surrender her control over the harbor, or the highways leading to it, either by land or water, provided all citizens of the United States enjoy the same privileges which are enjoyed by her own. •• Whether a bridge over the Passaic will injuriously affect the harbor of New- ark, is a question which the people of New Jersey can best determine, and have a rijilit to determine for themselves. If the bridges be an inconvenience to pa and schooners navigating their port, it is no more so to others than to them., 1 see no reason why the State of New Jersey, in the exercise of her absolute sovereignty over the river, may not stop it up altogether, and establish the harbor and wharves of Newark at the mouth of the river.' It would affect the rights of no other state. It would still be a port of entry, if Congress chose 90. Such action would not be in conllict with any power vested in Congress. A state may, in the exercise of its reserved powers, incidentally affect subjects intrusted to Congress without any necessary collision. All rail- ways, -aiiab, harbors, or bridges, necessarily affect the commerce not only within a state but between the states. Congress, by conferring the privilege of rl of entry upon a town or city, does not come in conflict with the police power of a state exercised in bridging her own rivers below such port. If the [*324] § 78. ERECTIONS OVER NAVIGABLE WATERS. 339 * appraised, under the statute, when such land is taken, as appurte- nant to the upland, for the purpose of building a railway. 6 And power to make a town a port of entry includes the right to regulate the means by which its commerce is carried on, why does it not extend to its turnpikes, railways, and canals, to land as well as water? Assuming the right (which I neither affirm nor deny) of Congress to regulate bridges over navigable rivers below ports of entry, yet, not having done so, the courts cannot assume to them- selves such a power. There is no act of Congress or rule of law which courts could apply to such a case. It is possible that courts might exercise this discre- tionary power as judiciously as a legislative body, yet the praise of being ' a good judge 1 could hardly be given to one who would endeavor to ' enlarge his juris- diction ' by the assumption, or rather usurpation, of such an undefined and dis- cretionary power. " The police power to make bridges over the public rivers is as absolutely and 6 Walker 'v. Boston & M. Railw., 3 Cush. 1; s. c. 1 Am. Railw. C. 462. Under a colonial ordinance o 1647, of Massachusetts, the flats on creeks, coves, and arms of the sea, where the tide ebbs and flows, to the extent of one hundred rods, are appurtenant to the upland, and the owners of the adjoining land have an estate in fee therein, subject to the right of the Commonwealth, for making public erections, which is paramount, and subject also to such restraints and limitations of the proprietors 1 use of them, as the legislature may see fit to impose for the preservation and protection of public and private rights. Com- monwealth v. Alger, 7 Cush. 53. And a similar custom or usage prevailed to some extent in some of the other American colonies, traces of which will be found in some of the more recent decisions in those states, which have succeeded them. The question of the right of riparian owners along the margin of the sea, where the tide ebbs and flows upon sea flats, in the State of Massachusetts, is more extensively and more learnedly discussed in Commonwealth v. Roxbury, 9 Gray, 451, and the reporter's note, by the present Mr. Justice Gray of the Supreme Judicial Court, than in any other place within our knowledge. The leading propositions decided by the case, are : 1. The Commonwealth is the owner in fee of all channels, lands, and flats below low-water mark, and more than one hundred rods below high-water mark. 2. The charter of the colony of Massachusetts conveyed to the grantees all public and private rights in the sea-shore between high and low water mark, without express words. 3. An order of the General Court, that all the ground lying between two towns shall belong to one of them, conveys no right, more than one hundred rods below high-water mark. 4. An act granting permission to a mill corporation to exclude the tide-waters from a portion of the flats, and use it as a basin for the purposes of a mill power, does not release the title of the Commonwealth to such flats. 5. An act defining the boundary between two towns, and recognizing some deviations from the original or natural boundary, and some exchanges of terri- tory, will not imply any relinquishment of title on the part of the Commonwealth. [*325J EMINENT DOMAIN. PART III. ■ the owner haa the right to raise such flats, by filling up, if he is compelled to do more filling up to secure free access to other jted in a state as the commercial power is in Congress; and no in arise as to which is bound to give way, when exercised over the Bubject-matter, till a case of actual collision occurs. This is all that was decided in the ease of Wilson v. The Blackbird Creek, &c. , 2 Peters, (U.S.) 245. Thai case has been the subject of much comment, and some misconstruction. It was never intended as a retraction or modification of any thing decided in Gibbons ,-. Ogden, or to deny the exclusive power of Congress to regulate commerce. Nor does the Wheeling Bridge case at all conflict with either. The case of Wilson v. The Blackbird Creek, &c, governs this, while it has nothing in com- mon with tliat of the Wheeling Bridge." Ami where the legislature of the Colony of New Jersey, at an early day (1760), I an act to enable the owners of meadows along a small creek emptying into the Delaware River, and into which the tide ordinarily flowed for about two miles, to support and maintain a dam, to shut out the tide from the creek, for the purpose of draining such meadows; and enacted that said bank, dam, and all other waterworks already erected, or which should thereafter be found neces- sary to be erected, for the more effectual preventing the tide from overflowing the tnea lows lying on the said creek, should be erected, supported, and main- tained at the equal expense of all the owners and possessors of the meadows, defining the limits up the creek; and provided the manner in which the natural watercourse of the creek should be kept clear, and for the election yearly, by all the land-owners, of two managers, empowered to assess the owners or occu- piers ui such meadows, as they should deem necessary for repairing and main- taining the dam ; and the act had been accepted by the owners of the meadow, managers elected, and the dam repaired, under the provisions of the act, and a large amount expended, from time to time, after the passage of the act; and where the legislature in the year 1854 passed an act, declaring this creek to be a public highway in all respects, as fully as it was before the erection of such dam, and empowering the municipal authorities to remove the dam, and open the navigation : It was held, upon a bill filed in equity to restrain the committee of the township from performing this duty, so imposed upon them: That the lature had the right to make the grant, there being nothing to show that the public interest demanded the navigation of the creek; That it does not follow, that every creek or rivulet, into which the tide ebbs and flows, is to be regarded a> navigable water, in such sense as to be beyond the control of the legislature, t as a public highway; and the legislature is the sole judge, to determine when such streams shall be considered navigable rivers, and be maintained and protected as Buch ; that the act of 1760 did not only authorize the owners of the meadows to continue the dam, but it gave the authority of the state to compel mtinuance; that the act of 1854 was in violation of the United States Con- ■ inhibiting the several states from passing laws impairing the obligation ntracts. That it was a virtual repeal of the former act, under which rights had become vested, and valuable property acquired; That the act of 1854 was also rnanl to the constitution of the state, as a taking of private property for pubhe use, without just compensation; a partial destruction or diminution of the [*326] § 78. ERECTIONS OVER NAVIGABLE WATERS. 341 * lands, by reason of the construction of a railway, it is proper to be considered by the jury in estimating land damages to such owner. 7 But the owner of a tide-mill has no right to have such riparian flats, as lie owns, kept open and unobstructed for the free flow of tide-water to his mill. 6. The adjoining owners of such flats in Massachusetts have the right to build solid structures to a certain extent, and thus obstruct the ebb and flow of the tide, if in so doing they do not wholly obstruct the access of other proprietors to their houses and lands ; and if the mill-owner and other proprietors suffer damage therefrom, it is damnum absque injuria? " Therefore," say the * court " so far as the railroad erected by the legislature affected the right of the claimants to pass and repass to and from their lands and wharves with vessels, it was a mere regulation of a pub- lic right, and not a taking of private property for a public use, and gave no claim for damages." 7. The grant of a railway " to the place of shipping lumber " on a tide-water river, justifies an extension across flats and over tide- water to a point at which lumber can be conveniently shipped. 9 8. In a case in the House of Lords, 10 it was held, that where a statute authorizes a company to construct certain works, as a har- bor, it is to be presumed they were to have power to execute all works incidental to their main purpose, and which they deem nec- essary, provided they act bona fide. 9. Accordingly, when public trustees for improving the naviga- tion of the Clyde were authorized by statute to acquire lands adjoining the river, and to construct a quay, or harbor, and having acquired part of A.'s land, proposed to erect a large goods-shed fronting the river, and between the rest of A.'s land and the river, value of property, being to that extent, a taking. Glover v. Powell, 2 Stock- ton's Ch.. 211. 7 Commonwealth v. Boston & Maine Railw., 3 Cush. 25 ; s. c. 1 Am. Railw. C. 482; Fitchburg Railw. v. Boston & Maine Railw., 3 Cush. 58; s. c. 1 Am. Railw. C. 508. 8 Davidson v. Boston & M. Railw., 3 Cush. 91; s. c. 1 Am. Railw. C. 534; s. p. Stevens v. Pat. & Newark Railw., 5 Vroom, 532. 9 Peavy v. The Calais Railw., 30 Maine, 498; s. c. 1 Am. Railw. C. 147. See also Babcock v. Western Railw., 9 Met. 553 ; s. c. 1 Redf. Am. Railw. Cases, 191. So the grant of a railway between certain termini, which line passes over navigable rivers, authorizes the company to bridge such rivers. Attorney-Gen. v. Stevens, Saxton, Ch. 369. 10 Wright v. Scott, 34 Eng. L. & Eq. 1 ; ante, § 63. [*327, 328] EMINENT DOMAIN. PART III. it was held, thai although the statute gave no express power to arect Bueds, it must be presumed that a harbor, equipped with all the inosi approved appliances for trade, was intended by the iture, and that therefore a power to erect sheds was im- plied. 10 1". An interesting case 11 has been determined by the * Supreme Court of Iowa, in regard to the important question, to what extent the large rivers in this country, as the Mississippi, are to garded as navigable waters, above where the tide ebbs and flows. 11. It is there held, that all waters are to be regarded as navi- gable, above where the tide ebbs and flows, which are of common use to all the citizens of the republic for purposes of navigation, or thai navigability, in fact, is to be regarded as the decisive test, rather than the ebb and flow of the tide. And it is here main- tained, that the acts and declarations of the United States con- stitute the Mississippi a public highway, and that consequently the riparian proprietors have no interest in the lands below high-water mark. 12. And where one, upon the shore of a navigable stream or arm of the sea, is cut off by a railway or other public work from all communication with the navigation, to the injury of wharves or other erections which the party made upon his land, it has been 11 McManus v. Carmichael, 5 Am. Law Reg. 593. It is maintained in this case, with <:reat labor and research, that a large number of the states have adopted similar views in regard to their large rivers. See also Bowman v. Wathen, 2 McL< aii's C. C. 376, where the learned judge of that circuit thus lays down the law, in regard to the shores of the Ohio River: "On navigable streams the ripa- rian right we suppose cannot extend generally beyond high-water mark. For certain purposes, such as the erection of wharves and other structures for the convenience of commerce, and which do not obstruct the navigation of the river, it ina\ be exercised beyond this limit. But in the present case this inquiry is not important. It is enough to know that the riparian right on the Ohio River extends to the water, and that no supervening right over any part of this space can be exercised or maintained without the consent of the proprietor. He has the right of fishery, of ferry, and every other right which is properly appurte- nant to the Boil. And lie holds every one of these rights by as sacred a tenure as be holds the land from which they emanate. The state cannot, either directly or indirectly, divot him of any one of these rights, except by a constitutional the power to appropriate private property for public purposes. And any acl of the Btate, short of such an appropriation, which attempts to transfer any of these rights to another, without the consent of the proprietor, is inopera- al-o Lehigh Valley Railw. v. Trone, 28 Penn. St. 206. [*329] §78. ERECTIONS OVER NAVIGABLE WATERS. 343 held that such person is entitled to damages under the statutes allowing parties compensation where their estate is " injuriously affected." 12 13. And it seems to be regarded as settled, that where the grant of any authority, by the state legislature, in regard to naviga- ble waters, in its exercise works an interference with the exclusive power of Congress to regulate commerce, whether foreign or in- ternal, such interference being unlawful is a nuisance, and any private person suffering special damage thereby is entitled to an action at law, or to maintain a bill in equity for a perpetual injunc- tion. 13 * 14. The questions are very numerous which have arisen in re- gard to the conflicting rights of different grantees affecting fran- chises and easements of different kinds. In a case in New Hamp- shire, 14 some questions affecting the construction of grants, and reservations of this kind, are very extensively discussed. 15. It seems to be well settled, both in England and in this country, that if there is no legal authority for the erection of a pier in a navigable river, such erection will become a nuisance per se, and that no evidence can be received to show that although 12 Bell v. Hull & Selby Railw., 6 M. & W. 699. 13 State of Pennsylvania v. Wheeling Bridge Co., 13 How. (U. S.) 518 ; s. c. 18 id. 421. The same principle is recognized in other cases. Works v. Junction Railway, 5 McLean (C. C), 425 ; United States v. Railroad Bridge Co., 6 id. 517. When the case of Pennsylvania v. Wheeling Bridge Co., was last before the court, it was held, that the paramount authority of Congress, in the regulation of com- merce, included the power to determine what was an obstruction to navigation. And Congress having legalized the bridge of defendants, after the judgment of the court to abate it, but before it was carried into effect, it was held, that the occasion for executing the judgment was thereby removed. Mr. Jus- tice Nelson, p. 432, thus lays down the law, as to streams under state control : "The purely internal streams of a state, which are navigable, belong to the riparian owners to the thread of the stream," and they have a right to use them, " subject to the public right of navigation." " They may construct wharves or dams or canals, for the purpose of subjecting the stream to the various uses to which it may be applied, subject to this public easement. But if these structures materially interfere with the public right, the obstruction may be removed or abated as a public nuisance." " These purely internal streams of a state, as to the public right of navigation, are exclusively under the control of the state legislature." And although erections authorized by grant from the state legis- lature cause " real impediment to the navigation," they are nevertheless lawful and the riparian owner has no redress. See also Morgan v. King, 18 Bai-b. 277. 14 Goodrich v. Eastern Railw. Co., 37 N. H. 149. [*330] : , I } EMINENT DOMAIN. PART III. illegal it will do no harm, that question being wholly imma- terial 1 •;. Where the act of Congress, laying out the city of Burlington, [owa, reserved a strip of land along the bank of the Mississippi River, for ever used for a highway and other public uses, and, after the Bale of lots abutting upon the reservation, Congress released its tit I.' to the city, it was held that the dedication of the strip of land was a contract, and could not be repealed, or revoked ; and that the title of the city was subject to the original conditions of the reser- vation: and that the accretions from the river were the same as the rest of the strip ; that adjoining land-owners had such an interesl that they could restrain the city from applying the land to private uses ; but that it might be applied to the uses of a rail- way, for any such purposes as would justify the exercise of the right of eminent domain. 16 SECTION XVII. O/'struction of Streams by Company's Works. . without compensa- pany liable for defective construction. 3. So also if they use defective ivories, built by others. '. ' ipany liable to action, where mandamus 4, it is held, that in order to recover damages of the "eontinu- ator of a private nuisance, originally erected by another," there must be proof of a request to remove the same. But where a railway company bought up a navi- :i company, and suffered the works of that company to fall to decay, so that damage was suffered by a municipal corporation, in regard to their harbor, it was held the company were liable ; although only a nonfeasance in form, it operated st .mtially as a misfeasance, they having maintained and used the locks of the navigation company in such a state as to cause the injury. Preston v. Eastern I Law Times, 288; s. c. nom. Preston v. Norfolk Railw., 2 II. & X. . '• Lawrence v. Great Northern Railw., 4 Eng. L. & Eq. 265; s. c. 16 Q. B. •■ . C. 656. heater White Lead Co. v. The City of Rochester, 3 Comst. 463. See Radcliff v. Brooklyn, 1 Comst. 195; .Mayor of New York v. Furze, 3 Hill, '.1:.' ; Bailey p. .Mayor of New York, 3 Hill, 531. ! r. Southeastern Railw., 16 C. B. 550; s. c. 32 Eng. L. & Eq. 366. ir a full statement of this case. But there is no liability in- curred towards a mill-owner below, by cutting off springs, in sinking wells upon one's own land. I basemore v. Richards, 2 H. & N. 168; s. c. 29 Law Times, [*33J] § 79. ERECTIONS OBSTRUCTING STREAMS. 347 Hudson River, on the margin of a bay, under a charter from the state, in 1849, and the Hudson River Railway, in pursuance of its charter, granted in 1846, constructed their road across the bay, on piles, about nineteen hundred feet west of the dock, with a drawbridge sufficient to allow a passage to such vessels as had before navigated the bay, the charter of the railway containing a provision, that if any dock shall be " cut off" by the railway, the company shall extend the same to their road, it was held that this dock was not " cut off" within the meaning of the provision. 9 7. And under the New York statute, and the same rule would probably apply in other states, a railway company which is com- pelled to divert a stream of water in the construction of its road is bound not only to restore it, as nearly as practicable, to its former state, but also to maintain it there, since the mere restoration of the stream may not leave it as secure as before. 10 8. But surface water produced by the excavation in building the railway is not to be regarded in the same light as water con- fined to a natural channel, and in such case the company will be * liable to an action for turning it upon the land of an adjoining proprietor, unless that becomes indispensable in order to maintain the railway, and is done in a manner to do the least injury to the land-owner. 11 9. In an English case, 12 before the Lords Justices on appeal, where the defendants had obtained parliamentary powers to take the water from certain springs, being the feeders of a river upon which mills and shops were in operation, upon building a compensation reser- voir to supply the deficiency caused by such diversion, by saving the waters at flood-tide for use in dry times ; and where they had built such reservoir, and one of the riparian owners complained against them for fouling the water and rendering it so muddy, by reasou of the reservoir, as to make it unfit for use in his dyeing estab- lishment, and praying for an injunction against the defendants, it was held their parliamentary powers gave them no right to foul the water, and consequently they were liable to an action. 10. It was further held that this was a proper case for a court 9 Tillotson v. Hudson River Railw., 15 Barb. 406. 10 Cott v. Lewiston Railw., 36 N. Y. 214. 11 Curtis v. Eastern Railw., 14 Allen, 55. 12 Clowes v. The Staff". Potteries Water-Works Co., 21 W. R. 32. [*333] 348 EMINENT DOMAIN. PART III. nity to interfere by way of injunction: 1. On the ground of Baving a multiplicity of actions: -J. On the ground that the court will always restrain a public company from exercising their statu- tory powers in such a manner as to interfere with the rights of others. SECTION XVIII. Obstruction of Private Ways. action of private way, matter of fact ; '-'. / / on one's own land, not 3. But railway may lawfully pass alomj pub- lic street. 1. Where the statute gives a right of action against the company, when in the construction or management of their road they shall obstruct the safe and convenient use of a private way, it was h.'ld not necessary to the maintenance of the action that lilway should be constructed or managed in an illegal and improper manner. 1 But if the railway be shown to have been constructed and managed in a proper manner, and a passage over the railway provided for the private way, the court cannot decide, as matter of law, whether the safe and convenient use of the way is obstructed or not. That is a question of fact to be settled by the jury. 2 2. But a farm road, which the owner of the land has constructed for the convenient use of his farm, is not to be regarded as a private way, within the meaning of a railway act. 3 A private way, within the construction of the railway acts, is a way, or right of way, which one man has in the land of another. 4 The owner of a ly, for the purpose of recovering penalties for its obstruc- tion, is the person who, for the time being, owns such road in pos- ii." 1 »rd Railw. v. Greely, 23 N. H. 237. . Wilton Railw., L ; :i N. H. 261. ' i Boston, Concord, & Montreal Railw., 21 N. II. 114; s. p. Old C. & X. Railw., in;; Mass. 1. mpsic River Railw., Vermont Sup. Court, not reported. ■ Mann v. Great & Western Railw., 9 Ir. Com. Law Rep. 105.' §81. STATUTE REMEDY EXCLUSIVE. 349 3. But it has been held, u that, where the plaintiff's right of way * in another's land was obstructed by the passage of a railway through the streets of a town, in accordance with their charter, no action for damages could be maintained, and that the party could have no redress, unless his case came within the provisions of the statute allowing compensation. SECTION XIX. Statute remedy Exclusive. 1. Remedy for land taken, exclusively under the statute. 2. But if company do not pursue statute are liable as trespassers. Liable for negli- gence also. 3. Courts of equity often interfere by injunc- tion. 4. Important case in the House of Lords. 5. Right at law must be first established. 6. Where statute remedy fails, common-law remedy exists. 7. The general rule adhered to in America. 8. Company adopting works responsible for amount awarded for land damages. § 81. 1. It seems to be well settled, notwithstanding some ex- ceptional cases, that the remedy given by statute to land-owners for injuries sustained by taking land for railways, is exclusive of all other remedies, and not merely cumulative. 1 8 McLaughlin v. Charlotte & S. C. Railw., 5 Rich. 583. But this decision seems to rest upon the peculiar views of this state upon that subject, that it is lawful to take private property for public use without compensation, their state constitution containing no provision upon the subject. But the reported cases in this state, from the first, Dun v. City Council of Charleston, 1 Harper, 189 (182-i), manifest a scrupulous regard to the rights of property owners, when attempted to be interfered with for other than strictly public purposes. And we are not aware that practically, and as a general thing, the legislature of this state have exercised the theoretical right which it possesses, of taking private property for public use without compensation. We believe that is not the fact. 1 East and West India Dock & Birmingham Junction Railw. Co. v. Gattke, 3 Mac. & Gor. 155 ; s. c. 3 Eng. L. & Eq. 59 ; Watkins v. Great Northern Railw. Co., 16 Q. B. 961 ; s. c. 6 Eng. L. & Eq. 179 ; Kimble v. White Water Valley Canal, 1 Carter, 285 ; Knorr v. Germantown Railw. Co., 1 Wharton, 256 ; Mason v. Kennebec & P. Railw. Co., 31 Maine, 215 ; s. c. 1 Am. Railw. C. 62 ; McCor- mack v. Terre Haute & Richmond Railw., 9 Ind. 283. But in Carr v. The Georgia Railw. & Banking Co., 1 Kelly, 524, it was held, the statute remedy was not exclusive, but merely cumulative. This case professes to go upon the authority of Crittenden v. Wilson, 5 Cowen, 165, where it was held, that the party whose lands had been overflowed, by means of a dam erected by the [*334] EMINENT DOMAIN. PART III. ' J. Bui if the railway company have assumed to appropriate tli.- land, in violation of the provisions of the statute to be complied with on their part, their acts are ordinarily to be regarded as tres- passes; and where they have acquired the right to the use of the [and, bul have omitted some duty imposed by the statute, or where they have beeD guilty of negligence, or want of skill, in the exer-. authority of the legislature, which contained a provision for estimating damages to land-owners injured thereby, — might maintain an action as at common law. decisions go upon the principle, found in some of the elementary books, that ;i statutory remedy for what was actionable at common law is prima facie irded as cumulative merely. It seems now to be the generally received opinion upon this subject, that the statutory remedy, being more ample and more specific, is ordinarily to be regarded as exclusive. But the settled differ- of opinion, among the judges of the Queen's Bench upon the subject, in Kennetl Nav. Co. v. Withington, 18 Q. B. 531; s. c. 11 Eng. L. & Eq. 472, shows that the matter is not quite settled in that country. The learned editors of the American Railway Cases have an able and very satisfactory note upon this subject in which most of the authorities bearing upon the point are thoroughly revised. 1 Am. Railw. C. 1G6, 167, 168, 169, 170, 171. In Aldrich v. The Cheshire Railw., 1 Foster, 359; 8. c. 1 Am. Railw. C. 206, it is held, that the statute remedy is exclusive of all others. So also in Troy v. The Cheshire Railw., 3 Foster, 83, it is held, that the statute remedy must be followed, as far as it extends, but if it only extend to part of the injury occasioned, the party may have his action at common law for the residue. But where a railway company are ordered to make and maintain a private way, for the benefit of a party, and fail to comply, the appropriate remedy is the one pointed out in the statute. White v. Boston & Prov. Railw., 6 Cush. 420. And where the statute provides no specific remedy in such a case, an action on the case will lie probably upon general principles. In an English case, Ambergate, Nott. & Boston & E. J. Railw. v. Midland Railw., 2 EL & Bl. 823; 8. c. 22 Eng. L. & Eq. 289, where the statute gives a penalty for one company running its engines upon the track of another company, without tirst having obtained the requisite certificate of approval of the engines by the second company, it was held, that this did not take away the common-law right of seizing the engines, while upon their track, damage feasant. And hav- ing made the distress upon the engine, while so unlawfully on their track, and the first company having demanded its surrender, after it had been removed off" the defendant's line, with the declared purpose of using it again in the same way; thai such demand was illegal, and the defendants justified in not acceding to it. See also, in confirmation of the general proposition of the text, New Albany & Salem Railw. v. Connelly, 7 Porter find.), 32; Leviston v. Junction Railw., id 597 ; Lebanon v. Olcott, 1 N. H. 339; Victory v. Fitzpatrick, 8 Ind. 281. See, also, Colcough v. The Nashville & N. W. Railw. Co., 2 Head, 171 ; Brown v. Beatty, 34 Miss. 227; Indiana Central Railw. Co. v. Oakes, 20 ind. 9. [*335] §'81. STATUTE REMEDY EXCLUSIVE. 351 cise of their legal rights, they make themselves liable to an action upon the case at common law. 2 * 3. And the courts of equity will in many cases interfere by in- junction , where railway companies are proceeding to take land contrary to the provisions of the act of parliament. 3 4. In the House of Lords, in one case, 4 this principle is very extensively discussed, although not arising in the case of a rail- way, or where the land itself was proposed to be taken. But here the injury complained of was, that the company's works, in the manner in which they had been carried on, rendered the re- spondent's land useless. This was done by means of the gas 2 Watkins v. Great Northern Railw. Co., 12 Q. B. 961 ; s. c. 6 Eng. L. & Eq. 179 ; Dean v. Sullivan Railw. Co., 2 Foster, 316 ; s. c. 1 Am. Railw. C. 214; Mayor of Lichfield v. Simpson, 8 Ad. & Ellis (N. S.), 65; Furniss v. Hudson River Railw. Co., 5 Sandf. S. C. 551; Turners. Shef. & Rotherham Railw., 10 M. & W. 425. In this last case, the injury complained of was the obstruction of ancient lights by the erection of the company's station-house, done under the act; and the dust, &c, drifted from the station-house and embankment into the plaintiff's house. The plaintiff's house not being upon the schedule attached to the bill, the company had no right under the act to take it, or injuriously to affect it. So that the parties stood as at common law. See also Shand v. Henderson, 2 Dowl. P. C. 519 ; Davis v. London & Blackwall Railw., 2 Scott, N. R. 74; s. c. 2 Railw. C. 308. 3 Sto,ne v. Commercial Railw., 9 Sim. 621; s. c. 1 Railw. C. 375 ; Lord Chancellor in Manser v. N. & E. Railw. Co., 2 Railw. C. 380, 391; Priestly v. Manchester & L. Railw. Co., 4 Yo. & Col. Ex. 63; s. c. 2 Railw. C. 134; London & Birmingham Railw. Co. v. Grand Junction Canal Co., 1 Railw. C. 221. In this case, as well as the next preceding, it is said the company is to be the judge of the most feasible mode of carrying forward its own operations, and is not liable to be called to account for the exercise of this discretion, so long as they act bona fide, and with common prudence. But it affords no just ground of equitable interference, that the special tribunal, provided by statute to have exclusive jurisdiction of certain claims, is altogether incompetent to decide such questions as naturally arise. If any such defect exists, the legislature alone can afford redress. Barnsley Canal Co. v. Twibill, 7 Beav. 19 ; s. c. 3 Railw. C. 471. Nor is the land-owner entitled to maintain a common-law action, because he refused to join in the proceedings under the statute, the company having pro- ceeded ex parte, and caused an appraisal, and deposited the sum awarded for compensation. Hueston v. Eaton & H. Railw., 4 Ohio (N. S.), 685. See also The Western Maryland Railw. Co. v. Owings, 15 Md. 199 ; Sturtevant v. Milw. Wat. & B'. Railw. Co., 11 Wis. 61; Powers v. Bears, 12 Wis. 213; Davis v. La Crosse & Milw. Railw. Co., id. 16; Burns v. Milw. & Miss. Railw. Co., Wis. 450. 4 Imperial Gas Light & Coke Co. v. Broadbent, 7 Ho. Lds. 606 ; s. c. 5 Jur. (N. S.) 1319. [*336] EMINENT DOMAIN. PART III. iping from the company's works deadening the life of vegeta- tion, the respondent being a market gardener. The respondent had brought an action against the company for the nuisance, which by agreement, upon the suggestion of the court, had been referred to an arbitrator, who had reported damages, as having accrued in the mode complained of, to a considerable extent. ' Til company were now proceeding to make a very extensive ad- dition to their works, when the respondent obtained an injunction against them, which, upon final hearing before the Chancellor, assisted by the common-law judges, had been made perpetual, 6 and the question was then appealed by the company into the House of Lords. • . It was here held, affirming the decision below, that in such • the plaintiff in equity cannot claim a perpetual injunction, until his right is first established at law. But this was sufficiently done in the present case, by the award of the arbitrator. But after the right is once established at law, it is the province of the equity judge to determine how far the cause of complaint may have been removed by any subsequent alteration of the works ; and this ques- tion will not be referred to a trial at law. • '.. It was also held here that the respondent had no remedy under the statute, and consequently, although such statutory remedy to its extent was necessarily exclusive of all others, yet where the wrong done is not authorized by these powers, the com- mon-law right of action still remained. 6 7. The general principle that the statute remedy, as far as it extends, is exclusive, seems to be universally adhered to in the American courts, with slight modifications, some of which are, and some are not, perhaps, entirely consistent with the mainte- nance of the general rule. 7 3. It was held in one case, where the land damages had been 38ed under the statute, and judgment rendered for the amount nst the company, that a subsequent company, formed by the -. i before V. C. Wood, 2 Jur. (N. S.) 1132; before the Chancellor, 3 id. 221. lie following eases cited in argument: Hole v. Barlow, 4 C. B. (N. S.) imey-General c The Sheffield Gas Consumers' Co., 3 De G., M. & G. 304 : Sam- >. \i, 1,,,1. 16 Vesey, 338 ; Wynstanley v. Lee, 2 Swanst. 333 ; Haines v. Taj lor, 10 Beav. 75. 7 Pettibone v. La Crosse & Milw. Railw. Co., 14 Wis. 443 ; Vilas v. Milw. & Miss. Railw. Co., 15 id. 233. §82. LANDS INJURIOUSLY AFFECTED. 353 mortgagees of the first company, were responsible for the amount of such judgment, if they continued to operate the road and use the right of way for which the judgment was rendered. 8 But this seems a considerable stretch of construction, although eminently just and reasonable. ♦SECTION XX. Lands injuriously affected. 1. Obstruction of way, loss of custom. 2. Equity will not enjoin legal right. 3. Liable for building railway, so as to cut off wharf. 4. Not liable for crossing hicjhicay on level. 5. English statute only includes damages, by construction. 6. Equity icill not enjoin a doubtful claim. 7. Damages unforeseen, at the time of the appraisal, may be recovered, in Eng- land. 8. Injuries to ferry, and towing path, com- pensated. 9, 10. Remote injuries not ivithin the statute. 11. Damages compensated, under statute oj Massachusetts. 12. Damages not compensated, as being too remote. 13. For negligence in construction, remedy at common law. 14. Or neglect to repair. 15. Recovery under the statute, Sfc. 16. Possession by railway, notice of extent of title. 17. Rcdlways have right to exclusive posses- sion of roadway. § 82. 1. The right of a party to claim consequential damages, where his land was not taken, but only injuriously affected, was very thoroughly discussed by Lord Truro, Chancellor, in one case, 1 where the defendant, a furrier, claimed damage, in conse- quence of the dust and dirt, occasioned by the company, having injured his goods, and that his customers had been compelled, by the obstruction caused by the company's works, to quit the side of the road upon which the defendant's shop was situated, before they arrived at that point, and cross the street to get along, by reason whereof he had lost custom. The defendant also claimed that the company had obstructed a passage to his buildings, by which he had an entrance to the back part of his premises. The Lord Chancellor considered that if the party had any claim for compensation it was to be procured under the statute and esti- mated by the sheriff's jury, and dissolved the injunction. It 8 Pfeifer v. Sheboygan & Fond du Lac Railw. Co., 18 Wis. 155. 1 East & W. I. Docks & Birmingham Junction Railw. Co. v. Gattke, 3 Mac. & Gor. 155 ; s. c. 3 Eng. L. & Eq. 59. vol. i. 23 [*338] 85 I EMINENT DOMAIN. PART III. us now to be settled by the decision of the House of Lords (Rickett r. .Metropolitan Railway), that unless the injury is of Midi a nature as to be actionable aside from the statute, it will not ei, tit Ic the party to compensation under the statute, and that interruption of business therefore, by making access more incon- venient, will not entitle the party to such compensation. 2 But where the ■ works of a railway diminish the light of premises, although the pecuniary value of plaintiff's interest is not diminished, property in the neighborhood generally having advanced in price, the owner is entitled to compensation. 3 Where the value of a .house is lessened by railway works producing noise, smoke, and vibration, the party is entitled to compensation under the statute. 4 But where the railway company lowered a highway several feet, thereby greatly obstructing access to plaintiff's dwelling, and obliging him to make use of a ladder for that purpose, it was held that no claim could be maintained under that clause in the statute for injuriously affecting land, the injury complained of being one of a permanent nature, and therefore the subject of compensation under the general provision for land damages. 5 But where the works of a railway intercepted water which would have percolated through the strata of the earth into plaintiff's well, and also drained off water which had reached the well by such percolation : 6 2 Law Rep. 2 H. L. 175. ■' Eagle v. Charing Cross Railway, Law Rep. 2 C. P. 638. A. owned a house on a highway ; a railway company, under powers given them by statute, made an embankment on the highway opposite the house, thereby narrowing the road from fifty to thirty-three feet, thus materially diminishing the value of the house for sale or letting, and obstructing the access of light and air. Held, 1. That A. had sustained particular damage from the works ; 2. That the damage would have been actionable if not authorized by statute ; 3. That the injury done was an injury to A.'s estate, and not a mere injury to A. personally or to his trade; and that, these three things concurring, A. was entitled to compensation under - Vict. cc. 18, 20. Beckett v. Midland Railw., Law Rep. 3 C. P. 82. * Brand v. Hammersmith & City Railw., L. R. 2 Q. B. 223 ; s. c. reversed in L. l; I Ho. Lds. 171. See also post, pi. 8, n. 16. Moore r. Great Southern & Western Railw. Co., 10 Ir. Com. Law Rep. 46, in Exch. < hamber S. P. Tuohey v. Same, id. 98. But the English courts seem to consider that compensation in such a case may be given under the provision for damages where land is injuriously affected. Chamberlain v. West End of London & C. Railw., 2 B. & S. 617; s. c. 3 B. & S. 768; 8 Jur. (N. S.) 935. ■ New River ( !o. v. Johnson, 2 Ellis & Ellis, 435; s. c. 6 Jur. (N. S.) 374, Q, B. This question is a good deal discussed in a later case, Reg. v. Met. Board of Works, 3 B. & S. 710, where it was held that the railway company were not [*339] § 82. LANDS INJURIOUSLY AFFECTED. 355 it was held the land-owner had no remedy either under the statute or at common law. 2. This case was an application, by the company, for an injunc- tion to restrain the party from proceeding under the statute, and the court held, that as the party had a clear legal right, under the act of parliament, they could not be deprived of pursuing it in the * mode pointed out, and fully affirmed the views of Lord Denman, C. J., in Regina v. Eastern Counties Railway Company, 7 where the damage claimed was by lowering a road upon which the land abutted, so as to impede the entrance to the land, and compel the owner to build new fences. 3. The construction of a railway across flats, in front of plain- tiff's wharf, gives him a right to damage under the statute of Massachusetts, although the wharf itself remained uninjured. 8 But the charter of a railway company having authorized them to make certain specified erections between the channels of two rivers, and such erections having so changed the currents of the rivers as to render more sea-wall necessary to secure certain wharves and flats in the vicinity, it was held that the damage thereby occasioned was damnum absque injuria? 4. One cannot claim damage of a railway company, by reason of their track crossing a public highway, near his dwelling, responsible for underground currents of water intercepted by their works, either at common law or under the statute. 7 2 Ad. & Ellis (N. S.), 347. See post, § 99. In this case the court held that the injuries complained of clearly came within the act, and Lord Denman, in closing his opinion, makes a very significant reply to a class of arguments, not uncommon upon all subjects. "Before we conclude, we shall brieily advert to an argument much pressed upon us ; that if we make this rule absolute, any injury to land, at any distance from the line of railway, may become the subject of compensation. If extreme cases should arise, we shall know how to deal with them ; but in the present instance, the alleged injury is to land adjoining a road, which has been ' lowered ' under the provisions of the act, and which is therefore land injuriously affected, by an act expressly within the powers conferred by the company." 8 Ashby v. The Eastern Railw. Co., 5 Met. 368 ; s. c. 1 Am. Railw. C. 356. And in Bell v. The Hull & Selby Railw., 2 Railw. C. 279, a similar decision is made under the English statute. But see Gould v. Hudson R. Railw., 6 N. Y., 522. 9 Fitchburg Railw. v. Boston & Maine Railw., 3 Cush. 58 ; 8. c. 1 Am. Railw. C. 508 ; ante, § 75. [*340] 356 EMINENT DOMAIN. PART III. upon a level, the highway being the principal approach to his groun ;,. h is held that the English statute, 11 giving compensation, where lands are injuriously affected, was intended to include only sueh damages as were caused by the erection of the company's 3, and not such as might in future be caused by the use of the works, this being the case of Gas Works, and the 68th section vl' the Lands Clauses Acts * being made a part of the company's Bpecial act. But this certainly could not extend to the ordinary use of a railway, which is the only or the principal mode of injuri- ously affecting lands not taken, and which could be as strictly esti- mated, at the time of the company's works being erected, as from time to time thereafter. 6. In one case, 12 where the lessee of an inn and premises, situated near a tunnel on the company's road, claimed damages, because the vibration caused by the trains prevented his keeping his beer in the cellar in a fit state for his customers, and the value of the house was thereby lessened, being rendered unfit for a public-house ; and the plaintiffs moved for an injunction to re- strain the defendant from proceeding to assess damages under the statute ; the Lord Chancellor denied the motion, upon the ground that the remedy at law was altogether adequate. But his lordship intimated a very decided opinion, that no such damages could be recovered. He says, " Whether an action will lie on behalf of a man who sustains a private injury, by the exercise of parliamentary powers, done judiciously and cautiously, is not an easy question, or rather it is not easy to come to the conclusion that an action will lie. I entertain a decided opinion (probahly, T. erroneous), that no such action will lie." 13 7. And where the plaintiff's damages for land taken by the company, and by severance and otherwise, were determined by Caledonian Railw. v. Ogilvy, 2 McQ. Ho. Lds. 229 ; s. c. 29 Eng. L. & Eq. 22. 11 Law Times, February, 1857, p. 329. 1 The London ,V X. VV. Railw. Co. v. Bradley, 3 Mac. & Gor. 366; s. c. 6 Han sramith Railw. v. Brand, L. R. 4 Ho. Lds. 171. 13 Hatch r. Vermont Central Railw. Co., 25 Vt. 49; s. c. 28 id. 142. The difficult] to a mill, by reason of the frequent passing of trains rendering it to I.'- considered in estimating land damages. Western Penn. Railw. ('<.. r. Hill, 56 Penn. St. 460. [*341] § 82. LANDS INJURIOUSLY AFFECTED. 357 an arbitrator, 14 but from the road being built across certain flats, with insufficient openings, the waters became dammed up and injured the plaintiff's remaining lands, it was held, he was entitled to recover " as for an unforeseen injury, arising from the manner in which the railway was constructed." But it is here said, " The * company might, by erecting their works with proper caution, have avoided the injury." It seems this is the only ground of an action. 8. In a doubtful case the court issued an alternative mandamus and required a return of the facts. 15 So, too. a party whose ferry has been materially lessened in value, by obstructing access to it, may recover damages of the company under the statute. 16 So, too, if a towing-path be obstructed, or the navigation diverted from it, the owner under a similar statute may have compensation. 17 " Lawrence v. Great N. Railw. Co., 16 Q. B. 643; s. c. 6 Railw. C. 656; s. c. 4 Eng. L. & Eq. 265 ; ante, § 79, n. 6 ; § 74, n. 5 ; L. & Y. Railw. v. Evans, 15 Beav. 322 ; s. c. 19 Eng. L. & Eq. 295. Under most of the American statutes, the damages, as well prospective as present, must be assessed at once, and no recovery can be had for unforeseen injury, more than in any case of a recovery of damages for a tort. But in the case of Lancashire & Y. Railw. v. Evans, it is obvious, from the elaborate review of the case by the Master of the Rolls, that the English courts now regard the land-owner as entitled to make new claims, from time to time, as they occur, for any injurious consequence of the construction of the works. For any unlawful act, in the construction or use of the works, an action at common law is the proper remedy. 15 Queen v. The North Union Railw. Co., 1 Railw. C. 729. 16 In re Cooling, 19 Law J. Q. B. 25 ; s. c. nom. Cooling v. Great Northern Railw., 15 Q. B. 486 ; Hodges on Railways, 277. It is said here that a ferry is different from a public-house, whose custom is said to be injured by obstructing the travel and access to the house, by cutting through thoroughfares leading to it, which, it has been held, is no ground pf claiming damage under a similar statute. The King v. The London Dock Co., 5 Ad. & El. 163. But this case is consid- ered as overruled by Reg. v. The Eastern Counties Railw. Co., 2 Q. B. 347 ; Chamberlain v. East End of London & Crys. Pal. Railw. Co., 2 B. & S. 617; s. c. 3 B'. & S. 768; 8 Jur. (N. S.) 935. Where a railway company were em- powered by act of parliament to construct a bridge for the passage of their trains across a river, and to include a passage for foot-passengers to take toll thereon, so near an ancient ferry as greatly to reduce its traffic, it was held that the ferry being a franchise, and therefore a hereditament, was "lands" within the mean- ing of the act of parliament allowing compensation for "lands injuriously af-* fected " by the construction of a railway ; and therefore the plaintiff prosecutor was entitled to recover. The Queen v. Cambrian Railw., L. R. 6 Q. B. 422; Ricket v. Met. Railw., Law Rep. 2 Ho. Lds. 175, and Brands. Hammersmith Railw., 4 id. 171, were distinguished from the present case. 17 The King v. Commis. of Thames & Isis, 5 Ad. & Ell. 804. [*342] EMINENT DOMAIN. PART III. - also, em occasional flooding of Lands, caused by a proper exe- cution of parliamentary powers, is within the remedy given by Btatut 9. Some questions under this head have arisen, in regard to mines and minerals, nol of suflBcient importance to be stated in ;i. : Where the damage resulted from the company turning a >k, the courl ordered a mandamus. 20 But brewers, accustomed to take water from a public river, are not entitled to receive com- pensation when the waters were deteriorated by the works of a docfe company. 33 10. li was held thai a tithe-owner is not entitled to compen- sation * unless the act contain an indemnity in his favor. 22 The interest of a, tithe-owner is too remote and incidental to be the Bubjecl of general indemnity. It often forms the basis of special statutory provisions for indemnity. 11. In a well-considered case, the rule in regard to what damage is to he included under the terms " lands injuriously affected," or equivalent terms, is thus laid down: "All direct damage to real estate by passing over it, or part of it, or which affects the estate directly, although it does not pass over it, as by a deep ('at or high embankment, so near lands or buildings as to prevent or diminish the use of them, by endangering the fall of buildings, the caving of earth, the draining of wells, the diversion of water-courses," by the proper erection and maintenance of the '" Wan- r. Regent's Canal Co., 3 De G. & Jones, 212. 19 Fenton r. Trent & Mercy Xav. Co., 9 M. & W. 203 ; Cromford Canal Co. v. Cutts,6 Railw. <'. 142; The King v. Leeds & Selhy Railw. Co., 3 Ad. & Ell. 683. • Reg b North Midland Railw. Co., 11 Ad. A: El. 955; s. c. 2 Railw. C. 1. 11 Tli' King >'. Bristol Dock Co., 12 East, 420. But where mines below the pany's works are injured in consequence of the negligent or imperfect mode of constructing or maintaining the company's structures and cuttings, the person so injured may maintain a common-law action against the company. Bagnall v. I. ond. .n & N. W. Railw., 7 II. & N. 423. Affirmed in Exchequer Chamber, 31 Law .1. 180. See also Reg. v. Fisher, 3 B. & S. 191 ; s. c. 9 Jur. (N. S.) 571 ; Elliot r. Northeastern Railw. Co., 9 Jur. (N. S.) 555; s. c. 10 Ho. Lords Cas. . " Hex r. The Commissioners of Nene Outfall, 9 B. & C. 875; London & Blackwall Railw. Co. v. Letts, 3 H. L. Cases, 470; s. c. 8 Eng L. & Eq. 1; Railways, 289, n. (m). The taking of lands compulsorily by a rail- way company and the erection of their works thereon is no breach of a covenant by the owner not to build upon the land. Baily v. De Crespigny, 17 W. R. 494; SC. 1.. i: . I Q. B. 180. [•343] §82. LANDS INJURIOUSLY AFFECTED. 359 company's works. " Also, as being of like character, blasting a ledge of rocks so near houses or buildings as to cause damage ; running a track so near as to cause imminent and appreciable danger by fire ; obliterating or obstructing private ways leading to houses or buildings," — all these and some others, doubtless, are included. 12. " But that no damage can be assessed for losses arising directly or indirectly from the diversion of travel, the loss of cus- tom to turnpikes, canals, bridges, taverns, coach companies, and the like ; nor for the inconveniences which the community may suffer in common, from a somewhat less convenient and beneficial use of public and private ways, from the rapid and dangerous crossings of the public highways, arising from the usual and ordi- nary action of railroads, and railroad trains, and their natural incidents." 23 * 13. It is held also in this case, that no damages can be assessed under the statute, for cutting through a watercourse in making an embankment without making a culvert, whereby the water is made to flow back and injure the plaintiff's land, at a distance from the railway, no part of which is taken, the remedy being by action at common law. 23 14. And where the company, by consent of the land-owner, enters upon the land and makes the requisite erections, which are subsequently conveyed to it with the land by the land-owners, it was held such grantor is not estopped from claiming damages resulting from want of proper care and skill in constructing the works, or from neglect to keep them in repair. 24 23 Proprietors of Locks & Canals v. Nashua & Lowell llailw., 10 Cush. 385. Shaw, C. J. (391, 392). Nor is the party, whose lands lie near a railway line, entitled to compensation, for being injuriously affected, by persons in the trains overlooking the grounds, thus rendering them less comfortable and secluded, for the walks of the family and visitors. Nor can the party claim compensation for vibration of the ground caused by the use of the road, the statute only extending to damages caused by the constmction of the works. Reg. v. Southeastern Railw., in re Penny, 7 Ellis & Black, 6G0, ante, pi. 5. But actual injury during the con- struction of a railway, by vibration caused by the ballast trains, is to be compen- sated ; but by Campbell, C. J., it is said such vibration caused by running trains after the road is completed will merit a different consideration. lb. See also Croft v. London & N. W. Railw. Co., 3 B. & S. 436. 24 Morris Canal & Banking Company v. Ryerson, 3 Dutcher, 457 ; Waterman v. Conn. & Pass. Riv. Railw., 30 Vt. 610; Lafayette Plank-Road Co. v. New Albany, &c. Railw., 13 Ind. 90. [*344] 360 EMINENT DOMAIN. PART in. L5, The rule of the English courts that damages can only be recovered for injuriously affecting land, where but for the statute the acl complained of would be just ground of action at common law, does not apply where part of the land is taken and damages are Bought, not only for the part taken, but for the rest of the land being injuriously affected, either by severance or otherwise. 25 And it was lure held that the owner of a mill was entitled to have damages assessed to him for the increased exposure of the same to fire by the passage of the company's trains. But loss of trade caused by the operations of the company during the construction of their works is not damages for which the party is entitled to compensation. 26 But a person may claim damages on the ground of being injuriously affected on account of the obstruction or diversion of a public way by the construction of the works of a railway. 27 L6. The owners of land adjoining a railway track are affected with presumptive notice of the rights of the company from long * use. the same as in regard to other owners in possession. 28 And equity will enjoin an adjoining owner to a railway track against making erections which will interfere with the company repairing its track. 29 17. It seems scarcely needful to repeat what has been so often declared by the courts, that railways have the exclusive right to possession of their roadway, and to exclude all intrusions thereon, w bother from persons or structures. 30 15 S. T. & A. Railw. Co. in re, 10 Jur. (N. S.) 614. 86 Senior v. Met. Railw. Co., 2 II. & C. 258 ; Cameron v. Charing Cross Railw. Co., 16 C. B. (X. S.) 430; overruled in Exch. Chamber, Ricket v. Metropolitan Railw. Co., 5 B. & S. 149; s. c. 13 W. R. 455, where the proposition of the text i> established. But see s. c. L. R. 2 Ho. Lds. 175, where the doctrine of the court below is not sustained. '''■ Wood v. Stourbridge Railw. Co., 16 C. B. (X. S.) 222. See also Boothby v. Androscoggin & K. Railw. Co., 51 Me. 318. - Macon & Western Railw. Co. v. McConnell, 27 Ga. 481. w Cunningham v. Rome Railw. Co., 27 Ga. 499. - B lilw. Co. v. Ilummell, 44 Penn. St. 375; Harvey v. Lackawanna & B. Railw. Co., 47 id. 428. [*345] §83. DIFFERENT ESTATES PROTECTED. 361 SECTION XXI. Different Estates Protected. 1. Tenant's good-will and chance of renewal protected. 2. Tenants entitled to compensation for change of location. 3. Church property in England, how esti- mated. 4. Tenant not entitled to sue, as owner of pri- vate way. 5. Heir should sue for compensation. 6. Lessor and lessee both entitled to compen- sation. 7. Bight of way , from necessity, protected. 8. Mill-owner entitled to action for obstruct- ing water. 9. Occupier of land entitled to compensation. 10. Tenant, without power of alienation, for- feits his estate, by license to company. 11. Damages not transferable by deed of land, after they accrue. § 83. 1. The English statute provides for the protection of the interests of lessees in certain cases. 1 And lessees from year to year have recovered, for the good-will of the premises, which would have been valuable as between the tenant and a purchaser, al- though it was not a legal interest as against the landlord. 2 But not when the tenancy was from year to year, determinable at three months' notice, with a stipulation against underletting without leave. 2 So, too, an under-tenant is entitled to compensation for good-will. 3 But in a lease for fourteen years, with covenant to yield up the premises at the end of the term, with all fixtures and improvements, where the company suffered the lease to expire and * then turned out the tenant, held that he was entitled to compen- sation for good-will and the chance of beneficial renewal, but not for improvements, but nevertheless these might be considered by the jury in estimating the chance of beneficial renewal. 4 1 8 & 9 Vict. c. 18, §§ 119 to 122, and 8 & 9 Vict. c. 20, § 43. 2 Ex parte Farlow, 2B.& Ad. 341; The Matter of Palmer v. Hungerford Market, 9 Ad. & Ellis, 463. 3 Rex v. The Hungerford Market, 4 B. & Ad. 592. 4 Rex v. The Hungerford Market, 4 B. & Ad. 592. But the case of Rex v. Liv. & Manchester Railw., 4 Ad. & Ellis, 650, seems to treat a similar estate as absolutely gone, at the end of the term, and the company bound to make no compensation. But where the company stipulated with a tenant, having a doubt- ful right of renewal, to compensate him for the same on his establishing the right, and subsequently became themselves the owner of the reversion, it was held the tenant might maintain a bill in equity for the declaration of his rights as to renewal and compensation therefor. Bogg v. Midland Railw., L. R. 4 Eq. 310. [*346] EMINENT DOMAIN. PART III. 2. The loss which a brewer sustained by having to give up his business till he could procure other premises, suitable for carrying it on, was held a proper subject of compensation under a similar Btatute. 6 Where the act required tenants from year to year to give up premises to the company, upon six months' notice to quit, without reference to the time when their term began, but allowed them compensation, if required to leave before their term expired, it was held, that when the six months' notice required the tenant to leave at the end of his term, he was not entitled to compensa- tion.' Bui where a tenant gives up premises under a six months' notice from a railway company, when he is entitled to compensa- tion, without demanding it of the company, he is still bound to pay full rent to his landlord. 7 3. Church property in England is estimated with reference to the cost of a new site and similar erections, to be fixed by* agree- ment between the company and the diocesan and archbishop of the province. But after this appropriation of the site of a church to secular purposes, the rector is entitled to have his interest in the premises connected therewith estimated at its value for secular uses. 8 4. Where the charter of a company imposed a penalty upon them for any obstruction or interruption of a road, and in the case of a private road gave the right to recover the penalty to the owner of the road, it was held, that the tenant of the farm over which the road passed could not sue for the penalty. 9 *5. Where land of a deceased person is taken for a railway, the heir and not the administrator is entitled to the damages for such taking, and to prosecute for the recovery thereof, although the administrator had previously represented the estate insolvent, and afterwards obtained a license to sell the real estate for the pay- ment of debts. 10 6. And a tenant, whose lease began before, and who was in possession at the time an injury was done, is entitled to recover s Jubb v. Hull Dock Co., 9 Q. B. 443. « The Queen v. London & Southampton Railw. Co., 10 Ad. & El. 3 ; s. c. 1 Railw. C. 717. U tnwrinjht v. Ramsdeni, 5 M. & W. 602; s. c. 1 Railw. C..714. * Hilcoat v. The Archbishops of Canterbury & York, 10 C. B. 327. linson v. Newcastle & Darlington Railw., 1 Car. & Kir. 546. Boynton v. Peterboro & Shirley Railw., 4 Cush. 467. [*347] § 83. DIFFERENT ESTATES PROTECTED. 863 damages for an injury sustained by him, in building a turnpike road. 11 But the lessor and lessee are each entitled to recover compensation for the damage sustained by them respectively. 12 7. And where the plaintiff had no access to his land except over the land of his grantor, it was held, that he had a way, by neces- sity, across such laud, and that he was entitled to maintain an action against a railway company for obstructing it. 13 8. So. also where the free flow of water from a saw-mill is obstructed by the erection of a railway bridge below the mill, the company are liable to the owner of the mill in an action of tort. 14 But they are not liable for any increased expense thereby oc- casioned to the mill-owner, in getting logs up the stream to his mill, whether the stream be navigable for boats and rafts, or not. 14 9. Where the statute gives remedy against all persons inter- ested, the occupant of land is liable to be affected by the proceed- ings, and a similar construction will prevail where the remedy is given to all interested. 15 It seems indispensable to the asserting of any valid claim for land damages that the claimant prove the character and extent of his title. 16 And it is here said that pos- session alone will not be * regarded as ground of presumption of title in fee. And where the entire fee in the land is condemned to the use of the railway, and the money paid into court, it must be apportioned to the several owners of different interests in the land, as nearly as possible, as if it were the land itself. And the same result will follow where a permanent right of way is given in any form to a perpetual corporation. 17 11 Turnpike Road v. Brosi, 22 Penn. St. 29. 12 Parks v. City of Boston, 15 Pick. 198. See also Burbridge v. New Albany & S. Railw., 9 Ind. 546. 13 Kimball v. The Cocheco Railw., 7 Fost. 448. 14 Blood v. Nashua & Lowell Railw., 2 Gray, 137. 15 Gilbert v. Havermeyer, 2 Sandf. 506. The term "owner" in a statute requiring compensation by railway companies for land taken by them includes every person having any title to or interest in the land, capable of being injured by the construction of the road, and extends to the interest of a lessee or termor. Bait. & Ohio Railw. v. Thompson, 10 Md. 76; Lewis v. Railw., 11 Rich. 91; Sacramento Railw. v. Moffatt, 7 Cal. 577. 16 Robbins v. Milw. & Horricon Railw. Co., 6 Wis. 636. 17 Ross v. Adams, 4 Dutcher, 160 ; Hagar v. Brainerd, 44 Vt. 294. In such case the party having an unexpired lease will only be entitled to so much of the interest of the fund in court as will indemnify him for his loss of rent, and the rest of the income must accumulate till the expiration of the lease. Wootton's [*348] 364 EMINENT DOMAIN. PART III. 10. And where a tenant, who held the land for a term of years, with a si lift clause against alienation or subletting, assigned a small portion to a railway, for a temporary purpose, the company not dealing with the landlord, or giving him any compensation for the use of the land, it was held, that he was entitled to maintain ejectment against the company, and his tenant, for the forfeiture incurred by this subletting. 18 11. And the damages assessed are payable to the owner of the land at the date of the adjudication, and do not pass by deed to a subsequent purchaser. 19 And where the company gave notice to treat for land to a tenant at will, and were allowed to take pos- session and complete their line, a person who had subsequently purchased an undivided portion of the land was not allowed to maintain a bill to restrain the company from the use of the land. 20 Estate, Law Rep. 1 Eq. 589. And all costs of parties summoned by the railway in order to receive a perfect title, must be paid by the company. Haynes v. Barton, L. R. 1 Eq. 422. And the costs of paying money out of court for the benefit of a charity must also be borne by the company. Lathropp's Charity, L. EL 1 Eq. 467. A party not summoned, although having knowledge of pro- lings to condemn land, is not bound thereby; but may have an action to protect his interest. Martin v. L. Ch. & Dover Railw., L. R. 1 Eq. 145 ; s. C. id. 1 Ch. Ap. 501. See also London, Br. & S. C. Railw. in re, as to costs of parties summoned. L. R. 1 Ch. Ap. 599. 18 Legg r. Belfast & Bellamy Railw., 1 Irish Law (N. S.), 124, n. 19 Lewis v. Wilm. & Manchester Railw., 11 Rich. Law, 91. But where a third person agreed to pay the land-owner interest on the agreed compensation for his land damages " if said railway shall be kept in operation," his object being to secure the beneficial operation of the railway by running passenger and freight trains, it was held he was not bound to perform on his part, merely because the railway occasionally ran a freight train. Jepherson v. Hunt, 2 Allen, 417. 20 Carnochan v. Norwich & Spalding Railw., 26 Beav. 169. [*348] §§ 84, 85- ARBITRATION. — STATUTE OF LIMITATIONS. 365 ♦SECTION XXII. Arbitration. 1. Attorney, without express power, may refer I 2. Award binding, unless objected to in disputed claim. \ court. § 84. 1. It was held that an attorney, who had no authority under seal, either to defend or refer suits, might nevertheless make a valid reference of a disputed claim against the company, under a judge's order. 1 2. And if the company object that the arbitrator awarded upon matters not submitted, they should have applied to the court to revoke the submission, or set aside the award, upon its return into court ; but not having done so, the claim being set up and enter- tained by the arbitrator, the award is binding. 1 The same princi- ples would probably obtain in the American courts. SECTION XXIII. Statute of Limitations. 1. General limitation of actions applies to land claim. 2. Filing petition will not save bar. 3. Acquiescence of forty years by land-owner, effect of. 4. The estoppel will take effect if the use is clearly adverse. § 85. 1. Where neither the general statutes nor the special act contain any specific limitation, in regard to claims upon railway companies for land damages, it has been held that the general statute of limitation of actions, for claims of a similar character, will apply. And where the claim was for an injury to an island, 1 Faviell v. The Eastern Counties Railw., 2 Exch. 344. It is held generally, in the English courts, that an attorney should be appointed "under seal to prose- cute and defend suits, on the part of corporations. Thames Haven Dock & Railw. Co. v. Hall, 5 Man. & G. 274 ; Arnold v. The Mayor of Poole, 4 id. 860. But when, by the incorporation of a railway company, the directors were em- powered to appoint and displace any of the officers of the company, the appoint- ment of an attorney, by the company, need not be under seal. See post, § 141. [*349] EMINENT DOMAIN. PART III. caused by the erection of a railway bridge, and to the award of the * viewers, and the company plead actio non infra sex annos, the plea was held good. 1 •J. Ami where the statute provides, that no process to recover compensation for land or property taken by a railway shall "be sustained unless made within three years from the time of taking the same." a mere filing of an application with the clerk of the county commissioners, without bringing it to the notice of the commissioners, or any action of theirs thereon until the three years have elapsed, will not save the bar of the statute. 2 The land- owner may also traverse the right of the company to take the land, either originally, for the location and construction of their road on the ground that it does not come within their line, or the line of deviation from the prescribed route, or that they have not taken the proper preliminary steps, or for any other cause ; or, when the company propose to change their route, or to enlarge their accom- modation works, on the ground of having made their exclusive election in one case, or the want of necessity in the other. 3 3. Where the land-owner had allowed the company, upon an appraisal in the alternative stating both the value of the land and of the annual use, to occupy the same for the purposes of a canal, for more than forty years, paying an annual sum about the same which had been awarded, the award being defective in law, in that no person had been made a party to the proceeding who was authorized to represent the land-owner, who was an infant, it was held that this was no ground of presuming a contract on the part of the land-owner to convey the land in fee in consideration of a rent charge. 4 But it was held that an ejectment on the part of the land-owner, and the erection of a bridge by him, ought to be restrained by injunction, on the ground of acquiescence, the com- pany undertaking to put in force their parliamentary powers which had not expired, and thus obtain the land. 4. But in another case, where the party had, by contract with the original land-owner, used the land of others for more than fifty years, firsl for a tram-way and subsequently for a railway in a ter v. The Cumberland Valley Railw., 23 Penn. St. 371. - < iharlea River Railw. v. County Commissioners of Norfolk, 7 Gray, 389. 3 South Carolina Railw. v. Blake, 9 Rich. 228; ante, § 72; post, § 105, n. 14. 4 Somerset Canal Co. v. Harcourt, 2 De G. & J. 596. [*350] § 85. STATUTE OP LIMITATIONS. 367 * different place across the same land, it was held that the present land-owner was concluded by the agreement, and that the change of one place for another would not defeat the estoppel. 5 All the party can claim is, to have damages under the statute. 5 5 Mold v. Wheatcroft, 29 Law J. Ch. c. 11 ; s. c. 27 Beav. 510. [*351] 3G3 EMINENT DOMAIN. PART III. ♦CHAPTER XII. REMEDIES BY LAND-OWNERS UNDER THE ENGLISH STATUTE. SECTION I. Company bound to purchase the whole of a House, etc. 1. / • company to take the accessories with the house. 2. /•' ' i he owner has an election in regard to that. 3. A deposit of the appraised value means the value of all the company are bound to take. 4. Company bound to take all of which they take part, and pay special damage be- sides. 5. Where company desire part, not compella- ble to take whole unless they persist in taking part. 6. Land separated from house by highway not part of premises. § 86. 1. By the English statute, 1 railway companies are bound to purchase the whole of a house and lands adjoining, if required, when they give notice to take part ; and also if the house or the principal portion of it be within fifty feet of the railway, and de- teriorated by it. The act includes house, garden, yard, warehouse, building, or manufactory ; but it was considered that this did not extend to a lumber-yard. 2 Under a similar provision, in a special charter, it was held, that the company were not bound to take the entire premises, where the principal dwelling-house only was within the prescribed limit. 3 2. It has been considered that this statute gave an option to the land-owner, whether the company should take the whole or part of the house, so situated. 4 And in this last case it was held, 1 8 & 9 Vict. c. 18, § 92. ' Si one v. Commercial Railw., 9 Simons, 621 ; s. c. 1 Railw. C. 375 ; Reg. v. Sheriff of Middlesex, 3 Railw. C. 396. But it will include an open space in front of a public bouse used by guests for the purpose of access to tbe house with vehicles, tbe land baving passed with the lease of the house for many years. Mason r. London, Chatham, & Dover Railw., L. R. 6 Eq. 101. ; Reg. v. L. & Greenw. Railw. Co., 32 B. 166; s. c. 3 Railw. C. 138. * Sparrow v. The Oxford, Worcester, & Wolverhampton Railw. 32 De G., M. & G. 94; 8. c. 13 Eng. L. & Eq. 33. By Lord Cranworth and Sir Knight [*352] § 86. COMPANY BOUND TO PURCHASE WHOLE OF HOUSE. 369 * that a narrow strip of land adjoining an iron and tin-plate fac- tory, which had been used as a place of deposit for rubbish, and over which a person had a right of way, was such a part of the manufactory, that the company were bound to take the whole. 4 3. And the statute requiring a deposit of the appraised value of the land taken by a railway company, before entering upon the same, imports the value of the whole premises, in all cases where the company give notice of requiring part and the owner elects, according to the terms of the statute, that they shall take the whole. 5 Bruce, L. J. See also Barker v. N. Staffordshire Railw., 2 De G. & S. 55 ; s. c. 5 Railw. C. 401, 419, where Lord Cottenham, Chancellor, intimates an opinion, that certain parcels of land (and a brine-pit and steam-engine upon one of them) adjoining salt-works, are not a part of the manufactory. But his lordship gives a very satisfactory reason for denying the aid of the court, viz., "That a party having known his rights, and having had his claim, in respect of them, disposed of [upon the original bill, and by leave of court then filing a supplemental bill] if he then raises a new ground of equity, does not present his case in a form to entitle him to ask for the extraordinary interposition of this court." In Sparrow v. The Oxford, &c. Railw. Co., 2 De G., M. & G. 94; s. c. 13 Eng. L. & Eq. 33, Lord Cranwortli, L. J., made some very significant suggestions in regard to the rights of land-owners to compensation. "The only remaining question," said his lordship, " is one which has been raised now for the first time, namely, that if they cannot take the land, they are now entitled to burrow under it, as it were to make a tunnel, which they say they are able and willing to do, without taking or touching any part of the surface. It was argued in this way, ' Suppose the manufactory were at the top of a hill, and you were burrowing under it, at the distance of a thousand feet, are they then taking part of the manufactory ? ' I do not feel myself called upon to answer that question, but if I were, I rather believe you are, on the principle of the maxim, Cujus est solum, ejus est usque ad inferos. Do you mean to say, that if you are an inch below the surface, you would not be taking any part of the manufactory ? I am inclined to think that, however deep below [the tunnel was made], it would be within the enactment. If that has been a casus omissus, I think it ought to be construed in a way most favorable to those who are seeking to defend their property from invasion." In the case of Ramsden v. The Manchester S. Junction Railw., 1 Exch. 723, it was determined, that a railway company could not tunnel, even a highway, without first making compensation to the owner of the freehold, under the Land Clauses Act. The company are not bound to take property more than fifty feet from the centre line of the road, unless it is incapable of separation. Queen v. London & G. Railw., 3 Ad. & Ell. (N. S.) 106. 5 Underwood v. The Bedford & Cambridge Railw., 11 C. B. (N. S.) 442; s. c. 7 Jur. (N. S.) 941 ; Dadson v. East Kent Railw., ib. So an offer of compensation to the party must be distinct from costs. Balls v. Metropolitan Board of Works, L. R., 1 Q. B. 337. vol. i. 24 [*353] 370 REMEDIES BY LAND-OWNERS UNDER ENGLISH STATUTE. PART III. 1. Where three adjoining houses had gardens laid out from the * plat of land upon which they were built for the accommodation of each, and a railway company proposed to take a strip of land from the gardens attached to two of the houses upon the side most remote from the houses, and the owner elected to have the company take the houses, which they declined to do, but took the land : the company were held liable to purchase the whole of the two houses, the gardens being part of the houses to which they were attached, and also to make compensation for any injury sustained in respect of the other house. 6 5. It has also been determined, that the railway, after giving notice to purchase part of a house, &c, and being required by the owner to take the whole, cannot be compelled by mandamus to take the whole, as the act of parliament imposes no such obligation. The statute is intended to protect the owner from being compelled to sell a part, but does not compel a company, wanting a part only, to take the whole, if they chose to waive their claim alto- gether, and the mandamus having claimed the whole, could not go for a part only. 7 6 Cole v. Crystal Palace Railw., 5 Jur. (N. S.) 1114; s. c. 27 Beav. 242. The term " bouse" in the statute includes all that -would pass by the same word in an ordinary conveyance. Hewson v. London & South Western Railw. Co., 8 W. K. -tG7 ; Ferguson v. Brighton & South Coast Railw.,' 9 L. T. (N. S.) 134 ; s. c. 30 Beav. 100. It will therefore embrace all of a series of gardens connected l>y a gravel walk passing through the walls of the different gardens. lb. See King v. Wycombe Railw., 6 Jur. (N. S.) 239; s. c. 28 Beav. 104. A hospital may compel a railway company to take the whole of the hospital if they insist upon taking one wing used for the same purposes as the rest of the building, although connected only by a wall. St. Thomas Hospital v. Charing-Cross Railw. Co., 1 Johns. & H. 400; s. c. 7 Jur. (JST. S.) 256. Houses in the course of construction come within the statute. Alexander v. Crystal Palace Railw., 8 Jur. (X. S.) 833; s. c. 30 Beav. 656. See also Chambers v. London, Chatham, & Dover Railw., 8 L. Times (N. S.), 235. Land used for purposes of pastime, as archery and dancing, but chierly as a pasture for cows, although important to the enjoyment of the house, is not so a part of the same premises as to require company to take it with the house or the house with that. Pulling v. London, ( hatham, & Dover Railw. Co., 10 Jur. (N. S.) 665; s. c. 33 Beav. 644. 7 Queen V. The London & South Western Railw. Co., 12 Q. B. 775; s. c. 5 Railw. ' • 669. The remark of Lord Denman, in closing his opinion in this case, i- applicable to similar cases everywhere. " We have to lament the waste of lime that has occurred, from the obscurity thrown about the case by the super- fluous matter foisted into the record." [*354J §87. THE COMPANY BOUND TO TAKE INTERSECTED LANDS. 371 6. The plaintiff was an owner in fee of a house on one side of * a high road, where he had resided for a great number of years. Some years ago he purchased six acres of land on the other side of the road, upon part of which there were built three houses. Two of the houses were let to tenants, the third house was occu- pied by the plaintiff's groom, and other servants; the rest of the land which lay beyond the houses was used by the plaintiff for pasturing his cows, horses, &c. The plaintiff alleged that the six acres were indispensable to the enjoyment of the house by him. A railway wanting part of the six acres which lay about 250 yards from the plaintiff's house, the plaintiff sought to compel the com- pany to take the house also, on the ground that the land formed part of his house, within the 92d section of the Act. But the motion for injunction having been denied by the Vice-Chancellor, Wood, his judgment was affirmed in the Court of Chancery Appeal, Lord Justice Knight Bruce dubitante. 8 SECTION II. The Company compellable to take intersected Lands, and the Owner to sell. 1. When less than half an acre remains on either side, company must buy. 2. Owner must sell where land of less value than railroad crossing. 3, 4. Word " town " how construed. § 87. 1. By the 93d section of the English statute the com- pany is compellable to take lands, not in a town, or built upon, which are so intersected by the works as to leave either on one or both sides a less quantity of land than half a statute acre. 2. And by section 94, if the quantity of land left on either side of the works 1 is of less value than a railway crossing, and the 8 Steele v. Midland Railw., Law Rep. 1 Ch. 275; s. c. 12 Jur. (N. S.) 218. 1 8 and 9 Vict. c. 18, §§ 93 and 94 ; Falls v. Belfast & B. Railw., 11 Irish L. R. 184. This statute, it was held, does not apply to lands in a town or built upon. Marriage v. The Eastern Co.'s R. and the London and B. Railw., 30 Law Times, 264 ; s. c. 9 Ho. Lds. 32, where the judgment of the Excheq. Chamber, 2 H. & N. 649, is reversed, and the statute held to apply to all intersected lands, whether [*355] 372 REMEDIES BY LAND-OWNERS UNDER ENGLISH STATUTE. PART III. * owner have not other lands adjoining, and require the promoters to make the crossing, the owner may be compelled to sell the land. 3. It was held, that the term " town," in a turnpike act, imported a " collection of houses," and that the extent of the town was to be determined by the popular sense of the term, and to include all that might fairly be said to dwell together. 2 4. And in another case, it is said, that the term includes all the houses, which are continuous, and that this includes all open spaces occupied, as mere accessories to such houses. 3 SECTION III. Effect of Notice to Treat for the purchase of Land. 1. Important question under statute of limita- tions. 2. Company compelled to summon jury. 3. Ejectment not maintainable against com- pany. 4. Powers to purchase or enter, how saved. 5. Subsequent purchasers affected by notice to treat as the inception of title. 6. But the notice may be loithdruwn before any thing is done under it. 7. Not indispensable to declare the use, or that it is for station, and another company to participate in use. § 88. 1. Inasmuch as the time for taking land, by the English statute, is limited to three years, an important question has arisen there, in regard to the effect of instituting proceedings, by giving notice to treat, within the time limited, although not in season to have the matter brought to a close before its expira- tion. 2. This having been done, and the land-owner having intimated his desire that a jury should be summoned, but the company taking no further steps, the question was whether a writ of man- damus would lie, after the prescribed period had elapsed, to compel the company to proceed to summon a jury. It was determined in the affirmative. 1 in a town or not. A land-owner is not entitled to the costs of an inquiry whether the land is of less value than the cost of crossing. Cobb v. Mid Wales Railw., Law Rep. 1 Q. B. U>. > Reg. v. ( iottle, 3 Eng. L. & Eq. 474 ; s. c. 16 Q. B. 412. 3 Elliott v. South Devon Railw., 2 Exch. 725. See also Carington v. Wycomb Railw., Law Rep. 2 Eq. 825. 1 The Queen v. Birmingham & Oxford Junction Railw., 15 Q. B. 634; s. c. [*356] § 88. NOTICE TO TREAT FOR PURCHASE OP LAND. 373 * 3. So, too, where the company have taken possession of land, by depositing the value of the land in the Bank of England, and executing a bond to the party to secure payment, subject to future proceedings, as they may do, and where the company took no further steps to ascertain the sum to be paid by them, as compensation, until the time limited for exercising their com- pulsory powers had expired, it was held, that having rightfully entered upon the land before the expiration of the prescribed period, an ejectment could not be maintained against them after that period. The proper remedy for the land-owner is by writ of mandamus. 2 4. So, also, if they have made the deposit, and given a bond for the payment of the price, under this same section, 3 a day before 6 Railw. C. 628; Birmingham & Oxford June. Railw. Co. v. Regina, 1 El. & Bl. 293; s. c. 4 Eng. L. & Eq. 276, where the judgment of the Q. B. was fully affirmed in the Exchequer Chamber. The court say, " The notice to treat is an inchoate purchase, and after that has been given, in due time, it is competent for the land-owner to compel the completion of the purchase." But where an annu- itant, having power to enter upon land and distrain for his security, was served with notice by a railway company of their intention to purchase, and the com- pany subsequently purchased the property of a prior mortgagee, who had a power of sale, it was held the annuitant could not, in equity, compel the company to pay the owners of the annuity, he alleging no fraud or other improper conduct on the part of the company. Hill v. Great Northern Railw., 5 De G., M. & G. 66; s. c. 27 Eng. L. & Eq. 198, reversing the decision of one of the Vice-Chancellors in s. c. 23 Eng. L. & Eq. 565. See also Met. Railw. Co. v. Woodhouse, 11 Jur. (N. S.) 296. If the land-owner lie by an unreasonable time, he cannot maintain mandamus, or where the company abandon their notice to take part of land upon the owner serving notice to take the whole. Quicke ex parte, 13 W. R. 94. * Doe d. Armistead v. The N. Staffordshire Railw., 16 Q. B. 526; s. c. 4 Eng. L. & Eq. 216. The expression " deviation," which appears in the acts of parliament and in the English cases, is here determined to import the distance from the line of railway upon the parliamentary plans which are the basis of the charter, and one hundred yards "deviation" is commonly allowed, in the acts. Worsley v. The South Devon Railw. Co., 16 Q. B. 539; s. c. id. 223. See also Lind v. Isle of Wight Ferry Co., 7 L. T. (N. S.) 416. The courts will restrain the company within the limits of deviation allowed by the act, even where the plans deposited contain no limitation. Higley v. Lan. & Y. Railw. Co., 4 De G., M. & G. 352. The line of deviation controls the right rather than the delineations on the plan. Weld v. So. Western Railw. Co., 32 Beav. 340; Knapp v. London, Chatham & Dover Railw., 2 H. & C. 212. 3 The Marquis of Salisbury v. The Great Northern Railw. Co., 17 Q. B. 810; s. C. 10 Eng. L. & Eq. 344. The position is here distinctly assumed, that after [*357] 374 REMEDIES HY LAND-OWNERS UNDER ENGLISH STATUTE. PART III. the efflux of the time limited, although they had not entered upon * the land, their powers to purchase or enter upon the lands are sa\. \ 1 1 - i where a railway company gave notice to a tenant at will to take part of the lands, and the company was allowed to take possession and complete their line, and afterwards a person, who had, subsequently to the notice, purchased one-ninth of the land, filed a bill merely praying an injunction to restrain the railway company from entering upon, continuing in possession of, or otherwise interfering with the land, the bill was dismisssd with costs. 4 6. But it seems to be considered that mere notice by a railway company of an intention to take land, may be withdrawn if done before the company have taken possession of the land, or done any thing in pursuance of the notice. 5 And this is especially true where the land consists of a house and appurtenances, and the notice only extends to taking a part of the land, and the owner requires the company to take the whole land with all the buildings. 7. It is no objection to a notice to take land for the use of a railway company that it does not declare the use for which it is the notice to treat, the parties stand in the relation of vendor and purchaser, and the company are not at liberty to recede. All the after proceedings are merely for the purpose of ascertaining the price of the land. Sparrow v. Oxford & Worcester Railw. Co., 9Hare,436; s. c. 12Eng. L. &Eq. 249. The owner of the land, upon which a railway has been constructed by the consent of such owner, still retains liis lien upon the land for the price. Pell v. N. & B. Railw., 16 W. R. 1077 : 9. C. 17 id. 506 ; Eyton v. D. B. & C. Railw., id. 546. 4 ( arnochan v. Norwich & Spalding Railw., 26 Beav. 169. But a notice to treat, in order to become the inception of title, must be followed up within a >nablc time, or it will be regarded as abandoned. Hedges v. The Metro- politan Railw. Co., 28 Beav. 109 ; s. c. 6 Jur. (N. S.) 1275. 5 King v. The Wycombe Railw. Co., 6 Jur. (N. S.) 239; s. c. 28 Beav. 104; Gardner o. I haring-< Iross Railw. Co., 2 J. & H. 248; s. c. 8 Jur. (N. S.) 151. Where the company agree verbally to take the whole of a house and land, that is a valid waiver of notice under the statute, and will be enforced in equity. Binney v. Hammersmith & City Railw. Co., 9 Jur. (N. S.) 773. Tenant coming into poss< ssion of land after notice to treat, and before proceedings taken, is entitled to renewal of notice, so as to make him a party. Carters. Great Eastern R. < ... 9 dm-. ( \. S.) 618. And a notice to take land will not enable the com- pany to proceed and complete title after their powers for compulsory purchase have " wed. Richmond v. Xorth London Railw., Law Rep. 5 Eq. 352. But see post, § 89, pi. 2, n. 4. [*358] 589. REQUISITES OF THE NOTICE TO TREAT. 375 proposed to be taken ; nor will it affect the title of the company that it is taken for a station for the joint use of that and another company, which latter company could not have taken the land for their own use alone. 6 ♦SECTION IV. Requisites of the Notice to Treat. Notice to treat must, in terms or by refer- ence, accurately describe land. After notice to treat company compellable to purchase. Company cannot retract after giving notice to treat. 3. Neio notices given for additional lands. 4. Power to take land not lost by former un- warranted attempt. 5. Lands may be taken for branch railway. 6. Effect of notice in case of a public park. § 89. 1. As by the English statute the notice to treat is made the act of purchase, it is of the first importance that it should describe the lands accurately. But even where the notice was in- definite, if it be accompanied with a plan which shows the very land proposed to be taken, it will be sufficient ; 1 or reference may be made to the parliamentary plan. 1 The company can only claim to use what their notice and the annexed plan show clearly was submitted to the appraisers to value. 2 2. It was held long ago in the English courts, under similar statutes for taking land by compulsion, that the notice to treat constituted the act of purchase, and that after giving it there remained no longer to the company any power to retract, and they will be compelled by mandamus to complete the purchase. 3 Nor can the company after requiring the tenant to give up to them the 6 Wood v. Epsom & L. Railw. Co., 8 C. B. (N. S.) 731. 1 Sims v. The Commercial Railw., 1 Railw. C. 431; Hodges on Railways, 197. 2 Kemp v. The London & Br. Railw. Co., 1 Railw. C. 495. 3 The King v. Hungerford Market Co., 4 B. & Ad. 327; Same v. Commis- sioners of Manchester, id. 332, n. ; Doo v. The London & Cr. Railw., 1 Railw. C. 257; Burkinshaw v. Birin. & Ox. June. Railw. Co., 5 Exch. 475; s. C. 4 Eng. L. & Eq. 489 ; Ed. & Dundee Railw. Co. v. Leven, 1 Macq. House of Lords Cases, 284; Stone v. The Commercial Railw. Co., 9 Sim. 621; s. c. 1 Railw. ('. 375. When variance from notice will not vitiate precept, see Walker v. The London & Bl. Railw. Co., 3 Ad. & El. (N. S.) 744; Reg. v. York & North Midland R. Co., 1 El. & Bl. 178, 858 ; Reg. v. Ambergate & C. R. Co., id. 372. See ante, § 88, pi. C, and notes. [*359] 876 REMEDIES BY LAND-OWNERS UNDER ENGLISH STATUTE. PART III. jsion of his land before the expiration of his term, afterwards Burrender the same, especially where damage has accrued to the premises in consequence of the company taking possession. They must pay money into court. 4 And where the company had given notice to take twenty perches of land, they cannot subsequently give notice to restrict the land to one perch. 6 But the company, having issued one notice, may issue a second, requiring additional lands. 6 They are at liberty, by new notices from time to time, to take such additional lands as the progress of the work shows will be requisite. 4. Nor will the company be deprived of the power to take land for the necessary use of the works, when the emergency arises, by having previously attempted to take it for other purposes not war- ranted by their act. 7 5. And the company, having opened their main line for travel, but not completed the stations and works, are at liberty to take any lands within the limits of deviation for a branch railway. 8 6. But it was held, that where the Commissioners of Woods and 4 Pope v. Great Eastern Raihv., Law Rep. 3 Eq. 171. Notice to treat is not equivalent to requiring the tenant to surrender the possession. Queen v. Stone, Law Rep. 1 Q. 15. 529. But where the land-owner is served by the company with notice that it purposes to take land of such owner, at the end of six months, under the statute, this will bind the company to proceed and give notice to treat and take the land ; and if the company delay beyond the time fixed by the stat- ute, the land-owner will be entitled to substantial damages, and to have the con- tract carried into effect by mandamus. Morgan v. The Met. Railw., Law Rep. 4 C. P. 97, affirming s. c. Law Rep. 3 C. P. 553; 17 W. R. 261. In such cases the courts of equity will decree specific performance, especially where the defendants had been let into possession of the land on the faith of the contract. Harding v. Met. Railw., 7 Ch. App. 154. But the court will not restrain the company from running trains during the pendency of an order of sale to enforce a vendor's lien. Lycett ». Staff. & Uttoxeter Railw., Law Rep. 13 Eq. 261; The Earl of St. Germans v. Crystal Palace Railw., 11 id. 568, was not followed here. 6 Tawney v. Lynn & Ely Railw. Co., 4 Railw. C. 615. • Stamps v. Bir. Wolv. & Stour Valley Railw., 6 Railw. C. 123 ; s. c. 7 Hare, 251. 7 W< I'!' ''. Manchester & Leeds Railw., 1 Railw. C. 576 ; Simpson v. Lancaster & Carlisle Railw., L5 Sim. 580; s. c. 4 Railw. C. 625; Williams v. South Wal<^ Railw. <'..., 13 Jur. 443; s. c. 3 De G. & S. 354. " Sadd r. The Maldon, W. & Braintree Railw. Co., 6 Exch. 143; s. c. 2 Eng. L. & Eq. 110. [*360] § 90. NOTICE MAY BE WAIVED BY THE PARTY NEGOTIATING. 377 Forests gave notice of taking lands for a public park, as they were acting in a public capacity, the notice given by them did not con- stitute a quasi contract, enforcible by mandamus. 9 SECTION V. TJie Notice may be Waived, by the Party entering into Negotiation. 1. Notice must be set forth in proceedings. I 3. Certiorari denied where party has suffered 2. Agreement to waive operates as estoppel. no injury. § 90. 1. It is a general rule, in regard to all summary and in- ferior jurisdictions, that the basis of their jurisdiction must appear upon the face of the proceedings. 1 Hence in proceedings to take land in invitum, under a notice to treat, the notice being regarded * as essential to the jurisdiction, it has more generally been held indispensable to the jurisdiction that it should be set forth upon the proceedings. 1 2. But where the land-owner enters into negotiation with the company, and agrees to waive the notice, he is afterwards estopped from taking the objection, that he never received notice. 2 And it was held, that the party whose duty it was to give the notice, and who was shown by the returns to have appeared before the jury, cannot object to the inquisition upon the ground that it did not disclose a proper notice to treat. 3 3. In another case, where application was made to the King's Bench to issue a certiorari, to bring up and quash an inquisition for land damages in a railway case, on the ground of some alleged defect, the court say, the granting the writ is matter of discretion, though there are fatal defects on the face of the proceedings which .it is sought to bring up ; and that it is almost an invariable rule to deny the writ, where it appears the party has suffered no injury or has assented to the proceedings below. 4 9 Queen v. The Comm. of Woods & Forests {Ex parte Budge), 15 Ad. & Ellis (N. S.), 761. 1 Rex v. Bagsbaw, 7 T. R. 363 ; Rex v. Mayor of Liverpool, 4 Burrow, 2244 ; Rex v. Trustees of the Norwich Roads, 5 Ad. & Ellis, 563. * Reg. v. The Committee for the South Holland Drainage, 8 Ad. & Ellis, 429. 3 Reg. v. The Trustees of Swansea Harbor, 8 Ad. & Ellis, 439. 4 Reg. v. The Manchester & Leeds Raihy. Co., 8 Ad. & Ellis, 413. [*361] 378 REMEDIES BY LAND-0WNEE8 UNDER ENGLI8B STATUTE. PART III. SECTION VI. Title of the Claimant must be distinctly stated. ■mint's reply to notice should bt clear and anew a _• l i ./ bad, ir/iich does not state claim- ant's 3. Where lands are held by receiver or com- mission for a lunatic. Expression "fee- simple in possession." n. 3. Analogous American cases. §91. 1. In reply to a notice to treat, the claimant may state the particulars of his claim and proceed to treat. In this case the statement should give a clear description of the claimant's interest in the land, as a defect here is liable to affect the validity of the after proceedings. 2. In one case where the claimant's answer to the notice to treat stated that, as trustees under a will, they claimed an estate in copyhold, and a certain sum as compensation for their interest in the lands, and appointed an arbitrator, and the other party * appointing one, and an umpire being agreed upon, he awarded a certain sum as the value to be paid to the trustees, " for the pur- chase of the fee-simple, in possession, free from all incum- brances ; " the company applying to set aside the award, upon the ground that other persons claimed an interest in the lands, the court held the award bad, for not finding the interest of the claimants in the land, or that they had a fee-simple which it ap- praised. But the court did not set the award aside, but left the company to dispute it, when it should be attempted to be enforced. 1 3. If the lands are in possession of a receiver, or the committee of a lunatic, a special application should be made to the Court of Chancery. 2 The claimant cannot object that the award describes the laud as a fee-simple in possession, whereas, the land is in pos- ision of a tenant. Lord Denman, C. J., in giving judgment says, •' The answer is that such assumption, if really made, is in North Staffordshire Railw. Co. v. Landor, 2 Exch. 235. ■ In re Taylor and York X. Midland Railw., 1 Hall & Twells, 432; s. c. 6 Railw. Ca8. 711. In this case the Lord Chancellor said, "All the world ought to be aware, that, the sanction of the Lord Chancellor is necessary to be obtained in the 6rst instance, in cases like the present." [*362] § 91. TITLE OF CLAIMANT MUST BE DISTINCTLY STATED. 379 favor of the claimant, and therefore no matter of complaint for him. But it does not appear clearly that any such assumption was made. The expression ' fee-simple in possession,' in the claim, is used in contradistinction to fee-simple in reversion or remainder." s 3 Bradshaw and the East & W. I. Docks and Birmingham J. Railw. Co., 12 Ad. & Ellis (N. S.), 562. The vendor of land to a railway company docs not waive his lien for damages by accepting a certificate of deposit made by the cashier of the company for the purchase-money, the money not being paid when called for. Mims v. Macon & W. Railw. Co., 3 Kelley, 333. Where a company received a grant of certain salt mines, subject to a condition which they did not comply with, but retained the lands for a different purpose, and afterwards, when the period for performing the condition had expired, a general grant of all unoccupied salt lands in the state, necessary to use, for constructing a railway, was made to a railway company, who proceeded and occupied the lands above-named, it was held that the first grantors had no interest or title enabling them to maintain an action for damages. "They had the lands set apart to their use, for making salt, and had no right to enter upon and occupy them for any other purpose," are the words of the court. Parmelee v. Oswego & Syracuse Railw., 7 Barb. 599. The statute of Pennsylvania gives the right to construct lateral railways over intervening lands, to the owner of lands, mills, cpiarries, coal, or other mines, lime-kilns, or other real estate, in the vicinity of any railway, canal, or slack- water navigation. It was held, that one who was in possession of the land, on which a coal-mine was, at the commencement of the proceeding to recover land damages, and who had erected a two-story dwelling-house upon the land, was an owner of the coal-mine within the act. Shoenberger v. Mulhollan, 8 Penn. St. 134. It is sufficient in such case that the petition be signed by the lessee and agent of the owner. Harvey v. Lloyd, 3 Penn. St. 331. It is considered necessary that the mortgagee of land should become a party to the proceedings for condemning or granting land to a railway, in order to give good title to the company. Stewart v. Raymond Railw., 7 S. & M. 5G8. Or that he should give his consent, in writing, to the proceeding taken by the mortgagor in the case. Meacham v. Fitchburg Railw., 4 Cush. 291 ; s. c. 1 Am. Railw. Cas. 584; s. c. 1 Redf. Am. Railw. Cases, 276. But the mortgagor may recover the full amount of damage, without regard to mortgages. Breed v. Eastern Railw., 5 Gray, 470. Where the state held land for a state prison, and granted the charter of a railway, in the usual form, authorizing the company to locate their road, so that it might pass over the land of the state, so held, but without any ex- pression in the act of a design to aid the company in their undertaking, it was held the state might recover damages for the land taken. The court say, " The inquiry relates solely to the property of the Commonwealth, which it holds in fee in its capacity as a body politic. It appears to us the question is purely one of inten- tion.' 1 — "We think if the legislature had intended to aid the enterprise by an appropriation of money, land, or other means, — such aid being unusual, — the purpose to do so would have been in some way expressed." Commonwealth v. Boston & Maine Railw., 3 Cush. 25; s. c. 1 Am. Railw. Cas. 482, 496, 497. [*362] 380 REMEDIES BY LAND-OWNERS UNDER ENGLISH STATUTE. PART III. ♦SECTION VII. The ( 'I dim of the Land-owner must correspond with the Notice. 8 92. In one case the claim of the land-owner described more land than the notice to treat, being intersected land, less than one- half acre, which the company are bound to take if so required. But the claim did not properly designate the portion which, it was claimed, the company should take under their notice, and that which they were required to take, as intersected land. The umpire received evidence as to the value of the intersected land, and awarded one entire sum as compensation for the whole. Held that the award was bad, there being no valid submission as to intersected lands. 1 1 The N. Staffordshire Railw. v. Wood, 2 Exch. 244. [*363] §93. LANDS TAKEN OR INJURIOUSLY AFFECTED. 381 *CHAPTER XIII. ENTRY UPON LANDS BEFORE COMPENSATION IS ASSESSED. SECTION I. Lands taken or Injuriously Affected, without having previously made Compensation to the Parties. 1. No entry under English statutes ivithout previous compensation, except for pre- liminary survey. 2. Legal remedies against company offending. 3. What acts constitute taking possessioii un- der statute. 4. Company may enter with land-owner' s con- sent after agreement for arbitration. 5. Bond may be given in certain cases. 6. Company restrained from using land, un- til price paid even after line in opera- tion. But this rule dissented from. § 93. 1 . The eighty-fourth section of the English statute, The Lands Clauses, &c, provides, that no entry shall be made upon any lands by the company until compensation shall have been made under the act, or deposited in the Bank of England, except for the purpose of preliminary surveys, and probing or boring to ascertain the nature of the soil, which may be done by giving notice, not more than fourteen days or less than three days, and making compensation for any damage thereby occasioned to the owners or occupiers of such lands. 2. It has been considered that if the company enter upon lands without complying with the requisitions of the statute, they are liable in trespass or ejectment. 1 And in some cases an injunction will be granted. But where the company entered to make pre- liminary surveys, without giving the requisite notice, the court refused to order the injunction, but reserved the question of costs. 2 1 Doe d. Hutchinson v. The Manchester, Bury, and Rosendale Railw., 14 M. & W. 687; Graham v. Columbus & Ind. Railw., 27 Ind. 260. The legislature in this country may give railway companies the right to enter upon lands for the purpose of preliminary surveys without compensation. Fox v. Western Pacific Railw., Sl'Gal. 538. * Fooks v. The Wilts, Somerset, and Weymouth Railw., 5 Hare, 199; 8. c. [*364] 382 BNTM BEFORE COMPENSATION IS ASSESSED. PART III. And where the entry was regularly made upon the land, for preliminary surveys, and afterwards the contractors, without the knowledge of the corporation, but with the consent of the occupy- ing tenants, brought some of their wagons and rails and other implements upon the land, but did not commence the works or do any damage, and this was without the assent of the owner, and his agent thereupon filed a bill to obtain an injunction against taking possession of the lands until they had complied with the statute, the Yioe-Chancellor said, that although the company were bound by the acts of their contractors, the acts done were not a taking possession within the meaning of the statute, and that the bill was improperly filed. 3 4. But where the company agreed with the land-owner that the question of compensation should be settled by arbitration, and thereupon entered upon the land, by consent of the owner, and the arbitrator made an award, which became the subject of dispute, and the owner thereupon gave the company notice to quit, and brought ejectment, it was held he could not recover, although the company had not tendered the money awarded, or a conveyance, but that the owner's remedy was to proceed upon the award. 4 The notice to quit under the circumstances did not make the company trespassers. 5. By the eighty-fifth section, if the company find it necessary to enter upon land, for the purpose of carrying forward their works, before the amount of compensation can be settled, they may deposit in the bank the amount claimed, or in other cases the appraisal, and also give the party a bond with surety, to be ap- proved by two justices in a penal sum equal to the amount so deposited, conditioned for the payment or deposit of the amount finally fixed as the ultimate value and interest thereon, and then take possession of the land and proceed with their works. The 4 Railw. C. 210. In this case the injunction was denied, chiefly upon the ground that the alleged trespass was complete before the application. The court intimate that if the company should attempt to proceed further it might be proper to restrain them by injunction. The point of the company being in the wrong, is distinctly recognized by the court. 3 Standisb o. .Mayor of Liverpool, 1 Drewry, 1 ; s. c. 15 Eng. L. & Eq. 255. 4 Doe ■/. Hudson v. The Leeds and Bradford Railw., 16 Q. B. 796; s. c. 6 i. L. & Eq. 283. The decision here goes chiefly upon the ground of the consent of the land-owner to the entry of the company, and to refer the com- pensation to an arbitrator. [*365] § 93. LANDS TAKEN OR INJURIOUSLY AFFECTED. 383 company can obtain their money so soon as the condition of the bond has been complied with. But the vendor must join in the petition for the money to be paid the company, or else it must * be shown that he has been served with a copy of the petition. 5 It does not invalidate the bond, if it bear date before the date of the valuation.* 3 6. Where a railway company took land for the construction of their road, without paying the price, and after completing their works leased the line to another company, it was held, upon a bill against both companies, to compel the payment of the land dam- ages, that a decree must pass for the plaintiff for payment by the first company, and in default that both companies be restrained from using the land. 7 But where the price of lands so taken had 5 Ex parte South Wales Railw. Co., 6 Railw. C. 151. But in ex parte The Eastern Counties Railw. Co., 5 Railw. C. 210, the money was ordered to be paid to the company upon affidavits showing the claim settled. The land-owner has no lien upon the money deposited for costs, but the company are entitled to the money upon payment of the sum finally settled for the value of the land. The Great Northern Railw. Co. ex parte, 5 Railw. Cases, 269 ; London & South W. R. ex parte Stevens, 5 Railw. C. 437. The bond must be given in the very terms of the statute. Hosking v. Phillips, 3 Exch. 168, opinion of Parke, B. And it will make no difference that the obligee is a gainer by the deviation from the statute. Poynder v. Great Northern Railw. Co., 16 Sim. 3 ; s. c. 5 Railw. C. 196. But where the company choose to treat for the claimant's title only, it is suffi- cient if the bond follow the statute, so far as it applies to that particular case. Willey v. Southeastern Railw. Co., 1 Hall & Twells, 56 ; s. c. 6 Railw. Cas. 100. Opinion of Lord Chancellor, 107, 108. If the company enter by consent of the tenant, and do permanent damage to the land, the owner may nevertheless obtain an injunction and compel them to make a deposit and give a bond as required by the statute. Armstrong v. Waterford & Limerick Railw. Co., 10 Irish Eq. 60. If there is a mortgage upon land, the company must treat with the mortgagee, or provide for the expense of reinvestment for his benefit, or their entry will be regarded as unlawful. Ranken v. East and West India Docks & Bir. J. Railw., 12 Beavan, 298; 19 L. J. Ch. 153. Under the general statutes, in many of the American states, where there are conflicting claims to the land required by a railway company, the company are required to make application to the Court of Chancery, and deposit the money, in bank, subject to the final order of that court. In such case it has been considered that the company had no inter- est in the controversy, after depositing the money for the price of the land. Haswell v. Vermont Central Railw., 23 Vt. 228. Stamps v. Birmingham, Wolverhampton, & Stour Valley Railw., 6 Railw. C. 123. 7 Cozens v. Bognor Railw. Law Rep., 1 Ch. App. 594, Turner, L. J., dis- senting. But see ante, § 73, n. 7. [*36G] 384 ENTRY BEFORE COMPENSATION IS ASSESSED. PART III. been Becured by bond, which had not been paid, it was held the company, after having constructed their road, could not be re- strained *by injunction from continuing to occupy the land until they paid the purchase-money. 8 And this, it seems to us, is the correct view of the matter, that the land-owner by accepting secu- rity, or even the promise of the company, for land damages, and allowing them to apply the land to the purposes of constructing their works, so essentially converted its nature, as to lose all lien upon it for the price. 9 SECTION II. The proceedings requisite to enable the Company to enter upon Land. 1. Provisional valuation under English stat- utes. '._'. / Hilarities in proceedings. 3. Penalty for irregular entry upon lands. 4. Entry after verdict estimating damages, but before judgment. 5. Mode of assessing damages provided in charter not superseded by subsequent general railway act. §94. 1. In some cases specified in the English statute, it is necessary to have a provisional valuation of land, by a surveyor appointed by two justices, to determine the amount of the security to be given before the entry of the company upon the laud. Where in such cases the justices appointed a surveyor, who had all along acted for the company, to appraise the value, it was held no» sufficient reason to interfere, by injunction, but the court reprobated such a practice. The court also declined to interfere, by injunction, on the ground that the sureties on the bond were the company's solicitors, and were upon similar bonds to a large amount. 1 " Pell v. Northampton & Banbury Railw. Law Rep. 2 Ch. App. 100 ; s. c. 12 Jur. (N. S) 897. The lessee is a proper party in such case. Bishop of Winchester v. Midhants Railw. Law Rep. 5 Eq. 19. g 7:;. and notes ; § 65, pi. 6, and cases cited. 1 Langham v. Great Northern Railw., 1 De Gex & Smale, 486 ; s c. 5 Railw. C. 265, 266. This case was in favor of five plaintiffs, three tenants in common, and two devisees in trust for the sale of the lands, and it was queried, whether there was not a misjoinder. [*367] § 94. PROCEEDINGS REQUISITE. 385 2. In the same case it was considered that depositing money and executing a bond to tenants in common, in their joint names, was irregular. 1 It was held that the proceedings under the 85th sec- tion of the English act, to obtain possession of the land before the * amount of compensation is settled, may be ex parte, and altogether without notice. 2 8. The English statute subjects the company to a penalty for entering upon lands before taking the steps required by the statute, but provides, that the penalty shall not attach to any com- pany, who have bona fide done what they deemed to be a com- pliance with the statute. 3 4. If one enter upon lands after verdict estimating damages, but before judgment on the verdict, he is liable in trespass, but only for the actual injury, and not for vindictive or exemplary damages.* 5. It has often been made a question in this country, where the charter of a railway provides one mode of assessing land damages, and a subsequent general railway act provides a dif- ferent mode, which the company are bound to pursue. It has been held the company might st,ill pursue the course pointed out in their charter. 5 3 Bridges v. The Wilts, Somerset, and Weymouth Railw., 4 Railw. C. 622. This is a decision of the Lord Chancellor affirming that of the Vice-Chancellor of England. Poynder v. The Great N. Railw. Co., 16 Sim. 3; s. c. 5 Railw. C. 196. In this case the bond was held to be informal, for being made to be per- formed " on demand ; " the Lord Chancellor refused a perpetual injunction, but allowed it till the bond was corrected. 3 Hutchinson v. The Manchester, Bury, and Rossendale Railw. Co., 15 M. & W. 314. Pollock, C. B., thus lays down the rule of construction of this statute : " A penal enactment ought to be strictly construed, but a proviso, which has the effect of saving parties from the consequences of a penal enactment, should be liberally construed. 4 Harvey v. Thomas, 10 Watts, 63. 8 Visscher v. Hudson River Railw., 15 Barbour, 37 ; Hudson River Railw. v. Outwater, 3 Sandf. Sup. Ct. 689 ; ante, § 72, n. at the end. vol. i. 25 [*868] 386 ENTRY BEFORE COMPENSATION IS ASSESSED. PART III. SECTION III. 1/ de of obtaining Compensation under the Statute , for Lands taken, or injuriously affected, where no Compensation is offered. 1. Claimant may elect arbitration or jury I 2. Method of procedure, trial. $ 95. 1. Where land is taken by the company, or injuriously affected by their works, and no compensation has been offered by the company, the claimant may, where the amount exceeds * fifty pounds, have the same assessed, either by arbitrators or a jury, at his election. 2. If he desire to have the same settled by arbitration, he shall give notice to the company of his claim, stating his interest in the land and the amount he demands, and unless the com- pany within twenty-one days enter into a written agreement to pay the amount claimed, the same shall be settled by arbitration, in the manner pointed out in the statute; or, if the party desire to have the same settled by a jury, he shall so state in his notice of claim, and unless the company agree to pay the sum claimed, in the manner stated above, they shall within twenty-one days issue their warrant to the sheriff to summon a jury to settle the same, in the manner pointed out in the act, and in default thereof they shall be liable to pay the amount claimed, to be recovered in the superior courts. 1 SECTION IV. The Onus of carrying forward Proceedings. 1. Rests upon claimant after company have tuli a possession. 2. Miscellaneous provisions. 3. Proceedings cannot be had unless actual possession is taken or injury done. i 96. 1. It has been held, under the English statutes, that after the company have taken possession of land, either by right or by wrong, the onus of taking the initiative steps to have the 1 8 & 9 Vict. c. 18, § 68. [*369] § 96. THE ONUS OP CARRYING FORWARD PROCEEDINGS. 387 purchase-money or compensation assessed, lies upon the claim- ant. 1 It was considered in this case, that the remedy under the 68th section 2 applied to all cases where the company took posses- sion of the land under the 85th section. 3 2. But if questions in equity are pending, they must be dis- posed * of before the common-law remedy can be pursued. 4 This was a case where the determination of the matters pending in equity was necessary to enable the parties to know what was to be submitted to the assessors. 4 In proceedings under the 68th section, it is not necessary for the company to give the claimant notice of their issuing a warrant to the sheriff to summon a jury, ten days before they issue it, as is required in proceedings under the other sections. 5 It was held, that if the claimant recover a larger sum than was offered by the company, he is entitled to re- cover costs under section 68, as well as under other sections. 5 3. It is considered that the land must be actually taken, or actually injuriously affected by the company, before the claimant can take proceedings under section 68. Hence if the company give notice of their intention to take lands, but do not afterwards actually take possession or injuriously affect them, the claimant can only proceed by mandamus. It has been decided that the claimant in such case cannot make a demand of a certain sum, and then recover it, if the company do not issue their warrant to the sheriff. 6 1 Adams v. The London & Blackwall Railw. Co., 2 Hall & Twells, 285 ; s. c. 6 Railw. C. 271, 282; the opinion of the Lord Chancellor on appeal. It was also considered, in this case, that if the company failed to perform their duties in the proceedings, the more appropriate remedy was by mandamus, and not by application to the courts of equity for decree of specific performance. 2 See ante, § 95. 3 See ante, §§ 93, 94; Doe d. Armistead v. North Staffordshire Railw. Co., 16 Q. B. 526 ; s. c. 4 Eng. L. & Eq. 216. 4 Southwestern Railw Co. v. Coward, 5 Railw. C. 703 ; s. c. 1 Hall & Twells, 377, note. 6 Railstone v. The York, Newcastle, & B. Railw. Co., 15 Ad. & Ellis (N. S.), 404. This case is somewhat questioned in Richardson v. Southeastern Railw., 11 C. B. 154; s. c. 6 Eng. L. & Eq. 426. But in this same case, in error, in the Exchequer Chamber, 9 Eng. L. & Eq. 464, the question as to costs is affirmed, and the court say, it is not necessary to say whether they consider the case of Railstone v. The York, N. & B. Railw. Co. sound or not, as it does not neces- sarily affect the question before the court. 6 Burkinshaw v. Birmingham & Oxford Junction Railw. Co., 5 Excheq. 475. [*370] ENTRY BEFORE COMPENSATION IS ASSESSED. PART III. SECTION V. Equity will not interfere by Injunction, because Lands are being Injuriously Affected, without notice to treat, or previous compen- sation. Hunt must wait until works are com- Jih ti (I. ■ i nee of land will be greatly altered. o. How far equity interferes where legal claim of party is denied. 4. Where a special mode of compensation has been agreed upon. § 97. 1. It is said courts of equity will not interfere by in- junction, because lands are being injuriously affected by the * company's works, and no notice to treat or previous compensa- tion has been made, if it appears the company are only exercis- ing their statutory powers. The claimant should allow the works to be completed, and then take his remedy under the statute. 1 2. It was objected, in one case, that the company would be likely to greatly alter the appearance of the land which they had entered upon, and that a jury could not understandingly assess the value after the damages were sustained, but the court said it was no ground for the interference of a. court of equity. 2 3. The courts in England hold, that in this class of claims it is proper to wait till the full extent of the injury is known. 3 And equity will not enjoin the party from proceeding under the statute, in a case where it is alleged that he has no legal claim under the statute, 4 as in such case the company may defend 1 8 & 9 Vict. c. 18, § 68. 2 Langham v. Great Northern Railw., 1 De G. & Sm. 486; 8. c. 5 Railw. C. 263. The counsel for defendant not called to answer this portion of plaintiff's argument. J Ilutton o. The London & Southw. Railw. Co., 7 Hare, 259. 4 Bast & West India Docks & Bir. J. Railw. Co. v. Gattke, 3 Mac. & Gor. 155 ; s. c. 3 Eng. L. & Eq. 59; South Staffordshire Railw. Co. v. Hall, 1 Sim. (N. S.) :!73; s. c. id. 105. In this last case, the opinion of Lord Cranworth -'• me to overrule that of Lord Cottenham in the London & N. W. Railw. Co. v. Smith, 1 Hall & Twells, 364; s. c. 5 Railw. C. 716. The Sutton Harbor Im- provement ( o. v. Hitcbins, 15 Reav. 161 ; s. c. 9 Eng. L. & Eq. 41 ; The London & N. \V. Railw. Co. v. Bradley, 3 Mac. & Gor. 366 ; s. c. 6 Railw. C. 551. See al»o Monchet v. G. \Y. Railw. Co., 1 Railw. C. 567. But see the case of L. & [*371] § 98. CANNOT DETERMINE TITLE : ONLY DAMAGES. 389 against the award, and this seems to be the course finally deter- mined upon. But some actions at law have been brought and sustained to try the right, by order of the courts of equity. 5 4. So, too, where the bill alleges that the party has upon consideration agreed to receive compensation in a particular mode, equity will enjoin him from taking proceedings under the statute. 6 * SECTION VI. Sheriff's Jury, or Arbitrator, cannot determine the Question of Right in the Claimant, but only the amount of Damages. 1. Later English decisions sustain this view. I 5. Plaintiff' will recover damages assessed if 2, 3. Statement of recent case. he suffered any legal injury. 4. In most American states assessment is final. I § 98. 1. There has been some contrariety of opinion among the English judges in regard to the right of the company, before the sheriff's jury, to raise the question of the claimant's right to recover any compensation, under the sixty-eighth section, where lands are taken or alleged to be injuriously affected by the works of the company ; and whether the jury can go into any inquiry beyond that of the value of the claimant's interest in the land. The latest decisions upon this point hold, that the jury is confined to the question of the amount of compensation. 1 2. In the very latest English case (1857), upon this subject, 2 the judges of the Court of Queen's Bench differed in opinion, and Y. Railw. v. Evans, 14 Beav. 529 ; s. c. 19 Eng. L. & Eq. 295, where the case of L. & N. W. Railw. v. Smith is still further questioned. ' 5 Glover v. The North Staffordshire Railw. Co., 16 Q. B. 912.; s. c. 5 Eng. L. & Eq. 335. 6 Duke of Norfolk v. Tennant, 9 Hare, 745 ; s. c. 10 Eng. L. & Eq. 237. 1 Regina v. Metropolitan Comin. of Sewers, 1 El. & Bl. 694 ; s. c. 18 Eng. L. & Eq. 213. * Regina v. The London & Northwestern Railw. Co., 3 El. & Bl. 443; s. c. 25 Eng. L. & Eq. 37. And the same rule is extended to the finding of arbi- trators that premises were injuriously affected by the narrowing of a way of approach, by means of the company's embankment; the award is not conclusive upon the point of the injurious effect. Beckett v. Midland Railw., L. R. 1 C. P. 241. [*372] ENTRY BEFORE COMPENSATION IS ASSESSED. PART III. delivered opinions seriatim. Coleridge, J., and Lord Campbell, C. J., and Wightman, J., holding that the jury had nothing before them but the quantum of damages, and that whether the company declined to issue iheir warrant to the sheriff, or did issue it, in both is, the right to recover any damage on account of a claim for the injuriously affecting of land, was to be tried upon the action, to recover the amount assessed, in the courts. The proceedings under the statute were held, by the majority of the court, to be merely for the purpose of fixing the amount of the claim. If, indeed, the company stood still upon the question of right, they were liable, in the event of the claimant's recovery, for the full amount of the claim made ; but if they proceeded to a hearing before the arbitrator or a jury, * whichever course the claimant should elect, they might not only contest the amount there, but the right of any recovery in the action which the claimant was compelled to bring, to obtain execution against the company, but that it was improper to go into any inquiry before the arbitrator or the jury, in regard to the right to recover any thing, inasmuch as this tended improperly to embarrass the mind of the triers in regard to the damages. And in this case, where the jury went into the question of right, and determined the claimant had no right, but added, if he had such right his claim should be valued at £150, the majority of the court determined that the former part of the verdict could not be rejected, and let the verdict stand as a good finding of the sum named, which last point seems rather too refined for common apprehension, even after reading attentively the elaborate opinion of the majority of the court by Coleridge, J. 3. Mr. Justice Erie dissented from the principal decision of the court, and held the verdict good in all respects. But this case must be regarded as settling the question of the right of the jury to pass upon the claim beyond its mere amount, at least under the English statutes. 4. In most of the American states the assessment of land dam- ages, by whatever tribunal, becomes final, unless appealed from, and execution issues without resort to a future action ; or, if an action is necessary upon awards of arbitrators, this will not justify a re-examination of the case, either upon the question of title or amount of damages. But in some of the states, the proceedings are similar to those above-named in the English courts. 3 3 Ante, § 72. [*373] 99. EXTENT OP COMPENSATION TO LAND-OWNERS. 391 5. And under the English statutes, where the claim is for in- juriously affecting land, the plaintiff must recover the entire amount of damages assessed to him for land taken by a railway, unless the defendant's pleas show that he had no right to recover 4 to anv extent. *SECTION VII. The extent of Compensation to Land-owners, and other Incidents by the English Statutes. 1. Liberal compensation allowed. 2. Decisions under English statutes. 3. Limit of period for estimating damages. 4. Whether claim for damages passes to the devisee or executor. 5. Vendor generally entitled to damages ac- cruing during his time. § 99. 1. In one of the early cases 1 upon this subject, Lord Denman, C. J., said, we think it not unfit to premise, " that where such large powers are intrusted to a company to carry their works through so great an extent of country, without the consent of the owners and occupiers of land through which they are to pass, it is reasonable and just that any injury to property, which can be shown to arise from the prosecution of those works, should be fairly compensated to the party sustaining it." But this must be received under some limitations. For it is siipposable, that pos- sible remote injuries may accrue to property, of a general and public character, which it was never intended to compensate. 2. Some points arising under the English statute may be here referred to. It was held that where the powers conferred upon a canal company were unlimited as to time, no limitation as to their exercise could be assigned, so as to require their exercise within a reasonable time, 2 and consequently that the works might be re- sumed at any period. 2 Future damages to accrue to land-owners 4 Mortimer v. South Wales Railw. Co., 5 Jur. (N. S.) 784; s. c. 1 Ellis & Ellis, 375. 1 Reg. v. Eastern Counties Railw., 2 Q. B., 347. 1 Thicknesse v. The Lancaster Canal Co., 4 M. & W. 472. Lord Abinger, C. B., intimates an opinion here, that possibly, after a long delay of the com- pany to proceed with their works, and the erection of fences and buildings, by [*374] 892 ENTRY BEFORE COMPENSATION IS ASSESSED. PART IIT. cannot be estimated properly 3 until after the completion of the works.' The compensation, when given, fixes the rights of the parties, upon the basis of its estimation, as, if the estimation is had upon the footing of an entire severance of the land, the land-owner has no right to cross the track. 4 And where this did not * suffi- ciently appear, by the record of the verdict, that not having been made, held that parol evidence might be given of the finding, and of the grounds upon which it proceeded. 4 3. Where consequential damages to existing works, by the erec- tion of new ones are requi .ed to be compensated, the period for estimation is limited to the yearly value of the works, antecedent to the passing of the act. 5 4. The devisee is entitled to claim consequential damages and not the executor. 6 But where one contracted to sell freehold estates and died before the money was paid ; under the London Bridge Improvement Act, it was held the money should go to the executor. 7 But the cases are not uniform upon this subject, and the usual course seems to be, that the money for consequential damage goes to the party interested in the inheritance, or else is divided according to the interest of the several estates. 8 In one case it was held, that the vendee was entitled to compensation, which accrued during the time of the vendor's title, but not liqui- dated till after the conveyance. 9 5. But in general the vendor is entitled to land damages ac- cruing during his time, although not collected, and often where the land-owners, in faith of the abandonment of the works by the company, a court of equity might restrain the company from completing their enterprise, notwithstanding the grant of power to do so, by parliament; but a court of law could do no such thing, pp. 490, 491. 3 Lee v. Milner, 2 M. & W. 824. * Manning v. The Eastern Counties Railw., 12 M. & W. 237. But unless it appeared by the record upon what basis the assessment was made, it seems ques- tionable, whether, upon general principles, oral evidence is admissible to show that basis. Ante, § 74, n. 6. 6 Manning v. The Commissioner under the W. I. Dock Act, 9 East, 165. • The King v. The Comm. under London Dock Act, 12 East, 477. 7 Ex parte Hawkins, 3 Railw. C. 505, and note. No other party seems to have had a counter interest in this case. 8 The Midland Counties Railw. Co. v. Oswin, 1 Coll. C. C. 74, 80; s. c. 3 Railw. C. 497 ; Danforth v. Smith, 23 Vt. .247. 9 King v. Witham Nav. Co., 3 B. & Aid. 454. [*ilT5] §100. RIGHT TO TEMPORARY USE OF LAND. 393 the works are not completed till after the conveyance. 10 The pre- sumption is, if the jury assess compensation to one person, that it is only for his interest in the premises. 11 *SECTION VIII. Right to Temporary Use of Land to enable the Company to make Erections upon other Lands. 1. Right to pass another railway by a bridge gives temporary use of their land, but no right to build abutments xipon it. 2. Right to construct a bridge across a canal gives right of building a temporary bridge. 3. And if thus erected bona fide may be used for other purposes. § 100. 1. Where one railway act gives the company power to pass another railway, by means of a bridge, provided the width between the abutments of the bridge is not less than twenty-six feet, and at the points where the bridge is to be built, the land of the second company is forty-seven feet wide, the first company have no right to build the abutments of their bridge upon the land of the second company, but having purchased adjoining land for that purpose, they have a right at law to the temporary use of the land of the second company, for the purpose of building, and this right was in effect secured to the first company by an injunction out of chancery. 1 2. So, too, where a railway company had permission to carry their road over a canal, by means of a bridge of a given descrip- tion, it was held that they might, as incident to the right of erecting the bridge, make a temporary bridge over the canal, supported partly on piles driven into the bed of the canal, to enable them to transport earth across the canal to build the necessary embankment, in the construction of the permanent bridge. 2 3. And such temporary bridge having been erected for the bona 10 Rand v. Townshend, 26 Vt. 670. 11 Rex v. Nottingham Old Waterworks, 6 Ad. & Ellis, 355. 1 Great North of England, Clarence, & Hartlepool Junction Railw. v. The Clarence Railw., 1 Collyer, 507. 2 London & Birmingham Railw. v. Grand Junction Canal Co., 1 Railw. Cas. 224. [*376] 394 ENTRY BEFORE COMPENSATION IS ASSESSED. PART III. f.l,- purpose of building the permanent bridge, might also be used for other purposes, for which alone it could not have been ♦SECTION IX. //■ ?i rvations to Land-owners to build Private Railway across Public Railway. § 101. Where the special act of a railway company provided, that nothing in the act contained shall prevent any owner or occupier of any ground through which the railway may pass from carrying, at his or their own expense, any railway, or other road, any cut, or canal which he or they may lawfully make in their own Ian 1. across the said main railway, within the lands of such owner or occupier, it was held, that this provision was not confined to the owners or occupiers of such land, at the time, but was intended to apply to all future time, so long as such principal railway shall continue, and extended to all persons owning or occupying lands adjoining the railway, upon opposite sides, whenever the title was acquired, even where they purchased the land upon opposite sides at different times. 1 SECTION X. Disposition of Superfluous Lands. 1 Vest in adjoining owner unless disposed of\ 2. Former owner not excluded; effect of cot- in tin years. tage infield. § 101 a. 1. By the English statute, railways are required, where they have acquired more lands under their powers than are re- quired for their purposes, to sell the same within ten years from ; ' Priestley v. The .Manchester & Leeds Railw., 4 Yo. & Col., Ex. 03; s. c. 2 Railw. C L34. 1 Monkland & Kir. Railw. v. Dixon, 1 Bell Ap. Cas. 317; s. c. 3 Railw. C. •_'7:i. The Court here (II. of L.) denied an interdict against such owner or occupier prolonging his railway for the benefit of any persons with whom he mighl make an agreement for that purpose. *377J § 101 (I. DISPOSITION OF SUPERFLUOUS LANDS. 395 the passing of the act, and that superfluous lands, then remaining unsold, should vest in the owners of adjoining lands, in proportion to the amount of their lands respectively adjoining the same. That time was by a subsequent act extended five years more. It has been held that the act embraced lands the reversion of which had been bought by the company ; and also that the superfluous land was to be divided among the owners of the adjoining property, * in proportion to the frontage of each ; meaning by that the length of the line of contact, without reference to the extent of the land in other directions, and that the later act did not defeat titles already vested under the former act. 1 2. It has also been held that the former owner of the lands, from which they were severed, is entitled to share in the same un- der the statute, and that the fact that a cottage stands in the field, part of such superfluous lands, will not bring them within the exception of lands built on or used for building purposes. 2 1 Moody v. Corbett, Law Rep. 1 Q. B. 510. 2 Carington v. Wycomb Railw. Law Rep. 2 Eq. 825. [*378] :;•.•.; MODI-: OF ASSESSING COMPENSATION. PART III. ♦CHAPTER XIV. THE MODE OF ASSESSING COMPENSATION UNDER THE ENGLISH STATUTES. SECTION I. By Justices of the Peace. 1. Where compensation claimed does not ex- ceed £50. 2. Modi of enforcing award. 3. Value of land and injury accruing from severance to be considered. § 102. 1. By the English statute, where the compensation claimed shall not exceed X50, the same is to be settled by two justices. So, also, as to damages claimed for lands injuriously affected. So, too, if the company enter upon any private road or way. And justices may fix the compensation, in certain cases, for the temporary use of land ; and the compensation to tenants for a year, or from year to year. They may apportion the rent, too, where the whole land is not taken. In some of these cases their jurisdiction extends beyond £50. 2. The mode of enforcing payment of money awarded by such justices, is to obtain an order, which may be enforced by distress, upon the goods and chattels of the party liable. The certiorari is taken away in such cases, but an order of such justices may still be brought up, to be quashed, for want of jurisdiction. 1 3. The justices are to take into consideration the value of the land, and any injury which may accrue from severance. SECTION II. By Surveyors. § 103. The assessment of compensation by surveyors, under the English statutes, is merely provisional in most cases, as where 1 See the sul.ject discussed post, §§ 163-165. [*379] §104. BY ARBITRATION. 397 the party is out of the kingdom, or cannot be found, two justices * are required to nominate an able practical surveyor, who is, under certain solemnities, required to make a valuation of the land taken or injuriously affected, the amount of which the com- pany are required to deposit in the bank, before proceeding with the works. And if such party be dissatisfied with the sum thus deposited, he may, before applying to Chancery for the money, require the question to be submitted to arbitration, as in other cases of disputed compensation. Surveyors are required to as- sess damages for severance of land, the same as justices of the peace. 1 SECTION III. By Arbitration. 1. May be claimed in cases exceeding juris- diction of justices of the peace. 2. How made compulsory. 3. What form of notice is sufficient. n. 5. Analogous American cases. 4. Arbitrator's power limited to award of pe- cuniary compensation. 5. Where land-owner gives no notice, com- pany may treat it as case of disputed compensation. 6. Similar rule under Massachusetts statute regarding alteration of highways. 7. And land-owners may recover without waiting for selectmen to act. 8. Company estopped in such case from de- nying that road was constructed by their servants. Embankments part of the railway. 9. Finality of award. 10. May employ experts. Damages em- braced. 11. Construction of general award. § 104. 1. By the English statutes, if the amount of compensa- tion claimed exceed the jurisdiction of two justices, any party claiming compensation may compel an arbitration, by taking the requisite steps in due time. Unless both parties concur in the same arbitrator, each party, upon the request of the other, is re- quired to name one. The appointment of the arbitrator is to be under the hand of the party, and delivered to the arbitrator, and is to be deemed a submission by such party. Such submission is irrevocable, even by the death of the party. 2. If either party neglect, for fourteen days after request by the other party, to name an arbitrator, one may be named by 1 Hodges on Railways, 250, 251, 252. [*380] 898 MODE OF A8SESSING COMPENSATION. PART III. the other party, who shall decide the controversy. If either party name an arbitrator who is incompetent, the other party must retire from the arbitration, or he will he hound by his ac- quii The secretary of a railway company, by the Eng- lish statutes, would seem to have power to hind the company, by Bigning the submission, whether the arbitration is compulsory or not. 2 3. It was held that the appointment of an arbitrator or referee implied the notification of such appointment to the other party within the time limited in the submission, or the doings of such referee were void. 3 And not only so, but the notice must he ex- plicit. It is not sufficient to say, " Take notice, that it is my in- tention to nominate S. M.," notwithstanding it was added, "if the company fail to appoint, I the said T. B. will appoint S. M. to act on behalf of both parties." 4 And in this case it is said, it would seem that the appointment by the claimant of an arbitrator to act for both parties, is not valid, unless he has previously appointed an arbitrator, on bis part, and notified such appointment to the company. There should be two separate appointments, although it may be of the same person, it is here suggested. 5 4. The arbitrator has no power beyond the awarding of a pecuniary compensation for the land taken by the company, and cannot direct what right of way shall remain in the tenant to the portion of land not taken. 6 Nor can he apportion the rent to the tenant. 6 5. If the land-owner gives no notice of claim, in reply to the 1 In re Eliott, 2 De G. & Sm. 17. 8 Collins v. South Staffordshire Kailw. Co., 7 Exch. 5 ; s. c. 21 Law J. (Ex.) 247; s. c. 12 Eng. L. & Eq. 565. 3 Tew v. Harris, 11 Q. B. 7. * Bradley v. London & N. W. Railw. Co., 5 Exch. 769. ' But alien; both parties petition for a jury to revise the damages, one war- rant is sufficient. Davidson v. Boston & Maine Railw., 3 Cush. 91. And if two warrants are issued, the sheriff should execute, and return them as one. "lb. And where there are several applications, which by statute are to be determined by "He jury, the proper mode is to issue but one warrant to the sheriff; but if :.d warrants issue irregularly, yet if the oflicer summon a single jury, who hear and determine each case, their verdicts will not be set aside for such ilarity. Wyman r. Lexington & West Cambridge Railw., 1:5 Met. 316. 6 Wan- v. Regent's Canal Co., 9 Exch. 395; s. c. 25 Eng. L. & Eq. 4-44. Nor fan tli- tenant recover damages for the depreciation of the use of premises used for a public house, during the pendency of the proceedings after notice. The Queen v. Met. & D. Railway, L. R. 4 Q. B. 190. [*381] § 104. BY ARBITRATION. 399 notice to treat, the company may treat it as a case of disputed compensation. 7 If the compensation claimed be less than 50/., it may be settled by two justices. But if more than 50/. be claimed, or offered, and the claimant desire to have it settled by arbitra- tion, * it is at his option, and he must give notice of such desire before the company issue their warrant to the sheriff to summon a jury to assess the compensation, which they may do in ten days after giving the claimant notice that they shall do so, unless in the mean time he elect to have the matter settled by arbitration. 7 6. And under the Massachusetts statute giving railways the right to alter highways, upon giving notice to the selectmen of the towns where such highways are situated, and conforming to their requirements, or the decision of the county commissioners, in re- gard to the alteration of the highway, it was held, that if the select- men give no notice to the company, as to what alterations they require, the presumption is, that they require none, but leave the whole matter to the company. 7. And to entitle adjoining land-owners to recover damages of the railway under the statute of Massachusetts, it is not necessary that the selectmen should have acted in the premises. The remedy in such case is not by an action against the town, but by proceed- ings under the statute against the company. 8 8. In such case the. company are estopped to deny, that the con- struction of their road, as in fact made, was done by their servants in compliance with the requirement of the charter. 8 And embank- ments made by them for the purpose of carrying a highway over the railway, are to be regarded as a part of the railway. 8 9. By a submission to arbitration it was provided that the arbi- trator should determine what sum should be paid for the purchase of land, and what " other, if any, sum for severance damage, and the arbitrator after reciting " the submission, and that be had con- sidered the matters so referred to him, awarded a certain sum to be paid for the purchase of the land, without saying any thing about severance damage : it was held that the award was final and good, that the arbitrator by his silence negatived any right to compensation on account of severance damage. 7 8 & 9 Viet. c. 18. §§ 21, 22, 23, 38. 8 Parker v. Boston & Maine Railw., 3 Cush. 107. 9 In re Swansea Harbor Trustees, 6 Jur. (N. S.) 979 ; S. c. nom. Beaufort v. Swansea Harbor Trustees, 8 C. B. (N. S.) 146. [*382] 400 MODE OF ASSESSING COMPENSATION. PART III. I (i. A Bubmission to arbitration under the English statute for ssing land damages is not revoked by the death of the land- owner. "' 1 1 was here considered that the award was valid, although * not made within the statute period of three months ; that the arbi- trator may employ an expert and consult men of science, if neces- sary ; that the right to compensation extends to any land injured by the severance of that which was taken, or by the works which the company is authorized to construct, and may include damages likely to be caused to the tenants of the land-owner. The right to compensation depends on cause and effect, and not on " proximity or distance." 11. The award of a gross sum for damages for drainage which lessened a water-power upon which a mill had been erected, was held presumptively to apply to the damage to the mill, and not to the unemployed water-power, which might be available for the proprietor of the other side of the river. 11 10 Caledonia Railw. Co. v. Lockhart, 3 Mcqu. Ho. Lds. 808; s. c. 6 Jur. (N. S.) 1311, in the House of Lords. 11 St. George v. Reddington, 10 Ir. Ch. 176. [*383] PART IY. THE LAW OF CONTRACTS AS APPLIED TO THE CON- STRUCTION OF RAILWAYS AND TELEGRAPHS; TOLLS, ETC. 26 PART IY. THE LAW OF CONTRACTS AS APPLIED TO THE CON- STRUCTION OF RAILWAYS AND TELEGRAPHS ; TOLLS, ETC. CHAPTER XV. CONSTRUCTION OP RAILWAYS. SECTION I. Line of Railway. — Right of Deviation. 1. Manner of defining the route in English charters. 2. Question involved stated. 3. Plans only binding, when and for the purpose referred to in the act. 4. Contractor bound by deviation, unless he object. 5. Courts of equity will not enforce contract against public security. 6. Right to construct accessory works. 7. 8. Company may take lands designated, in their discretion. 9. Equity cannot enforce contract not incor- ati d into the act. 10. Right of deviation lost by election. 11. Railway between tivo towns, extent of grant. 12. t Irani of land for railway includes acces- sories. 13. Route designated need not be followed literally. 14. Terminus being a town, is not extended, us the town extends. 15. Party accepting compensation waives in- formality. 16. Powers limited in time expire with limi- tation. 17. Construction of charter as to extent of route. is. Map may be made to yield to other grounds of construction. L9. Power to change location must be exer- cised before construction. 20. Binding force of plans made part of charter. 21. Grant terminating at town liberally con- strued. § 105. 1. The English railway acts are granted altogether, after full surveys of the route and with reference to definite plans of the engineers, which, when referred to generally in the act, thus become so far a part of it as to be binding upon the company to [*384] 404 CONSTRUCTION OP RAILWAYS. PART IV. the extenl of determining the datum line, and the line of railway measured with reference to that datum line ; and the level of the railway, with reference to the datum line; but not the surface levels, unless expressly so provided in the act. 1 1 North British Railw. v. Tod, 5 Bell Ap. Cas. 184; s. c. 4 Railw. C. 449. This was an appeal from the judgment of the Court of Sessions in Scotland. The opinions of Lord Lyndkurst, Chancellor, and of Lord Campbell, C. J., certainly exhibit the rule of the English law upon this subject very fully and very ably. Lord Lyndkurst says: "Now as to the effect of plans exhibited previous to the contract being made, or previous to the act of parliament being obtained, ii d es seem, from cases which have occurred, both in Scotland and this country, that the rule of the courts in this country, and in the other, is no longer a matter of any doubt or dispute. If a contract or an act of parliament refer to a plan, to the extent that the act refers to the plan, and for the purpose for which the act or contract refers to the plan, undoubtedly it is part of the contract or part of the act. As to that there is no dispute. A contract, or an act of parliament, either does not refer to a plan at all, or it refers to it for particular purposes. It has been contended, both in Scotland and in England, that the defendant in the suit, or those who claim the benefit of the provisions of an act of parliament, previous to this enactment being made, or the contract being concluded, have represented that the works are to be carried on in a particular mode, upon a plan shown previous to the powers being obtained under the act, or the contract be- ing concluded, and that the party obtaining the act, or obtaining the contract, is bound by such representation. There was a case very much considered in Scot- land, the case of The Feoffees of Heriot's Hospital v. Gibson, 2 Dowl. 301 ; and several cases have occurred in the courts of equity in this country. It was my fortune to have to consider the matter very minutely in the case of Squire v. Campbell, 1 My. & Cr. 459, in which I thought it my duty to review all the cases that had occurred in the one country and in the other, for the purpose, if possi- ble, of establishing a rule which might be a guide on future occasions when sim- ilar cases should occur; and I found that, certainly, what had been very much the opinion of the profession in this country, namely, that the parties were bound by the exhibition of such plans, had met with a very wholesome correc- tion by the doctrine laid down by Lord Eldon, and Lord Bedcsdale, in the case of Heriot's Hospital, decided by this House. Under the authority of that case, m which the point was very distinctly raised, and deliberately decided upon, I came to tin- conclusion that there was no ground for equitable interposition. Now, my Lords, not relying upon the authority of Squire v. Campbell, but rely- in-, a- wc are bound to do, upon the case of The Feoffees of Heriot's Hospital, I consider that to be the rule to which the courts of this country, and the Court of Sessions in Scotland, and this House, must hereafter adhere. Taking that, then, t<. be the rule in examining the facts of this case, and the act of parliament upon which the question turns, we are not to look at what was represented upon the pan, except so far as its representation is incorporated in, and made part of, the act of parliament ; and the real question, therefore, turns upon this, whether the a<-t- of parliament do or do not make the datum line, and line of railway with [*384] §105. LINE OF RAILWAY. — RIGHT OF DEVIATION. 405 * 2. The question in this last case 1 was in regard to the right to intersect an approach, leading to a mansion-house, at a dif- reference to that datum line, the subject-matter of these enactments, a \d the rule by which the rights of the parties are to be regulated, or whether it also includes the surfaces which, in this instance, accidentally, no doubt, had been very much misrepresented upon the plan. "I say, then, that a case does arise upon these provisions of the act, in which the plan indeed is referred to, but is, in the terms of the act of parliament, re- ferred to only for the purpose of ascertaining the line of the railway, with refer- ence to the datum line. It is not referred to with reference to any surface level. The plan, therefore, is entirely out of the enactment, and is not to be looked at for the purpose of construing the enactment as to any part of it, except so far as it is referred to and incorporated in the act. Arriving at that construction of the rule upon the provisions of the two acts to which I have referred, and applying it to the principle which has been established in the cases I have men- tioned, we have no difficulty in coming to the conclusion, that the application of that principle will necessarily lead to the construction of the clauses to which I have referred. The plan is binding, to the extent of determining the datum line, and the line of railway measured with reference to that datum line, but not with reference to the surface levels of the land, because the act does not apply it for that purpose, but cautiously confines the enactment to the other plans to which I have referred. "Acting, therefore, upon the principle so established, and with reference to the construction, or what I conceive to be the construction, to be put upon these sections, although we cannot but greatly lament the hardships which, in all prob- ability, these circumstances have imposed upon the respondent, in having his land interfered with in a manner which he did not at all anticipate; yet, when we are called upon to consider whether the Court of Sessions is correct or not, we are bound to look to see what are the powers which these acts vest in the company ; and for the reason I have explained, I come to the conclusion that the company have not exceeded those powers, and do not propose to exceed those powers, in the plans that the}' have formed, and that the Court of Sessions has been in error in granting the interdict." Lord Campbell. — "I acknowledge that I come to the conclusion at which I have arrived with very great reluctance. It seems to me to be a case of very great hardship upon the respondent. But. when we come to consider what the lawupon the subject is, I feel bound to concur in the opinion which has been expressed. What is the legal construction of the act of parliament ? Does the company, or does it not, propose to exceed the powers which the acts of parlia- ment confer upon it? Now it is admitted, that if the deviation is to be calcu- lated from the datum line alone, they (the company) do not propose, either vertically or laterally, to exceed the powers of deviation which are conferred upon them. Well, then, that raises the question whether those powers of devia- tion are to be calculated from the datum line alone, or whether the surfacedevel is to be taken into consideration, and my opinion is, that the act does refer every thing to the datum line. I think it is evident that the 11th section clearly makes the datum line alone that which is to be regarded. The word ' levels ' in the [*385] 106 nSTRUCTION of RAILWAYS. PART IV. ferent "level from that laid down in the parliamentary plans, in which it appeared as a cutting of fifteen feet, and the way raised • upon a bridge two feet. The owner of the house, it seems, had opposed the railway being carried through his avenue, but, rely- in-- upon the representations contained in the plan and sections, was induced fco abstain from opposing the bill. The line of devia- tion is marked upon the plan, and is by the act limited to ten plural number, really does not at all include the surface-levels. It means merely the levels of the (latum line, which point out the course the railway is to go. If that be so, the company do not propose to do any thing that they are not author- ized to do, according to the letter of the act of parliament. ere certainly was a representation made here on the part of the company, when they proposed to bring in the act, by which they intimated that, at that time, the intention was that the railway should be fifteen feet four inches below the surface of the respondent's property at the point of intersection ; and that the bridge by which his approach should pass over the railway, would not be more than three feet. But this was entirely an intimation, on the part of the company, that such was their intention. An act of parliament of this sort has, by Lord / I m and all other judges who have considered the subject, been considered as a contract. Well, then, what took place was a negotiation ; it was not a contract. We must disregard it, and we must look to see what the contract was. The con- tract is to I*'' gathered from the words of the act of parliament; and that brings us to the question that 1 first considered, what is the construction of the act of parliament ? That act of parliament must be considered as overruling and doing away with every thing that had taken place prior to the time when the act passed, and renders the representation or proposal of the company, pending the act, of no avail. Many cases have occurred in the courts of common law in which it has been held, that every thing that takes place before a written contract is signed is entirely to be disregarded in construing the contract. Now, if the respondent had been cautious, he would have done what I would strongly recommend to all gentlemen hereafter to do, under similar circumstances, which is, to have a special clause introduced into the act of parliament to protect their rights." dso Beardmer v. The London & N. Western Rail w., 1 Hall & Twells, 101 ; 8. c. 5 Railw, C. 728. The same rule obtains in this country. Boston & Prov. Railw. v. .Midland Railw., 1 Gray, SiO ; Commonwealth v. Fitchburg Railw., 8 < lush. 240. It seems that the deviation of five feet, which, by the 11th section of the Railway Clauses Act of 1845, is allowed in regard to levels, is to be reckone I with reference to the level of the datum line, and not with reference to the Burfac I line ited on the plans. And any greater deviation in regard to levels, which may be obtained, under certain conditions, in certain emergen- cies, is subject to the discretion of the Railway Commissioners; and at the suit of land-owners, affected by such deviation, beyond the limits allowed by the act, the Court of Chancery will restrain the company from proceeding until they ob- tain the judgment of such commissioners. Pearee v. Wycombe Railw., 1 Drew. 244; >. c. 19 Eng. L. & Eq. 122. [*386, 387] §105. LINE OP RAILWAY. — RIGHT OF DEVIATION. 407 yards in passing through villages, and one hundred yards in the •open country. 3. In this case it was decided, that the plans were only binding upon the company to the extent to which they were referred to in the act, and that it made no difference that the deposited plans were so incorrect as altogether to mislead the owner of the lands, in reference to the manner in which his property would be affected by the railway works. The plans not being referred to in the act, or only referred to, as in the present case, to determine * the datum line with reference to lateral deviation, could not con- trol beyond the matter of lateral deviation. 4. This subject is incidentally connected with the performance of construction contracts. But it has been held, where the com- pany deviate from the intended line of the road, even beyond what was permitted by their act, with the consent of the land- owner, and the contractor never objected to the deviation, but continued to receive certificates of. estimates, and payments, in precisely the same mode in which he would have received them had the deviation not taken place, that it did not affect his lia- bility upon the contract. 2 5. A reference, in the special act, to the deposited plans, for one purpose, does not make them binding for all purposes. 3 So, too, where, by the general acts, a railway company has power to pass highways and other roads, by bridges, or excavation, in their discretion, but their special act gives them power to pass them on a level, this will not compel them to do so ; they may still exercise the power conferred by the general acts. And a special agreement with land-owners, that they will pass such roads on a level, being a contract in derogation of public right, inasmuch as the public security is greatly jeoparded thereby, will not be specifically enforced in a court of equity. 4 2 Ranger v. The Great Western Railw., 5 Ho. Lds. 72; s. c. 27 Eng. L. & Eq. 35. 3 Reg. v. Caledonia Railw., 16 Q. B. 19 ; s. c. 3 Eng. L. & Eq. 285. Where there is a power given for deviation in the construction, which would render some portion of the delineated surveys impracticable, it must be taken, as of necessity, that the legislature intended the omission of such particulars as became impractical tie in a given contingency allowed by the act. * Braynton v. The London & North W. Railw., 4 Railw. C. 553. But the Lord Chancellor, ujion appeal, considered that the agreement only extended to [*388] 408 CONSTRUCTION OF RAILWAYS. PART IV. 6. The extenl of deviation is to be measured from the line delineated upon the plans to the actual medium filum of the rail- way as constructed, and the fact of the embankments extending beyond that distance is no violation of the right of deviation allowed in the act. 5 Where a tunnel is marked upon the plans referred to in the act, it must be made in the exact position in- dicated, * and the general right of deviation does not apply. 6 But the company may take lands within the line of deviation for a branch railway. 7 Under an act allowing land to be " taken when necessary for making and maintaining the said railway and works," it was held that the company might take lands for forming or en- larging stations, or places for carriages to collect and wait till trains are ready to start ; and the Lord Chancellor said, in one case, 8 " The term railway, by itself, includes all works authorized to be constructed ; and for the purpose of constructing the rail- way, the company are authorized to construct such stations and other works as they may think proper." 7. And it would seem that, where lands are designated by num- bers on the plans, although not altogether within the line of devia- tion, they may be taken by the company when necessary for stations. 9 And it has recently been decided in the House of Lords, that where the legislature authorized a railway company to take, for the purpose of their undertaking, any lands specially described in the act, it constitutes them the judges as to whether they will or will not take those lands, provided they take them bona fide, with the object of using them for the purposes authorized by the legis- lature, and not for any sinister or collateral purpose. 10 And after the land to be purchased, and that it contained nothing intended to limit the powers given to the company by the general acts. s Doe d. Payne v. The Bristol & Exeter Railw., 2 Railw. C. 75 ; s. c. 6 M. & W. 320 ; Doc d. Armistead v. The North Staffordshire Railw., 16 Q. B. 526; Eng. L. &. Eq. 216. 6 Little v. The Newport, Ab. & Hereford Railw., 12 C. B. 752 ; s. c. 14 Eng. L. & Eq. 309. - idd v. The Maldon, Witham, & B. Railw., 6 Exch. 143. I ther r. .Midland Railw., 2 Phillips, 469. 9 ( rawford v. Chester & Holyhead Railw., 11 Jur. 917 ; 1 Shelford, Bennet's cd. 617. But the deviation is not authorized for the purpose of taking materials alone. Bentinck r. Norfolk Estuary, 32 Law Times, 29. 10 Stockton & Darlington Railw. Co. v. Brown, 9 Ho. Lds. 246; s. c. 6 Jur. (N. S.) 1168. But a ra *wa. cannot take vhe fee of land for the purpose of sup- [*389] § 105. LINE OF RAILWAY. — RIGHT OP DEVIATION. 409 referring the question, as to the propriety or right to take the land, to an engineer, who decided against the company and in favor of the land-owner, the court ultimately held that neither the opinion of the engineer nor of the court could curtail the power of the company in respect to the quantity of land which * the company, bona fide acting under its statutory powers, sought to obtain. 8. And where, by a special act, a company were empowered to erect a market-house on land described in the deposited plans, it was held, that as the land of the plaintiff was described in the plans, and as it might be wanted, the company were authorized to take it, and that the company were to be regarded as the proper judges of what lands were necessary for the works. 11 9. The trustees of a turnpike-road agreed to assent to a bill in parliament for the formation of a railway, on the condition that the railway should pass over the road at a sufficient elevation, and the road be not lowered, or otherwise prejudiced. It was held that this modified assent, not being embodied into any agreement between the trustees and company, or incorporated into the act, afforded no equitable ground for restraining the company from the exercise of all their powers under their act ; that the company were authorized to sink the original surface of a turnpike-road to -gain the requisite elevation for the arch of a bridge to carry the railway over the road, notwithstanding the effect might be to render the road liable to be occasionally flooded. 1 ' 2 Any omission, misstatement, or erroneous description in the parliamentary plans referred to in the act, may be cor- rected on application to two justices, in the mode prescribed in the act. 13 10. By statute, in some of the states, a railway company who plying soil to build an embankment. Eversfield v. Midsussex Railw., 1 Giff. 153 ; B.C. affirmed 5 Jur. (N. S.) 776; s. c. 3 De G. & J. 286. Nor can land be taken within the range of the powers conceded by the act, except for the exclu- sive purpose of the works named in the act, and if any subsidiary object is em- braced in the purpose of taking, as to give a more convenient road for an ordinary land-owner, who was to pay part of the expense, the company will be restrained by injunction. Dodd v. Salisbury & Yeoville Railw. Co., 1 Giff. 158 ; 5 Jur. (N. S.) 782. 11 Richards v. The Scarborough Public Market Co., 23 Eng. L. & Eq. 343. 12 Aldred v. The North Midland Railw., 1 Railw. C. 404. 13 Taylor v. Clemson, 2 Q. B. 978; s. c. 3 Railw. C 65, shows the mode of procedure in such cases. [*390] 410 CONSTRUCTION OF RAILWAYS. PART IV. file the Location of their road in the requisite office, are allowed to deviate, to any extent consistent with their charter, in the oourse ol construction. 14 But it has been held, that after once •locating their road their power to re-locate, and for that pur- to occupy the land of another or the public street, ceases. 13 II. li has been held, that a grant to a railway company to const met their road between two towns, gave them implied authority to construct a branch to communicate with a depot and turn-table, on a street in one of the towns (New Orleans) off the direct line. 16 14 The Boston & Providence Railw. v. The Midland Railw., 1 Gray, 3*0. The charter gave the company power to construct their road in five-miles sec- tions, but not to begin the work within a prescribed distance of one terminus, or until all of its stock was taken by responsible persons, and one hundred and forty thousand dollars paid into the treasury ; it was held, that this restriction, in regard to the subscription and payment of stock, did not fix a limitation upon the company in regard to building their whole road not in sections. The courts, in interpreting an act of incorporation, will not examine what took place while it was passing through the Legislature. Bank of Pennsylvania ». The Comnion- w :tl 1 1 1 , 19 Penn. St. 141. And in Commonwealth v. Fitchburg Railw., 8 Cush. 240, il was held, that the petitions to the legislature upon which the act was gran rd were inadmissible upon the question of the construction of the act, in regard to the course and direction of the line of the road. 16 Little Miami Railw. v. Xavior, 2 Ohio (N. S.), 235. And an authority to change the location of the line, during the work, does not imply power to change it after the road is complete. Moorhead v. Little Miami Railw., 17 Ohio, 340. The same view is maintained by Lord Eldon, Chancellor, in Blakemore v. Glamorganshire Canal Co., 1 My. & K. 164. But a different rule seems to be intimated in South Carolina Railw. ex parte, 2 Rich. 434, and in Miss. oc Tenn. Railw. v. Devaney, 42 Miss. 555. But see Canal Co. v. Blake- more, 1 « 1. & Kin. 262; Suite v. Norwalk & Danbury Turnpike Co., 10 Conn. 157 ; Turnpike Co. v. Hosmer, 12 Conn. 364; Louisville & Nashville Branch Turnpike Co. u. Nashville & Kentucky Turnpike Co., 2 Swan, 282, where the proposition of the text is maintained, lint in South Carolina Railw. v. Blake, 9 Ri :>. l'_''J. it is held, that a railway company have the same power to acquire land, either by grant or by compulsory proceedings, for the purpose of varying, alter- in-, and repairing their road, as for the original purpose of locating and con- structing it. lint thai the company are not the final arbiters in determining the exigency for taking the land. The petition of the company for taking the land should allege in detail the necessity lor taking it, and the land-owner may trav- ions, and in that case tins is tried as a preliminary question. . § 123 a. " Knight v. Carrolton Railw., «J La. Ann. 284; New Orleans & Carrolton Railw. v. Second Municipality of New Orleans, 1 id. 128. But where by the charter of a railway they were authorized to construct their road "from Charles- ,91] § 105. LINE OP RAILWAY. — RIGHT OF DEVIATION. 411 12. The grant to take land implies power to take buildings. 17 And a grant to take land for the company's road implies the right to take land for all the' necessary works of the company, such as depots, car and engine houses, tanks, repairing shops, houses for switch and bridge tenders, and. coal and wood yards, but not for the erection of houses for servants, car and engine factories, coal- mines, &c. 18 13. And a charter allowing the company to extend their line to *a certain point, "thence running through Acton, Sudbury, Stow, Marlborough," b\ '■ by rate per mile. nil rule to measure by straight Urn . 4. Same rule in regard to turnpike-roads. 5. I!' iii fixed by mile means full mile; no charge for fractions. •6. 1. Questions of some perplexity sometimes arise in regard to the mode of measuring distance, in a statute or contract. The import of terms defining distance will be sometimes controlled by the context, or the subject-matter. In one case, 1 where the assignor of the lease of a public-house in London covenanted that he would not keep a public-house within half a mile from the premises assigned, it was held that the distance should be com- puted by the nearest way of access. ■1. And contracts to be paid for constructing a turnpike, or rail- way, a given price by the mile, would, ordinarily, no doubt, require an admeasurement upon the line of the road. It was held, in a late case in Vermont, that in such cases the contractor is not entitled to compute the length of track, and thus include turnouts and side-tracks. 2 But this might not exclude branch lines extend- ing any considerable distance from the main track. * 8. But, in general, the English courts have chosen to adhere to the rule laid down by Parke, J., in Leigh v. Hind, that distance is to bo measured in a direct line, through a horizontal plane. Thus, in settlement cases, where the pauper laws provide that no person shall retain a settlement gained by possessing an estate or interest in a parish for a longer time than he shall inhabit " within ten miles thereof," it was held, that the distance was to be meas- ure] i u a direct line from the residence to the nearest point of the parish. 3 And the twenty miles within which the parties are 1 Leigh v. Hind, !) B. & C. 774; s. c. 17 Eng. Comm. L. R. 495. But Parke, J., was of a different opinion, and said: "I should have thought that the proper mode of measuring the distance would be to take a straight line from house to house, in common parlance, as the crow flies. 1 ' 5 Barker v. Troy & Rutland Railw., 27 Vt. 766. Regina v. Saffron-Walden Railw., 9 Q. B. 76. [*395] § 106. DISTANCE, HOW MEASURED. 415 required to reside, in certain cases affecting the jurisdiction of the county courts, by the recent statute, 4 is to be computed in a direct line, without reference to the course of travel. 5 4. And where a turnpike act provided, that no toll-gate should be erected nor any toll taken, within three miles of B., and the road did not extend to B., but connected with another turnpike which did, and also a public road, made since the act was passed, it was held, that the three miles should be measured " in a straight line on a horizontal plane, and not along any of the roads." 6 5. And where the rate of fare is fixed by the mile, and no pro- vision made for fractions of a mile, the company can only charge the prescribed tariff for the full mile traversed. 7 But the English statute 8 provides specially for fractions of a mile. 4 9 & 10 Vict. c. 95, § 128. 6 Stokes v. Grissell, 14 C. B. 678; s. c. 25 Eng. L. & Eq. 336; Lake v. Butler, 5 El. & Bl. 92 ; s. c. 30 Eng. L. & Eq. 264. 6 Jewell v. Stead, 6 El. & Bl. 350 ; s. c. 36 Eng. L. & Eq. 114. Lord Camp- bell, C. J., said: "I am of opinion that the distance is to be measured by a straight line upon a horizontal plane." Lake v. Butler, supra, lays this down as a general rule. Lord Campbell, C. J. : "I think we ought to adopt that mode which is most convenient and most certain. If the distance is to be measured by the nearest mode of communication, uncertainty will be introduced, whether it may be by foot way, or bridle way, or carriage way ; and in some cases the distance must be travelled by all the three modes ; and in others by a tidal river, in which case the distance would vary, at different times of the day ; also the distance by carriage road might be shortened, or lengthened, by a new road being made. But if the other mode of calculation is adopted, no uncertainty will arise." T Rice v. Dublin & Wicklow Railw., 8 Ir. Coin. Law, 160. 8 21 & 22 Vict. c. 75, § 1. [*395] 41G CONSTRUCTION OF RAILWAYS. FART IV. ♦SECTION III. Mode of Construction ; to he done with least Damage. 1. Does not extend to form of the road, but the mode of construction. 2. Special provisions of act not controlled by this general one. 3. Works interfered with, to be restored, for all uses. § 107. 1. It has been held, that the general provisions of the Railway Clauses Consolidation Act, that in the exercise of their powers, the company shall do as little damage as possible, and shall make satisfaction, to all parties interested, for all damages sustained by them, does not extend to the form of constructing the railway. It does not apply to what is done, but to the manner of doing. 2. Hence, if by other sections of the statute or special act the company are required to build bridges in a particular form, they may still do so, notwithstanding it may cause more damage to the owners of land than to build them in some other form. 1 3. And where, in a parliamentary contract between the pro- moters of a railway and the proprietors of a ropery, it was stip- ulated that the railway should be so constructed, that when finished the level of the ropery should not be altered, nor the surface of the ropery in the least diminished, it was held the company were bound to restore the surface, so as to be available for all purposes to which it might have been applied before the construction of the railway, and not for the purposes of the ropery only. 2 1 Regina v. The East & W. I. Docks and B. J. R., 2 El. & Bl. 466. 2 Harby v. The East & W. I. Docks and B. J. R., 1 De G. M. & G. 290. [*396] §108. MODE OF CROSSING HIGHWAYS. 417 •"SECTION IV. Mode of crossing Higluvays. 1. English statutes require it should not be at grade. 2. Or if so, that gates should be erected and tended. 3. And if near a station, railway train not to exceed four miles an hour. 4. Cannot alter course of highway. 5. Right to appropriate military road. 6. Mandamus does not lie where company have an election. 7. Railway cannot alter highway to avoid building bridge. 8. Extent of repair of bridge over railway. 9. Permission to connect branches with main line not revocable. 10. Grant to build railways across main line implies right to use them as common carriers. 11. Railway responsible for injury by falling into culvert when covered by snow. 12. The right to lay line across railway car- ries right to lay as many tracks as are convenient for the business. 13. Damages for laying highway across rail- way. 14. Laying highway across railway at grade. Company not estopped by contract with former owner of land. 15. Towns not at liberty to interfere ivith railway structures. § 108. 1. By the general English statutes upon the subject of railways, it is provided, " that if the line of the railway pass any turnpike-road, or public highway, then (except when otherwise provided by the special act), either such road shall be carried over the l'ailway, or the railway shall be carried over such road, by means of a bridge." 1 2. And by § 47 it is provided, that whenever the railway does pass any such road, upon a level, the company shall maintain gates, at every such crossing, either across the highway, or the railway, in the discretion of the railway commissioners, and employ suitable persons to tend the same, who are required to keep them constantly shut, except when some one is actually passing the highway, or railway, as the case may be. 2 3. And where a railway passes a highway near a station, on 1 Railway Clauses Consolidation Act, § 46. Mandamus requiring the com- pany to carry their road over a highway, by means of a bridge, when that was the only mode in which it could be done, according to the level of the line of the railway at the time, was held bad. Southeastern Railw. v. The Queen, 17 Q. B. 485. " A road on which toll-gates are erected and tolls taken is a turnpike road. The Northam, B. & Roads Co. v. London & Southampton Railw., G M. & W. 428 ; 1 Railw. C. 653 ; Regina v. E. & W. I. Docks Railw. Co., 2 El. & Bl. 466. 27 [*397] 11^ CONSTRUCTION OP RAILWAYS. PART IV. • a level, the trains are required to slacken their speed, so as not tn pass the Bame at any greater speed than four miles an hour. 3 I. The right to raise or lower highways, in the construction of a railway, does not authorize the company to change the course ot the highway, even with the consent of the town council, and for so doing the company were held liable to persons who had sustained special damage thereby. 4 5. The right to use "highways" in the construction of plank roads, contained in a general law, does not extend to military roads constructed by the United States, while the state was a territory/' but the legislature may grant such right, by the charter of the company. 6. And where a mandamus 6 recited that the railway, which defendants were empowered to make, crossed a certain public highway, not on a level, by means of a trench, twenty feet deep, and sixty-live feet wide, through and along which the railway had been carried, and the highway thereby cut through and rendered wholly impassable for passengers and carriages ; and that a reasonable time had elapsed for defendants to cause the highway to be carried over the railway, by means of a bridge, in the manner pointed out in the statute, 7 and commanded defend- ants to carry the highway over the railway, by means of a bridge, in conformity with the statute, particularly specifying the mode: it was held, that it not being otherwise specially provided in the company's charter, they had, by the general act, an option to carry the highway over the railway, or the railway over the highway, by a bridge; and that the option was not determined by the facts alleged in the writ, and the judgment of the Exchequer, * award- in- the v, rit. was accordingly reversed in the Queen's Bench. 7. Where the charter of a railway authorized them, by con- rimilar provisions, in regard to the construction of railways in this country, Beem almost indispensable to the public security. But the rage for cheap iailv. great, that nothing of the kind could be effected, we fear, at pr< - . Providence & Wor. Railw., 2 R.I. 493. It is the duty of a railway company not to obstruct public mads, where they intersect the railway- track, either by stopping a train or otherwise; and the company must take the all such obstructions. Murray v. Railw. Co., 10 Rich. 227. Attorney-General v. Detroit & Erie I'lauk-Road Co., 2 Mich. 138. r,; '- I Southeastern Railw., 15Q.B. 313; s.c. 6Eng. L;&Eq. 214. 7 8 and . 20. [*398 3 399] § 108. MODE OP CROSSING HIGHWAYS. 419 sent of the commissioners, to alter a highway whenever it became necessary in order to build the railway in the best place, and required the company to maintain all bridges made necessary to carry the highway over the railway: it was held that the com- pany had no power to alter the course of the highway in order to avoid the expense of building a bridge ; and that the old high- way was still subsisting, notwithstanding the attempt thus to lay out a substitute. 8 8. And where a railway company, under their statutory powers, in England, carry a highway over their road by means of a bridge, the company is bound to keep both the bridge and the road and all the approaches thereto in repair, and such repair includes not only the structure of the bridge, but the superstructure, and every thing requisite to put the highway in fit condition for safe use. 9 9. Where the proprietors of land, through which a railway company were empowered to take the right of way, had the right to lay branch railways upon the lands adjoining, and to connect them at proper points with the main line, so as not to endanger the safety of persons travelling as passengers upon the railway, and in case of difference in regard to any of these points, the same to be determined by two justices of the peace ; but the company were not required to admit any such branch to connect * with the*ir line, at any place where they should have erected any station or other building ; it was held that the consent of the 8 Norwich & Worcester Railw. v. Killingly, 25 Conn. 402. Nor have the company any right under such a power to materially and essentially change the route of a highway, that being a power resting solely in the discretion of the municipal authorities. Warren Railw. Co. v. State, 5 Dutchcr, 3;);!. See also Veasie v. Penobscot Railw. Co., -49 Me. 119; Eaton v. E. & N. A. Railw., 59 Me. 520. 9 North Staffordshire Railw. Co. v. Dale, 8 Eilis & Bl. 835. But where the expense of keeping a bridge in repair was imposed by statute upon several towns, and a railway company, jointly, with a provision that the municipal authorities of one of the towns shall have the care and superintendence of the same, "and shall employ all services necessary in the care thereof'," it was held this did not impose any special obligation upon that particular town, in regard to the repairs, but that all the parties still remained jointly responsible for the performance of that duty, and that the municipal authorities of this town were thereby made the agents of all the parties thus responsible; and that therefore one of the parties could not maintain an action against the town for an injury through the joint neglect of all the parties. Maiden & Melrose Railw. v. Charlestown, 8 Allen, 245. [*400] 4JH \^TRUCTION OF RAILWAYS. PART IV. company to unite with the line at a station was not in the nature of a License and could not he revoked. 10 [0. Ami where the owners or occupiers of adjoining land had the righl to build railways, and to cross the line of the principal railway, without being liable to toll or tonnage, it was held the owners of such railways might use them as common carriers of freight and passengers. 11 11. It bas been held that railway companies are responsible for injuries, resulting from the dangerous state of highways, caused by their own works, as where one fell into a culvert, made by the company at a highway crossing, to prevent the accumulation of the watrr.it being invisible at the time by reason of snow. 12 So also in all cases where the defect in the highway is caused by the works of the railway company, the latter will be responsible for all injuries in consequence, although the party might also obtain redress of the town bound to maintain the highway. 13 li!. A railway corporation having acquired the right to lay its line across a highway, may lay and maintain as many tracks as are essential to the convenient transaction of its business. 14 13. A railway corporation is entitled to damages for land taken by laying a public highway across its line, and for the expense of maintaining signs and cattle guards at the crossing, and of flooring the same and keeping it in repair ; but not for any in- creased liability to accidents, for increased expense of ringing the bell, or for its liability to be ordered by the county commissioners to build a bridge for the highway over the track. And in assess- -. in such a case, no supposed benefits from an increase of travel on the railway can be set off against the company. 15 14. Under the revised statutes of Massachusetts, town or city authorities have no power to lay a highway across a railway, at grade, and the company is not estopped from objecting thereto by any agreement with the former owners of the land in regard to * the righl of way to be used by them at the point where the high- way is laid.'' Nor can such authorities, under the general statutes 10 Bell v. Midland Railw. Co., :; De G. & Jones, 673. " Hughes r ( hest( r & Holyhead Railw. Co., 8 Jur. (N. S.) 221. 15 Judson o. N. V. & X. Haven Railw. Co., 29 Conn. 4:34. " Gilletl >■. \\ estera Railw., 8 Allen, 560. i v. Hartford & New Haven Railw., 14 Gray, 379. 11 CM Colony & Fall River Railw. v. County of Plymouth, 14 Gray, 155. • i: .V .Maine Railw. v. City of Lawrence, 2 Allen, 107. [<*401] 109. RIGHTS OP TELEGRAPH COMPANIES. 421 of that state, lay out a way across any portion of the land, not exceeding five rods in width, which has been taken by a railway company for their line, unless permission has been granted by the county commissioners. 17 15. Where a railway company had rightfully carried its line through a compactly built village, by means of a deep cut run- ning under the principal street, which had to be carried over the cut by a bridge, and had built a station supported by the walls of the excavation ; it was held that the town had no right so to con- struct a drain as to throw the water of the street into the cut and thereby undermine its walls, even if the railway works, at that point, had intercepted the natural drainage and there was no other practicable mode of remedying the evil, except at greater, although not extravagant, expense. 18 It was accordingly held the company were entitled to an injunction against the town, inhibiting the con- struction of the drain in that mode. SECTION V. Rights of Telegraph Companies. 1. Right to " pass directly across a railway," does not justify boring under it. 2. Exposition of the terms " under " and " across." 3. Erecting posts in highway a nuisance even if sufficient space remain. n. 4. Opinion of Crompton, J. § 109. 1. Where a telegraph company had by their act the power to pass under highways, but to pass " directly but not otherwise across any railway or canal," and a railway was laid upon the level of a highway, in accordance with their special act, it was held that the telegraph company could carry their works under the highway at the point where it was intersected by the railway. 1 But the telegraph company, attempting to pass under the railway in such a manner as to disturb their works, was held liable in trespass. 2 17 Commonwealth v. Haverhill, 7 Allen, 523. 18 Danbury & Nbrwalk Railw. v. Town of Nbrwalk, 37 Conn. 109. 1 Southeastern Railw. v. European & Am. Tel. Co., 9 Exch. 363; s. c. 24 Eng. L. & Eq. 513. 4 Post, §§ 130, 143, 164. [*401] 422 CONSTRUCTION OF RAILWAYS. PART IV. •J. Parke, B., in giving judgment, said, "Across seems there- fore different from under, and the power to carry ' across ' does not enable them to go under. It may he that this prohibition Id not apply, it' the railway were carried over a highway, at a ,; height, for then the highwayand railway might he considered independent of each other." 3. In a recenl English case 3 it was decided, that a telegraph ipauy, which erected posts in any portion of the highway, al- though not in the travelled portion of it, whereby the way is ren- dered i v respect less commodious to the public than before, is •guilty of committing a nuisance at common law; and the fact that the jury find that a sufficient space for the public use re- mained unobstructed, will not afford any justification, unless the act is done by legislative permission. 4 1 Reg. v. United Kingdom Electric Telegraph Company, 9 Cox (C. C), 174; & V. 73; 8 Jur. (N. S.) 1153. 4 The case is of so much importance that we have ventured to insert the lead- in,: opinion on the final hearing in full bench. Crompton, J. "The defendants were indicted for erecting their posts on a high road, so as to obstruct the public in the use thereof, and we determined re giving judgment to hear the case of Regina v. Train, thinking it possible that t!ie same question might there arise, or that something, at all events, throw- ghl upon it might be elicited during its progress. Having heard that case, there is nothing to prevent our giving judgment without further delay. My brother Mm tin laid down two propositions, and the question is, whether either of tlit-in constitutes a misdirection. The. first of these propositions was as follows: ' In the case of an ordinary highway, although it may be of a varying and unequal width, running between fences, one on each side, the right of passage or way prima facie, and, unless there be evidence to the contrary, extends to the whole Bpace between the fences ; and the public are entitled to the use of the entire of it as the highway, and are not confined to the part which may be metalled or kept in order for the more convenient use of carriages and foot passengers.' this Beems to us a very proper direction. It is urged by Mr. O'Malley that this ruling is not applicable to a place where there is a considerable portion eensward on either side of the metalled road, which cither the owner of the adjoining freehold or the lord of the manor would be entitled, if he thought proper, to enclose. This is the first of two objections taken on behalf of the deii ndants. Bui it, seems to me that my brother Martin carefully guards against that. He .-ays, thai prima facie the space between the fences is to be as the highway ; and this seems to be in accordance with the judgment of I. rd Tenterden, C. J., in Rex v. Wright, 3 B. & Ad. 681, where he says: 'I Bin strongly of opinion, when I see a space of fifty or sixty feet through which a roa'l passes, between enclosures set out under an act of parliament, that, unless • ntr.iry be B hown, the public are entitled to the whole of that space, though, [*402] 110. DUTY IN REGARD TO SUBSTITUTED WORKS. 423 ^SECTION VI. Duty in regard to substituted Works. 1. Bound tn repairbridge substituted for ford, or to earn/ highway over railway. 2. The mime rule has been applied to drains, substituted for otlu rs. 3. The, extent of this duty as applied to bridge and approaches. § 110. 1. Where a public company, as a navigation company, under the powers conferred by the legislature, destroyed a ford perhaps, from economy, the whole may never have been kept in repair. 1 The same principle is involved in the decision in Williams v. Wilcox, and my brother Martin seems to have laid down the law in unison with these cases. lie says, 'that prima facie, and in absence of evidence to the contrary, the public are entitled to the right of passage over the whole, and are not confined to that part which is metalled for the better convenience of travellers and traffic.' Mr. O'Malley was unable, when invited, to say to what definite portion of the road, metalled or otherwise, he held the public to be entitled. He, however, contended that the posts might have been erected on what was in fact no part of the high- way, such as a rock, or something of that kind, which might occupy part of the space between the fences, but over or across which no road could possibly exist. But this would not be a part of the highway any more than a house similarly placed, built before the dedication of the road. We think, therefore, on the first point, the direction of the learned judge was correct, and that the right of the public extends over the entire highway. "The second proposition laid down by the learned judge is a wider one, and it remains to be seen whether it amounts to a misdirection. It is, ' that a per- manent obstruction erected on a highway, placed there without lawful authority, which renders the way less commodious than before to the public, is an unlawful act, and a public nuisance at common law; and that if the jury believed that the defendants placed, for the purposes of profit to themselves, posts, with the object and intention of keeping them permanently there, in order to make a telegraphic communication between distant places, and did permanently keep them there, and the posts wen- of such size and dimensions and solidity as to obstruct and prevent the passage of carriages, and horses, or foot passengers upon the parts of the highway where they stood, the jury ought to find the defendants guilty upon this indictment; and that the circumstance that the posts were not placed upon the hard or metalled part of the highway, or upon a footpath artificially formed upon it, or that the jury might think that sufficient space for the public traffic remained, are immaterial circumstances as regards the Legal right, and do not affect the right of the crown to the verdict.' Tlus appeals to us also to be substantially a proper direction, inasmuch as the real question is, whether there was a practical, as distinguished by myself in Regina v. Russell, from a mathe- [*403] 424 CONSTRUCTION OP RAILWAYS., PART IV. nd substituted a bridge, it was held, that they were liable to keep the bridge in repair. 3 So*, too, where such company cut through u highway, rendering a bridge necessary to carry the highway over the cut, tlif company are bound to keep such bridge in repair. 2 2. So, where a navigation company had power to use a public drain by substituting another, or others, it was held that the com- pany were bound to keep in repair the substituted drains, as well as to make them. 3 3. Under the Epglish statute, 4 where the company carries the highway by means of a bridge, over the railway, it is bound to maintain the bridge, and all the approaches thereto in repair ; and such repair includes not only the structure of the bridge, and the approaches, but the metalling of the road on both. 5 But this will matica] nuisance. My brother Martin appears distinctly to have raised that point, by saying that the posts must not be of such size, dimensions, and solidity as to obstruct and prevent the passage of carriages, and horses, and foot passen- gers at all. In Regina v. Russell, the jury found there was no practical obstruc- tion : but where there is a practical obstruction on a highway, by which the public are prevented from using it, that is a nuisance according to all definitions of the word, and it makes no difference whether or not, enough be still left unob- Btructed for the use of the public; or whether the obstruction is placed on that part of the road which is neither metalled nor repaired for the purpose of traffic. In Rex r. Wright, Lord Tcnterden laid it down that the public are entitled to the entire space on either side of the highway, as he says, for the benefit of air and sun. We must take it now that the jury found the defendants guilty upon these facts, and that the posts were of such size and solidity as to create an obstruc- tion, and amount to a nuisance. It was further objected by Mr. O'Malley that certain of the posts appeared actually to have stood upon parts of the road which wire inaccessible to travellers ; but supposing this to be the case, it would be no use to the company to have these few isolated posts left standing at different spots along the line of road; and if they wished to keep them, they should have contended at tin- trial that some of these posts did not come within the rule laid down by the learned judge. We think, therefore, that with respect to these few posts, which may possibly have been excepted from the rule, it would be use- ■ grant a rule. 1 ' 1 Rex v. Inhabitants of Kent, 13 East, 220; Rex v. Inhabitants of Lindsey, II Last, 317. - Rex r Kerrison, 3 M. & Sel. 526. This duty may be enforced by indict- ment. Regina o. Ely, 19 L. J. (M. C.) 223. And the same obligation rests upon tl„. assignees of the company. Penn. Railw. Co. v. Duquesne Borough, 4G Penn. St. 223. • Priestly r. Foulds, 2 Railw. C. 422; 2 Man. & Gr. 175. - 9 Vict. <■. 20. ' Newcastle, &c. Turnpike Co. v. North Staf. Railw., 5 H. & N. 100. [*404] § 111. NATURE OP WORKS. — MODE OP CONSTRUCTION. 425 not include the road beyond where it may properly be regarded as forming an approach to the bridge. 6 And the same rule obtains here. In White v. Quincy, 7 it was held the duty of the company as to repair extended to the whole structure, which they had found it necessary to build to effect their purpose ; even where it ex- tended beyond the boundaries of the location of their line. ♦SECTION VII. Construction of Charter in regard to Nature of Works, axel Mode of Construction. § 111. There are some cases in regard to the construction of railway works, and their requisite dimensions, which have come under the consideration of the courts, and where the decisions are of little precedent, for other cases, not altogether analogous, and on that account not deserving an extended analysis, but which nevertheless we scarcely feel justified in wholly omitting here. 1 6 W. & L. Railw. v. Kearney, 12 Ir. Com. L. 224; Fosberry v. Waterford & Limerick Railw., 13 Ir. Com. Law, 494 ; London & North Western Railw. Co. v. Skerton, 5 B. & S. 559. 7 97 Mass. 430. See also Titcomb ». Fitchburg Railw., 12 Allen, 254. 1 Attorney-General v. London and Southampton Railw., 9 Sim. 78; s. c. 1 Railw. C. 302. This case is in regard to the width of a road under a railway bridge. Manchester & Leeds Railw. v. Reg. (in error) 3 Q. B. 528 ; s. c. 3 Railw. C. 633. The foot-paths are not to be regarded as any part of the requisite width of the bridge. Reg. v. Rigby, 14 Q. B. 687 ; s. c. 6 Railw. C. 479; Reg. v. London & Birmingham Railw., 1 Railw. C. 317. This is a case in regard to the width of a bridge over a highway. Reg. v. Birmingham & Glouces- ter Railw., 2 Q. B. 47 ; 2 Railw. C. 694, which is a case in regard to the width of the approaches to a bridge across a railway. Reg. v. Eastern ( !ounties Railw., 2 Q. B. 347, 569 ; s. c. 3 Railw. C. 22, as to the right to lower a strict, in order to obtain the requisite height under a bridge, notwithstanding the provisions of the local paving act. Reg. v. Sharpe, 8 Railw. ('. 33, as to the right to erect a bridge at a different angle from the former road. Where a special act required a company to strengthen a bridge described in the act, held that they might, never- theless, pull down the old bridge and build a new one. Wood v. North Stafford- shire Railw., 1 McNagh. & G. 278; Rex v. Morris-, 1 B. & Ad. 441, as to making a railway on a turnpike road. A turnpike road, having power to take tolls upon any way leading out of their road, may demand tolls of passengers crossing their road upon a railway granted subsequently. Rowe v. Shilson, 4 I>. A: Ad. 726. [*405] CONSTRUCTION OF RAILWAYS. PART IV. ♦SECTION VIII. - ( 'onbract. — Money Penalties. — Excuse for Non- Performance. istruction assume unusual US. i eng ■i pi milli, s, liquidated damages. Full I. Exausesfor non-performance. ', r ilty not incurred, unless upon strictest Hon. 6, 7. Contractor not entitled to any thing for I a irl -performance, n. 2. Proper construction of the terms used in these contracts. 8. Contract for additional compensation must be strictly performed. §112. 1. As the time within which such works are to be ac- complished is often limited in the act, and as the manner in which the work is done is of the greatest possible importance to the public safety, the law sanctions contracts for such undertakings, in forms not only unusual, but which might not be strictly binding perhaps in the case of ordinary contracts. For instance, it is not uncommon for the contract to impose penalties upon the contractor for slight deviations from the terms of agreement, and to secure to the company the absolute right to put an end to the contract, whenever they or their engineer are dissatisfied with the mode in which the work is done, or the progress made in it. _. And it is almost universal, in these contracts in this country, to refer the quality and quantity of the work done, and the con- A\ here :i railway company, in the course of construction, turned a stream of water, which by their charter they might do, restoring it to its former state, as near as practicable, and the new channel was properly guarded, as far as could he perceived, at the time of turning it, it was held, that the company were not obliged thereafter to watch the operation of the water and take precautions to prevent its encroaching upon the adjoining lands. Norris v. Vt. C. Railw., 28 Vt, 99. See also Fitchburg Railw. v. Grand Junction Railw. & Depot Co., 1 Aim. 198, when- a question in regard to apportioning the expense of a work done by the plaintiff, for the mutual benefit of the parties, in conformity with statutory provisions, is considered, and numerous exceptions on the part of the defendant are overruled by the court. The most important of these exceptions, and which the court regarded as no sufficient ground of defence, are: that the ''"' issioner appointed under the statute, in supervising the work and appor- tioning the cost, conducted with partiality towards the plaintiff, and under his undue influence ; and that the value of the defendant's property and franchise was diminished by the work, and that of the plaintiff's increased thereby. [*40U] §112. PENALTIES. — EXCUSE FOR NON-PERFORMANCE. 427 sequent amount of payments, to be made from time to time, to the absolute determination of an engineer employed by the com- pany. 1 3. The penalties which these contracts provide, either absolutely, * or in the discretion of the company's engineer, for delay in the "work, are to be regarded, commonly, in the nature of liquidated damages. 2 To entitle the party to recover for work done upon 1 Ranger v. Great Western Railw., 13 Sim. 3G8 ; 1 Railw. C. 1 ; s. c. 5 Ho. Lds. 72 ; 3 id. 298 ; ante, § 105. And where the contract refers the umpirage to the company's engineer, by name, "if and so long as he shall continue the company's principal engineer," it was held that the reference was not terminated by the amalgamation of this company with another, the same engineer being continued on the old line, but not as the principal engineer of the amalgamated company. Wansbeck Railw. in re, Law Rep. 1 C. P. 269. 2 Ranger v. Great Western Railw., 5 Ho. Lds. 72 ; s. c. 27 Eng. L. & Eq. 61. In regard to the penalties given by the contract, it is said here by the Lord Chan- cellor : " All the circumstances which have been relied on in the different reported cases, as distinguishing liquidated damages from penalty, are to be found here. The injury to be guarded against was one incapable of exact calculation. The sum to be paid is not the same for every default, for that which should occasion small as for that which should cause great inconvenience, but one increasing as the inconvenience would become more and more pressing; and, finally, the pay- ments are themselves secured by the penalty of a bond ; and this is hardly con- sistent with the notion that the payments secured were themselves only penal sums to secure something else. For these reasons, I think it clear that these payments, though called penalties, are in truth liquidated damages, agreed on by the parties, and which the company might set off against the demand of the appellant upon them under the contract. But then the appellant contends that the company never had a title to recover these penalties, because the delays in respect of which they claimed were produced by the harassing and vexatious conduct of the respondents themselves, or their agents. It is sufficient on this head to say, that the appellant, in my judgment, wholly fails to make out, in point of fact, the proposition for which he contends. The only penalties actually deducted are 200/. for five weeks' delay in completing the headings of tunnels 1 and 3 in contract 1 B, and 20/. for delay in the works of the Avon bridge. There is no doubt but that these sums were due, unless the appellant could relieve himself by showing that the delay had been forced on him by the com- pany itself. The evidence altogether fails to satisfy me of this." Where, in a contract between the original contractors for building a railway and the sub-contractors, it was provided, that the work should be subject to the supervision and control of the engineer of the company, anil that lie should make monthly estimates, four-fifths of which "value" should be paid to the sub- contractors; and when the work was completed, a final estimate; the monthly and final estimates as to the quantity, character, and value of the work done, should be conclusive between the parties ; and that if the contractor should not truly comply with his part "t the agreement, or in case it should appear to the [*407] CONSTRUCTION OF RAILWAYS. PART IV. struction contracts, he must show, either that he has performed the I >rding to the contract, or that the other party has waived strict performance, or hindered it. 3 I. Bui the party may excuse full performance by showing that he was prevented by an injunction out of Chancery at the suit of a third party. 4 Or, thai the parties had entered into a new contract for the same work, upon different terms. 5. Where the work was suspended at the request of the com- pany, with the view to a new location, the company agreeing to pay the plaint ill' $750 by way of damages, if the work should not I"' resumed within two years, and, if it was, the plaintiff to pro- ^ 1 with the work at the prices stipulated, upon those sections uot altered ; the route being altered as to some of the sections, engineer that the work did not progress with sufficient speed, .the other party have power to annul the contract; and the unpaid portion of the work was i> be forfeited by the sub-contractor and become the property of* the other party ; held, that the award of the engineer declaring the work forfeited, was con- clusive, .and binding on the sub-contractor; that the action of the sub-contractor apon the contract was in affirmance of the contract, and that he could not there- fore impeach its stipulations. That the term "value," as used in the contract, be distinguished from the term "price," fixed for the different classes of iml that the. engineer, in making monthly estimates, had a right to deduct from the amount of work done sufficient to bring it to the average of all the work to be done, and is not bound to allow the sub-contractor the price stipulated in the contract, for work of this description. If the company withheld unjustly funds due the sub-contractor, they could not fairly take advantage of the forfeit- lared for want of prosecution of the work. But the retention of the 20 ut in case of forfeiture, is intended as the measure of reparation for the failure to perform the work according to the contract, and not as a mere penalty. ymenl after the forfeiture, by one of the original contractors, of the hands who bad been employed on the works by the sub-contractor, and furnishing money to carry on the work, is not a waiver of the forfeiture, especially if he en ignoranl that the work had been forfeited. Faunce v. Burke, 16 Penn. In English contracts for constructine; railways, it is common to provide for the use of the contractor's plant, in case of the company putting an end to the contract, and for the sale of the same, and crediting the money to the con- tractor. Bui this construction will not be adopted unless loss or expenses have oned, for which the contractor is responsible. Garrett v. Salisbury & 1> reel .1. Railw., Law Rep. 2 Eq. 358. .■ews r. The ( ity of Portland, 35 Me. 475. And it was held here, that lyment, under the contract, after the contractor had failed in strict per- formance, was no waiver, unless the failure was known to the employer at the tine- of p lymenf . 4 \Vh Hi Id v. Zellnor. 24 Miss. 663. 1 Howard v. The Wilmington & Suscpiehannah Railw., 1 Gill, 311. [*408] §112. PENALTIES. — EXCUSE FOR NON-PERFORMANCE. 429 upon which the defendants resumed within the two years, employ- ing others to do the work, without giving notice to plaintiff; held that the plaintiff could not recover the damages agreed, as the work was resumed within the two years, hut that the plaintiff was entitled to damages for not being employed to do the work. 6 6. Where, by the terms of the contract, a proportion of the sum * earned is to be paid monthly, and the remainder reserved, as security for the fulfilment of the contract, it was held, that nothing was due till the day of payment, which could be attached by trus- tee process. 7 7. And where, in such case, the company have the power to determine the contract, and the reserved fund is thereby to be forfeited, and the company do so, after the contractor has worked one month and part of another, and has received the proportion of payment for the first month, it was held nothing was due to the contractor. 8 8. Where a railway company, after making a contract for the construction of its road, became embarrassed, and was unable to make payments to the contractor, and the president, who was a stockholder, and extensively interested in the success of the enter- prise, made an additional agreement with the contractor that he would give him his notes to the amount of $10,000, if the work were completed by a day named, it was held, that he was not liable upon the agreement unless the contractor performed his part of the agreement by the day named. The notes were, by the terms of the agreement, to go in part payment of what was due from the. company, and the new agreement was not to affect the subsisting contract with the company. 9 6 Fowler v. Kennebec & Portland Railw., 31 Me. 197. The construction here adopted seems not very satisfactory. 7 Williams v. Androscoggin & Kennebec Raihv., 30 Me. 201. 8 Hennessey v. Farrell, 4 Cush. 267. 9 Slater v. Emerson, 19 How. (U. S.) 22-4. [*409] //< do much extra work, and furnish materials not provided for in the special contract; that the plaintiff was entitled to recover the whole value of the extra work ami male- rials thus furnished in money, upon an implied assumpsit, and that the agree- ment to take pay in shares did not extend to this part of the work. [*411] 132 CONSTRUCTION OF RAILWAYS. PART IV. assurance of any agent of the company that it will be allowed by the company, without the requisite formality, must look to the ml for compensation, and cannot recover of the company, either at law or in equity. 4 So, under the English General Company Acts, where the directors are authorized to contract on the part of the company, although not in writing, when such contracts would, if entered into by private persons, be binding- in that form, three directors being a quorum for that purpose, it was held that the mere fad that extra work was done with the approbation of the company's engineer, the special contract requiring written direc- tions for all the work, had no tendency to prove a contract binding impany. 5 *4. In one very well-considered case 6 upon the subject of extra work, not authorized in the manner specified in the contract, it is said by the Vice-Chancellor : "From what I have been informed of the course taken at law in these cases, it is this : If, in an action by a contractor, it appears that the company have the benefit of the work, done with their knowledge, the court of law does not allow the company to take the benefit of that work with- out paying for it, although in covenant (or any action upon the contract ) the contractor cannot recover." This may be in accord- ance with the general rules of law applicable to the subject. 7 ' Kirk v. The Guardians of the Bromley Union, 2 Phil. 640; Thayer v. The Vermont I lentral Railw., 24 Vt. 440; Herrick». Same, 27 Vt. 673; s. c. 1 Redf. Am. Railw. Cases, 305; Vanderwerker v. Same, 27 Vt. 125, 130. 5 Bomersham v. Wolverhampton Waterworks Co., 6 Exch. 137; s. c. 6 Railw. ( . 790. Pollock, ( '. 1>., said : " The company is not bound by the mere order of the engineer, or by the contract with one director." Nixon v. Taff Vale Railw., 7 Hare, 136. But see post, §§ 130, 143. 7 Dyer v. Jones, 8 Vt. 205; Oilman v. Hall, 11 id. 511. But, in many -. the work is done by a sub-contractor, and enures to the benefit of the original contractor, as in Thayer v. Vermont Central Railw., 24 Vt. 440, and would not therefore give any right of action against the company, although in they may put the work to their own use, and so may be said to have i it, to some extent. [*412] § 114. REPUDIATION. — INEVITABLE ACCIDENT. 433 SECTION X. If one Party repudiate the Contract, the other may sue presently. — Inevitable Accident. 1. Parti/ repudiating excuses the other. I 3. President cannot bind the company. 2. New contract valid. \ 4. Effect of inevitable accident. § 114. 1. Questions often arise in regard to the right of a party to sue for damages before the time for payment arrives, and before he has fully performed on his part. But it seems now to be well settled, that where one party absolutely repudiates the contract on his part, he thereby exonerates the other from further perform- ance, and exposes himself presently to an action for damages. 1 * 2. Where the contract is unconditionally repudiated by one party, before it is fully performed, it is competent for the other to stipulate for its performance, upon different terms, no doubt. And such stipulation, although not under seal, would probably be re- garded as made upon a valid and sufficient consideration ; and if made by an agent of the former party to the contract, but who had not authority to bind his principal to .such contract, it would nevertheless be binding upon the agent and other party contract- ing, and would not be required to be in writing, as it would be an original and not a collateral undertaking. 3. But it has been held, that after a railway company has en- tered into a written contract, for the performance of certain work, the promise of its president to allow additional compensation to the contractors, for the same work, is without consideration and not binding upon the company. 2 1 Cort v. The Ambergate, Not. B. & E. J. Railw., 17 Q. B. 127 ; s. c. 6 Eng. L. & Eq. 230; Planche v. Colburn, 8 Bing. 14 ; Hoclister v. De Latour, 2 El. & Bl. 678; s. c. 20 Eng. L. & Eq. 157. But in an action to recover damages on such contract, the jury are not to go into conjectured profits resulting from a sub- contract very much below what the plaintiff was to be paid, but only the difference between the contract price and the value of doing the work at the time of the breach can be given. Masterton v. Mayor of Brooklyn, 7 Hill, 61. 'flic repudia- tion of a contract by the company, followed by seizure of the works, under order of a court, will be held a waiver of their right to proceed by arbitration under the same contract on all matters involved in the question of the legality of the seizure. Putney v. Cape Town Railw., Law Rep. 1 Eq. 84 ; Bunger v. Koop, 48 N. Y. 225. 2 Colcock v. Louisville Railw., 1 Strobhart, 329 ; Nesbitt v. L. C. & C. Railw., vol. i. 28 [*413] 4.',. I CONSTRUCTION OF RAILWAYS. PART IV. !. A very Bingular question arose in an English case. 3 The plaintifl agreed to make and erect on premises, under the control of the defendants, certain machinery, and the latter were to pro- ride all necessary brick work, etc. Before the works were com- pleted the buildings in which the work was to be done were destroyed by fire. It was held the plaintiffs were entitled to recover for the work already done by them before the fire, and that it was an implied term of the contract that the defendant should provide the buildings in which the work was to be done, and en- able the plaintiffs to do their part of the work and therefore that the defendant was not relieved by the occurrence of the fire ; as a party who contracts to do a thing is bound to carry out his engage- ment, or to make compensation, notwithstanding he is prevented by inevitable accident. ♦SECTION XL Decisions of Referees and Arbitrators in regard to construction Contracts. 1. Award valid if substantially correct. | 2. Court will not set aside award, where it does substantial justice. § 115. 1. The general rule of law, in regard to the decisions of arbitrators and referees, by which they have been held binding upon the parties, although not made strictly according to the tech- nical rules of law, if understandingly made, and exempt from fraud or partiality, has been sometimes applied to contracts for construction of railway works, the settlement of which has been determined by an umpire. As where the contract reserved the right to the company to alter the gradients of the road, and to sub- stitute piling for embankment without extra allowance. These rs, 697. Tlie controversy here is in regard to hard pan excavation. And as the plaintiff contracted to do all the work on the road, and to construct lad-bed, ami his contract only provided for earth and rock excavation, he is bound to accept his estimates under the contract, and especially, after having done so, he cannot claim extra compensation for excavating hard pan, even if he show that, by usage, " earth" has a technical meaning, and does not include hard pan. 2 Appleby v. Meyers, Law Rep. 1 C. P. 615; s. c. 12 Jur. (N. S.) 500. [•414] § 116. DECISIONS OF COMPANY'S ENGINEERS. 435 alterations were made, and thus increased the expense to the con- tractors. The final settlement being made by referees, to whom " all matters in dispute, with the contract as a basis of settle- ment," were referred, and they having allowed the contractor com- pensation for this increased expense, it was held to be within the power conferred upon the referees. 1 2. So, too, where the contract specified a price for earth excava- tion, and another for rock excavation, but nothing was said of " hard pan," a good deal of which occurred in the course of the work, which was admitted to be more expensive than the ordinary earth excavation ; the whole subject was referred, and the plain- tiff claimed in his specification thirty cents per yard for excavating hard pan, and the referees allowed him fifty cents on trial. The defendants objected to the allowance, being more than the claim. But the court said, where the testimony was received without objection, and showed the party entitled to recover, beyond his specification, the court will not set aside the report, or grant a * new trial, where it is apparent the party has not recovered more than what he is fairly entitled to. 2 SECTION XII. Decisions of Company'' s Engineers. 1. Estimates for advances, mere approxima- tions, under English practice. 2. But where the engineer's estimates are final, can only be set aside for partiality or mistake. 3. Contractor bound by practical construction of the contract. 4. Estimates do not conclude matters, not re- ferred. 5. If contractor consent to accept pay in de- preciated orders, he is bound by it. 6. Right of appeal lost by acquiescence. 7. Engineer cannot delegate his authority. 8. Arbitrator must notify parties, and act bona fide. § 116. 1. The English contracts for railway construction gen- erally contain a provision for referring the final settlement with 1 Porter v. Buckfield Branch Railw., 32 Maine, 539. In this case the con- tract provided for payment of a portion of the price of the work in the stock of the company, and the arbitrators directed, that the same proportion of their award should be paid by issuing certificates of stock, and the award was held valid in this particular also. 2 Du Bois v. Delaware & Hudson Canal Co., 12 Wend. 334. [*415] 43G CONSTRUCTION OF RAILWAYS. PART IV. the contractor to an indifferent board of arbitrators, or one selected by the parties respectively, with the umpirage of a third party in case of disagreement. 1 Under such contracts the provision in ■ 1 to monthly or semi-monthly estimates is such, that they are understood to be mere approximations, and it is only equivalent to a provision, that the company shall advance, from time to time as the work progresses, a stipulated proportion of the work, which they shall, by their engineer, adjudge to be done. All that is requisite to the validity of such estimates is, that they were made bona fide, and with the intention of acting according to the exigency of the contract. 1 * 2. But where the contract contains provisions referring the estimate of the quantity and quality of the work absolutely to the determination of the company's engineer, or any particular party, and provides, as is not uncommon in this country, that his decision shall be final, no relief from his determination can ordi- narily be obtained, even in a court of equity, unless upon the ground of partiality, or obvious mistake, which latter is held to apply rather to the quantity, than the quality of the work, this being purely matter of judgment and discretion, and which was intended to be concluded by the opinion of the arbitrator. 2 But 1 Ranger v. Great Western Railw., 5 Ho. Lds. 72; s. C. 27 Eng. L. & Eq. 35, 46. So where in a canal contract it is provided, that the engineer " shall in all cases determine the amount or quality of the several kinds of work " to be done, and the compensation therefor, and either party had the right to compel an indifferent reference, where he felt aggrieved by the decision of the engineer, "to investigate and determine all questions that may arise relating to compensa- tion for work done under this contract ; " it was held, this umpirage only ex- tended to the final account of the engineer. People v. Benton, 7 Barb. 209. Under a contract where the company stipulated to pay the contractor ninety per cent of work done, according to the engineer's estimate ; and the engineer had the ri^ht to declare the contract abandoned, and in that event the ten per cent became forfeited, and the engineer did so declare ; it was held that this did not absolve the company from the payment of the ninety per cent upon the work done by the contractor, before the contract was declared abandoned. Pucker v. Fair- banks, 40 Maine, 43. 2 II. nick v. The Vermont Central Railw., 27 Vt. 673; Kidwell v. Bait. & Ohio Railw., 11 Gratt. 376; Alton Railw. v. Northcott, 15 111. 49. In this case it was held that the estimate of the umpire will not bind the parties, if based on an erroneous view of the contract. So a court of equity may correct the mistakes of the engineer, although the contract stipulates that his decision shall be final. Mansfield & Sandusky Railw. v. Veeder, 17 Ohio, 385. So, too, where the engineer proved to be a stockholder in the company. Milnor v. The Georgia [•416] § 116. DECISIONS OF COMPANY'S ENGINEERS. 437 in an English case 3 before Vice-Chancellor Stuart, where in a building contract the corporation reserved the power to determine the contract, which they afterwards exercised, and it was stipulated that any dispute or difference which might arise between the con- tracting parties should be referred to and settled by the engineer, that it should not be competent for either party to except at law or equity to his determination, and that without the certificate of the engineer no money should be paid to the plaintiffs; it appear- ing that the engineer had never refused to discharge his duty according to the contract, and had nothing to disqualify him to act, and was ready and willing to proceed and determine all mat- ters at issue between the parties : it was held that there was no ground for the equitable interference of the court. 3. If the contractor acquiesce in a particular construction of his * contract, and allow his estimates, from time to time, to be made upon such basis, he will be bound by it thereafter. 4 4. Where the contract specifies a price for rock excavation, and another for ordinary earth excavation, and in the course of the work a large quantity of hard pan was excavated, for which no provision was made in the contract, and the other party conceded that compensation was due, beyond the price fixed in the contract for ordinary earth excavation, it was decided that the contractor might recover upon a quantum meruit count. And where the con- tract also provided that the engineer should finally determine all questions necessary to the final adjustment of the contract, this did not render the engineer's estimate conclusive, as to the sum to be paid for excavating hard pan. 6 These points are both decided, Railway & Banking Co., 4 Ga. 385. And in Kerns v. CReilley, Leg. Int. Aug. 31, 1866, it was decided that the award of an engineer between contractor and sub-contractor is final. And in Leech v. Caldwell, id. Nov. 16, 1866, it was held, that where the sub-contractor covenanted to abide the decision of the engineer of the work in any dispute arising on the contract, the alleged fraud of the engineer did not affect the covenant. 3 Scott v. Corporation of Liverpool, 31 Law Times, 147, 1858. This subject is discussed in Roberts v. the Bury Improvement Commissioners, L. R. 4 C. P. 755 ; s. c. 5 id. 310. But there is so much difference of opinion among the judges that no new principle can fairly be said to be established. See also Jones v. St. John's College, L. R. 6 Q. B. 115. 4 Kid well v. The Baltimore & Ohio Itailw., 11 Grattan, 676. See also Com- monwealth v. Clarkson, 3 Penn. St. 277. 6 Du Bois v. Delaware & Hudson Canal Co., 12 Wend. 334; s. C. 15 id. 87. See s. c. 4 Wend. 285. But see ante, § 114; Nesbitt v. L. C. &c Railw., 2 [*417] CONSTRUCTION OF RAILWAYS. PART IV. mainly, it is presumed, upon the concession of the defendant, that the bard pan excavation was a matter altogether outside of the contract. Otherwise it might seem difficult to maintain their entire consistency with other decided cases. 6 5. Where the contract gives the engineer power to stop the work, when the means of carrying it forward fail, and he informed the contractor it could not proceed unless he would receive his monthly pay in orders, which were at a discount, and the contractor ated to receive them, he is not entitled to recover of the company the amount of such depreciation. 7 6. And although the contractor, by the contract, had the power to refuse to abide by the final estimates of the engineer, yet if h«' submitted to him his charges for the work done, and made no objection to his making up the final estimate, he is bound thereby." 7. Where in a contract for work upon a railway it was stipu- lated that the work should be measured by defendant's engineer * or agent, which should be final and conclusive, it was held that such person could not delegate his authority, but that it was indispensable that he should himself make the admeasurement. But in making it, it is not necessary that he should give previous notice to the parties to enable them to be present. 8 8. But if such agent is to make an estimate of certain expenses to be allowed the plaintiff, and he proceeds to do so, in the absence of plaintiff and without notice to him, he will not be bound by the estimate. But such estimate will not be affected by the inade- quacy of the amount, or that the usual means were not resorted to for ascertaining facts, if the umpire act bona fide, which is a fact to be determined by the jury. 8 '7, where hard pan seems to be regarded as earth excavation, unless there is some special provision in the contractor estimating it otherwise. Morgan v. Birnie, '.» P.ing. 672. See also Sherman v. The Mayor of New York. 1 Comst. 316, 320. 7 Kidwell r. The lialtimore & Ohio Railw., 11 Grattan, 676. See also Com- monwealth v. Clarkson, 3 Penn. St. 277, upon the general subject of the con- clusiveness of the engineer's estimate. " Wilson r. York & Md. Railw. Co., 11 Gill & Johns. 58. Gross negligence fraud, but is evidence to be considered by the jury. Id. '18] sir EQUITABLE RELIEF FROM DECISIONS OF ENGINEERS. 489 SECTION XIII. Relief in Equity from Decisions of Company's Engineers. 1. Facts of an important case stated. 2. Claim of contractor in the bill. 3. Bill sustained. Amendment alleging mis- take in estimates. 4. Relief only to be had in equity. 5. Proof of fraud must be very clear. 6. Engineer being shareholder, not valid ob- jection. 7. Decision of engineer conclusive as to qual- ity of work, but not as to quantity. 8. New contract condonation of old claims. 9. Account ordered after company had con- pleted work. 10. Money penalties cannot be relieved against mil, ss for fraud. n. 1. Review of the cases upon this subject. 1 1 . Engineer's estimates not conclusive unless so agreed. Contractor, whose work surrendered by supplemental contract, entitled to full compensation. Direction of umpire binding on contract- ing parties, and dispenses with certifi- cate of full performance. 12. l:: § 117. 1. In consequence of the peculiar stringency of the terms of contracts for railway construction, applications for relief in equity have not been unfrequent. In one case 1 it was agreed 1 Ranger v. Great Western Railw., 1 Railw. C. 1 ; s. c. 13 Sim. 368. And where by the contract the work was to be done to the satisfaction of the engineer of the defendants, and suit was brought without obtaining the judgment of the engineer, held, that it could not be maintained. Parkes v. The Great Western Railw., 3 Railw. C. 17. This case is also found in 3 Railw. C. 298, and in 5 Ho. Lds. 72, and in 27 Eng. Law & Eq. 35. This case came before the House of Lords, on appeal for final determination, May 26, 1854, just ten years after the decision in the Vice-Chancellor's court. The judgment was in the main affirmed, but in form was reversed, and sent back to the Court of ( Ihancery, for an account to be taken between the parties, according to their respective rights, as established by the final decision. The case, as it appeared on the final hear- ing, is deserving of a more extended notice. The following is the statement of the case, and the points ruled in the House of Lords. In a contract between R. and a railway company for the performance by R. of a portion of the line of railway, alter reciting that R. agreed to secure the due performance of his con- tract, by his bond in the penal sum of £4,000 conditioned for the payment to the company of certain fixed sums for every week in which the work should not be completed according to the contract, the penalty in each successive week to increase in a fixed proportion, it was witnessed, amongst other tilings, that in case R. should become insolvent, &c, or should, from any cause whatsoever (not the act of the company), not proceed in the works to the satisfaction of the com- pany, the Company might give to U. a notice in writing requiring him to proceed with the said works, and in case R. should for seven days after such notice make [*418] 4 in CONSTRUCTION OP RAILWAYS. PART IV. by * the contract that every fortnight the engineer of the company should ascertain the value of the work done, according to its default in commencing or regularly proceeding with the said works, it should be lawful lor the company to employ other persons to complete the works, and pay them out of tlic money which should be then remaining due to R. on account of his contract ; ami that the moneys previously paid to R. on account of any works should be considered as the full value, and be taken by him as in full payment ami satisfaction for all works done by him : and that all moneys which either then or thereafter would have been payable to R., together with all the tools and materials then being upon the works, should, upon such default as aforesaid, become and be in all respects considered as the absolute property of the com- panv : and that if such moneys, tools, and materials should not be sufficient to pay for the completion of the works, then R. should make good such deficiency on demand. It was then further witnessed, and the company covenanted to pay to It. for the completion of the works the sum of £63,028 16s., in the following manner, namely, every fourteen days four-fifth parts of the whole value of the said work which shall have been actually performed during the preceding four- teen days, until there should be a reserved fund of £4,000, and then every four- teen days to pay the full value of such work, such value to be estimated by the principal engineer or his assistant, having reference as well to the prices in the schedule (as to extra work) as to the entire cost of the whole works ; and at the expiration of one calendar month after the completion of the entire works, to pay one moiety of the £4,000 so retained in the hands of the company, and at the expiration of one year and a month, the remaining moiety of the £4,000. And it was lastly agreed, that during the progress of the works, the decision of the principal engineer for the time being of the company, with respect to the amount, state, condiiion, &c, or any other matter or thing whatsoever relating to the same, shall be final, and without appeal; but in case of dispute, after the com- pletion of the contract, as to any matter of charge or account between the com- pany and R., such dispute shall be finally settled by the arbitration of the said engineer on the part of the company, and an engineer appointed by R. on his part, or if they disagree, by an arbitrator to be named by them. After R. had proceeded to a very considerable extent towards the completion of his contract, the company, being dissatisfied with the progress of the works, gave the notice to It. mentioned in the contract, and after seven days they took possession of the ■works, and of all the tools and materials thereon, and completed the works by Other parties. R. filed his bill, setting up a case of fraud against the company in concealing the nature of the strata through which cuttings and tunnels were to be made, and insisting that he was entitled to be paid for those works at fair prices, regardless of the contract; that the fortnightly certificates of the value of the work given by B., the engineer of the company, were void, and not binding upon him, in consequence of B. being a shareholder in the company; that he was entitled to be relieved against certain money penalties which had been charged against him in the engineer's certificates; that the company were not justified in taking possession of the works, tools, and materials; and that he was entitled to have an account taken of the value of the work done, on the footing that there were no contracts, or that they were abandoned; and that the com- [*419] § 117. EQUITABLE RELIEF FROM DECISIONS OF ENGINEERS. 441 * quality and relative proportion to the whole work ; the contractor to receive eighty per centum, the remainder being reserved to pany might be debited with the value of the engines, tools, materials, articles, and things of which the company took possession. Held, first, that no case of fraud had been made out. But, semble, that although a corporation cannot be guilty of fraud, yet if their agents employed in carrying out a trading speculation be guilty of fraud, the corporation will be liable. Per the Lord Chancellor. Secondly, that the principle which prevents a person being a judge in his own cause (Dimes v. The Grand Junction Canal Co., 3 Ho. Lds. 759 ; 17 Jur. 73 ; s. c. 16 Eng. L. & Eq. 63), does not apply to the case of the engineer of a railway company holding shares in that company, who, according to the terms of a contract between the company and a contractor, was, during the progress of tbe works, to give periodical certificates of the value of the work done, but which, on the completion of the contract, were not final. Thirdly, that the money penalties had been properly charged against R., they being, upon the proper construction of (he contract, not penalties, but liquidated damages. Fourthly, that even assuming that the company were not justified in taking possession of the works, tools, and materials, after the notice given R. was not entitled to treat the contract as not existing, or as abandoned. R.'s right would have been by action for damages, and the seizure by the company formed no ground for such equitable relief as was asked. Fifthly, that upon the true construction of the contract, the company did not according to their conten- tion, upon taking possession of the works and plant after notice, become absolute owners of the tools and materials, &c. ; this whole provision is to be regarded, not in the nature of a penalty, but as mere machinery for enabling the company to complete the works at the cost of R., and the company are bound to account for the value of the tools and materials, in settling their accounts with him, which accounts were decreed to be taken on the footing of the contract. In re- gard to the competency of the engineer, the leanied Chancellor said : " When it is stipulated that certain questions shall be decided by the engineer appointed by the company, that is, in fact, a stipulation that they shall be decided by the company. It is obvious that there never was any intention of leaving to third persons the decision of questions arising during the progress of the works. The company reserved the decision for itself, acting, however, as from the nature of things it must act, by an agent, and that agent was, for this purpose, the engineer. His decisions were, in fact, their decisions. The contract did not hold out, or pretend to hold out, to the appellant, that he was to look to the engineer in any other character than as the impersonation of the company. In fact, the contract treats his acts and their acts, for many purposes, as equivalent, or rather identi- cal. I am, therefore, of opinion, that the principle on which the doctrines as to a judge rest, wholly fails as to its application to this case. The company's engi- neer was not intended to be an impartial judge, but the organ of one of the con- tracting parties. The company stipulated that their engineer for the time being, whosoever he might be, should be the person to decide disputes pending the progress of the works, and the appellant, by assenting to that stipulation, put it out of his power to object, on the ground of what has been called the ' unindif- ferency' of the person by whose decision he agreed to be bound. It is to be [*420J 4 1 2 CONSTRUCTION OF RAILWAYS. PART IV. ♦enforce the completion of the works: That if the engineer should not be satisfied with the works, after notice given to the pved, that the person to decide was not a particular individual, in whom notwithstanding bis relation to the company, the contractor might have so much confidence as to agree to be bound by his awards, but any one from lime to time the company might choose to select as their engineer. The appellant alleges that he did not know the fact that Mr. Brunei was a shareholder until more than two years alter the works had been begun. But he must have known that the company had it in their power to appoint another engineer in Mr. Brunei's place, who mighl hold shares, or that Mr. Brunei himself might purchase shares. With- out the intervention of the engineer, the contract was, as it were, paralyzed; nothing could be done under it ; and it surely can hardly be argued that a person appointed engineer could, by purchasing shares, render the contract practically inoperative." It is regarded as questionable, how far a contract, vesting the property of the contractor in the company, in the event of his insolvency merely, could be main- tained, as consistent with the English bankrupt and insolvent laws. Rouch v. The Great W. Railway, 1 Q. B. 51 ; s. c. 2 Railw. C. 505. But this objection may be obviated by the company stipulating for a lien merely ; a right to use the tools and materials of the contractor in the completion of the work, according to ar.d in fulfilment of his contract. Hawthorn v. Newcastle-upon-Tyne & N. Shield Railw., 3 Q. B. 734, note a ; s. c. 2 Railw. C. 299. It is said in one case, by a very learned equity judge, Lord Redesdale (O'Connors. Spaight, 1 Sch. & Lef. 309), that where an account has become so complicated that a court of law would be incompetent to examine it, upon a trial at Nisi Prius, with all neces- accuracy, a court of equity will, upon that ground alone, take cognizance of tl.e case. But a court of equity will not ordinarily interfere in any such case, and especially when the party applying has been guilty of laches. Northwestern Railw. v. Martin, 2 Phil. 758. See also Taff-Vale Railw. v. Nixon, 1 H. L. Cas. 11!; Faley v. Hill, 2 id. 45, 46. See also Nixon v. Taff-Vale Railw., 7 Hare, 13G. It is questionable, we think, whether any such distinct ground of exclusive equity jurisdiction, in matters of account, as the complicated nature of the trans- actions, can lie maintained, but there is little doubt this would be regarded as an important consideration in guiding the discretion of that court, in assuming such jurisdiction, in any particular case pending in a court of law. But sometimes where the contractor claims the right to appropriate payments, made generally, to a different contract from that upon which the company desire it to apply, it b ic imes necessary to draw the whole into a court of equity. Southeastern Railw. D. Brogden, 1 I Jur. 795; s. c. 3 McN. & G. 8. See upon the general subject, Waring v. The Manch. & Sheffield & L. Railw., 7 Hare, 482. An important upon a contract for railway construction, finally determined in the national tribunal of last resort, upon elaborate argument and great consideration, and which involved most of the subjects involved in the case of Ranger v. The Great W estern Railway, may be regarded, perhaps, as bearing something of the same relation to cases in this country upon that subject which the English case does to of that kind in the English courts. This is the case of Philadelphia, Wilmington, & Baltimore Railw. v. Howard, [*421] § 117. EQUITABLE RELIEF FROM DECISIONS OF ENGINEERS. 443 contractor, * and his default in complying for seven days to take possession of the works, thereupon the plant and materials of the 13 How. 307 ; s. c. 1 Am. Railw. C. 70. It came into the United States Supreme Court by writ of error to the Circuit Court of the United States for the District of Maryland. The facts in the case are complicated, and the points involved numerous. It will only be necessary to state the facts, in connection with the several points decided. The points bearing upon this subject are : In such con- tract the covenant to finish the work by a time named on the one part, and to pay monthly on the other part, are distinct and independent covenants. And a right to annul the contract, on the part of the company, at any time, did not include a right to forfeit the earnings of the other party for work done prior to the time when the contract was annulled. A covenant to execute the work, according to a certain schedule, which mentioned that it was to be done accord- ing to the directions of the engineer, bound the company to pay for work done according to his directions, although not strictly in conformity with a profile showing the original proximate estimates. And when the contract was to place the waste earth where ordered by the engineer, it was the duty of the engineer to provide a convenient place, and if he failed to do so the other party is entitled to damages. Where the contract authorized the company to retain, until the completion of the contract, fifteen per cent of the earnings of the contractor, by way of indemnity from loss, by any failure to perform the contract by the con- tractor, it was held this was not to be regarded as a forfeiture, and that the company, if they terminated the contract, were bound to pay the contractor any amount which they had so retained, unless the jury were satisfied the company had sustained loss by the default, negligence, or misconduct of the contractor, which should be deducted. Where the contractor was delayed in the progress of the work, by an injunction out of Chancery, he is entitled to no damages, unless the jury find that the company did not use reasonable diligence in obtaining a dissolution of the injunction. If a railway company, having the power reserved to them of annulling a contract for construction, "when, in their opinion, it is not in due progress of execution," or the contractor is " irregular or negligent, 1 ' it was held, that if they exercised this power for the purpose of having the work done cheaper, or of oppressing and injuring the contractor, he was entitled to recover damages for any loss of profit he might have sustained, and of the reasons which influenced the company, the jury were to be judges. And in Herrick v. Vermont Central Railw., 27 Vt. 073; s. c. 1 Redf. Am. Railw. Cases, 305, the following points were decided upon this subject: A stipula- tion in a contract for the construction, in part, of a railway, that " the engineer shall be the sole judge of the quality and quantity of the work, and from his decision there shall be no appeal,*' is binding upon the parties, and constitutes the engi- neer an arbitrator or umpire between them. Such a stipulation imposes upon the parly by whom the engineers are to be employed, the duty of employing for such engineers competent, upright, and trustworthy persons, and to see to it that they perform the service expected of them at a proper time and in a proper manner. Such a stipulation, when construed with reference to its subject-matter, and the ordinary course of business, does not require the estimates to lie made or verified by the chief engineer, hut I is reference a- well to the assistant, or resident en- [*422] 444 CONSTRUCTION OF RAILWAYS. PART IV. contractor, * and all the work done and not paid for, and the reserved fund to be forfeited to the company. ginecr, I v whom such estimates are usually made. If payment Tor the work performed is dependent upon and to be made according to the engineer's esti- mates, as to its amount, and the employing party performs its duty in reference to the employment of suitable engineers, &c, the obligation to pay will not arise until such estimates are made. But if no estimates are made, through the neglect or fault of the engineer, or of the party who employs him, the other party could probably recover at law, for the work performed by him, without any engineer's estimate of it. A contract providing for monthly estimates of the contractor's work according to which he is to be paid, imports an accurate measurement and final estimate for each month, and not such a one as is merely approximate or conjectural. A court of equity has jurisdiction of a claim to be paid for a larger amount of work done under such a contract than was estimated by the engineer, where the under-estimate was occasioned either by mistake or fraud. The Ver- mont Central Railway Company contracted with B. for the construction of their railway, and B. contracted with the plaintiff for the construction of a part of it. In both contracts there was such a provision in reference to the conclusiveness of the engineer's estimates. Held, that there was no privity of contract between the plaintiff and the Vermont Central Railway Company, and that he could not recover of them for work not estimated by the engineer, by reason only of a mistake, which they had not, either directly or indirectly, caused or connived at; and that their indebtedness to B. for the same work for which he was indebted to the plaintiff, did not constitute a fund against which the plaintiff had a claim. But if there was any connivance on the part of the Vermont Central Railway Company, or their agents, in bringing about the under-estimates complained of, even it it was without the design ultimately to defraud, but only as a temporary expedient lor present relief, the plaintiff would be entitled to recover of them the loss which he sustained by reason thereof. The plaintiff claimed in his bill, that he had been under-estimated a given amount, for the payment of which he instituted the present suit; by the report of the Master, the amount not estimated was found to be more than twice that amount. Held, that the plaintiff should be limited to the amount claimed in his bill. The report of a Master in Chancery upon the taking of an account, should contain a succinct statement of all the points made by counsel, and the facts found by him upon each point. The testimony given viva voce before a Master in ( Ibancery, in taking an account, or a copy of it, should be returned to the court, with his report. The Master should also state the account, at length, and all the facts found by him, so that they will be intelligible, without reference to the testimony. In a contract for railway construction, where the parties by a subsequent contract stipulated for the completing of the work by a day named, for the additional price of £15,000, and a further stipulation that the contractor should pay the company £:i()0 for each day's delay beyond the time specified, the m\ to furnish the rails and chairs, blocks, &c, to complete the same, by the day specified, the work was not finished for twenty-four days after the time Bpecifi. d, and the rails, chairs, blocks, &c, were not furnished to complete it sooner. The court held the covenants independent of each other, and the con- § 117. EQUITABLE RELIEF FROM DECISIONS OF ENGINEERS. 445 * 2. The company having taken the forfeiture under the contract, the plaintiff filed his bill, insisting that the engineer had under- estimated the work <£30,000, and that no forfeiture had been incurred by him, and praying that the company might elect to permit the plaintiff to complete the works, or that the contract might be considered at an end, and in either case an account between the parties might be taken. * 3. The Lord Chancellor held, that the facts alleged do entitle the plaintiff to relief in equity. The plaintiff amended his bill, and alleged that the most expensive masonry had been paid for only at the price of inferior work, and claimed large sums in that respect, and also alleged fraud against the company, in the con- tracts and in the certificates. 4. It was held, that the investigations as to the sufficiency .of the payments made could only be made in a court of equity. 5. That the evidence in support of an allegation of fraud must be very clear, and that it is not enough to show that the state- ments of the company as to the nature of the work, gave imper- fect information, but it must also be shown that the contractor could not with reasonable diligence have acquired all necessary information. 6. The fact of the engineer being a shareholder in the company is not enough to avoid his decision, as the contractor might have ascertained this fact. The character of an engineer is of more value to him than his interest as a shareholder. 7. That the decision of the engineer as to the quality of the work is conclusive, but not as to the quantity. The question of measurement and calculation will be entertained and decided by a court of equity. 8. That where the parties have entered into new contracts, it will be considered, a condonation of old injuries, unless, at the time of making the new contract, the plaintiff insisted upon his adverse claims, the parties being at liberty to proceed at law. 9. After the works were completed by the company the court tractor bound to deduct the stipulated forfeiture, notwithstanding the default of the company. Mcintosh v. Midland Counties Railw., 14 M. & W. 548; 8. c. 3 Railw. C. 780. The rule of law that covenants, winch are not the entire consid- eration for each other, will ordinarily be construed as independent, unless there is something in the transaction which shows the parties regarded them as de- pendent, is certainly carried further in this case than reason and just ire would seem to justify. We think this case would not be followed in this country. [*424, 425] 446 CONSTRUCTION OF RAILWAYS. PART IV. ordered an account taken, directing special inquiries as to the amount and kind of work done. LO. It was held that stipulations in regard to penalties in these contracts are binding upon the parties, and no relief against them will be afforded in equity unless fraud be shown. And that, where it had been agreed that a written contract should form part of an unwritten one, this will include stipulations as to for- feituiv. 1 11. In one case in Pennsylvania 2 it was decided that the esti- mates and decisions of the engineer of a railway company are conclusive, in disputes with contractors, only where such is the positive stipulation of the contract ; that in every other case the * correctness of such estimates are to be tested by evidence, and in an action against the company by a contractor to recover a balance claimed to be due for work, it is correct to instruct the jury to rely on the engineer's final estimates unless shown to be erroneous. 12. In such a contract, where a supplemental contract was made by the company, assuming the work, and agreeing to pay the con- tractor for what work he had done, and reserving no claim for damages, either on account of the suspension of the wox'k or its not being completed, it was held that the contractor was entitled to compensation according to the stipulations of the supplemental contract, without any deductions on account of suspension of or not completing the work, and that the work done and agreed to be compensated must be estimated at what it was worth, and the contractor's claim could not be restricted to what would be coming to him under the final estimates of the engineer ; nor could the company claim any deductions on account of loss incurred in completing the work. 2 13. And where the plaintiff stipulated to perform the work of shifting the track of a railway, under the direction and to the satisfaction of the city surveyor, whose certificate that the work had been so performed was to entitle him to payment, it was held, that where the surveyor directed that the work should not be done beyond a certain point, that was a valid excuse for not obtaining his certificate of performance beyond that point. 3 ■ .Memphis llailw. Co. v. Wilcox, 48 Penn. St, 161. 3 Devlin v. Second Avenue Railw. Co., 44 Barb. 81. [*426] 118. FRAUDS IN CONTRACTS FOR CONSTRUCTION. 447 SECTION XIV. Frauds in Contracts for Construction. 1. Relievable in equity upon general princi- ples. 2. Statement of leading cases upon this subject. 3. Where no definite contract closed, no relief can be granted. § 118. 1. It is well known that courts of equity will relieve against fraud practised by the agents of railways, in building-con- tracts, the same as in other cases of fraud. But the importance and peculiar nature of these contracts will justify a brief note of the cases decided upon the subject. * 2. The most important case in the English books upon this subject, is that of Ranger v. The Great Western Railway, which we have just referred to upon another point. 1 And the statement 1 1 Railw. C. 1 ; s. c. 3 Railw. C. 298. On appeal in the House of Lords, 27 Eng. L. & Eq. 35, 41 ; s. c. 13 Sim. 368 ; 5 Ho. Lds. 72. In regard to fraud, on the part of railway companies, in building-contracts, the Lord Chancellor said : " The first ground on which the appellant rests his title to relief is, that he was induced to enter into the contract by the fraud of the company; that the sum at which he agreed to do the works was far below what he would have required had he known the real nature of the soil through which the tunnels were to be made ; but on this point he had been misled by the fraudulent contrivance of the respondents. The case made by the bill on this head is, that there being on the line of the road to be made for the railway in the neighborhood of Bristol three kinds of stone, sandstone, Dunns, or Dunn stone, and Pennant or Hanham stone, of which the first (that is, sandstone) is comparatively soft and easy to work, whereas the other two kinds (particularly the latter) are hard and difficult to work, the company acting through Mr. Brunei, their engineer, fraudulently contrived to make the appellant believe that the cuttings would be through the softer material (sandstone), and not through Dunns or Pennant stone, whereas the fact was, as they well knew, that the line was chiefly through the harder sorts of stone. The bill represents, that, for the purpose of enabling persons desirous of contracting to make the road along the line included in the contract described as 1 B, to tender for the same, it was necessary that in different parts of that portion of the intended line pits should be sunk, called ' trial pits, 1 in order that the nature of the strata might be previously known; and accordingly that the respondents did sink ten such pits, but that eight of them were only sunk to the deptli of a few feet, and were, therefore, of little or no use in showing what would be the nature of the soil at the level of the line of the railway, which was at a very considerable depth below the surface: and the other two were sunk respectively to depths of 78 and i>i> feet only, at points where the intended line [*427] 448 CONSTRUCTION OF RAILWAYS. PART IV. * of that case, in the House of Lords, by the Lord Chancellor inworth, is a better commentary than elsewhere exists, * upon of road was in one case 112 feet and in the other 97 feet below the surface, so that these two pits did not reach the level of the railway, in one case by 34 feet, and in the other by 12 feet. The bill further alleges that the soil dug out of all of the said pits was laid on the surface near the mouth, and showed apparently a substratum of sandstone, the workmen employed to sink the pits having by direc- tion- from the company ceased to dig when they reached the hard stone, except that out of the bottom of one of the deep pits some Dunn stone was taken, but which had crumbled away when exposed to the air. " The bill then goes on to charge, in substance, that the company, with knowl- edge that the cuttings would have to be made through the harder sorts of stone, caused notice to be given by advertisement, that they were ready to receive tenders according to certain printed forms circulated for the purpose, and the nature of the works to be done was to be ascertained from a specification deposited in their office at Bristol. The specification described the works for which the tender was to be made. The printed form of tender contained an undertaking by the party tendering, not only that he would do the contract works at a specified sum, but also that he would do any extra works, and make any alterations in or additions to the original works which might be deemed expedient in the course of their progress, on being paid for the same according to certain rates set out in a schedule of prices annexed to the tender. The different heads under which charges were to be made by the contractor, in respect of such extra or altered works, were all printed as part of the form of tender, and the party tendering was to write against each such head the price at which he would agree to be bound to do the same works of the nature there referred to. Amongst the works so to be done was the excavating clay, shell, and sandstone, but there was no mention in the schedule of any other stone. Neither Dunn stone nor Pennant are referred to by name ; and the suggestion of the bill is, that the omission of any mention of Dunn or Pennant stone was a contrivance, or part of a con- trivance, for the purpose of leading the persons tendering, to suppose that they might make their calculations on the footing of there being no hard stone to be cut through, — a supposition which would be confirmed by the trial pits, out of which no hard stone had been dug, except the small portion of Dunn stone from one of the pits, which, as I have already stated, crumbled away when exposed to the air. " The appellant was resident in London, and in order to enable him to make his tender, he sent down to Bristol an agent, Thomas Lloyd, whom he represents as a competent judge in such matters, to examine the line of the proposed works, so as to enable him to form a correct judgment as to what would be a fair amount to be tendered. The bill states that Lloyd accordingly proceeded to Bristol in the month of March, 1836, surveyed the line and inspected the trial pits, and that, reasonably supposing the two principal pits to have been sunk to the level, and not finding amongst the excavated material accumulated on the surface any thing but soft or loose stone, —no Pennant or Hanham stone, — he concluded that there would be no cutting through hard stone ; and the sum tendered was calculated on that basis. It was, according to the bill, impossible for Lloyd to [*428, 429J § 118. FRAUDS IN CONTRACTS FOR CONSTRUCTION. 449 this subject. The general subject of fraud in railway companies, in regard to building contracts, is somewhat considered in a late case in the Supreme Court of Vermont. 2 get down to or near the bottom of the two principal trial pits, in consequence of th ir being nearly filled up with rubbish and water before he examined them. The appellant, therefore, contends that he was imposed upon as to the nature of the work he had to perform, and so agreed to do it on terms to which, but for the deception practised upon him, he would not have consented. The question on this part of the case is one of fact. Is it established that any imposition wa8 practised on the appellant to induce him to enter into the contract ? For if there was, he was clearly entitled to relief, — whether precisely that which he asks for is another question. Strictly speaking, a corporation cannot of itself be guilty of fraud ; but where a corporation is formed for the purpose of carrying on a trading or other speculation for profit, such as forming a railway, these objects can only be accomplished through the agency of individuals ; and there can be no doubt that if the agents employed conduct themselves fraudulently, so that, if they had been acting for private employers, the persons for whom they were acting would have been affected by their fraud, the same principles must prevail where the principal under whom the agent acts is a corporation. The question, therefore, on this part of the case is whether the directors, or the engineers, or agents, whom they employed, were guilty of the fraudulent misrejn-esenta- tions alleged by the bill. I am clearly of opinion that no such case is made out. [His lordship here stated the nature of the evidence on this point, and continued] : — " Two engineers, Mr. Frere and Mr. Babbage, both say that the appellant had ample opportunity, by means of the trial pits and cuttings, of ascertaining the nature, of the soil and strata; and the circumstances of the case satisfy me that this must be true. The work to be done was of a laborious, difficult, and expensive character. The notices calling for tenders had been circulated for many weeks, and even months, and Avould naturally excite the attention of con- tractors of eminence, who would be drawn to the spot. I cannot attribute to the company the fraudulent intention imputed to them — an intention as absurd as it would have been fraudulent — of meaning to mislead those who should apply to make tenders for the work, when they must have felt that the success of such a fraud must entirely depend on the very improbable chance, that those who should be attracted by the notices would omit to make inquiry into the nature of the soil they would have to excavate. The work was not one of a trifling nature ; one of the persons who made a tender demanded above £100,000. The tenders were, in the first instance, to be made before the 1st March, 1836; and until nearly a fortnight after that date the two principal trial pits had been open, and free from water, so that there was nothing to prevent any contractor from him- self ascertaining to what depth it had been cut, and what was the soil at the bottom ; and though by the 12th March a great deal of water had entered, and 2 Herrick v. The Vermont Central Kailw., 27 Vt. 673; s. c. 1 Redf. Am. Railw. Cases, 305. 2fJ [*429] 450 CONSTRUCTION OF RAILWAYS. PART IV. Bui if is clear that where no binding and complete con- tract has been entered into by the company, although the tenders irtially clicked the two principal pits, yet Mr. Frere says the company and their engineers were always ready to facilitate the appellant's investigation as to the nature of the soil and strata. •• lie' appellant, in his bill, assumes that sandstone and Pennant stone are two different kinds of stone, but this is not the conclusion at which, on the evidence, I arrive. ' Pennant stone,' says Mr. Brunei, ' is a species of sandstone, and the i .nl \ Bpecies in the neighborhood of Bristol of sufficient hardness to be used for bridges, or other strong masonry.' And Mr. Frere says that it is extensively osed in Bristol, and is the hardest sort of sandstone found in that neighborhood, except the Brandon Hill stone. Dunn stone, according to the same witness, is merely a local term for a particular variety of shale, and is frequently found in cuttings along with sandstone. This explanation fully justifies the language of the tenders, without supposing that the materials to be excavated and removed were there mentioned by the company for any purpose of deception. The soil to he removed was sufficiently designated as consisting of clay, shale, and sand- Btone, the latter term comprehending all sandstone, hard as well as soft; that is Pennant or Hanham stone (which is in truth only Pennant stone found at Han- ham), as well as ordinary sandstone. In the contract 2 B, the expression occurs, ' compact gray sandstone, commonly called Hanham stone.' It was for the appel- lant, before he made a tender, to satisfy himself as to the probable hardness of the sandstone to be removed, which, after all, could never be ascertained before- hand with perfect certainty. By examining the trial pits and cuttings, and mak- ing inquiries of the engineers, he might have ascertained the depth to which the piis had been sunk, and the nature of the soil through which they had penetrated, and at which they had arrived. The cuttings, according to the evidence of Mr. Frere, exhibited sandstone, Pennant, and Dunn stone ; and the old quarry in Fox's Wood showed Pennant. "In these circumstances, I think it is impossible to believe that there was any thing like contrivance to mislead the appellant or any other contractor; and it is char that the appellant, if there was no fraud, was bound to satisfy himself on the subject; for the specification of the proposed works, submitted to him before the tender was made, expressly stipulates that the contractor must satisfy himself of the nature of the soil, and of all matters which can in any way iniluence his contract. This, though of course it would not absolve the company from the of any fraudulent contrivances to mislead, yet certainly, in the absi ace of fraud, threw on the appellant the obligation of judging for himself. I must In ih r add, that I cannot believe the appellant to have been really mis- n as to the nature of the soil, except, possibly, that the proportion of hard stone was greater than he had imagined he should find. I come to this conclusion from the fact, that the specification, which was submitted to him before he made the tender, provides for the construction of the Avon bridge, and other masonry, by means of the Stone to be obtained from the cuttings. Now, Mr. Brunei says thai Pennant is the only sandstone in the neighborhood of Bristjpl of sufficient hardness to be used for masonry. The appellant either did know or might have known this when he made his tender, and it is surely impossible for him, in the [*430] § 119. engineer's estimate. 451 made by a contractor have been accepted by their engineer, authorized to act on their behalf, and the contractor has incurred * expense upon the faith of having the contract, in preparation to fulfil it, there being certain alternatives in the tender, which had not been decided upon, and the whole thing being given up and no specific contract made under the seal of the company, equity can grant no relief. 3 For if there was no contract equity could not create one, and if there was a valid contract the remedy at law is adequate. SECTION XV. Engineer 's Estimate wanting through Fault of Company. 1. In such case contractor may maintain bill in equity. 2. Grounds of equitable interference. 3. After company terminate contract, con- tractor will be enjoined from interference. And same rule sometimes extends to com- pany. 4. Stipulation requiring engineer's estimate, not void. 5. Not the same as an agreement, that all dis- putes shalfbe decided by arbitration. 6. Engineer's estimate proper condition pre- cedent. 7. Same as sale of goods, at the valuation of third party. 8. The result of all the English cases seems to be, that only the question of damages properly referable to the engineer. 9. The rule in this respect different, in this country. § 119. 1. Where, by the terms of a railway construction con- tract, executed under the seals of the parties, the work is to be face of such a clause in the specification, to say that lie did not know there would be any beds of Pennant stone — that is, of stone capable of being used for masonry — to be excavated or removed. It is not unworthy of observation, that Mr. Stanton, one of the persons who made a tender, in his schedule of prices as to the sum which he would require for working sandstone, obviously points to the difference which might exist in the expense of removing sandstone of different qualities ; and he did not, like the appellant and the other persons who made tenders, offer one fixed uniform sum for sandstone of every quality, but he required for moving, &c, sandstone from open cuttings, Is. id. to 2s. 2d., and from tunnels, 2s. 9c?. to 4s. 6rf. ; from which, I think, it may be fairly in- ferred that he understood the word ' sandstone 1 used in the schedule to include stone of different degrees of hardness; some more expensive to work, some less so. To all these considerations must be added, that the appellant did not, so far as there is any evidence on the subject, make any remonstrance as to the supposed deception or mistake during the progress of the works, nor until alter the relation between the parties had been entirely determined." 3 Jackson v. The ^'orth Wales Kailw., 1 Hall & T. 75 ; s. c. G Railw. C. 112. [*431] I ,J CONSTRUCTION OF RAILWAYS. PART IV. paid for, Prom time to time, upon the estimate and approval of the company's principal engineer, and the amount and quality ul the win k finally to be determined, in the same mode, no ac- tion, either at law or in equity, can be maintained until such estimate and approval is obtained, unless it is prevented by the fault <>f the company. But where no such engineer is furnished by the company, or where through their connivance he neglects to act, the contractor is not without remedy, in equity. 1 Lord Chancellor Cottenham, in affirming this decision, 2 says : — •J. " It is true that the specification and contract constitute a relationship between the plaintiffs and the defendants, which, if correctly acted upon, would have given to the plaintiffs a legal * right, and a legal right only, to the benefits they claimed by this bill. But if the facts stated in the bill are such as, if true, de- prive the plaintiffs of the means of enforcing such legal rights, and if those facts have arisen from the conduct of the defend- ants, or of their agent so recognized by the specification and contract, and now used for the fraudulent purpose of defeating the plaintiffs' claim altogether, the defendants cannot resist the plaintiffs' claim in equity upon the ground that their remedy is only at law ; nor is it any answer to show that, if the plaintiffs cannot get at law what they contracted for, they may obtain compensation in damages. It is no answer to a bill for specific performance that the plaintiffs may bring an action for damages for a breach of the contract, or, in a proper case of a bill for dis- covery of some specific chattels, that damages may be recovered in trover, — the language of pleading is not that the plaintiffs have no remedy, but no adequate remedy save in a court of equity. It is therefore no answer in the present case for the defendants to urge, that if they or their agent have been neglectful of what they undertook to do, by which the plaintiffs have suffered, they may be liable in damage to the plaintiffs. They contracted for a specific thing, and are not bound to take that, or something in lieu of it, if such other thing be not what this court considers as a fair equivalent. I do not therefore consider that any answer 1 Mcintosh r. The Great Western Railw., 2 De G. & S. 758. This is the decision of the Vice-Chancellor, which came before the Lord Chancellor, as men- tioned in note 2. - M.-Intosh v. The Great Western Railw., 2 Hall & T. 250: s. c. 2 Mac. & (.. 74. [•432] § 119. engineer's estimate. 453 is given to the plaintiffs' right to file a bill in this court by show- ing that the ground upon which they seek their right so to do, namely, the being barred of their legal remedy by the conduct of the defendants, may subject them to damages at law." 3. And where disputes arose between the contractor and the company, each charging default upon the other's part, and claim- ing the right to occupy the works, and the workmen of both coming in collision, upon the line of the road, and the comple- tion and opening of the road being delayed in consequence, the court, on the application of the company, restrained the contractor from continuing on the line. or interfering with the operations of the company, but directed an account of what was due the con- tractor, without regard to the former certificates of the company's engineer, and an issue to try whether the company were justified in removing the contractor, reserving all claims for loss and com- pensation till the final hearing. 3 * And in a somewhat recent case, 4 by the terms of the contract it was provided, that if the contractor made default the company might themselves complete the line, and that the plant, &c, upon the line belonging to the contractor should become the property of the company, and be set off against the debts, if any, due from him to the company, and that the contractor should not hinder the company from using the same. Default having been made by the contractor, the company completed the line and were pro- ceeding to remove the plant, &c. An arbitration was pending to decide the question of amount between the contractor and the company. It was held that the company must be enjoined from removing the plant before award given. Lord Romilly, M. R., here suggests that the company have no right to take the plant until it appears that the contractor is in- debted to them ; but we should have said that under such a con- tract the fair construction is that the company may take and use the plant in completing the line, making themselves debtor to the contractor for the same. The purpose of such a stipulation presumptively is, that the work may not be interrupted by the change of hands from the contractor to the company. But after the road is completed, so far as the contract extended, and the 3 East Lancashire Railw. v. Hattersley, 8 Hare, 72. 4 Garrett v. Salisbury & Dorset Junction Railw., Law Rep. 2 Eq. 358 ; s. c. 12 Jur. (N. S.) 495. [*433] 45 I CONSTRUCTION OF RAILWAYS. PART IV. company bad made no use of the plant, the view suggested by his Lordship seems entirely just and reasonable. I. The question of the right to recover at all at law, without procuring the engineer's estimate, where that is made a condi- tion precedent in the contract, has been considerably discussed in the English courts, and especially in the important case before the House of Lords, in July, 1856 ; 5 and the result arrived at Beems to be, that such a clause in a contract, in regard to the basis of recovery, is not equivalent to a stipulation that no action shall be brought, or that the case shall not come before the courts of law or equity, which has long since been determined to be repug- nant and void. 6 5. The distinction is somewhat refined, and difficult of exact definition, but it seems to us not altogether without foundation. A stipulation, that no action shall ever be brought upon a con- tract, * or, what is equivalent, that all disputes under it shall be referred to arbitration, is a repugnancy, which if carried out lit- erally must render the contract itself, as a mode of legal redress, wholly idle. And it is only in this view that contracts are to be considered by the courts. 6. But a stipulation that the liability under a contract or cove- nant shall not accrue, except upon the basis of certain previously ascertained facts, where the contract contains provisions for ascer- taining them, by the action of either party, without the concurrence of the other, is no more than a limitation upon the right of action, as that no action shall be brought until after one year, or unless commenced within six months, 7 which have been held valid. And even where the concurrence of both parties is requisite and the performance of the condition fails through the refusal of one, it probably is the same as to the other as if performed. 7. Hence a contract to purchase goods at the valuation of N. and M., cannot be made the foundation of an action, without obtain- ing the valuation stipulated, or showing that the other party hin- dered it. 8 And in some cases it has been held, that if the obtaining of the estimate is withheld or defeated by the fraud of the other ' Scott v. Avery, 5 Ho. Lds. 811; s. c. 36 Eng. L. & Eq. 1. 8 Thompson v. Charnock, 8 T. R. 139. See also Tattersall v. Groote, 2 B. & P. 181. 7 Wilson v. .Etna Ins. Co., 27 Vt. 99, and cases there cited. 1 Tl.urnell v. Balbirnie, 2 M. & W. 786 ; Milnes v. Gery, 14 Vesey, 400. [*484J § 119. engineer's estimate. 455 party, that no action at law will lie, the only remedy being by a special action for the fraud, or in equity, perhaps. 9 8. This subject is very elaborately discussed by the judges be- fore the House of Lords, in the case of Scott v. Avery, 5 and it is remarkable how wide a difference of opinion was found to exist, upon a question which might seem at first blush so simple. Of the nine judges who gave formal opinions, three were opposed to allowing any force whatever to such a stipulation. And of the * other six, four held that only the question of damages can properly be made to depend, as a condition precedent, upon the award of an arbitrator, while two held that the award may be made to include all matters of dispute growing out of the contract, which it seems to us must be regarded as equivalent to saying that no action at law or in equity shall be brought to determine any controversy growing out of the contract, which all the judges agree is a void stipulation. We therefore feel compelled to adopt the view that upon principle, and the fair balance of authority, such a stipula- tion, in regard to estimating labor or damages, under a contract for construction, is valid, and may be treated as a condition prece- dent, but that beyond that, the present inclination of the English courts is to hold that it is repugnant to sound policy, and subver- sive of the legal obligation of the contract, as being equivalent to a stipulation that no action at law shall be brought upon the contract, but only upon the award, if not paid. 9. But the balance of authority in this country seems to be in favor of allowing such a condition precedent, in this class of con- tracts, to extend to the quality of the work, as well as the quan- tity, and to the question, whether the work is progressing with sufficient rapidity, and whether the company on that account are 9 Milncr v. Field, 5 Exch. 829. But in a later case in the same court it is said that the award must be obtained, or it must be shown that it is no longer practicable to obtain it. Brown v. Overbury, 11 Exch. 715; s. C. 34 Eng. L. & Eq. 610. This rule, with the qualification that the defendant by his own act or refusal had rendered the performance of the condition impracticable, is now, in this country certainly, held such an excuse as will enable the party to sue in a court of law. United States v. Robeson, 9 Peters (U. S.), 319, 326. And in a case in Pennsylvania, Snodgrass v. Gavit, 28 Penn. St. 221, Mr. Justice Woodward assumes it as the unquestionable rule, in that state, that ''where parties stipulate that disputes, whether actual or prospective, shall be submitted to the arbitrament of a particular individual, or tribunal, they are bound by their contract, and cannot seek redress elsewhere." [M35] 456 CONSTRUCTION OF RAILWAYS. PART IV. justified in putting an end to the contract. 9 It seems reasonable to ns. on many grounds, that contracts of this magnitude and oharacter should receive a somewhat different interpretation in this respect from that which is applied to the ordinary commercial transactions of the country, as has been held in regard to pecun- iary penalties. 10 We should not therefore feel justified in in- timating any desire to see the American cases on this subject qualified. SECTION XVI. Contracts for Materials and Machinery. 1. Afanufai tun r not liable for latent defect in matt rials. 2. Contractfor railway sleepers, terms stated. 3. Construction of such contract. 4. Parti/ may waive stipulation in contract, by acquiescence. 5. Company liable for materials, accepted and used. § 120. 1. In a contract for fire engines, it was stipulated that the engines and tender should be subject to the performance of * one thousand miles, with proper loads, the manufacturers to be liable for any breakage which may occur through defect of ma- terials or workmanship, but not where it occurs from collision, neglect, or mismanagement of the company's servants, or any other cause, except the two first named. The trial to take place within one month from the day on which any engine is reported ready to start, in default of which the manufacturers to be re- Leased from all responsibility. It was specially agreed the fire- boxes should be of copper, 7-10ths of an inch thick. One of the engines, so supplied, performed the thousand miles according to the contract ; but some months after the fire-box burst, when it was discovered that the copper was reduced to 3-16ths of an inch in thickness, it being conceded it was originally of the thickness required by the contract. In an action for the price of the engine, which by the contract was to be paid upon the satisfactory comple- tion of the trial, it was held the defendants could not give evidence 10 Ante, §§ 116, 117. Under the English statute, the Railway Arbitration Act, agreements between companies to refer all disputes between them to arbi- tration, are peremptorily enforced by the courts. Llannelly Railw. & Dock Co. v. London '■'> Vt. 311; s. c. 1 Redf. Am. Railw. Cases, 245. 1 151air o. Corby, 29 Mo. 480, 486. [*444] 4G4 CONSTRUCTION OF RAILWAYS. PART IV. men employed by sub-contractors. 2 And the provisions of this Btatute being only a matter of general police, will be equally bind- in-- upon all railway companies, whether chartered before or after the passing of the statute. 2 3. Bui the sub-contractor himself cannot pass by his immediate employers and maintain an action against the principal proprietor of t bo work. 3 SECTION XXII. Conditions in Charier and Election. 1. Such conditions must be performed, waived, I 2. Company bound by its election, or extended. I § 123 c. 1. There have commonly been some limitation's an- nexed to the exercise of the powers conferred upon railway com- panies, as that the building of the road should be begun before some prescribed day ; and ordinarily a certain amount of money expended, and the road completed and in operation within some other prescribed time. These conditions must of course be fairly and justly complied with, or else the time extended by the legislat- ure, which may be implied from an additional grant of power, as well as from an express statute for that specific purpose. 1 .2. As a general rule the practical construction which the com- pany give of its own charter, by the location and construction of its road, will be held binding upon the company. And where the company have an election or discretion as to the route on which it will build its road, its actual construction will be regarded as hav- ing exhausted such right, and it cannot thereafter adopt a new route, although coming within the terms of the charter as origi- nally granted. 2 anahan v. Hannibal & St. Joseph Railw. Co., 30 Mo. 546. See also Mc( lluskey v. Cromwell, 11 N. Y. 593; Kent v. N. Y. Cent. Railw., 12 id. 628; !'• t, i • r. St. Louis & Iron M. Railw. Co., 23 Mo. 107. ' Branin v. Conn. & Pass. Railw. Co., 31 Vt. 214; Lake Erie, &c., Railw. I .. v. Eckler, 13 In.l. 07. See Boswell v. Townsend, 37 Barb. 205. 1 Foster v. Fitch, 36 Conn. 236. : Morris & Essex Railw. v. Central Railw., 2 Vroom, 205 ; Cleveland & Pitts- burgh Railw. v. Speer, 56 Penn. St. 325. [*444] 124. EXCESSIVE TOLLS, FARE, AND FREIGHT. 465 *CHAPTER XVI. EXCESSIVE TOLLS, FARE, AND FREIGHT. 1. English companies created sometimes, for maintaining road only. 2. Where excessive tolls taken may be recov- ered back. 3. So also may excessive fare and freight. 4. By English statute, packed parcels must be rated in mass. 5. Nature of railway traffic requires unity of management and control. 6. Tolls upon railways almost unknown here. Fare and freight often limited. 7. Guaranty of certain profit on investment lawful. 8. Restriction of freight to certain rate per ton, extends to whole line. 9. Need not declare for tolls. 10. Mode of establishing and requisite proof. 11. A provision in a railway charter for the payment of a certain tonnage to the state is only a mode of taxation. 12. Where a company is alloived to take tolls on sections of their road this 7nakes each section a distinct work. 13. 14. Discussion of cases in New York in regard to the difference between fares taken in the cars and at the stations. 15. Fares fixed by statute are payable in legal tender notes. § 124. 1. By the English statutes, companies are created who own the railway, stations, &c, merely, and who are empowered to demand certain tolls of other persons, or companies, for the use of such road. 2. In such cases, if illegal tolls are demanded and paid, the excess may be recovered back, as money had and received, to the use of the person paying it, upon the general principles of law applicable to the subject of tolls, and the demand and receipt of excessive tolls. 1 Where the English statute 2 gave the company the right, where any person should fail to pay the toll due upon any carriage, to detain and sell the same, it was held incumbent upon the company first to demand the sum due for toll, and that this was a condition precedent to the right to sell under the statute. 3 It was also considered here that a charge for transport- 1 Fearnley v. Morley, 5 B. & C. 25. See also this subject very extensively examined in Centre Turnpike Co. v. Smith, 12 Vt. 212; post, § 143. Tolls are a payment for passing along the line of the railway, and should be received with reference to the number of carriages passing. Simpson v. Denison, 10 Hare, 51; s. c. 13 Eng. L. & Eq. 359. 2 8 & 9 Vict. c. 20, § 97. 3 Field v. Newport, Ab. & Hereford Railw., 3 H. & N. 409. vol. i. 30 [*445] tilt', EXCESSIVE TOLLS, FARE, AND FREIGHT. PART IV. rag carriages back is not a toll, but something which may be com- pensated by special agreement between the parties; and if it be demanded as part of the * toll, being an illegal claim, as such, it vitiates the entire demand and renders it illegal. 3. And the same rule has been extended to the recovery of money overpaid upon an exorbitant and illegal demand of freight or fare by railways. And the recovery may be had, although the person paying it did not tender any specific sum, as due, and although a portion of the overcharge was on account of what was claimed to be due another company. 4 4. And under the English statutes, packed parcels of the same class are required to be rated in mass. 5 5. Most of the business upon public railways, in this country, and in England, at the present time, is almost of necessity transacted by the companies themselves. The very nature of the business seems to require absolute unity in the management and control of the traffic, and especially in this country, where a large- pro- portion of the roads are operated upon a single track, requiring the utmost watchfulness and circumspection to avoid collisions. "We suppose the idea of operating a railway, with large traffic, in England, upon a single track, would be regarded as too glaring an absurdity to be seriously entertained, although they have some unimportant single track railways. But in this country it is rather the rule than the exception, and many of the continental railways in Europe have only a single track. 6. The matter of tolls upon railways is a thing almost unknown in this, country, and very little practised anywhere at present. I '.ut the English special acts, and the American railway charters, very often fix the maximum of freight and fare which it shall be 4 Parker v. The Bristol & Exeter Railw. Co., 6 Exch. 702 ; s. c. 6 Railw. C. 77 - e also Snowden v. Davis, 1 Taunt. 359; Atlee v. Backhouse, 3 M. & W. 633; and Spry v. Emperor, 6 M. & W. 639, where the general subject is discussed. In Parker v. The Great Western Railw. Co., 3 Railw. C. 563, the very point is decided. Crouch v. London & N. W. Railw. Co., 2 Car. & K. 1 rouch v. Great Northern Railw., 25 Eng. L. & Eq. 449. ' Parker o. The Great Western Railw. Co., 11 C. B. 545; s. c. 8 Eng. L. & Eq. 126. Tins subject of overcharge and the right to recover back the excess, ssed in this case, and in the case of Edwards, Assignee of Edwards, v. The Great Western Railw. Co., 11 C. B. 588; s. c. 8 Eng. L. & Eq. !47; Crouch v. Great Northern Railw. Co., 9 Exch. 556; s. c. 2d Eng. L. A: Eq. 449. [*440] § 124. EXCESSIVE TOLLS, FARE, AND FREIGHT. 467 lawful for the company to receive, and if tolls are allowed to be taken of other companies or persons, these also are limited. * 7. A guaranty of a certain amount of profit to the company, by other companies, in consideration of the right to use the track of such company, is lawful. 8. The restriction in the charter of the Camden & Amboy Rail- way of freight to eight cents per ton per mile, extends to the whole distance of the line of said company, although some of it is by water, and includes the auxiliary roads through New Brunswick and Trenton. 7 9. In an action to recover tolls due to a railway it is not neces- sary to describe the dues as tolls. Any description which suffi- ciently identifies the nature of the service for which compensation is demanded, is all that is required. 8 10. Freights upon a railway may be established by the directors, or by their agents ; and their assent will be presumed, if nothing appear to the contrary. 8 And where the directors are required to establish freights, and they do establish a printed tariff, that is to be regarded as the original ; and where copies of such tariff are required to be posted at the depots or stations of the company, that affords sufficient excuse for the absence of such copies to justify the admission of secondary evidence. 8 11. A provision in the charter of a railway company that it shall pay a certain tonnage to the state upon all freight transported by it, is only a mode of taxation, and is not in conflict with any pro- vision of the United States Constitution securing to Congress the exclusive power of regulating commerce with foreign nations and among the states, and prohibiting the states, without the consent 6 Great N. Railw. v. S. Yorkshire Railw., 9 Exch. 642. 7 Camden & Amboy Railw. v. Briggs, 1 N. J. (Zab.) 406. Where one company leased its line to another, at a certain [rate, for all min- erals transported, among other commodities, it was held, that the owners of minerals transported upon such line, could not, by injunction, compel the lessees to transport minerals upon the same terms on which they agreed with the other company, by way of compensation to them, the latter being a rent merely, and not a rate of toll or freight. Finnie v. Glasgow & Southwestern Railw. Co., 2 Mrqn. Ho. Lds. 177. 8 .Manchester & Lawrence Railw. v. Fisk, 33 N. II. "297. Where a railway company was limited by charter to a " toll not exceeding four cents per ton per mile on merchandise and two cents a mile on each passenger," it was held the company mi^,ht charge for transportation in addition to the toll. Boyle V. Phil. & Reading Railw., 54 Fenn, > s >. 810. [*447] 168 EXCESSIVE TOLLS, FARE, AND FREIGHT. PART IT. of Congress, from levying duties on imports and exports. The company by accepting the charter containing such a provision, virtually made an express contract to perform it, and have no just cause of complaint, treating the provision either as a law or itract. 8 • L2. Ami a provision in the charter of a railway company or other road company, that it may demand tolls upon any particu- lar | Kiit ion of its road as soon as completed and in operation, has been construed to create such portion a distinct public work, not liable to be affected by failure to complete the remainder of the work embraced in the same charter. But if the work is not done in a proper manner, that will be a cause of forfeiture not cured by the provision allowing tolte to be levied upon distinct portions of the entire line. 10 But it is here left in doubt whether such defect in construction will operate to forfeit the entire road or only those sections where such defects occur. 13. We have discussed the question of railway companies making a discrimination between fares paid in the cars and at their stations. 11 Under the New York statute, which allows of this discrimination only where the company keep their ticket office open, it was held the company could only make that dis- crimination in the cases specified in the statute, and not in other cases, even if the passenger took the cars after midnight, the company being required to keep the ticket office open only until nine o'clock, p.m. 12 14. This question is still further discussed in a later case ; 13 but the questions turned chiefly upon the construction of the stat- ute in force there, requiring the company to keep all their ticket offices open one hour before the trains start, except between 9 P.M., and w a.m., when they are only required to do so at Utica and other principal offices, and which also enacts, that if any per- son shall, at any station where a ticket office is kept open, enter the cars as a passenger, without having first purchased a ticket, it 9 Pennsylvania Railw. v. The Commonwealth, 3 Grant's Cas. 128. As to the right to tax shares in a corporation for county purposes, see Lycoming County imble, 17 Penn. St. 106. The People v. J. & M. Plank-Road Co., 9 Mich. 285. 11 Ante, § 28. 11 Chase v. N. Y. Central Railw., 26 N. Y. 523. 13 Nellia v. N. Y. Central Railw., 30 N. Y. 505. [*448] § 124. EXCESSIVE TOLLS, FARE, AND FREIGHT. 469 shall be lawful for the company to require five cents extra fare of such person ; and it was decided that the extra fare could only be demanded where the company kept a ticket office open. And it will make no difference that the passenger entered the cars at an hour when the ticket offices were required to be kept open, if such was not the fact. It was also held, that the company, by so demanding ■*and receiving the five cents extra fare when not entitled to re- ceive it, became liable to the penalty of $50, under the statute, for taking more fare than allowed by law. 15. Where the company is restricted by statute to the charge of two cents fare per mile, that will not justify their demanding fares in gold, or its equivalent in currency. A fare is' a debt, within the terms of the act of Congress creating the legal tender notes, and is payable in that currency, as much as any other debt. 14 14 Lewis v. N. Y. Central Railw., 49 Barb. 330. [*449J PART Y. THE LAW OF LIABILITY FOR FIRES ; INJURIES TO DOMESTIC ANIMALS; FENCES. PART Y. THE LAW OF LIABILITY FOR FIRES ; INJURIES TO DOMESTIC ANIMALS; FENCES. ^CHAPTER XVII. LIABILITY FOR FIRES, COMMUNICATED BY COMPANY'S ENGINES. 1. Fact of fires being communicated evidence of negligence. 2. This was at one time questioned in Eng- land. 3. Opinion o/"Tindal, C. J., upon this point. 4. English companies feel' bound to %ise pre- cautions against fire. 5. Rule of evidence, in this country, more fa- vorable to companies. 6. But the company are liable for damage by fire through want of care on their part. 7. One is not precluded from recovery, by placing buildings in an exposed situa- tion. 8. Where insurers pay damages on insured property, may have action against com- pany. 10 11 9. Where company made liable for injury to all property, are allowed to insure. Construction of statutes making compa- nies liable for loss by fires. Extent of responsibility of insurer of goods, to company. 12. Construction of statute as to engines which do not consume smoke. 13. Construction of Massachusetts statute and mode of trial. 14. 15. For what acts railway companies may become responsible without any actual negligence. 17 §• n. 27. Company when responsible for fires resulting from other fires caused by them. The point illustrated by the late cases, and the conclusion reached, that these cases are not sound. 16 § 125. 1. In the English courts it seems to have been settled, as early as the year 1846, 1 upon great consideration, that the fact of premises being fired by sparks emitted from a passing engine, is prima facie evidence of negligence on the part of the company, rendering it incumbent upon them to show that some precautions had been adopted by them reasonably calculated to prevent such accidents. 1 Piggott v. Eastern Counties Railw. Co., 3 C. B. 229; L. & B. Railw. v. Doak, 52 Penn. St. 379. [*450] 17 I LIABILITY FOR FIRES BY ENGINES. PART V. 2. In an earlier case, where the facts were reported, by the judge at Nisi Prius, for the opinion of the full court, that a stack of beans near the track of the railway was fired and consumed by sparks from the company's engine, of the ordinary construc- tion, and used in the ordinary mode, the court said the facts reported did not show, necessarily, either negligence or no negli- That was a question for the jury. 2 3. But the court in the case of Pigott v. Eastern Co.'s Rail- way, went much further. Tindal, C. J., said : " The defendants ' are a company intrusted by the legislature with an agent of an extremely dangerous and unruly character, for their own private and particular advantage ; and the law requires of them, that they shall in the exercise of the rights and powers so conferred upon them, adopt such precautions as may reasonably prevent damage to the property of third persons, through or near which their rail- way passes. The evidence in this case was abundantly sufficient to show that the injury of which the plaintiff complains was caused by the emission of sparks or particles of ignited coke, coming from one of the defendants' engines ; and there was no proof of any pre- caution adopted by the company to avoid such a mischance. I therefore think the jury came to a right conclusion, in finding that the company were guilty of negligence, and that the injury complained of was the result of such negligence. There are many old authorities to sustain this view ; for instance the case of Mitchil v. Alestree, 1 Vent. 295, for an injury resulting to the plaintiff from the defendant's riding an unruly horse in Lincoln's Inn Fields ; that of Bayntine v. Sharp, 1 Lutw. 90, for permitting a mad bull to be at large ; and that of Smith v. Pelah, 2 Stra. 1264, for allowing a dog known to be accustomed to bite to go about unmuzzled. The precautions suggested by the witnesses called for the plaintiff in this case, may be compared to the muzzle in the case last referred to. The case of Beaulien v. Finglam, in the Year-Books, P. 2, H. 4, fol. 18, pi. 5, comes near to this. There, the defendant was charged, in case, for so negligently keeping his fire as to occasion "the destruction of the plaintiff's property adjoining. The duty there alleged was, — ' quare cum secundum legem et consuetudinem regni nostri Anglice hactenus obten* tarn, quod quilibetde eodemregno ignem suum salvo et secure custo- 2 Aldridge v. Great Western Railw., 3 M. & G. 515 ; 2 Railw. C. 852. [*451] § 125. LIABILITY FOR FIRES BY ENGINES. 475 diat, et custodire teneatur, ne per ignem suum damnum aliquod vicinis suis eveniat.'' " 4. The principle of this case seems to have been acquiesced in by the railways in England, 3 and such precautions used, as * to secure the engines against emitting sparks. In this last case it was held proper evidence to go to the jury that the company's engines had before, in passing along the line, emitted sparks, a sufficient distance to have done the injury in the present case, as a means of ascertaining the possibility of the building being fired in the manner alleged. The testimony in this case showed, that the danger of emitting sparks is very much increased by overtasking the engine, and that it may be altogether avoided by shutting off the steam in passing a place where there is danger from sparks, or that the danger may be guarded against by mechanical precau- tions. The subject has been a great deal discussed in more recent English cases. 4 In this case it was held by Bramwell, B., at the 3 Hammon v. Southeastern Railw. Co., Maidstone Spring Assizes, 1845, before Lord Denman, C. J., for the destruction of farm buildings, including a thatched barn, by sparks emitted from the defendants' engines in passing along the line of their railway. There was evidence of the fire being so caused, and that defend- ants 1 engines had no wire guard, or perforated plate, to prevent the escape of the sparks, although both were in use before that time. There was evidence in this case that it was principally where the engines were overtasked that they were liable to emit sparks. His Lordship directed the jury that it lay upon the plain- tiff to establish negligence ; they were to consider that the plaintiff might have saved all hazard by tiling his barn, and also whether the train was driven too fast. The plaintiff had a verdict, and the court subsequently refused a new trial. Taylor v. Same Co. was tried at same term, with similar proof and the same re- sult. Walford on Railways, 183, 184, and notes. See also L. & B. Railw. v. Doak, 52 Penn. St. 379, where the same rule is adopted. 4 Vaughn v. Taff-Vale Railw., 3 H. & N. 743; s. c. in Exchequer Chamber, 5 H. & X. 679 ; s. c. 6 Jur. (N. S.) 899. See also The King v. Pease, 4 B. & Ad. 30, upon the authority of which the last case is decided in Exchequer Chamber. In reference to the decision in the Court of Exchequer, we said in our last edition it was going further than any just principle would allow, unless the defendant's busi- ness is regarded as unlawful. Post, pi. 14, 15, and note. The doctrine of the first two cases cited in this note is approved in Hammersmith Railw. v. Brand, Law Rep. 4 H. Lds. 171. The New York Couit of Appeals, in Steinweg v. Erie Railw. 43 N. Y. 123, hold, that railway companies, as common carriers, are bound to have such vehicles and machinery for the transportation of yxiods a9 the improvements known to practical men and which have been tested by practi- cal use, may suggest, but not to take every possible precaution, which the highest scientific skill might suggest or to adopt any mere speculative and untried im- provement. 476 LIABILITY FOR FIRES BY ENGINES. PART V. jury trial, and his views seem to have been sustained by the Court of Exchequer, that the mere fact of the company using fire as a means of locomotion, from which occasional fires will becommuni- oated, '"''II with the utmost care to prevent it, made them respon- sible lor damage caused thereby. But in the Exchequer Chamber the judges seem to have been agreed, that the legislature having tlized this mode of locomotion, it could not subject the company, while pursuing a legal business, in a legal mode, to damage thereby caused to others, unless through some degree of neglect. If the company resort to all known precautions against fire, they are not liable. 5. But in this country it must be confessed the rule of the liability of railways for damage done by fire communicated by their engines, is more favorable to the companies than in England. It seems to have been assumed, in this country, that the business of railways being lawful, no presumption of negligence arises from the fact of fire being communicated by their engines. 6 * But after other probable modes of accounting for the fire have been dis- proved, the onus is on the company to prove that the fire was not communicated by the engines of their train passing at the time. 6 6. In this country it has been held, that proof that sparks have upon other occasions been emitted and caused fires along the line of the road, is not admissible, either to show that defendants' engine caused the damage, or to rebut defendants' proof of care and diligence in using their engines. 7 But the testimony seems to have been received in other cases. 8 All the cases upon this sub- ject hold railways bound to the exercise of care, skill, and diligence, to prevent fires being communicated in this mode, and make them liable in case of damage through their negligence. 9 5 Rood v. N. Y. & Erie Railw., 18 Barb. 80 ; Lyman v. Boston & W. Railw., 4 Cush. 288; Burroughs v. The Housatonic Railw., 15 Conn. 124. In this case the court compare the injury to that of fire communicated by sparks from the chimney of a dwelling-house. Where the statute requires the company to show that the fire occurred " without any negligence on their part, 11 it was held sufh- ci' nt to show that their engines were properly constructed, in good order, and had the usual apparatus for preventing the escape of sparks, and were managed by discreel persons. B. & S. R. v. Woodruff, 4 Maryland, 242. Sheldon o. Hudson R ver R., 14 N. Y. 218. 7 Baltimore & Susquehannah Railw. v. Woodruff, 4 Maryland, 242 ; post, pi. 13. s McCready v. The Ra lw. Co., 2 Strob. 358; Sheldon v. Hudson River Railw., 11 X. V. 218; s. c. 29 Barb. 226. onn. 124; Huvett v. Phil. & R. Railw., 23 Penn. St. 373. The jury L*453] § 125. LIABILITY FOR FIRES BY ENGINES. 477 7. And one is not precluded from recovery in snch cases, by having placed his buildings or other property in an exposed posi- tion. 10 We cannot forbear to add that the interference of the legis- latures upon this subject, in many of the American states, seems to us an indication of the public sense, in favor of placing the risk in such cases upon the party in whose power it lies most to prevent such injuries occurring. There seems to us both justice and policy in the English rule upon the subject. And in a somewhat, recent case, 11 it was held, in actions against railway companies. for dama- are to determine the question of negligence. Id. The company are bound to use more can- in regard to fires in a very dry time, or where property is very much exposed. Id. But if there is no restriction upon the company in that respect, it may place its track and stations in such proximity to other .structures as it deems essential to its own interests and the public good, and it is not responsi- ble for fires caused by its engines except through neglect of known and necessary precautions. Turnpike Co. v. Raihv. Co., 54 Penn. St. 345. The duty of rail- way companies in using precautions against communicating fires by their engines is here extensively discussed, and the rule laid down, that the most approved pre- cautions and those in most extensive use must be resorted to, and that the engines must be so used and guarded as not ordinarily to emit sparks, in such a manner as to endanger the structures near the line of the road. The care and caution must be in proportion to the peril. If a railway track is laid so near the plaintiff's barn as to render it useless for that purpose he may recover of the company damages under the statute for the injury. W. & R. Railw. v. Stauffer, 60 Penn. St. 374. 10 Cook v. Champ. Trans. Co., 1 Denio, 91, 99, 101. One is not precluded from recovering in such cases by reason of having left dry grass and stubble on his land adjoining the railway to which the fire was first communicated. Flynn v. San F. & St. J. Railw., 40 Cal. 14. But in Chicago & X. W. Railw. v. Simon- son, 54 111. 504, where the fire was communicated through dry grass and weeds suffered to accumulate on plaintiff's land next the railway, it was held he could not recover. The true rule in such cases would seem to be, whether or not a careful man would have removed the combustible matter, if he had owned both the land and the railway ? But in Kellogg v. Chi. & X. W. Railw.. :.'() Wis. 223, the court seem to think it is not negligence in the land-owner to suffer such combustible matter to accumulate on his land next the line of the railway, but that it may he so for the company to sutler the same on their own land. But in (). & ,M. Railw. v. Shanefelt, 47 111. 497, it was held not to amount to negligence, per se, in the railway. And in Kesee v. Chi. & N. W. Railw., 30 Iowa, 78, where plaintiff's hay in stack, upon his own land, half a mile from the line of the rail- way, was sit mi lire by a spark from defendants' engine, it was held he could not recover, if his negligence in not protecting his stack contributed to the loss. The court below charged the jury, that if the plaintiff stacked his hay in an imprudent manner he took the risk of accidental fires, but not of those caused by the defendants' carelessness. We might have regarded this the better rule of law in such a case. 11 Field v. New York Central Railw., 32 N. Y. 339. [*453] ^78 LIABILITY FOR FIRES BY ENGINES. PART V. rag caused by fires communicated by coals upon the track, just after the passing of a train, that it was competent* to show that the company's Locomotives, in passing over the road on former occa- sions, dropped coals upon the track at or near the same place; and also, where it was in evidence that engines properly con- structed and in good order will not drop coals upon the track, that the fad of defendants' engines doing so, is, in itself, evidence of negligence sufficient to charge the defendants, thus imposing upon them the burden of showing that they were not culpable. 8. And where the railway companies are made liable for all damage in this way, as they are in Massachusetts, and some of the other states by statute, if one whose property is insured suffer loss in this way, and the insurers pay him his entire loss, they may recover in his name against the company. 12 And the insurer may recover of the carrier in the name of the consignor, on whose behalf the policy was effected, after having paid the amount of the loss to the consignor. 13 ',•. By statute in some of the states, as we have seen, railways are made liable for any injury to " buildings or other property of any person — by fire communicated," by their locomotive engines, and it is sometimes specially provided that railways shall have an insurable interest in such property. But it has been held that such statutory liability only extends to property of a permanent nature, and upon which an insurance may be effected ; and that '■" Hart v. The Western Railw., 13 Met. 99. And under such a statute, where the sparks from the engine communicated fire to a shop, and the wind drove the sparks from the shop sixty feet across the street, and set fire to a house, it was held thai this second fire must be regarded as "communicated 11 by the company's engine, within the statute. Id. But see post, pi. 1(J. In a contract of insurance in favor of a railway company, upon "cars of all descriptions" — " on the line of their road and in actual use," where, in answer to the inquiry, " where the property was situated," the company reply, " from Boston to Fitchburg and branches this side of Fitchburg ; " and the cars of the plaintiff's company loaded with ice, standing upon a track belonging to the pro- prietors of a wharf where the ice was unloaded, but communicating with the track of the Fitchburg road, were burned by a fire communicated from the wharf, it was held to come within the contract, and the insurance company were held liable. Fitchburg Railw. v. Charlestown Mutual Ins. Co., 7 Gray, 64. I; .inside v. Steamboat Company, 10 Rich. (S. C.) 113; Garrison*?. Mem- phis Ins. Co., 19 How. (U. S.) 312. See also Hall v. Railw. Companies, 13 Wall. 367, where the rule laid down in the text is declared to be the settled law, and the cases are cited by Mr. Justice Strong. [*454] § 125. LIABILITY FOR FIRES BY ENGINES. 479 for injuries of this kind to other property the * company will only be responsible for negligence, unskilfulness, or imprudence in run- ning and conducting their engines. 14 10. And where by statute railway companies are made liable for all damages caused to property so near the road as to be exposed to fire from their engines, it was held to extend to all property subject to insurance, and to include growing trees. 15 11. Many of the English railway companies make it a condition that certain goods shall be insured and declared, or else they will not be responsible for any loss which may occur in regard to them. Such a condition seems reasonable, and it is so treated by the English courts. But to be any protection to the companies it must assume that the insurers are bound to make good any loss, as well for the benefit of the assured as for that of the company, and that the company are not responsible to the insurer unless perhaps for neglect of duty as a faithful bailee. 16 But to produce this result, the policy should specify that the insurance is for the benefit of the company as well as the owners. Strictly speaking there is no privity, in case of insurance against fire, except as to the immediate parties to the risk, and to give any other party not named in the policy the benefit of the insurance is an equitable extension, and one which the courts have declined to make some- times, as between mortgagor and mortgagee. 17 But where the insurer pays the insurance, on the destruction of the property, it has been held that he will be subrogated to any claim the party insured might have against other parties, 18 unless that is excluded by the terms of the policy. 14 Chapman v. Atlantic & St. Lawrence Railw., 37 Maine, 92. This is an action for the loss of cedar posts, piled upon land adjoining the railway, by the consent of the owner of the land, and set on fire by a spark from the defendants 1 engine, and they were held not liable under the statute. And where an action is brought against a railway company for damage done by fire from its engines in states where it is made responsible for .such damage in all cases, it will be no defence, thai in estimating damages to plaintiff's grantor damage by fire from company's engines was included. Quaere, whether if plaintiff had been the owner of the land, at the time damage was so assessed, it would have afforded any de- fenceP Pierce v. Worcester & Nashua Railw., 105 .Mass. 199; post, pi. L3 & a. 16 Pratt v. Atlantic & St. Lawrence Railw., 42 Maine, 579. 1,1 Peci v. North Staffordshire Railw., Ellis, B. & Ellis, 956. " Columbia Insurance Co. v. Lawrence, 10 Pet. (U. S.) 507,512, per Story, J. ; White ». Brown, 2 Cush. 412. 13 Insurance Co. p. Woodruff, _ Dutcher, .",11 : ante, pi. 8, n. 12, 13. [*455] 480 LIABILITY FOR FIRES BY ENGINES. PART V. 1:2. The English statute 19 subjects railway companies to a penalty for each day they use an engine upon their roads so con- Btructed as not to consume its own smoke. But it has been held that this only refers to the construction of the engine when under proper management, and that the penalty is not incurred *by an engine emitting smoke instead of consuming it in consequence of bad management and not of defective construction. 20 13. The Massachusetts statute, making railway companies re- sponsible for loss by fire communicated by their engines, and giving them an insurable interest in the property exposed to fire in that mode, was held to embrace personal property, although the company had no knowledge or reasonable cause to believe that such property was situated where it might be so injured. 21 And in the trial of an action for such injury, where it was claimed that no burning sparks could reach far enough to communicate the fire, it is competent to show that the same engine, using similar fuel, emitted sparks reaching a greater distance. 21 And where it was attempted to show that similar engines did not on other roads emit sparks reaching that distance, it is competent to prove that such engines on other roads have emitted sparks which did com- municate fire at that distance. 21 In such an action, where the question of plaintiff's want of due care depends upon the consid- eration of the dryness of the season, the strength and direction of the wind, and the condition of the plaintiff's buildings, it is proper to submit to the jury, under general instructions, whether the plaintiff exercised due care or not, and if this is done no exception lies to a refusal to instruct the jury that " if the season was dry, and the wind was from the railway and strong, and the plaintiff knew those facts and left a door of a shed open towards the rail- way, and combustible materials within the shed, and that con- tributed to the fire, it is evidence of negligence on his part, which should preclude his recovery." 21 14. A question of considerable practical importance has been determined by the Court of Exchequer Chamber in England, 19 8 & 9 Vict. c. 20, §114. " Manchester, Sheffield, & Lincolnshire Railw. v. Wood, 29 Law J. 29; s. c. 1 L. T. iN. S.) ::i ; s. c. 2 Bl. & El. 344. 11 &08S v. Boston A: Worcester Railw., 6 Allen, 87. The company should use precautions to prevent fire escaping from their engines or they will be respon- sible for consequences. Bass v. Chicago, Bur. & Quincy Railw. Co., 28 111. 9. [*456] § 125. LIABILITY FOR FIRES BY ENGINES. 481 which may be thought sometimes to have a bearing upon the con- duct of railways. The proposition there maintained is, that if a person bring on his own land any thing, which, if it escape, may prove injurious to his neighbor's property, such as a large body of water, he is liable to make compensation for any injury that may * accrue from its escape out of his land ; and it is no excuse, if it do escape and cause damage to his neighbor, that the injury was caused without any default or negligence on his part. 22 And the question has been recently presented as applied to railways in an English case, 23 where it was held, the defendant having obtained its charter in 1832, to enable it to remove minerals upon 'wagons and other carriages upon its railway or tramway ; but having no parliamentary power to use steam locomotive engines, but had as- sumed to do so, in the transportation of passengers along its line under permission from the Board of Trade, by reason of which the plaintiff's buildings along the line had been set on fire by sparks emitted from the engines, without proof of negligence on the part of the company, that it was responsible at common law without regard to the question of negligence, inasmuch as it had no legal right to use those engines in that place. * 15. The carefully considered judgment of the full court of Exchequer Chamber by Blackburn, J., contains many points * bearing upon questions which are liable to arise in the course of the construction and operation of railways, and we should have inserted it here but for want of space. 22 * The opinion points out very clearly for what matters railway companies * and others are or are not to be held responsible, if there is no actual negli- gence on their part. * 16. A question of considerable practical importance has been somewhat discussed, in regard to the extent of the responsibility * of railway companies, or others, for fires communicated by the accidental extension of other fires, for which the party, through negligence or otherwise, is confessedly responsible. Upon prin- ciple, it would seem, that one who is the unintentional, but care- less, cause of setting a fire, should not be held responsible for damage beyond the immediate, direct, and natural consequences of the original fire. There are numerous disastrous consequences re- , 22 Fletcher v. Rylands, Law Rep. 1 Exch. 265 ; 12 Jur. (N. S.) 603 ; s. c. 11 id. 714, affirmed in House of Lords, 3 Ho. Lds. 338. 23 Jones v. Festiniog Railw., Law Rep. 3 Q. B. 733. 31 [M57-463] |v> LIABILITY FOR FIRES BY ENGINES. PART V. suiting Bometimes from setting fires, but which are so rare as not to be fairly reckoned in the category of natural or ordinary results, by way of cause and effect. A fireman may be fatally injured and a family beggared, or a horse may be frightened, and the fathers of more than ono dependent family killed, or crippled for life, in consequence. But no actions have ever been instituted for any such remote damages. And although some of the cases bear a considerably close analogy to these in principle, it must, we think, bo treated as the prevailing rule of law that such remote and con- sequential damages will not form the ground of an action in the courts. And in Ryan v. New York Central Railway, 24 it was held the defendants were not responsible for the destruction of the plaintiff's house, distant one hundred and thirty feet from their shed, which had been set on fire through their own negligent con- duct in regard to one of their engines, or by reason of some defect in the engine, from which the fire had communicated to the plaintiffs house. This seems a misapplication of the rule. 17. The question discussed to some extent in the next pre- ceding paragraph is constantly attracting more and more attention from the courts in different classes of cases. The necessity of the defendant's act being the proximate cause of the damage in order to hold him responsible for it in an action at law, is by no means new. It is the real distinction between privity and want of privity in matters of contract. And the same principle holds in regard to torts, whether voluntary or negligent. The defendant can only be held responsible for the immediate consequences of his act or neglect, and not for any remote and incidental result, how- ever certain it may be that the damage really did result from such act or neglect. The question is very ably discussed by Hunt, J., in the case of Ryan v. New York Central Railway ; 24 and the case of the Pennsylvania Railway v. Kerr 25 adopts the same view, and discusses the cases with great clearness and force, in an opinion of considerable length by Thompson, C. J. The learned judge refers to several other American cases 26 bearing in the same direction. The English cases, bearing upon the question, do not seem to have considered the distinction between proximate and 11 35 X. Y. 210. But see Trask v. Hartford & New H. Railw., 2 Allen, 331. 2i 27 Legal Intel. Reports, 228; s. c. 62 Penn. St. 353. Harrison v. Berkley, 1 Strobbh. 548; Lowrie, J., in Morrison v. Davis, '8 Harris, Penn. St. 171. § 125. LIABILITY FOR FIRES BY ENGINES. 483 remote causes, and some of them seem to have gone upon grounds somewhat in conflict with the opinion here expressed. 27 But we do not apprehend the English courts can finally extend the rule of damages, in such cases, beyond the immediate and direct conse- 17 Smith v. London & South Western Railw., Law Rep. 5 C. P. 98 ; s. c. 18 W. R. 343 ; Exch. Ch., 19 W. R. 230. But see Burrows v. The March Gas & Coke Co., L. R. 5 Exch. 67; 7 id. 96, where the question of excusing the party in fault for secondary consequences of his misconduct is somewhat restricted. And in Smith v. London & S. W. Railway, L. R. 6 C. P. 14, in Exchequer Chamber, the majority of the English judges seem to think one is responsible for the remotest direct and immediate consequences of his negligence, whether he could have fore- seen them or not, and this seems reasonable. The Mass. Supreme Judicial Court, in a late case, adopt much the same rule. Perley v. Eastern Railw., 98 Mass. 414. But see Barron v. Eldredge, 100 Mass. 455. And Hart v. The Western Railw., ante, n. 12, is precisely the same. It has always seemed to us a misapplication of the rule, where courts have attempted to excuse the party, carelessly respon- sible for the consequences of setting a fire, for all the damage caused by the fire except for the very first object burned, on the ground that all else was but a secondary consequence of the fire, and therefore too remote to form the ground of an action. We might just as well argue that all the consequences of miscon- duct, except the very first, were to be borne by the sufferer without redress. As where one carelessly lets out water which floods a city, and destroys millions of property, it might be said the party in fault was only responsible for the loss of the water. The truth is that all the buildings or property burned by a fire, are destroyed just as certainly and directly, by the negligence of the party set- ting the first fire, as the very first building. And any attempt to define one as the proximate result, and the others as merely the remote consequences jaf the fire, is but a misconception and misapplication of the rule of proximate and re- mote causes. But see Kesee v. Ch. & N. W. Railw., 30 Iowa, 78. Since writ- ing the foregoing we have received 4 Chicago Legal News, 326, containing the able and learned opinion of Lawrence, C. J., in Feut v. T. P. & W. Railw., Supreme Court of Illinois, unreported ; s. c. 1 Redf. Am. Railw. Cases, 350, in which the learned judge reviews the cases very extensively upon this question, and comes very decidedly to the opinion already expressed in this note, which from its innate reasonableness we feel assured must prevail. Safford v. Boston & .Maine Railw., 103 Mass. 583, adopts the same view. In a late English ease, Lord Bailiffs, &c. v. The Trinity House, Law Rep. 5 Exch. 204 ; 7 id. 247, where the defendants 1 vessel, owing to the negligence of their servants, struck on a sand-bank, and becoming from that cause unmanageable, was driven by wind and tide upon the plaintiff's sea wall and damaged it, it was held, both in the Court of Exchequer and in the Exchequer Chamber, that the defendants were responsible. But where the plaintiff's store was burned by fire communi- cated from defendant's engine, not without fault, and a large sum of money in the store consumed; but which the plaintiff might have saved without danger, but did not think of it in time, being occupied in saving his horses, it was held he could not recover for the money. Toledo P. & W. Railw. v. Finder, 53 111. 117. [*463] .}>>( LIABILITY FOR FIRES BY ENGINES. PART V. quencea of the defendant's act or neglect, whatever that may be. The case Lasl cited does not seem to fairly raise the question of proximate and remote consequences of tortious acts. The real gravamen of the neglect of duty on the part of the defendant seems to have been leaving mowed grass and other " rummage," as it is here called, on the sides of the track in small heaps for two w.cks in very dry weather, thus exposed to be ignited by the Bparks from the passing engines. The company had the right to use the engines, and there was no evidence that the company did not use every precaution that science had suggested to prevent injury so far as the use of the engines was concerned. The cause of the fire was the exposed state of such combustible matter ; and when the fire occurred it was not a case where the burning of the cot- tage two hundred yards distant could be said to be only a remote consequence of the negligence ; certainly not if remote is used in the sense of secondary. If that were to be so held, no railway would ever be responsible for the consequences of a fire first kindled on its own land ; for all fires springing from it would be too remote consequences of the first act to form the basis of an action. [*463] 126. INJURIES TO DOMESTIC ANIMALS. 485 *CHAPTER XVIII. INJURIES TO DOMESTIC ANIMALS. 1. Company not liable unless bound to keep the animals off the track. 2. .Some cases go even further, in favor of the company. 3. Not liable where the animals were wrong- fully abroad. 4. Not liable for injury to animals, on land ivhere company not bound to fence. 5. Where company bound to fence are prima facie liable for injury to cattle. 6. But if owner is in faidt, company not liable. 7. In such case company only liable for gross neglect or wilful injury. 8. Owner cannot recover, ifhesuffer his cat- tle to go at large near a railway. 9. Company not liable in such case, unless they might hare avoided the injury. 10. Where company are required to keep gates closed, are liable to any party in- jured by omission. 11. Opinion of Gibson, Justice, on this sub- ject. 12. 17. Not liable for consequences of the proper use of their engines. 13. Questions of negligence ordinarily to be determined by jury. 14. But this is true only where the testimony leaves the question doubtful. •3) 21 15. Actions maybe maintained sometimes, for remote consequences of negligence. 16-18. Especially where a statutory duty is neglected by company. 19. The question of negligence is one for the jury- One ivho suffers an animal to go at large can oidy recover for gross neglect. Testimony of experts receivable as to management of engines. 22. One who suffers cattle to go at large must take the risk. 23. The company owe a primary duty to pas- sengers, Sfc. 24. In Maryland company liable unless for unavoidable accident. 25. In Indiana common-law rule prevails. 26. In Missouri, modified by statute. 27. In California cattle may lawfully be suf- fered to go at large. 28. 29. Abstract of late cases in Illinois. 30. The weight of evidence and of presump- tion. 31. Company not liable except for negligence. 32. Company must use all statutory and other precautions. 33. Not competent to prove negligence of the same kind on other occasions. 34. Rule of damages. § 126. 1. The decisions upon the subject of injuries to domestic animals by railways are very numerous, but may be reduced to comparatively few principles. Where the owner of the animals is unable to show that as against the railway they were properly upon the track, or, in other words, that it was through the fault of the company that they were enabled to come upon the road, the company are not in general liable, unless, after they discovered the animals, they might, by the exercise of proper care and pru- dence, have prevented the injury. *The fact of killing an animal [*464] 486 IN.1URIES TO DOMESTIC ANIMALS. PART V. of value by the company's engines, is not prima facie evidence of negligence on their part. 1 A distinction is here taken hy the court between injuries to permanent property situated along the line of the railway, as injury to buildings by fires communicated by the company's engines, and damage to cattle which are constantly changing place, there being more evidence of fault on the part of the company from the mere occurrence of the injury in the former than in the latter case. 2 •J. Most of the better considered cases certainly adopt this view of the subject, and some perhaps go even further in favor of exempting the company from liability, where they were not origi- nally in fault, and the animals were exposed to the injury through the fault of the owner, mediately or immediately. 3. For instance, if the animal escape into the highway, and thus get upon the track of the railway where it intersects with the highway, and is killed, the company are not liable. 3 And if the animals are trespassing upon a field, and stray from the field, upon the track of the railway, through defect of fences, which the company are bound to maintain, as against the owner of the field, and are killed, the company are not liable, either at common law or under the English statute, 4 or upon the ground that the defendant exercised a dangerous trade. The obligation to make and maintain fences, both at common law and under the statute, 1 Scott v. W. & R. Railw., 4 Jones Law, 432. To render the company prima facie responsible for damage done to cattle, it must appear that they came upon the track through defect of fences or cattle-guards, which as between the owner and the company it was its duty to maintain. Cecil v. P. Railw., 47 Mo. 246 ; Bellf. Railw. v. Suman, 297 Ind. 40 ; Toledo Railw. v. Wickery, 44 111. 76. A railway is bound to fence its track along the tow-path of a canal, abandoned as a thoroughfare. W. W. V. Railw. v. Quick, 30 Ind. 384. See QOte 1, and also Ind. & Cincin. Railw. v. Caldwell, 9 Ind. 397. ; Towns v. Cheshire Railw., 1 Foster, 363; Sharrod v. London & N. W. Railw., I Exch. 580. Halloran v. New Y. & Harlem Railw., 2 E. D. Smith, 257. in .Man land it was held that a statute for the protection of animals and stock did not include negro slaves. Scaggs v. Bait. & Wash. Railw., 10 Md. 268. But even where the cattle are wrongfully at large, and thus come upon the track, yet the company have often been held responsible for killing them through neglect or mismanagement short of positive or intentional wrong. M., &c. Railw. v. Blakeney, 13 Miss. 218; Same v. Orr, id. 279; Raiford v. M. Central Railw., id. 2 4 8 & 9 Vict. c. 20, § 68. [*465] § 126. INJURIES TO DOMESTIC ANIMALS. 487 applies only as against the owners or occupiers of the adjoining close. 5 * 4. So where the statute requires railways to fence their road, where the same passes through " enclosed or improved lands," if injury happen to another's cattle through want of fences, upon common or unenclosed land, it is not legally imputable to the negligence of the company. 6 5. But if the railway are bound to maintain fences, as against the owner of the cattle, and they come upon the road through defect of such fences, and are injured, the company are, in general, liable without further proof of negligence. 7 5 Ricketts v. The East and West India Docks and Birra. J. Railw., 12 C. B. 160; s. c. 12 Eng. L. & Eq. 520. See also Dawson v. Midland Railw., 21 W. R. 56. The same point is ruled in the following cases. Jackson v. Rut. & Bur. Railw., 25 Vt. 150. See also cases referred to in §§ 127, 128. And it was held, Man. Sh. & Lincolnshire Railw. v. Wallis, 14 C.B. 243; s. c. 25 Eng. L. & Eq. 373, that a railway are not bound to fence against cattle straying upon a high- way running along the railway, and that they are not liable for an injury sus- tained by cattle in getting from such highway upon the railway, through a defect of the fences maintained by the company ; although the cattle strayed upon the high- way without any fault of the owner. Brooks v. N. Y. & Erie Railw., 13 Barb. 594. But in the Midland Railw. v. Daykin, 17 C. B. 126 ; s. c. 33 Eng. L. & Eq. 193, it was held, that where a colt strayed from a field, upon a public road, abutting upon which was a yard not fenced from a railway, the gate of which was, through the neglect of the company's servants, left open, and, while the colt was being driven back to the field by the servants of the owner, it escaped into the yard, and thence upon the railway, where it was killed by a parsing train, the company were liable. Jcrvis, C. J., says: "I can see no room to doubt that that was a lawful use of the highway." But in Ellis v. London & South- western Railw., 2 H. & N. 424, where a railway company constructed their road across a public footway, in such a manner that no security against injury to passers on the way was afforded within the provisions of the English statute, 8 & 9 Vict. c. 20, §§ 46, 61, 68, by means of a bridge or stile, but the company erected high gates which obstructed the footway and gave the key to plaintiif's servant, which had been lost and the gates left open, without notice to the rail- way company, whereby the plaintiff's colts escaped from his lands adjoining, and came upon the railway and were killed by a passing train, the jury having found that the plaintiff, by his own negligence and that of his servants had contributed to the accident, it was held he could not recover, notwithstanding the omission of duty by the company. 6 Perkins v. Eastern Railw. and the Boston & M. Railw., 29 Maine, 307. And if by the common usage cattle have the right to run upon unenclosed land, the owner incurs the risk of all accidents. Knight v. Abert, 6 Penn. St. 172; Phil. & Germ. Railw. v. Wilt, 4 Whart. 143. 7 Suydam v. Moore, 8 Barb. 358; Waldron v. Rensselaer & Sar. Railw., 8 L*406] 488 INJURIES TO DOMESTIC ANIMALS. PART V. 6. But where the statute imposes the duty of building fence upon the railway, they may lawfully stipulate with the land-owners to maintain it, and if such land-owner suffer his cattle to be where they may come upon the railway without building the fence, he •cannol recover of the company. 8 So, too, if the plaintiff leave down the bars at a cattle crossing, whereby his cattle go upon the railway and are killed, he cannot recover. 9 7. And where the cattle go upon a railway through defect of llncis. which the owner is bound to maintain, and suffer damage, the owner has no claim upon the company, unless, perhaps, for what lias sometimes been denominated gross negligence, or wilful injury, 10 for in such cases the cattle are regarded as trespassers, 10 and the owner the cause of the injury sustained, unless the railway might have prevented it. But where there was no reasonable Barb. 390; Horn v. Atlantic & St. Lawrence Railw., 35 N. H. 169; s. c. 36 id. •440; Smith r. Eastern Railw., 35 'N. H. 356. But where the cattle come upon the railway, at a point not proper to be fenced, as at the intersection of a high- way, or at a mill yard, the company are not liable for injury to them, unless the plaintiff prove some fault on the part of the company's servants, besides the want offences. Indianapolis & C. R. v. Kinney, 8 Ind. 402; Lafayette & Ind. Railw. r. Shriner, 6 Ind. 141. But the owner of cattle is not precluded from recovering for any damage inflicted upon his cattle by the company, whose duty it was to fence the line, where it occurred, because he turned his cattle upon his land be- fore the fence was built. McCoy v. Cal. & Pacific Railw., 40 Cal. 532. 8 Tower v. Prov. & Wor. Railw., 2 Rhode Island, 404, 411 ; Clark v. Sy. & Utka Railw., 11 Barb. 112; C. H. & D. Railw. v. Waterson, 4 Ohio (N. S.), 424. So, also, where the duty of maintaining the fences along the railway is upon the land-owner, and it is burned down by fire, communicated by the com- pany's engines, and he suffers his fields to remain unfenced, whereby his cattle go upon the track, and are killed, he cannot recover. If the company are in fault, and liable to damages in regard to the fire, this does not oblige them to rebuild the fence, nor will it justify the plaintiff in suffering his fields to remain unfenced except al his own peril. Terry v. New York Central Railw., 22 Barb. 574. 9 Waldron v. Portland, S. & P. Railw., 35 Maine, 422. 10 Tonawanda Railw. v. Munger, 5 Denio, 255; s. c. 4 Comst. 349; Clark v. Syracuse & [Jtica Railw., 11 Barb. 112; Williams v. Mich. Central Railw., 2 Mich. 259. In this case the horses were wrongfully upon the railway, and the court say " they (the company) cannot be held liable for any accidental injury which may have occurred, unless the lawful right of running the train was exer- d without a proper degree of care and precaution, or in an unreasonable' or unlawful manner." See also Garris v. Portsmouth & Roanoke Railw., 2 Ired. 824; ('. II. & I). Railw. v. Waterson, 4 Ohio (N. S.), 424; C. C. & C. Railw. v. Elliott, 4 Ohio (N. S.), 474; New Albany, &c. Railw. v. McNamara, 11 Ind. 543. [*467] § 126. INJURIES TO DOMESTIC ANIMALS. 489 ground to suppose that the portion of fence which it was the duty of the company to build would have protected the animals, and the owner was shown to have been guilty of negligence in not taking care of them, it was held there could be no recovery, since his negligence was the direct and proximate cause of the injury. 11 8. And it was held to be gross negligence for the owner of cattle to suffer them to go at large, in the vicinity of a railway, whether the same was fenced or not. 12 And it will impose no additional * obligation upon a railway company, in regard to cattle suffered to go at large in the public highways, by order of the county com- missioners having charge of the same, if the company are guilty of no negligence ; in such cases, the owners of cattle killed at the 11 Joliet & Northern Ind. Railw. v. Jones, 20 Illinois, 221. And even where cattle came upon a railway track without tbe fault of the owner, but had escaped from their enclosure and wandered upon the track, and were there damaged by the alleged carelessness of the engineer in not slackening the speed of the train, the company were held not responsible. Price v. N. J. Railw., 2 Vroom, 229. But where there is evidence of recklessness or gross negligence, in such cases the company will be held responsible. This, however, is not to be carried to such an extent as to embarrass the engineer. If he act in good faith and according to his best wisdom and discretion, the company cannot be held liable for any injury. The question is well illustrated in Card vt N. Y. & H. Railw., 50 Barb. 39. See also Eames v. Salem & Lowell Railw., 98 Mass. 560; Ch. & Alton Railw. v. Utley, 38 111. 410. But it seems to be most unquestiona- ble, that even where the owner of cattle is guilty of negligence or even positive foolhardiness and wrong in allowing his cattle to come upon a railway track, this will not excuse the company for injuring them needlessly, or even care- lessly. They are still bound to exercise ordinary care and prudence in avoiding inflicting any injury upon them until they can be removed from the road. Needham v. S. F. & S. J. -Railw., 37 Cal. 409. See also 111. Central Railw. v. Middlesworth, 46 111. 494. '* Marsh v. N. Y. & Erie Railw., 14 Barb. 364; Talmadge v. Rensselaer & Saratoga Railw., 13 Barb. 493; Louisville & Frankfort Railw. v. Milton, 14 B. Monroe, 75. This is where the plaintiff below suffered the company to build a railway through his field without stipulating that they should fence the track, and his cattle running upon the track while depasturing in the field were killed, and the court held the company were not liable, " unless the injury could have been avoided with reasonable care." But in Housatonic Railw. v. Waterbury, 23 Conn. 101, it was held that in such case the company hold their easement subject to the land-owner's right to cross and recross, to and from the different sections of his farm, provided the right is reasonably exercised, and that the land-owner is not chargeable with negligence in letting his cattle run on his land unfeneed, unless he knew they were accustomed to keep near the track, thus imposing a duty of watchfulness on both parties. [*4G8] 490 INJURIES TO DOMESTIC ANIMALS. PART V. road-crossings, by trains of the company, cannot recover of them. 1 " 9. It has been held not to be sufficient in such cases to charge the company, to show that they were running at an unreasonable rate of speed, or without proper care in other respects. 14 The only question in such case is, we apprehend, whether the company, after discovering the peril of the animals, might have so conducted as to have prevented the injury. 14 The same rule obtains, which does in actions for personal injuries, where there is fault in both parties. This subject is extensively discussed in Vicksburg and Jack- son Railway v. Patton, 15 and the doctrine enunciated, that the owner of domestic animals not of a dangerous character, may lawfully suffer them to depasture upon the unenclosed commons, and if they wander upon the premises of others not enclosed, the owner of the animals is not liable for any damage in consequence. But a railway, crossing such common, has the same right to its unobstructed use as the owner of cattle, and they may lawfully run their cars at all times, and at all lawful rates of speed ; but if their own track be unenclosed and cattle liable to wander upon it, the company should have proper regard to so running their trains as not to injure them. And if cattle are injured through any default of the company, it is liable. It is the duty of the com- pany * to keep their engines in good repair, and to have a sufficient number of servants to manage their trains with safety ; and if through any default in any of these duties the cattle of another are injured, it will be liable. It was held in this case, contrary to the general course of practice, that it may be proved that the general character of the engineer in charge of the train was that of a reckless and untrustworthy agent. And it is here said that the company are liable to exemplary damages for such an injury occurring through the gross negligence or wanton misconduct of its agents ; both of which propositions seem not entirely reconcil- able with the general course of decision. 10. And it has been held where the statute, in general terms, 13 Mich. & Southern & Northern Ind. Railw. v. Fisher, 27 Ind. 96. 14 Vandergrift v. Rediker, 2 N. J. (Zab.) 185; Clark v. Sy. & Utica Railw., 11 Barb. 112 ; Williams v. Mich. Central Railw., 2 Mich. 259 ; Lafayette & Ind. Railw. v. Shriner, 6 Porter (Ind.), 141. Here it is held the company are liable for gross negligence, even where the cattle are wrongfully upon the road. 13 31 Miss. 166; Gorman v. Pacific Railw., 26 Mo. 441. [*469] § 126. INJURIES TO DOMESTIC ANIMALS. 491 requires railways to keep gates at road-crossings constantly closed, that one whose horses leaped from his field into the highway, and then strayed upon the railway, by reason of the gates not be- ing kept constantly closed, and were killed, might recover of the company. 16 In such case it was held, that as to the company the horses were lawfully on the highway, as the provision in the statute in regard to keeping the gates shut was intended for the protection of all cattle, horses, the owner of the cattle. 6 5. In some cases in this country it has been held that the rail- way and the adjoining land-owner are to defray equal proportions of the expense of maintaining fences, upon the principle of being adjoining proprietors, and being equally interested in having the fence maintained, unless the land-owner chooses to let his land lie in common, and in that case the company must be at the whole expense of fencing, as a necessary protection and security to their business. 7 7 In the matter of the Rensselaer & Sar. Railw., 4 Paige, 553. In North- eastern Railw. v. Sineath, 8 Rich. 185, it is held that damages are not to be assessed for fencing through unenclosed land used for grazing. In a case in Kentucky, Louisville & Frankfort Railw. v. Milton, 14 B. Monr. 75, it is held, that where one grants the right of building a railway across his land, nei- ther the land-owner nor the company are bound to fence adjoining the railway. If the land-owner suffer his cattle to run at large, as he may, if he choose to incur the risk, he cannot recover damages of the company for any injury sustained by them, unless it might have been avoided by the agents of the company, with due regard to the safety of the train and its contents. If such cattle, permitted to run at large upon the railway track, are killed accidentally by the train, when running at its customary speed, the owner cannot recover of the company. The court here discountenance the notion that seems sometimes to have pre- vailed, that if the railway are in the right in running their train, and especially where cattle are trespassing upon the track, they may destroy them at will, with- out incurring any responsibility. And in regard to the case of New York & Erie Railw. v. Skinner, 19 Penn. State, 298, the court say: " This court is not disposed to sanction all the legal doctrines avowed in that opinion." Railways are only bound to the use of such diligence, prudence, and skill, to avoid injury to cattle rightfully in the highway at a road-crossing, as prudent men exercise in the conduct of their own business. And as to cattle wrongfully upon the railway, unless the injury is caused wilfully, or through gross negligence, the company are not liable. Chicago & Mississippi Railw. v. Patchin, 16 111. 198; Great Western Railw. v. Thompson, 17 111. 131 ; Quimby v. Vt. Central Railw., 23 Vt, 387 ; Central Mil. Tr. Railw. v. Rockafellow, 17 111. 541 ; Railroad Co. v. Skinner, 19 Penn. St. 298; 111. Central Railw. v. Middlesmith, 4(> 111. 494; But this latter case lays down the rule of law, in regard to the duty of railways to avoid injury to cattle somewhat more stringently than the former cases. In a case in New Hampshire, White v. Concord Railway, 10 Foster, 188, it was held, that where the statute required railways to fence and maintain proper cattle-guards, cattle-passes, and farm-crossings, for the convenience and safety of the land-owners along the side of the road, provided they r might instead settle with the land-owners therefor, and a railway divides a pasture, and a crossing is made, under the statute, the land-owner may let his cattle run in the pasture " without a herdsman, 11 and that the company will be liable for their [*484] § 127. UPON WHOM THE DUTY RESTS. 507 * 6. But many of the American cases assume the ground that where there is no statute imposing the duty of fencing upon the * company, and no stipulation, express or implied, between the company and the land-owners that they shall maintain fences, * they are not bound to do so, but the common-law duty of keep- ing one's cattle at home rests upon the land-owner. 8 And this destruction while crossing the track from one pasture to the other, unless the injury was caused by accident, or by the fault of the owner, or unless it appear that the company have settled with the owner in relation to such guards, passes, and farm-crossings. And it was held, also, in the same case, that where the plaintiff deeded the land to the company upon condition, " said corporation to fence the land and prepare a crossing, with cattle-guards, at the present travelled path, on a level with the track, 11 this was not such settlement, and did nut alter the legal relations of the parties. In this case, both parties being in the right, were bound to the degree of prudence which is to be expected of prudent men. The railway, knowing of the crossing, and of the liability of cattle to be upon it, were bound to keep a lookout, rather than the land-owner to keep some one constantly upon the " lookout." In the case of Long Island Railw., 3 Edw. Ch. 487, the Vice-Chancellor seems to consider that a railway company have no interest in having their road fenced, and are not therefore bound to contribute to the expense of fencing, which is at variance with the opinion of the Chancellor (4 Paige, 553), and equally, as it seems to us, with reason and justice. See Campbell v. Mesier, 4 Johns. Ch. 334. In a case, in the Supreme Court of Pennsylvania, Sullivan v. Phila. & R. Railw., 6 Am. Law Reg. 342; s. c. 30 Penn. St. 234 ; s. c. 2 Redf. Am. Railw. Cases, 564. The subject of the duty of railway companies to fence their roads for the security of passengers is dis- cussed, and, as it seems to us, many sensible and practical suggestions made. The general and correlative duties of passenger carriers and their passengers are thus stated: "The carrier's contract with his passenger implies: first, that the latter shall obey the formers reasonable regulations ; second, that the carrier shall have his means of transportation complete and in order, and his servants competent. If a passenger be hurt without his own fault, this fact raises a presumption of negligence, and casts the onus on the carrier. This being a pre- sumption of fact, it is for the jury to determine. It is no answer to an action by a passenger against a carrier, that the injury was caused by the negligence or even trespass of a third person. The parties are bound by their contract.' 1 Post, § 192, n. 6; § 204 a. 8 Hurd v. Rut. & Bur. Railw., 25 Vt. 116, 123; New York & Erie Railw. v. Skinner, 19 Penn. St. 298; Clark v. Syra. & Utica Railw., 11 Barb. 112; Dean v. The Sullivan Railw., 2 Foster, 316; A. & S. Railw. v. Baugh, 14 111. 211. Where, upon appeal from the first appraisal of land damages where the erection of fences had been specified, that was vacated, and the new appraisal made no such requirement of the company, it was held that the presumption was, that the whole damages were appraised in money, and the company were not bound to build fences." Morss v. Boston & Maine Railw., 2 Cush. 536; Williams v. New York Central Railw., 18 Barb. 222. It seems impossible to estimate damages [*485-487] 508 FENCES. PART V. view is probably consistent, in principle, with the cases where Buch a duty is held to result Prom the appraisal of land damages, subject to the expense of building fences being borne by the corn- pan v. or where the assessment specifically includes the expense of fencing, and that has not been paid. And in the Irish courts the company is only bound to erect such accommodation works for the benefit of the land-owners as are a compliance with the specifica- tions in the award. This is true even where the railway crosses a private road over a farm in the right of some third party as lessee of the farm obliquely, and the award adjudicating the claim of such lessee specified only a crossing over the railway as a " level crossing" at a given point, and the company gave a crossing at right angles with the road, which did not connect the termini of the road, and gave no access to it ; it was nevertheless held that this was a compliance with the award. 9 This is certainly not a fair construction of the award, as applicable to the subject-matter ; and it does not require any gift of prophecy to foretell that the doctrine of * the case will not be followed in this country, and, with deference be it said, it ought not to be followed anywhere. 7. And in some of the states the rule of the common-law, in regard to the duty resting upon the owner of domestic animals to restrain them, has not been adopted so as to charge the owner with negli- gence for suffering them to go at large. 10 8. But it is held, that where the statute imposes upon the com- for. taking land for the use of a railway, without taking into the account the expense of fencing. Henry v. Pacific Railw., 2 Clarke, 228 ; Mil. & Mis. Railw. v. Eble, 4 Chandler (Wis.), 72; Northeastern Railw. v. Sineath, 8 Rich. 185; Matter of Reuse. & Sar. Railw., 4 Paige, 533. And those cases which hold the company not bound to fence, unless required to do so by statute or contract, go upon the presumption that they have already paid the expense of fencing in tlie land damages. See Baltimore & Ohio Railw. v. Lamborn, 12 Md. 257 ; -Mad. & Ind. Railw. v. Kane, 11 Ind. 375; Stucke v. Milw. & Miss. R. Co., 9 Wis. 202 : Ki.liards v . Sacramento Valley R. Co., 18 Cal. 351. ■ .Mann v. Great Southern & Western R., 9 Irish Com. Law R. 105. 1 Kerwhacker v. C. C. & Cincinnati Railw., 3 Ohio (N. S.), 172. In such cases the company are bound to use reasonable care not to injure animals thus rightfully at large. lb. ; C. C. & Cincinnati Railw. v. Elliott, 4 Ohio (N. S.), 474. If the owner is to be charged with remote negligence in suffering his cattle to go at large, under such circumstances, and the servants of the company are guilty of want of care at the time of the injury, which is the proximate cause of it. the company are still liable. lb.; Chicago & Miss. Railw.* v. Patchin, 16 111. 198 ; Ind., &c. Railw. v. Caldwell, 9 Ind. 397. [*488] § 127. UPON WHOM THE DUTY RESTS. 509 pany the duty of maintaining fences and cattle-guards at farm- crossings, and provides that until such fences and cattle-guards shall be duly made the corporation and its agents shall be liable for all damages from such defect, this renders a lessee of the road liable fur injury to cattle caused by his operating it without proper cattle-guards at farm-crossings. 11 9. A general statute, requiring fences to be maintained by rail- ways upon the sides of their road, applies to land acquired by pur- chase as well as to that taken in invitum} 2 * 10. And the statute, requiring farm-crossings " for the use of proprietors of land adjoining," has no reference to the quantity of land to be accommodated, but only that the crossing must be useful. 12 11. Where the statute requires the company to erect, at farm- 11 Clement v. Canfield, 28 Vt. 302. And the same rule applies to a company- running its cars over another company's line by arrangement between the com- panies. If the road is not properly' fenced, the company running the trains by which the damage is caused will be responsible, although it be the default of the other company, for which that is also responsible to the party injured. Illinois Central Railw. v. Kanouse, ,'39 111. 272. An order upon a railway for making farm accommodations must specify the time within which they shall be made. Keith v. The Cheshire Railw., 1 Gray, 614. And where the act allowing a rail- way company to lease its road is upon the express condition that it be not thereby exonerated from any of its duties or liabilities, this must include the maintaining of fences. Whitney v. Atl. & St. Law. Railw., 44 Maine, 362. Where a railway company permits its cattle-guards to remain filled with snow, so that cattle which have strayed upon the highway without any negligence on the part of the owner pass over such guards, and in consequence are injured by a passing train, the company are liable for the damages. Donnigon v. Ch. & N. W. Railw. Co., 18 Wis. 28. '* Clarke v. The Rochester, L. & N. F. Railw., 18 Barb. 350. A fence built in zigzag form of rails, half the length upon the land taken for the railway, and half upon the land of the adjoining proprietor, is a compliance with the statute requiring the fence to be built upon the side of the road. Ferris v. Van Bus- kirk, 18 Barb. 3U7. And where the statute provides that, upon certain pro- ceedings, railway companies may be compelled to provide farm-crossings and cattle passes for the owners of land intersected by the company's road, and no such proceedings have been taken, the company are not liable to an action for damages resulting from the want of necessary farm-crossings and cattle passes, unless it appears that the company had contracted to build them. Horn v. Atlantic iV; St. Lawrence Railw., 35 N. II. 169; s. c. 86 id. 440. Where the railway company contract to build fences and farm-crossings, this obliges them to erect bars or ^.ites at such crossings, as required by statute. Foler v. N. V. Central Railw., 16 N. Y. 476. [*489] ;",10 FENCES. PART V. crossings, liars or gates, to prevent cattle, &c, from getting upon the railway, and the land-owner who is entitled to such protec- tion ictuses to have such bars or gates erected, or requests the company not to erect them, or undertakes to erect them himself, he cannot maintain an action against the company for not com- plying with the statute. 13 A court of equity will not decree * specific performance of a covenant by a railway company to maintain and keep in repair the cattle-guards on the line of plain- tiff's land. 14 Nor will the Court of Chancery, upon any general right, direct that farm-crossings, agreed to be built by a railway company, shall be made under its direction, or at its discretion. 15 12. Railways are not bound to maintain fences upon their roads so as to make them liable to their ow T n servants for injuries hap- pening in consequence of the want of such fences. And where the statute makes them liable for all injuries done to cattle, ■">. vol. i. 33 [*493] .",1 [ FENCES. PART V. ble for :ui injury happening to cattle trespassing upon the track or upon the lands adjoining. 27 It is here held that railway companies qoI responsible to the owner of lands adjoining their track for damage done upon such lands by cattle suffered by their owners to run at large in the highway, and thence escaping upon the rail- way track, and thus coining upon such adjoining lands, through defect of fences, which it is the duty of the company to maintain. But this seems questionable. We should have said, without much examination or reflection, that although the owners of the cattle are clearly responsible for all such damage, it is not quite certain the company may not also be held responsible for the same damage to the land-owner, inasmuch as the law casts upon them the duty of maintaining the fences against the land, and the damage occurred in consequence of the omission. But the court unquestionably took the surest course to visit the responsibility, in the first instance, where it ultimately belongs. It is here further said that railways are bound to maintain proper cattle-guards at farm-crossings, and are responsible for all damages to cattle right- fully there by such omission, but are not responsible for any injury to cattle suffered to go at large in the highway, or wrongfully there for any cause, although such injury may occur by reason of the omission to build and maintain such cattle-guards. 28 22. A railway company are responsible for all damage done to cattle rightfully in lands adjoining the railway track through de- fect * of fences which the company are bound to maintain ; and they cannot excuse themselves from responsibility by showing that the road is operated for the benefit of other parties, and especially so long as it is done under the direction and control of the company. 29 The building of fences along the line of a railway track is, do doubt, in regard to the security of travel thereon, to be regarded as a matter of police, and a duty which the companies cannot shift upon others by contracts to maintain such fences. 30 And it makes no difference by whom such fences were built : the company is bound to maintain them in good condition at all times. 31 But it 27 Chapin r. Sullivan Railw. Co., 39 N. H. 53. -■ Pot '. I 128, pi. 7. 29 Wyman v. Pen. & Ken. R. Co., 46 Me. 162. 30 New Albany & Salem R. Co. v. Tilton, 12 Ind. 3; Same v. Maiden, id. 10. See also Illinois Central R. Co. v. Swearingen, 33 111. 389. 31 New Albany, &c. Railw. Co. v. Pace, 13 Ind. 411. [*494] § 127. UPON WHOM THE DUTY RESTS. 515 has been held in the English courts, 82 that the statute requiring the companies to fence their roads, as between them and the land- owners, does not impose any duty to fence them, in order to secure the safety of passengers ; and therefore the companies may, so far as the statute duty is concerned, contract with the land-owners to maintain the fences along the line, and will thus escape responsi- bility under the statute. And it is further held, in this case, that the duty of railways towards their passengers, so far as fencing their roads is concerned, as at common law, is one of diligence, in order to render the passing of trains as secure as practicable, and does not amount to a positive warranty to keep cattle off the line, or to fence the same, except so far as that may be regarded as a neces- sary precaution, in order to secure safety to their passengers, under the circumstances. But in an American case, 33 where a child eighteen months old came upon the track of a railway, through de- fect of fences which it was the duty of the company to build, and was injured in consequence, it was held that a child so young could not be guilty of negligence, and that the omission to build the fence by the company was negligence, and made the company responsible. 24. A land-owner, who by contract with the company is bound to maintain the fences through his land, cannot recover of the company, for damage to cattle by reason of defect of fences, unless he show negligence on the part of the company. 34 But a railway company is responsible for cattle killed by their trains at a mere private road-crossing, which was not, but might have been, easily fenced by them. 35 This case was controlled by the statute. A suffi- cient fence in Indiana is held to be such an one as good husband- men usually keep. 36 But in many of the states what shall consti- tute legal fences is defined by statute. 25. Railway companies are not responsible for damage accruing to domestic animals from want of fences, at points which do not properly admit of being fenced, as in the immediate vicinity of 32 Buxton v. North Eastern Railw., Law Rep. 3 Q. B. 549; ante, § 126, n. 82. 33 Schmidt?;. Milw. & St. Paul Railw., 23 Wis. 186. 34 Terre Haute, &c. R. Co. v. Smith, 16 Ind. 102. 35 Ind. Central Railw. v. Leamon, 18 Ind. 173. 36 Toledo & Wabash Railw. Co. v. Thomas, 18 Ind. 215. If such a fence is maintained, the company is only liable as at common law for negligence. /'«.s/, pi. 34. [*4iMJ 516 FENCES. PART V. engine-houses, machine-shops, car-houses and wood-yards. 37 And where the fence along a railway line is destroyed by unavoidable accident, as by fire, and is repaired in a reasonable time, but in the mean time cattle get at large by reason of the want of fence, and are injured, the company will not be held responsible. 38 26. By statute in this state railway companies are made respon- sible * for animals, but not for persons, injured upon their roads, when they might be, but are not fenced, irrespective of the ques- tion of negligence. But when a proper fence is maintained in all places where it is required to be, the company are not responsible for animals injured, except, as at common law, where there is negligence on their part conducing to the result, and none on the part of the owner of that character. 39 27. The requirements of railway companies as to fencing their roads are not intended exclusively for the protection of domestic animals, but also for the security of travel and transportation, and where the fence is thrown down by third persons without the knowl- edge of the company that it is down, and cattle stray upon the track and receive injury, the company is not responsible for the damage. 40 28. Where the plaintiff is guilty of negligence which immediately and directly contributes to the injury of cattle, he cannot recover of a railway company, unless by the exercise of ordinary care and prudence at the time the company might have avoided inflicting the injury. 41 29. Where the railway company stipulated, with an adjoining land-owner, to construct five " cow-pits" or cattle-guards upon his land, but did it in so imperfect a manner as to be of no value, and the land-owner brought suit for the breach of contract, it was held he could only recover such damage as he had sustained up to the time of bringing the action, unless where he had himself con- ■~ Iinl. & (in. Railw. Co. v. Oestel, 20 Ind. 231; Galena & Chicago Union I.'. I ... v. Griffin, 31 111. 303. oledo & Wabash R. Co. v. Daniels, 21 Ind. 256; Ind., Pitts. & Clev. R. Co. v. Truitt, 24 id. 162. yer o. St. Louis, Alton, &c. Railw. Co. 22 Ind. 26 ; McKinley v. Ohio, &c. Railw. < !o., id. 99, where it is held it will make no difference as to the re- Bponsibility of the company that the road is operated by a receiver. ' Toledo, &c. Railw. v. Fowler, 22 Ind. 316. 41 Ind., &c. Railw. v. Wright, 22 Ind. 376. [*495] § 127. UPON WHOM THE DUTY RESTS. 517 structed the cattle-guards in a proper manner, when he might also recover the expense of such construction. 42 30. Where bars are erected at a farm-crossing at the request of the land-owner, it is his duty to keep them up ; and if he fails to do so, whereby his own cattle or those of third persons straying into his field get upon the track and are injured, the owners of such cattle cannot recover of the company if guilty of no default at the time of the injury. 43 * 31. A railway running along the line of a highway is required to be fenced with especial care and watchfulness. 44 But where an animal passes upon the track of a railway at the crossing of a high- way, where it would not be proper nor practicable to make any effectual fence or cattle-guards, and is injured, the company is not responsible unless in fault in the management of the train at the time. 45 And it was here considered that notwithstanding the facts that the plaintiff was guilty of negligence in permitting the animal to stray upon the track, and was not an adjoining proprietor, he might recover for an injury thereto by the cars of a railway com- pany if their track was not fenced. But where the owner of a blind horse turned him out upon the common of a town, through which a railway ran, where he was killed by a passing train, and the track was not fenced, it was held he could not recover, on account of his own gross negligence. 46 32. In actions against railway companies, under the statute, for injury to domestic animals, it should appear affirmatively that the case comes within the provisions of the statute. Thus where 42 Indiana Central Railw. v. Moore, 23 Ind. 14. 43 Indianapolis R. Co. v. Adkins, 23 Ind. 340. See also Eames v. Boston & Worcester Railw., 14 Allen, 151. In this case the company erected bars for the accommodation of the land-owner, and the animal killed escaped upon the track, by the bars being Left down, and afterwards passed upon the adjoining lot, and then upon the railway again, it not appearing precisely how. The court held, the owner could not recover without showing the bars were down without his fault, or else that the animal, alter leaving the track, came upon it again through the fault of the company. 44 Ind. & Cin. R. Co. v. Guard, 24 Ind. 222; Same v. McKinney, id. 283. 45 Ind. & Cin. R. Co. v. McKinney, 24 Ind. 283. 46 Knight v. Toledo & Wabash R. Co., 24 Ind. 402. A railway company is not bound to resort to any extraordinary means to insure the fence being kept up along its line night and day; reasonable diligence is all that is required. Illinois Central Railw. v. Dicker son, 27 111. 66; Same v. Phelps, 29 id. 417; Same v. Swearingen, 33 id. 289. [*496] 5 1 8 FENCES. PART V. railways are required to fence their roads within six months after opening them for use, on penalty of being responsible for all cattle injured, it should appear, in an action for injury by reason of such omission, that the six months had expired. 47 So if it is claimed that the injury occurred by reason of the omission to fence, it should appear that it occurred at a point in the road where the company were not excused from fencing. 48 To constitute a town or village within the statute it is not requisite there should be any plot of the same, indicating streets, . An owner of mules killed upon the track of a railway by an engine and cars, cannot recover therefor, even where they escaped from a properly fenced enclosure without his knowledge, and were on the highway at its intersection with the railway. 49 3-4. There seems to be some conflict in the decisions in regard to the kind of fence the railways are required to maintain. The natural conclusion upon this point would be that it should be such fence as the statute makes legal fence in other cases ; and some of the courts adopt this rule. 50 But in others it seems to have been held this is not indispensable. 61 47 Ohio & Miss. R. Co. v. Meisenhiemer, 27 111. 30; Same v. Jones, id. 41. 48 Illinois Central Railw. Co. v. Williams, 27 111. 48. 49 North Penn. Railw. Co. v. Rehmon, 4"9 Penn. St. 101. 50 Enright v. San Fr. & San J. Railw., 33 Cal. 230. 51 Eames v. Salem & Lowell Railw., 98 Mass. 560; Ch. & Alt. Railw. v. Utley, 38 111. 410. The statute requiring railways to be fenced is peremptory, and the exercise of ordinary care in maintaining fences will not excuse any defects found in the fence. Antisdel i>. Ch. & N. W. Railw., 26 Wis. 145. [*497] 128. AGAINST WHAT CATTLE BOUND TO FENCE. 519 SECTION II. Against what Cattle the Company is bound to fence. 1. At common law < very owner bound to re- strain his own cattle. 2. And if bound to fence against others' land, it extends only to those cattle rightfully upon such land. 3. Company may agree with land-owner to fence, and this will excuse damage to cattle, n. 5. Review of cases upon this subject. 4. Owner may recover unless guilty of express neglect. 5. Comment upon the last cast . 6. Statement of 'case in Massachusetts. 7. Further comment on the last cast . 8. Ride of responsibility as held in Ken- tucky, 9. Rule laid down in Ohio. 10. Rule in Indiana. 11. Distinction bet men sujf'crin;/ cattle to go at large and accidental escape. § 128. 1. At common law the proprietor of land was not obliged to fence it. Every man was bound to keep his cattle upon his own premises, and he might do this in any manner he chose. 1 2. And where, by prescription or contract, or by statute, a land proprietor is bound to fence his land from that of the adjoining proprietor, it is only as to cattle rightfully in such adjoining land. 2 The same rule has been extended to railways. 3 And it has been considered in some cases that where no statute, in terms, imposes upon railways the duty of fencing their roads, that they are not bound to fence, and that the owner of cattle is * bound to keep them off the road, or liable to respond in damages for any injury which may be caused by their straying upon the 1 Dovaston v. Payne, 2 H. Bl. 527 ; Rust v. Low, 6 Mass. 90, 99 ; Jackson v. Rut. & Bur. Railw., 25 Vt. 157, 158; s. c. 1 Redf. Am. Railw. Cases, 362; Wells v. Howell, 19 Johns. 385; Manchester, Sh. & Lincolnsh. Railw. v. Wallis, 14 C. 15. 24:1 ; s. c. 25 Eng. L. & Eq. o7;> ; Morse v. Rut. & Bur. Railw., 27 Yt. 49 ; Lafayette & Ind. Railw. v. Shriner, 6 Porter (Ind.), 141 ; Woolson v. Northern Railw., 19 N. H. 267 ; Indianapolis &Cin. Railw. v. Kinney, 8 Ind. 402. But in Pennsylvania the common-law rule in regard to keeping one's cattle at home is reversed by statute, and improved lands must lie. fenced in order that the owner may recover for damages done by .-tray cattle. Gregg v. Gregg, 25 Legal Intel. 372, Nov. '68. 2 Same cases above; Lord v. Wormwood, 2'.) Maine, 282; Bemis v. C. A: 1'. Railw., 42 Vt. 375. 3 Kicketts v. East & \Yest India Docks & Birmingham J. Railw., 12 ( . B. 161; s. c. 12 Eng. L. & Eq. 620; Dawson v. Midland Railw., 21 W. R. 56; Perkins v. Eastern Railw. Co., 29 Maine, .'107; Towns v. Cheshire Railw., 1 Foster, 363 ; Cornwall v. Sullivan Railw., 8 Foster, 161. [*498] FENCES. PART V. r:\il\vav. 1 and as a necessary consequence cannot recover for any damage which may befall them. 5 .".. Bui where a railway is not obliged to fence unless requested * by the landowner, and had agreed with such owner that they should not fence against his land, and a cow placed in such lands strayed upon the track of the road, and was killed by a train, it 1 Vandegrifi o. Rediker, 2 Zab. 185; Tonawanda Railw. v. Munger, 5 Denio, 255 ; B. C. affirmed in error, 4 N. Y. 349 ; Clark v. Syracuse & Utica Railw., 11 Bail). 11"-': Williams v. Mich. Central Railw., 2 Mich. 259; New York & Erie Railw. v. Skinner, 19 Penn. St. 298; May berry v. Concord Railw., 47 N. H. S91. 5 Brooks v. New York & Erie Railw., 13 Barb. 594. In this case it was held that the statute requiring railways to maintain cattle-guards at road-crossings did not extend to farm-crossings. So too it has been held that the statute requiring gates or rattle-guards at road-crossings does not extend to street-crossings. Vanderkar v. Rensselaer & Sara. Railw., 13 Barb. 390. In Central Military Track Railw. v. Roekafellow, 17 111. 541, the rule is laid down in regard to cattle Straying upon a railway, that they are to be regarded as wrongfully upon the road, and the owner cannot recover for an injury; unless caused by wilful mis- conduct or gross negligence. The court say, " A railroad company has a right to run its cars upon its track without obstruction, and an animal has no right npon the track without consent of the company, and if suffered to stray there, it is at the risk of the owner of the animal." And in Illinois Central Railw. v. l; edy, 17 111- 580, the same court say, " Animals wandering upon the track of an unenclosed railroad, are strictly trespassers, and the company is not liable for their destruction, unless its servants are guilty of wilful negligence, evincing reckless misconduct. 11 — " The burden of proof is on the plaintiff to show negli- gence ; the mere fact that the animal was killed " is not enough. In Munger v. Tonawanda Railw., 4 N. Y. 349, it is held, that cattle escaping from the enclos- ure of the owner and straying upon the track of a railway, are to be regarded as trespassers, and no action can be maintained against the company if the negli- gence of the plaintiff concurred with that of the company in producing an injury to the cattle while in that situation ; and that the law charges the owner of cattle, in such case, with negligence, although his enclosures are kept well fenced, and he is guilty of no actual negligence, in suffering the cattle to escape. And it was accordingly held, that the company was not liable, under such circumstances, for negligently running an engine upon and killing the plaintiff's cattle. The same principles substantially are maintained in the same case, 5 Denio, 255. And it is further held here, that where the general statutes of the state allow towns to prescribe what shall be a legal fence, and when cattle may run at large in the highway, and which forbid a recovery for a trespass by cattle lawfully in the highway, by one whose fences do not conform to the town ordinance upon the .subject, this will have no application to railways, and that cattle allowed to run in the highway by such ordinance, and which, while so running in the highway, enter upon tin- lands of a railway at a road-crossing, where there is no obstruc- tion against the intrusion of cattle, are to be regarded as trespassers. [*499] § 128. AGAINST WHAT CATTLE BOUND TO FENCE. 521 was held the owner of the cow, having by his own fault contributed to the loss, could not recover of the company. 6 4. Iu a case in Connecticut," it was decided that where cattle are at large without the fault of the owner, and go upon the track of a railway, and are injured through the negligence of the com- pany in the management of their train, the owner is not pre- cluded from recovering damages, because the cattle were tres- passers upon the railway. In order to preclude the plaintiff from recovery in such case, he must have been guilty of express and not merely of constructive, wrong in suffering the cattle to go at large. 5. We could not dissent from the propositions maintained in the preceding case, notwithstanding some hesitation in regard to the proper construction placed by the court upon the facts found in the case. The law of every case must be judged of by the facts which the court assume to be established in deciding it. It would be as unfair to criticise the decision of a court, upon a new con- struction of the facts, as it would upon a different state of the testi- mony at a different trial. The decision of a court is good or bad 6 Tower v. Providence & Worcester Railw., 2 Rhode Island, 404. See also Illinois Central Railw. v. Whalen, 42 111. 396. But in cases where the railway contracts to build the fences, the owner of the remaining land cannot justify turn- ing in his cattle until they are built, and if he do, cannot recover for any injury they may sustain. He should first build the fence and recover the expense of the company. Drake v. Phil. & Erie Railw., 51 Penn. St. 240. But some of the cases seem to take a different view of the right of the land-owner to turn in his cattle. Fernow v. Dubuque & So. W. Railw., 22 Iowa, 528. 7 Isbell v. New York & New H. Railw. Co., 27 Conn. 393 ; s. C. 2 Redf. Am. Railw. Cases, 474. The courts in Indiana, in hearing cases in error, feel bound to presume that the court below applied the testimony correctly in determining locali- ties and geographical boundaries, and especially in matters affecting jurisdiction, as the local courts would more naturally understand these questions than another less familiar with the facts. Ind., &c. Railw. Co. v. Moore, 1(> End. 43; Same v. Snelling, id. 435. By the law of Indiana, before the statute of 1859, it must appear, in order to recover damages for animals killed or injured by a railway company, that it occurred through the negligence of the company, and without the imme- diate fault of the owner. Wright v. Ind., &c. Railw. Co., 18 Ind. 168; Toledo & Wabash Railw. Co. v. Thomas, id. 215. The act of 1859 is prospective only. Ind., &c. Railw. Co. v. Elliott, 20 id. 430. It was here made a question whether a statute awarding damages to the owners of animals killed or injured by the rolling stock of any railway, applied equally to freight as to passenger trains, and it was held that it did. The wonder is that any such question should ever be made. We never before supposed there could be any doubt in regard to it. [*499] 522 FENCES. PART V. upon the facts assumed by the judge, and no fair-minded man will attempt to escape from the weight of an authority by assuming or •even proving, that the judge took a mistaken view of the facts. It is merely an attempt to balance one assumed blunder of the court, by showing that they fell into another in an opposite direc- tum. A decision is good upon the ground upon which it is placed, or it is wrong upon every ground. 6. We have said thus much in order to state that the case of Browne v. Providence, Hartford, and Fishkill Railway Company, 8 which decides that a railway corporation, which is obliged by law to make all needful fences and cattle-guards upon the sides of its track, is liable for injuries by its engines to cattle straying at large through the land of a stranger upon its road, by reason of its neg- ligence in not erecting fences and cattle-guards as required by statute, seems clearly to have assumed a different rule of respon- sibility, as against railway companies, from that which has ordina- rily been before applied to all lawful business, as between adjoining proprietors. Indeed the court distinctly assume the position, that the common-law responsibility imposed upon adjoining land-owners is not sufficient, and that railway companies must be held to a higher degree of responsibility, " on account of the new circum- stances and condition of things arising out of the general introduc- tion and use of railways in the country," and that the requirements of the railway companies in regard to fencing and cattle-guards " were designed for the safety of the public, and for the protection of all domestic animals, whether rightfully or wrongfully out of their owners' enclosure." 7. This decision certainly has the credit of meeting the question involved fairly and of wrestling manfully with its difficulties, and of placing it upon the only plausible ground, that the business was so dangerous to the public that it merited a more extended con- struction, where railways are required to fence their roads, than where other land-owners were required to do the same thing. We had always supposed that railways were required to fence their roads for the protection of their passengers, and of persons and animals rightfully in the highway or the adjoining lands. And we have yet to learn any sound principle upon which they can fairly be required to guard against injuries to persons or animals wrong- 8 12 Gray, 55 ; ante, § 127, pi. 21, and notes. [*500] § 128. AGAINST WHAT CATTLE BOUND TO FENCE. 523 fully upon their track, by making permanent erections to preclude such persons or animals from coming there. It is true, unques- tionably, that railway companies, in common with all others, are * bound to avoid doing an injury to any one* if it can be avoided at the time, whether such person or his property be rightfully or wrongfully in their way ; but that this duty extends to previous precautions against doing injuries to persons wrongfully upon their track, either personally or by their property, is more than can fairly be maintained, as it seems to us, unless railways are to be outlawed in this respect. Every one in the exercise of a law- ful business has the right to expect and to conduct his business upon the expectation that others will also perform their duty, and if they do not, that they will be required by the administrators of the law to take the natural consequences of such neglect, provided that even when in fault, in exposing themselves or their property to damage and loss, from the lawful pursuit of lawful business by others, they be not wantonly damaged by such others, but only from necessity. And this is all which we understand to have been decided by the case of Isbell v. New York and New Haven Railway Company. 7 And in the later case in Massachusetts, 9 Chapman, J., seems to assume the same ground, and it is the only one in our judgment fairly maintainable. 8. A railway company which is not bound to fence its track is not liable for injuries inflicted by its engines and trains upon cat- tle straying upon the track of the road, unless such injury was caused by the wanton and reckless negligence of the company through its agents and servants. 10 9. It was held in Ohio, 11 where a land-owner granted to the company the right of way of a given width, and covenanted to maintain the fences on both sides, and subsequently conveyed the land, that the grantee of the land was so far affected by his grantor's covenant to maintain the fences on the line of the railway that he could not visit any consequences upon the company resulting from its not being performed, but must bear them himself. 10. Where the owner of cattle was not in the habit of suffering his cattle to go at large on the railway track, and was not in a 9 Rogers v. Newburyport Railw. Company, 1 Allen, 16. 19 Lou. & Frankfort R. Co. v. Ballard, 2 Met. (Ky.) 177. 11 Easter v. Little Miami R. Co., 14 Ohio (N. S.), 48. See also MeCool v. Galena & Chicago Union R. Co., 17 Iowa, 461. [*501] 524 FENCES. PART V. position to take any steps to avert the danger they might be in from the passing trains of the company, the presence of the cat- tle *upon the track will be regarded as accidental, and at most they will be deemed but as trespassers, and be presumed to have escaped through the insufficiency of fences, and the owner liable for any damage they might cause. But if the servants of the company used no means to avoid killing the cattle, and manifested such indifference to consequences, such a degree of rashness and wan- tonness as evinced a total disregard for the safety of the cattle, and a willingness to destroy them, although the destruction may not have been intentional, in justice and upon principle the company should be held responsible for the damages, unless it appear that the owner was equally in fault. 12 The simple killing of an animal by a railway company's train is prima facie evidence of negligence on the part of their engineer. 12 11. In one case 13 it was held that the negligence on the part of the owner of cattle, which shall preclude his recovery for an injury to them by a railway train, must depend more upon its degree than upon the time when it occurs ; and a distinction in this re- spect should be made, between one who suffers his cattle knowingly to go at large where they will naturally be exposed to passing trains upon a railway, and cases where the cattle get at large with- out the owner's knowledge, through defect of fences or their being temporarily thrown down. 12 Indianapolis, &c. R. Co. v. Meek, 10 Ind. 502. 13 C. H. & N. W. R. Co. v. Goss, 17 Wis. 428. All questions of negli- gence, where there is any uncertainty in the facts must be submitted to the jury under proper instructions. Congor v. Galena, &c. U. R. Co., id. 477. We have discussed this question in Briggs v. Taylor, 28 Vt. 180, 184 ; s. c. 2 Redf. Am. Railw. Cases, 558. [*502] PART VI. THE LAW OF AGENCY AS APPLIED TO RAILWAYS. PART VI. THE LAW OF AGENCY AS APPLIED TO RAILWAYS. CHAPTER XX. LIABILITIES IN REGARD TO CONTRACTORS, AGENTS, AND SUB-AGENTS. SECTION I. Liability for Acts and Omissions of Contractors and their Agents. 1. Company not ordinarily liable for the act of the contractor or his servant. 2. But if the contractor is employed to do the very act, company is liable. 3. American courts seem disposed to adopt the same rule. 4. Distinction attempted between liability for acts done upon movable and immovable property not maintainable. 5. Cases referred to where true grounds of distinction are stated. 6. Nop id of distinction in regard to mode of employment. 7. Pro]>er basis of company's liability ex- plained. 8. So long as one retains control of work he is responsible for the conduct of it. 9. A master workman is only responsible for the faithfulness and care of his ivork- men, in the business of their employ- ment. 10. Railway company responsible for injuries conserpient upon defects of construction, in the course of the work by a con- tractor. 11. But ordinarily the employer is not respon- sible for the negligent modi in which work is done, the contractor bring only . Sometimes a distinction has been attempted to be drawn, in ird to the employer, whether the employment were by the job or by the day, making him liable for the acts of the operatives in the latter and not in the former case. But this is obviously no satisfactory ground upon which to determine the question, although it might, in point of fact, come very nearly to effecting the same, or a similar separation of the instances in which the employer is or is not liable. 7. The true ground of the distinction being, after all, not the * form of the employment, or the rule of compensation, but whether the work was done under the immediate control and direction of the employer, so that the operatives were his servants, and not the servants of another, who was himself the undertaker for ac- complishing the work, and having a separate, and independent, and irresponsible control of the operatives, bringing the question again to the same point, the difference between a contractor and a ser- vant." 8. In a case before the Privy Council, where the owner of land employed Indian laborers in the Mauritius, at so much per acre, to clear it, which they did, partly by lighting a fire so neg- firsl employer may fairly be said to have done, or caused to be done, the wrong- ful act. Burgess v. Gray, 1 C. B. 578. If the nuisance occurred naturally, in tin' ordinary course of doing the work, the occupier is liable ; but if it is some irregularity of the contractor, or his servants, he alone is responsible. See Carman v. Stubenville and Ind. Railw., 4 Ohio (N. S.), 399; Thompson v. New Orleans & Carrolton Railw., 1 La. Ann. 178; s. c. 4 id. 262; s. c. 10 id. 403. 7 In the case of Blackwell v. Wiswall, 24 Barb. 35.5, is an elaborate opinion by Han is, .J., which was affirmed by the full court, which holds that the only ground upon which one man can lie made responsible for the wrongful acts of another is, thai lie should have controlled the conduct of such person. And that the person who is made liable lor the acts of another must stand in the relation of superior. Heine one who had obtained the exclusive right of a ferry, and who suffered another to operate it for his own benefit, as lessee, is not responsible for any injury inflicted upon passengers, through the negligence or unskilfulness of the servants of the lessee, who conduct the ferry, and it would make no difference if tin- lessee had been himself conducting the ferry, at the time the injury accrued. And it it were true that the grantee of the ferry was guilty of a breach of duty, in making the lease, it will not entitle any one to sue on that account, unless he ustained injury resulting from the act of leasing directly, and not ineiden- tally merely. [*506] § 129. LIABILITIES FOR CONTRACTORS AND THEIR AGENTS. 531 ligently that sparks were carried by the wind upon the land of another, and there burned down his house, it was held, upon the ground that the owner of the land retained control of the work, and made constant interference in the conduct of it, that he was responsible for the negligence of the workmen, as the relation of master and servant, or superior and subordinate, continued. 8 9. Where one gratuitously permits a carpenter to do a piece of work in a shed belonging to the former, and one of the workmen of the carpenter, in the course of the work, dropped a match with which he had lighted his pipe, and thereby set fire to the shed, it was held the master was not responsible for the damage ; notwith- standing the jury found it occurred from the negligent act of the defendant's workman. 9 But it would have been otherwise if the negligence had occurred in the course of the employment. *10. And where a railway company was empowered by act of parliament to build a bridge across a navigable river, but were to do it so as not to detain vessels longer than while persons and teams ready to cross the bridge were passing over ; and during the construction of the work by a contractor, by some defect of con- struction the bridge could not be raised, and the plaintiff's vessel was detained, it was held the company were responsible. 10 11. A person employing another to do a lawful act is presumed, in the absence of evidence to the contrary, to have employed him to do it in a lawful and reasonable manner ; and, therefore, unless the parties stand in the relation of master and servant, the em- ployer is not responsible for damages occasioned by the negligent mode in which the work is done. 11 8 Serandat v. Saisse, Law Rep. 1 P. C. 152 ; s. c. 12 Jur. (N. S.) 301. The case was governed by the rule laid down in the Code Napoleon, but that is not essentially different from the rule of the English law upon the subject. The employer is responsible for injuries caused by falling into excavations made upon his land by contract. Homan v. Stanley, 66 Penn. St. 464. But a railway com- pany is not responsible for the act of a contractor in using a poisonous compo- sition to prevent the decay of timber put into the road, whereby the workmen were injured in handling it. West v. H. L. V. & T. II. Railw., 5 Chicago Legal News, 38. The opinion in this case by Chief Justice Lawrence gives a very satisfactory view of the law on this question. 9 Williams v. Jones, 3 H. & C. 602 ; s. c. 11 Jur. (N. S.) 843 ; Woodman v. Joiner, 10 id. 852 ; Bartlett r. Baker, 3 H. & C. 153; Blake v. Thirst, 2 id. 20. 10 Hole v. Sittingbonne & Sheerness Railw., 6 H. & N. 488. 11 Butler v. Hunter, 7 II. & N. 826; s. p. Eaton v. E. & N. A. Railw., 59 Me. 520. [*507] 532 LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. SECTION II. \ty of the < 'ompcmyfor the Acts of their Agents and Servants. 1. Courts manifest disposition to (jive such its a liberal discretion. ipany liable for torts committed by agents in discharge of their duties. ?,. Mm; l>r liable for wilful act of servant in the range of his employment. 4. Some of the cases hold it necessary to show the assent of the company. n. 6. Cases upon this subject reviewed. 5. Most of the cases adhere to the principle of respondeat superior. 6. Bui it seems not to have been considered that the company is present. 7. The cases seem to regard the company as always absent. 8. In cases where the company owe a special duty, the act of the servant is always that of the company. 9. It seems more just and reasonable to re- d the company as always present in the person of their agent. 10. What shall amount to ratification of the act of an agent by a corporation diffi- cult to define. 1 1 . How corporations may be held responsible for the publication of a libel. 12. The powers of a corporation are such only as are conferred by charter. 13. False certificate of capital being paid in money. 14. Gas company not bound to supply gas to all who require it. 15. Company may become responsible for false imprisonment. 16. Company responsible for injury done by vicious animals kept by them or suffered to remain about their stations. 17. The general manager of a railway com- pany may bind them for medical aid for servant injured in their employment. 18. The superintendent, or general manager of a railway can give no valid authority to his subordinates to do an act which operates as a fraud upon the company. § 130. 1. The extent of the liability of railways for the acts of their servants and agents, both negative and positive, seems not very fully settled in many of its incidents. But the disposition of * the courts has been to give such agents and servants a large and liberal discretion, and hold the companies liable for all their acts, within the most extensive range of their charter powers. 1 1 Derby v. Phil. & Read. Railw., 14 Howard, 468, 483; Noyes v. Rutland & Burlington Railw., 27 Vt. 110; s. c. 2 Redf. Am. Railw. Cases, 150. We may suppose the officers and servants of railways to take exorbitant fare and freight, to refuse to permit passengers to have tickets at the fixed rate, or to destroy the life of animals, or of persons, by recklessness, or wantonness, in the discharge of their appropriate duties, and it would be strange if the company were liable in the former case, on account of their special duty as common carriers, and not in the latter, because they owed no duty to the public in that respect. Alabama & Term. lliv.rs Railw. v. Kidd, 29 Alabama, 221. But it has been held to make no differ- ence, in regard to the liability of the company for the act of their servant, while acting in the due course of his employment, that he did not follow their instruc- [*508] § 130. LIABILITIES IN REGARD TO AGENTS AND SERVANTS. 533 2. This seems the only construction which will be safe or just, or indeed practicable. It has long been settled, that corporations are liable for torts committed by their agents, in the discharge of the business of their employment, and within the proper range of such employment. 2 3. But it has been claimed sometimes, that a corporation is not liable for the wilful wrong of its agents or servants. 3 This opinion seems to rest upon those cases which have maintained that the master, whether a natural person or a corporation, is never liable for the wilful act of his servant. 4 Without stopping here to dis- cuss the soundness of the general principle, as applicable to the relation of master and servant, it must be conceded, we think, that it is not applicable to the case of corporations, and especially such as railways. In regard to such corporations, it seems to us alto- gether an inadmissible proposition, to excuse them for every act of their servants and agents which is done, or claimed to have been done, positively and wilfully, and which results in an injury to some * other party, or proves to be illegal, unless directed or ratified by tions, either general or special. Derby v. Phil. & Read. Railw., 14 How. (U. S.) 468, 483. See also Southwick v. Estes, 7 Cush. 885 ; Ramsden v. Boston & Albany Railw., 104 Mass. 117. 4 Yarborough v. The Bank of England, 16 East, 6 ; Queen v. Birmingham & Gloucester Railw., 3 Ad. & Ell. (N. S.) 223 ; Hay v. Cohoes Co., 3 Barb. 42 ; 2 Aiken's Vt. 255, 429 ; Bloodgood v. M. & H. Railw., 18 Wend. 9 ; s. c. 1 Redf. Am. Railw. Cases, 209; Dater v. Troy T. & Railw., 2 Hill, 629; Chestnut Hill Turn- pike Co. v. Rutter, 4 S. & R. 16. They are bound by estoppels in pais. Hale v. Union Mutual Fire Ins. Co., 32 N. H. 295. See also Tebbutt v. B. & E. Railw. L. R. 6 Q. B. 73, where three railways, terminating at one point, had their stations communicating with each other and used in common by the passengers of all. the roads ; and while a passenger of one of the other roads was standing on the de- fendants 1 platform, in passing from the terminus of one of the other roads to the booking office of the other company, waiting for his luggage, one of defendants' porters negligently drove a truck loaded with luggage, and a portmanteau fell off and injured the plaintiff. The court held the defendants responsible for this misfeasance of their servant ; but doubted if the defendants would have been responsible for any defect in the platform over which plaintiff was allowed to pass, whereby he suffered damage. 8 Foster v. The Essex Bank, 17 Mass. 479, 510; State v. Morris & Essex Railw., 8 Zab. 360, 367. * M'Manus v. Crickett, 1 East, 106; Croft v. Allison, 4 B. & Aid. 590; Wright v. Wilcox, 19 Wend. 343; Jackson v. Second Avenue Railw., -17 N. Y. 274; Isaacs v. Third Av. Railw., id. 122. [*509] 534 LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. the corporation. Some of the cases seem to disregard any such ground of exemption for the corporation. 5 1. Bui in some cases it has been held, as before stated, that the corporation is not liable for the wilful act of its agents, unless done with the assent of the corporation, seeming to imply that if the s.i\ nit pursue his own whim or caprice, and act upon his own im- pulses, the act is his, and not that of the corporation. 6 Edwards V. The Union Bank of Florida, 1 Florida, 136; Whiteman v. Wil- mington & Sua. Railw., 2 Harr. 51 I. ' Phil., Germantown & N. Railway v. Wilt, 4 Whart. 143; Fox v. The Northern Liberties, 3 \V. & S. 103. It lias always seemed to us, that the whole class of cases, which hold that the master is not liable for the wilful acts of his servant, bas grown up under a misconception of the case of M'Manus v. Crickett, 1 East, 106, for they all profess to base themselves upon that case. That case we apprehend was never intended to decide more than that the master is not liable, in trespass, for the wilful act of the servant. Lord Eenyon, C. J., in delivering his opinion in that case, with which the court concur, expressly says, Bpeaking of actions on the case, brought against the master, where the servant negligently did a wrong, in the course of his employment for the master: " The form of these actions shows, that where the servant is, in point of law, a tres- passer, the master is not liable, as such, though liable to make compensation for the damage consequential from his employing of an unskilful or negligent servant." '•Tin' act of the master is the employment of the servant." This reasoning certainly applies with the same, force to that class of cases where the act of the servant is both direct and wilful, as where it is only negligent. The master is not liable in either case, perhaps, so much for having impliedly authorized the act, as for having employed an unfaithful servant, who did the injury, in the course of his employment. And whether done negligently or wilfully, seems to be of no possible, moment, as to the liability of the master, the only inquiry being whether it was done in the course of the servant's employment. And the argu- ment, that when the servant acts wilfully, he ipso facto leaves the employment of the master, and if he is driving a coach-and-six, or a locomotive and train of cars, thereby acquires a special property in the things, and is, pro hac vice, the owner, and doing his own business, may sound plausible enough, perhaps, but we confess it seems to us unsound, although quoted from so ancient a date as Rolle's Abridg- ment, and adopted by so distinguished a judge as Lord Kenyan. The truth is the whole argument is only a specious fallacy ; and whether Lord Kenyan intended really to say, that no action will lie against the master in such or only to say, what the case required, that the master is not liable in tres- pass, it is very obvious the proper distinction, in regard to the master's liability, cannot be made to depend upon the question of the intention of the servant. The master has nothing to do, either way, with the purpose and intention of his servants. It is with their acts that he is to be affected, and if these come within the range of their employment, the master is liable, whether the act be a misfeas- ance, or a nonfeasance, an omission or commission, carelessly or purposely done. It will happen, doubtless, that when the master is under a positive duty to [♦509] § l-°)0. LIABILITIES IN REGARD TO AGENTS AND SERVANTS. 535 * 5. Most of the cases, upon the subject of the liability of rail- ways, for the acts of their officers, agents and servants, have keep or carry things safely, as a bailee, or to carry persons safely, that while he will be liable for the mere nonfeasance of the servant, the servant will not be liable to the same party for such nonfeasance, there being do privity between the servant and such party, no duty owing to such person from the servant. But in such case the servant will be liable for his positive wrongs, and wilful acts of in- jury, and the master is also liable for these latter acts, but not in trespass ordi- narily, as the servant is, but in case. And so, where the servant goes out of his employment, and docs a wrong, as committing an assault by his own hands upon a stranger, or stealing goods, or any other act wholly disconnected with his em- ployment, the master is not liable. This is the view taken of this subject by Judge Reeve, Dom. Rel. 358, 359, 360, and it is, we think, the only consistent and rational one, and the one which must ultimately prevail. It is virtually adopted, in regard to corporations, in England. Queen v. Great North of Eng- land Railway, 9 Q. B. 315 (1846). Lord Denman, C. J., said: " It is as easy to charge one person, or a body corporate, with erecting a bar across a public road, as with the non-repair of it, and they may as well be compelled to pay a fine for the act as the omission. State v. Vermont Central Railw., 27 Vt. 103; Maund v. The Monmouthshire Canal Co., 4 M. & G. 452, where it is held, that, trespass will lie against a corporation for the act of its servant. This is familiar law in the American courts. And it is not deemed of any importance that the agent should act by any particular form of appointment; and it would be strange if the liability of the corporation could be made to depend upon the intention of the agent. This distinction is not claimed to be of any importance where the company owe a duty, as carriers of freight or passengers, for there the corpora- tion are liable for all the acts of their servants; but for the acts of their ser- vants in regard to strangers, it has been claimed there is no liability where the servant acts wilfully, unless the corporation direct or affirm the act of the ser- vant. And to this we may assent, in a qualified sense. The corporation does virtually assent to all the acts of its agents and servants, done in the regular course of their employment. A railway or any business corporation exists and acts only by its agents and servants, and by putting them into their places, or suffering them to occupy' them, the company consent to be bound by their acts. Thus, a conductor or engineer of a railway, while he acts with the instruments which the company put into his hands to be used on their behalf, upon the line of their road, is acting instead of the corporation, and his acts will bind the corporation, whether done negligently or cautiously, heedlessly or purposely. It would present a remarkable anomaly upon this subject, to hold the company liable for cattle killed carelessly upon their track, but not liable when it was done purposely by the engineer, or other servants of the company. It is probably true, that if the engineer should kill cattle, in an) way wholly disconnected with his employment, either upon the land of the company, or of others, the company could not be made' liable ; but if the engineer should destroy them wilfully, by rushing the engine upon them, the company would be liable undoubtedly, if any one were, of which there can lie little < iiies- tion. So the company might not be liable if the engineer should drive the engine [*510] 536 LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. attempted *to carry out the analogy of principal and agent, or master and servant, as between natural persons, and to apply Strictly the principle of respondeat superior. 1 upon another road and there do damage, when his employment extended to no Bach transaction. The case of The Southeastern Railw. v. The European & Am. Telegraph Co., 9 Exch. 3G3, seems to have adopted, in principle, the view for which we contend. The act here complained of was, boring under the railway, and it was held the company had no right to do so, and that they were liable, in trespass, for this unauthorized act of their servants. See also Sinclair v. Pearson, 7 X. II. 219, 227, opinion of Parker, C. J. ; Phil. & Reading Railw. v. Derby, 14 How. 468, 483, drier, J. ; Case of the Druid, 1 Wm. Rob. 391, opinion of Dr. Lushington, reviewing the cases. And we do not very well see why the railway is not liable to the very same action which the servant would be, because bis act is the act of the corporation, within the range of his employment, as running over sheep upon the track, in Sharrod v. London & N. W. Railw., 4 Exch. 580, where it is held the action must be case. The distinction between this case and that of The Southeastern Railw. v. The European & Am. Telegraph Co. supra, is not very obvious, unless we suppose in the latter case a vote of the corporation, which is highly improbable. See Phil. Railw. Co. v. Wilt, 4 Whart. 143, where it is said the action should be case, and that trespass will not lie unless the act is done by the command or with the assent of the corporation, which never occurs. Corporations do not vote such acts. A vote of a corporation that their engineers should run their engines over cattle would be an anomaly. In Sleath v. Wilson, 9 C. & P. 607, where a servant had been driving his master's carriage, and being directed to return to the stable, or while that was his duty, in the ordinary course of his employment, he went out of his way with the carriage, to do some errand of his own, and drove against a person negli- gently ; it was held that the master was liable, this being the act of the servant, in the course of his employment, because the injury was done with the master's horses and carriage, which he put into the servant's hands. But here the servant was far more obviously going aside of his employment, than in the supposed cases of his assuming to do a wilful wrong in the direct course of his ordinary employment. This case certainly cannot stand with the argument of the court, 1 East, 106. And yet it is confirmed by other cases. Joel v. Morrison, 6 C. & 7 Sherman v. Rochester, &c. Railw., 15 Barbour, 574, 577 ; Vanderbilt v. Richmond T. C, 2 N. Y. 479. In this last case, it was held the company were not liable for the trespass committed by its servants, although directed so to do by the president and general agent of the company, he having no authority to command an unlawful act. ' The same rule is laid down* in Lloyd v. Mayor of New York, 1 Selden, 369; Ross v. Madison, 1 Carter (Ind.), 281. And in an English case, Storey v. Ashton, 17 W. R. 727 ; s. c. L. R. 4 Q. B. 476, it was held the master was not liable for the act of his servant, in driving a cart against another in the street, where the servant had left the business of the master and gone some distance upon his own business, when the accident occurred, s. P. Little Miami Railw. Co. v. Wetmore, 19 Ohio (N. S.), 110. [•511] § 130. LIABILITIES IN REGARD TO AGENTS AND SERVANTS. 537 * 6. But they seem to have lost sight of, or not sufficiently to have considered, one peculiarity of this mode of transportation of P. 501. Any different view of this subject will, it seems to us, in principle, bring us back to the earlier theory of the relation of corporations to their servants ; that corporations are not liable for torts, committed by their servants, they having no authority to bind the corporation by unlawful acts. There is an elaborate case in 20 Maine, 41, State v. Great Works Mill & Manuf. Co., taking precisely the old view of the liability of corporations for the acts of their servants, where the act proves unlawful. But most of the later cases hold the company liable for the torts of their agents, done in the course of the agency. But the company are not liable for injuries to persons or property through the recklessness and want of common care and prudence of such persons, or property, as where a slave lay down to sleep upon the track of a railway, and was run over by a train of cars, it not being possible to discover such slave above twenty feet, on account of the grass upon the track. Felder v. Railw. Co., 2 McMullan, 403.- See also Mitchell v. Crassweller, 13 C. B. 237; s. c. 16 Eng. L. & Eq. 448; Leame v. Bray, 3 East, 593 ; Claflin v. Wilcox, 18 Vt. 605, where the principles involved in this inquiry are examined. Smith v. Birmingham Gas Co., 1 Ad. & Ell. 526. In two cases in Vol. 24 Conn., Crocker v. New London, W. & P. Railw., 249, and Thames Steamboat Co. v. Housatonic Railw., 40, the general proposition is maintained, that railway companies are not liable for acts done without the command of the agent, having the superior control in that depart- ment of the company's business, at the time, and out of the range of the particu- lar employment of the servant doing the act. This seems to us a sound and just proposition. See also Giles v. Taff Vale Railw., 2 Ell. & Bl. 822; Glover v. London & North W. Railw., 5 Exch. 66. It is said, in Illinois Central Railw. v. Downey, 18 111. 259, that case cannot be maintained against a corporation for injuries wilfully and intentionally com- mitted by its servants, and not occasioned in the course of their employment in the pursuit of their regular business. The judge, in laying down the proposition, seems to found himself upon the form of the action. But if any action will lie against a corporation for the wilful misconduct of its agents, we do not see why it may not be the same ordinarily brought against natural persons for similar injuries. But the proposition laid down in the case is not entirely clear or per- spicuous. The act of a servant may be in the direct course of his employment and business, and still be wilful, and that was the very case before the court, if the act was done wilfully. And where a passenger got into an altereati'on with the baggage master and so provoked him that he gave the passenger a blow, it was held the company were not responsible. Little Miami Railw. v. Wetmore, 19 Ohio (N. S.), 110. There is a very late case (July, 1872), Bayley v. The Manchester, S. & L. Railw., Law Rep. 7 C. P. 415, where the question discussed in this note seems to be placed upon its true ground. The declaration contained counts both in trespass and case. The (acts were that the plaintiff had procured his ticket and was in the right carriage. But just before the train started he inquired of one of the porters of the company if he was in the right carriage and the porter told him he was not and he must come out, and just as the train was getting in motion he violently pulled him out of the carriage, and [*512] LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. freight and passengers, that the superior is virtually always present, in the person of any of the employes, within the range of the employment, as much so as is practicable in such cases. And this msideration, in regard to natural persons, is held sufficient, to make tlif superior always liable for the act of the subordinate, whether (lone negligently or wilfully. 8 7. Ami although the cases seem to treat the superior as always absent, in the case of injuries done by railways, it is submitted, that thf more just and reasonable rule is, to regard the principal as always present, when the servant acts within the range of his em- ployment. 9 8. I'll is distinction is of no importance in regard to the liability of railways, as carriers of freight and passengers, for then the law makes the company liable absolutely in one case and in the other, as far as care and diligence can effect security. Those cases, therefore, which have excused corporations as bailees of goods for hire, when they were purloined by their servants, it would seem, are necessarily wrong. 10 both falling on the platform the plaintiff received the injuries complained of. The porters were by law to act under the orders of the station-masters in doing the work about the stations. The by-laws forbade any one to enter or ride in a carriage except where he had procured a ticket in the direction the train was going. There was no express by-law or regulation justifying the removal of a passenger from a carriage except where he was intoxicated or persisted in smok- iiiL 1 in a non-smoking carriage. The court held the company responsible on the ground that the servant was acting on behalf of the company within the scope of his employment. Willes, Justice, said : "A person who puts another in his place to do a class of acts in his absence necessarily leaves him to determine, according to circumstances that arise, when an act of that class is to be done, and trusts liiin for the manner in which it is done; and consequently he is held answerable for the wrong of the person so intrusted, either in the manner of doing such an a't, or in doing such an act under circumstances in which it ought not to have been done. 1 ' But it is here said by the learned judge, that the act must be done by the servant in the bona fide pursuit of his employment, and not of his own mere caprice, in order to bind the master. 8 .Morse v. The Auburn & Syr. Railw. Co., 10 Barb. 621 ; Vanegrift v. Railw., 2 N. J. 185, 188. See also Burton v. Philadelphia, &c. Railw., 4 Harring. 252. indler v. Broughton, 1 Crompton & M. 29. In this case it is held, that if the master is present, although passive, he is liable for the wilful act of his servant. M'Laughlin v. Pryor, 1 Car. & M. 354. Poster r. The Essex Bank, 17 Mass. 47 ( J, 510. Trespass will lie against a railway company. Crawfordsville Railw. v. Wright, 5 Ind. 252. [•513] § 130. LIABILITIES IN REGARD TO AGENTS AND SERVANTS. 539 9. But, as railways are, like other corporations, mere entities of the law, inappreciable to sense, we do not see why this abstraction should not be regarded as always existing and present in the dis- charge of its functions. It is indeed a mere fiction, whether we regard the company as present or absent. And it seems more just and reasonable, that the fiction should not be resorted to, to excuse just responsibility. It is certain we never require proof of any organic action of the corporation, to constitute railways carriers of freight and passengers. All that is required, to create the lia- bility, is the fact of their assuming such offices. So, too, for the most part, in regard to injuries to strangers and mere torts, it is not expected that proof will bo given of any express authority to the servant or employe' to do the particular act. 11 * 10. What shall amount to a ratification of the acts of its agent by the stockholders of the corporation, so as to give an authority not expressly conferred, or one not intended to have been conferred, or even where the formal act of the corporation was a denial of the 11 Lowell v. Boston & Lowell Railw., 23 Pick. 24. Numerous cases upon the subject of the liability of railways show this practically. Where the company begins to run trains before condemning the land to their use, it is seldom that the act of running them is traceable directly to the corporation, except as the act of the employes. This is always done by design, and never any doubt was entertained that the company are liable, and in trespass, to the land-owner, which could not be the case upon the strict analogies referred to in note (G), unless the corporation were regarded as present, and assenting to the act. Hazen v. Boston & Maine Railw., 2 Gray, 574; Eward v. Lawrenceburg & Upper Mis. Railw., 7 Porter (Lad.), 711; Hall v. Pickering, 40 Maine, 548. The rule laid down upon this subject by Lord Denman, < '. J., in a case which, although a trial at Nisi Frius, seems to have been examined and acquiesced in by all the judges of K. B., Rex v. Medley, 6 C. & P. 292, certainly exhibits the sagacity and wisdom of its author. That is the case of an indictment against the directors of a gas company for the act of the company's superintendent and engi- neer, in conveying the refuse gas into a great public river, whereby the fish are destroyed, and the water rendered unfit for use, &c, thereby creating a public nuisance. No distinction is attempted, or could fairly be made here between the liability of the company and that of the directors. The court held the director- liable for an act done by their superintendent and engineer, under a general authority to manage the works, though they were personally ignorant of the particular plan adopted, and though such plan was a departure from the original ami understood method, which the directors had no reason to auppose was discontinued. The learned judge uses this significant language, which fully justifies all we contend for: " It seems to me both common sense and law, that if persons, for their own advantage, employ servants to conduct works, they must be answerable for what is done by those servants." [*514] 540 LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. authority, has been a good deal discussed, and is not, perhaps, sus- eeptible of a specific definition. The question is discussed and the authorities examined in Cumberland Coal Company v. Sherman. 12 11. And it seems to be settled, both in this country and in England, that a corporation may become responsible for the pub- lication of a libel. In the English case, 13 a railway company were held responsible for telegraphing along their line, that the plain- tiffs, who were bankers, had stopped payment. Lord Campbell said : The allegation of malice " may be proved by showing that the pub- lication of a libel took place by order of the defendants, and was therefore wrongful, although the defendants held no ill will to the plaintiffs, and did not mean to injure them." And the leading American case 14 decides that a railway may be liable for a libel * published and circulated in their reports, wherein they represented the plaintiff as an incompetent mechanic and builder of bridges, station-houses, and other structures, and wanting in all requisite capacity and skill for such employment. The court held that, in the absence of express malice or bad faith, the report to the stock- holders is a privileged communication, but the privilege does not •extend to the publication of the report and evidence in a book for distribution among the persons belonging to the corporation and others, and so far as the corporation authorized the publication in the form employed they are responsible in damages. 12. It is well settled, that corporations have no powers except such as are conferred by their charters, or incidentally requisite to carry into effect the purposes of their charters. Hence it was held, that a charter to build a road to the top of a mountain and take tolls thereon, does not warrant the company in purchasing horses and carriages and establishing a stage route. Nor does an additional act for erecting and leasing buildings for the ac- commodation of the business of the company or others on the road have that effect. And an agent can do no act not within the corporate powers, nor can the corporation ratify any such act. 15 13. Where the statute requires the directors of a corporation to 12 30 Barb. 553. 3 WTiitefield v. Southeast. Railw. Co., Ellis, Black. & Ellis, 115. 14 Philadelphia, Wil. & Bait. Railw. v. Quigley, 21 How. (U. S.) 202; s. c. 2 Redf. Am. Railw. Cases, 330. 15 Downing v. Mount Washington Road Co., 40 N. H. 230. [*515] § 130. LIABILITIES IN REGARD TO AGENTS AND SERVANTS. 541 certify the fact of the capital stock being paid into the treasury in cash, and this is done, when in fact the payment was made in property of uncertain value, such certificate is false, and the directors responsible for the debts of the company under the statute, imposing that penalty for making a false certificate in that respect. ltj 14. A gas company, chartered for the purpose of lighting the streets and buildings of a town, is not obliged to supply gas to all persons having buildings on the line of their pipes,, upon being tendered reasonable compensation. 17 15. In one case 18 it is said the company are responsible for a * false imprisonment committed by its agents, and no authority under seal is requisite ; but there must be evidence justifying the jury in finding that the company's servants who did the act had authority from the company to do so. In this case the plaintiff had been taken into custody by the servants of the company, and by direction of the superintendent of the line, carried before a magistrate, and charged with an attempt to travel in one of the company's carriages without having first paid his fare and pro- cured a ticket. The fact was, he had paid his fare and procured a ticket and mislaid it at home, and, by mistake, taken another ticket accidentally laid in the same place. He explained the trans- 16 Waters v. Quimby, 3 Dutcher, 198. 17 Paterson Gas Light Co. v. Brady, 3 Dutcher, 245. 1S Goff v. Great Northern Railw. Co., 3 El. & El. 672; s. c. 7 Jur. (N. S.) 286. But where the station master ordered the owner of a horse into custody till it could be ascertained if his claim that the horse was to be carried free of charge were well founded, it was held that, as there could be no pretence of the company having any claim to make any such arrest, they could not be held liable for what was so manifestly a mere tort of the servant. Poulton v. London & S. W. Railw., Law Rep. 2 Q. B. 534. But where the servant of a railway company does an act of force towards another, in the due course of his employment, or under discretionary authority from the company, as in expelling a passenger from their cars for not paying fare, under a mistake of the fact, or with needless violence, the company is responsible, and the action may be against the servant and corporation jointly. Moore v. Fitchburg Railw., 4 Gray, 465. But the president of the company is - not liable in such case for merely transmitting the genera] authority of the corporation to the servant, but would be if he originated the particular order. Ilewett v. Swift et Otis., '■'> Allen, 420. See St. John v. Eastern Railw., 1 Allen, 544. So, too, the company is responsible for any neg- ligence or misconduct of its servants, in the course of their employment, in assisting passengers to alight from the cars. Drew v. Sixth Avenue Railw., 40 N. Y. (3 Keyes) 429. [•516] 542 LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. action to the company's servants, and declined to pay fare again, because he had not the means, but offered to pawn some of the tools of his trade which he had with him. The court held, that, as some one must have authority to act for the company in such emergencies, the superintendent of the line must be regarded as having that authority. The jury gave a verdict for the plaintiff for £50 damages, and the court declined to interfere on the ground thai they were excessive. The wonder is that any one should have had any hesitation in regard to the acts of the agents who thus acted in matters representing the company. It should be considered in all cases, that where a servant of any corpo- ration does any act coming fairly within the scope of the business intrusted to him, it must be held binding upon the company. 16. It seems to be considered that railway companies may be responsible where injury to passengers, or others rightfully there, occurs in consequence, for allowing a dangerous animal to remain about their stations after they have sufficient knowledge of its * vicious propensities. But the fact that a stray dog had torn the dress of one passenger a few hours before, and attacked a cat soon after, and been driven from the station by the servants of the com- pany, and soon after returned and bit the plaintiff, will not be sufficient to render the company responsible. 19 But where injury occurred from the bite of a dog kept about the stables of a horse railway company, by a person employed by them and having charge of their stables, and with the knowledge and implied assent of their superintendent, it was held that the company might properly be regarded as the keeper of the dog, and responsible under the statute for double the damages sustained by the bite. 20 17. The general manager of a railway has authority to bind the company to pay for medical attendance on a servant of the com- pany, injured by an accident in their employment. 21 18. But the general superintendent, manager, or managing- director, has no authority to bind the company to a secret and 19 Smith v. Great Eastern Railw., Law Rep. 2 C. P. 4. 50 Barrett v. Maiden & Melrose Railw., 3 Allen, 101. 21 Walker v. Great Western Railw., Law Rep. 2 Exch. 228; s. p. Toledo, W. and Western Railw. v. Rodrigues, 47 111. 188. See post, § 182, pi. 4, n. 5. [*517] §131. INJURIES BY FELLOW-SERVANTS. 543 fraudulent diversion of the funds or earnings of the company by any of the subordinate employe's or servants. 22 SECTION III. Injuries to Servants, by neglect of Fellow- Servants, and use of Machinery. 1. In general no such cause of action exists against cow/huh/. 2. But if there is any fault in employing unsuitable servants, or machinery, they are liable. 3. But not liable for deficiency of help or for not fencing road. 4. Has been questioned whether rule applies to servants of different grades. 5. Rule not adopted in some states. Case of slaves. Scotland. 6. No implied contract, by ship-owners, that ship is seaworthy. 7. But rule does not apply where servant has no connection with the particular work. n. 9. Cases reviewed in England, Scotland, and America. 8. English case illustrating the English doc- trine. 9. Statement of the laiv in Kentucky and review of the subject. 10. Subject reviewed by Chief Justice Shaw. 11. Company may show in excuse, that the damage accrued from the sen-nut disre- garding his instructions. 12. The servants of one company, not fellow- servants with those of another company, using the same station, where the in jury occurred. 13. The fact that the injury occurred by reason of the intoxication of a fellow-servant, and that his being an habitual drunk- ard was known, or ought to have been, by the company, tends to show culpable neglect on their part. 14. Employer responsible where his own neg- ligence concurs with that of fellow- servant. § 131. 1. It seems to be now perfectly well settled in England, and mostly in this country, that a servant, who is injured by the 22 Concord Railw. v. Clough, 49 N. H. 257. The facts in this case were that the rules established by the directors required the conductors to add ten cents to the fare required, if paid at the stations, whenever it was paid in the cars. The defendant, being a conductor on plaintiffs 1 road, received fares in the cars at a less amount than the rules required, and did not enter such fares upon the daily way-bills filed in the ticket-master's office ; but instead of that, which it was his duty to do, expended the money so received in the cars in the purchase of tick- ets at the ticket-offices, and after punching them, to indicate that they had been taken up of passengers, in the ordinary course of business, returned them with his other tickets taken up. This was done by the consent of the superintendent, but purposely kept from the knowledge of the directors. In this manner, although the company received all the money collected by the (-(inductor of passengers, it fell short of the full fares $5,509. The defendant also, by purchasing joinl tick- ets of other roads, extending over the plaintiffs 1 road, and selling them to pas- sengers, deprived the company of benefits arising from the sale of their own [*517] 544 LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. * negligence or misconduct of his fellow-servant, can maintain no action against the master for such injury. 1 2. But it seems to be conceded, that if there" be any fault in the selection of the other servants, or in continuing them in their places, after they have proved incompetent, perhaps, or in the employing unsafe machinery, the master will be answerable for all injury to his servants, in consequence. 2 tickets, which they would otherwise have received to the amount of $2,000. This was done by consent of the superintendent, but without the knowledge of the directors. The defendant was held responsible for both sums. ' Priestly v. Fowler, 3 M. & W. 1 ; Hutchinson v. York, Newcastle, & Ber- wick Railw.,5 Exch. 343; Wigmore v. Jay, 5 Exch. 354; Skip v. Eastern Coun- ties Railw., 24 Eng. L. & Eq. 396 (1853) ; Farwell v. Bos. & W. Railw., 4 Met. 49; Murray v. South C. Railw., 1 McMullan, 385; Brown v. Maxwell, 6 Plill (X. Y.), 592; Coon v. Sy. & Utica Railw., 6 Barb. 231; s. C-. 1 Selden, 492; Haves v. Western Railw., 3 Cush. 270; Sherman v. Roch. & Sy. Railw., 15 Barb. 574; McMillan v. Railroad Co., 20 Barb. 449; Honner v. The Illinois Central Railw., 15 111. 550; Ryan v. Cumberland Valley Railw., 23 Penn. St. 384; King v. Boston & Worcester Railw., 9 Cush. 112; Madison & I. Railw. v. Bacon, 6 Porter (Ind.), 205. The same rule prevails in Virginia. Hawley v. Baltimore & Ohio Railw., 6 Am. Law Reg. 352. 2 Shaw, C. J., 4 Met. 49, 57; Keegan v. Western Railw., 4 Selden, 175. But it makes no difference in regard to the liability of the company that the per- son came into the service voluntarily, to assist the servants of the company in a particular emergency, and was killed by the negligence of some of the servants. Degg v. Mid. Railw. Co., 1 H. & N. 773. It is said, McMillan v. Saratoga & Wash. R., 20 Barb. 449, that the servant in order to entitle himself to recover for injuries from defective machinery, must prove actual notice of such defects in the master. But culpable negligence is sufficient, undoubtedly, and that is such as, under the circumstances, a prudent man would not be guilty of. Post, note 10, § 131 ; Harper v. Ind. & St. D. Railw., 47 Mo. 567; Col. & Ind. Central Railw. v. Arnold, 31 Ind. 174; 111. Central Railw. v. Jewell, 46 111.99. The case 47 Mo. 567, was where the engineer was allowed to let the fireman take his place temporarily, when he considered him competent, and he proved incompe- tent, the company were held responsible. But if the servant knew of the defects, and did not inform the master, or if the defects were known to both master and servant, and the servant made no objection to continue the service, he probably could not recover of the master for any damage in consequence. But if the master know of the defect, and direct the servant to continue the service, in a prescribed manner, he is responsible for the consequences. Mellors v. Shaw, 7 Jnr. (N. S.) 845. Where the defendants were joint owners and workers of a coal-mine, and one of the employes was injured by a defect in the machinery, and it appeared that one of the defendants personally interfered in the man- agement of the colliery, and the jury found that defendant guilty of personal negligence, it was held sufficient to implicate both defendants, as they must be presumed to have known that improper machinery was being employed. Ash- [*518] § 181. INJURIES BY FELLOW-SERVANTS. 545 * In Frazier v. The Pennsylvania Railway Company, 3 it was held, that if the company knowingly or carelessly employ a rash worth v. Stanwix, 30 L. J. Q. B. 183. But see Wright v. N. Y. Central Railw., 28 Barb. 80 ; post, n. 3, 20 ; Morgan v. Vale of Neath Railw., L. R. 1 Q. B. 149. The company was held responsible for an injury to one of its servants caused by want of repair in the road-bed. Snow v. Ilousatonic Railw., 8 Allen, 411. But the company cannot be held as guarantors to its servants that the structures con- tinue in proper condition. If originally properly built and properly inspected, from time to time, it is all that can be required. As, for instance, if a servant is killed by the falling of a bridge, properly constructed, and carefully inspected the day before, the company is not responsible. Faulkner v. Erie Railw., 49 Barb. 324; Warner v. Same, 8 Am. Law Reg. (N. S.) 209. The general doc- trine of the text is maintained and illustrated in Harrison, Adm'r, v. Central Railw., 2 Vroom, 293; Weger v. Penn. Railw., 55 Penn. St. 460; Shauck v. Northern Central Railw., 25 Md. 462; P. F. W. & Chicago Railw. v. Devinney, 17 Ohio (N. S.), 197 ; Warner v. Erie Railw., 39 N. Y. 468. And if the master use reasonable precautions and efforts to procure safe and skilful servants, but, without fault, happen to have one in his employ through whose incompetency damage occurs to a fellow-servant, the master is not liable. Tarrant v. Webb, 18 C. B. 797. In Dynen v. Leach, 26 Law J. (N. S.) Exch. 221, it was decided, that where an injury happens to a servant in the use of machinery, in the course of bis employment, of the nature of which he is as much aware as his master, and the use of which is the proximate cause of the injury, the servant cannot recover, nor, if death ensues, can his personal representative recover of the master, there being no evidence of any personal negligence on his part, conducing to the injury. Nor does it vary the case that the master has in use in his works an engine, or machine, less safe than some other which is in general use, or that there was another and safer mode of doing the business, which had been discarded by his orders. And in Assop v. Yates, 2 II. & N. 768, it was held, that if the servant knew of the exposure, and consented to continue the service, and suffered dam- age, he could not recover of the master for any negligence which might have contributed to the result. And if one servant knows of the incompetency of another fellow-servant, and gives no information to the employer, but continues in the service, he cannot recover for any injury sustained by such incompetency. Davis v. Detroit & Mich. Railw., 20 Mich. 105. But if one of the servants of the company is injured in coupling the cars, through defect in the apparatus, which was known to the superintendent, and about being laid aside on that account, but not known to the servant, and without fault on his part or that of any fellow- servant, the company is liable. Gibson v. Pacific Railw., 46 Mo. 163. And where a boy, fourteen years of age, was set to tend a machine, in dangerous proximity to another machine, without cautioning him against the exposure, and he was in consequence injured, without any more incaution on his part than might naturally have been expected of one in his position and of his age, the 3 38 Penn. St. 104; Wright v. X. Y. < lentral Railw. Co., 28 Barb. 80; ( !arle v. B. & P. Canal and R. R. Co., 13 .Me. 269. 35 [*519] 546 LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. or incompetent conductor, whereby the brakeraan on the train is injured, the company are responsible for the injury; that the act ni the agenl of the company having charge of employing such nts or servants, and of dismissing them for incompetency, is the act of the company ; but the company are not responsible for such injury, unless they were in fault in employing or continuing the conductor in their service ; that the character of such conduc- tor for skill and faithfulness may be shown by general reputation. The master is not in general bound to use any special precautions to secure the servant from injury in regard to matters equally within the knowledge of both. 4 But the master is liable for all in- juries accruing to his servants from his own personal negligence ; and this may consist in personal interference in the particular matter causing the injury, or by negligently retaining incompetent servants, producing the injury. 5 But a railway company is liable in damages for an injury resulting to any person lawfully using its road, from its neglect to introduce any improvement in its machinery or apparatus, which is known * to have been tested, and found mate- rially to contribute to safety, and the adoption of which is within its power so as to be reasonably practicable. 6 But in another case," in an action by a servant against his master for injuries sustained by the explosion of a steam-boiler used in his business the plain- tiff introduced evidence without objection, that there was no such fusible safety-plug on the boiler as was required by statute ; and the presiding judge excluded evidence of a custom among engineers not to use such a plug, and instructed the jury that if the defend- ant knowingly used the boiler without the plug, and the want of it caused the accident, the plaintiff was entitled to recover, and re employer will be held responsible ; but if the jury should believe the servant un- derstood the peril, and voluntarily incurred it, he could not recover. Coomb v. New Bedford < lordage Co., 102 Mass. 572. A fireman injured by a defect in the engine, which had been brought to the knowledge of the mechanics employed in repairing such engines, but which they had failed to remedy in repairing the same, was held not entitled to recover of the company, without showing notice of the defect to some agent authorized to receive such notice on behalf of the com- pany, and want of diligence in repairing the defect. Mobile & Ohio Railw. v. Thomas, 12 Ala. 672. 1 Seymour v. Maddox, 16 Q. B. 326. 5 Ormond v. Holland, 1 El., Bl. & El. 102. ,; Smith v. N. Y. & Harlem Railw. Co., 19 N. Y. 127. ' Cazyer v. Taylor, 10 Gray, 271. [*520] § 131. INJURIES BY FELLOW-SERVANTS. 547 fused to instruct them that if the defendant used all the appliances for safety that were ordinarily used in such establishments, he was not liable, although he did not use the fusible plug required by statute, and it was held the defendant had no ground of excep- tion. It is here declared by the court that ordinary care must be measured by the character and risks and exposures of the business, and the degree of care required is higher when life or limb is endangered, or a large amount of property is involved, than in other cases. 8 3. But the company are not liable because there was a deficiency of help at that point. 9 And a neglect in the company to fence their road, whereby the engine was thrown from the track, by coming in contact with cattle thus enabled to come upon the road, and a ser- vant of the company so injured that he died, will not render them liable. 10 4. But it has been questioned whether the rule has any just ap- plication to servants in different grades, who are subordinated the one to the other. 11 But as the ground upon which the rule * is at- 8 Post, Common Carriers of Passengers. See also Briggs v. Taylor, 28 Vr. 180, 184; s. c. 2 Redf. Am. Railw. Cases, 558. 9 Skip v. Eastern Counties Railw., 9 Exch. 223; Hayes v. Western Railw., 3 Cush. 270. 10 Langlois v. Buf. & Roch. R., 19 Barb. 364. But under the English statute the master has been held responsible for any omission of duty in making his business reasonably safe, whereby his servants suffered damage. Britton v. Great Western Cotton Co., L. R. 7 Exch. 130. 11 Gardiner, J., in Coon v. Sy. & Utica Railroad Co., 1 Seld. 492; s. c. 6 Barb. 231. But in Gillshannon v. Stony Brook Railw., 10 Cush. 228, it w;is held to make no difference that the servants were not in a common employment. This was the case of a laborer riding upon a gravel train to the place of his em- ployment, and injured by the negligence of those in charge of the train. In Wilson v. Merry, Law Rep. 1 11. Lds. 326, it was decided, that a master is not responsible for injury to a servant caused by the negligence of a fellow-servant, by the mere fact that the latter is of a higher grade, as a superintendent : S. P. Feltham ». England, L. K. ~J <,>. B. •">•'!. Hut in Ilavncs v. East Tenn. & Ga. Railw., 3 Coldwell, 222, a somewhat different view was taken, the com- pany being held responsible for an injury to one of the subordinate servants by the carelessness of the superintendent in starling a train at an unusual hour. And in Frost v. Union Pacific Railw., 1 1 Am. Law Reg. (X. S.) I'M, where one servant, by the direction of a superior servant, undertook to do an act not in the usual course of his employment and was thereby injured through the negii- of the superior, the master was held liable. But where a brakeman was injured by the negligence of workmen in repairing the track, it was beld they were so far fellow-servants that he could not recover. Cooper v. M.. & Prairie [*521] 548 LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. tempted to be maintained is one of policy chiefly, that it is better to throw the hazard upon those in whose power it is to guard against it, it seems very questionable how far any such distinction is maintainable. It has been attempted in a good many cases, but does not seem to have met with favor. 5. And the rule itself has been denied in some cases, in this country, after very elaborate consideration. 12 And it has been held not to apply to the case of slaves, 13 especially where the em- ployer stipulated not to employ them about the engines and cars, unless for necessary purposes of carrying to places where their services were needed, and they were carried beyond that point, du f'ii. Railw., 2:5 Wis. 668. So, too, where a laborer on a construction train was injured by the engineer backing the train without a preliminary signal, it was held he could not recover of the company, it being only the carelessness of a fellow-servant. Chicago & Alton Railw. v. Keefe, 47 111. 108. 12 Little Miami Railw. v. Stevens, 20 Ohio, 415; C. C & C. Railroad Co. r. Keary, 3 Ohio (N. S.), 202. These cases are placed mainly upon the ground of the person injured being in a subordinate position. It was held the rule did not apply to day laborers upon a railway, who were not under any obligation to renew their work from day to day, where one, after completing his day's work, was injured through the negligence of the conductor of one of the company's train.-, upon which he was returning home, free of charge, but as part of the contract upon which he worked. Russell v. Hudson River R., 5 Duer, 39. And in Whaalan v. M. R. & Lake Erie Railw., 8 Ohio (N. S.), 249, it was held that where one of the employes of a railway, engaged in making repairs upon its track, was injured by the neglect of a fireman upon one of the trains, there was no such subordination in regard to their duty as to justify any departure from the general rule of excusing the master. See also Indianapolis Railw. v. Love, 10 Iiul. 554 : Same v. Klein, 11 Ind. 88. In Hard, Adm'r v. Vt. & Canada Railw., 32 Vt. 173, the plaintiff's intestate, who was an engineer on the defendant's road, was killed by the explosion of a locomotive engine which he was running, which occurred by the neglect of the company's master-mechanic in not keeping the machine in repair, it was his duty to superintend and direct the repairs upon the engines. The directors of the company were not guilty of any neglect in furnishing the road, in the first instance, with suitable machinery and competent employes, and they were ignorant of any defect in this engine. The company were held not responsible for the death of plaintiff's intestate, on the ground that under the circumstances the injury must be considered as occurring from the neglect of a fellow-servant, employed in the same common business. But where a stranger, who had occasion to be upon the company's grounds, was injured by the explosion of defendant's engine, it was held the company were responsible, unless tbey could show that the explosion occurred without their fault. I. C. Railw. v. Phillips, 49 111. 234. 13 Scudder v. Woodbridge, 1 Kelly, 195. [*521] § 131. INJURIES BY FELLOW-SERVANTS. 549 and killed in jumping from the cars. 14 The Court of Sessions in * Scotland, too, seems to have dissented from the English rule upon this subject. 15 14 Duncan r. Railroad Co.. 2 Richardson, 613. 13 Dixon v. Ranken, 1 Am. Railw. ('. 569. The remarks of Lord Cockburn are pointed and pertinent. "The English decisions certainly seem to determine that in England, where a person is injured by the culpable negligence of a ser- vant, that servants master is liable in reparation, provided the injured person was one of the public, but that he is not responsible if the person so injured happened to be a fellow-workman of the delinquent servant. It is said, as an illustration of this, that if a coachman kills a stranger by improper driving, the employer of the coachman is liable, but that he is not liable if the coachman only kills the footman. If this be the law of England, I speak of it with all due respect, it most certainly is not the law of Scotland. I defy any industry to produce a single decision or dictum, or institutional indication, or any trace of any authority to this effect, or of this tendency, from the whole range of our law. If any such idea exists in our system, it has as yet lurked unde- tected. It has never been directly condemned, because it has never been stated.' 1 After citing numerous cases in their reports, where the question was involved but not raised, his lordship continues : "The new rule seemed to be recommended to us, not only on account of the respect due to the foreign tribunal, — the weight of which we all acknowledge, — but also on account of its own inherent justice. This last recommendation fails with me, because. I think that the justice of the thing is exactly in the opposite direction. I have rarely come upon any principle that seems less reconcilable with legal reason. I can conceive some reasoning for exempting the employer from liability altogether, but not one for exempting him only when those who act for him injure one of themselves. It rather seems to me that these are the very persons who have the strongest claim upon him for repara- tion, because they incur danger on his account, and certainly are not understood by our law to come under any engagement to take these risks on themselves." But the English cases certainly do regard the servant as impliedly stipulating to run these risks when he enters into the service. The remarks of the learned judge above ought nut perhaps to be regarded as of any inherent weight here, beyond the mere force of the argument, and it is always to be regretted that any difference of decision should exist among the tribunals of the different >tates upon a subject of so much practical moment. The great preponderance of authority in this country is undoubtedly in favor of the English rule ; but we coidd not forbear to state, that we have always had similar difficulties to those stated by his lordship, in regard to the justice or policy of the ride. When these cases go by appeal to the House of Lords, they are determined according to the rule of the Scottish law. Marshall v. Stewart, :'..*! Eng. L. & Eq. 1. Opinion of Cranworth, Chancellor. But see the very lucid and convincing argument of Shaw, • '. J., in Farwell v. Boston & Wor. Kailw., I .Met. lit, ."it: ; s. e. 1 Kedf. Am. Railw. ( !ases, 395 : 3. C. 1 Am. It. C. S39 ; and the most ingenious attempt at re- d/uctio ad absurdum upon the subject 1>\ Lord Abinger, C. B., in Priestly v. fowler, 3 M. & W. 1, G, 7, where the learned C. B., among other ingenious speculations, [*522] LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. Bui it has been held, that there is no implied obligation on the pari of a ship-owner towards a seaman, who agrees to serve Bupposes Borne fearful consequences might follow if tlie master were to be held liable for the negligence of the chamber-maid in putting the servant into wet .sheets! Il a 111:111 should receive damage in any way by his own foolhardiness,'even where a fellow-servant was concerned in producing the result, he could not re- of any one upon the most obvious grounds. Some discretion and reserve no doubt requisite in the application of the rule of the servant's right to re- r for the default of his fellow-servant, but whether the difficulty of its appli- cation will fairly justify its abandonment, would seem somewhat questionable, if the thing were res Integra, which it certainly is not, either in the English or American law. In an English case, in the Court of Exchequer, 11 Exch. 832; 8 1 . 36 Eng. L. & Eq. 186, Wiggett v. Fox et al., the court adhere to the rule laid down in former English cases upon this subject, reiterating the same reasons, with the qualification, that if there were any reason for holding that the persons 31 act caused the injury were not persons of ordinary skill and care, the case would be different, there being an implied obligation upon the master not to em- ploy such persons. With this qualification there seems to be no serious objection to the English rule of law npon this subject. Bassett v. Norwich & Nashua Railw., Superior Court of Conn. 19 Law Rep. 551. In a case in the Court of Sessions in Scotland, so late as January, 1857, the court repelled a plea, founded on the claim that the master is not liable to a servant for the negligence of a fellow-servant. The Lord Justice Clerk took occasion to remark, that the mas- ter's liability rested upon the broad principle, that an employer being liable to third parties for injuries caused by his servants, & fortiori he is liable to the ser- vant for injury caused by another servant. But for injury to servants through obvious or known defects of machinery in the use of the master, unknown to the servant, but which the employer by the use of ordinary care could have cured, the cases all agree that he is liable. McGatrick v. Wason, 4 Ohio (N. S.), 566. In the Exchequer Chamber, so late as May, 1857, in Roberts v. Smith, 29 Law Time-. L69, ii was held, that where the master directs the conduct of the servant, he is liable for any injury resulting therefrom to the other servants. See also Wey- ant v. N. V. iV- Harlem R., 3 Duer, 360. It has been held in some cases, Scudder ?■. Woodbridge, 1 Ga. 195, that the rule that the master is not liable for an in- jury to one servant inflicted by the want of care or skill in a fellow-servant, does not apply to the case of slaves, on account of their want of freedom in action and choice in continuing the service when it becomes perilous. But if an exception Could be founded upon any Mich basis, it would extend to all the subordinate rela- tion- of service, as has sometimes been attempted. But where the injury resulted iron, the habitual negligence of the engineer of a boat, whereby the slaves per- ished, by the bursting of a boiler, the master of the boat is liable, and the same rule applies to the case of freemen. Walker v. Boiling, 22 Ala. 294; Cook v. Parham, 24 Ala. 21. The court here were equally divided upon the question, whether the general rule upon this subject applied to the case of a slave hired on teamboat. But this com) subsequently held, on general principles, that where one employs a mechanic to repair a building which is in a rninous state, but this is not known to the workmen and not disclosed to the contractor, the employer [*523] § 131. INJURIES BY FELLOW-SERVANTS. 551 *on board, that the ship is seaworthy, and in the absence of any express warranty to that effect, or of any knowledge of the defect, or any personal blame on the part of the ship-owner, the seaman cannot maintain an action, by reason of the ship becoming leaky, and his being obliged to undergo extra labor. 10 7. But a carpenter employed by a railway company to build one of their bridges, and who took passage in their cars, by their directions, to go to a certain point for the purpose of loading timber to be used in building the bridge, and who was injured in the course of the passage by Jhe negligent conduct of the train, is entitled to recover of the company, the plaintiff having no par- ticular connection with the conduct of the business in which he was injured. 17 8. The English courts still maintain their former stand, that all the servants of the same company engaged in carrying forward the common enterprise, although in different departments, widely sepa- rated, or strictly subordinated to others, are to be regarded as fellow-servants, bound by the terms of their employment to run the hazard of any negligence or wrong-doing which may be com- mitted by any of the number, so far as it operates to their detri- ment. This is strikingly illustrated in a case in the Common is liable for all injury sustained by the contractor or his subordinates, being slaves in this case, by reason of the peril to which they are thus fraudulently exposed, but that he will not be held so liable if he inform the contractor of the peril to which he is exposed. Perry v. Marsh, 25 Ala. 659. " Couch v. Steel. 3 El. & Bl. 402; s. c. 24 Eng. L. & Eq. 77. But if the master might have known the exposure of the servant, but for his own want of ordinary care, as in the use of a defective locomotive engine, which exploded and injured the servant, through defective construction, the master is liable for the injury. Noyes v. Smith, 28 Vt. 59. But where the danger is known to the servant and not communicated 'to the superior, or master, he cannot recover for any injury he may sustain in consequence. McMillan v. Saratoga &Wash. B,., 20 Barb. 449 ; Hubgh v. N. O. & C. Bailw., 6 La. An. 495. 17 Gillenwater v. Mad. & Ind. Railw., 5 Ind. 340; s. p. O'Donnell v. Alle- ghany Valley Bailw., 59 Penn. St. 239. And where laborers upon a railway were transported to and from their labor and meals upon the gravel trains of the company, which they were employed in loading and unloading, but had no agency in managing, and in such transportation, by the gross negligence and unskilful- ness of the engineer, were injured, it was held the company were liable. Fitz- patrick v. New Albany & Salem Bailw., 7 Porter (Ind.), 436. But not where the servant is in fault in attempting to get upon the train when in motion. Timmons v. The Central Ohio Bailw., 6 Ohio (N. S.), 105. [*524] LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. ' Pleas, 18 where it was held that one employed to pick up stones from off the defendant's line, and who, while returning in the evening, after his work was over, in a train driven hy the defendant's servants, was injured by a collision caused by the negligence of those who had charge of the train, it being one of the terms of the contract of hiring that he should return in the defendant's train, could not recover damages of the company, as he and the person guilty of the negligence resulting in the injury were fellow-servants engaged in a common employment, within the meaning of the rule of law applicable to the case. • 9. This whole question is very elaborately reviewed in a case in Kentucky, 19 which we shall here repeat, together with our own comments at the time upon the several propositions embraced in the opinion, at the risk of some repetition, perhaps. Where an employe' upon a railway is injured by the negligence of the en- gineer of the company, and is himself guilty only of such neglect and want of care as would not have exposed him to the injury but for the gross neglect of the engineer, and when the engineer might with ordinary care have avoided the injury, he is not precluded from maintaining his action. What is gross neglect in the engineer may be determined by the court, as a question of law, where there is no controversy in regard to the facts. In regard to those acts of a corporation which require care, diligence, and judgment, and which it performs through the instrumentality of general superin- tending agents, the corporation itself is to be regarded as always present, supervising the action of its agents. The rule of law, that the master is not responsible to one of his servants for an injury inflicted through the neglect of a fellow-servant, is not adopted, to the full extent of the English decisions, in the State of Kentucky. The rule is there regarded as anomalous, inconsistent with principle, analogy, and public policy, and unsupported by any good or consistent reason. In regard to all servants of the com- pany acting in a subordinate sphere, the one class to another, and receiving injuries while in the performance of duties, under the command of a superior, whose authority they have no right to disobey or disregard, it is the same * precisely as if the injury were 18 Tunney v. Midland Railw. Co., Law Rep. 1 C. P. 291 ; s. c. 12 Jur. (N. S.) 691. 19 Louisville & Nashville Railw. v. Collins, 5 Am. Law Reg. (N. S.) 265 ; s. c. 2 Duvall, 114. [*525,526] § 131. INJURIES BY FELLOW-SERVANTS. 553 inflicted by the act of the company ; and if there is any want of care and skill in the superior, such as his position and duty reason- ably demand, the company are responsible. In such cases there is no implied undertaking on the part of the servant to risk the consequences of the misconduct of the agent of the company under whose authority he acted, and through whose negligence he re- ceived the injury. Servants so situated, in distinct grades of superiority and subordination, are not to be considered as " fellow- servants," or " in the same service ; " but rather in the light of strangers to each other's duties and responsibilities ; and the sub- ordinate may recover of the company for any injury sustained by reason of the ordinary neglect of the superior. But if the subordi- nate is himself guilty of any want of ordinary care, whereby he is more exposed to the injury, he cannot recover, unless the superior was guilty of wilful misconduct or gross neglect, but for which he might have avoided inflicting the injury, notwithstanding the negli- gence of the other party. Where, therefore, an engineer, while upon his engine, ordered a common laborer to do some needed work under the engine, in fastening bolts or screws belonging to it ; and such workman, while lying upon his back in the perform- ance of the service, had both his legs cut off by the movement of the engine forward and backward, through the gross neglect or wilful misconduct of such engineer, the company are responsible for the injury, notwithstanding there might have been some want of ordinary care on the part of the subordinate, contributing to some extent to the injury, but not necessitating it, except through the gross misconduct of the superior. Per Robertson, 0. J. — We do not consider that the rule exempting the company from respon- sibility for injuries inflicted upon their servants, through the want of ordinary care in other servants of the company, extends beyond those who are " strictly fellow-servants " in the same grade of employment, and where one is not subject to the order or control of the others. Beyond this the company is responsible for the con- sequences of the misconduct of superiors towards inferiors in its service, the same as towards strangers. 20 20 We have presented a very extended syllabus of the foregoing case, em- bracing all the points upon which the opinion of the court is given, without regard to their being directly and necessarily involved in the decision of the cause. And notwithstanding the avowed willingness of the learned judge to dis- regard the general current of authority upon the point, and the apparent spirit of [*52b] . r ,:,| LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VT. *10. The question is again reviewed by the same learned judge who gave the veidely-admired opinion in Farwell v. Boston & freedom with which he deals with the decisions in oilier states and countries, — notwithstanding all tliis, and more thai mighl be fairly said as to the fearlessness and disregard of self with which the opinion abounds, which is not altogether common in dealing with the opinions of such men as Lord Abinger and Chief Justice Shaw, and a host of others scarcely less eminent in their Held of service; notwithstanding all this, which has rather surprised us, we must confess, at the Bame time thai we could not but regard it as a refreshing exception to the pro- verbial subserviency of opinion to precedent and analogy, wo liave nevertheless felt compelled to the conclusion that the opinion is altogether and entirely sound in iis principles, and maintained with very uncommon ability in its logic as well illustrations, both of which seem altogether unexceptionable. But we must warn those members of the profession who are not altogether aware of the extent, of the decisions in the opposite direction, that they embrace a very large number of fhe best-considered English cases, and an equal number, almost, in the Amer- ican states; including all, as Car as we know, with the exception of Ohio, and Georgia, and now Kentucky. And the decisions in these; latter states are all attempted to be placed upon peculiar grounds, thereby virtually confessing the i Iness of the general rule, that one cannot recover of his employer for an injury inflicted through the want of care in a fellow-servant, employed in the ' same department of the master's business, and under the same general control. This is declared by the Learned judge in the case last cited. The opinion in the case would have been far more satisfactory if the learned judge could have de- voted more time and labor to the matter. If a careful review of the preceding . with the reasoning of the judges, could have been presented in the very Carefully prepared opinion, it could not, have failed to be more, valuable. Dis- cussion of a broad principle is much less expensive to the author, and far less satisfactory, as a general thing, to the profession, than a careful review of the We should not expect, our readers would here listen to such an attempt, on our part, since it must occupy considerable space, and would be merely pro- fessional, instead of being clothed with the weight of judicial authority. But we have noticed with gratification, more for the justice of the view than because we had before contended for the same, that the learned judge declares most unequiv- ocally, that the corporation is to be regarded as constructively present in all acts performed by its general agents within the scope of their authority, i. e. within the range of their ordinary employment. The consequences of mistake or misappre- hension, upon this point, have led many courts into conclusions greatly at variance with the common instincts of reason and humanity, and have tended to inter- pose an unwarrantable shield between the conduct of railway employes and the ju-t responsibility of the company. 'We trust that the reasonableness and justice "I tlii construction will at no distant day induce its universal adoption. See ■ § 130, pi. 6, 7, 8, 9, and notes, and cases cited. In regard to the Leading point involved in the Kentucky case, how far a servant is entitled to recover of the master for an injury inflicted by the negligence or want of skill of a fellow-servant, the doctrine of exemption was first established in the Court of Exchequer in Priestly v. Fowler, 8 M. & W. 1, which was [•527] §181. INJURIES BY FELLOW-SERVANTS. 555 * Worcester Railway, in a later ease,-' and the following propositions maintained. A carpenter employed l>y the day by a railway cor- decided at Michaelmas Term, 1887. The same rule was adopted in this country by the Supreme Judicial Courl of Massachusetts, in Farwell p. The Boston & Worcester Railroad < 'orporation, I Mel . l!>, at the March Term, 1842, supported by one of the ablest and most unexceptionable opinions ever delivered from the American Bench, — an opinion which has commanded the admiral ion of the entire profession, both Bench and Bar, in England as well as in America; and which has been mure extensively adopted and formally incorporated into the opinions of the English courts than perhaps any oilier opinion of an American judge. This opinion was in fact preceded by thai of Murray p. The South Carolina Railw. Co., 1 McMullan, 385, in the same direction; but the former has been regarded as the leading American case. These leading opinions, in the different countries, have been followed by a multitude of eases reaching down to the presenl time, most of them occupied in the discussion of what were claimed to be exceptional cases. In England, we may, among a multitude of others, refer to Hutchinson p. York, Newcastle & Berwick Railw., 5 Exch. 343; Wigmore v. Jay, ill. 354; Skip p. Eastern Counties Railw., 9 Exch. 223; a c, 24 Eng. L. & Eq. 396; Degg V. Midland Railw., 1 Hurlst. & N. 773; Tarrant p. Webb, is ('. IJ. 7H7; s. v.. :\7 Eng. L. & Eq. 28! ; Mellors p. Shaw, 1 B. & S. 137; s. c. 7 Jur. (N. S.) 845; Seymour p. Maddox, 16 Q. 15. 326; Ormond p. Hol- land, 1 El., !>1. & Ellis, 11*2. In the American states the decisions are consider- ably numerous where the general principle of the foregoing decisions lias been ailed upon, or recognized, hut we shall not refer to more than will be requisite to show how far the rule prevails in different states. It is adopted in Brown P. Maxwell, 6 Hill (N. Y.), 592; Coon r. Syracuse & Utica Railw., 6 Barb. 231 ; 8. C. 1 Selden, 492, and numerous other New York eases cited, ante, § 131. See also Honner V. 111. Central Railw., 15 111. 550; Ryan p. Cumberland Valley Railw., 23 Penn. St. 384; Madison & Indianapolis Railw. p. Bacon, 6 Porter (Ind.), 205; Sawley v. Baltimore & Ohio Railw., 6 Am. Law. Reg. :i.")2; Era/.ier v. Pennsylvania Railw. Co., 38 Penn. St. L04; Wright p. New York Central Railw., 28 Barb. 80; Carle p. B. & P. < 'anal & Railw. Co., 18 Maine, 269; Noves v. Smith, 28 Vt. 59; Indianapolis Railw. p. Love, 10 Indiana, 554 ; Same v. Klein, ii id. 38. The 'general principle is adopted in all tl ther slates where the question has arisen; for although in Ohio, in the cases of Little Miami Railw. < !o. r. Stevens, 20 Ohio, I |.">, and C. C. & < '. Railw. Co. P. Kcarv, 8 Ohio (X. S.), 201, the companies are held responsible for the injury, the deci- sions are placed upon the ground, that the persons injured were in subordinate position-. And in Seudder V. Woodbridge, 1 Kelly, 195, it was held the rule did nol excuse the master for injury thus caused to slaves, mainly upon the same ground of their dependent and subordinate positions. And the Kentucky case is placed upon the same ground. And in the more recent, case of Whaalan P. Mad. R. & Lake Erie Railw. Co., 8 Ohio (\. S.), 249, it was held, thai where one of the trackmen was injured by neglect of the fireman upon one of the 21 Seaver » Boston & M. Railw. Co., 1 1 Gray, 460. [*528] 5oG LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. poration * to work on the line of their road, and carried on the cars to the place of such work without paying fare, cannot maintain an trains, there wis no such subordination of position as to take the case out of the general rule, and the case was decided in favor of the company ; thus maintaining tin- soundness of the general rule in thai state by its latest decision. The Kentucky courts do not seem to hold the master excused in such cases, unless the fellow- servant by whose act or omission the injury occurs, is competent, for his duty and reasonably diligent in its performance. Louisv. & Nashv. Raihv. v. Felbern, 6 Bush, -~>7I. Hut the fact that there is a safer mode of constructing machinery is on ground of charging the master. Wonder r. Halt. & Ohio Railw., 32 Md. 411. It is safe, therefore, to state, that all the cases, both English and American, maintain the general rule to the extent of those who are strictly "fellow-ser- vants " in the same department of service. And where this is not the fact, but the employe's are so far removed from each other that the one is bound to obey the directions of the other, so that the superior may be fairly regarded as rep- resenting the master, we think it more consonant with reason and justice to treat the matter as not coming within the principle of the rule. This is so declared by Gardiner, J., in Coon v. Syracuse & Utica Railroad Co., 1 Selden, 492. But this qualification is denied by Shaw, C. J., in Farwell v. Boston & Wor lester Railw., 4 Met. 49, GO, 61, unless the departments of service are so far independent as to have no privity with each other, not being under the control of a common master. And it was so decided in Gillshannon v. Stony Hrook Railw. Co., 10 Cush. 228. And it seems finally to be settled upon authority, that it is sufficient to bring the case within the rule, that the servants are employed in the same common service, as in running a railway, or working a mine. Wright v. New York Central Railw., 25 N. Y. 552, 564, by Allen, J. The question is whether they are under the same general control. Abraham v. Reynolds, 5 H. & N. 142 ; Hard, AdmV v. Vermont & Canada Railroad, 32 Vt. 473. And there is no question that the master is responsible for any want of skill or care in employing competent and trustworthy servants, and in suffi- cient numbers ; and in furnishing safe and suitable machinery for the work in hand, unless the servants, knowing, or having the means of knowing, of the deficiency in furnishing proper help or machinery, consent to continue in the employment. And the neglect or want of skill of the master's general agent employed in procuring help and machinery, is the act of the master. Hard v. Vermont & Canada Railw. Co., supra ; Wiggett v. Fox, 36 Eng. L. & Eq. 486 ; 11 Exch. 832; Noyes v. Smith, 28 Vt. 59. Indeed this exception is recognized in most of the preceding cases. Many of the late cases upon the question have turned upon this point, the general rule having been regarded as settled beyond question for many yens. We are not disposed to question the extent of the exceptions to the general rule ; and possibly any greater extension in that direc- tion might essentially impair the general benefit to be derived from it. Hut we would he content to treat all the subordinates who were under the control of a Buperior as entitled to hold such superior as representing the master, and the master as responsible for his incompetency or misconduct. We should regard this as a more salutary rule, upon the whole, than the present one; but the gen- eral current of authority seems greatly in the opposite direction. [*529] § 131. INJURIES BY FELLOW-SERVANTS. 557 * action against the corporation for injuries received while being so carried, by the negligence of the engineer employed by them for that service, or by a hidden defect in the axle, the failure to dis- cover which, if discoverable, was occasioned by the negligence of servants of the corporation, whose duty it was to examine and keep in repair the cars, engines, and axles. In such a case, if the company exercised reasonable care in providing and using the machinery, in the use of which the plaintiff was so injured, they are not responsible for the injury. 11. And in a later case 22 before the same court, where a servant was accidentally hurt by an engine running upon him from the turn-table, through some defect in the brake, it was held competent for the company to show in defence that the person having charge of all the engines upon the road had given instructions to the en- gineers to have the wheels of their engines blocked while turning upon the turn-table, and that the accident occurred in consequence of some servant neglecting such instructions, although the instruc- tions had not been communicated to the plaintiff. 12. But the servants of one railway company are not fellow- servants with the servants of another company who use the same station with the first company, and while those are subject to the direction of the station-master of that company, and the second company is responsible for an injury to one of the servants of the first company, by the negligence of their engine-driver. 23 13. Although a railway company is not responsible to one whom they employ to repair their cars, for any hurt he may receive in passing upon the company's cars to and from his work, free of charge, through the misconduct of a switchman, provided the com- pany were not in fault in his selection or retainer ; but, if he were an habitual drunkard, and that known to the company, or might have been known but for their own neglect to make proper inspec- tion of their business, and the injury resulted from this intoxica- tion, the testimony is proper to be submitted to the jury, as tending to show culpable neglect on the part of the company. 24 And when * this case was before the court, at another time, 25 it was held that a verdict for the plaintiff will not be disturbed in such a case, be- • 22 Durgin v. Munson, 9 Allen, 396. 23 Warburton v. Great Western Railw., L. R. 2 Exch. 30. '-'' Gilman v. Eastern Railw., 10 Allen, 2:'>3. 25 13 Allen, 4S3. [*530, 531] LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. cause it was. by the order of the company, the regular business of another servanl of the company to manage the switch, and on this occasion it was wrongly adjusted by the flagman, who was an habitual drunkard, ami had usually been intrusted with the man- nnit of the switch, and that his habits were known, or by the of proper care would have been known, to the corporation. Nor will ii excuse the company that due care was exercised in the original selection of such flagman, and that a proper local agent had been employed by the company with authority to hire and su- perintend such servants of the company as may be necessary. It was also held here that evidence that the flagman was commonly reputed to be an habitual drunkard, in the place where he lived, was competent evidence for the jury as tending to show that his intemperate habits should have been known to the officers of the company. 14. Where the negligence of the employer and of a fellow-servant concur in producing the injury, the employer is liable ; as where insufficient trestle-work had been built over a chasm and the en- gineer was directed not to run his engine upon it, but nevertheless did, and the fireman was killed by the failure of the trestle-work, the company was held responsible. 26 SECTION IIIo. Proof of Negligence, Sfc. 1. II In re a passenger is injured on a rail- way the prima facie presumption is, that it resulted from thi want of due care. on tlie part of the company. . nevertheless, it is competent to prove the damage occurred without their fault. '6. One who rides upon a free pass, or in the baggage-car, is not thereby deprived of his remedy against the company for in- juries received through their want of due care, providi d he was at the time a pas- senger and without fault on his own part. § 131 a. The following propositions were declared by the Su- Court of Missouri, in the case of Hannibal and St. Joseph Railroad Company v. Hattie Higgins, by Eliza Higgins, her guar- dian : 1 — 1. The statute of Missouri giving a remedy to the representa- -'• Paulmie v. Erie Railw., 5 Vrooni, 151. 1 5 Am. Law Reg. (N. S.), 715-721; s. c. 36 Mo. 418. [*531] § 131 a. PROOF OP NEGLIGENCE, ETC. 559 tives of a passenger killed upon a railway train, goes upon the same principle which before obtained in regard to injuries to passengers, that such injury or death prima facie results from want of due care in the company. 2. The presumption is not conclusive under the statute, but * may be rebutted by evidence of the cause of the injury. One who had been in the employment of the company as an engineer and brakeman, until his train was discontinued a few days pre- vious, and who had not been settled with or discharged, although not actually under pay at the time, and who signalled the train to take him up, and who took his seat in the baggage-car with the other employe's of the company, and paid no fare and was not expected to, although at the time in pursuit of other employ- ment, cannot be considered a passenger. If he would secure the immunities and rights of a passenger, he should have paid his fare and taken a seat in the passenger-car. 3. It will not deprive of his remedy a passenger who comes upon the train in that character, and is so received, that he is allowed as matter of courtesy to pass free, or to ride with the employes of the road in the baggage-car. But a passenger who leaves the passenger carriages to go upon the platforms or into the baggage-car, unless compelled to do so for want of proper accommodations in the passenger carriages, or else by permission of the conductor of the train, must be regarded as depriving himself of the ordinary remedies against the company for injuries received, unless upon proof that his change of position did not conduce to the injury. 2 2 The opinion in the case last cited seems to us to present several interesting practical points, in a very judicious and sensible light. It is sometimes difficult to deteimine, with exact precision, when a person ceases to be an employe of the road and becomes a passenger. There is perhaps no fairer test than the one presented in this case, to allow his own claim and conduct at the time, and the acquiescence of the company, to determine that question. At the time, one who has recently been in the employment of the company has a motive to claim the privileges of the employment, by passing without the payment of fare. And if he claims the privilege, and it is acceded to by the officers of the company, there is great injustice in allowing the person at the same time to hold the com- pany to the higher responsibility which it owes to passengers, from whom it derives revenue. It should therefore be made to appear, that one who passes in the character of an employe of the road was really a passenger, before he can fairly be allowed to demand the indemnity which passengers may by law require. If the person assumes one character for his advantage, and the com- [*532] 560 LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. ♦SECTION IV. Injuries by Defect* in Highways caused by Company's Works. 1 l injuries caused by leaving streets in insecure condition. •J.. Municipalities Untile primarily to lrav< Hers suffi ring injury. may rt con r indi mnity of the company. I. / wis liable to indictment. Company liable to mandamus or action. 5. Construction of a grant to use streets of a city. i'i. Such ijrant does not give the public any right to use the trucks. 7. Bound to keep highways in repair. S. Municipalities not responsible for injuries by such grant. 9. Canal company not excused from main- taining farm accommodations by rail- way interference. 10. Railway track crossing private way. 11. One being wrong-doer in opening compa- ny's gates cannot recover. § 132. 1. Where a public company has the right, by law, of taking up the pavement of the street, the workmen they employ *are bound to use such care and caution in doing the work as will protect the king's subjects, themselves using reasonable care, * from injury. And if they so lay the stones as to give such an appearance of security as would induce a careful person, using * reasonable caution, to tread upon them, as safe, when in fact they are not so, the company will be answerable in damages for any injury such person may sustain in consequence. 1 * And in a more recent case, 2 a canal and railway company, as early as the 28 Geo. 2, had acquired the right, by act of parlia- ment, to construct a canal and take tolls thereon, and had built the same across an ancient highway near St. Helens, a small village, and had made a swivel bridge across the canal for the pany accede to the claim, he ought not to be allowed the benefits of any other character, unless it is very clear such was his real position, and that this was understood by the company. The effect of free passes, and of the passenger licing out of his place in the carriages, is very fairly presented, as it seems to 08, in the opinion in this case, and the principal cases are referred to upon all the points. 1 1 )rew v. The New River Co., 6 Carr. & P. 754. And where a railway com- pany, in carrying its track across a street, left the crossing in such a state that the plaintiff's horse's t'uot was caught in the crossing and badly injured, the company were held responsible, and the fact that the crossing was made in compliance with a city ordinance and to the acceptance of the city engineer, as therein required, affords no ground of defence. Dedzell v. Ind. & Cin. Railw., 32 Ind. 45. ■ Manley v. The St. Helens Canal & Railw. Co., 2 H. & N. 810. [*533-5o7] § 132. DEFECTS IN HIGHWAYS CAUSED BY COMPANY'S WORKS. 561 passage of the highway ; and by subsequent acts, reciting the existence of such works, all persons were to have free liberty with boats to navigate the canal for the transportation of goods, and penalties were imposed upon such persons as should leave open the drawbridges. The company maintained the works and re- ceived a toll from all others using them. A boatman having opened the swivel bridge, to allow his boat to pass through, in the night-time, a person walking along the road fell into the canal and was drowned, just as the boat was coming up. When the bridge was open the highway was wholly unfenced. Two lamps had formerly been kept burning, of which one had been removed and the other was out of repair at the time. The jury found that the deceased was drowned by reason of the neglect of reasonable precautions on the part of the canal company, without any fault on his own part. Held that the defendants, having a beneficial interest in the tolls, were liable to an action, the same as any owner of private property would be for a nuisance arising there- from. That the bridge being in the possession of defendants, the action was properly brought against them and not against the boatman. That the passing the subsequent acts, recognizing the existence of the bridge, was not a legislative declaration of its sufficiency. It was further held, that even if the bridge had been sufficient at the time of its erection, it was the duty of the com- pany so to alter and improve its structure, from time to time, as at all times to maintain a bridge sufficient, with reference to the existing state of circumstances, and that tiie jury were war- ranted in considering the bridge, in the state in which it was, insufficient. 2. But it has been held, that where such companies, having the power, by law, to cut through and alter highways, either temporarily or permanently, do it in such a manner as to leave them unsafe for travellers, who in consequence sustain injury without fault on their part, that the towns or cities in which such highways or public streets are situated are primarily liable 3 for all such injuries. • Willard v. Newbury, 22 Vt. 458 ; Batty v. Duxbury, 24 Vt. loo ; Currier v. Lowell, Hi Pick. 170; Buffalo v. Ilolloway, 14 Barb. 101. In this last case an opinion is intimated, that a contractor for such works is not liable to make such precautionary erections as may be requisite to guard the public against injury, no such provision being found in his contract. But is not that a duty 36 [*538J 562 LIABILITY FOR CONTRACTORS, AGENTS, ETC PART VI. 3 And it is also true that such towns or cities may claim an in- demnity again si the railway companies who are first in fault, and in such action recover not only the damages, but the costs paid by them, and winch were incurred in the reasonable and necessary de- fence of actions brought against them on account of the defects in such company's works. 4 * And where the injury did not accrue for more than six years, it was held that the railway was still liable to indemnify the town, notwithstanding the bar of the statute of limita- tions, reckoning the cause of action as accruing at the date of the neglect ; and that it did not exonerate the company guilty of the which every one owes the public in all works which he undertakes? In Barber v. Essex, 27 Yt. 62, the following points are decided: An old highway, which a railway proposes to use for its track, is not considered as discontinued till the company have provided a substitute, or unless effected by some other definite legal act, or by an abandonment by legal authority, or nonuser. Towns are responsible to the public for the safe condition of their highways, and cannot excuse themselves from the performance of the duty by showing that a railway company, proceeding under their charter, had caused the defects complained of. The towns are bound to watchfulness upon this subject, and theirs being a primary responsibility, they cannot shift it upon the railway, whose responsibility is secondary in regard to travellers and the public generally. The towns have their remedy over against the company. See, also, to same effect, Phillips v. Veazie, 4U Maine, 96. The obligation upon the towns to make highways safe and convenient for travellers continues when they are crossed by railways at grade, except so far as the necessary use of the crossing by the railway may prevent it, and subject to such specific directions as may be given by the county commissioners. Davis v. Leominster, 1 Allen, 182. But towns are not liable for obstructions caused by telegraph poles which they have no right to remove. Young v. Yarmouth, 9 Gray, 386. The railway is also responsible for all unlawful obstructions of the highway. Parker v. Boston & Maine Railw. Co., 3 Cush. 107. But where the duty of maintaining a bridge is imposed exclu- sively upon the railway, the town is not responsible for any defects in the same. Sawyer v. Northfield, 7 Cush. 490. See, also, Jones v. Waltham, 4 Cush. 299 ; Vina! v. Dorchester, 7 Gray, 421. 4 Lowell v. Boston & Lowell Railw., 23 Pick. 24; Newbury v. Conn. & Pas. Rivers Railw., 25 Yt. 377. The recovery in these cases is allowed upon the ground, that the wrong is altogether upon the part of the company, and the town, standing primarily liable to the public for the sufficiency of the highways, and being virtual guarantors against the negligence of the railway company, may therefore recover of them an indemnity, not only for the damages they are com- pelled to pay, but also the costs and expenses incurred by them in defending bona fide against suits brought against them for the default of the company. Duxbury v. Yt. C. Railw., 26 Vt. 751, 752, 753; Harden v. Cabot, 17 Mass. Bamden v. New llav. & Northamp. Co., 27 Conn. 158. [*539] § 132. DEFECTS IN HIGHWAYS CAUSED BY COMPANY'S WORKS. 563 neglect, that they had leased their road to another company who were operating it at the time the injury occurred. 5 4. And where the statute provides that railways " shall main- tain and keep in repair all bridges, with their abutments, which they shall construct for the purpose of enabling their road to pass over or under any road, canal, highway, or other way," and the company omitted to perform the duty in the manner required for the public safety, it was held that the town, within which the road lay, were liable to indictment for not keeping it in safe repair, and that they may compel the railway company to make all such repairs as may be necessary', by writ of mandamus ; or if they have been obliged to make expenditures therein, may reim- burse themselves by an action on the case against the company. 6 5. And where a railway company were authorized by the leg- islature to construct and operate their road through the streets of a city, and the city government have assented to the location and construction upon a designated route, on certain conditions, it was held that the municipal authority had no power by resolution to annul or impair the grant to the company on account of its failure to complete the road within the time limited in the conditions an- nexed to their assent ; 7 and that such condition was not to be regarded as precedent to the vesting of the estate or franchise, but only a condition subsequent upon the non-performance of which the grantor might elect to defeat it, but that nothing short of a judicial determination would operate to divest the interest of the company. 7 * 6. Where a railway has been laid upon a public street, it does not thereby become public property, in such a sense as to entitle the public at large or other railway companies to use the track for 5 Hamden v. New H. & North. Co. & N. Y. & N. H. Railw., 27 Conn. 158. But where the company have the right to lay their rails in the street, they are not responsible for any injury resulting therefrom to others, unless they have been in fault either in laying them down or in keeping them safe. Mazetti v. New York & Harlem Railw., 3 E. D. Smith, 98; post, § 225, pi. 7. 6 State v. Gorham, 37 Maine, 451. 7 Brooklyn Central Railw. v. Brooklyn City Railw., 32 Barb. 358. But a railway company has no such interest in the street when its line is laid as to enti- tle it to maintain an injunction against another company, for laying its track in the same street, but not so as to interfere with its use by the former company. N. Y. & H. Railw. v. Forty-second Street & G. F. S. Railw., 50 Barb. 285, 309. [*540] 564 LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. the passage of carriages constructed for such use. 7 Nor will the permission of the municipal authorities for that purpose give any such right. 7 7. Where a railway company is required to construct its road so as not to obstruct the safe and convenient use of the highway, this is a continuing obligation requiring the company to so main- tain their road as to leave the highway safe and convenient for public use ; but this will not exonerate the towns from their primary responsibility. 8 8. Cities or towns are not liable for damages resulting from the proper exercise of authority in permitting railway tracks to be laid in the streets, or in raising the grade of streets, unless they exceed their lawful authority in this respect. 9 And it is here said to he a legitimate use of a street to allow a railway track to he laid in it. 9. Where a canal company had constructed a bridge as part of the farm accommodations of an adjoining land-owner which the company were bound to maintain, and a railway company by sub- sequent legislative grant had laid its track along the line of the canal, and in consequence had been compelled to alter the con- struction of the bridge so as to render it more expensive to main- tain the same, it was held the canal company were not thereby exonerated from maintaining the bridge, but were liable to the land-owner the same as before the alteration by the railway com- pany, notwithstanding any liability which might rest upon the rail- way company. 10 10. Where a railway crossed on a level a considerably frequented footpath, and there was no servant of the company at the crossing 8 Wellcome v. Leeds, 51 Me. 313. The case of Kearney v. London B. & 8. ( . Etailw., L. R. 5 Q. B. 411, presented a very unusual question. The plain- tiff while passing along the highway under a bridge of the defendants, was injured by the falling of a brick from the works supporting the bridge, which it was supposed might have become loose from the jar of the passing trains. The majority of the court held the defendants responsible, and the judgment was affirmed in the Exchequer Chamber, 6 id. 759. Here Kelly, C. B., said that the fact of the brick falling was satisfactory evidence that it had been loosened before, "and it was the duty of the defendants from time to time to inspect the bridge and ascertain that the brick-work was in good order and all the bricks well secured." 9 Murphy v. City of Chicago, 29 111. 279. 10 Ammermon v. Wyoming Land Co., 40 Penn. St. 256. [*540] § 132. DEFECTS IN HIGHWAYS CAUSED BY COMPANY'S WORKS. 565 to warn persons of the approach of the trains, the view being somewhat obstructed by the pier of the bridge, but a person before reaching the track could see nearly three hundred yards either way along the line, and the plaintiff's wife, while crossing the line at the spot was run over and killed, it was held that the fact of the company hot keeping a servant at the crossing to warn * persons of the approach of trains, was not evidence of negligence to go to the jury. 11 11. And where it was made, by statute, the duty of a railway company to maintain gates at all level crossings of highways, and to have persons to open and shut them when any one wished to pass, but at all other times they were to be kept shut, and a per- son coming along the highway when no servant of the company was present, as he should have been, to open and shut the gates, the plaintiff having waited a reasonable time opened the gates himself in order that he might be able to proceed on his journey, and in doing so was injured by the closing of the gates, which were so constructed as to fall back into their places with their own weight, it was held the action would not lie, one judge dissenting. 12 This case was decided mainly upon the ground that by the act of parlia- ment requiring the gates to be kept closed, except when opened by the servants of the company, it amounted to a virtual prohibi- tion of any one crossing the railway at any other time, and if the plaintiff found no servant of the company to open the gate, it was his duty to wait until he could find one, and seek his remedy for the delay against the company ; and being a wrong-doer in open- ing the gate, he could not recover of the company for any injury he thereby sustained. 11 Stapley v. London, Brighton, &c, Railw. Co., Law Rep. 1 Exch. 21 ; s. c. 11 Jur. (N. S.) 954. 12 Wyatt v. Great Western Railw. Co., 6 B. .& S 709 ; s. c. 11 Jur. (N. S.) 825. [*541] 566 LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. SECTION V. Liability for Injuries in the Nature of Torts. oay crossings upon a level always dangerous. ■ 11,1/ 1,1,1 excused by use of the signals r, quired by statute. ■ not recover if his oum act con- tribllti it to injury. 4. lint company liable still if they might lain avoidt d tin- injury. 5. If company omit proper signals, not liable, ■ that produce the injury. t'i. Not H"t,!i for injury to cattle trespassing, s guilty of wilful wrong. 7. Gem ml definitions of company's duty. s. Action accrues from the accruing of the injury. '.». Where injury is wanton, jury may give i r< mplary damages. 10. One who follows direction of gate-keeper excused. 11. Company responsible for injury at a crossing opened by themselves for public use. 12. The responsibility of railway companies for damages to persons crossing, mainly matter of fact, and each case depends on its peculiar circumstances. 13. Points decided in late case ; speed, negli- gence, frc. 14. The company may establish and use proper and necessary signals in the conduct of its business. 15. Duty of company in driving trains in a city. Presumptions as to negligence. 16. Company responsible for damage caused by needless blowing of steam ivhistles. § 133. 1. We have discussed the subject of this chapter, in * general, in other sections. 1 We shall here refer to some cases, where railway companies have been held liable for injuries to per- sons, in no way connected with them by contract or duty. The subject of railway crossings, 2 on a level with the highway, has been before alluded to, as one demanding the grave consideration of the legislatures of the several states. It causes always a most painful sense of peril, especially where there is any considerable travel upon the highway, and is followed by many painful scenes of mutilation and death, under circumstances more distressing, if possible, than even the accidents, so destructive sometimes to railway passengers. 2. In a case 3 where the plaintiff was injured at a railway 1 Ante, § 130, post, 193. ■ Ante, § 108. • 3 Bradley v. Boston & Maine Railw., 2 Cush. 539. Some distinction is made by the judge, in trying this case, between those cases of negligence which occur in long-established modes of business, and the case of the management of rail- way trains ; that in the former case usage, if uniform and acquiesced in by the [*542] § 133. LIABILITY FOR INJURY IN THE NATURE OF TORTS. 567 crossing, by collision with an engine, it was held that where the statute required, at such points, certain specified signals, the compliance with the requirements of the statute will not excuse the company from the use of care and prudence in other re- spects. That it is not necessarily enough to excuse the company, that they pursued the usual course adopted by engineers in such cases. The question of negligence is one of fact, in such cases, to be submitted to the jury, under all the circumstances of the case, and to be determined by them, upon their view of what prudence and skill required. 3. But when the statute requires certain precautions against accidents, and its requirements are disregarded, the party suffer- ing damage is not entitled to recover, if he was himself guilty of negligence which contributed to the damage. 4 And where the public, may amount to a rule of law ; but not in a business so recent as the management of railway trains. This view seems to be sanctioned by the Su- preme Court in revising the case. See, also, Briggs v. Taylor, 28 Vt. 185; s. c. 2 Rertf. Am. Railw. Cases, 558; Lidfield v. Old Colony Railw., 10 Cush. 562. Rut railways are not bound to make the signals required at road-crossings for the benefit of persons walking upon their track two hundred feet from the crossing. Harty v. Central Railw., 42 N. Y. 468. 4 Parker v. Adams, 12 Met. 415 ; Eckert v. Long Island Railw., 57 Barb. 555. But in this last case it was held, that one who rushes before a train to save the life of a child is not precluded from recovering for the damage suffered by the negligence of the company by reason of his own conduct; post, § 193; Macon & W. Railw. v. Davis, 18 Georgia, 679, where the question of negligence in the conductors of a railway train in passing a road-crossing, is held to be one of fact depending upon the circumstances of each particular case. Dascomb v. Buffalo & State Line Railw., 27 Barb. 221. But the omission of any statute duty by railway companies at the time and place where an accident occurs is prima facie evidence of liability. Aug. & Sav. Railw. v. McElmurry, 24 Ga. 75. In Johnson v. Hudson River Railw., 6 Duer, 633, where the plaintiff's husband was killed in the streets of the city of New York by one of defendants' freight cars in the night-time, it being very dark, and the company using neither lights nor bells to guard against accident ; it was held, that although the law required of defendants only ordinary care towards the deceased, it must be measured by the degree of peril against which such care is to be exercised, which, under the circumstances, was so extreme as -to justify the court in telling the jury that defendants were required to use every precaution in their power to insure the safety of persons passing ; and that if lights or bells would have contrib- uted to that end, they were culpable for not using them; and that in this form the question of negligence was properly submitted to the jury as one of fact. It was also held that the deceased was only bound to the exercise of ordinary care, and that his being found upon the track was not sufficient ground to pre- [*542] 5G8 LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. •plaintiff'fl farm Mas intersected by the line of a railway, and lie, with a wagon and one horse, having his son and a servant with dude the recovery. I" the case of Wakefield v. Conn. & Pass. Rivers Railw., 87 Yt. 330, it was held, that the requirements of the statute in regard to blowing the whistle and ringing the bell, a prescribed distance before crossing the highway, was a duty of the company not only in reference to travellers about crossing the track of the railway, but with reference to all persons, who being lawfully at or in the vicinity of the crossing, are exposed to accident or injury'by reason of the passing train, short of actual contact with it. And it is further said here, thai although there might be cases in which the company would be excused from a strict compliance with the statute, and might be justified in omitting the signals, in all cases of such omission, where damage ensued in consequence, the company must show that they were justified in the omission. This seems rather a loose view to be taken of a peremptory statutory requirement, that the party is to exercise a discretion when to comply. As a general rule, the party must omit any such requirement at the peril of all legal consequences. But the court seem to suppose that the statute in imposing a penalty for the " unreasonable" omission of such signals must have contemplated cases of reasonable omission. That may be so ; but it would be more satisfactory to the common mind to find such an important qualification of the leading provisions of the statute, more explicitly declared, than by so indirect an inference. We do not suppose any such construction could safely be applied to these statutes generally. It would be sure to result in a virtual repeal or disregard of the statute. It would be far more salutary to have the engineer understand that he had no discre- tion in the matter, that he must give the signals regardless of consequences. In an important case, Shaw v. Boston & Worcester Railw., 8 Gray, 45, the subject of injuries at railway and highway intersections is a good deal discussed. Post, % 133, pi. '.) & n. It is here decided that the record of the county commis- sioners stating that in their opinion no flagman at the crossing was necessary, is not competent to show due care on the part of the company in omitting that precaution. The court said it was the duty of the judge in charging the jury in regard to the precautions required to be taken by a railway company at a high- way crossing, to distinguish between such circumstances as could have been - nablv anticipated, and such as would have required extraordinary precau- tions, but were of so extraordinary a character as not to have been anticipated. It was also held a fatal variance that the proof showed the injury to have occurred some rods out of the highway where the plaintiff's horse drew the carriage by reason of being frightened by defendants' locomotive engine, the declaration charging it to have occurred while travelling in the highway, and the declaration cannot be amended after verdict so as to cure the variance. Also that the degree of care required of the company and travellers, at a railway and highway crossing, is the same, being that which men of ordinary capacity would exercise under like circumstances. The fact that a collision occurred at a railway cross- ing, and that the plaintiff was in no fault, is not proof that the defendant was in fault. As to crossing private way, see Cliff v. Midland Railw., L. R. 5 Q. B. 258. The opinion of Mettor, J., affords a valuable commentary in regard to [*543] § 133. LIABILITY FOR INJURY IN THE NATURE OF TORTS. 569 P him, drove upon a trot directly over the track at a public cross- ing, without taking the slightest precaution to ascertain whether a locomotive was coming, it was held that he was guilty of great carelessness, and that he could not recover for any damage he had sustained, and that it was immaterial whether the train was on time or not. It was also held, that the question of negligence, in a case of this character where the testimony was all one way, was one of law to be decided by the court, and could not be left to the jury. 5 The company are bound to maintain a sign-board what may be esteemed negligence on the part of the railway, which will be found in 1 Redf. Am. Railway Cases, 669. 5 Dascomb v. Buffalo & State Line Railw., 27 Barb. 221; Mackey v. New York Central Railw., 27 Barb. 528. It would seem to be the duty of one about to pass a railway to exercise watchfulness to know that a train is not approach- ing, lb. Hanover Railw. v. Coyle, 55 Penn. St. 396; Wilcox v. Rome & Watertown Railw., 39 N. Y. 358; Penn. Canal Co. v. Bentley, 66 Penn. St. 30, seems to attempt some qualification of the rule laid down in the text. The late cases all seem to require that where a traveller is crossing a railway at grade, and there are no gates or flagmen, it is his duty to stop and listen and keep a sharp lookout for trains. lb. It is the duty both of the traveller and of the railway to keep a sharp lookout, each for the peril to be avoided at a road-crossing. Pittsb. & H. W. Railw. v. Dunn, 56 Penn. St. 280; Bait. & Ohio Railw. v. Breinig, 25 Md. 378; Webb v. P. & K. Railw., 57 Me. 117; Havens v. E. Railw., 53 Barb. 328 ; Kennayde v. Pacific Railw., 45 Mo. 255 ; Ch. & Alt. Railw. v. Gretz- ner, 46 111. 74. And the traveller is not exonerated from the duty of looking up and down the track of a railway to see whether a train is approaching, before going upon the same, by reason of the company omitting to ring the bell or blow the whistle, and if his omission to do so contributed to his injury he cannot recover. Havens v. Erie Railw., 41 N. Y. 296 ; Grippen v. N. Y. Cent. Railw., 40 id. 34; Harty r. Same, 42 id. 468; Nicholson v. Erie Railw., 41 id. 525. The plaintiff cannot recover of a railway company for damages sustained at a crossing at grade, if neither himself, or his driver, exercised sufficient watchful- ness to see the signboard, which might have been done many rods before reach- ing the crossing, and neither of them listened to know whether a train was approaching before entering upon the track. Allyn v. Boston & Albany Railw., 105 Mass. 77. The court here decide, as matter of law, that the plaintiff cannot recover, because " there was no evidence from which the jury could reasonably and properly conclude that the plaintiff was in the exercise of due care." The same might as well be expressed by saying, that all the evidence tended to show that the plaintiff was not in the exercise of due care. But the Massachusetts law seems entirely settled, that the plaintiff must show affirmatively that he was in the exercise of due care when the damage accrued or he cannot recover. lb. ; Wan en v. Fitchburg Railw., 8 Allen, 227; Hickey v. Boston & Lowell Railw., 14 Allen, 429 ; Murphy v. Deane, 101 Mass. 455 ; Southworth v. Old Colony Railw., 105 Mass. 342. But it seems that where the crossing of the railway and [*544] 570 LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. and other precautions, required by statute at railway crossings, at the place where an open travelled street in a city intersects the railway, although the street has not been so laid out and established by the municipal authorities as to make the city re- sponsible for damages occasioned by defects therein, such passage being a "travelled route" within the meaning of the statute. 6 But it has been held, that the company is not liable for not con- structing an under pass for the accommodation of the public travel, on a way which was not laid out agreeably to the statute, and had not been in use by the public twenty years. 7 It is such negligence for a deaf man to drive an unmanageable horse across a railway track when a train is approaching, that he cannot recover for any damage sustained. He should wait and avoid exposure. 8 highway is arranged in such manner, that travellers cannot see or hear the ap- proaching trains by the use of care and watchfulness, it is the duty of the com- pany to use extraordinary means for -warning travellers. Richardson v. N. Y. Cent. Railw., 45 N. Y. 846. This general subject is somewhat discussed by Mr. Justice Field, in Railway Co. v. Whitton's Adm., 13 Wall. 270. " Whittaker v. Boston & Maine Railw., 7 Gray, 98. But later statutes adopt a different phraseology. 7 Northumberland v. At. & St. Law R. Co., 35 N. H. 574. 8 111. Cent. R. Co. v. Buckner, 28 111. 299. This question, both as to the care required of the company and the^erson crossing a railway, is considered and discussed, in Ernst v. Hudson River Railw., 35 N. Y. 9, arrd the following prop- osition maintained. The omission of a railway company to give the signals re- quired by the statute on the approach of a locomotive within eighty rods of a highway crossing, is a breach of duty to the passengers, whose safety it imperils, and to tlic wayfarer, whom it exposes to mutilation and death. Such a crossing is dangerous, only when the company' makes it so by propelling its engines across it : and the statute, therefore, for the protection of human life, exacts public warning of the approach of such danger. The injunction is plain and absolute, and tlie company who violates it does so at its peril. The omission of the cnst i unary signals is an assurance by the company to the traveller, that no engine is approaching from either side within eighty rods of the crossing; and he may rely on such assurance, without incurring the imputation of breach of duty to a wrong-doer. When the passer-by knows of the immediate proximity of an advancing train, whether the warning be by signals or otherwise, and, having a safe and seasonable opportunity to stop, he voluntarily takes the risk of crossing in frOnl of it, be is guilty of culpable negligence, and forfeits all claims to redress. But when the usual warning is withheld, the wayfarer has a right to assume that the crossing is safe, and that the company is not violating the law, and endanger- ing human life, by running an engine without signals. The citizen, on the public highway, is bound only to the exercise of ordinary care ; and when he is injured [*544] § 133. LIABILITY FOR INJURY IN THE NATURE OF TORTS. 571 * 4. If the plaintiff's negligence did not contribute to his injury, it will not preclude his recovering for the consequences of defend- ant's * wrong. 9 If the wrong on the part of the defendant is so by the negligence of a railroad company, it is no answer to his claim for redress, that, notwithstanding the omission of the signals, he might, by greater vigilance, have discovered the approach of the train, if he had foreseen a violation of the statute, instead of relying upon its observance. The traveller is not bound to stop on the highway, or to look up and down an intersecting railway track before crossing, when there are no signals of an approaching engine. Ordinarily, in cases of this description, the question whether the party injured was free from culpable negligence, is one of fact to be determined by the jury, under appro- priate instructions, and subject to the revisory power of the courts. Where the proof is undisputed and decisive, that the plaintiff was guilty of misconduct, and that this contributed to the injury, a nonsuit is matter of right; but it is equally matter of right to have the issue of negligence submitted to the jury, when it depends on conflicting evidence, or on inferences to be deduced from a variety of circumstances, in regard to which there is room for fair difference of opinion between intelligent and upright men. The same view is maintained and further illustrated in the subsequent case of Renwick v. New York Central Railw., 36 N. Y. 132. It seems to us these cases develop a very important and most un- questionable rule of responsibility on the part of railway companies, in regard to injuries to persons at highway crossings; i.e., that the companies, when omitting the customary and required signals before arriving at such crossings, should expect a proportionally less degree of watchfulness on the part of travel- lers. That is certainly natural, almost inevitable. In such a case the company ought not to complain, if held responsible for all consequences not the result of absolute foolhardiness. In State of Maryland v. Baltimore & Ohio Railw., 5 Am. Law Reg. (N. S.) 397, s. C 24 Md. 84, it was held, that the plaintiff cannot recover for an injury resulting from the negligence of the defendant, provided he might, himself, by the exercise of proper prudence, care, and skill, have escaped from its consequences, or where his own want of such prudence, care, and skill directly contributed to produce the damage complained of. Railways owe a higher degree of watchfulness to their passengers than to mere strangers. In the former case the utmost care and skill is required, in order to avoid in- juries; but in the latter case, only such as skilful, prudent, and discreet persons, having the management of such business in such a neighborhood, would naturally be expected to put forth. But to entitle one to recover of a railway company for an injury at a road-crossing it must appear that he was rightfully upon the highway. P. F. W. & Chicago Railw. v. Evans, 53 Penn. St. 250. 9 Kennard v. Burton, 25 Maine, 39. In the newspaper report of a recent trial in the Supreme Court of Pennsylvania, the court are reported to have charged the jury, as matter of law, that "a person about to cross a railway track [with a team] is in duty bound to stop and look in both directions, and listen be- fore crossing." It has recently been decided by the full bench Supreme Court in Massachusetts, ante, n. 4, that it is not competent for the judge to lay down any definite rule, as to the duty of the company, in regard to proper precautions in crossing highways ; that the circumstances attending such crossings are so in- [*545, 540] 572 LIABILITY FOR CONTRACTORS, AGENTS, ETC. * PART VI. wanton and moss as to imply a willingness to inflict the injury, ■ plaintiff may recover, notwithstanding his own ordinary neg- lect. 1 " Ami this is always to lie attributed to defendant, if he mighl have avoided injuring plaintiff, notwithstanding his own negli- gence. So, too, if the neglect on the part of the plaintiff is not the proximate cause of the injury, it will not preclude a recovery. 11 finitely diversified that it must be left to the jury to determine what is proper cm' and diligence in each particular case. This we apprehend is the true rule upon that subject, both as to the company and travellers upon the highway, and that it will finally prevail, notwithstanding occasional attempts to simplify the matter by definitions. The Pennsylvania case referred to is that of O'Brien v. Philadelphia, Wilmington, & Baltimore Railw., 10 Am. Railw. T. No. 10, 13. The following extracts from the charge to the jury may serve to explain the views of the court. " But if the jury find that the company were not faultless, that they did or omitted any thing that would constitute negligence as I have defined it, the next inquiry will relate to the conduct of the plaintiff. He was a carter, ami the same general principles apply to him as to the defendants. He md to pursue his business with all that regard to the safety of himself and others which prudent men commonly employ in like occupations. Did he demean himself in that manner? In answer to the Gth and 7th points on the part of the defendants, I instruct the jury that a carter, or any man having charge of a team, but who is about to cross a railroad at grade on which locomotives run, is bound to stop ami listen, and look in both directions, before he permits his team to set foot within the rails, and omission to do so is negligence on his part. This rule of law is demanded by a due regard to the safety of life and property, both his own and that which is passing on the railroad. From the diagram in evidence it i- perfectly apparent that the plaintiff could have seen the approaching train if he had looked. If he saw it, it was extreme rashness in him to allow his lead horse to advance so far, and if he did not see it, it must have been because he did not look. I state the general rule, but whether it is applicable to the plain- tiff in the circumstances which surrounded him is for the jury. A few yards on his right, some witnesses think seventy, there was a gravel train, with a locomo- tive attached, standing on one of the tracks, and liable to start any moment, and on his Left, according to his witnesses, was the omnibus in close proximity to the Crossing. Now, for these circumstances the plaintiff was in no wise responsible, and tin- question is, whether they constituted any excuse for his not looking up the road." In Brooks v. Buffalo & Niagara Falls Railw., 25 Barb. 600, it is said if one cross a railway at grade with a team, where the danger may easily be seen by looking for it, and especially where he drives upon the railway track and there stop-, looking in an opposite direction from an approaching train till it strikes him, he i> guilty of such negligence as will preclude a recovery. \V vnn v. Allard, o Watts & Serg. 524; Kerwhaker v. C. C. & Cincinnati Railw.. :; Ohio (X. s.), 172, L88. 1 Trow r. Vermont Central Railw., 24 Vt. 487; Isbell v. N. Y. & N. H. Railw. Co., 27 Conn. 393; 8. c. 2 Redf. Am. Railw. Cases, 474; Chicago & R. I. Railw. v. Still, 19 Illinois, 499. [*547] § 133. LIABILITY FOR INJURY IN THE NATURE OF TORTS. 573 5. If a railway wholly omit to give the proper signal at a road- crossing, they are not necessarily liable for injury to one crossing at that moment, whose team took fright and injury ensued. It should be shown that the omission had some tendency to produce the loss. 12 The statute requiring railway companies to make signals in all cases of crossing highways, applies to crossings above or below the grade of the highway, as well as to those at grade. 13 6. A conductor was held not liable for running the engine over an animal trespassing upon the track, unless he acted wilfully. 14 * So, too, where the train passed over slaves asleep upon the track, the company were held not liable. 15 12 Galena & Ch. Raihv. v. Loomis, 13 Illinois, 518. A railway is not liable for an injury which happens in crossing a railway, in consequence of the station- ary cars of the company, upon their track, obstructing the view of the plaintiff in his approach to the road. Burton v. The Raihv. Co., 4 Harr. 252. See also Morrison v. Steam Nav. Co., 20 Eng. L. & Eq. 267, 455; 8 Exch. 783. 13 People v. New York Central Raihv., 25 Barb. 199. 14 Vandegrift v. Rediker, 2 Zab. 185. But where the act is wrongful, the action may be against both the engineer and fireman. Suydam v. Moore, 8 Barb. 358. 15 Herring v. Wil. & R. Railw., 10 Iredell, 402. In this case, it is held that the engineer might not be chargeable with the same degree of culpability in driving his train over a rational creature, or one who seemed to be such, and in the exercise of his faculties, as in doing the same when the obstruction was a brute animal. And in the case of running over a person asleep, or a deaf-mute, or an insane person, some indulgence is, doubtless, to be extended, inasmuch as the peculiar state of the person might not be readily discoverable by those in charge of the train ; if not they would have a right to calculate that they would conduct like other rational beings, and step off the track as the engine approaches. But in East Tennessee & Ga. Railw. v. St. John, 5 Sneed, 524, it was held that the company were responsible for killing a slave asleep on the track, who might have been seen by the conductor a quarter of a mile, but who was mistaken for the garments of the laborers, and no signal given in consequence. The practice of allowing persons to walk upon a railway track is a vicious one, and one which would not be tolerated in any state or country where the railways are under proper surveillance and police. But as it now is in many parts of this country, an engineer will find some person upon his track every mile, and in some places, every few rods. If he were required to check the train at every such occurrence, it would become an intolerable grievance. If men will insist upon any thing so absurd as to be permitted to walk upon a railway track at will, they must expect that those who are bereft of sense, but preserve the form of humanity, when they chance to come into the same peril, will perish ; not so much from their own infirmities, as from the absurd practices of those who have no such infirmities. And their destruction is not so much attributable, perhaps, [*548J 57 I LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. * 7. The duty required of railways towards those who are, at the time, in the exercise of their legal rights, is the possession of to the fault of the railways, as to the bad taste, and lawlessness of public opinion, in making such absurd demands upon the indulgence of railways. And, if it be urged thai the companies might enforce their rights, and keep people of? their tracks, it would be found, we fear, upon trial, that such arguments are unsound. I'lir companies probably, could not enforce such a regulation, in many parts of the country, without exciting a perplexing and painful prejudice, to such an ex- tent as to endanger the safety of their business. The only effectual remedy will be found in making the act punishable by fine and imprisonment, as is done in England and some of the American states, and in a strict enforcement of the law upon all offenders. Every one can see that, if sane persons were excluded from the railway, the sight of a person upon the track would at once arrest the attention of conductors of trains, and there would be little danger comparatively of the dot ruction of any one, whereas now, persons bereft of sense are almost sure to be run over. Persons are so frequently upon the track that the conductors have no alternative but to push their trains upon them. For such persons are, not unfre- quently, so reckless, that, if they could alarm engineers, they would be found trying such experiments every hour. One who is engaged in sawing wood upon the track of a railway by direction of the superintendent of the company, and is injured by the engine of another company, lawfully upon the track, can- not recover of the latter company, although their engineer was guilty of careless- ness, being himself also in fault. Railroad v. Norton, 24 Penn. St. 465. In Ranch v. Lloyd & Hill, 31 Penn. St. 358, it was decided, that where the state owned the railway, and its regulations were prescribed by the canal commission- ers, and the state supplied the motive power, and allowed persons to use their cars, furnishing a conductor, that such conductor is the responsible person in charge of the train throughout its entire route. That the agencies provided for him, whether of steam or horse power, become his agencies, and the ultimate responsibility in regard to their proper conduct, so far as strangers are con- cerned, rests upon him and upon the owners of the train, whose servant he is. And where it was the practice to have cars pass over a portion of the road by the force of gravity, and after arriving at a given point, to be drawn by horse power to the storehouses, and the conductor left them standing across the usual crossing of the highway and went to his breakfast, and during his absence a lad, seven years old, attempted to crawl under the cars, in returning from an errand on which he had been sent, and by means of the starting of the train by the horse power, furnished by a stable-keeper, by contract with the state, and driven by the proprietors 1 drivers, was seriously injured, it was considered that the con- ductor and his employers were responsible for the injury. It was also decided that where ears were so left standing in the highway unnecessarily, it is not a question to be submitted to the jury, whether they constitute an unlawful obstruc- tion. As matter of law, such obstruction, if it could be avoided, is unlawful. In smh a ease, no greater care and prudence is required to be exercised by such child than it is reasonable to expect of one of such tender years. See Galena & Ch. Railw. v. Jacobs, 20 111. 478. [*549] § 133. LIABILITY FOR INJURY IN THE NATURE OF TORTS. 575 the most approved machinery, and such care, diligence, and skill in using it as skilful, prudent, and discreet persons would be ex- pected to put forth, having a proper regard to the interests of the company, the demands of the public, and the interests of those having property along the road, exposed to fire, and to injury in other modes. 16 They are, at least, bound to .exercise as much care as if they owned the property along the line, i. e., what would be regarded as the duty of a prudent owner under all the circumstances. 17 It has been held that the company, when their * road passes the thoroughfares of a city, are bound to use extraor- dinary care not to injure persons in the streets. 18 8. The general rule, in regard to the time of the accruing of the action is, that when the act or omission causes direct and immediate injury, the action accrues from the time of doing the act, but where the act is injurious only from its consequences, as by undermining a house or wall, or causing water to flow back at certain seasons of high tide or high water, the cause of action accrues only from the consequential injury. 19 In the case 16 Baltimore & Susq. Railw. v. Woodruff, 4 Maryland, 242, 257. And it is said in Mersey Docks v. Gibbs, Law Rep. 1 H. Lds. 93, that if one would be responsible for injury resulting from a cause of mischief, of whose existence he has knowledge, he will be equally so if he is negligently ignorant of its existence. 17 Quimby v. Vermont Central Railw., 23 Vt. 387. And where one was injured by the company's train, at a road-crossing, by collision between the com- pany's locomotive and the carriage in which the plaintiff was riding, it was held, that the carelessness of the driver of the carriage cannot be shown by common reputation. Nor can the occupation of the plaintiff, and his means of earning support, be shown, with a view to enhance the damages for such an injury, unless specially averred in the declaration. Baldwin v. Western Railw., 4 Gray, 333. In O'Brien v. Philadelphia, Wilmington, & Baltimore Railw., 10 Am. Railw. Times, No. 13, where plaintiff was injured at a railway crossing a highway, by collision with his team, Mr. Justice Woodward, of the Pennsylvania Supreme Court, charged the jury, that the plaintiff was only entitled to compensatory damages, there being no pretence of any intentional wrong, or tlagrant rashness, on the part of the agents of the company. 18 Wilson v. Cunningham, 3 Cal. 241 ; post, pi. 15, n. 31, 32, 33. 19 Roberts v. Read, 16 East, 215. Where the act complained of was mali- ciously opposing plaintiff's discharge as an insolvent, and the act was more than six years before action brought, but the consequent imprisonment continued within the six years, it was held the cause of action was barred. Violet r. Simp- son, 30 Law Times, 114; s. c. 8 El. & Bl. 344. The admissions of the corpo- rators, or of the president, are not sufficient to remove the bar of the statute of limitations, in favor of a private corporation. Lyman v. Norwich University, 28 Vt. 560. [*550] 576 LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. of Backhouse v. Bonomi, 20 it was held that no cause of action accrued from defendant's excavation in his own land, until it caused damage to the plaintiff's; and the case of Nicklin v. Wil- liams. -' as far as it conflicts with this, was held not maintainable. The cases were examined very thoroughly in the course of the discussion of this case before the Queen's Bench, which held that the cause of action accrued from the act of defendant, and in the Exchequer Chamber, where that judgment was reversed, and finally in the House of Lords, where the judgment of the Ex- chequer Chamber was affirmed. The law on this point may now be considered settled in the English courts. Where the issue is in regard to the prudent use of a highway by the company, it is * not competent to give evidence of the mode of using the same by the company at other times. 22 9. As a general rule, in the English practice, and in most of the states of the Union, in actions for torts, where the defend- ant's conduct has been wanton, or the result of malice, the jury are allowed to give damages of an exemplary character, and the term vindictive even is sometimes used. 23 But this is questioned by some writers, and in many cases. 24 10. Where a level crossing over a railway is protected by a gate, established by the company and tended by one of its ser- vants, in conformity with the law, those having occasion to cross the track, and who are injured by an attempt to cross when. the gate-keeper assures them the line is clear, may recover dam- ages of the company. It is the implied duty of the gate-keeper to know when trains are due, and to give correct information in that respect, and not open a gate for passage across the track unless he knows no duly advertised train is due. And if a train 20 9 Ho. Lds. 503; s. c. El., Bl. & El. 646; Id. 622; 7 Jur. (N. S.) 809; s. c. .". Jur. (N. S.) 1345; 4 id. 1182. - 1 L0 Exch. l'59.' 52 Gahagan v. Boston & Lowell Railw., 1 Allen, 187. - . : ick on Dam. 38, 98, 454 ; post, §§ 176, 197. In the case of Sbaw v. Boston & Worcester Railw., ante, n. 4, where the plaintiff's husband was killed, by tin- same collision, and she was shown to have had a family of young children, and (o be without sufficient property for their support, it was held to be error in the court not to charge the jury, when specially requested so to do, that these facts could not be considered by them in estimating damages. '' Appendix to Sedgwick on Dam. 609 ; Varillat v. N. Orleans & Car. Railw., 10 La. Ann. 88; Taylor v. Railw. Co., 48 N. H. 304. § 133. LIABILITY FOR INJURY IN THE NATURE OP TORTS. 577 not advertised to the gate-keeper, or at a time not advertised to him, is allowed to pass, whereby injury accrues to those hav- ing just occasion to pass the track, it is the fault of the com- pany. 25 11. And where a railway company make a private crossing over their track, at grade, in a city, and allow the public to use it as a highway, and station a flagman there to warn persons of the approach of trains, they will be held responsible in damages to any one, who, in the exercise of proper care, is induced to cross by signal from the company's flagman that it is safe, he being damaged by collision with approaching trains, through this neg- ligence of the flagman. 26 12. In the English courts, the cases in regard to responsibility on the part of the companies for injuries at the crossings of high- ways * and private ways, do not seem always entirely consistent with each other, the rule being never to disturb a verdict where the damages are at all reasonable, provided there was any proof, although the slightest, of the omission of duty on the part of the company's servants, and provided also that the plaintiff was not himself in fault. In two recent cases, there were no watchmen or gate-tenders present, at crossings of public ways ; and in both instances foot-passengers were run down by passing trains in crossing. In one case, 27 there seemed no specific omission by the company, and the court held them not liable ; in the other 25 Lunt v. London & N. W. R. Co., Law Rep. 1 Q. B. 277; s. c. 12 Jur. (N. S.) 409. 26 Sweeny v. Old Colony & Newport Railw., 10 Allen, 368. The company is not bound to keep a flagman at road-erossings to warn travellers, unless in ex- ceptionally dangerous places. But by keeping a flagman at a particular crossing the company may have excited such expectation of being warned of danger, as to make it negligence to withdraw such flagman. Ernst v. Hudson Riv. Railw., 39 N. Y. 61. See also Beisiegel v. N. Y. Cent. Railw., 40 N. Y. 9 ; s. c. 1 Redf. Am. Railw. Cases, 648; Grippen v. Same, id. 34. The fact that a crossing has remained for many years without any protection, and no complaint has been made by the municipal authorities or any demand made for a gate or flagman, or any other protection to travellers, is proper to be considered in estimating the duty of the company in that respect, although not decisive. The duty of the company is to be decided by the jury, under proper instructions, from a consideration of all the facts. But if there is no evidence of negligence, or it is insufficient, the ver- dict finding it will not be sustained. Comm. v. B. & W. Railw., 101 Mass. 201. 27 Stubley v. London & N. W. Railw., Law Rep. 1 Exch. 13. vol. i. ' L ,, ' ) -'J 578 LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. case, 2s the gates were partly open, contrary to the statutes, and the court refused to set aside a verdict against the company. 13. In a late case.'-' where the duty of railways at level road- cro8sings is considerably discussed, it is declared that the railway has the right of way before all others, and that negligence is not to be presumed from rate of speed alone. It is also here declared, that the party injured is not to be presumed innocent of all fault, but that fact must be proved, either by direct evidence or the cir- cumstances attending the accident. 14. Where one was thrown from his carriage at the intersection of the railway and highway, his horse being rendered unmanage- able by the sounding of the whistle as a signal for starting the train, it was held that railways had the right to establish and use necessary and proper signals for the conduct of their business ; that this should be done with reference to the convenience of others as well as themselves ; and whether the company fail in so doing must be left to the jury in each case, except so far as public use and convenience have settled the matter, which may be shown by evidence. 30 15. Where a stranger is injured by a passenger train the pre- sumption is in favor of the carriers, and the party injured must prove negligence. 31 The carrier by railway is bound to exercise such care and watchfulness in moving trains about a city, as a due regard to the despatch of his own business and the safety of those in the streets will fairly justify or require. 32 But where one exposes himself recklessly, as by being in a car house without the knowledge of the company, or attempts to cross the railway track, when the train is within forty feet, he cannot recover. 33 29 Stapley v. London B. & So. Coast Railw., L. R. 1 Exch. 21 ; s. p. Wanless v. The North Eastern Railw., L. R. 6 Q. B. 481. M Warner v. New Y. Central Railw., 44 N. Y. 465. 30 Hill v. Tort. & Rochester Railw., 55 Me. 438. The rule of law and the mode of trial applicable to this class of cases are here considerably discussed. Passenger carriers by steamboat do not owe the same degree of care to other vessels to avoid collision, which they do to their passengers. P. W. & Bait. Railw. v. Kerr, 25 Aid. 521. See 1 Redf. Lead. Railw. Cases, 648, 669, et seq. 31 Baltimore & Ohio Railw. v. Bahrs, 28 Md. 647. 12 Bannon v. Baltimore & Ohio Railw., 24 Md. 108. The fact that the person injured was an infant, will not affect the duty of the company. lb. n Lehey v. Hudson R. Railw., 4 Rob. (N. Y.) 204; Schwartz v. Same, id. 347. See also Edgerton v. N. Y. & N. H. Railw., 39 N. Y. 227. [*552] §134. MISCONDUCT OF OPERATIVES SHOWN BY EXPERTS. 579 16. In one case u the»court very properly held the company re- sponsible where the engineer, near a road crossing, negligently or maliciously let off steam, whereby a person's horses about passing the crossing were frightened, and he thereby received injuries. SECTION VI. Misconduct of Railway Operatives shoivn by Exjjerts. 1. The management of a train of cars is so far matter of science and ait, that it is proper to receive the testimony of experts. 2. In cases of alleged torts company not bound to exculpate. 3. So, too, the plaintiff is not bound to pro- duce testimony from experts. 4. The jury are the final judges in such cases. But omission to produce testi- mony of experts will often require expla- nation. n. 6. General rules of law in regard to the testimony of experts. § 134. 1. The conduct of a railway train is not strictly matter of science perhaps. Its laws are not so far defined, and so ex- empt from variation, as to be capable of perfect knowledge, like those of botany and geology, and other similar sciences, or even those of medicine and surgery perhaps, whose laws are subject to more variation. 1 But they are nevertheless so far matters of skill and experience, and are so little understood by the com- munity generally, that the testimony of inexperienced persons in regard to the conduct of a train, on a particular occasion, or under particular circumstances, would be worthy of very little reliance. They might doubtless testify in regard to what they saw, and what appeared to be the conduct of the operatives, but those skilled in such matters might, as experts in other cases are * allowed to do, express an opinion in regard to the conduct of the train, as shown by the other witnesses, and how far it was according to the rules of careful and prudent management, and what more might, or should have been done, consistently with 34 Toledo W. & Western Railw. v. Harmon, 47 111. 208. This case illustrates a very common nuisance, which has attracted considerable attention in some parts of the country, where the sick, and even well persons, at night, suffer very seri- ous annoyances, from the continuous ring of steam whistles, done more for the amusement of the engineers than from any absolute necessities of the business. 1 Quimby v. Vermont Central Railw., 23 Vt. 394, 395. [*553] 580 LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. the safety of the train, in the particular emergency. 2 But where the plaintiff, who claimed damages on account of the misconduct of a flagman at a railway crossing, had attempted to prove that he was a careless and intemperate person, it was held that the company might show that he was careful, attentive, and tem- perate, and that these facts might be proved by those who had seen his conduct, and need not be shown by experts. 3 2. But a railway company, when sued for misconduct, are not bound, in the first instance, ordinarily, to show, by the testimony of experts, that they were guilty of no mismanagement. But in the case of an injury to passengers, the rule is otherwise. 4 3. And it has been said, that one who brings an action against a railway founded upon negligence and misconduct, is not bound in opening his case, to show, that by the laws and practice of railway companies there was mismanagement in the particular case. If he sees fit to trust that question to the good sense of the jury, he may. 5 4. But it is obvious, that in cases of this kind, although the jury are ultimately to determine, upon such light as they can obtain, and will be governed a good deal by general principles of reason based upon experience, and that the testimony of wit- nesses, unskilled in the particular craft, will doubtless have a con- siderable influence in establishing certain remote principles, by which all men must be governed, in extreme cases, neverthe- less, in that numerous class of cases, in courts of justice, which have to be determined upon a nice estimate and balance of con- flicting testimony, the opinion of experienced men in the par- ticular * business, must be of very controlling influence. And it is very well understood, that generally, the fact that such evidence 2 Illinois Central Railw. v. Reedy, 17 111. 580, 583. Caton, J. : " The burden of proof is on the plaintiff, and it is for him to show, by facts and circum- stances, and by those acquainted with the management of trains, who could speak nnderstandingly on the subject, that it was practicable and easy to have avoided the collision, and that, in not doing so, those in charge of the train were guilty of that toeasure of carelessness, or wilful misconduct, which the law requires to establish the liability. 1 ' 3 Gahagan v. Boston & Lowell Railw., 1 Allen, 187. 4 Post, j 192 ; Galena & Chicago Railw. v. Yarwood, 17 111. 509. 5 Quimby v. Vermont Central Railw., 23 Vt. 394, 395. Evidence of the good or bad habits of servants has sometimes been received in cases of alleged negligence ; but in general no such evidence is admissible, since the master is re- [*554] § 134. MISCONDUCT OF OPERATIVES SHOWN BY EXPERTS. 581 is not produced, unless the omission is explained, will tend to raise a presumption against the party. 6 sponsible for what his servant does, and not for what he might have been expected to do. Hays v. Meller, 11 Law Reg. (N. S.) 370; Tenny v. Tuttle, 1 Allen, 185. 6 Murray v. Railroad Company, 10 Rich. (S. C.) 227. As we find few cases in the books bearing upon this general question, in regard to railways, we may refer to analogous subjects where the question has arisen. Nautical men may testify their opinion, whether, upon the facts proved by the plaintiff, the collision of two ships could have been avoided, by proper care on the part of defendants' servants. Fenwick v. Bell, 1 C. & K. 312. So, too, in regard to the proper stowage of a cargo. Price v. Powell, 3 Comst. 322. So a master, engineer, and builder of steamboats, may testify his opinion, upon the facts proved, as to the manner of a collision. The Clipper v. Logan, 18 Ohio, 375; Sills v. Brown, 9 C. & P. 601. It has been held, that even experts may not be called to express an opinion, whether there was misconduct in the particular case on trial, as that is the province of the jury, but that they may express their opinion upon a pre- cisely similar case, hypothetically stated, which seems to be a very nice distinc- tion, and which is combated in a very sensible note to Fenwick v. Bell, 47 Eng. Com. Law R. 312. The opinion of Lord Ellenborough, in Beckwith v. Sydebo- tham, 1 Camp. 116, 117, that where there is a matter of skill or science to be decided, the jury may be assisted by the opinion of those peculiarly accpiainted with it, from their professions and pursuits, seems to us more just and wise. We have always regarded the testimony of experts, as a sort of education of the jury upon subjects in regard to which they are not presumed to be properly instructed. The distinction we make upon the subjects, where we allow the testimony of experts, and where we do not, shows this. The nearer the testimony comes to the very case in hand, the more pertinent and useful. And the finesse of keep- ing the very case out of sight by name, but describing it by allegory, in asking the opinion of the experts, is scarcely equalled by the device of certain species of birds, who imagine themselves invisible to others because they are so to them- selves. It is not unlike asking a witness in regard to the genuineness of hand- writing, in dispute before a jury, and which is to be determined by them, and this is always allowed without question. And in all such questions, there is likely to be so much disagreement among the experts, as to leave the jury a sufficient duty to perform. But the more common practice is according to the rule in Sills v. Brown. In an action against a railway company for carrying their road through plaintiff's pasture, throwing down his fences, and scattering, frightening, and injuring his cattle, it was held that an experienced grazier is competent to testify as an expert in regard to the state of cattle and to causes affecting their weight and health on a supposed state of facts. But that Such per- son could not express an opinion upon the facts proved in the particular case, on the point to be determined by the jury. Baltimore & Ohio Railw. v. Thompson, 10 Md. 76. In Webb v. Manchester & Leeds Railw., 4 Myl. & Cr. 116; s. c. 1 Railw. C. 576, a point involving questions of practical science being in dispute, and the testimony conflicting, it was referred to an engineer for his opinion, and his conclusion, * in regard to the facts, adopted and made the basis of the order of [*555] 582 LIABILITY FOR CONTRACTORS, AGENTS, ETC. PART VI. court. In the case of Seaver v. Boston & Maine Railw. Co., 14 Gray, 466, after several experts called by the plaintiff had testified, upon a statement of facts and circumstances of the accident, what in their opinion threw the cars from the tracks, the defendants were permitted to ask a machinist who had been connected for many years with railways, and with the running of cars and engines upon tin in. ami who was in the cars at the time of the accident, and saw the occur- and all the attending circumstances, what in his opinion threw the cars from the track, and it was held no ground of exception. We had occasion, in our book on Wills, pt. 1, § 15, pp. 135-159, to examine the subject of the testi- mony iif experts upon the question of mental soundness in all its bearings. Many of the principles there laid down, and especially the course of practice, will apply to the general bearing of this class of testimony in other cases. [*555] § 135. RAILWAY DIRECTORS. — EXTENT OF THEIR AUTHORITY. 583 CHAPTER XXI. RAILWAY DIRECTORS. SECTION I. Extent of the Authority of Railway Directors. 1. Notice to one director, if express, sufficient. 2. Applications to the legislature for enlarged powers, and sale of company's works, require consent of shareholders. 3. Constitutional requisites must be strictly followed. 4. Directors, or shareholders, cannot alter the fundamental business of the company. 5. Inherent difficulty of defining the proper limits of railway enterprise, n. 9. Opinion of Lord Lsmgdale, and review of cases on this subject. 6. An act ultra vires can only be confirmed by actual and not by constructive assent. 7. The directors of a trading company may give bills of sale in security for debts contracted by them. 8. Directors cannot bind company except in con fbnu ity with charter. 9. Company cannot retain money obtained by fraud of directors. 10. Bat it must appear the plaintiff ivas mis- led without his own fault. 11. Company, by adopting act of directors, are liable to make recompense. 12. A prospectus and report should contain the whole truth. 13. Directors cannot issue shares to procure votes and control corporation. 14. What will amount to fraud in the reports of the company. 15. Directors responsible for fraudulent acts and representations. 16. Extent of power of directors. 17. Represent the company as to the em- ploye's. 18. Court of equity will not require a useless or injurious act, even to remedy a pro- ceeding ultra vires. 19. If the corporation knowingly accept the avails of a contract, it will amount to ratification, n. 25. Notice. Estoppel. § 135. 1. We have elsewhere stated, in general terms, the power of the directors of the company to bind them. 1 The board of directors ordinarily may do any act, in the general range of its business, which the company can do, unless restrained by the charter and by-laws. 2 Notice to one of a board of directors, in 1 Ante, § 113; post, § 140. 2 Whitwell, Bond & Co. v. Warner, 20 Vt. 425 ; s. c. 2 Redf. Am. Railw. Cases, 340. But the general agent of such a company, who performs the daily routine of the business of the company, cannot bind them beyond the scope of his ordinary duties. Hence the law agent of a joint-stock insurance company cannot bind the company by his false representations as to the state of its finances. Burnes v. Penell, 2 H. L. Cas., Clark & F. (N. S.) 497. But where the directors of the [*556] 58-4 RAILWAY DIRECTORS. PART VI. ♦the same transaction, or express notice, is, in general, notice to the company. But the fact that one of the firm is a director in a banking company, but takes no active part in the business of the bank, is no notice to such bank of the dissolution of such part- nership, or the retiring of one of its partners. 3 2. But it is said the directors of a corporation have no authority, without a vote of the shareholders, to apply to the legislature for an enlargement of the corporate powers. 4 And it was held, that the managing directors of a joint-stock company, who had power to lease the works of a company, could not, in the lease, give an option to the lessee, to purchase, or not, at a price fixed, the entire works of the company, at any time within twenty years, and that such a contract must be ratified by every member of the company to become binding upon them. 5 3. And where the deed of a joint-stock company enables the majority to bind the company, by a resolution passed in a certain company make such false representations as to the state of the finances of the com- pany to enhance the price of stocks, they are liable to an action at the suit of the person deceived, or to criminal prosecution ; and transfers of stock, made upon the faith of such representations, will be set aside in equity. lb. Lord Campbell said, it was not necessary the representation should have been made personally to the plaintiff. See, also, Soper v. Buffalo & Roch. Railw., 19 Barb. 310. But where the charter of a railway company, or the general laws of the state, require the ratification of a particular contract, by a meeting of the shareholders, held in a prescribed manner, such contract, assumed by the directors only, does not bind the company, and a court of equity will not hesitate to enjoin its performance by the company at the suit of any dissenting shareholder. Zabrlskie v. C. C. & C. Railw., 10 Am. Railw. Times, No. 15; s. c. 23 How. (U. S.) 381. Where a tariff of fares of freight and passengers upon a railway is established and posted up by the president of the company, and is acted upon in transacting the busi- ness of the company without objection, the consent of the corporation will be presumed. Hilliard v. Goold, 34 N. H. 230. 3 Powles v. Page, 3 C. B. 16.; Dunham v. Troy Union Railw., 40 N. Y. (3 Keyes) 543. But the secretary of a railway company cannot bind the com- pany by admissions. Bell v. London & N. W. Railw., 15 Beav. 548. Nor can the directors bind the company by their declarations, unless connected with their acts, as part of the res gestce. Soper v. Buffalo & Roch. Railw., 19 Barb. 310. Notice of process to two directors of a canal company is good notice to the com- pany, and will bind it, although never communicated to the board. Boyd v. Chesapeake & Ohio Canal Co., 17 Md. 195. 4 Marlborough Manufacturing Co. v. Smith, 2 Conn. 579. '' Clay v. Rufford, 5 De G. & S. 768 ; s. c. 19 Eng L. & Eq. 350. [*557] § 135. EXTENT OF THEIR AUTHORITY. 585 manner these formalities must be strictly complied with, or the minority will not be bound by the act. 6 * 4. So, too, where the directors, or even a majority of the share- holders, assume to enter into a contract, beyond the legitimate scope of the objects and purpose of the incorporation, the contract is not binding- upon the company, and any shareholder may restrain such parties by injunction out of Chancery, from applying the funds of the company to such purpose, however beneficial it may promise to become to the interests of the company. This is a subject of vast concern to the public, considering the large amount of capital invested in railways, and the uncontrollable disposition which seems almost everywhere to exist, in the utmost good faith, no doubt, to improve the business of such companies, by extending the lines of communication, and even by the virtual purchase of other extensive works more or less nearly connected, either in fact or in apprehension, with the proper business of the com- pany. In an English case before the Master of the Rolls, it was held, that where a railway company were required by their charter to keep up a ferry accommodation between certain points, and for that purpose were obliged to have a much larger number of steamboats on certain days than upon ordinary occasions, they were not acting ultra vires in employing the steamboats for excur- sions to a point beyond the ferry and back, when not required for the purposes of the ferry. 7 The learned judge thus defined the powers of railway companies. After saying that if every share- 6 Ex parte Johnson, 31 Eng. L. & Eq. 4S0. One railway company cannot, without the permission of parliament, purchase stock in other railway companies. Salomons v. Laing, 12 Beav. 339, 377 ; s. c. 6 Railw. C. 289. In the case of Ernest v. Nichols, 6 Ho. Lds. 401 ; s. c. 30 Law Times, 45, decided in the House of Lords, in August, 1857, the subject of the power of the directors of a joint-stock company to bind the company, is discussed very much at length, and the conclusion reached, as in some former cases (Ridley v. Plymouth, &c. Co., 2 Exch. 711, and some others), that the directors could execute no binding con- tract on behalf of the company, except in strict conformity to the deed of settle- ment by which the company was constituted ; and that it was no excuse for the other contracting party to say he was ignorant of the provisions of that deed. It was his folly to contract with a director or directors, under such ignorance, and he must be content to look to those with whom he contracted. 7 Forrest v. Manchester S. & L. Railw., 30 Beav. 40; 7 Jur. (N. S.) 749; s. c. affirmed in Court of Chancery Appeal, id. 887, but upon the ground that the suit was illusory, and not in fact the suit of the plaintiff, but of a rival com- pany. [*558] 586 IiULWAY DIRECTORS. PART VI. holder but one assented, the company could not carry on a trade perfectly distinct from that for which they were constituted; "it is impossible," said the Master of the Rolls, " for them to set up a brewery, — they cannot carry on a -trade such as managing a I company." — " And if this were the case of a railway com- pany embarking in the formation of a packet company, for the • purpose of carrying passengers between two places, or even for the mere purpose of making excursions, I should be of opinion it was not justified. But 1 am of opinion, that no capital of the com- pany is embarked expressly and solely for the purpose of making excursion trips." And in the Supreme Court of the United States 8 it has been decided, that separate railway corporations had no right to consolidate their roads into one, and put them under one management, which seems to us a very questionable proposition, to say the least, since such a combination of management is ob- viously the only thing which will be adequate to produce the kind and degree of concentration of effort and management in the car- rying forward of railway enterprises in this country, which will make them either remunerative or useful to the public. And as there is no national supervision of these vast interests, we must find it either in the discretion of railway directors and managers, or in some new constitutional provisions in the national govern- ment, adequate to the exigency. But the proposition that such companies cannot establish a steamboat line in connection with their business, and that their joint notes given for the purchase of boats cannot be enforced, is unquestionable. 8 5. There can be no doubt the courts of equity hold some rightful control over these speculative schemes and enterprises. But they lie so deeply entrenched in the general spirit of the age, and re- ceive so much countenance and sympathy from kindred enterprises, in almost all the departments of business, that it often becomes extremely difficult, if not impossible, to fix any well-defined and practicable limits to the operations of railway companies, that shall not allow them, on the one hand, the power of indefinite extension, and overwhelming absorption of kindred enterprises, or which will not be regarded, on the other, as a denial of fair liberty and free scope to carry out the just objects of their creation. We have thought that we could not afford a more just and unexceptionable s Pearce v. M. & t. & P. & I. Raihv., 21 How. 441. But see Rut. & Bur. Pvailw. v. Proctor, 2'J Vt. 93, 95. [*5."!>] § 135. EXTENT OP THEIR AUTHORITY. 587 commentary upon this difficult and important. subject, than in the language of one of the most sober, discreet, and learned of the English equity judges, Lord Langdale, M. R. 9 9 Colman v. The Eastern Counties Railw. Co., 10 Beav. 1 ; s. c. 4 Railw. C. 513. The managing directors of a railway company, with the view of increasing the traffic on their line, entered into a contract with a steam-packet company, that they would guarantee the proprietors of the steam-packet company a mini- mum dividend of £."> per cent on their paid-up capital until the company should be dissolved, and that, upon a dissolution, the whole paid-up capital should be returned to the shareholders in exchange for a transfer of the assets and proper- ties of the steam-packet company. One of the shareholders filed a bill on behalf of himself and all other shareholders who should contribute, except the directors, against the company and the directors, and obtained an injunction, ex parte, to restrain the completion of the contract: Held, on motion to dissolve the injunc- tion, that an objection for want of parties to a suit so framed was not sustainable : That directors have no right to enter into or to pledge the funds of the company in support of any project not pointed out by their act, although such project may tend to increase the traffic upon the railway, and may be assented to by the majority of the shareholders, and the object of such project may not be against public policy : That acquiescence by shareholders in a project for however long a period, affords no presumption that such project is legal : That an objec- tion stated by affidavit and remaining unanswered, that the plaintiff was proceed- ing at the instigation and request of a rival company, did not deprive him of his right to an injunction, and the motion to dissolve the injunction was refused, with costs: The learned judge said: "To look upon a railway company in the light of a common partnership, and as subject to no greater vigilance than common partnerships may be, would, I think, be greatly to mistake the functions which they perform, and the powers of interference which they exercise with the public and private rights of all individuals in this realm. We are to look upon those powers as given to them in consideration of a benefit, which, notwithstanding all other sacrifices, is on the whole hoped to be obtained by the public ; but the public interest being to protect the private rights of all individuals, and to save them from liabilities beyond those which the powers given by the several acts necessarily occasion, those private rights must always be carefully looked to. I am clearly of opinion, that the powers given by an act of parliament like that which is now in question, extend no further than expressly stated in the act, except where they are necessarily and properly acquired for the purposes which the act has sanctioned. How far those powers may extend which are necessarily or conveniently to be exercised for the purposes intended by the act, will very often be a subject of great difficulty. We cannot always ascertain what they are ; ample powers are given for the purpose of constructing the railway ; ample powers are given for the purpose of maintaining the railway ; ample powers are also given for the purpose of doing all those things which are required for the proper use of the railway ; but I apprehend that it has nowhere been stated that railway companies have power to enter into transactions of all sorts and to any extent. Indeed it is admitted, and very properly admitted, that they have not [*559] 588 RAILWAY DIRECTORS. PART VI. * G. In an English case, 10 it was declared by the Court of Chancery that the directors of the company were restricted, as to a rijjit to enter into new trades and new businesses not pointed out by the act; but it is contended that they have a right to pledge the funds of the company, without any limit, for the encouragement of other transactions, however various and extensive, provided only they profess that the object of the liability occa- sioned to their own shareholders by such encouragement is to increase the traffic upon the railway, and thereby the profit to the shareholders. Surely that has nowhere been stated; there is no authority for any thing of that kind. What has been stated is, that these things to a small extent have frequently been done since the establishment of railways. Be it so ; but unless what has been done can be proved to be in conformity with the powers given by the special acts of parliament, they do not, in my opinion, furnish any authority whatever. To suppose that the acquiescence of railway shareholders, for the last fifteen years, in any transaction conducted by a railway company, is any evidence whatever of their having a lawful right to enter into it, is, I think, wholly to forget the frenzy in which the country has been for the last fifteen or sixteen years, or thereabout. There is no project, however wild, which has not been encouraged by some one or more of these companies. There is no project, however wild, which the share- holders, or the persons liable in respect of those companies, have not acquiesced in, from one cause or another, either from cupidity and the hope of gaining ex- traordinary profits beyond their first anticipations, or from terror of entering into a contest with persons so powerful. In the absence of legal decisions, I look upon the acquiescence of shareholders in these transactions as affording no ground whatever for the presumption that they may be in themselves legal." The case was afterwards mentioned to the court, on behalf of the defendants, when his lordship stated, that the injunction was only meant to refer to the guaranty pro- posed to be given, and the case made by the bill ; but was not intended to affect any arrangement which the directors might enter into with any steam-packet company respecting the rates and tolls to be charged on the railway. In Salomons v. Laing, the same learned judge said (12 Beav. 339, 377 ; s. c. 6 Railw. C. 301) : " A railway company, incorporated by act of parliament, is bound to apply all the moneys and property of the company for the purposes directed and provided for by the act of parliament, and not for any other purpose whatever. When the expenses are paid, and the public purposes directed and provided for by the act of parliament, — which, in truth, was the motive and inducement for granting the extraordinary powers given by all these acts of parliament, — when these purposes are fully performed, any surplus which may remain after setting apart the sum to answer contingencies, may, if not applied in 10 Stanhope's case, Law Rep. 1 Ch. App. 161 ; s. c. 12 Jur. (N. S.) 79, re- versing the decision of the Master of the Rolls in s. c. 11 Jur. (N. S.) 872; Lord Belhaven'a case, 3 De G., J. & S. 41; s. c. 11 Jur. (N. S.) 572, is here denied, and Spackman's case, id. 207, approved. See also Houldsworth v. Evans, L. R. 3 Ho. Lds. 263 ; ante, § 42, pi. 4, and n. ; Spackman's case affirmed in the House of Lords, L. R. 3 Ho. Lds. 171 ; post, in note 13. [*5G0] § 135. EXTENT OF THEIR AUTHORITY. 589 * the extent of their authority to bind the members, by the terms of the deed of settlement or charter, or fundamental constitution enlarging, improving, or repairing the works, be divided among the shareholders. The dividends, which belong to the shareholders, and are divisible among them, may be applied by them severally as their own property, but the company itself, or the directors, or any number of the shareholders assembled at a meeting or oth- erwise, have no right to dispose of the shares of the general dividend, which belong to the particular shareholder, in any manner contrary to the will or without the consent or authority of that particular shareholder. Any application of or deal- ing with the capital, or any part of the capital, or any funds or money of the company, which may come under the control or management of the directors or governing body of the company, in any manner not distinctly authorized by the act of parliament, is in my opinion an illegal application or dealing; and without meaning to say that it is or could be practicable for individual shareholders to interfere on every occasion, however small, of alleged misapplication of particu- lar sums, I am of opinion that if, as in this case, the directors are proceeding upon an illegal principle, and for purposes not authorized by the act of parliament, to involve the company, or the shareholders of the company, or any of them, in liabilities to which the shareholders, or any of the shareholders, never consented, relief may and ought to be given in this court ; and that the mere circumstance of the Brighton company having obtained, as it is not disputed they did lawfully obtain, a certain number of shares in the Portsmouth company, is not a reason why the company should be enabled or permitted to purchase more shares, and thereby increase the risks to which parliament permitted the shareholders to be exposed by the shares which may have become vested in them by the Amalga- mation Act, or any reason why the directors should be permitted to divert so much of the funds of the company as they think proper, or indeed any portion of those funds, for the support of another company having distinct objects, and meant to be applied to purposes different from those in consideration of which alone those powers were granted to them." Ante, § 56. Where the statute prohibits the directors of a company from being concerned, directly or indirectly, in building its road, a contract between the company and two of its directors, for that purpose, is absolutely void. Barton v. Port Jackson, &c. Plank-Road Co., 17 Barb. 397. The deed of a joint-stock banking company contained provisions, that the directors should be not fewer than five or more than seven ; that three, or more, should constitute a board, and be competent to transact all ordinary business, and that the directors should have power to compromise debts. Agents might be appointed by the directors to accept or draw bills, without reference to the directors. The number of directors became reduced to four, and three executed a deed, compromising a large debt due the company, taking from the debtor a mining concern, and covenanting to indemnify him against certain bdls of ex- change. In an action on this covenant, held that it did not bind the company, not being ordinary business, and no number of directors less than five being competent to transact it. And query, whether a board of three directors could transact even ordinary business, unless when the board consisted of five only. Kirk v. Bell, 16 Q. B. 290 ; s. c. 12 Eng. L. & Eq. obo. But where a series of [*561] 590 RAILWAY DIRECTORS. PART VI. *of the company; and that any arrangement ultra vires of the directors, by which, in consideration of a money payment by a • shareholder desiring to retire, they declared his shares forfeited, is not, nor can any lapse of time render it, binding on the general body of the shareholders, unless it is shown, not only that the latter might have been, but also that they actually were, fully aware of the transaction. This seems to us to be placing the question of ratification of an act ultra vires upon its only safe and salutary basis. There should always be either express or presumptive evidence of actual and unconstrained acquiescence entirely satis- factory to the court, in order to bind a principal by any act of his agent, beyond the proper limits of the authority delegated to him. This is a principle of universal acceptance and application in the law of agency. 7. One of the recent English cases 11 declares, that the power of the directors to give a bill of sale, as security for debts, is incident to all trading corporations, although it be not expressly conferred by the articles of association, or the constitution of the company. contracts have been openly made by the officers of a corporation, within the knowledge of the corporators, who have acquiesced in and derived benefit from them, the contracts are binding upon the corporation, although not clearly authorized by its charter. And if it be a municipal corporation it is bound to pay whatever is due, by taxes, if it has no other means. Alleghany City v. Mc- Clurkan, 14 Penn. St. 81. See also Houldsworth v. Evans, L; R. 3 Ho. Lds. 203, Lord Cranworth; also Evans v. Smallcombe, id. 249; Spackman v. Evans, id. 171. So also where, by consent of the board of directors, a general agent was employed in making contracts for the purchase of the right of way, and was in the habit of agreeing upon the price, by submission to arbitrators, and the awards had been paid in such cases by the company's financial officers, under a general resolution to pay the amount these agents directed, it was held that such agent, aud another agent employed to assist in the same service, had power to submit the question of price, in such cases, to arbitrators, and their award was binding upon the company. And it is not requisite that the contract of submis- sion should be under the seal of the company in such case, nor will it be avoided by the agent attaching a seal to its execution, by himself. Wood v. The Auburn & Koch. Railw., 4 Seld. 160. But the facts that the directors have executed some ten or twelve similar contracts, and that such contracts had been published in the annual reports, and distributed to the stockholders without objection, although evidence of acquiescence on their part is not evidence of the enlarge- ment of the charter powers of the company, so as to bind the company, as between them and the primary parties entering into the contract with them. Mr I.,, in, J., in Zabriskie v. C. C. & C. Railw., 10 Am. Railway Times, No. 15; s. c. -1-6 How. (U. S.) 381 ; 1 Redf. Am. Railw. Cases, 61; ante, § 56. " Shears v. Jacobs, Law Rep. 1 C. P. 513; s. c. 12 Jur. (N. S.) 785. [*562, 563] § 135. EXTENT OP THEIR AUTHORITY. 591 Mr. Ch. Justice Erie said, " The fact that the company carries on a trade is a sufficient answer to the first objection. Every trading- company must have the power of giving security for the debts which it contracts." * 8. Where power is given in the charter of a corporation or in the deed of settlement, for the directors to confirm any contract made by provisional directors, or any persons acting as directors of the company in its formation, the directors alone have power to confirm such contracts by deed. 12 But the directors have no power to make any contract under seal binding upon the corpora- tion, if the formalities prescribed by its constitution have not been complied with. 13 9. The directors being but the servants or trustees of the com- pany, it cannot, as before stated, retain money obtained from one by the fraudulent sale by the directors of the company property, unless the purchaser has by his own misconduct precluded himself from redress. 14 It was here held, that directors are not justified in using reports to induce a sale of property, which were true at the time they were made, if not true at the time they are so used. 10. But the last case was reversed in the House of Lords, and the decree of Vice-Chancellor Stuart 15 affirmed with costs, — his honor not having awarded costs, — on the same grounds mainly which the Vice-Chancellor had assumed : that as no specific rep- resentations had been made by the company, and no specific in- quiry by the plaintiff, his case failed on that point ; and inasmuch as he completed the purchase after being informed of the facts as to defect of title, he could not complain of any previous misrep- resentation. 16 11. But it was declared in the House of Lords, 16 that if reports " Wilkins v. Roebuck, 4 Drew. 281. 13 Hambro v. Hull & London Fire Ins. Co., 3 H. & N. 789. See, also, East- wood v. Bain, id. 738; Bryon v. Met. Saloon Omnibus Co., 3 De G. & J. 123 ; Baker ex parte, 4 Drew. & Sm. 55; s. c. 6 Jur. (N. S.) 240. 14 Conybeare v. New B. & Canada Railw. Co., 1 De G., F. & J. 578 ; s. c. 6 Jur.£(N. S.) .".18 ; ante, § 41, pi. 2. -Re Cork & Youghall Railw., 17 W. R. 873. 13 (5 Jur. (N. S.) 164. 16 9 Ho. Lds. 711 ; s. c. 8 Jur. (N. S.) 575. See here Lord Chelmsford's strict- ures upon the loose mode of stating fraud. See Royal British Bank in re Mixer's case, 4 De G. & J. 575. Sec, also, Cullen v. Thompson, 4 Mcqu. 424, in the House of Lords, where all the officers of a company participating in a fraudu- lent representation are held liable, although but part signed the report. 9 Jur. (N. S.) 85. [*564] 592 RAILWAY DIRECTORS. PART VI. are made to the stockholders of a company by their directors, and adopted by them at one of their appointed meetings, and after- wards circulated in their published reports, they are binding upon the company. And if erroneous statements in such reports can be clearly shown to have been the proximate and immediate cause *of shares having been bought from the company by any individ- uals, a court of equity will not permit the company to retain the benefit of the contract. 1± But when a company issues a prospectus, a person contract- Lng to take shares on the faith of it, has the right to claim, not only that he shall not be misled by any statements actually false, but that he shall be correctly informed by it of all the facts, the knowledge of which might reasonably have deterred him from en- tering into the contract. 17 But the false representation of an officer is not that of the company, even if made at the office. 18 But to become the act of the company it must be contained in a report of the company adopted at a regular meeting. 18 13. The directors of a railway company are not justified in act- ing on an old resolution authorizing the issue of shares, after the purpose for which the issue was authorized has ceased to be availa- ble ; 19 nor in issuing shares, supposing them to possess the power, for the express purpose of procuring votes to influence a coming general meeting. 19 An injunction will be issued to restrain such action of the directors, it not being a question of the internal management of the company, but an attempt to prevent such management being legitimately carried on. 14. In a trial 20 before 3fartin, B., where it appeared that the profits of the company had been studiously misrepresented by the manner of keeping the books, and a large apparent profit on the year preceding the report presented, by not bringing all the cost of material forward into the account of the year in which it was 7 X. I'.. & C. Railw. & Land Co. v. Muggeridge, 1 Drew. & Sm. 363; s. c. 7 Jur. (X. S.) 132. |M Royal British Bank in re, 3 L. T. (N. S.) 843. ,n Fraser v. Whalley, 2 II. & M. 10. w Bale r. Clelland, 1 F. & F. 117; Kisch v. Venezuela Railw. Co., 3 De G., J. & S. L22 : s. c. 11 Jur. (N. S.) 646. The question of fraud by means of indue- in.- a shareholder to buy his shares upon a misapprehension of the true condition of the company, i- one of fact, to be judged of by the jury upon a consideration of all the facts, and is mainly one of intent. Cleveland Iron Co. v. Stephenson, 2 1 & F. 428. [*665] § 135. EXTENT OF THEIR AUTHORITY. 593 consumed, it was held that any error in the mere mode of keeping the accounts would not be evidence of fraudulent representation, but the falsification of facts and figures was so, as against any of the officers of the company who were aware of the issue of the prospectus, and had aided or connived at the mode in which it was made up. * 15. It was also held in the last case, that as the statute re- quired the dividend to be declared by the directors, though with the sanction of the shareholders, if to the knowledge of the directors and officers of the company such dividend so declared by the directors was paid otherwise than out of profits, they are responsible for it, and for the circulation of any declaration of it, acted upon by innocent shareholders. 16. Directors may ratify any contract made on their behalf which they have power to make themselves. 21 And where the constitution of the corporation gives to the directors, with the sanction of an extraordinary meeting of the shareholders, by a majority of two-thirds, power to do any act which might be done with the consent of all the shareholders, the directors may lease the entire business of the company in that mode. 22 17. The board of directors of a railway company are to be re- garded as its immediate representatives, and occupy the relation of master to the different classes of employes engaged in operating the road, and performing the work or transacting the business of the company in any of its departments. 23 18. Although the directors of a railway company cannot apply the funds to any purpose, ultra vires, of such company, yet where they have done so, with the bona fide purpose of serving the public interest and convenience, by diverting a highway, a court of equity will not compel the company to restore the highway, so as to bring their work intra vires, if the result will be to cause greater incon- venience to the public, or those of the public making the com- plaint. 24 21 Wilson v. West Hartlepool Harbor & Railway Co., 34 Beav. 187; s. q. 2 De G., J. & S. 475; 11 Jur. (N. S.) 124. 22 Featherstonhaugh v. Porcelain Co., Law Rep. 1 Eq. 318; 8. c. 11 Jur. (N. S.) 994. 23 Columbus & Ind. Central Railw. v. Arnold, 31 Ind. 174. 24 Attorney General v. E. H. & S. Railw., L. R. 6 Eq. 106. The informa- tion Avas dismissed without costs, and Avithout prejudice to any proceeding at law. vol. i. 38 [*5(i6J 594 RAILWAY DIRECTORS. PART VI. 19, Neither the president or any, or all, of the directors of the company have any inherent power to hind the company. Their powers depend upon the general rules of the law of agency. Where, therefore, the president of a corporation executed a con- tract on their behalf, without previous authority, and the company subsequently accepted the benefits of such contract, having knowl- edge of the means by which they were obtained, it was held to operate as a ratification of the contract, and to make it binding upon the corporation from the first. 25 SECTION II. When Directors become Personally Liable. 1. Not liable personally, for any laivful act done as directors. 2. But an liable upon express undertaking to be personally holden. 3. Are liable personally, if they assume to go beyond their powers. 4. Extent of poicers affected often by usage ■ and course of business. 5. But if contract is beyond the power of com- pany, or not in usual form, directors personally liable. 6. Statement of case illustrating last point. § 136. 1. The English statute enacts, what was the common law indeed, that no director should become personally liable by reason of any contract made, or any act done, on behalf of the company, within the scope of the authority conferred by the statutes of the legislature and the company, or, as it is expressed, " by reason of any lawful act done by them." Corporations are not, in general, responsible for the unlawful or unauthorized acts of their officers. 1 But the corporation may be held responsible ; ' Perry v. Simpson YV. P. M. Co., 37 Conn. 520. It was here held that notice to one of two general agents of a corporation was notice to the company and to the other agent. The declaration of such general agent being the notice of the company to the opposite party, that the president is authorized to contract on behalf of the corporation, and such party having acted upon the faith of such declaration will estop the company from denying such authority. See also Whit- well v. Warner, supra n. 2. 1 Mitchell v. Rockland, 41 Ale. 3G3. Commissioners to accept subscriptions for a corporation, who are by the charter required to give notice of the time and place of opening the books, may give such notice by a majority of their number. Penobscot Itailw. t;. White, 41 Me. 512. [*566] § 186. WHEN THEY BECOME PERSONALLY RESPONSIBLE. 595 * for the publication of a libel, by its agents and servants in the due course of the business of the company, as where the company were the owners, and by their agents managed the electric tele- graph along their line, and sent a despatch to the effect that the plaintiff's bank " had stopped payment," which proved not to be the fact. This despatch was sent for their own protection, in order to insure their agents against taking bills on such bank. But the message went beyond what was necessary for that pur- pose, and thus made the company responsible as for a gratuitous publication. It would have answered all purposes to have directed their agents not to take the bills, without assigning any reason. 2 So, too, in Philadelphia, Wilmington, and Baltimore Railway v. Quigley, 3 it was decided, that a railway may become liable for a libel in publishing and circulating among its members a statement of the report of the directors, and the evidence on which it is based, al- though the report itself, when made to the stockholders in good faith, and for their information upon matters affecting their inter- est, would be regarded as a privileged communication. 2. But directors have been held liable, in many cases, person- ally, where the debt was that of the company, and where it so appeared upon the face of the contract. As upon a promissory note, which was expressed, "jointly and severally we promise to pay," " value received for and on behalf of the Wesleyan News- paper Association. S. & W., Directors." 4 But it is ordinarily a question of intention, whether the directors are personally liable if they act within the powers conferred by the company. 5 2 Whitfield v. South Eastern Railw., 1 Ellis, B. & Ellis, 115; s. c. 4 Jur. (N. S.) 688. 3 21 How. (U. S.) 202 ; s. c. 2 Redf. Am. Railw. Cas. 330. 4 Healey v. Story, 3 Exch. 3. Alderson, B., said the terms, jointly and severally, imported a personal undertaking, inasmuch as they could properly have no application to the company. But see Roberts v. Button, 14 Vt. 195, and the cases cited, where the subject is examined more at length than space will here allow. Dewers v. Pike, Murphy & Hurl. 131. But in the case of Lindus v. Melrose, 3 H. & N. 177, before the Court of Exchequer Chamber (February, 1858), it was held that a promissory note expressed, "For value received we jointly promise to pay," and signed by three of the directors of a joint-stock company, and countersigned by the secretary, and expressed to have been on account of stock of the company, did not bind the signers personally, but im- ported, on its face, a contract on behalf of the company. 5 Tyrrell v. Woolley, 1 Man. & Gr. 809 ; Burrell v. Jones, 3 B. & Aid. 47. In a somewhat recent case, Davidson v. Tulloch, 3 Macqu. 783 ; s. c. 6 Jur. [*567] 596 RAILWAY DIRFXTORS. PART VI. * 3. Bui where the directors of a railway assume to do an act exceeding their power, as accepting bills of exchange, which does not come within the ordinary business ofrailways, they will be personally liable. 6 1. 1 J 1 1 1 the business of railways is so much extended in this country, as borrowers of money, carriers, and contractors, in vari- ous ways, that it is not easy to determine, except from each par- ticular case, how far the directors may draw or indorse bills, or, indeed, what particular acts they may or may not do. In one (N. S.) 548, before the House of Lords, it was determined, that an action may be maintained against the directors of a company in respect of any transactions which the body of the shareholders could not sanction, but in respect of any transactions which they might sanction, although the directors might not have been justified in what they were doing, there can be no right of action. And directors arc not liable for defect of authority to make a conveyance of property, the sale of which they had negotiated, but the actual sale being broken off by an objection of the vendee's solicitor, that the directors had not the requisite authority. Wilson v. Miers, 10 C. B. (N. S.) 348. See also Nowell v. Andover & K. Railw. Co., 8 Gif. 112; s. c. 7 Jur. (N. S.) 839. The company are not liable to make good any loss sustained through the false representations of their officers, altlio gh incidentally benefited thereby, unless they entered into the scheme for the purpose of such gain. Barry v Croskey, 2 Johns. & H. 1. 6 ( hven v. Van Uster, 10 C. B. 318 ; Roberts v. Button, 14 Vt. 195. They are in all cases responsible for the consequences of omission of duty, to the same extent as other trustees. Turquand v. Marshall, Law Rep. 6 Eq. 112 ; s. c. Law Rep. 4 Ch. Ap. 876, and is referred to in Overend, Gurney & Co. v. Gibb, L. R. 5 Ho. Lds. 480, where the case is reviewed and explained. And where the directors certified that they had appointed an agent with certain powers, and it proved that they had no such power, they were held personally responsible, although acting in good faith. Bank of Australasian. Cherry, 17 W. R. 1031. But if the erroneous misrepresenta- tion of the directors concerns matter of law only, and involves no error of fact, the directors will not become personally responsible. Beattie v. Lord Ebury, 20 W. It. 99 1 ; s. c Law Rep. 7 Ch. App. 777. See the opinion of Mellish, L. J. An agent whose conduct is merely imprudent will not make himself personally responsible for the consequences, unless he acted rashly or recklessly, so as to be guilty of crassa negligentia. The directors of a company formed for the ex- press purpose of buying the business of another company, and having express powers to do so, in making the purchase, are merely agents, and not trustees, and will not be held responsible unless the selling company was known to be in des- perate circumstances. Overend, Gurney, & Co. v. Gibb, L. R. 5 Ho. Lds. 480. The dissenting stockholders may maintain a bill in equity against the directors of a corporation for perpetrating a fraud against the company, by the control of the same through the ownership of a majority of the stock, and it is not indispensa- ble to join a majority of the directors as defendants. Brewer v. Boston Theatre, 104 .Mass. 378. [*568] § 136. WHEN THEY BECOME PERSONALLY RESPONSIBLE. 597 case the question of the extent of corporate powers is considerably discussed, 7 and it was held that the exercise of such powers must be conferred by their charters, but that it is the duty of courts to give the charters such a construction as to effect the leading pur- poses of the grant where that can be done consistently with the grant ; and that business corporations have the power to make such contracts and in such forms as are requisite to accomplish the purposes of the grant, having regard to any special limitations contained in such grants, and that promissory notes or bills made or received by such corporations are prima facie valid, but that it is competent to show that the transactions out of which they arise are not within the powers of the corporation and thus defeat their operation. In another case 8 it * was held, that prima facie a railway company had power to execute promissory notes for its legal indebtedness, and that it could do this only by its agents ; that no written or sealed authority to the agent was requisite ; nor that the contract should be under seal unless specially so required by the charter ; that it was not important to prove the considera- tion, as the law will make the same implications in favor of the note of a corporation as in other cases. 5. By the construction of the English statutes, if a trustee or director of any public work made a contract for any matter not provided for in the special acts of the company or by the general statutes, applicable to the subject, or in a different form from that so provided, he is taken to have intended to become personally responsible. 9 6. Thus where a check on the company's bankers, for payment to a third party of the company's money, was drawn by three directors in the name of the company, but the document was signed by them in their own names, and countersigned by the secretary of the company, adding to his name " Secretary," and a stamp bearing the name of the company was affixed, but the 7 Straus v. Eagle Insurance Co., 5 Ohio (N. S.), 59. 8 Hamilton v. Newcastle & Danville Railvv., 9 Ind. 359 ; M. & M. Railw. v. Hodge, id. 163. In Massachusetts it was held that the only remedy under the late statute for a corporate debt, against an officer of the corporation, was in equity. Bond v. Morse, 9 Allen, 471. 9 Parrott v. Eyre, 10 Bing. 283; Wilson v. Goodman, 4 Hare, 54, 62 ; Hig- gins v. Livingstone, 4 Dow, P. C. 341. [*569] 598 RAILWAY DIRECTORS. PART VI. three directors did not appear, on the face of the check, to be directors or to sign as such, it was held that it did not purport to h i the check of the company, and was not binding on them. 10 SECTION III. Compensation for Service of Directors. ! /,. 'England, directors of rail way 9 are enti- tled In compensation for services. 2. But tin company may grant an annuity to a disabled officer. 3. fn this country are entitled to compensation , in conformity to the order of the board. 4. Some American cases follow the English rule. 5. Official bonds strictly limited to terms for which executed. § 187. 1. In England, in the absence of contract or usage, from which one might be inferred, directors of railways other corpo- rations * are not entitled to compensation for services as directors. This is regarded as an office, and so an honorary service. And a resolution of the board of directors that compensation should be allowed for certain specified services, not being under seal, so as to amount to a bv-law, will not entitle such director to sue the company for compensation for such service. 1 2. But it would seem, where the company voted an annuity to a disabled officer, in the nature of a retiring pension, and the directors, by deed, in the name of the company, made a formal grant in conformity with the vote, that the contract is binding 10 Serrell v. Derbyshire, Staffordshire & Wor. J. Railw., 19 Law J. 371 ; s. c. 9 C. B. 811. It would seem, that without much latitude of construction this case might have been otherwise ruled, and been more satisfactory. 1 Dunstan v. The Imp. Gas L. Co., 3 B. & Ad. 125. But see Hall v. The Vt. & Mass. II., 28 Vt. 401. The rule of law in that respect is different in this country, a resolution of the board of directors having the same force, whether under seal or not. Post, § 143, ante, § 130. See also Gaskell v. Chambers, 5 Jur. (X. S.) .",2: s. c. 26 Beav. 360. In this case the directors transferred the business of the company to another company, and received from the latter a large sum for compensation, and withheld the particulars from their members. It was held they were trustees of the money for the members, and the directors were ordered to pay it into court. But the directors are not the servants of the individual .shareholders, and therefore such an one who feels aggrieved must seek redrew through the company for any misconduct of the directors. Orr v. Glas- gow, A. & M. J. R. Co., 3 Macqu. Ho. Lds. 799 ; s. c. 6 Jur. (N. S.) 877. [*570] § 137. COMPENSATION FOR SERVICE OF DIRECTORS. 599 upon the company, although no power is expressly given by their charter to grant annuities. 2 3. Railway directors in this country are generally allowed compensation, but cannot recover it beyond the rate fixed by the general resolutions of the board. 3 And where a director acts as a member of the executive committee of the board, or in selling the bonds of the company, his service is to be regarded as in his capacity of director, and the amount of compensation is limited to that allowed directors. 3 * 4. Some of the American states adopt the English rule that . railway directors cannot recover compensation for services ren- dered in obtaining subscriptions to the capital stock of the com- pany, before its organization ; or for any other services, unless they are most unquestionably beyond the range of their official duties. 4 And it is here determined that it would make no difference that the services were rendered under an expectation and an under- standing among those engaged in the enterprise that the services should be compensated by the company after its organization. And in addition to the technical embarrassment of holding the company bound by any such arrangements before its existence, the policy of the law is wholly opposed to them. 4 We think this by far the most salutary rule upon the subject. 5. It is scarcely necessary to state that official bonds for faith- ful administration by officers of corporations are to be limited strictly to the term for which such officer was elected. And if the office is annual, and the officer continued from year to year, with- out the renewal of the bond, and the officer's annual account is 2 Clarke v. Imp. G. L. Co., 4 B. & Ad. 315. 3 Hodges v. Rut. & Burlington Railw., 29 Vt. 220. But where a director per- forms services for the company, disconnected with his office, he is not restricted, in regard to the compensation by any resolution of the board in regard to the com- pensation to be made the directors. Henry v. Rut. & Bur. Railw., 27 Vt. 485. In another case it was held, that railway directors, as a general rule, are not entitled to compensation for their personal services, unless rendered under some express contract. Hall v. Vermont & Mass. Railw., 28 Vt. 401. But an allow- ance to a director for extra services made by a board of which the claimant was one, and his presence indispensable to constitute a quorum, is void, and any stockholder may, on behalf of himself and others, enjoin the treasurer from pay- ment. Butts v. Wood, 37 N. Y. 317. 4 N. Y. & N. H. Railw. Co. v. Ketchum, 27 Conn. 170; post, § 140. [*571] 600 RAILWAY DIRECTORS. PART VI- passed from year to year, until finally a defect occur at a remote period from that covered by the bond, there is no indemnity to be obtained under the bond. 5 SECTION IV. Records of the Proceedings of Directors. 1. English statutes require minutes of pro- ceedings of directors and make it evi- dence. 2. Presttmptions in favor of their containing all that passed. 3. Company mil ratify unauthorized act of directors by acquiescence. § 138. 1. The English general statutes require the directors to keep minutes of all appointments, contracts, orders, and proceed- ings of the directors and committees, in books kept for that pur- pose, and these, duly made, are receivable as evidence, without further authentication. But this is held not to exclude other evi- dence of such transactions. 1 * 2. As against the company and the members present at a par- ticular meeting, the minutes of the directors will be held prima facie correct. 2 And where the proceedings of the minutes of the meeting are imperfect, it will be presumed that every thing was brought before the meeting which it was requisite to bring before them to have the action of the company valid. 3 3. The legality of the proceedings of directors in purchasing shares of the company for the company, which required the sanc- tion of a general meeting, will be presumed either from lapse of time and no dissent on the part of the shareholders, or from the proceedings of the general meeting at which the matter would naturally have been acted upon not being forthcoming, as it was 6 M. & M. Savings Co. v. O. F. Hall Ass., 48 Penn. St. 446. 1 [nglia v. The Great Northern Railw., 1 Macqu. Ho. Lds. 112 ; s. c. 16 Eng. L. & Eq. 55. Lord St. Leonards said, in the House of Lords: "But inde- pendently of the evidence furnished by the books, the due appointment was proved by a witness, and his evidence was admissible evidence", for the act con- fers :i pi i vilege, but does not exclude other evidence of the fact." Miles v. Bough, 3Q. B. 845. 1 Ex parte Stark, 10 Jur. (X. S.) 790. 3 Ex parte Lane, 1 De G., J. & Sm. 504; s. c. 10 Jur. (N. S.) 25. [*572] §139. AUTHORITY TO BORROW MONEY, ETC. 601 the duty of the company to keep regular minutes of such meet- ing. 3 And it was also here held that the company, by transfer- ring such shares, thereby confirmed the validity of the transfer to them. 3 So also by paying an annuity, the price of such shares. 3 SECTION V. Authority of Directors to borrow Money, and buy Goods. 1. Authority of directors to bind company, express or implied. 2. General agent will bind company luithin scope of his duties. Directors presumed to assent to his contracts. 3. Contracts tinder seal of company prima facie bind them. 4. Strangers must take notice of general want of authority in directors, but not of mere informalities. 5. Cannot subscribe for stock of other com- panies. 6. May borrow money if requisite. 7. How far directors may bind company by accepting land in payment of subscrip- tion. § 139. 1. Joint-stock companies, under many of the English statutes, 1 are held bound by contracts made by a competent board of directors, though not under seal, and not made in strict compliance with the acts. 2 But those who seek to bind * such companies, on contracts made with the directors, must show their authority to bind the company, either by the terms of the deed of settlement, or that the body of the shareholders authorized these persons to act on their behalf. A ratification by a competent board of directors will bind the company. 2 2. The general rule upon this subject, in regard to goods and money which is obtained by agents, ostensibly clothed with com- petent authority, and which actually goes to the use of the com- pany, seems to be that the company is holden. Thus where a joint-stock manufacturing company, having a board of directors, 1 7 & 8 Vict. c. 110. 2 Ridley v. Plymouth Banking Co., 2 Exch. 711. Where one has the actual charge and management of the business of a corporation, with the knowledge of the directors, the company will be bound by his contracts, made on their behalf, within the apparent scope of the business thus intrusted to him. Goodwin v. Union Screw Co., 34 N. H. 378 ; Chicago, Burlington, & Quincy Railw. v. Coleman, 18 111. 297. In this case it is held, the admission of the president of the company in regard to the authority and acts of a sub-agent will bind the company. [*573] 602 RAILWAY DIRECTORS. PART VI. with authority to appoint officers and delegate their authority, purchased goods through the general manager of the company, or his deputy, or the secretary, all of whom were duly appointed, and when the goods were delivered on the company's premises, and used for their purposes, they were held liable, on the ground that the manager had authority to give such orders, in the absence of any express provision to the contrary. And it was held that, as to the other, the directors must be taken to have known that the goods had been furnished and used, and that, therefore, the company was liable to pay for them. 3 8. -V contract under the seal of the company is prima facie binding upon them. In such .case it is not enough, in order to defeat a recovery upon the contract, to show an excess of authority on the part of the directors, who made the contract. 4 3 Smith v. Hull Glass Co., 11 C. B. 897. And where the general agent of a manufacturing company directed the clerk to issue a promissory note in the name of the company, and it was shown that the note was in the form customarily used by the company, in other similar cases, and which they had always recognized, it was held to be sufficient proof of the execution of the note by the company to go to the jury, and to warrant them in finding that the company had adopted, by usage, the signature of their agent as their own, and intended to be bound by it. Mead t>. Keeler, 24 Barb. 20. Such company may borrow money for its legitimate business, and bind itself by a written obligation for its repayment, lb. See also Curtis v. Leavitt, 15 N. Y. 9, where this subject is discussed. 4 Royal British Bank v. Turquand, 5 El. & Bl. 248 ; s. c. 32 Eng. L. & Eq. 273. Lord C. J '. ""Campbell said, in giving judgment: "A good plea must allege facts to establish illegality, as was done in Collins v. Blantern, 2 Willes, 347, and Paxton v. Popham, 9 East, 408. A mere excess of authority by the directors, we think of itself would not amount to a defence. The bond beirfg under the seal of the company, the gist of the defence must be illegality. If the directors had exceeded their authority, to the prejudice of the shareholders, by executing the bond, and this had been known to the obligees, illegality, we think, would have been shown. The obligors in executing, and the obligees in pting the bond, might be considered as combining together to injure the holders. The two parties would have been in pari delicto, and the action could not have been maintained. In such circumstances potior est conditio de- fendentis. But without the scienter and without prejudice to the shareholders, or any others whatsoever, illegality is not established against the obligees. If no illegality is shown as against the party with whom the company contract under the seal of the company, excess of authority is a matter only between the direc- tors and the shareholders.'" And again, " The plaintiffs have bona fide advanced their in nicy tor the use of the company, giving credit to the representations of the ut where only certain formalities are required to the valid execution of the net, as the consent of a general meeting, that will be pre- sumed from acquiescence. 11 But where dissentient members 12 were allowed to retire by the resolution of a general meeting, it was hold the other members could not be allowed to question its regularity and validity, after an acquiescence of twenty years, although ultra vires. 9. Directors of an insurance company offered to pay losses caused by the explosion of gunpowder, although expressly ex- cepted from the risks assumed by the policy, at the same time not admitting any legal liability to do so. On a bill by a share- holder to restrain the directors from doing so, it- appearing that it was usual and advantageous for companies to do so, although not strictly * responsible for the loss : held, that this was a mode of carrying on the business with which the court could not in- terfere. 13 10. This is a most remarkable decision, but more remarkable for the reasons and grounds upon which it is placed. The fact that the unlawful payments proposed to be made were prudent and politic, is nothing more than may be urged in favor of all proposed illegal diversion of the funds of a company. It is always proposed thereby to advance the interests of the company, and con- sequently the dividends to the shareholders. It is impossible to suppose that any such principle can ultimately maintain its ground in the English courts of equity. 11. The subsequent cases seem to manifest the feeling that all company. So also is an agreement to make traffic regulations applicable to fut- ure extensions. But no such agreement is ultra vires if its validity is expressly made dependent upon the sanction of parliament. But where part of an entire arrangement between two companies, the parts of which are dependent upon each other, is illegal, or ultra vires, a court of equity will restrain the execution of every portion of the arrangement, Hattersley v. Shelburne, 7 L. T. (N. S.) 650. 11 British Provident Life Ins. Co., ex parte Grady, 9 Jur. (N. S.) 631. '-' Brotherhood in re, 31 Beav. 365. A restriction upon the liability of the shareholders for bills drawn by the company will not affect the responsibility of the company. State Fire Ins. Co., 8 L. T. (N. S.) 146. 13 Taunton v. Royal Ins. Co., 2 H. & M. 135; s. c. 10 Jur. (N. S.) 291. [*618] 148 a. CONTRACTS ULTRA VIRES. 649 secure ground to rest upon is taken from under them. It is said in one case 14 that in matters strictly relating to the internal manage- ment of the company, even though not strictly within the terms of the constitution of the company, the court will not interfere. But it is here added, if the matters complained of are plainly beyond the powers of the company, and are inconsistent with the objects for which the company was constituted, the court will interfere, at the instance of the minority, to prevent the act complained of from being carried out. If this is intelligible to others, or recon- cilable with good sense and good law, it certainly passes our com- prehension, and we can only say that we should not expect it to be long maintained anywhere. It is nothing more or less than paying black-mail to buy peace, and if public companies can do that with funds they hold in trust, it may be as well for courts of equity not to attempt to define what they may or may not do. 1. The power of a receiver to sue in the name of the corporation. 2. Foreign railway corporation acquired no prerogative rights by leasing a portion of the track of a domestic railway. 3. Statement of the contract and ground of holding it void, as being ultra vires. 4. Further reasons why such contract cannot be specifically performed here. n. 3. Comments upon the preceding proposi- tions. § 148 a. The foregoing points, decided by a court of learning and experience, in regard to the rights of railway corporations in one state to enter into permanent arrangements with similar cor- porations in other states, as published in the American Law Register, 1 we deem of sufficient importance as illustrating some of the doctrines discussed in the preceding section, to be here re- peated. The opinion of Judge Storer, at length, will be found in the American Law Register, 2 and will repay careful reading. Superior Court of Cincinnati. Ohio and Mississippi Railroad Company v. Indianapolis and Cincinnati Railroad Company. 1 ' 1. A receiver appointed by the Circuit Court of the United States of the Southern District of Ohio, to take possession of a railway and its effects, may sue in this court, upon a contract made by that corporation in the corporate name of the railway, without disclosing in the petition his own name as receiver. 14 Gregory v. Patchett, 33 Beav. 595 : 1 Vol. 5 (N. S.),733. c. 10 Jur. (N. S.) 1118. 2 Vol. 5 (N. S.), 733-744. [*619] 650 ARRANGEMENTS BETWEEN COMPANIES. PART VI. 2. A foreign corporation having no charter from the state of Ohio, authorizing it to construct and operate a railway in this state, cannot, by a transfer of a portion of a railway already con- structed in the state by legal authority, acquire a right to use and operate such railway within this state. 3. The plaintiffs, being authorized to construct and operate a railway from Cincinnati to Yincennes, and the defendants, being authorized to construct and operate a railway from Indianapolis to Lawrenceburg, of a different gauge, entered into a contract whereby the defendants, in consideration of being allowed to lay a third rail on the road of the plaintiffs, to furnish motive power for hauling the cars of the defendants on that part of the road, agreed, among other things, to lend to the plaintiffs $30,000, for the pur- pose of erecting a depot for the plaintiffs in Cincinnati, to become the property of the plaintiffs at the expiration of the contract ; to form no connections at or beyond Lawrenceburg prejudicial to the plaintiffs ; and to give the plaintiffs exclusive control of the em- ployes of the defendants while on the road of the plaintiffs. Held, on the construction of the charters of the plaintiffs and defendants, that such contract was beyond the competency of the contracting parties, and was void. 4. The contract also provided, that the defendants should have the use of a depot and certain grounds in Cincinnati for unloading goods and lumber, for thirty years. Held, that this created an easement in the land, and was, in connection with the laying and keeping up the third rail, in substance a lease, which the plaintiffs had no authority to make, and that it being for more than three years, was also invalid under the statute of frauds, for the * want of legal acknowledgment. Held, also, that the defendants having as a foreign corporation no right to accept a lease of a railway in Ohio, the plaintiffs could not have had a specific per- formance of the agreement, the remedies of the parties not being mutual. 3 ' A\ e can see no good ground to question the soundness of the foregoing opinion ; but it seems to us that the case exhibits in a strong light the embar- rassments constantly resulting from having railway corporations restricted in their corporate functions to the limits of state lines. It would certainly seem that there is far more necessity and propriety in having all the railway corpora- tions in the country possess a national character, than there is in giving the same character to all the banks of the country, which has been already practically effected by means of discriminating taxation. There is every reason to regard [*620] § 149. EXONERATED FROM CONTRACTS BY ACT OF LEGISLATURE. 651 SECTION VIII. Companies exonerated from Contracts, by Act of the Legislature. § 149. It seems to be conceded that a railway company may plead a subsequent act of the legislature, in bar of the perform- railways as national institutions, in almost every sense in which they possess a public character, or perform public service, with the single exception of inter- communication, which is mainly of local and state concern. 1. As one of the wonderful advancements of military operations in modern times, by which railways have wrought a complete change in the conduct of war, and have become an indispensable necessity, they are entirely of a national character, so much so as to exclude all state control in times of war or civil commotion. 2. In regard to postal communication, which has been regarded as exclusively of a national character, since the early and palmy days of the Persian monarchy, where public posts are said to have originated, railways must also be regarded as an indispensable necessity. For if we admit the right of state control over all or any considerable portion of the railways in the country, it will place all postal communication at the mercy and good will of state authority, which any one must see is wholly inadmissible. We discussed the rights of railway corporations in regard to acquiring land and other prerogative rights in adjoining states, without the action of the legislat- ure, in a case in Vermont, many years since, when we came to the conclusion that no such prerogative rights could be acquired out of the state of the charter, except by legislative act. State v. B. C. & M. Railw., 25 Vt. 433 ; s. c. 1 Redf. Am. Railw. Cases, 84. This will not preclude such corporations from acquiring the title of land out of the state, by voluntary contract, or entering into any other contract, of the ordinary character of contracts between natural persons, but it will not justify taking land compulsorily or operating a railway and taking tolls, &c. 3. The right of the Congress of the United States, under the Constitution, to regulate commerce between the different states, would clearly give the power to control, within certain limits, the transmission of freight and passengers, from one state to another. And this might enable the national authority to remedy existing evils upon long lines, to some extent. But what is needed seems to be the subjecting of the entire railway system, throughout the country, to a single, salutary, and prudent, and, at the same time, energetic control. It seems ques- tionable how far this can be effected, under the name of regulating commerce between the different states. But that it must, in some way, be obtained by the national government seems now pretty generally conceded by those who believe that any such control is requisite for the protection of public or private interests, against the interest of private gain, through the force of an entire monopoly of intercommunication. We know that the most engrossing monopoly, if wisely conducted, will not wantonly outrage the public sentiment of justice ; but where [*620] 652 ARRANGEMENTS BETWEEN COMPANIES. PART VI. ancc of their covenant or contract. But it will afford no bar, * unless the act either expressly, or by clear implication, renders the duty of the contract unlawful or comes in conflict with it. 1 SECTION IX. Width of Gauge. — Junction with other Roads. 1. Where the act requires broad gauge, does not prohibit mixed gauge. .'. / ■ mission to unite icith other road, signi- a road tie facto. 3. Equity will sometimes enjoin company against changing gauge. 4. Contract to make gauge of the companies the same, although contreiry to law of state, at its date, may be legalized by statute. 5. The import and construction of the terms "railway connection." § 150. 1. Where the company's special act required them to lay down a railway of such gauge and construction as to be worked in connection with another company named (the broad gauge), a court of equity declined to interfere, by injunction, when the com- pany were laying down part of the line with double tracks of the mixed gauge, there being no prohibition in the act against such a construction, the broad gauge being all which was required by the act. 1 2. Where the act of incorporation gave the company the right to construct a road in a particular line, and also required them to purchase a former railway along the same route, and gave them the right to connect " their road with any road legally authorized the temptation is so great, it is always desirable to have some redress, in the language of Magna Charta, which is free, cheap, and open to all ; which need not be bought ; which will not be delayed ; and which cannot be denied. Any such redress from the force of state control seems now nearly, if not quite, hope- less. Whether the remedy, through the national tribunals, is more hopeful, is the problem hereafter to be solved. 1 Wvmt /•. The Shropshire Union Railw. & Canal, 5 Exch. 420; Stevens v. South Devon Railw., 13 Beav. 48 ; s. c. 12 Eng. L. & Eq. 229. But where one was induced to give lands to a railway company, or subscribe for stock, and the essential inducement to make the contract was that the company should construct their road within some definite time, the extension of time for the construction of the road, by act of the legislature, will not exonerate the company, from their obligation to such person. Henderson v. Railw. Company, 17 Texas, 560. Great Western Railw. v. Oxford, Worcester, & Wolverhampton Railw., 5 De G. & S. 437 ; s. c. 10 Eng. L. & Eq. 297. [*621] §150. WIDTH OP GAUGE. — JUNCTION OF RAILWAYS. 653 to come within the limits of the city of Erie," it was held that this right extended equally to the road purchased or built by them, and that they had the right to connect with any other railway in the actual use of another company in Erie, without inquiry whether such company were in the legal use of their franchises at the time or not. That is a question which cannot' be inquired into in this collateral manner. 2 * 3. Where two railway companies agree to operate their roads in connection, between certain points, if one of the companies changes its gauge, so as to break up the connection contemplated, an in- junction will be granted to enforce the contract. 3 4. A contract entered into by railway companies to make the gauge of both the companies the same, is not illegal, although this be contrary to the law of one of the states, if the contract appear to have been made with reference to an alteration of the powers of the company, in that respect, and that such alteration was pro- cured before any part of the track was laid. 3 5. The subject of " railway connection " and the import of those terms, is discussed in a case in Pennsylvania, 4 and it is there held that the terms, when used without qualification, must mean, either such a union of tracks as to admit the passage of cars from one road to the other ; or else such an intersection, as to admit of the convenient interchange of freight and passengers, at the point of intersection. One would suppose the latter must always be implied, by the use of such terms, at the very least ; and that where the roads are of the same gauge, so as to admit of a running connection, such connection would naturally be intended by the use of these terms. 2 Cleveland, Painsville, & Ashtabula Railw. v. The City of Erie, 27 Penn. St. 380. 3 Columbus, Piqua, & Inch Railw. v. Ind. & Belief. Railw., 5 McLean's C. C. R. 450. 4 Phil. & Erie Railw. v. Atlantic & Great Western Railw., 53 Penn. St. 20. [*622] PART YII. THE LAW OF MANDAMUS AND OTHER PREROGATIVE REMEDIES AS APPLIED TO RAILWAYS. PART YII. THE LAW OF MANDAMUS AND OTHER PREROGATIVE REMEDIES AS APPLIED TO RAILWAYS. ^CHAPTER XXIII. MANDAMUS. SECTION I. General Rules of Law governing this Remedy. 1. Regarded as a supplementary remedy. 2. Mode of procedure. (1.) Matter of discretion. (2.) Alternative ivrit. 3. Proceedings in most of the American courts. 4. English courts do not allow application to be amended. 5. Recent English statute has essentially sim- plified proceedings. 6. Mode of trying the truth of the return. 7. Costs rest in the discretion of court. 8. Mode of service. 9. By late English statutes, mandamus effects specific performance. § 151. 1. The office of the writ of mandamus is very extensive. It is the supplementary remedy where all others fail. Lord Mans- field says, 1 " It was introduced to prevent disorder, from a failure of justice and defect of police. Therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one." " If there be a right and no other specific remedy this should not be denied." 2 The general rules applicable to the use, and the 1 Rex v. Barker, 3 Burr. 1265. See Woodstock v. Gallup, 28 Vt. 587 ; Peo- ple v. Head, 25 111. 325 ; Draper v. Noteware, 7 Cal. 276. The same principles are declared by Lord Ellenborouyh, in Rex v. Archbishop of C, 8 East, 213, 219 ; 6 Ad. & El. 321. And where there is any other equally efficacious remedy this writ will not lie. Bush v. Beavan, 1 H. & C. 500 ; 32 L. J. Exch. 54 ; post, § 161, pi. 3. 2 Commonwealth v. Pittsburgh, 34 Penn. St. 496 ; Fremont v. Crippen, 10 Cal. 211. In this last case it was held mandamus would lie to compel the sheriff vol. i. 42 [*623] 658 MANDAMUS. PART VII. mode of obtaining this writ, are sufficiently discussed in the digests. abridgments, and elementary works, under this title. 3 * '1. The mode of proceeding in obtaining the writ is controlled very much by statute in England at the present time, and in most of the American states. There are some few points which are of general application. (1.) The power of granting the original prerogative writ of mandamus in England was confined to the Court of King's Bench, 3 and in most of the American states it is given, by statute, to the highest court of law of general jurisdiction. 3 This prerogative writ seems anciently to have been issued to inferior jurisdictions by the Court of Chancery in England, but not to the King's Bench. 4 This writ is not demandable as of right, but is awarded in the discretion of the court. 5 to execute a writ of possession, although there might be either a civil action or a criminal prosecution against him for the refusal, since neither of these remedies •would do full justice to the complainant. ;! L2 Petersdorflf, Ab. 438; 6 Bac. Ab. 309, 418, tit. Mandamus; 3 Black. Comm. 110,264; 1 Kent, Comm. 322; Curtis's Digest, 333. And that the party may have some remedy in equity will not preclude this remedy. But see infra. Nor that an indictment will lie. Post, § 161. And it is no bar to this remedy that the party might by statute build the work, at the expense of the other party, by order of a justrce. Reg. v. The Norwich & B. Railw., 4 Railw. C. 112. The legislature empowered the board of supervisors of the county of New York to cause to be raised and collected a sum not exceeding $80,000 to meet and pay whatever sum up to that amount might be found due to the con- tractors with the commissioners of records, and authorized the comptroller to pay " said amount when it should be judicially determined. " The contractor not having the power to bring action and obtain judgment against the supervisors in the regular manner, it was held that this was not the intention of the legislature, and that, in the absence of any specific directions in the act as to how this judicial determination should be obtained, it would be unreasonable to infer that any other remedy was intended than that attainable by mandamus ; and that applica- tion for mandamus was the proper remedy for the contractors, upon the refusal of the comptroller to pay them the amount certified by the commissioners to be due them. People v. Haws, 34 Barb. 69. And see, to the same point, Regina v. Port of Southampton, 1 E. B. & S. o ; s. c. 7 Jur. (N. S.) 990 ; 30 L. J. Q. B. 214. And where a new right has been created by act of parliament, the proper mode of enforcing it is by mandamus at common law. Simpson v. Scot- tish Union Fire & Life Ins. Co., 9 Jur. (N. S.) 711 ; s. c. 32 L. J. Ch. 329; s. c. 1 II. & M. 681. Commonwealth v. Pittsburg, 34 Penn. St. 496. 4 The Rioters' Case, 1 Vernon, 175; Ang. & Ames on Corporations, § 697. But see R. r. Severn & Wye Railw., 2 B. & Aid. 646 ; R. v. Commissioners of Dean Inclosure, 2 M. & S. 80; R. v. Jeyes, 3 Ad. & El. 416. 6 Rex v. Bishop of London, 1 T. R. 331, 334; Rex v. Bishop of Chester, id. [*624] § 151. GENERAL RULES OP LAW GOVERNING THIS REMEDY. 659 (2.) The form of application is either by motion in court, and the production of affidavits in support of the ground of the mo- tion, in which case, if the motion prevails, a rule to show cause why the writ should not issue, or an alternative mandamus issues * upon the ex parte hearing, and the definitive hearing is had upon the return of the rule, or the return to the alternative writ. 3. The more common practice in the American courts (which often hold but one or two short sessions annually in a county, and where, by consequence, such formal proceedings would be attended with embarrassing delays) is, by formal petition, alleging in detail the grounds of the application, which is served upon the opposite party, and all parties supposed to have an interest in the questions involved, a sufficient time before the term to give an opportunity for taking the testimony upon notice ; and upon the return of the petition, the case is heard upon its general merits ; and in either form, if the application prevails, a peremptory mandamus issues, the only proper return to which is a certificate of compliance with its requisitions, without further excuse or delay. 6 396, 404 ; id. 425 ; 2 T. R. 336 ; People v. Auditor of Public Accounts, 33 111. 9 ; s. c. 3 Am. Law Reg. (N. S.) 332. And the court will not entertain juris- diction unless substantial interests are involved. Id. e Hodges on Railways, 640-644. It is first indispensable to demand of the party, against whom the application is to be made, to perform the duty, and the party must, it would seem, be made aware of the purpose of the de- mand. The King v. Wilts & Berks Canal Navigation, 3 Ad. & Ellis, 477 ; The King v. Brecknock & Abergavenny Canal Navigation, 3 Ad. & Ellis, 217. People v. Romert, 18 Cal. 89. The refusal must be of the thing demanded, and not of the right merely. The King v. Northleach & Witney Roads, 5 Barn. & Ad. 978. The refusal must be direct and unqualified, but may be made as effectual, by silence as by words or acts, but the party should understand that he is expected to perform the required duty, upon pain of the legal redress being resorted to, without further delay. The Queen v. Norwich & Brandon Railw., 4 Railw. C. 112; The Queen v. Bristol & Exeter Railw., 4 Q. B. 162. But this should be taken, as a preliminary question, according to the English practice. Queen v. Eastern Counties Railw., 10 Ad. & Ellis, 531. But in Com- monwealth v. Commissioners, 37 Penn. St. 237, a demand was held unnecessary in the case of public officers neglecting to do their duty. Conditions precedent must be shown to have been performed. But the mere requisition of an act of parliament that parties claiming damages, by reason of a railway company's works, shall enter into a bond to prosecute their complaint and pay their propor- tion of the costs, before the company should be obliged to issue their warrant to summon a jury, and if not so done, the company might give notice, requiring the same to be done before commencing the inquiry, was held not to be a condi- [*625] 660 MANDAMUS. PART VII. ■ 1. The general rule of the English courts seems to be, that if the first application is denied on account of defects in the affida- vits, not to permit a second application to be made; and the rule extends to other writs, resting in the discretion of the court. 7 tinii precedent, unless required by the company. The Queen v. The North Union Railw., 1 Railw. ('. 729. And where an umpire failed to make an award, it was held the company might be compelled by mandamus, to issue a warrant for the sheriff to assess the compensation, and no formal demand was necessary. Hodges "ii Railways, 642, and note; South Yorkshire & Goole Railw., in re 18 Law -lour. (Q. 1>.) 53. A return stating an excuse for non-compliance with a peremptory writ of mandamus, is not admissible. Regina v.'Ledgard et als. Mayor, &c. of Poole, 1 Q. B. 616. Application by the prosecutor for leave to withdraw his plea and argue the case on the return refused. R. v. Mayor of York, 3 Q. B. 550 ; Strong, Petitioner, &c, 20 Pick. 484. It is the prac- tice for different persons, in the same or similar situation, to unite in the same application for a mandamus, and it is said but one writ can issue in such a case. Rex v. Montacute, 1 Win. Black, 60; Rex v. Kingston, 1 Strange, 578 (note 1) ; Scott v. Morgan, 8 Dowl. P. C. 328. But it seems to be consid- ered that where the rights are distinct and wholly independent, one writ will not be awarded, but several, and therefore the application should be several. Reg. v. Chester, 5 Mod. 11 ; The case of Andover, 2 Salk. 433 ; Smith v. Erb, 4 Gill (Md.) 437 ; State v. Chester & Evesham, 5 Halst. 292. And the petitioner for a mandamus must set forth clearly his interest in the matter which he presents as the ground of his application. Fleming, ex parte, 2 Wallace (U. S), 759. But several connected matters, which are not repugnant, may be included, by way of defence, in the return. Reg. v. Norwich, 2 Salk. 436; Wright v. Faw- cett, 4 Burrow, 2041 ; Rex v. Churchwardens of Taunton, 1 Cowp. 413. Upon a mandamus to restore a corporate officer to his functions, the return should specify the grounds of the amotion. Commonwealth v. The Guardians of the Poor of Philadelphia, 6 Serg. & Rawle, 469, unless the officer were removable upon the mere motion of the corporation. Rex v. Guardians of Thame, 1 Strange, 115. It is not a sufficient reason for setting aside a peremptory man- damus that a previous alternative writ had not issued. Knox County v. Aspin- wall, 24 How. (U. S.) 376. 7 Queen v. Manchester & Leeds Railw., 8 Ad. & Ell. 413. And the same rule obtains where the first writ is denied because no sufficient demand had been made, and a subsequent demand is made. Ex parte Thompson, 6 Q. B. 721. But it is apprehended no such rule of practice could be enforced in this country, and very lew, we think, would regard it as desirable. It seems to be relaxing in England, where the alteration of the affidavits is mere form. Regina v. The G., W. Railw., 5 Q. B. 597, 601 ; Regina v. The East Lancashire Railw., 9 Q. B. 980. And in Reg. v. Derbyshire, S. & W. Railw., 18 Jur. 1054; s. c. 26 Eng. L. & Eq, l'U, the writ was amended, as to the name of the company. Reg. v. .n Counties Railw., 2 Railw. C. 836, amendment allowed. Regina v. Jus- ticea of Warwickshire, 5 Dowl. 382; Reg. v. Jones, 8 Dowl. 307 ; Shaw v. Per- kins, 1 Dowl. (X. S.) 306; Reg. v. Pickles, 3 Q. B. 599, n. ; State U.Hastings, 10 W i-. .".is, ,",25. L*G26] § 151. GENERAL RULES OP LAW GOVERNING THIS REMEDY. 661 5. But the Common-law Procedure Acts in England, 1852, 1854, apply to this class of writs, and have essentially simplified the proceedings, and rendered them more conformable to reason and justice than in some of the American courts even, 8 the rule for *the issuing of the alternative writ being now, in all cases, made absolute in the first instance, and the whole hearing had, upon the return which in our practice is still further simplified, by admitting the party to make answer to the petition, alleging the grounds of his refusal, which are tried at once. 9 6. If falsehood is alleged in the return to the alternative manda- 8 And by 23 and 24 Victoria, Ch. 126, § 32, costs are to be allowed against tbe defendant where an absolute writ is granted, unless otherwise specially directed by the courts. 9 Walter v. Belding, 24 Vt. 658 ; Rogers, ex parte, 7 Cowen, 526. In the American states the statute of 9 Anne, allowing the prosecutor to traverse the return to the writ or the answer to the petition, and for the court to deter- mine the truth, either upon affidavit or by the verdict of a jury, in their discre- tion, has been pretty extensively adopted, either in practice or by statute. The People v. Beebe, 1 Barb. Sup. Ct. 379 ; The People v. The Commission- ers of Hudson, 6 Wend. 559; Smith v. Commonwealth, 41 Penn. St. 335. Where the case is fully heard upon the petition or rule to show cause, and there is no dispute in regard to the facts, the court will not delay, for the issuing of the alternative writ and the return thereto, but will in the first instance issue the peremptory mandamus. Ex parte Jennings, 6 Cow. 518 ; The People v. Throop, 12 Wend. 183. The rule for the peremptory mandamus is sometimes, in the first instance, made nisi, to allow the respondents to consult, if they will comply with the requirements of the judgment. Walter v. Belding, 24 Vt. 658. Or sometimes this is done to allow the parties to arrange the matter, or the court to consider the case. Rex v. Tappenden, 3 East, 186. The court have such con- trol over their own judgments, that, if a peremptory writ of mandamus be unfairly obtained, it will be set aside upon motion. The People v. Everett, 1 Caines, 8. Courts enforce compliance with the peremptory writ by attachment, as also a return to the alternative writ, without requiring the issue of an alias and pluries, as in the early English practice. The cases are not altogether agreed, whether defects in the writ are cured by admissions in the return, but upon general prin- ciples of pleading it would seem they are. The King v. Coopers of Newcastle- upon-Tyne, 7 T. R. 548. But see Reg. v. Hopkins, 1 Q. B. 161. But where an alternative mandamus is issued, and the defendants make their return, and the relators, instead of demurring, take issue upon the material allegations in the return, they thereby admit that, upon its face, the return is a sufficient answer to the case made, by the alternative writ. And if no material fact is dis- proved upon the trial, the defendants will be entitled to a verdict in their favor. The people ex rel. Kipp v. Finger, 24 Barb. 341. The return should set forth an available justification for defendant's refusal to do the act sought to be enforced, and it may allege different independent facts as furnishing such justification. [*627] 662 MANDAMUS. PART VII. inns, it was the practice at common law to drive the party to his acii.m for a false return. But by statute in England, and generally by practice in this country, the question is tried in the * court issuing the writ, and the remedy there applied, damages and costs being given in the discretion of the court, and execution enforced. 7. Costs in all the proceedings for mandamus rest in the dis- cretion of the court, unless controlled by statute. By the English practice it is common to award costs where the application is de- nied, lint not always where it prevails. 10 The more general and the more equitable rule in regard to costs, in proceedings where the court have a discretion, in that respect, is to allow costs to the prevailing party, unless tbere is some special reason for denying them. 11 8. Service of such process, and indeed of all process, by sum- 10 Reg. v. Mayor of Bridgenorth, 10 Ad. & El. 66 ; Reg. v. The Eastern Counties Railw., 2 Q. B. 578, 579, and cases cited by counsel. Reg. v. East Anglian Railw., 2 El. & Bl. 475 ; s. c. 22 Eng. L. & Eq. 274. 1 Win. 4, c. 21, § 6, makes costs discretionary with the courts, in England. 23 and 24 Victoria, c. 126, § 132. Regina v. St. Saviour, 7 Ad. & El. 925. See Regina v. Brigh- ton & South Coast Railw., 10 Law T. (N. S.) 496. 11 Reg. v. Thames & Isis Commissioners, 8 Ad. & El. 901, 905; 5 Ad. & El. 804 ; Reg. v. Fall, 1 Q. B. 636 ; Reg. v. Justices of Middlesex, 6 Eng. L. & Eq. 267, unless strong reasons for denying costs exist ; 1 Q. B. 751. Where the prosecutor omitted to proceed with a mandamus after a return had been made, the Court of Queen's Bench compelled him to elect either to pro- ceed or pay the costs. Reg. v. Mayor of Dartmouth, 2 Dowl. (N S.) 980. If the quo warranto, mandamus, or other like writ, is procured by the real party in interest, who is able to pay costs, to be prosecuted by some one, not able to pay costs, the Court of Queen's Bench will grant a rule, requiring the real party to pay costs. Reg. v. Greene, 4 Q. B. 646. See also a general rule, adopted immediately after the decision of the last case, Easter Term, 1843, requiring a formal rule, for payment of costs in mandamus, to be drawn up immediately on reading all the affidavits on both sides, 4 Q. B. 653. The rule for costs is decided upon the reading only of the affidavits, with reference to which the rule is drawn up. Reg. v. St. Peter's College, 1 Q. B. 314, overruling Rex v. Kirke, 5 B. & Ad. 1089. The parties are, in the English cases, required to pay costs occasioned by their delay. Reg. v. Mayor of Cambridge, .4 Q. B. 801. But where the judge makes a mistake, the parties who come to defend his ruling, which they are bound to suppose correct, do not pay costs. Reg v. London & Blackwall Railw., 3 Railw. C. 409, and note. The party who institutes pro- ceedings for mandamus, which he is compelled to abandon, by personal misfor- tune, as being pauperized by the loss of his trade, must still pay costs, as the court could only conclude he had no grounds to support his petition. Reg v. London & Blackwall Railw., 4 Jurist, 859. See, also, Morse, Petitioner, 18 Pick. 448. [*628] § 151. GENERAL RULES OF LAW GOVERNING THIS REMEDY. 663 mons in England, is by delivering the original where there is but * one person summoned, and where there are more than one, by showing the original, and delivering a copy to each defendant but one, and the original left with such one. But service by copy of a writ of mandamus was held sufficient. 12 9. By the later English statutes upon the subject of mandamus, 13 any party requiring any order, in the nature of specific performance, may commence his action in any of the superior courts of common law in Westminster Hall, except in replevin and ejectment, and may indorse upon the writ and copy to be served, that the plaintiff intends to claim a writ of mandamus, and the plaintiff may there- upon claim in the declaration, either together with any other de- mand which may now be enforced in such action, or separately, a writ of mandamus, commanding the defendant to fulfil any duty in the fulfilment of which the plaintiff is personally interested. And if a mandamus is awarded, it may issue peremptorily in the first instance, in aid of the execution, for damages and costs. The form of the writ is very brief, and compliance with its requisition is to be enforced by attachment. The prerogative writ is still re- tained, but its use, and also that of decrees for specific perform- ance in equity, seem to be superseded by these provisions, 14 at least to some extent. 12 Reg. v. Birmingham & Oxford Railw. Co., 1 El. & Bl. 293; s. c. 16 Eng. L. & Eq. 94. The conductor of a railway train in some of the states is regarded as a " hired agent" of the company, within the meaning of the statute allowing the service of process upon such agent. New Albany & Salem Raiiw. v. Grooms, 9 Ind. 243. 13 17 & 18 Vict. c. 125. 14 A mandamus to a local board of health, constituted under 11 & 12 Victoria, c. 63, recited that the prosecutor had been injured by the board in the prosecu- tion of its powers under the act; that he had demanded compensation from the board, and that they had denied all liability, and commanded the board that, com- pensation be made to him out of the general or special rate to be levied under the act. The return stated that the board had not denied all liability, and that it was always ready to make compensation, as soon as it had been duly ascer- tained under the act ; that it had not as yet been so ascertained ; nor had the prosecutor as yet taken any steps to ascertain the amount, nor notified the board of the amount of his claim, nor appointed nor given notice to appoint an arbitrator. This return was traversed, generally ; and on the trial it was found that the board had denied all liability, and a verdict was entered for the prosecutor. On a motion to enter the verdict on the rest of the return for the board, and to enter judgment for the board : Held, that the mandamus was good, and that the prosecutor was entitled to a verdict on the whole of the return, and to a per- [*629] 664 MANDAMUS. PART VII. * SECTION II. Particular cases where Mandamus lies to enforce Duty of Corporations. § 152. The opinion of Jervis, C. J. in the case of York & North Midland Railway v. Reg., 1 is perpaps the best commentary emptory mandamus, on the ground that, as there did not appear by the return to be any dispute as to the amount, the rest of the allegations in the return, apart from the traverse of denial of liability, were immaterial. Regina v. Burs- lem Board of Health, 5 Jur. (N. S.) 1394 ; s. c. 1 Ellis & Ellis, 1077, 1088. And generally, where a debt is of such a nature that mandamus will be granted to enforce its payment, it is not necessary that the amount of the debt should be previously ascertained, but su,ch amount may be ascertained in the verdict of the jury in the action in which mandamus is claimed. Ward v. Lowndes, 5 Jur. (N. S.) 1124; s. c. in Exch. Cham. 1 L. T. (N. S.) 268; 1 Ellis & Ellis, 940. But see McCoy v. Harnett County, 5 Jones Law, 265. 1 1 El. & Bl. 858; s. c. 18 Eng. L. & Eq. 199. "Upon these facts several points arise : First, does the statute of 1849 cast on the plaintiffs in error a duty to make this railway ? Secondly, if it does not, is there under the circumstances a contract between the plaintiffs in error and the land-owners, which can be enforced by mandamus ? Thirdly, and tailing these propositions, does a work, which in its inception was permissive only, become obligatory by part perform- ance ? These questions will be found upon examination to exhaust the subject, and to comprehend every view in which the mandamus can be supported. In substance, do these acts of parliament render the company, if they do not make this railway, liable to an indictment for a misdemeanor, and to actions by the party aggrieved ? For if they do not, ^a mandamus will not lie, and thus the question depends entirely upon the construction of the special act, and the statutes incorporated therewith. The act of 1849 may cast the duty upon the plaintiffs in error, in one of two ways ; it may do so by express words of obliga- tion, or it may do so by words of permission only, if the duty can be clearly col- lected from the general purview of the whole statute. The words of the 3d section of the act of 1849, ' it shall be lawful for the said company to make the said railway, 1 are permissive only, and not imperative, and it is a safe rule of construction to give to the words used by the legislature their natural meaning, when absurdity or injustice does not follow from such a construction. Indeed, if there were any doubt upon this subject, other parts of the statute referred to in the argument clearly show that these words were intended to be permissive only. The distinction is well put by my brother Erie: 'The company are per- mitted at their option to take lands, turn roads, alter streams, and exercise other powers, and these matters are made lawful for them ; but they are commanded to make compensation for lands taken, to substitute roads for those they turn, and to perform other conditions relating to the exercise of their powers, and these [*630] § 152. CASES TO ENFORCE DUTY OP CORPORATIONS. 665 * we could give upon the present state of the English law upon this subject. matters are required of them.' It seems clear, therefore, that the duty is not cast upon the plaintiffs in error by the express words of the statute of 1849; and, indeed, it was not so urged in the argument ; nor was it so put by Lord Campbell in his judgment in the court below. But it does not follow, merely because the words of the 3d section are permissive only, that there is no duty cast upon the plaintiffs in error, by the statute taken altogether, to make this railway. This point was not relied upon in this case in the court below, but it was made the distinct ground of a decision in another case in that court (The Queen v. The Lancashire & Yorkshire Railw. Co.), and was much pressed in the argument before us in support of this judgment. " It becomes necessary, therefore, to examine the statute in its general pro- visions, and to consider the grounds on which the Court of Queen's Bench pro- ceeds in the case of the Queen v. The Lancashire & Yorkshire Railw. Co., 1 E. & B. 228 ; 16 Eng. L. & Eq. 328. We agree with Lord Campbell, that the por- tion of the line between Market Weighton and Cherry Burton, to which the mandamus applies, is not to be considered as a separate railway, or even as a separate branch of a railway, but it is to be treated as if in its present direction it had been included in the act of 1846. The acts, then, taken together, in sub- stance, recite that it will be an advantage to the public if a railway is made from York to Beverley, through Market Weighton and Cherry Burton, according to certain plans and sections deposited, as required by the practice of parliament, and referred to in the statute, and that the plaintiffs in error are willing to make that railway. On this basis the whole provisions are founded. It has been proved that the work will be advantageous to the public ; it is assumed it will be profitable to the company, and that, therefore, they will willingly undertake it. Accordingly, the company are empowered to make this line. If they do make it they may take land ; but if they do take land they must make compensation. If necessary, they may turn roads, or divert streams ; but if they do, they must make new roads and new channels for the streams they alter. Similar provisions pervade the whole statute, and throughout the command waits upon the authority, and the distinction between ' may' and 'must' is clearly defined. But as it is manifest that such general powers must stop competition, and may, to a certain extent, be injurious to land-owners on the line, the compulsory power to take land is limited to three years, and the time for making the railway to five, after which the powers granted to the company cease, except as to so much of the line as shall have been completed, and the land, if taken by the company, reverts, on certain terms, to the original proprietors. An argument might have been founded on the terms in which the latter provision is contained. By the 10th section of the act of 1849, it is enacted that the railway shall be completed within five years from the passing of this act. That section was not referred to in the argument for this purpose, but it might be said that these words were com- pulsory, and imposed a duty upon the company to make the line. The context of the section, however, when examined, shows that such is not the meaning of it. If not completed within five years, the powers of the act are to expire, except as to so much of such railway as shall have been completed. If the [*631] WG MANDAMUS. PART VII. ♦SECTION III. Mandamus the appropriate Remedy to Restore Officers and Mem- bers of Corporations to the Discharge of their proper Functions, where they have been deprived of the same through the agency of the Corporation. 1. The writ formerly granted only to restore to public office. '_'. Novo granted in all cases where of value and sufficiently permanent. 3. Not available, where election annual and facts traversed. ' i. Claimant must have permanent and vested interest. § 153. 1. It does not come within the scope of this work to ex- amine with minuteness all questions arising upon the law of cor- section were intended to be obligatory, it would not contain that exception which contemplates that the line may be made in part. It is inconsistent to sup- pose that the legislature would say to the company in the same section, you may complete a part only, if you can, in five years, and then as to that part the powers of the act shall continue, but you must complete the entire line in that time. Upon the whole, therefore, we find no duty cast upon the company to make this railway in any part of this act of parliament. On the contrary, the Legislature seems to contemplate the possibility of the railway being made in part, or being totally abandoned. In the latter case the powers expire in three or five years ; in the former, the statute remains in force as to so much of the railway as shall have been completed within that time, and expires as to the residue. This provision is inconsistent with the intention to compel the company to make the entire line, as the consideration for the powers granted by the act. " But it is said that a railway act is a contract on the part of the company to make the line, and that the public is a party to that contract, and will be ag- grieved if the contract may be repudiated by the company at any time before it is acted upon. Though commonly so spoken of, railway acts, in our opinion, are not contracts, and cannot be construed as such. They are what they purport to be, and no more. They give conditional powers, which, if acted upon, carry with them duties, but which, if not acted upon, are not, either in their nature or by express words, imperative on the companies to which they are granted. Courts of justice ought not to depart from the plain meaning of the words used in acts of parliament. When they do, they make but do not construe the laws. If it had been so intended, the statute should have required the companies to make the line in express terms ; indeed, some railway acts are framed upon this principle ; and to say that there is no difference between words of requirement and words of authority when found in such acts, is simply to affirm that the legislature does not know the meaning of the commonest expressions. But if we were at liberty to speculate upon the intentions of the legislature when the [*632] § 153. REMEDY TO RESTORE OFFICERS AND MEMBERS. 667 porations, * as affected by the writ of mandamus. But it may be useful to state that this is the appropriate remedy, where any words are cl^r, and to construe an act of parliament by our own notions of what ought to have been enacted upon the subject, — if, sitting in a court of justice, we could make laws, much might be said in favor of the course which, in our opinion, is taken by the legislature on such subjects. Assuming that the line, if made, would be profitable to the public, that benefit may be delayed for five years, during which time competition is suspended. On the other hand, if the line would pay, it probably will be proceeded with, unless the company having the power is incompetent to the task. Individual land-owners may be benefited by the expenditure of capital in their neighborhood, without looking to the ultimate result ; but it is not for the public interest that the work should be undertaken by an incompetent company, nor that it should be begun, if, when made, it would not be remunerative. By leaving the exercise of the powers to the option of the company, the legislature adopts the safest check on abuse in either of those respects, namely, self-interest. It seems to us, therefore, that these statutes do not cast upon the plaintiffs in error the duty, either by express words or by implication ; that we ought to adhere to the plain meaning of the words used by the legislature, which are permissive only, and there is no reason, in policy or otherwise, why we should endeavor to pervert them from their natural meaning. " But it is said that the land-owners are in a better situation than the public at large, and that the privilege to take their own lands is the consideration which binds the company to complete the railway. That during the currency of the three years they are deprived of their full rights of ownership, and, if not to be compensated by the construction of the railway, they would in many cases suffer a loss, because, whilst the compulsory power of purchase subsists, they are pre- vented from alienating their lands or houses described in the books of reference, and from applying them to any purposes inconsistent with the claim that may be made to them by the railway company. In truth, they are not prevented from so doing at any time before the notice to take their land is given, if they act bona fide in the mean time ; the notice to take their lands being the inception of the contract between the land-owners and the company. But if this complaint was better founded, it does not follow, because certain land-owners are subjected to temporary inconvenience for the performance of a public good, that therefore the company are bound to make the whole railway. If it were a contract be- tween the land-owners and the company, it would not be just the one should be bound and the other free. But to assert that there is a contract between the land-owners and the company, is to beg the whole question ; for on this part of the case the question is, whether there is such a contract. As a matter of fact, we know that in many cases no such actual contract exists. Some few proprie- tors may desire and promote the railway, but many others oppose it, either from disinclination to the project or with a view to make better terms. With the dis- sentients there is no contract, unless it be found in the statute, and to the statute therefore we must look to see what is the obligation that is cast upon the company in respect of the land-owners upon the line. As in the former case, the words upon this subject are permissive only. The company may take land ; if they do [*633] 668 MANDAMUS. PART VII. * member or officer of a corporation is unlawfully deprived of his proper office or function in the affairs of the company through they must make full compensation. And in that-state of things, if there be a bargain between the parties, what is the bargain? The company say, in tlie lan- guage of the statute, that the bargain is thai they shall make full compensation for the land taken, and no more; the prosecutors say, that the consideration to be paid for the land is the full compensation mentioned in the act, and also the fin tlicr consideration of the construct ion of the entire line of railway from York to Beverley. But if this is the price which the prosecutors are to have, each land- owner is entitled to the same value, and yet by this mandamus the other proprie- tors on the line from Market Weighton to Cherry Burton, who perhaps are hostile to the application, are constrained to sell their lands for an inadequate consid- eration, namely, the full compensation and a part only of the line of railway, to which, by the hypothesis, they were entitled by the original bargain. If this were the true meaning of the statute, it would indeed be unjust, more so than the imposition of the temporary inconvenience to which it is said the land-owners may be subject, and to which we have already referred. But that that is not the true meaning, is clear from the words of the statute, which are permissive, and only impose the duty of making full compensation to each land-owner, as the option of taking the land of each is exercised ; and further, from the section to which we have already referred, which contemplates the total abandonment of the line, or a part performance of it, and makes provision for the return of the land to the original proprietors in certain cases. Upon this part of the case the authority of Lord Eldon, in Blakemore v. The Glamorganshire Canal Company, 1 Myl. & K. 154, was much pressed upon the court. Speaking of contracts for private undertakings he says : ' When I look upon these acts of parliament I re- gard them all in the light of contracts made by the legislature on behalf of every person interested in any thing to be done under them, and I have no hesitation in asserting that, unless that principle be applied in construing statutes of this description, they become instruments of greater oppression than any thing in the whole system of administration under our constitution. Such acts of parliament have now become extremely numerous, and from their number and operation they so much affect individuals, that I apprehend those who come for them to parliament do, in effect, undertake that they shall do and submit to whatever the legislature empowers and compels them to do, and that they shall do nothing else ; that they shall do and forbear all that they are hereby required to do and for- bear, as well with reference to the interest of the public as with regard to the interest of individuals.' There is nothing in that language to which it is neces- sary to make the least exception ; indeed it is nothing more than an illustration of the obligatory nature of the duty imposed by acts of parliament, which do im- pose a duty with reference to other persons. In that case the statute had secured to Mr. Blakemore the surplus water, and had commanded the company to do certain things that he might enjoy it. In discussing whether Mr. Blakemore's right under the statute was affected by his right before the statute, his lordship might well say he considered the statute the origin of Mr. Blakemore's right in the light of a contract, and the statute then under discussion containing express words of command, he might well add, that those who come lor such acts of Par- [*629] § 153. REMEDY TO RESTORE OFFICERS AND MEMBERS. 669 * its agency. This is somewhat questioned by some of the earlier English cases. 1 liament do, in effect, undertake that they shall do and submit to whatever the legislature empowers and compels them to do. As we understand them, the words used by Lord Eldon in no respect conflict with the view we take of this case ; but if they mean that words of permission only, when used in the class of cases under consideration, should receive a construction different from their ordinary meaning, because, if construed otherwise, they might work injustice, with great respect for his high authority, we dissent from that proposition. We agree with my brother Alderson, who, in Lee v. Milner, 2. Y. & Coll, 611, said : ' These acts of parliament have been called parliamentary bargains, made with each of the land owners. Perhaps more correctly they ought to be treated as conditional powers given by parliament to take the lands of the different pro- prietors through whose estates the works are to proceed. Each land-owner, therefore, has the right to have the power strictly and literally carried into effect as regards his own land, and has the right also to require that no variations shall be made to his prejudice in the carrying into effect a bargain between the under- takers and any one else.' — ' This,' he adds, ' I conceive to be the real view taken of the law by Lord Eldon, in the case of Blakemore v. The Glamorganshire Canal Company.' There remains but one further view of the case to be con- sidered, and that we have partly disposed of in the observations we have already made ; but inasmuch as Lord Campbell proceeded on this ground only in the court below, although it was not much relied upon before us in the argument, we have, out of respect for his high authority, most carefully examined it, and are of opinion that the mandamus cannot be supported, on the ground that the railway company, having exercised some of their powers and made a part of their line, are bound to make the whole railway authorized by their statutes. "It is unnecessary here to determine the abstract proposition, that a work which, hefore it is begun, is permissive, is, after it is begun, obligatory. We desire not to be understood as assenting to the proposition of my brother Erie, that many cases may occur where the exercise of some compulsory powers may create a duty to be enforced by mandamus ; and, on the other hand, we do not say that such may not be the law. If a company, empowered by act of parliament to build a bridge over the Thames, were to build one arch only, it would be well deserving consideration whether they could not be indicted for a nuisance in obstructing the river, or for the non-performance of duty in not completing the bridge. It is sufficient to say that in this case there are no circumstances to raise such a duty, if such a duty can be created by the acts of plaintiff himself. The plaintiffs in error have made the principal portion of their line, and they have abandoned the residue for no corrupt motive, but because Beverley has already sufficient railway communication, and because the residue of the line passes through a country thinly populated, and if made would not be remunerative. But it is said that the railway company are not in the situation of purchasers of 1 Vaughn v. Company of Gunmakers, 6 Mod. 82 ; S. P. Comb. 45 ; White's case, 6 Mod. 18. [*635] 670 MANDAMUS. PART VII. * 2. But a different rule, as to requiring the office to be of a pub- lic nature to justify the writ of mandamus to restore the party to land, with liberty to convert it to any purpose, or to allow it to be waste; that they are allowed to purchase it only for a railway, and having acquired it under the compulsory power of the act, there must be an obligation upon the company to apply the land to that and to no other purpose. Subject to the qualification in the act, this is undoubtedly true. Having acquired the lands of particular land-owners, the company could not retain them by r merely laying rails on the lands so taken, and we agree it never was intended that the land-owners should be left with a high mound or a deep cutting running through their estate, and leading neither to nor from any available terminus. The precaution against such a wasteful expenditure of capital may, perhaps, safely be left to the self-interest of the company, but if such work were to be done, it would not be a practicable railway, and after five years the powers of the act would expire, and the land revest in the original proprietor. It is true that he would sustain some inconven- ience without the corresponding advantage of railway communication, but in the mean time he would have received full compensation in the market value of the land, and for all damage by severance or otherwise, and would receive back the land on more reasonable terms. To be a railway it must have available termini. When the statutes passed, all persons supposed the termini would be York and Beverley ; and if the arguments be well founded, and the company are bound, if they take the land upon any portion of the railway, to complete the whole line, it would seem to follow that one of the proprietary, by compelling the company to take his land on the line from Market Weighton to Cherry- Burton, would thus entitle himself to a mandamus to compel them to make the line from Cherry Burton to Beverley, and the acts having expired, to apply to Parliament for a renewal of their powers for that purpose. But although the termini were originally intended to be York and Beverley, it is plain that the legislature contemplated the possibility of the line being abandoned or being only partially made, because in the one case the powers of the act were to cease, and in the other they were partially continued. An option, therefore, is given to some one. By the course taken the Court of Queen's Bench has exercised that option, and said the line is to be made, not to Beverley, but to Cherry Burton. In our opinion that option is left to the company, and the company having bona fide made an available railway over the land taken, the obligation to the land- owner has, in that respect, been fulfilled. The cases upon this subject are very few, and the absence of authority is very striking, when we remember how many acts have passed in pari materia, not only for railways, but also for bridges and turnpike roads. Notwithstanding the numerous occasions on which such proceed- ings might have been taken, and the manifest interest of land-owners to enforce their rights, no instance can be found of an indictment for disobeying such a statute, or of a mandamus for the purpose of enforcing it. If correctly reported, Lord Mansfield determined this point in The King v. The Proprietors of the Birmingham Canal, 2 Wm. B. 708, for he says the act imports only an authority to the proprietors, not a command. They may desert or suspend the whole work, and a fortiori, any part of it. On the other side, the language of Lord Etdon, in Blakemore v. The Glamorganshire Canal Company, is referred to as [*686J § 153. REMEDY TO RESTORE OFFICERS AND MEMBERS. 671 * it, seems to have obtained since the case of Rex v. Barker, 2 and the only proper inquiry now is whether the plaintiff has any such valuable and permanent interest in the office or place as to justify the granting of the writ. 3 3. It was held, in - an early case 4 in Massachusetts, that this remedy could not be rendered available in cases where the office only extended to one year, and the question arising upon the re- turn of the writ was one of fact, the traverse to which could not, according to the course of practice in that court, be determined before the term of the office would expire. " The cases, there- fore," say the court, " in which the writ of mandamus may be an adequate remedy, in admitting or restoring to office, seem to be where the office is holden for a longer term than a year, or where the return to the writ will involve merely a question of law, so that admitting the facts to be true, a peremptory mandamus ought to go." 4. It was accordingly held, in an English case, 5 that as man- damus to reinstate a person in office only lies where the office and its tenure are of a permanent nature, it is not an available remedy for the secretary of a benefit society, who had been dis- an authority for this mandamus. In our opinion it does not bear that construc- tion, although it appears that the Court of Queen's Bench took a different view of that authority in the case of The Queen v. The Eastern Counties Railw. Com- pany, 10 Ad. & El. 531, and was inclined to act upon it, and award a mandamus. The writ was subsequently withheld in that case on another ground, but Lord Denman seems to have been of opinion that on a fit occasion a mandamus ought to go. That, and the recent cases in the Queen's Bench, now under discussion, are the only cases which bear upon the subject. We feel that Lord Denman and Lord Campbell are high authorities upon this or any other matter, and are both equally entitled to the respect of this court ; but we are bound to pronounce our own judgment, and, after the most careful consideration, are of opinion that the judgment ought to be for the plaintiffs in error. The result is, that the judgment of the court below must be reversed." 2 3 Burrow, 1267. 3 Angell & Ames, §§ 704, 705. 4 Howard v. Gage, 6 Mass. 462, 464. 5 Evans v. The Heart of Oak Benefit Society, 12 Jur. (N. S.) 163. Mandamus is the proper remedy to compel the former officers of a corporation to surrender to the newly elected board of officers, the books and papers of the company, to- gether with all the insignia of office properly belonging to them. American Kail- way Frog Co. v. Haven, 101 Mass. 398. The general scope and operation of tbis remedy is here very ably and learnedly discussed by Mr. Justice Ames ; s. c. 1. Redf. Am. Railw. Cases, 479. [*637] 672 MANDAMUS. PART VII. missed by a resolution of a meeting of the society. The court here seem to consider that the office must be of such a character that the incumbent has such a vested and permanent interest in the same as that the court could render the operatio.n of the writ of mandamus effective towards restitution, and where its operation is not liable to be countervailed by any counter agency. ♦SECTION IV. Mandamus to compel Company to complete their Road. 1. English courts have required this upon a general grant. 2. But these cases overruled. Not required now, unless under peculiar circum- stances. 3. Recent case in New York Court of Appeals. § 154. 1. The English courts at one time, it would seem, regarded a parliamentary grant to and acceptance by a railway company as equivalent to an agreement on their part to build the road. To make this intelligible to the American reader it is necessary to keep in mind the English parliamentary rules, in regard to passing acts of incorporation of such companies. The promoters are required to prepare plans and sections, and maps of their roads, with the line delineated thereon, so as to show its general course and direction, and to deposit copies of the same with the clerks of the peace, in the office of the Board of Trade, the Private Bill Office, in certain cases at the Board of Admiralty, and with the parish clerk of each parish through which the proposed line passes, before parliament assembles, and the plans are usually referred to in the charter as defining the course of such railway, and thus become binding upon the company, although not so regarded unless so referred to. 1 Specific notice too is to be served upon each land proprietor whose land is to be taken. 1 There is therefore some plausibility in re- garding the obtaining of a charter under these circumstances as a binding obligation on the part of the company that they will build the road. No act of incorporation of a railway is passed in the British parliament until three-fourths of the estimated outlay is Ilorlges on Railways, 18, and notes; North British Railw. Co. v. Tod, 5 Bell Ap. Cas. 184 ; s. c. 4 Railw. Cas. 449 ; Reg. v. The Caledonian Railw. Co., 3 Eng. L. A: Eq. 285. [*638] § 154. COMPEL COMPANY TO COMPLETE THEIR ROAD. 673 subscribed. Accordingly, in some of the earlier cases upon this subject, after considerable discussion and examination, it is laid down, 2 that when a railway company have obtained an act of par- liament, * reciting that the proposed railway will be beneficial to the public, and that the company are willing to execute it, and giving them compulsory powers upon landbolders for that purpose, and in pursuance of such powers the company have taken land, and made part of their line, they are bound by law to complete such line, not only to the extent to which they have taken lands, but to the furthest point. And this is so held in some cases, although the statute enacts only that it shall be lawful for them to make the railway. 2. So also in another case, 3 where the undertaking was not yet entered upon, it was held that the company under such circum- stances were bound to execute the work, from the time when such act receives the royal assent. And in another case, 4 where by the return to the writ it appeared that the company had no sufficient funds to build the road, and that the period for exercising tbeir compulsory powers in obtaining lands had expired, and that the building of the road had thus become impossible, it was held that a mandamus must nevertheless be awarded. Writs of peremptory mandamus issued in each of the foregoing cases. But the first and last of these three cases came before the Exchequer Chamber, and were heard at great length before all the judges, and an elab- orate opinion delivered by Jervis, C. J., of the Common Bench, reversing the judgment of the Queen's bench, chiefly on the ground 2 The Queen v. The York & North Midland Railw. Co., 16 Q. B. 19; s. c. 16 Eng. L. & Eq. 299. This was decided by a divided court, Erie, J., dissent- ing, whose opinion ultimately prevailed in the Exchequer Chamber. Lord Gamp- bell, C. J., and the majority of the court, founded their opinion chiefly upon the celebrated judgment of Lord Eldon, in Blakemore v. The Glamorganshire Canal Navigation, 1 Mylne & Keen, 154. See also Reg. v. Ambergate, &c. Railw. Co., 23 Law Times, 246; s. c. 17 Q. B. 362, 957; Reg. v. Eastern Counties Railw., 1 Railw. C. 509. But the writ was held defective in this case, in not alleging that the company had abandoned or unreasonably delayed the work. Reg. v. Same, 2 Railw. C. 260; s. c. 10 Ad. & El. 531 ; 2 Q. B. 347, 569. 3 Reg. v. The Lancashire & Yorkshire Railw. Co., 7 Railw. C. 266; s. c. 16 Eng. L. & Eq. 327. 4 Reg. v. Great Western Railw. Co., 16 Eng. L. & Eq. 341. The extreme to which this very questionable doctrine was pushed in this case, seems to have proved, as is not uncommon in such cases, the point of departure, for its entire overthrow and abandonment. vol. i. 43 [*639] 674 MANDAMUS. PART VII. that there was no implied obligation upon the company, either lie- fore or after entering upon the work, to complete it. 5 * 3. This question arose and was examined in the courts of New York, somewhat, in one case, 6 where it was held that a railway cor- poration, which has completed its road between the terminal points named in the charter, forfeits its franchise by abandoning or ceasing to operate a part of the route. The remedy, however, in such cases, is not by injunction at the suit of the public, but by mandamus or indictment at the election of the state, or by proceed- ing to annul the charter of the corporation. It is here said, that it seems that the corporation owes a duty to the public to exercise the franchise granted to it, and that it cannot abandon a portion of its road and incur a forfeiture of that portion at its mere pleasure. 6 York & North Midland Railw. Co. v. Reg., 1 El. & Bl. 858 ; s. c. 18 Eng. L. & Eq. 199; Great Western Railw. Co. v. Same, 1 El. & Bl. 874. These decisions, rendered (in April, 1853), one of which is given at length in the last section, seem to have been acquiesced in, and they certainly conform to what has. ever been regarded as the law upon that subject in this country. And the same principle was maintained in Scottish Northeastern Railw. v. Stewart, 3 Macqueen's H. L. Cases, 382 ; s. c. 5 Jur. (N. S.) 607. But see Lind v. Isle of Wight Ferry Co., 7 Law Times (N. S.), 416 ; Mason v. Stokes Bay Pier & Railw. Co., 11 W. R. 80. It is here held, that where a notice from a railway company to take lands for the purposes of their undertaking has been followed by an award fixing the amount of purchase and compensation money, the court has jurisdiction to com- pel the company to complete the purchase, s. P. Metropolitan Railw. v. Wood- house, 11 Jur. (N. S.) 296 ; s. c. 34 L. J. (Ch.) 297. But see Quicke ex parte, 13 W. R. 921; s. c. 12 L. T. (N. S.) 113. 6 The People v. The Albany & Vermont Railw., 24 N. Y. 261 ; s. c. 37 Barb. 216. [*640] §155. IN WHAT CASES THIS IS THE PROPER REMEDY. 675 SECTION V. In what Cases this is the proper Remedy. 1. Where the act is imperative upon the com- pany to build road. 2. Mandamus more proper remedy than in- junction. 3. Commissioners of public ivorks not liable to this writ. 4. Public duties of corporations may be so en- forced. 5. Facts tried by jury. Instances of this remedy. 6. Cannot be substituted for certiorari when that is taken away. 7. Requiring costs to be allowed. 8. Other instances of its application. 9. Lies where the duty is clear, and no other remedy. 10. Not awarded to control legal discretion. 11. Does not lie to try the legality of an elec- tion. 12. Lies to compel transfer of stock. 13. Where a railway company omit to have damages estimated under the statute, they may be compelled to do so by man- damus. § 155. 1. But although it must be regarded as now definitively settled that the writ will not lie, in any case, coming within the categories laid down in the foregoing opinion of Jervis, C. J., yet where the act of the legislature is imperative upon the com- pany to build their road, this duty will still be enforced by man- damus. 1 * 2. But it has been held that such public duty cannot be enforced by injunction, at the suit of the attorney-general. 2 Corporations 1 Hodges on Railways, 665, in note ; Great Western Railw. Company v. Reg. Exch. Ch. 1853; 1 El. & Bl. 874; s. c. 18 Eng. L. & Eq. 211. The land- owners are so far interested in the building of a railway as to be entitled to bring the petition, and different owners of land may join. Reg. v. York and North Midland Railw. 16 Eng. L. & Eq. 299. But it has been held, that a land-owner could not apply for an injunction to restrain a railway company from applying for an act of the legislature repealing a former act, and to restrain them from paying back deposits. Hodges on Railways, 657, note ; Anstruther v. East Fife Railw., 1 Macqueen, Ho. Lds. 98. Nor can a land-owner maintain a suit in equity against a company for not completing their line, in pursuance of their act of incorporation. Heathcote v. North Staffordshire Railw. Company, 6 Railw. C. 358. The Lord Chancellor here held, reversing the opinion of the Vice- Chancellor, that in such case, a court of equity will leave the party to his legal rights. Reg. v. Dundalk & Enniskillen Railw., 5 L. T. (N. S.) 25; Lind v. Isle of Wight Ferry Co., 7 L. T. (N. S.) 416 ; State v. Hartford & New Haven Railw., 29 Conn. 538. And mandamus is the proper remedy by which to compel a canal company to bridge over a private way which it intersects. Habersham v. Savannah, &c. Canal Co., 26 Ga. 665. 2 Attorney-General v. Birmingham & Oxford Junction Railw., and two other Companies, 3 McN. & G. 453 ; s. c. 7 Eng. L. & Eq. 283. [*641] 676 MANDAMUS. PART VII. have for a very long time been compelled, by writ of mandamus, to perform duties imposed by statute. 3 A turnpike company was compelled to fence its road wbere it passed through the land of private persons, and it was held no excuse that the company had made satisfaction for the damages awarded to the land-owner, or thai, having completed their road, they had no funds with which to build the fences. 4 3. But it has been held, that Commissioners of Woods and For- ests, * who gave notice that they intended to take certain lands, in order to ascertain if they could be obtained at a certain price, and finding, by the claim of the land-owners, that the land could not be obtained, so as to bring the amount to be expended within the legislative limit, and the funds at the disposal of the commission- ers, abandoned their notice, could not be compelled by mandamus to take the land, such commissioners acting in a public capacity, although the rule is otherwise as to private railway companies. 5 4. Public duties of corporations have been enforced by man- damus, as repairing the channel and banks of a river, which, by their charter, they had been permitted to alter. 6 Also to make 3 The Hartford & New Haven Railway Company was chartered to construct and operate a railway from Hartford to the navigable waters of the harbor of New Haven. A steamboat company was afterwards chartered to run in con- nection with it to New York ; and the railway and steamboat line constituted a route that was of great convenience to the public. After the construction of the road and the use of it in connection with the steamboat line for several years, the railway company constructed a track diverging from its original track at a point a mile and a half from tide-water and running to the station of the New York & New Haven railway company, in the city of New Haven, and discontinued the running of its passenger trains to its original terminus at tide-water. This change incommoded travellers who wished to pass by the steamboat route, of whom there were many. Held, that a mandamus ought to be issued to compel the company to run passenger trains to its original terminus, and that the man- damus was properly applied for by the attorney for the state. State v. Hartford & New Haven Railw., 29 Conn. 538. 4 Reg. v. Trustees Luton Roads, 1 Q. B. 860. Lord Denman, C. J., said, " The law orders these parties to perform the duty if they build the road." Pat- teson, J., said, " If they had not adequate funds they ought not to have made the road." 5 Reg. v. Commissioners of Woods and Forests, 15 Q. B. 761 ; ante, § 88. c Keg. v. Bristol Dock Company, 1 Railw. C. 548; 2 Q. B. 64; 2 Railw. C. 599. A return that the law imposed no such duty, but that they had performed it, 'as near as circumstances permitted," is insufficient, as being a traverse of the law, or an evasion of the writ. Reg. v. Caledonian Railw., 16 Q. B. 19; s. c. 3 Eng. L. & Eq. 285. [*642] § 155. IN WHAT CASES THIS IS THE PROPER REMEDY. 677 alterations in the sewers of a city ; and where, in the act of parlia- ment, this duty is defined, " to make such alterations and amend- ments in the sewers as may be necessary in consequence of the floating of the harbor," it was held this was a proper form for the command of the writ." Also to restore a highway, intersected by a railway, to its former width. 8 * 5. In the English practice, questions of fact, arising on a man- damus, are tried by a jury. 9 So a railway company may by mandamus, be required to establish an uniform rate of tolls. 10 And also to proceed in the appraisal of land damages, after giving notice to treat. 11 So the sheriff or officer who holds the inquisition, may be compelled to proceed where he has no legal excuse, as where such officer assumed to direct a verdict against the claim, on the ground the applicant could not recover. 12 7 The King v. The Bristol Dock Company, 6 Barn. & Cress. 181. Man- damus is the appropriate remedy to compel a delinquent municipal corporation to discharge its liabilities under a subscription to stock of, or a loan of its credit to, a railway company. Commonwealth v. Perkins, 43 Penn. St. 400. A dec- laration for a mandamus to levy a rate to pay a debt is good, though it does not state the amount of the debt. Ward v. Lowndes, 6 Jur. (N. S.) 247 ; s. c. 29 L. J., Q. B. 40 ; Ellis & Ellis, 940. But see McCoy v. Harnett County, 5 Jones Law, 265. But in Austin, ex parte, 13 Law Times (N. S.), 443, it was held that the court will not in the first instance grant a rule for a mandamus calling on a public officer to make a rate for the payment of costs due to a suc- cessful appeal against a rate which had been quashed at quarter sessions. After the order for payment of costs is found good, if it is still disobeyed, a mandamus may be called for. Austin, ex parte, supra. See People v. Mead, 24 N. Y. 114. Mandamus will lie to compel a town committee to pay their dam- ages to land-owners for lands taken for a highway. Minhinnah v. Haines, 5 Dutch. 388 ; State v. Keokuk, 9 Iowa, 438. And see State v. County Judge, 12 Iowa, 237 ; State v. Davenport, id. 335 ; Knox County v. Aspinwall, 24 How. (U. S.) 376 ; Uniontown v. Commonwealth, 34 Penn. St. 293 ; Commonwealth v. Pittsburg, id. 496. * Reg. v. Birmingham & Gloucester Railw., 2 Railw. C. 694; 2 Q. B. 47; Reg. v. Manchester & L. Railw., 1 Railw. C. 523; 3 Q. B. 528; 2 Railw. C. 711. But in some cases it is requisite the duty should be strictly defined. Reg. v. The Eastern Counties Railw., 3 Railw. C. 22; 2 Q. B. 569. 9 Reg. v. London & Birmingham Railw., 1 Railw. C. 317 ; Reg. v. Manch. & Leeds Railw., 3 Q. B. 528; s. c. 2 Railw. C. 711; Reg. v. Newcastle-upon- Tyne, 1 East, 114. 10 Clarke v. L. & N. Union Canal, 6 Q. B. 898. But in this case judgment was given for defendant, by reason of the " insufficiency of the writ." 11 Ante, §§ 88, 99, et seq. and cases there cited. 11 Walker v. The London & Blackwall Railw., 3 Q. B. 744. In Carpenter v. [*643J tiTS MANDAMUS. PART VII. 6. But where the statute in terms takes away the remedy by certiorari, the court will not indirectly accomplish the same thing by mandamus. 18 7. A mandamus was awarded requiring the presiding officer to allow costs in a case before him, 14 for assessing land dam- ages, including witnesses, attendance by attorney at the inquest, * conferences and briefs, but not the expenses of surveyors, as such. 8. And where the commissioners refused to assess the value of land taken for a railway, on the ground that the prosecutor had no title to the same, it was held that he is entitled to have their judgment revised by a jury, and a mandamus will lie, on his behalf, to compel the commissioners to grant a warrant for a jury. 15 And a mandamus will issue, at the suit of supervisors of a town, to compel a railway to build a highway, 16 or bridge, 17 for public use. 9. No better general rule can be laid down upon this subject, than that where the charter of a corporation, or the general stat- Bristol, 21 Pick. 258, which was where county commissioners refused to assess damages sustained in consequence of constructing a railway, on the ground that the party applying did not own the land, and also refused to grant a warrant for a jury to revise their judgment, as required by R. S. c. 39, § 56. Held, that the party was entitled to a jury to revise, and that a mandamus would lie to compel the commissioners to grant a warrant. The court say, " Where application was made to county commissioners to estimate damages caused by the laying out of a railway, turnpike, or highway, the duty required of them would be a judicial duty. If they refused or neglected to perform it, this court would issue a man- damus commanding them to do it ; that is, to exercise their judgment on the matter. But when they had performed this duty, it being within their discre- tion, no other tribunal would have aright to interfere with or complain of the man- ner in which they had performed it." So also in Chicago, Burlington, & Quincy Railw. v. Wilson, 17 111. 123, it was held, that upon application to a judge, to appoint commissioners to condemn land for the use of a railway, he is compella- ble to act, if a case is made under the statute. His duty is ministerial, and not judicial, and a mandamus was accordingly awarded. 13 The King v. The Justices of West Riding of Yorkshire, 1 Ad. & El. 563. 14 The King v. The Justices of the City of York, 1 Ad. & El. 828 ; Reg. v. Sheriff of Warwickshire, 2 Railw. C. 661. 15 Carpenter v. Bristol, 21 Pick. 258. See Smith v. Boston, 1 Gray, 72; s. p. Fotherby v. Met. Railw., Law Rep. 2 C. P. 188. 16 Whitmarsh Township v. Phil., Ger., & N. Railw. Co., 8 Watts & Serg. 365. 17 Cambridge & Somerville v. Charlestown Branch Railw., 7 Met. 70. [*644J § 155. IN WHAT CASES THIS IS THE PROPER REMEDY. 679 ute in force, and applicable to the subject, imposes a specific duty, either in terms or by fair and reasonable construction and implica- tion, and there is no other specific or adequate remedy, the writ of mandamus will be awarded. But if the charter, or the general law of the state, affords any other specific and adequate remedy, it must be pursued. 18 10. So, too, it must be a complete and perfect legal right, or the court will not award the writ. 19 And the writ of mandamus is * never awarded to compel the officers, or visitors of a corporation, who have discretionary powers, to exercise such powers according to the requisitions of the writ, but to compel them to proceed and exercise them according to their own judgment, in cases where they refuse to do so. 20 And it may be laid down as a general rule, 18 Rex v. Nottingham Old Waterworks, 6 Ad. & El. 355 ; Dundalk Western Railw. v. Tapster, 1 Q. B. 067; Corregal v. London & Blackwall Railw., 3 Railw. C. 411 ; The People v. The Corporation of New York, 3 Johns. Cas. 79; Louisville, &c. Railw. v. State, 25 Ind. 177 ; People v. Hatch, 33 111. 9. It seems to be considered, that quo warranto will not lie to an eleemosynary cor- poration, and therefore mandamus is the necessary remedy to correct abuses. 2 Kvd on Corporations, 337, n. a. In King v. Dr. Gower, 3 Salk. 230, it was held mandamus was not the proper remedy to try the right. Rex v. Bank of England, Douglas, 524; Shipley v. Mechanics' Bank, 10 Johns. 484; The State v. Holiday, 3 Halst. 205 ; Asylum v. Phenix Bank, 4 Conn. 172. Unless the rights of the stockholders in this respect are restricted by the charter of the cor- poration, or by its rules and by-laws passed in conformity thereto, stockholders have a right of access at reasonable hours to the proper sources of information, to know how the affairs of the corporation are conducted ; and if such access is refused to them, mandamus is the appropriate remedy to enforce this right. Cockburn v. Union Bank, 13 La. Ann. 289. See also People v. Haws, 34 Barb. 69 ; Lamb v. Lynd, 44 Penn. St. 336. But see Briggs, ex parte, 1 Ellis & Ellis, 881; s. c. 28 L. J., Q. B. 272, where the assertion of the right to inspect ac- counts is somewhat modified. 19 Rex v. Archbishop of Canterbury, 8 East, 213; People v. Collins, 19 Wend. 56; 1 Wend. 318; Napier, ex parte, 18 Q. B. 692; s. c. 12 Eng. L. & Eq. 451. * 20 Rex v. Bishop of Ely, 1 Wm. Black. 81 ; Reg. v. Dean and Chapter of Chester, 15 Q. B. 513 ; Appleford's case, 1 Mod. 82. Lord HaWs opinion cited with approbation by Lord Campbell, C. J., 15 Q. B. 520; Rex v. Bishop of Ely, 2 T. R, 290; Murdochs Appeal, 7 Pick. 322; Parker, C. J., Attala County v. Grant, 9 Sm. & Mar. 77 ; Towle v. The State, 3 Florida, 202 ; 2 Q. B. 433 ; Ex parte Benson, 7 Cow. 3C3, and cases cited, 3 Binney, 273 ; 5 id. 87 ; 6 id. 456; 5 id. 536; 2 Penn. 517; 5 Wend. 114; 10 Pick. 244; 13 Pick. 225; 24 id. 343 ; People v. Columbia C. P., 1 Wend. 297. But the officers of a municipal corporation will be compelled to hold a court for the revision of the list of bur- [*645] 680 MANDAMUS. PART VII. that where any officers, or boards, have a legitimate discretion, ami are acting within their appropriate jurisdiction, -they cannot be controlled in their action by mandamus, issuing from a su- perior court. 21 If the visitor or trustee be himself the party in- terested in the exercise of the function, it is said to form an exception. 22 * 11. But in one case, 23 it is said to be an inflexible rule of law, that where a person has been de facto elected to a corporate office, and has accepted and acted in the office, the validity of the election and the title to the office can only be tried by proceed- ing on a quo warranto information. A mandamus will not lie, unless the election can be shown to be merely colorable. But where the right is clear, or where the old board refuse to surrender to the newly elected one, without any color of excuse, the new board may be put in possession of the insignia or functions of office by writ of mandamus, or, as held in some of the states, by bill in equity. 2 * gesses, notwithstanding the time for holding the same, in compliance with the terms of the statute, had elapsed, and notwithstanding the mayor, at the time of granting the mandamus, was not the same person who acted at the court. Regina v. Mayor and Assessors of Rochester, 7 El. & Bl. 910; s. c. 30 Law Times, 73. But it was held, in Heffner v. Commonwealth, 28 Penn. St. 108, that the plaintiff in the proceeding must show a specific legal right, which had been infringed ; and that the damage which the petitioner suffered, in common with other citizens, by the neglect of a municipal corporation to lay out an alley, although, by reason of his land lying adjacent, he was specially exposed to suffer loss by the neglect, would not entitle him to demand the writ : that the injury sustained by the peti- tioner must not only be different in amount or degree, but must be different in kind from that which falls upon the public in general, by the grievance complained of, to entitle him to the writ. The suit should be prosecuted by some public offi- cer, for the redress of an omission of duty affecting only the public interest and that of individuals incidentally. So, also, where the party is entitled to costs in a proceeding before commissioners to estimate land damages against a railway, unless the duty to award such costs is one which is plain and obvious, it will not be enforced by writ of mandamus. Morse, Petitioner, 18 Pick. 448. And the court will not grant a mandamus requiring parish officers to receive a pauper in obedience to an order of removal, the proper course being by indictment. Downton ex parte, 2 El. & Bl. 856. - 1 Waterbury v. Hart., Prov. & F. Railw. Co., 27 Conn. 146. n Reg. v. Dean and Chapter of Rochester, 17 Q. B. 1 ; s. c. 6 Eng. L. & Eq. 269. ,3 Reg. v. Mayor, &c. of Chester, 5 El. & Bl. 531 ; s. c. 34 Eng. L. & Eq. 59 44 Dart v. Houston, 22 Ga. 506. §156. PROPER EXCUSES, OR RETURNS TO THE WRIT. 681 12. And this is the proper remedy to compel a corporation to allow the transfer of stock upon their books, 25 or the company may be compelled to pay damages for such refusal by an action at law. 25 13. It was held in a Colonial Appeal to the Privy Council, that where the company proceeded to build one of their bridges so near a toll-bridge across the same water, as to lessen the value of the latter, without taking any steps to have such damage estimated under the statutory provision in such cases, that this did not so render the company wrong-doers, as to subject them to the ordinary action at law, which would have been the proper remedy, but for the statutory one. It was said the owner of the toll-bridge may have a writ of mandamus to compel the company to proceed and have the damage assessed under the statute. 26 SECTION VI. Proper Excuses, or Returns to the Writ. 1. Company may return that powers had ex- pired at date of writ. 2. May show want of funds to perform duty. 3. But cannot show that road is not necessary, or would not be remunerative. 4. May quash part of return, and require answer to remainder. 5. Counsel for writ entitled to begin and close. 6. Cannot impeach the statute in reply to the writ. 7. Peremptory writ cannot issue till whole case tried. 8. Will not quash return summarily. 9. No excuse allowed for not complying with peremptory tvrit. § 156. 1. It seems to be an unquestionable answer to the writ of mandamus to compel the company to complete their road, that the time for taking lands under the act had expired at the time of issuing the alternative writ, so that it had become impos- 25 Helm v. Swiggett, 12 Ind. 194. But where a shareholder executed a trans- fer of his shares, which he took together with the certificate of his shares to the company's office for registration, and left the transfer, but refused to leave the certificate for the inspection of the directors, it was held that the court would not compel the company to register the transfer. East Wheal Martha Mining Company in re, 33 Beav. 119. 26 Jones v. Stanstead, &c. Railw., L. R. 4 P. C. 98; 8 Moore P. C. (N. S.) 312. [*646] 682 MANDAMUS. PART VII. sible to build the road, as required in the writ. 1 But where, at the * time of the service of the alternative mandamus, the company had time to institute compulsory proceedings for taking lands, it was held, that if, instead of doing so, they attempted to defend the writ, and failed, it was at their peril, and the court would not excuse them, upon the ground that in the mean time their compulsory powers had expired. 2 2. And where it was attempted to defend against the writ, on the ground that it was not shown that the company had funds, the court said, in the last case referred to : " We shall presume that the company have funds." But it would seem that the want of funds, and of the ability to obtain them, if shown on the return to the alternative mandamus, might be an excuse. 3 And the com- 1 Reg. v. London & N. W. Railw., 16 Q. B. 864; s. c. 6 Eng. L. & Eq. 220, denying the authority of Reg. v. Birmingham & Gloucester Railw., 2 Q. B. 47, upon this point, as justifying the writ. And in the former case it was held, the prosecutors were guilty of laches in not sooner applying for the writ. But a plea that the cause of action did not accrue within six years, is a bad plea to a decla- ration for a mandamus, as the statute of limitations does not bar an action for such a writ. Ward v. Lowndes, 6 Jur. (N. S.) 247 ; s. c. 1 El. & El. 940, 956 ; 2 id. 419; 29 L. J. (Q. B.) 40. 8 Reg. v. York, Newcastle, & Berwick Railw., 16 Q. B. 886 ; s. c. 6 Eng. L. & Erj. 259 ; Reg. v. Lancashire & Yorkshire Railw., 16 Q. B. 906 ; s. c. 6 Eng. L. & Eq. 265; Reg. v. G. W. Railw., 1 El. & Bl. 263, 744; s. c. 18 Eng. L. & Eq. 364. In this case it was held, that the return must show that the company's compulsory powers for taking land had expired, and that they could not obtain the necessary land without exercising those powers. Where, on motion for man- damus to compel the company to build a bridge, it was stated on behalf of the company that they could not build it without purchasing additional land, and that their powers for that purpose had expired, and the prosecutor stated that they could build it without taking additional land, it was held that an alternative writ of man- damus should issue to the company, and that they might return their inability from want of power to purchase land. Regina v. Dundalk & Enniskillen Railw., 5 L. T. (N. S.) 25. Where mandamus was issued to a railway, reciting that premises in the occupation of B. had been injuriously affected by the works of the company, and that the company having declined to join in the appointment of an arbitrator to estimate the damage to B., he had appointed an arbitrator, who had duly made his award, and commanding the company to take up his award, and the company returned that B. also occupied other lands that were taken by the company, and that, before the execution of their works, it was agreed between him and the company that the company should pay to him a certain sum in satisfaction of the lands so taken, and the premises so injuriously affected, this was held a good return. Reg. ». West Midland Railw., 11 W. R. 857, in the Queen's Bench. 3 Lord Campbell, C. J., in Reg. v. London & N. W. Railw., 16 Q. B. 864; [*647] § 156. PROPER EXCUSES, OR RETURNS TO THE WRIT. 683 pany * are not estopped from making this plea by reason of having, in some instances, exercised their compulsory powers of taking land. 4 3. But it is no sufficient excuse that the road has become unnecessary, or that it would not prove remunerative, or that, in all reasonable probability, the funds which will come to the hands of the company will prove inadequate to the completion of the work. 5 4. By the English statute the court may quash part of a return to the writ which is bad in law, and put the prosecutor to plead to or traverse the remainder. But if the grounds of defence to the writ be repugnant, the court may, upon that ground, quash the whole. 6 5. The counsel for the crown are allowed to begin, although the return may be in the nature of a demurrer to the writ. 7 The validity of the writ may be impeached on the return. 8 6. In a case where the approaches to a bridge across a railway were not of the width required by the special act, a return to the writ of mandamus, that they were as convenient to the public as the original road, or as they could be made, in execution of the powers of the act, and that to widen them to the dimensions de- fined in the act would require more land, and that their powers for taking land compulsorily had expired before they were called upon to widen these approaches, is bad. 9 7. The peremptory writ will not be issued until all the matters s. c. 6 Eng. L. & Eq. 220; Reg. v. Ambergate, &c. Railw., 1 El. & Bl. 372; s. C. 18 Eng. L. & Eq. 222. In Reg. v. Eastern Counties Railw., 10 Ad. & El. 531, it was considered no objection to granting the writ that the company had not the requisite funds, and could not raise them, without a new act. 4 Reg. v. Ambergate, &c. Railw., 1 El. & Bl. 372; s. c. 18 Eng. L. & Eq. 222. 5 Reg. v. York & N. M. Railw., 16 Eng. L. & Eq. 299, not reversed upon these points ; Reg. v. L. & Y. Railw., 7 Railw. Cas. 266 ; s. c. 16 Eng. L. & Eq. 327. 6 9 Anne, c. 20; Reg. v. Mayor of Cambridge, 2 T. R. 456 ; 4 Burrow, 2008 ; Rex v. Mayor of York, 5 T. R. 66. • 7 Reg. v. St. Pancras, 6 Ad. & El. 314 ; State v. Directors of Bank, 28 Vt. 594. 8 Clarke v. Leicestershire & Northamptonshire Canal Co., 6 Q. B. 898; s. c. 3 Railw. C. 730. 9 Reg. v. Birmingham & Gloucester Railw., 2 Q. B. 47 ; 3 id. 223 ; 2 Railw. C. 694; Rex v. Ouse Bank Commissioners, 3 Ad. & El. 544. [*648] 684 MANDAMUS. PART VII. contained in the alternative writ are finally determined in favor of the application, or enough so to justify the writ. 10 * 8. The court will not quash a return summarily, or order it taken off the file, unless it is frivolous, so as to be an obvious insult, and contempt of court. 11 9. No excuse for non-compliance with a peremptory writ of mandamus is admissible. 12 It is no ground of objection to a man- damus, that a requisition is made on parties in the alternative, to do one of three things, if the duty enjoined by the act of parlia- ment forms one of them, and there has been a general refusal to comply with the requisition. 13 And the demand for the rate in this case was held sufficient, notwithstanding the church-wardens required the vestry to lay the rate, or do another act, which last was illegal. 13 SECTION VII. Where the Alternative Writ requires too much, it is bad, for that which it might have maintained. § 157. It seems to be well settled in the English practice, that if the writ issue, in the first instance, for some things which de- fendant is not bound to do, it cannot be supported, even as to 10 Reg. v. Baldwin, 8 Ad. & El. 947. This was where the alternative writ required two sums of money to be paid, and it had been found that one of the sums was due, and the inquiry was not finished in regard to the other. The court refused to grant a peremptory writ for the payment of the sum, about which the controversy was ended. 11 Reg. v. Payn, 3 Nev. & P. 165; The King v. Round, 5 Nev. & M. 427. But the return to a writ of mandamus must be very minute in showing why the party did not do what he was commanded to do. Reg. v. Port of Southampton, 1 EL, B. & S. 5; s. c. 7 Jur. (N. S.) 990; 30 L. J. (Q. B.) 244. 12 Reg. v. Mayor of Poole, 1 Q. B. 616. But after judgment for the crown, on a return to a writ of mandamus, the defendants having voluntarily, and with the prosecutor's assent, done the act commanded, the court will quash a peremp- tory writ of mandamus as unnecessary, and an abuse of the process of the court. Reg. v. Saddlers' Company, 3 El. & El. 42 ; is. c. 10 Ho. Lds. Cas. 404 ; 33 L. J. (Q. B.) 68. u Reg. v. St. Margarets, Leicester, 8 Ad. & El. 889. [*649] § 158. ENFORCING PAYMENT AWARDED AGAINST RAILWAYS. 685 those things which lie is compellable to perform. 1 But the writ may be awarded to complete such portions of their road as the company are still compellable to build, although from lapse of time it has become impossible to build the entire road. 2 But if the alternative writ commands more than is necessary to * be done to comply with the statute, it will be quashed, notwith- standing the party might have been entitled to this remedy to a certain extent. 3 SECTION VIII. Enforcing Payment of Money awarded against Railways. The enforcement of payment of money against corporations by mandamus. Where debt will lie, the party not entitled to mandamus. Mandamus proper to compel payment of compensation under statute. 4. Mandamus not allowed in matters of equity jurisdiction. 5. Contracts of company not under seal en- forced by mandamus. 6. Where a statute imposes a specific duty, an action will lie. § 158. 1. It seems to have been the more general practice to enforce the payment of money awarded against a corporation, in pursuance of a statute duty, by mandamus, where no other specific remedy is provided. 1 1 Reg. v. Caledonian Railw., 16 Q. B. 19 ; s. c. 3 Eng. L. & Eq. 285 ; Reg. v. East & West India Docks & Birm. June. Railw., 2 El. & Bl. 466; s. c. 22 Eng. L. & Eq. 113. 2 Reg. v. York & North M. Railw., 16 Eng. L. & Eq. 299. This case was reversed in Exchequer Chamber upon other grounds. 3 York & North Midland Railw. v. Milner, 3 Railw. C. 774, reversing, in the Exchequer Chamber, The Queen v. York & N. M. Railw., 3 Railw. C. 764. 1 The King v. Nottingham Old Waterworks, 6 Ad. & El. 355; Rex v. Trustees of Swansea Harbor, 8 Ad. & El. 439. In this case one party moved for a certiorari with a view to quash the proceedings, and the other for a manda- mus to carry them into effect. The rule for the former was discharged, and for the latter made absolute. Reg. v. Deptford Improvement Co., 8 Ad. & El. 910. Where a city council is authorized and required by law to levy and col- lect a tax upon the real and personal property of the city, sufficient to pay the interest upon bonds issued by the city in payment of a subscription to the stock of a railway company, and the council refuses to do so, and there is no specific legal remedy provided for such refusal, mandamus may be issued to compel them to perform that duty, at the instance of holders to whom the bonds have passed from the company. An express or explicit refusal in terms is not neces- [*650] (»sr> MANDAMUS. PART VII. * 2. But it has been held that an action of debt will lie upon the inquest and assessment of compensation for land. 2 And where, in granting to a railway the right to erect a bridge across the river Ouse, it was provided in the act of parliament, that, if the erection of such bridge should lessen the tolls of another bridge company upon the same river, after a trial of three years, as compared with the three years next preceding the erection of the railway bridge, the railway company should pay to the bridge company a sum equal to ten years' purchase of such annual decrease of tolls ; it was held that debt will lie for such purchase, and that mandamus is no more effectual remedy and ought not to be granted. 3 If the party have no right to execution, upon an award, mandamus will be awarded, otherwise not. 4 3. So the court will not enforce an ordinary matter of contract or right, upon which action lies in the common-law courts, as to compel common carriers' to perform their public duties, or special contracts, 5 the statute not requiring them to carry all goods sary to put the respondents in fault ; it will be sufficient that their conduct makes it clear that they do not intend to do the act required. The writ, in such case, may be applied for by any of the bondholders ; and it is not necessary that all the bondholders should be parties to it. Nor is it necessary to make the railway corporation, to which the bonds were originally executed, or the tax-payers of the city, or the commonwealth, parties to the bills, in Kentucky. And it is no objection to the issuing of the writ that an action has been brought against the city, upon some of the coupons, such action having been dismissed before judg- ment, on the petition for mandamus. Maddox v. Graham, 2 Met. (Ky.) 56. It is laid down in the above case, that a proceeding for a mandamus against the city council is virtually a proceeding against the corporation, and the judgment is obligatory upon the members of the common council who may be in office at the time of its rendition. And a change in the membership of this council does not so change the parties as to abate the proceeding. lb. 2 Corrigal v. The London & Blackwall Railw., 5 Man. & Gr. 219. 3 Reg. v. The Hull & Selby Railw., 6 Q. B. 70; Williams v. Jones, 13 M. & W. 628. Courts of equity will not interfere where there is a remedy before sheriffs' jury. East & West India D. & B. Railw. v. Gattke, 3 Mac. & G. 155; s. c. 3 Eng. L. & Eq. 59. 4 Rex v. St. Catherine's Dock Co., 4 Barn. & Ad. 360; Corpe v. Glyn, 3 B. & Ad. 801 ; Reg. v. The Victoria Park Co., 1 Q. B. 288. And in this case Den- man, C. J., says, the court should not go beyond our extraordinary interposition by mandamus, to require a corporation to make a call upon the shareholders, to pay debts, where the legislature had intrusted them with that power, and they had no standing capital. 6 Ex parte, Bobbins, 7 Dowl. P. Cases, 566. [*651] § 158. ENFORCING PAYMENT AWARDED AGAINST RAILWAYS. 687 offered. But where compensation is claimed for damages done under a statute, the proper remedy is by mandamus, although the party may claim that the company went beyond their powers, and thus committed a wrong for which the proper remedy is an ac- tion. 6 4. Nor will mandamus lie where the proper remedy is in equity, 7 * and the right is one not enforceable at law, but only in equity, as in matters of trust and confidence. But in a case where the act of incorporation allowed the company to sue and to be sued in the name of their clerk, it was held that execution could not issue against the clerk personally, and in giving judgment, Tindal, C. J., said : " There can be no doubt but that the funds of the trus- tees may be made answerable for the amount ascertained in the action, in case of a refusal to apply them, either by a mandamus or a bill in equity." 8 5. And where, after a rule nisi, for a mandamus to compel the company to summon a jury to assess compensation to land- owners, a contract was entered into between the land-owners and the agent of the company, wherein they agreed upon the payment of a stated sum, and also a weekly compensation ; upon the payment of the stated sum, and the execution of the contract, the proceedings were discontinued. The company paid the weekly sum for a time, and then discontinued the payment. The applica- tion for mandamus being renewed, the court held, that, as the contract was not under their seal, no action will lie upon it, against the company, 9 and it should therefore be enforced by man- damus. 10 6 Reg. v. North Mid. Railw., 2 Railw. C. 1 ; 11 Ad. & El. 955 ; Thicknesse v. Lancaster Canal Co., 4 M. & W. 472 ; Fenton v. Trent & Mersey Nav. Co., 9 M. & W. 203 ; Rex v. Hungerford Market Co., 3 Nev. & M. 622. 7 Rex v. The Marquis of Stafford, 3 T. R. 646. See Edwards v. Lowndes, 1 El. & B. 92; 20 L. J. Q. B. 404; 16 Eng. L. & Eq. 204. The relation of trustee and cestui que trust gives no right of action at law for money due. Par- doe v. Price, 16 M. & W. 451. The proper remedy is in equity, and mandamus will not lie. Reg. v. Trustees of Balby & Worksop Turnpike, 1 B. B. C. 134; 8. c. 16 Eng. L. & Eq. 276. 8 Worrnwell v. Hailstone, 6 Bing. 668. 9 Reg. v. Mayor of Stamford, 6 Q. B. 433. 10 Reg. v. Bristol & Exeter Railw., 4 Q. B. 162 ; 8. c. 3 Railw. C. 777. This seems to us rather a refinement. If the contract was really obligatory upon the company, it might as well be the foundation of an action, as to be enforced by mandamus. In Tenney v. East Warren Lumber Company, 43 N. H. 343, it was [*652] 688 MANDAMUS. PART VII. 6. It seems to be the general rule of the English law, that where ;i statute imposes a specific obligation or duty upon a corporation, an action will lie to enforce it, founded upon the statute, cither debt or case, according to the nature of the claim. 11 *SECTION IX. Tlie Writ sometimes denied in Matters of Private Concern. 1. Ilandamus denied to compel company to divide profits. 2. Allowed to compel production and inspec- tion of corporation books. 3. 117// compel the performance of statute duty, but not to undo what is done. 4. Allowed to compel the production of the register of shares, or the registry of the name of the owner of shares, and in other cases. 5. It is the common remedy for restoring per- sons to corporate offices of which they are unjustly deprived. § 159. 1. .Where the charter and subsequent acts relating to the Bank of England required the corporation to divide their profits semi-annually, a mandamus to compel the production of the books of the company, so as to show an account of their net income and profits, since the last dividend was declared, more than six months having elapsed, was denied. 1 Abbott, C. J., said it was in effect " an application, on behalf of one of several partners, to compel his copartners to produce their accounts of profit and loss, and to divide their profits, if any there be." It was also said, that this might very properly be done in a Court of Chancery, but a court of law is a very unfit tribunal for such a subject. " A mere trading corporation differs materially from those which are intrusted with the government of cities and towns, and therefore have im- portant public duties to perform." Bayley, J., said : " The court never grant this writ, except for public purposes, and to compel held, that evidence that a deed purporting to be the deed of a corporation was executed by agents duly authorized by it, is prima facie evidence that any seal affixed to it has been adopted by the corporation for that occasion. And the same point is maintained in Ransom v. Stonington Savings Bank, 2 Beasley, 212. 11 Tilson v. Warwick Gas-Light Co., 4 B. & C. 962; Garden v. General Cemetery Co., 5 Bing. (N. C.) 253. 1 Rex v. The Bank of England, 2 B. & Aid. 620. [*653] § 159. WRIT DENIED IN MATTERS OF PRIVATE CONCERN. 689 the performance of public duties." Best, J., said : " If we were to grant this rule we should make ourselves auditors to all the trading corporations in England." 2. But in a later case 2 it was held, that mandamus may be granted to compel the production and inspection of corporation books and records at the suit of a corporator, where a distinct controversy has already arisen, and the relator is interested in the question, and the former cases upon the subject are elaborately reviewed, and held to confirm this view. 3 * 8. The court has refused to grant a mandamus to a private trading corporation, to permit a transfer of stock to be made in their books. 4 In one case the writ was applied for, to compel a railway company to take the company seal off the register of shareholders. 5 Lord Campbell, C. J., said : " If I had the smallest doubt, I would follow the example of the high tribunal (Q. B. in Ireland), which is said to have complied with a similar application. But having no doubt, I am bound to act on my own view. The writ of mandamus is most beneficial, but we must keep its operation within legal bounds, and not grant it at the fancy of all mankind. We grant it when that has not been done which a statute orders to be done, but not for the purpose of undoing what has been done." 6 " It is said the court will compel * Rex v. Merchant Tailors' Company, 2 B. & Ad. 115. 3 Rex v. Hostmen of Newcastle-upon-Tyne, 2 Strange, 1223. So to inspect the court roll of a manor, at the instance of a tenant who has an interest in a pending question, and has been refused permission to inspect the court rolls by the lord of the manor. Rex v. Shelley, 3 T. R. 141. But not otherwise. Rex v. Allgood, 7 T. R. 746. It is not necessary a suit shall be pending, if a distinct question have arisen. R. v. Tower, 4 M. & S. 162. And in an action against an incorporated company, which had ceased to carry on business, a director of the company may be ordered by the court or a judge to give the plaintiff inspection of documents not denied to be in his possession, or under his control. Lacharme v. Quartz Rock Mariposa Gold Mining Company, 31 L. J. Exch. 335 ; s. c. 1 H. & C. 134. And the corporators may compel the inspec- tion of the stock ledger, if that contain important evidence, although the corpo- ration do not keep the books required by law. People v. Pacific Mail Steamship Co., 50 Barb. 280. 4 Rex v. The London Assurance Company, 5 B. & Aid. 899. 5 Nash, ex parte, 15 Q. B. 92. 6 The office of the writ of mandamus is to stimulate and not to restrain the exercise of official functions ; and after the officers have performed the duties imposed upon them, they are no longer subject to it. School Directors of Bed- ford Borough v. Anderson, 45 Penn. St. 388. vol. i. 44 [*654J 690 MANDAMUS. PART VII. the corporation to affix its seal, when it refuses to do so, without legal excuse but will not try the legality of an act, professedly done in pursuance of a statute." The difference seems to be one of form rather than substance, and to rest mainly upon the consideration, that, after the act is done, its legality had better be tested in the ordinary mode, by an action at law or in equity. 4. But the writ has been granted to compel the production of a register of shareholders, to enable a creditor to proceed against them." So, too, to compel the registry of the name of the owner of shares, properly transferred, or of the name of the personal * representative, in case of the decease of the owner. 8 But in some cases of peculiar necessity for specific aid by way of man- damus, as the delivery of a key to the party entitled to hold it, by the foundation of a private charity, 9 the writ has been awarded. 5. And there can be no doubt the Court of Queen's Bench has almost immemorially been accustomed to try the validity of mu- nicipal and other public corporate elections by quo warranto, which, in case of illegality found, will displace the incumbents, but not establish those rightfully entitled to the function, 10 man- 7 Reg. v. Worcestershire & Stafford Railw., Q. B. Weekly R. 1853-54, 482. 8 Ante, §§ 42, 44; Reg. v. L. & C. Railw., 13 Q. B. 998. No question is made here but the court will compel the company, by mandamus, to enter a transfer upon their books in a proper case, but the application was denied on other grounds. See Reg. v. Midland Counties & Sh. J. Railw., 9 L. T. (N. S.) 15 Ir. Com. Law, 514, 525 ; s. c. 151, 155. And see Helm v. Swiggett, 12 Ind. 194. But not where inspection of the certificate of shares was refused to the directors. East Wheal Martha Mining Co., in re, 33 Beav. 119. 9 Reg. v. Abrahams, 4 Q. B. 157. 10 Rex v. Williams, 1 Bur. 402; Rex v. Hertford, 1 Ld. Ray. 426; 1 Sal. 374; Rex v. Breton, 4 Burrow, 2260; Rex v. Cambridge, 4 Bur. 2008; Rex v. Tregony, 8 Mod. Ill, 127; Rex v. Turkey Co., 2 Burrow, 999; Anonymous, 2 Strange, 696. In some English cases the King's Bench seems to have alto- gether disregarded the distinction between public and private corporations, in exercising control over their functionaries. Rex v. Bishop of Ely, 2 T. R. 290. And in Rex v. St. Catharine's Hall, 4 T. R. 233, the refusal to grant the writ seems to be placed altogether upon other grounds. But it seems a mandamus will not be awarded to compel a voluntary society to recognize the rights of the minority. The King v. Gray's Inn, Douglass, 353; Rex v. Lincoln's Inn, 4 B. & C. 855. Where there is already one in the office de facto, mandamus will not be awarded, quo warranto being the proper remedy to try the title of the officer in possession. Rex o. Mayor of Colchester, 2 T. R. 259, 260. But in Rex v. Thatcher, it was awarded to the commissioners of land-tax to admit the person [*655] § 159. WRIT DENIED IN MATTERS OP PRIVATE CONCERN. 691 damns being requisite for that purpose. But whatever may be the English rule in regard to merely private corporations, it is certainly settled in this country that the courts will try the validity of an election and the question of usurpations, and the legality of amotions in private corporations n in this mode. But there is one * case where the court refused to try the title to an annual office by writ of mandamus, for the reason that it would prove unavailing. 12 But it has been awarded in England to restore a clerk to a butchers' company, a clerk to a company of masons, and sundry similar officers, 13 and in this country, to restore the trustee of a clerk having the majority of legal votes. 1 Dow. & R. 426 ; The People v. The Corporation of New York, 3 Johns. Cases, 79 ; the St. Louis County Ct. v. Sparks, 10 Missouri, 117; Bonner v. State, 7 Georgia, 473; Clayton v. Carey, 4 Maryland, 26. 11 Commonwealth v. Arrison, 15 S. & R. 131 ; People v. Thompson, 21 Wendell, 235 ; s. c. 23 Wendell, 537 ; People v. Head, 25 111. 325 ; State v. Common Council, 9 Wis. 254; State v. Boston, Concord, & M. R., 25 Vt. 433 ; In the matter of the White River Bank, 23 Vt. 478 ; Commonwealth v. The Union Fire and Marine Insurance Co., 5 Mass. 231; State v. Ashley, 1 Pike, 570; St. Luke's Church v. Slack, 7 Cush. 226. But in Gorman v. Board of Police, 35 Barb. 527, it is intimated that mandamus will not issue to restore an officer removed in an illegal manner, but for a sufficient cause. Martin v. Board of Police, id. 550. See to the same point Barrows v. Mass. Medical Society, 12 Cush. 402. And a fortiori mandamus lies where the office concerns the public or the administration of justice. Lindsey v. Luckett, 20 Texas, 516 ; Felts v. Memphis, 2 Head, 650. 12 Howard v. Gage, 6 Mass. 462. But this case was decided upon the ground that the statute of Anne not being in force in that state, the truth of the return to the alternative writ could not be tried till the term would expire. But the decision is scarcely maintainable even upon that ground. But it was held a good defence to a writ of mandamus to compel a township treasurer to pay an order for a teacher's salary, that his term of office had expired, and all the funds in his hands had in good faith been paid over to his successor. State v. Lynch, 8 Ohio (N. S.), 347. 13 Angell & Ames on Corporations, § 704. And where, by the custom of a parish, one churchwarden was appointed annually by the parishioners, and one annually by the rector, and the latter appointed a person who was not an in- habitant of or an occupier of property in the parish, it was held that a manda- mus to the rector to appoint a churchwarden was the proper process by which to question the validity of the appointment. Barlow in re, 30 L. J. Q. B. 271 ; 8. c. 5 L. T. (N. S.) 289. And see Reg. v. Heart of Oak Benefit Society, 13 W. R. 724. [*656] 692 MANDAMUS. PART VII. private academic corporation, 14 a member of a religious corpora- tion, and many similar officers. 16 ♦SECTION X. This Remedy lost by Acquiescence. — Proceeding must be Bona Fide. 1. Remedy must be sought at earliest conven- ii nl time. 2. Courts will not hear such case, merely to S< ttle the question. 3. In New York may be brought any time within statute of limitations. § 160. 1. The right to interfere in the proceedings of a corpo- ration by mandamus, is one of so summary a character, that it should be asserted at the earliest convenient time, or it will not be sustained. 1 And especially where, in the mean time, the facilities 14 Fuller v. The Trustees of the Academic School in Plainfield, 6 Conn. 532. The opinion of Daggett, J., here discusses the power of amotion of trustees and officers by eleemosynary corporations somewhat at length, and comments very judiciously upon the cases upon the subject. 15 Green v. The African Methodist Ep. Society, 1 Serg. & R. 254 ; Common- wealth v. St. Patrick Benevolent Society, 2 Binney, 441, 448 ; Commonwealth v. The Philanthropic Society, 5 Binney, 486 ; Commonwealth v. Penn. Ben. Institu- tion, 2 Serg. & R. 141 ; Franklin Ben. Association v. Commonwealth, 10 Penn. St. 357 ; Commonwealth v. The German Society, 15 Penn. St. 251. But if the society have the absolute power of expulsion, it would seem their judgment in the matter is not revisable. lb. But it was said, a'private person who makes a highway upon his own land, and dedicates it to public use had no such interest in the highway as to enable him o sue for penalties given against a railway which had cut through the highway and not restored it, and a mandamus to enforce the recovery of such penalty was denied on the ground that the prosecutor had no public duty in regard to the highway. Reg. v. Wilson, 11 Eng. L. & Eq. 403 ; 8. c. 1 El. & Bl. 597. 1 Rex v. Stainforth & Keadby Canal Co., 1 M. & S. 32 ; Rex v. The Com- missioners of C. Inclosure, 1 B. & Ad. 378; Reg. v. Leeds and Liverpool Canal Co., 11 Ad. & Ell. 316; Lee v. Milner, 1 Railw. C. 634, Appendix; Reg. v. London & N. W. Railw., 16 Q. B. 864; s. c. 6 Railw. C. 634, and Reg. v. Lancashire & Yorkshire Railw., 16 Q. B. 906 ; S. c. id. 654. So, in Connecticut, where by statute a school district can change its school-house only by a two-thirds vote, and a district which had an established school-house voted by a less majority to have the school kept for the season in a room furnished for the purpose within half a mile from the school-house, more convenient for the children generally, and the district committee kept the school there, a mandamus, being applied for by [*657] § 160. REMEDY LOST. — PROCEEDING MUST BE BONA FIDE. 693 for accomplishing a public work, or the public demand for it, have materially changed, the writ will not be awarded. 2 But it is often proper and necessary to wait till public works are completed, before moving for the writ. 3 2. The English courts decline to hear applications for manda- mus, * which are not bona fide, but merely to obtain the opinion of the court, 4 even where the prosecutor may have bona fide pur- chased shares in the corporation, but for the mere purpose of try- ing a question in which the public have an interest. 4 3. In New York it was held, that as there was no special limi- tation upon this remedy, it might be brought within the time fixed for the limitation of other similar or analogous remedies. 5 But this rule seems liable to objection in many cases. The English rule, that the party should suffer no unreasonable delay, in the opinion and discretion of the court, seems more just and equitable, and is countenanced by other American cases. 6 The decisions of the English courts are very strict upon this point. 7 some members of the district, tax-payers therein, and some of whom had children whom they wished to send to the school, to compel the district committee to have the school kept in the school-house, it appearing that at the time of the application the term of the school had half expired, and had nearly expired at the time of the hearing, this was held not to be such a case as called imperatively for the inter- position of the court by mandamus, it not appearing to be a permanent attempt to change the place of the school. Colt v. Roberts, 28 Conn. 330. See State 'v. Lynch, 8 Ohio (N. S.), 347. 2 Reg. v. Rochdale & Halifax T. Railw., 12 Q. B. 448. 3 Parkes ex parte, 9 Dowl. P. C. 614; Post, § 220. Reg. v. Bingham, 4 Q. B. 877 ; 3 Railw. C. 390. * Reg. v. Liverpool, M. & N. Railw., 21 L. J. Q. B. 284; 16 Jur. 149 ; 11 Eng. L. & Eq. 408 ; Reg. v. Blackwall Railw., 9 Dowl. P. Cas. 558. 5 The People v. The Supervisors of West Chester, 12 Barb. 446. 8 Mayor, &c. of Savannah v. State, 4 Ga. 26. 7 Reg. v. Townsend, 28 Law Times, 100. [*658] 694 MANDAMUS. PART VII. SECTION XL Mandamus allowed ivhere Indictment lies. 1. Party 7i)"!/ have mandamus sometimes net is indictable. 2. Allowed to compel company not to take up their rails. 3. Mill not lie where there is other adequate remedy. § 161. 1. It seems to have been considered that the fact that a railway or other corporation had exposed themselves to indictment by the very act or omission proposed to be remedied by mandamus, was no sufficient answer to the application. 1 But we are not to understand by this that the two remedies are regarded as in any just sense concurrent, and at the election of the party injured. An indictment is ordinarily no adequate redress for private wrong. The case of a nuisance, put by Lord Denman, in the last case, illustrates the subject fairly. The indictment only redresses the public wrong inflicted by a nuisance. One who suffers special damage is entitled to a private action, and sometimes to specific redress, in equity or by mandamus. * 2. Hence, where a railway company, after having completed their road, under an act of parliament, by which it was provided the public should have the beneficial enjoyment of the same, pro-' ceeded to take up the railway, a mandamus was awarded to compel them to reinstate it. 2 1 Keg. v. Bristol Dock Co., 2 Q. B. 64; s. c. 2 Railw. C. 599; Reg. v. Manchester & Leeds Railw., 3 Q. B. 528. 2 Rex v. The Severn & Wye Railw., 2 B. & Aid. 646. Abbott, C. J., said, in giving judgment : "If an indictment had been a remedy equally convenient, beneficial, and effectual as a mandamus, I should have been of opinion that we ought not to grant the mandamus ; " but it is not, " for a corporation cannot be compelled, by indictment, to reinstate the road." "The court may, indeed, in case of conviction, impose a fine, and that fine may be levied by distress ; but the corporation may submit to the payment of the. fine and refuse to reinstate the road." Grant on Corp. 270. And in State v. Hartford & New H. Railw. Co., 29 Conn. 538, this writ was awarded to compel the defendants to continue to run trains to connect with the steamboats on the Sound, after the company had formed a connection with the New Haven & New York Railw., and had discontinued run- ning trains across that portion of their road which connected with the steamboats. And it was here considered that a contract with the connecting railway to discon- [*659] § 162. JUDGMENT FOR MANDAMUS REVISABLE IN ERROR. 695 3. And it may safely be affirmed that the mandamus will be denied where there is other adequate remedy. 3 SECTION XII. Judgment upon Petition for Mandamus revisable in Error. §162. In those states where the court having jurisdiction to award the writ of mandamus is not the court of last resort, the judgment upon applications for such writs is revisable upon writ * of error. 1 But it is said not to be the province of a court of error to issue the writ of mandamus, unless the power is conferred by statute. 2 tinue connection with the steamboats for some equivalent benefit to both com- panies was void, as against good policy, and that it was a proper case for the public attorney to interfere by way of petition for mandamus. 3 Reg. v. Gamble & Bird, 11 Ad. & Ell. 09; Reg. v. Victoria Park Co., 1 Q. B. 288; Draper v. Noteware, 7 Cal. 276; Williams v. Judge of County Court, 27 Miss. 225; Trustees v. State, 11 Ind. 205; Bush v. Beaven, 1 H. & C. 500; s. c. 32 L. J. Exch. 54. But in People v. Hilliard, 29 111. 413, the court hold, that it is not indispensable that the petition should state that the relator is without any other sufficient remedy. If such appear to the court to be the fact, the alternative writ will not be quashed. Id. But see School Board v. People, 20 111. 525, contra. People v. Wood, 35 Barb. 653; Goodwin v. Glazer, 10 Cal. 333. But the existence of an equitable remedy is no ground for refusing mandamus. Commonwealth v. Commissioners of Alleghany, 32 Penn. St. 218. 1 Reg. v. The Manchester & Leeds Railw., 9 Q. B. 528, reversing the judg- ment of K. B. in s. C. 1 Railw. C. 523, this last hearing being in the Exchequer Chamber. 6 & 7 Vict. c. 67, § 2, gives the right to a writ of error. But upon general principles, it is as much revisable as judgment upon habeas corpus. Holmes ex parte, 14 Pet. U. S. 540. Cowell v. Buckelew, 14 Cal. 640. See also Columbia Ins. Co. v. Wheelright, 7 Wheat. 534. The matter of granting the writ of mandamus, being discretionary in the court, should not preclude a revision of the questions decided by the court below as matter of law. When the writ is denied as matter of discretion, that judgment is of course not revisable in a court of error. 2 Angell & Ames on Corp., § 697. [*660] 696 WRIT OF CERTIORARI. PART VII. * CHAPTER XX I Y. WRIT OF CERTIORARI. SECTION I. To revise Proceedings against Railways. 1. Lies to bring up unfinished proceedings, or revise those not according to the com- mon law. 2. This lorit is one of very extensive applica- tion, unless controlled by statute. 3. Where the case is fully heard on the appli- cation, judgment may be entered. § 163. 1. Where the proceedings against a railway are in a court of record, and according to the course of the common law, after final judgment the writ of error is the appropriate process for their revision in a superior court, and the writ of certiorari will not lie. 1 But the certiorari is the proper process to bring up an un- finished proceeding, 2 in an inferior court of record, or a summary 1 The King v. Inhabitants of Pennegoes, 1 B. & C. 142 ; s. c. 2 Dow. & R. 209 ; Queen v. Dixon, 3 Salk. 78. Certiorari is the appropriate remedy to revise erroneous rulings of county commissioners, when there is no mode of revision appointed by law. Mendon v. County Commissioners, 2 Allen, 463. The same principle is maintained in People v. Board of Delegates, 14 Cal. 479. It does not lie to review acts simply ministerial, but all acts of a judi- cial nature, whether of a court or a municipal board. Robinson v. Super- visors, 16 Cal. 208. And see, to the same point, People v. Board of Health, 33 Barb. 344; People v. Hester, 6 Cal. 679; Borough of Sewickley, 2 Grant's Cases, 136; Justice, &c. v. Hunt, 29 Ga. 155. But see Cam- den v. Mulford, 2 Dutch. 49 ; State v. Jersey City, id. 444. The power of review on a common-law certiorari extends not only to questions affect- ing the jurisdiction of the magistrate and the regularity of the proceedings before him, but to all other legal questions. Mullins v. People, 24 N. Y. 399 ; Jackson v. People, 9 Mich. 111. But see People v. Van Alstyne, 32 Barb. 131 ; People v. Board of Delegates, 14 Cal. 179. Only questions raised by the record can be considered. People v. Wheeler, 21 N. Y. 82. And see Frederick v. Clarke, 5 Wis. 191; Greenway v. Mead, 2 Dutch. 303; Low v. Galena & Chicago Railw., 18 111. 324 ; Mayo County, in re, 14 Ir. Com. Law, 392. 2 The writ of certiorari before judgment corresponds to the writ of error after it. Commonwealth v. Simpson, 2 Grant's Cases, 438. And a proceeding by [*661] § 163. TO EEVISE PROCEEDINGS AGAINST RAILWAYS. 697 * proceeding in such court, not according to the course of the com- mon law, after judgment thereon, and where there is alleged error in the proceedings. 1 2. This writ is of universal application, unless taken away by the express words of the statute, or where the superior court is not the proper tribunal to proceed with the cause. 3 And in such case the cause may be brought up, and any error corrected, and then remanded to the inferior court, with a writ of mandamus, in the nature of a procedendo ; or the mandamus may be awarded, in the first instance, directing the inferior court to proceed and finish the case upon its merits. 4 certiorari is like an appeal, and is governed by the same rule's, so that the plain- tiff can dismiss the case in the appellate court, and leave the whole matter as if no steps had been taken therein. Joliet, &c. Railw. v. Barrows, 24 111. 562. 3 Where a party has had no notice of an assessment of damages for land taken, until after the time limited for the appeal has expired, he may have the decision reviewed by certiorari. Joliet, &c. Railw. v. Barrows, 24 111. 562. And see McConnell v. Caldwell, 6 Jones Law, 469 ; Aycock v. Williams, 18 Texas, 392. In the last case it was held, that, if a justice of the peace grant a new trial without notice to the adverse party, who does not appear at the second trial, the latter may either enjoin the collection of the judgment thus rendered, or remove the cause to the District Court by certiorari. And certio- rari will be granted to bring up an order of Quarter Sessions which was void on the ground of interest in the justices. See McHeran v. Melvin, 3 Jones Equity, 195; Darling v. Neill, 15 Texas, 104; Robson in re, 6 Mich. 137; Clary v. Hoagland, 5 Cal. 476. And one against whom a judgment is sought to be enforced, though not a party to the proceedings, may apply for a certiorari. Clary v. Hoagland, supra. And see Reg. v. Bell, 8 Cox, C. C. 28 ; Reg. v. Hammond, 12 W. R. 208; Reg. v. London & Northwestern Railw., 12 W. R. 208. 4 Woodstock v. Gallup, 28 Vt. 587; s. c. 1 Redf. Am. Railw. Cases, 485; Ottawa v. Chicago, &c. Railw., 25 111. 43. And in New York the only way of re- viewing a decision of a justice of the peace in summary proceedings is by a certio- rari. Romaine v. Kinshimer, 2 Hilton, 519 ; Reg. v. Bristol & Exeter Railw., 11 Ad. & Ell. 202 ; Croffe v. Smith, 3 Salk. 79. It is here said : " There is no juris- diction which can withstand a certiorari. But if the certiorari be taken away, by the express words of the statute, the court will not indirectly accomplish the same thing by mandamus. Rex v. Justices of W. R. of York, in the Matter of Railway, 1 Ad. & Ell. 563 ; Rex v. Fell, 1 B. & A. 380 ; Rex v. Saunders, 5 Dow. & R. 611. Where the certiorari upon a given subject is taken away by act of parlia- ment, it must be understood as extending only to the terms of the act, and for something done in pursuance of it. Denman, C. J., Reg. v. Sheffield, A. & M. Railw., 11 Ad. & Ell. 194 ; s. c. 1 Railw. C. 537, 545. Patteson, J., " Where there is a total want of jurisdiction and parties have proceeded in defiance of, certiorari, it is not taken away." South Wales Railw. Co. v. Richards, 6 Railw. C. 197. See [*662] »"»!•>> WRIT OF CERTIORARI. PART VII. * 3. Where the case is fully heard in regard to its merits, upon the rule to show cause, and there is no dispute about the facts, it is common for the court of King's Bench to give judgment, without waiting for the record to be brought upon certiorari? sim- ilar to the course we have intimated in regard to applications for mandamus. 6 SECTION II. Where there is an Excess of Jurisdiction. § 1G4. Where there is an excess of jurisdiction, the appro- priate remedy ordinarily is by action of trespass. And in such cases the court have more commonly refused to give redress, either by certiorari or mandamus. 1 But it is not considered that a statutory provision, taking away the writ of certiorari, for any thing done under the act of incorporation, or the general statutes as to railways, applies to things done wholly without the jurisdiction conferred. 2 Jubb v. Hull Dock Co., 9 Q. B. 443. Denman, C. J., intimates, that where the certiorari is taken away, in regard to proceedings under an act of parliament, that will not deprive the party of that remedy, when the proceeding is complained of, as not coming within the act, although some part of the proceedings is con- fessedly within the act, citing Rex v. The Justices of Kent, 10 B. & C. 477. See Reg. v. St. Olaves, 8 Ellis & Bl. 529. The right to have proceedings re- vised in the Supreme Court does not deprive the party of the right to bring certiorari. Vanwickle v. C. & A. Railw. ; Bennett v. Same, 2 Green, 145, 162. A certiorari suspends all proceedings in a case till it is decided. Taylor v. Gay, 20 Ga. 77. In lie Edmundson, 17 Q. B. 67; s. c. 24 Eng. L. & Eq. 169. This was a case where the statute required the complaint to be made within six months after the cause of action arose, and for non-compliance with this requirement the court held the proceedings liable to be quashed, and granted the certiorari. 6 Ante, § 152. On certiorari the court will not reverse a judgment for error in taxing costs, but will correct the error in this respect. Mai-shall v. Burton, 5 Ilaning. (Del.) 295. 1 Reg. v. Bristol & Exeter Railw., 2 Railw. C. 99 ; 11 Ad. & Ell. 202; Reg. v. Sheffield & Ashton-under-Lyne & Manchester Railw., 11 Ad. & Ell. 194; s. C. 1 Railw. C. 537, 545. The court will rarely grant this writ where the party has an opportunity to litigate the question in an action at law. People v. Board of Health, 33 Barb. 344. And see Baltimore, &c. Co. v. Northern, &c. Railw., 15 Md. 193 : lVabo.lv v. Buentillo, 18 Texas, 313; Clary v. Hoagland, 13 Cal. 173. 2 Ante, § 163; Reg. v. Sheffield, A. & M. Railw., 11 Ad. & Ell. 194; s. C. [*663] § 165. JURISDICTION AND MODE OF PROCEDURE. 699 ♦SECTION III. Jurisdiction and Mode of Procedure. 1. Lies in cases of irregularity, unless taken away by statute. 2. Inquisitions before officers, not known in the law. 3. Granting the writ is matter of discretion. Defects not amendable. 4. Not allowed for irregularity in proceed- ings, or evidence, or form of judgment. § 165. 1. Although it is held that a statutory provision, deny- ing the certiorari, is to be limited to matters within the jurisdiction conferred, and will not restrict the power of the court in regard to matters wholly beyond the jurisdiction, the same rule cannot be extended to mere irregularity in the exercise of the jurisdic- tion. For unless the prohibition of the writ could apply to such cases, it could have no application, and it is incumbent upon the court to give it a reasonable operation and construction. 1 2. An inquisition taken before two under-sheriffs extraordinary, will be set aside on that ground. 2 But an inquisition taken before a clerk of the under-sheriff, and an assessor appointed pro hac vice by the sheriff, although none of the persons named in the act, for such an office, will not be quashed on certiorari? 3. The granting of the certiorari is matter of discretion, 4 al- though there are fatal defects on the face of the proceedings, which 1 Railw. C. 545; South Wales Railw. v. Richards, 6 Railw. C. 197; Reg. v. Lancashire & Preston Railw., 6 Q. B. 759; 3 Railw. C. 725. Where a jury, summoned under 8 & 9 Victoria, c. 18, § 68, have taken into consideration, in awarding compensation, one claim, among others, as to which (hey had no juris- diction, a certiorari lies, although such excess of jurisdiction does not appear upon the face of the proceedings, but it may be shown by affidavit. Penny in re, 7 Ell. & Bl. 6G0. 1 Reg. v. Sheffield, A. & M. Railw., 1 Railw. C. 537 ; 11 Ad. & Ell. 194. 2 Denny v. Trapnell, 2 Wilson, 379. This decision is upon the ground that the sheriff can only appoint one under-sheriff extraordinary. 3 Re S . v. Sheffield, A. & M. Railw., 11 Ad. & Ell. 194. Thus showing the disposition of the courts to sustain the proceedings when not in contravention of the express terms of the statute. 4 State v. Hudson, 5 Dutch. 115; Lantis in re, 9 Mich. 324; People v. Board of Health, 33 Barb. 314; Johnson v. McKissack, 20 Texas, 160; People v. Pea- body, 26 Barb. 437 ; Handle v. Williams, 18 Arkansas, 380; Mayo County in re 14 Ir. Com. Law Rep. 392; Reg. v. Reynolds, 13 W. R. 925; 8. c. 12 L. t! (N. S.) 580. [*664] 700 WRIT OF CERTIORARI. PART VII. it is sought to bring up. 5 The affidavits should swear positively * and specifically to the existence of the defects relied upon. 5 And where the party applying for the writ fails, from incompleteness in the affidavits, he will not have a certiorari granted him, upon fresh affidavits supplying the defects. 5 The conduct of the prosecutor, especially if it had a tendency to induce the defects complained of, is important to be considered in determining the question of dis- cretion, in regard to issuing the writ. 6 4. The court will not ordinarily quash proceedings in inferior tribunals for mere formal irregularity in the proceedings or the testimony received, especially when there was no objection made at the time ; nor will the form of the judgment or decree be consid- ered any sufficient ground for allowing the writ, provided substan- tial justice has been done. 7 5 Reg. v. Manchester & Leeds Railw., 8 Ad. & Ell. 413. Lord Denman says, '• 1 disclaim the principle, that we are to issue a certiorari to bring up the inquisition, on the ground that there may probably be defects ; we must clearly see that facts do exist which will bring the defects before us." And an individual member of a corporation cannot carry on suit by bringing certiorari in the name of the corporation without the consent of a legal majority of the members thereof. Silk Manufacturing Co. v. Campbell, 3 Dutcher, 539. 6 Reg. v. South Holland Drainage, 8 Ad. & Ell. 429. 7 Salem & South Danvcrs Railw. v. County Commissioners, 9 Allen, 563. [*665] §166. INFORMATIONS IN THE NATURE OF QUO WARRANTO. 701 *CHAPTER XXV. INFORMATIONS IN THE NATURE OF QUO WARRANTO. 1. General nature of the remedy. 2. Its exercise confined to the highest court of ordinary civil jurisdiction. 3. In the English practice, this remedy not extended to private corporations. 4. In this country it has been extended to such corporations. 5. This remedy will only remove an usurper, but not restore the one rightfully entitled. 6. Will not lie where railway company open part of their road. 7. Nor where company issue stock below par, or begin to build road before subscription full. 8. Form of the judgment. 9. Rules in regard to taxing costs. 10. Used to test corporate existence and power. II.' Penalties provided by charter cannot subsequently be increased to a for- feiture. 12. But a grant of corporate franchises may be annulled when its purposes have failed. 13. Scire facias the proper remedy to deter- mine, forfeiture. 14. Insufficient excuses for failure to repair a turnpike road. 15. This remedy does not supersede any equitable redress. § 166. 1. This is a subject of very extensive application to corpo- rations, for the purpose of determining when they have forfeited their corporate franchises, or usurped those not rightfully belonging to them, and for numerous other purposes. 1 It will be found treated very much at length in treatises upon corporations. 2 We should scarcely feel justified in going into the subject further here than it has a special application to railways. The form of the proceedings in modern times is by information of the at- 1 See Palmer v. Woodbury, 14 Cal. 43 ; Gano v. State, 10 Ohio (N. S.), 237 ; Parker v. Smith, 3 Minn. 240; Cleaver v. Commonwealth, 34 Penn. St. 283; People v. Ridgely, 21 111. 65; Scott v. Clark, 1 Clarke, 70; Mississippi, &c. Railw. v. Cross, 20 Ark. 443, 495. 2 Angell & Ames on Corporations, §§ 731-765. See State v. Mississippi, &c. Railw., 20 Ark. 443, 495 ; State v. Brown, 5 Rhode Island, 1 ; Lindsey v. Attor- ney-General, 33 Miss. 508. The information may set forth specifically the ground of forfeiture relied upon, or may call upon the corporation to show by what war- rant they still claim to exercise their corporate franchises ; and the information, like any other criminal information, is regarded as amendable. Commonwealth v. Commercial Bank, 28 Penn. St. 383. And the information must acquaint the court with the charter of the company, so as to show its powers and duties. Danville, &c. Co. v. State, 16 Ind. 456. 702 INFORMATIONS IN THE NATURE OP QUO WARRANTO. PART VII. torney-general, or other public prosecuting officer, on behalf of *the state, or sovereignty, in the nature of a quo warranto, upon which a rule issues to the defendant to show by what warrant he exercises the function or franchise called in question. 3 These pro- ceedings are now very much controlled in England and in the American states by statute defining the form of process and the jurisdiction of the courts in regard to them. 2. In the absence of special provisions, the highest courts of ordinary civil jurisdiction are accustomed to exercise the prerog- ative right of sovereignty, to issue this process, as well as other prerogative writs, such as a mandamus, certiorari, procedendo, prohibition, &c. In some of the states the courts refuse to ex- ercise any such prerogative rights. 4 And in others this power is, by statute, conferred upon the Court of Chancery, but in other forms. 5 3. The English courts do not seem to have allowed the exercise of this proceeding in the case of mere private corporations, although there are numerous cases in the English books of its exercise in regard to, municipal corporations, 6 and others of an important pub- lic character. 3 State v. Brown, 33 Miss. 500. * State v. Asliley, 1 Pike (Ark.), 279; State v. Turk, Mart. & Yerg. 287; Attorney-General v. Leaf, 9 Humph. 753. See also State v. Merry, 3 Missouri, 278 ; State v. McBride, 4 id. 303 ; State v. St. Louis P. M. & Life Ins. Co., 8 id. 330, where in the latter state it was held the writ should issue. In Pennsylvania the Supreme Court has authority to try by mandamus or quo warranto whether or not a contract entered into between two different corporations is in excess of the lawful powers of either, and if either corporation is exercising rights or fran- chises to which it is not entitled, then to oust it therefrom ; and the proceeding may be either at common law or in equity, provided the right of trial by jury is not interfered with. Commonwealth v. Delaware & Hudson Canal Co., 43 Penn. St. 295. 5 State v. Turk, Mart. & Yerg. 287; State v. Merchants' Ins. Co., 8 Humph. 253 ; Attorney- General v. Leaf, 9 id. 753. 6 Rex i: Williams, 1 Bur. 402 ; Rex v. Breton, 4 Burrow, 2260; Rex v. High- more, 5 Barn. & Aid. 771 ; Rex v. M'Kay, 4 B. & C. 351 ; Smyth ex parte, 11 W. R. 754; s. c. 8 L. T. (N. S.) 458; Reg. v. Hampton, 13 L. T. (X. S.) 431. The same rule obtains in regard to this proceeding in this respect in England as in regard to mandamus. Ante, § 155 ; Rex v. Sir AVm. Lowther, 1 Strange, 637 ; Rex v. Mousley, 8 Ad. & Ell. (N. S.) 957, decided in 1846, where it is held that the mastership of a hospital or a grammar school was not of so public a character as to justify the exercise of this remedy ; nor the office of a churchwarden. Barlow in re, 30 L. J. (Q. B.) 271 ; s. c. 5 L. T. (N. S.) 289. [*667] § 166. INFORMATIONS IN THE NATURE OF QUO WARRANTO. 703 * 4. But there is no question that in the American states this form of proceeding is extended to aggregate corporations in gen- eral, and more especially to the case of banks and railways, which partake in some sense of a public character." The general prin- ciples which we have found applicable to the subject of mandamus, will, for the most part, apply to this proceeding. 8 5. The court cannot establ sh corporate officers, who would have been elected had all the legal votes offered been received by the inspectors. 9 The only remedy is to set aside the election. And the court will not proceed by mandamus to fill an office until the title is first tried. 10 7 Commonwealth v. Arrison, 15 Serg. & Rawle, 128 ; The People v. Thomp- son, 21 Wend. 235 ; s. c. 23 id. 537 ; Commonwealth v. Union Ins. Co., 5 Mass. 231 ; People v. River Raisin & Lake Erie Railw., 12 Mich. 381. See ante, § 153; State v. Concord & M. Railw., 25 Vt. 433; Grand Gulf Railway and Bank v. State, 10 Sm. & M. 427 ; State v. A. P. Hunton and others, 28 Vt. 594. But if an election of managers of a corporation be not disputed during their term of office by quo warranto, and they are permitte I to act throughout their term as managers de facto, the legality of the next election cannot be questioned for any vice or irregularity in the first. A writ of quo warranto brought during the term of an office may be tried after the term has expired, but title to a term of office already expired, at the issue of the writ, cannot be determined in this manner by proceedings instituted against those afterwards succeeding to the office. Com- monwealth v. Smith, 45 Penn. St. 59. This writ will be granted, although the defendant lias resigned the office, if the object of the relator is not only to cause the defendant to vacate the office, but to establish another candidate in the office, as the relator is entitled in such case to have judgment of ouster, or a disclaimer upon the record. Queen v. Blovzard, Law Rep. 2 Q. B. 55. In Neall v. Hill, 16 Cal. 145, it is said that the removal of a mere private or ministerial officer of a corporation is a right that belongs to the corporation alone, and the courts have no jurisdiction to remove such officer, or, it seems, even to enjoin him from acting. 8 Ante, chap. xxni. And see State v. Commercial Bank of Manchester, 33 Miss. 474, where the acts and omissions that will allow a forfeiture of the charter by quo warranto, are discussed. 9 In the matter of the Long Island Railw., 19 Wendell, 37; 2 Am. Railw. C. 453. In quo warranto against a usurper by a claimant, it is competent for the court to oust the usurper without determining the right of the claimant. Gano v. State, 10 Ohio (N. S.), 237. See Doane v. Scanned, 7 Cal. 393; People v. Same, id. 43^. One who is relator in a qim warranto, on the ground of the use of blank voting papers, but who has previously used blank voting papers on the same and former elections, and has been formerly elected in that mode, is pre- cluded from maintaining the writ upon that ground. Sed quaire. Queen v. Lofthome, L. R. 1 Q. B. 433. 10 Rex v. Truro, 3 B. & Aid. 590. 704 INFORMATIONS IN THE NATURE OF QUO WARRANTO. PART VII. * 0. And where a railway company were authorized to make a line, with branches, and they completed a portion of it, but aban- doned other parts of it, this is not a public mischief, which will entitle the attorney-general to file an information, in the nature of a quo warranto against the company, to prevent them from opening the part completed, until the whole is perfect. 11 7. And an information in the nature of a quo warranto, under the Massachusetts statute, will not lie against a railway company, in behalf of a stockholder, merely because they issued stock below the par value, 12 and began to construct their road, before the requisite amount of stock was subscribed, it not appearing that the petitioner's private right was thereby put at hazard. 13 8. The form of the judgment in proceedings of this character will depend upon the facts proved, and the object to be attained. Where the defect in defendant's right is merely formal, like the omission to take the requisite oath, the judgment is for a suspen- sion * of the exercise of the function until qualified by compliance 11 Attorney-General v. Birmingham Junction Railw., 3 McN. & Gor. 453; s. c. 8 Eng. L. & Eq. 243. 12 See Howe v. Derrel, 43 Barb. 504 ; Commonwealth v. Farmers' Bank, 2 Grant's Cas. 392. 13 Hastings v. Amherst & Belchertown Railw., 9 Cush. 596. In this case the charter provided that the road extend " through Amherst." Another section of the charter provided that the road might be divided into two sections, one ex- tending "to the village of Amherst," and the other from " Amherst to Montague." It was held, that taking land for the road, upon a route not terminating "in either village of Amherst," was not the exercise of a franchise, not granted by the char- ter. Any material departure from the points designated in the charter for the location of a railway, is a violation of the charter, for which the franchise maybe seized upon quo warranto, unless the legislature has waived this right of the state by acts recognizing the legality of such violation of the charter. Mississippi, &c. Railw. v. Cross, 20 Ark. 443. Where an act incorporating a railway provided that no subscription should be received and allowed, unless there should be paid to the commissioners at the time of subscribing five dollars per share, and this provision was not complied with, but the corporation organized itself, elected directors, &c, and began the construction of its road, by making contracts to grade it, some of the contractors not being aware of this failure to make the stipulated payment on the shares at subscription, and one of the stockholders, who was aware of that failure when he became a stockholder, and who had voted at the election of directors, and otherwise aided in setting up the corporation, applied to the court for leave to file an information in the nature of a quo warranto against the directors, to compel them to show by what authority they exercised their powers : it was held that this application should be rejected. Cole v. Dyer, 29 Ga. 434. [*669, 670] § 166. INFORMATIONS IN THE NATURE OF QUO WARRANTO. 705 with the requisite formality. 14 But if there be shown, or con- fessed, a total defect of title in defendant, there is a judgment of ouster or forfeiture. 15 And where it is intended to dissolve the corporation, judgment to that effect should be given in form. 15 9. The relator is liable to costs if he fail, and is ordinarily entitled to recover costs if he prevail. But where the office is one where the party is compellable to serve, and is accepted and held in good faith, it is not common to allow costs against the incum- bent upon judgment of ouster. 16 10. In some of the states a process or proceeding under the name of " Quo Warranto " has been applied to test the question of corporate existence and power, on the ground of forfeiture of cor- porate rights by means of the omission to perform acts required by the charter, or of an excess of power having been resorted to, in either case in violation of granted powers and duties. 17 11. And where the charter of a plank road company provides for the security of travel, and for the enforcement of the duty of the company by suitable penalties, and the legislature, after the road was built and in use, imposed an entire forfeiture of the whole franchise of the corporation for failure to keep any portion of the road in repair, it was held to be such a modification of the charter as did not come within the proper exercise of the police power of the state, and therefore void as a violation of the contract in the grant of the charter. 18 12. But where a turnpike charter provides penalties upon the company and its agents for neglecting to keep the road in good and perfect repair, such provision cannot be held to deprive the state of its sovereign power to 'annul a grant when its purposes have failed, through either the positive acts or neglect of the grantees ; and when the fact of such act or neglect is duly estab- lished, the special remedy provided by the charter will be regarded as merely cumulative. It is of the very essence of a corporation, 14 Rex v. Clarke, 2 East, 75. But a judgment of ouster will conclude the party in any subsequent proceeding. lb. 15 State v. Bradford Village, 32 Vt. 50; Rex v. Tyrrell, 11 Mod. 335. 16 Rex v. Wallis, 5 T. R. 375 ; State v. Bradford Village, supra. 17 Danville & W. L. Plank-Road Co. v. The State, 16 Ind. 456. See also The People v. J. & M. Plank-Road Co., 9 Mich. 285, where the extent of the remedy and the form of procedure is extensively discussed, but by a divided court. 18 The People v. J. & M. Plank-Road Co., 9 Mich. 285. 45 [*670] 706 INFORMATIONS IN THE NATURE OF QUO WARRANTO. PART VII. *as a political existence or abstraction, that it should always be liable to dissolution by a surrender of its corporate franchises, or by a forfeiture of them, either by non-user or misuser. 10 13. In a case where the statute directed the public prosecuting officers to take proceedings to determine whether the charter and franchises of a turnpike company had become forfeited by non- user or abuser, where no form of remedy is prescribed, it was held that scire facias was the proper one to be adopted, and all that is required to be set forth in the writ is enough to inform the company of the causes of complaint and the extent of redress sought. 19 This procedure is very much the same, in effect, as that by quo warranto, already discussed, except that it is in the form of a civil action. 19 14. It is no excuse for a turnpike company not keeping its road in repair, that the state have chartered a railway along the same route, and thereby disabled the company from maintaining its road in the state of repair required by the charter. 19 Nor is it a bar to the proceedings that the company have applied all their tolls to the repair of the road. 19 15. This remedy under the Massachusetts General Statutes, 20 in order to redress an injury to private rights or interests from the exercise by a private corporation of a franchise or privilege not conferred by law, does not supersede the jurisdiction in equity in cases of private nuisance. 21 19 Wash. & Bait. T. Road Co. v. The State, 19 Md. 239. The particular forms of the pleading, both on the part of the plaintiff and defendant, are here extensively discussed, as well as many questions in regard to the admissibility of evidence. 80 Chap. 145, § 16. 31 Fall River Iron Works v. Old Colony & Fall River Railw., 5 Allen, 221. [•671] APPENDIX OF LATER CASES. APPENDIX OF LATER CASES REPORTED WHILE THE WORK WAS IN PRESS. CORPORATIONS. Sales of shares on the stock exchange, custom and usage. In the recent case of Merry v. Nickalls, Law Rep. 7 Ch. App. 733, the effect of sales on the stock exchange is again largely reviewed by the Lords Justices, and most of the former cases upon that subject brought under consideration. It was here held that, where the jobber for the vendee of shares gave the name of an infant as the vendee, he was not thereby exonerated from responsibility to indemnify the vendor from new calls or other charges upon the shares ; inasmuch as he had not complied with the fair construction of the rule of the exchange, requiring him to name one as transferee who was capable of accepting the same, an infant having no capacity to bind himself by such a con- tract. Maxted v. Paine, ante, vol. i. p. 138, was approved, and Rennie v. Morris, Law Rep. 13 Eq. 203, was overruled. The judgment of Blackburn, J., in the second action of Maxted v. Paine, Law Rep. 6 Eq. 132, is here commented upon. The court say the contract is not between the brokers of the vendor and vendee, but between the vendor and the party whom the broker gives up as the ultimate purchaser ; and therefore until the broker names such person as the vendee, and who is capable, and consenting to stand in that place, the jobber is not discharged from liability to the vendor. Issue of stock. An assignee may sue a corporation for refusing to issue or transfer certificates of stock, although the assignment was not made on its books, in pursuance of the charter and by-laws. Bait. City Passenger Railw. v. Sewell, 35 Md. 238. In an action at law against a corporation' for refusing to issue or trans- fer stock, the plaintiff may claim, in the same suit, the value of the stock, together with the dividends due thereon ; and in such case the 710 APPENDIX OP LATER CASES. measure of damages would be the value of the stock at the time of the demand, together with the dividends accrued thereon at that time, with interest to the day of trial. lb. Misapplication of joint stock. In the case of Pickering v. Stephenson, Law Rep. 14 Eq. 322, before Vice-Chancellor Wickens, a very learned and able equity judge, the question of the misapplication of the funds of joint-stock companies anise in a novel form, and received a very marked and sensible deter- mination. The application was for an injunction upon the English directors of a railway company, established by the firman of the Turk- ish Sultan, from Smyrna to Aidin, in Turkey, against applying the funds of the company to pay the expense of a libel suit, instituted by themselves against a person who had acted as secretary of the commit- tee, and to compel the directors to refund the money already so applied by them. The learned judge declared, that as there was no evidence of the Turkish law upon the subject, by which this action must be gov- erned, he would assume that it was part of the universal law of all civilized and commercial countries, that the ultimate governing author- ity, whether directors or shareholders, of all joint-stock companies, whether partnerships or corporations, were bound by the very law of the association to apply the funds solely to the purposes of the organi- zation, and that all the statutes, rules, and by-laws of the association were to be construed with reference to the existence of such law. The learned judge said, if there was evidence before him that the rule of the Turkish law were different, he would be bound to follow it. But, in the absence of all evidence upon the point, he must act upon the universal rule of law already stated. The order was made accord- ing to the prayer of the bill, except as to refunding what had been already paid, which, under the circumstances, was not decreed. EMINENT DOMAIN. Constructive power to take private property. Power to appropriate the property of a railway in such a manner as to destroy or greatly injure its franchise or render it impossible, or very difficult, to prosecute the object of its organization, cannot be in- ferred from the general grant of power to establish a road across its track, but such general grant is sufficient to warrant the laying of a road across its track wherever public necessity demands it ; and as to whether that public necessity exist, the City Council must be the judge. City of Hannibal v. Hann. & St. Joseph Railw., 49 Mo. 480. APPENDIX OF LATER CASES. 711 Compensation. When private propei'ty is taken for a public use, the "just compen- sation therefor," which the Constitution requires, consists in paying the owner not only the value of the portion taken, but also the diminution of the value of that from which it is severed. Bigelow v. W. W. Railw., 27 Wis. 478. Designation of the route of a railway. A railway company, in determining upon its route, acts arbitrarily. It is not required to consult any one. Norton v. Wallkill Val. Railw., 61 Barb. 474. No one in fact is entitled to any notice on the subject until the route has been actually designated, and the map and profile filed. Then, for the first time, the couqmny is in a condition to notify the property holders whose land is to be taken. lb. And any person feeling aggrieved may then, within a certain time after written notice of the route, apply to a justice of the Supreme Court for the appointment of commissioners, who, on a hearing of the parties, are to affirm or alter the route. lb. Surveys of the line of railway and notice to land-owners. Where the statute requires the projectors of new lines of railway to file a map and profile of the same, and to give notice of the same to all land-owners affected by the same, such notice cannot be dispensed with. Ex parte The New York & Boston Railw., 62 Barb. Taking land by railway company. When the plaintiff's land was protected from the flowage of a river by a ridge of land, no part of which was on his land, and the defend- ants, in constructing their road, made a deep cut through the ridge, through which the water, in floods and freshets, came upon the plain- tiff's land, carrying sand, gravel, and stones upon it, the court held this amounted to a taking of the land within the Constitution, and if the legislature intended to authorize it, as no provision was made for com- pensation, such authorization was of no force, and the defendants were liable for the damages, even if they had constructed their road with due care and skill. Eaton v. Boston, Concord, & Mont. Railw., 51 N. H., not reported. Lands injuriously affected. The plaintiff had established upon his own land arrangements for rifle practice, and, to secure range for the bullets beyond his own land, had obtained the consent of the owner of marsh lands next adjoining 712 APPENDIX OF LATER CASES. his own, upon the payment of £49 per annum as an agreed commutation for .ill damage to cattle grazing on the marsh; and had also obtained a lease ..(' meadows beyond for the same purpose. The first arrange- ment was liable to be terminated at any time by either party, on giving the prescribed notice. The defendants, under parliamentary powers, laid a road to their works across the meadows, which rendered it im- possible t" continue the rifle practice. The plaintiff took proceedings under the Lands Clauses Act to recover compensation for the injury he had sustained, and it Avas held he was entitled to recover, and that the precarious nature of his title to the marsh land was no bar to his claim, but only to be considered in estimating the amount of the damage. Holt v. Gas Light & Coke Co., L. R. 7 Q. B. 728. Where the plaintiff was the occupier, under a long lease, of a house and premises in the city of London, which were opposite a draw-dock in the river Thames, where he carried on the business of a carman and contractor. By reason of the nearness of the premises to the dock and the convenient access thereto, they were of more value, either for use or sale. The defendants, in constructing the Thames Embankment, filled in the dock, and thus cut off the access to the public street ad- joining the plaintiff's premises, which thereby became, as premises either to sell or occupy in their then state, and with reference to the uses to which any owner or occupier might put them, permanently damaged and lessened in value. Held, that the plaintiff's interest was injuriously affected within the meaning of the statute, and that he was entitled to compensation. The case of Rickett v. Met. Railw. Co., Law Rep. 2 H. Lds. 175, distinguished ; Beckett v. Midland Railw. Co., Law Rep. 3 C. P. 82, sustained. M'Carthy v. Met. Bd. of Works, Law Rep. 7 C. P. 508. Riparian owners. A riparian owner who is cut off from access to a navigable river by a railway being built between high and low water mark, has no claim for damages against the company. Tomlin v. Dubuque, &c. Railw., 32 Iowa, 106. Railway station. The approaches to a railway station upon land taken by the company for that purpose, and prepared and kept in repair by them, is not a public street, or highway, over which the public have a right of passage. Curtis v. Emery, Law Rep. 7 Exch. 369. Railway crossiny a hiyhway. A railway company whose track crosses a highway cannot be held liable for the consequences of obstructions placed thereon by a stranger, if the material constituting the obstructions is neither the property, nor APPENDIX OF LATER CASES. 713 under the care and control, of the corporation, although the existence of the obstruction is brought to the knowledge of its agents. Pitts., Ft. Wayne, & Chi. Railw. v. Maurer, 21 Ohio (N. S.), 421. Nor will it affect the responsibility of the company that the person so placing' the obstruction was a brakeman on the company's road, if he did it for his own purposes, without the authority of the company, and was not at the time acting within the scope of his employment and duty as brakeman. lb. The right of a railway corporation to use its road at the place of crossing a highway is not subordinate to the right of the public to use the highway : each must exercise reasonable care not to interfere un- necessarily with the use of the road by the other. lb. Right of way by dedication. Use by the public for eighteen months and declaration of owner sufficient. North London Railw. v. St. Marys, 21 W. R. 226. Rand damages do not pass to the grantee of the land. Damages for land taken by a railway company are personal, and do not pass by a conveyance of the land. McFadden v. Johnson, in Sup. Ct., Penn., not yet reported. Right to take land for national uses. The State may take land by its right of eminent domain for the use of the United States for the site of a post-office. Burt v. Merchants' Insurance Co., 106 Mass. 356. We should have no doubt the United States might, by act of Con- gress, take land for any necessary public national use. FIRES. A railway company is liable for damages resulting from fire, commu- nicated by cinders emitted from an engine operated on its road, in consequence of the negligence of its servants, or a. defect in the engine, or want of the best contrivance in use for the prevention of the spread of fire. Jackson v. Chi. & N. W. Railw., 31 Iowa, 176. While a railway company is under no obligation to fence its depot and station groundsill order to protect itself from liability for stock 714 APPENDIX OF LATER CASES. killed, such is not the case where it has a switch merely, unless the same is upon or a part of a station ground, and the onus is upon the company to show this. Comstock v. Des Moines Val. Railw., 32 Iowa, A railway company is not excused from fencing the track of its road through a town or city merely because of its passage through such locality, without reference to the question whether it crosses the public highways of a town or city. Ells v. Pacific Railw., 48 Mo. 231. As a matter of law, railway corporations may not be bound to erect fences before, or while they are constructing their road through any particular landholder's premises, yet they must act with a prudent regard to the rights of others ; and if they fail in this duty they are chargeable with negligence, and must answer for the consequences. Thus they are bound to use reasonable care to prevent the cattle of others from coming on the adjoining owner's fields and injuring him. (Citing Holden v. Rutland & Burlington Railw., 30 Vt. 297.) Com- ings v: Hann. & Cent. Mo. Railw., 48 Mo. 512. The liability of a railway corporation to fence extends not only to cases where the travelling public would be endangered by the act which caused the damage to the adjoining owner, — as in case of a collision with his cattle, — but to those where, by reason of the failure of the road to fence, cattle strayed from the track on to the land bor- dering the road, and destroyed the crops. If the obligation to fence may be imposed at all it is absolute and unqualified, and those who disregard it may not say that this or that special liability is an improper one. Trice v. Hann. & St. Jos. Railw. Co., 34 Mo. 438. The statute making railway companies liable for injuries to animals without regard to wilful misconduct, negligence, or accident, when the railway is not fenced, applies to a place within the limits of a city where it would not be illegal or improper to maintain a fence. Jeffer- son, Madison, and Ind. Railw. v. Parkhurst, 34 Ind. 501. That bars were down, or boards were off a fence along a railway through which horses might have come upon the track, when they were run into by the cars, throwing the train off", and killing the plaintiff's intestate, would not of itself constitute any ground for the plaintiff's recovery against the company. Dewey v. Chi. & N. W. Railw., 31 Iowa, 373. A railway company is required to use only ordinary and reasonable care and diligence in maintaining and keeping in repair a fence which it has constructed along the line of its road, and it will not be liable for cattle killed on its road, unless it has failed to exercise such ordinary care in the repair of the fence. Lemmon v. Chi. & N. W. Railw., 32 Iowa, 151. APPENDIX OP LATER CASES. 715 Injury to fellow-servant. A brakeman on a freight train, in obedience to the orders of his superior, attempted to go from the top of a car to the ground to change a switch, and, by reason of the ladder on the car being defective, he fell, and was run over. The company were held responsible. Chicago & N. W. Railw. v. Jackson, 55 111. 492. The company is not responsible to a fireman who was damaged by the misplacement of the switch whereby the engine ran off the track, the fault not being traced to the company or any of its employes. There is no rule of law in New York requiring railways to furnish a safe road-bed to insure the safety of its employes. [That rule, if it exists, applies to passenger transportation.] Tinney, Adm'r, v. Boston & Albany Railw., 62 Barb. 218. Where the plaintiff, while employed by the defendant as a draftsman in his locomotive works, fell over an embankment of dirt thrown up in deepening a cellar about the premises by workmen in the defendant's employ and under his control, and suffered serious injury, it was held he was not precluded from a recovery by reason of the negligence beino- that of fellow-servants, he not being employed in the same business with those digging the cellar. Baird v. Pettit, 29 Philadelphia Repts. 397. Where the servant brought an action against the master for an in- jury sustained by falling through a floor in the master's shop over which it was his duty to pass, and which he knew to be decayed, and that it had holes in it, but could not know the extent of the risk in passing over it, without examining it beyond where he had access, it was held the court could not say he was guilty of negligence, but that question must be determined by the jury. Huddleston v. Lowell Machine Shop, 106 Mass. 282. contracts ultra vires. Contracts between railways with reference to future legislation. Two railway companies, having leasing powers, made a lease, and inserted therein covenants for amalgamating the two companies on the proper legislation being had, and it was held not to vitiate the lease, although based upon the consideration of the covenants for amalga- mation. Central Railw. v. Mayor, &c. of Macon, 43 Ga. 605. Contract to issue preferred stock. Such a contract made by a railway company having no such special powers, in order to complete their road, and making such stock the basis 716 APPENDIX OF LATER CASES. of the qualification of the directors, is not ultra vires, and, where third persons have acted upon the faith of it, cannot be avoided by the share- holders. Hazlehurst v. Savannah, &c. Railw., id. 13. Money obtained for contract ultra vires. A railway company borrowed money to enable it to do an act ultra vin s, and was sued for it : Held, that a shareholder could not maintain ;i bill to enjoin the collection of the money. Bradley v. Ballard, 55 111. 413. CONSTRUCTION. Distance — How measured. It seems to be now finally settled by the decision of the Exchequer Chamber, in England, that distance, whether in statute or a contract, is to be measured in a straight line, as delineated upon the map, disre- garding both the inequalities of the surface and the effect of the curva- ture of the earth's surface. Monflet v. Cole, 21 Weekly Rep. 175, affirming s. c. 20 W. R. 339. The distance between two objects is to be measured from the nearest points of such objects. lb. Negligence. Building the roof of a dwelling, so that the ice and snow collecting thereon from natural causes will naturally fall uj)on persons passing along the highway, renders the owner responsible for all damage in that way, hajmening without the fault of the person injured, and it will not exonerate the owner, that all the rooms in the house are occupied by tenants, if he retains control of the roof. Shipley v. Fifty Associ- ates, 106 Mass. 194 ; s. c. 101 Mass. 251. COMMON CARRIERS. Responsibility for acts of servants. Carriers of passengers by water are bound to afford them reasonable accommodations and kind and respectful treatment while on board the vessel, and they are responsible for any infringement of this under- taking by any servant employed by them. Hence such carriers are responsible for an assault and battery on a passenger committed by APPENDIX OF LATER CASES. 717 the steward and table waiters on the boat, because the passenger justi- fied the conduct of another passenger, who did not appear to have done any thing worthy of blame. Bryant v. Rich, 106 Mass. 180. Baggage — What is. A feather-bed, not intended for use on the voyage, is not proper baggage for a female passenger on board an ocean steamer from Ire- land to the United States. Connelly v. Warren, 106 Mass. 146. The facts being conceded, it is a question of law whether the article is proper baggage. lb. When carrier's responsibility as carrier attaches. Where goods are delivered from time to time, and there is no ex- press direction to transport immediately, it depends upon the nature of the goods and the course of business whether they are to be trans- ported upon each separate delivery or be kept to await the final delivery, and all be carried at once. In the former case, the carrier's responsibility attaches upon each separate delivery, and in the latter only when all the goods have been delivered. Watts v. Boston & Lowell Railw., 106 Mass. 466. Damages for non-delivery in time. A common carrier is. not responsible for the loss upon a contract for the sale of goods not delivered in time to meet the contract, but only for the loss in the market between the time the goods were due and when actually delivered, the carrier having no knowledge of the sale. Scott v. Boston & N". O. Steamship Co., 106 Mass. 468. Stoppage in transitu. Consignor and consignee. Goods still in hands of carrier, right exists. Mohr v. Boston & Al- bany Railw., 106 Mass. 67. COMMON CARRIERS OF PASSENGERS. Regulations as to passengers. A regulation by a railway company restricting the holders of a cer- tain class of tickets to special trains, nothing of the kind appearing on' the tickets, will not justify the expulsion of the holder of such a ticket from the regular trains, he having taken passage thereon without knowledge of the regulation. Maroney v. Old Colony & Newport Railw., 106 Mass. 153. 718 APPENDIX OF LATER CASES. I'si/ig unnecessary force in expelling one from the cars. This subject is extensively discussed in Coleman v. N". Y. & N. H. Railw.. 106 Mass. 160. The plaintiff being wrongfully in the car, the burden is upon him to show that his own wrongful acts did not contribute to the misconduct of which he complains. lb. He must show that the injury of which he complains resulted wholly from the wrongful act of defendant. lb. See Murphy v. Deane, 101 Mass. 455. Passenger leaving street cars. If a passenger attempt to leave the cars of a street railway without the knowledge of those in charge of the car, they not being in fault, in not knowing, he cannot recover for any injury he may sustain by reason of the sudden starting of the car during his attempt to alight from it. Nichols v. Middlesex Railw., 106 Mass. 463. Evidence — Declarations by servant. Res gestae. Where the female plaintiff was injured on one of the defendants cars by a collision, happening through the alleged fault of the driver, it was held not competent to prove the declaration of the conductor, made immediately after the accident, in reply to the statement of a fellow-passenger, that " This fellow's conduct ought to be reported," the conductor saying, " He has already been reported, for he has been off the line five or six times to-day ; he is a new driver : " It was also held, by all the judges of the Court of Exchequer, that this statement of the conductor was not an admission binding the company, being no part of the res gestae, either of the accident or of the doings of the con- ductor; Baron Bramwell saying, "It is impossible to admit the remark as part of the res gestae ; it was in no sense one of the surrounding- circumstances ; the res were all gestce by the time the remark was made, and the plaintiff's cause of action was quite complete without any such words, which, indeed, for all they had to do with the accident, might as well have been sjjoken when the car had been taken back to the stable." Agassiz & wife v. London Tramway Co., 21 W. R. 199. MANDAMUS. The fact that a member of a corporation has been excluded by the corporation, for four successive meetings, from speaking or voting, is not sufficient ground for a writ of mandamus to the corporation to restore him to his risrhts. Crocker v. Old South Church, 106 Mass. 489. [This additional section to Chapter XXXII., Vol. II., was prepared at the last moment and placed in the only vacant space.] CONSTITUTIONAL QUESTIONS. SECTION V. Power of Congress to regulate traffic on Interstate Railways. whence such power is derived. How illustrated. From ORIGINAL PURPOSE OF THE PROVISION. 1. The natural import and construction of the terms. 2. Not restricted to the then existing modes of transportation. 3. Commerce embraces all the intercourse among nations or states ; the means and appliances of trade and communication, in all its parts and bearings ; passen- gers as well as commodities. The railway traffic, extending beyond the limits of one state, must either be no part of the commerce of the country, or else be subject to the control of Con- gress. If not, it is not subject to any supervision. II. — CONSIDERATION OF THE DECISIONS. 5. Review of the decisions of the national courts on the question. The regulation of commerce extends to all waters in fact navigable for boats of ten tons burden and upwards. Communicating with different states. 6. The exceptions from the powers of Con- gress to regulate commerce. 7. The control and regulation, by Congress, of interstate traffic upon railways seems a necessity. 8. It argues lameness in the government to suppose the contrary. III. — CONGRESSIONAL LEGISLATION. 9. Comments upon the legislation of Con- gress and the opinions of federal judges directly upon the point. 10. Summary of the restdts, and the pros- pects for the future. § 233 b. This power, if it exist, must be derived from the provision in the United States Constitution, giving Congress power to " regulate commerce with foreign nations and among the several states." It will be perceived, that the power to regulate commerce with foreign 720 CONSTITUTIONAL QUESTIONS. nations, and among the several stales, must be precisely the same, be- cause it is given in the same clause of the Constitution and in precisely the same words. The meaning of this provision might be illustrated, to some extent, it mighl be natural to expect, from three obvious sources: 1. The original purpose and fair construction of the provision itself; 2. The decisions of the national courts in regard to it ; 3. The legislation of Congress under the provision. I. — AS TO THE ORIGINAL PURPOSE OF THE PROVISION. Tt will be more convenient to consider the decisions under this head also to some extent. 1. The natural import and construction of the terms of the Consti- tution would not seem to admit of much doubt, judging from the lan- guage merely. The meaning of the word " commerce " at the time the Constitution was adopted must have been definitely settled, and well enough understood. The word, as well understood, is derived from the Latin commercium, and which is found, almost in its original form, in most of the languages of modern Europe. It means, in its most literal sense, intercourse and exchange, both of persons and com- modities. It is more nearly synonymous with traffic, than with any other word in the language, probably. Its great natural divisions, for ages, have been, foreign and inland. The regulation of all the former, and that portion of the latter which extended beyond the lim- its of a single state, was, as we have seen, by the organic law of our national government, secured to the nation, and the remainder was naturally left to the particular state where it exclusively existed. 2. It is obvious that the purpose of the provision was not to be con- fined to future commerce carried on in the same mode it then was ; i. e., by ship and boat navigation propelled exclusively by wind. If that had been so the provision could not have been applied to that large portion of commerce now carried on by steam power, which has already become very considerable, and is constantly increasing in a rapidly advancing ratio. In the very infancy of steam navigation the question arose in the well-known case of Gibbons v. Ogden, 1 how far this provision of the United States Constitution extended. The opin- 1 'J Wheaton, 1. It may not be entirely inappropriate to name here the date of steam navigation first reaching some of our important lakes and rivers, and the large commercial towns and cities. It is stated in Frothingham's " Rise of the Republic/' a book of most unquestionable authority, that, prior to the year 1800, eight or ten boats, of twenty-five tons each, sufficed for all the carrying trade between Pittsburg and Cincinnati; that the first government vessel appeared on Lake Erie in 1802; that the first steamboat was launched at Pittsburg in 1811 ; the first on Lake Michi- gan in 1826 ; and the first appeared at Chicago in 1832. Frothingham's Rise of the Republic, p. 2, in note.., POWER OF CONGRESS OVER INTERSTATE RAILWAYS. 721 ion in this case contains a most invaluable commentary upon that question, inasmuch as it was so near the date of that instrument as presumptively to embrace the result of all the contemporary aids to the construction, some of which are specifically referred to in the argument ; and also because it fixes the scope and operation of the provision by the court having- exclusive final jurisdiction of the question; and, finally, because it has been always followed, in later cases. 3. It seems to have been made a question, in Gibbons v. Ogden, 1 how far the power of Congress extended to the regulation of the means by which foreign and interstate commerce was carried on. It was argued that the power extended only to the regulation of trade, or the mere buying and selling, or exchange, of commodities. But the court treated • this as a studiously narrow construction of the provision, and nearly synonymous with its denial or extinction. The court held the national Constitution to be an instrument of "enumeration" of powers, and not of " definition." Mr. Chief Justice Marshall said : " Commerce, un- doubtedly, is traffic, but it is something more; it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches; and is regulated by prescribing rules for carrying on that intercourse." The learned judge very justly argues, that " all America " had understood, from the first, that commerce " comprehended navigation ; " and that the control and regulation of it, in this extended sense, had been one of the leading motives for adopting the present frame of government. 2 It seems never to have entered the minds of the delegates of the convention, that the regula- tion of commerce among the states or with foreign nations could be conducted by the states. The experience already had in that attempt had shown its utter futility. The most that any objector asked in the convention was that it be left to Congress, but that a two-thirds, or 2 This is clearly enough shown by the prior history of the government. The first attempt at organized national action was the " Association " of 1774, which has been called the " Commencement of the American Union." Hildreth, iii. 46 ; Frothing- ham, 873. The very basis of this compact was the regulation of trade and intercourse between the colonies and the mother country. See copy of the document in Froth- ingham, 373. At the time of the adoption of the Articles of Confederation the regu- lation of commerce was left to the separate states. It was, no doubt, in a great measure, the intolerable nature of the results of thus referring all commercial regula- tions to the states, which urged the people to adopt the Constitution. Mr. Justice Johnson states this in Gibbons v. Ogden, 9 Wheaton, 222, in his opinion. And it is noticeable, that in all the projects for a Constitution, and in all the drafts and reports brought before the convention, this provision, as to the regulation of commerce, is found in precisely the same form, even to the words, as it now stands, with the single exception that the portion affecting trade with the Indians was added near the close of the convention, and is only found in the final draft. 1 Elliot's Debates, 221-230; 2 Madison Papers, 1226, 3 id. 154'J. It is thus rendered very obvious that all the convention, and presumptively all the country, had become convinced that the regu- lation of commerce, both foreign and among the states, must be left to Congress. vol. i. 46 722 CONSTITUTIONAL QUESTIONS. larger majority, be required to establish binding regulations. 8 The former experience of the attempts of the states to regulate commerce, outside of the particular state, seems to have convinced all that the thing was simply impossible, by the most convincing of all arguments, the reductio ad absurdum. And it seems never to have entered the mind of any <>ne that the power of regulating foreign or interstate com- merce' was susceptible of division between the nation and the states. It was, therefore, made entirely satisfactory to the court, in Gibbons v. Ogden, 1 that the " regulation of commerce," committed to Congress, embraced the entire thing with all its means, instruments, and appli- ances. Thus Mr. Chief Justice Marshall says: "Commerce, as the word is used in the Constitution, is a unit, every part of which is indi- cated by the term. If this be the admitted meaning of the word, in its application to foreign nations, it must carry the same meaning throughout the sentence, and remain a unit," as to the interstate com- merce. This term the learned judge further defines as embracing all commerce carried on within the limits of the United States, which ex- tended to more than one state, and which did not begin and end in the same state, so as to "be the exclusive internal commerce of a state." Mr. Justice Johnson, in delivering a concurring opinion to that of the Chief Justice, uses language still more explicit, if possible. The learned judge said: "Commerce, in its simplest signification, means an exchange of goods; but, in the advancement of society, labor, transpor- tation, intelligence, care, and various mediums of exchange, become commodities, and enter into commerce ; the subject, the vehicle, the agent, and their various operations, become the objects of commercial regulation. Ship-building, the carrying trade, and propagation of sea- men, are such vital agents of commercial prosperity, that the nation which could not legislate over these subjects would not possess power to regulate commerce." The learned judge argues, with great clear- ness, that all these were intended and understood to be embraced within the range of the provision for the regulation of commerce by Congress. And the Chief Justice, in the principal opinion, said : "The real and sole question seems to be, whether a steam machine, in actual use, deprives the vessel of the privileges conferred by a license. In con- sidering this question, the first idea which presents itself, is, that the laws of Congress for the regulation of commerce do not look to the princi- ples by which vessels are moved." It is here also decided that com- merce embraces the transportation of passengers as well as goods and 5 3 Madison Papers, 1450, where Mr. Pinkney moved to require a two-tliirds vote, and stated the great commercial staples of the different sections, and among them the grain-producing interest, as requiring special protection, the same which is now de- manding the regulation of railway tariffs, and which seems to require that something be speedily done in that direction, both for the protection of the railways and the public. POWER OF CONGRESS OVER INTERSTATE RAILWAYS. 723 other commodities, and that the means by which it is done "is left entirely to individual discretion." 4. It is thus made very apparent, from a careful examination of the argument in Gibbons v. Ogden, 1 by which transportation of goods and passengers, by steamboats and steam vessels of every kind, is brought under the same provisions, originally framed for the regulation of that which was carried on by sailing vessels; that if the question had then presented itself to the mind of the court how for railway traffic should be brought under the same power of regulating commerce which had already been extended to the traffic by navigation, there can really be no fair doubt how it would have been determined. The fact that the entire subject of regulating all commerce among the different states, including all the means and appliances by which it was carried on, was committed to Congress, and that, thereafter, the states were to have no concurrent action in the regulation of the same, would seem to reduce the question of Congress having the power of regulating interstate rail- way traffic to the single inquiry, whether it forms any portion of the commerce of the country, which requires to be regulated at all. Those who assume to argue that Congress has no power to regulate the traffic upon these extended lines of railway reaching from one end of the Union to the other, must, if they would meet the question fairly, either say, the traffic on these extended lines of railway, amounting to many millions annually, probably ten times as much as the entire commerce of the country at the time of the adoption of the Constitution, is not commerce at all, or, if it be, is not subject to any regulation or control whatever. For it is certain the states have neither the power or ca- pacity to regulate, to any purpose, or with any efficiency, this interstate railway traffic. It must then come under the control of Congress or be left to its own devices and impulses, — an experiment never yet tried in any other country. II. SPECIFIC CONSIDERATION OF THE DECISIONS. 5. It may not be amiss to refer to some of the later decisions of the national courts upon the construction and extent of the power of Con- gress to regulate commerce among the states. In one case, 4 before Mr. Justice Story, it was declared : The power to regulate commerce in- cludes the power to regulate navigation with foreign nations, and among the states ; it is an exclusive power which may be exercised with or without positive regulations. There are numerous cases where it has been held that Congress has the exclusive final power to deter- mine what amounts to an obstruction to navigation. 5 The power to * The Chusan, 2 Story, 455. 5 Pennsylvania v. Wheeling Bridge Co., 18 How. (U. S.) 421 ; Silliman v. Hudson Eiver Bridge Co., 1 Black (U. S.), 582 ; a. c. 4 Blatch. (C. C.) 74, 395 ; The Passaic Bridges, 3 Wall. 782; United States v. Bailroad Bridge Co., 6 McLean (C. C), 517. 724 CONSTITUTIONAL QUESTIONS. regulate commerce comprehends the control, for that purpose, and to the extent necessary, of all the navigable waters of the United States, which arc accessible from a state other than that in which they lie; and includes necessarily the power to prevent any obstruction to their nav- igation. 6 The phrase " navigable waters " is not now, as formerly, re- stricted to those waters where the tide ebbs and flows; but extends to all waters, on lakes or rivers, which are in fact navigable for boats of ten tons burden and upwards, and which communicate, by navigation, with the sea, or with two or more states. This is now the limit of the ad- miralty jurisdiction of the national courts. 7 In all this wide range, all commerce and all the means and instruments of commerce, are under the exclusive regulation and control of the laws of Congress. 8 It is applied even to steamboats employed as lighters. 9 6. It will not be important here to enumerate the exceptions to the regulation of commerce by Congress. It does not, of course, extend to that commerce which is exclusively within the limits of a single state ; which begins and ends within the same state. 10 Hence, a state law, conferring an exclusive right to the navigation of the upper waters of a river wholly within the limits of such state, and separated from tide water by falls, which are impassable for purposes of navigation ; and not forming a continuous line of commerce between two or more states, or with a foreign country, is not unconstitutional. 11 And it seems to have been considered, by the later decisions, that so long as Congress wholly abstains from all attempts to regulate any particular department of commerce, either foreign or interstate, state laws in regard to the same will not be declared void. 12 Thei'e are some subjects of state cog- nizance, which in their operation and enforcement produce an effect, incidentally, upon commerce beyond the limits of a single state, such as pilotage, ferries, health regulations, the support of paupers, police, and crime, which, nevertheless, must be left to the control of the states, and whose legislation, if fairly kept within necessary limits, must be upheld. 7. We have thus seen how extensive and how exclusive is the na- tional control over every species of commerce extending beyond the limits of a single state, and how entirely all its instruments are brought under the national control, in every existing mode of its being carried « Gilman v. Philadelphia, 3 Wall. 713. I The Genesee Chief v. Fitzhugh, 12 How. (U. S.) 443. 8 Jolly v. Terre Haute Draw Bridge Co., 6 McLean (C. C), 237. 9 Foster v. Davenport, 22 How. (U. S.) 244. 10 The Passaic Bridges, 3 Wall. 782; Halderman v. Beckwith, 4 McLean (C. C), 286. II Veazie v. Moor, 14 How. (U. S.) 568. 12 United States v. Railroad Bridge Co., 6 McLean (C. C), 517 ; Woodman v. Kil- bourne .Man. Co., 6 Am. Law Reg. (N. S.) 238; Cooley v. Board of Wardens, 12 How. (U. S.) 299; Gilman v. Philadelphia, 3 Wall. 713. POWER OF CONGRESS OVER INTERSTATE RAILWAYS. 725 forward, as far as those questions have arisen in the courts. We have also seen how readily new modes of carrying on commerce have hitherto been brought under national regulation. If we refer to the numerous acts of Congress, for the security of property and life connected with commerce, and for its encouragement and protection in all its relations and departments, and reflect how almost exclusively the entire subject is brought under the supervision and control of Congress, we shall find slight ground to question that such supervision will be extended to the interstate commerce upon railways, and that it may rightfully be so extended, since there seems to be no other mode of ren- dering this interstate railway traffic safe and just to passengers and the owners of freight, and at the same time reasonably remunerative to the companies. 8. Whether, then, this question is viewed in the light of abstract reason and necessity, as forming one of the most important channels of commerce, both national and foreign ; or in that of authority, from the analogy of the decisions affecting commerce carried on by means of navi- gation, we can entertain no reasonable doubt or question that the national or interstate commerce upon our railways must be placed and kept un- der the regulation and control of Congress. It would be very wonderful, after our railways had, by voluntary connections, extended their lines in almost every direction throughout our entire territory, and even across the continent, and thus made themselves the carriers of the world, and engrossed almost the entire commerce of the nation, so far as it is carried on among the several states, and a large share of the carrying business of other nations, in seeking shorter and safer routes by land than can be found upon the ocean; if, after all this, we are soberly to be told that there is positively no earthly power adequate to regulate and control this vast monopoly of transportation, it will afford an illustration of the defectiveness of our governmental organization and arrangements, which we have not hitherto felt ourselves very ready to admit. III. CONGRESSIONAL LEGISLATION. 9. Railway transportation has grown up so recently, and is still in so undeveloped and unsettled a state, that public attention has not been very generally or extensively called to the question of national control. There are, too, some special reasons why the public attention has not been attracted in this direction. The railways have mostly been chartered by the several states, with primary reference to the internal business of such states. The extension of lines, and even the practical consolidation of the different interests, have been reached by traffic arrangements among the different companies. This might more properly have been done through the legislation of Congress, in 720 CONSTITUTIONAL QUESTIONS. the regulation of interstate commerce.. But it seems not to have occurred even to the companies themselves, until a late day, that they required any sanction of the laws of Congress for forming these extended lines of interstate commerce and intercourse. The first act of Congress upon the subject was in 1866. 13 This statute is very brief, and seems to be nothing more than an enabling act, evidently passed at the instance of the railways. Since that time nothing in the way of legislation has been done. The subject has been before the Committee of Commerce, in the House of Representatives, and the chairman, 14 at the late session, introduced a bill for the purpose of securing uniformity of charges upon railways throughout the country, which is, undoubt- edly, a very great desideratum. But the influence of the numerous railway companies is so extended and so controlling, that we fear it may be a long time before any detailed enactment of Congress, securing all that is demanded to render railway traffic throughout the country safe and reasonably uniform in price, will be passed through all its stages, so as to become the recognized law of the land. And when this is accomplished we are but one step advanced towards the final accom- plishment of the great desiderata connected with railway traffic. The most difficult part of the work, the strict and impartial enforcement of the law, still remains. And in our country, probably in all free countries, it is much less difficult to secure good laws than to maintain their strict enforcement. And this is especially difficult with an elec- tive judiciary for short terms, as is now the case in most of the states. Judges, uj:>on delicate or difficult questions, proverbially court delay ; and this may more naturally occur when a few months may carry them beyond the necessity of acting at all. And popular elections do not commonly bring the most iron-willed men into prominence. Good- natured, easy-minded men, are, as a rule, largely more popular. But we have great hopes that, when these questions are matured for the action of the national judiciary, we shall see a far different result, — one that will tell upon the business and character of the country. Two of the most eminent of the federal judiciary have already borne most un- equivocal testimony in favor of the view for which we contend : Mr. Justice Miller, of the Supreme Court, in his opinion in the Circuit Court, in Gray v. The Clinton Bridge & others, 15 and Mr. Justice Dillon, of the Circuit Court, in an extended note to the report of the case just cited. Mr. Justice Miller here says: "For myself, I must say that I have no doubt of the right of Congress to promote all needful and proper regulations for the conduct of the immense traffic over any railroad which has voluntarily become part of one of those lines of interstate 13 An act to facilitate commercial, postal, and military communication among the several states, approved June 15, 1866. 14 Hon. Samuel Shellabarger, of Ohio, an eminent jurist and judge, i* 7 Am. Law Reg. (N. S.) 149. POWER OP CONGRESS OVER INTERSTATE RAILWAYS. 727 communication, or to authorize the creation of such roads when the purposes of interstate transportation of persons or property justify or require it." This expression of opinion by Mr. Justice Miller Mr. Jus- tice Dillon quotes, and warmly approves, in his note to this case. 10. It will add very little to the weight of the authority already quoted, to say, that our own studies upon the important question, we have here so imperfectly discussed, continued, as they have now been for nearly the period of a generation, and since the earliest stages of rail- way development in the country, have irresistibly led to the same opin- ion, so well expressed by Mr. Justice Miller. It would be strange if that opinion should not ultimately prevail, both in Congress and in the courts. When we reflect how large an amount of the commerce, at one time carried on upon the great rivers of the country, has already been transferred to the railways, and that the small remnant still remaining upon the rivers and canals is fast going the same way, it requires no spirit of prophecy to foresee that any construction exempt- ing the traffic upon railways from the commercial clause in the United States Constitution, must, in a large measure, render it practically nu- gatory, and thus largely tend to defeat the very pm - pose of that provi- sion, by throwing us back into the uncertainty and confusion existing under the Articles of the Confederation, which no patriot can contem- plate but with sorrow and dread, and which we cannot believe is ever to be visited upon us again, through so shallow a device as this attempt to escape the proper national control of the traffic upon interstate railways. END OF VOL. 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