KF U2 Cornell University Law Library FROM THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY UNDER THE WILL OF MR. BENNO LOEWY Cornell University Library KF2280.3.L13 V.I A digest of railway decisions, comprising 3 1924 019 313 711 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019313711 DIGEST oy RAILWAY DECISIONS A DIGEST OF RAILWAY DECISIONS COMPBISING ALL REPORTED AMERICAN CASES IN WHICH A RAILWAY COMPANY IS A PARTY, AIJD ALL OTHER CASES IN WHICH RAILWAY LAW IS DETERMINED. JOHN F. iACEY, OF THE IOWA BAE. CHICAGO : CALLAGHAN AND COMPANY, LAW PUBLISHERS. . 1875. ^3 /y^'^o Entered according to Act of Congress in the Year one thousand eight hundred and seventy-five, by CALLAGHAN AND COMPANY, In the office of the Librarian of Congress at Washington, D. C. MADISON, WIS. : ATVrOOD 4 OULVEE, 8TBBB0TTPEES ASD PEI2fTEE9. PREFACE. A Digest of Railway Law has been mucli needed by the legal profession of the United States for many years. The great and rapidly increasing importance of railways, and the vast amount of litigation attendant upon their construction and operation, will suggest, not only the necessity of such a work, but the magnitude of the task undertaken in its preparation. Railway cases generally involve large sums of money, the best legal talent is employed in their trial, and they are usually tried with a view to their re- vision by an appellate court. Hence they are highly important as precedents, owing to the skill and care with which they are tried. The original design of this book was simply a Digest of American Railway Law, but it was found upon examination that without very much enlarging its size, it could be made to em- brace the principal points of every railway case. I have therefore included all the reported American cases in which a railway company is a party, and all other cases in which questions are passed upon in- volving railway law. The great conflict of the decisions of the courts of last resort in the different States, upon many of the questions embraced in this volume, renders a digest of these decisions all the more needful to the practitioner, for, the weightier reasons given in a single opinion will often outweigh a larger number of less carefully considered decisions. The difficulty experienced by many members of the bar, in recollecting the abbreviations used in the citation of the reports, has led me to adopt a different plan from that usually employed, and all citations, except those where the re- ports are known by the name of the State, will be found unabbreviated. I trust the result of my labors may prove acceptable to those for whom this book was intended. I am aware of its imperfections, and my only excuse is the inherent difficulty of methodically subdividing and arranging so vast a subject. JOHN F. LACEY. OSKALOOSA, loWA, January 1, 1875. TO LATE JUDGE OF THE SIXTH JUDICIAL DISTRICT OF IOWA, AS A TOKEN OF BESPECT FOR THE EMINENT JUDICIAL ABILITY AND INTEGRITT WHICH HAVE DISTINGUISHED HIS CAKEER UPON THE BENCH, AND IN TESTIMONY OF THE MANY GOOD QUALITIES WHICH, IN PRIVATE LIFE, HAVE WON FOE HIM HOSTS OF FRIENDS, THIS VOLUME IS RESPECTFULLY INSCRIBED THE AUTHOR. BIGE8T OF EAILWAY BECISIOM ABANDONMENT. 1. Of railway fixtures. Some piers built by a railroad company as part of its railroad, on lands over which it has acquired the right of way for its road, do not, though firmly im- bedded in the earth, become the projserty of the owner of the lands as part of the realty. And, on the purpose of completing the rail- road being abandoned, the company may re- move such structures as personal property. Wagner «. Cleveland and Toledo B. if. Co., 22 Ohio St., 563. 1872. 2. Damages. A railway company when authorized by law to abandon a portion of its route is not liable in damages to the land own- ers for such abandonment. Baltimore and Susquehanna B. B. Co. «. Compton, 2 Gill (Md.), 20. 1844. I. II. ABATEMENT. Gkounds of abatement. Pleas. I. Geounds of abatement. 1. Death. Suits for injuries to the person die with the person and may be taken advan- tage of by the defendant on the trial, without a plea in abatement. Baltimore and Ohio B. B. Co. V. Bitchie, 31 Md., 191. 1869. 2. — Actions of trespass for injuries to re- alty, do not survive, and cannot be sustained by an executor. Beed v. Peoria and Oqua/wka B. B. Co., 18 111., 408. 1857. 3. — An action brought by a passenger against a railroad company, to recover dam- ages for injuries to her person, does not abate by the death of the plaintiff. Peebles v. If. G. B. B. Co., 63 N. C, 238. 1869. 4. — Section 121 of the Code, which pro- vides that " after a verdict shall be rendered in any action for a wrong, such action shall not abate by the death of any party," covers the case of a verdict for the plaintiff in an ac- tion to recover damages for injuries sustained through the negligence of defendant's ser- vants. Hence, it being unnecessary for the protection of the plaintiff that judgment should be entered, although his health be precarious, an order staying his proceedings will not be so modified as to permit him to enter judgment. Lyons v. Third Avenue B. B. Co., 7 Robertson (N. Y.), 605. 1867. 5. Action in another state. The courts of Delaware will not compel a plaintiff to elect upon which suit he will proceed, he having commenced another action for the same cause in another state. Howard v. Wil- mington and Susquehanna B. B. Co., 2 Harring- ton (Del.), 471. 1838. II. Pleas. 6. — Section 300 of the Code of 1843 (p. 706), which requires pleas in abatement to be verified, is continued in force by § 802 of the Code of 1852 (2 G. & H., 336). Indianapolis, Peru and Chicago B. B. Co. v. Summers, 28 Ind.,521. 1867. 7. — A plea in abatement to the disability of the plaintiff to sue, concluded with praying "judgment of the writ and declaration, and that the same may be quashed," held bad; it should have concluded, " whether the defend- ant ought to be compelled to answer," etc. 10 ■ ACTIONS — AD VERSE, POSSESSION. Assent of plaintiff — Letters of administration — Torts — Public lands. West Feliciana B. iJ. Oo. v. Johnson, 5 How- ard (Miss.), 273. 1840. 8. — An action at law for past trespasses cannot be pleaded in abatement of a bill in equity to prevent future trespasses. Stewart and FoUz's Appeal, 56 Penn. St., 413. 1867. 9. — A plea in bar waives all pleas in abate- ment. Railroad Co. v. Harris, 12 Wallace, 65. 1870. ACTIONS. See Pleadins. 1. Assent of plaintiff:' In the absence of proof tnat a suit brought in the name of a corporation was not authorized by it, its as- sent will be presumed, although the corpora- tion is but a nominal party. Bangor, Old- town, and Milford B. B. Oo. v. Smith, 47 Me'., 35. 1859. 2. To quiet title. A bill of peace to quiet \title cannot be maintained where the title has not been called in question in actions at law in the nature of actions of ejectment. Mar- maduke v. Mannibal and St. Joseph B. B. Co., 30 Mo., 545. 1860. 3. To recover real property — Judg- ment. Where an action (under the laws of Iowa), is brought to recover land, the plaint iflf claiming possession and the defendant denying the right of possession but not claim- ing title it is erroneous to enter a judgment that the defendant hath title; the judgment should be. that the plaintiff hath no title. Litehjleld v. B. B. Co., 7 Wallace, 270. 1868. ADMINISTRATION. 1. Letters of administration. Where let- ters of administration have been granted upon the estate of one dying intestate in the county of the surrogate, the onus is upon one disput- ing the' title and authority of the adminis- trator to show a want of jurisdiction in the surrogate to grant the letters. Welch v. N. T. Gent. B. B. Co., 53 N. Y., 610. 1873. 2. — A railroad company against whom an action is being prosecuted by an adminis- trator to recover damages for an injury caus- ing the death of the intestate, has such an in- terest as to make it a competent party to peti- tion the court for a revocation of the letters of administration. Jeffersonmlle B. B. Co. v. Swayne's AdrnW, 26 Ind., 477. 1866. 3. — Where the intestate was not an inhab- itant of this state at the time of his death and left no assets in the state, and none came into it afterwards, no jurisdiction is conferred on the court to grant letters of administration in any county of the state, and such letters, if granted, are coram nonjudice and void. lb. 4. — The term assets as used in the third and fourth clauses of § 7 of the act relating to the settlement of decedents' estates, (2 G. & H., 485,) means assets of the intestate ; that is, property, rights or choses in action held by, or belonging to, the intestate at the time of his death, and which are subject to be ap- plied by the administrator to the payment of debts. lb. 5. — A claim for damages for causing the death of a party, under § 784 of the Code, is proseciited by the administrator for the bene- fit of the widow and children, or next of kin, of the deceased, and is not assets of the de- ceased, within the meaning of the statute au- thorizing the granting of letters of admin- istration in this state. lb. ADMIRALTY. 1. Torts. The jurisdiction of a court of admiralty in torts depends entirely on the locality. It may extend to places within the body of a county. PJMadelphia, Wilmington and Baltimore B. B. Co. v. Philadeiphia and ScmVede Grace SteamTowboat Co., 23 Howard 209. 1859. ADVERSE POSSESSION. 1 . A grant from the state may be presumed from long continued, exclusive and adverse possession. Tracy v. Norwich and Worcester B. B. Co., 39 Conn., 382. 1872. 2. Public lands. No title to public lands can be acquired by prescription or by estop pel in pais. Doran v. Central Pacific B, B. Go 24Cal., 245. 1864. "' AGENCY. 11 Appointment and Powers. 3. Tenants in common. Open, notorious and uninterrupted possession of the whole by a tenant in common for twenty-one years, claiming the lands as his own and taking the whole profits exclusively is evidence from which the jury may draw the con- clusion of ouster and adverse possession. Susquehanna and Wyoming Valley B. !B. Co. «. Qaiek. 61 Penn. St., 338. 1869. 4. — In cases of express trust the evidence of an adverse holding must be stronger than between cp-tenants. lb. 5. A railway company having possession uninterruptedly ol a portion of its track for thirty years will be presumed to have lawfully acquired the same. Ogle v. Philadelphia, Wil- mington and BaltiTnore B. B. Co., 3 Houston (Del.), 303. 1866. AGENCY. See Abbiteatiok; EAaoASE; Contbaot; CouvEr- Aifos; Embezzlement; Estoppel; Bvioenoe; Seal Estate Agest. I. Appointment and powers. II. Rights, duties ahd liabilities of AGENTS. III. Rights, duties and liabilities op PRINCIPALS. IV. Wrongful acts op agents. V. Ratification. I. Appointment and powees. 1. Agent's appointment. Parol evidence of a contract is properly stricken out, where ■a letter making the contract of the appoint- ment of an agent is subsequently produced on the trial. Newkirh v. N. T. and Sarlem B. i?.Co.,88N. Y.,158. 1868. 2. — A railroad company has power, inde- pendently of any provision of its charter, to appoint an agent in the construction of its road, or in the transportation of its freight. Ala. and Tenn. Bivers B. B. Go. v. Kidd, 39 Ala., N. S., 331. 1856. 3. — The appointment of an agent need not be evidenced by the written vote of the corporation or its officers, but may be inferred from their adoption of the agent's acts. /6. 4. — Where the charter of a railWay com- pany does not require that the appointment of an agent, or the making of a contract, shall be by written instrument, and it does not appear to have been so made, the appoint- , ment or contract may be proved by parol. Hamilton v. Newcastle and Danville B. B. Oo., 9 Ind., 359. 1857. 5. — In an action by a carrier against a consignee of goods, to recover the price of transpoi'tation in which there is evidence tending to show that the defendant, in bar- gaining for the same, and in receiving the goods, acted only as agent of a third party, clear proof of notice of such agency is not necessary if the jury are satisfied from the ev- idence that the plaintiff must have known that he was acting only as an agent. Boston and Me. B.B. Co. V. Whiteher, 1 Allen (Mass.), 497. 1861. 6. — A special authority from the owner to look up property mislaid or lost by a com- mon carrier, does not imply any authority to settle for damages resulting from the carrier's neglect. Congar v. Galena and Chicago Union B. B. Co., 17 Wis., 477. 1863. 7. — Where goods are claimed to have been delivered to an agent, at a distance from the line of a railroad, to be carried to the road and thence transported on its line, the author- ity of the person thus purporting to act as agent, to bind the corporation, must be shown. Mo. Coal and Oil Co. v. Hannibal and St. Jo- seph B. B. Co., 35 Mo., 84. 1864. 8. — Where the keeper of a boarding house of a railroad company had been in the habit of purchasing provisions from the plaintiff, for the use of the boarding house, and the bills for such provisions had been, from time to time, paid by the company, the plaintiff might properly regard him as an agent pro tanto of the company, and would be justified in the absence of any notice to the contrary, in dealing with him as such. Phila., Wilm., etc., B. B. Co. v. Weaver, 34 Md., 430. 1871. 9. — Whether the president of a railway company who presented the bill of a creditor of the company to the treasurer and received the payment for the same, and subsequently lost it, was acting for the company or for the creditor, is a question of fact for the jury to ' determine. Wright v. Old Colony B. B. Co., 9 Gray (Mass.), 413. 1857. 12 AGENCY. Appointment and Powers. 10. Broker. A broker vested with mere authority to sell, but without authority to de- liver property, will not be presumed to be also authorized to receive the purchase money. Western B. S. Co. v. Boberts, 4 Philadelphia Ilep. (Penn.), 110. 1860. 11. Compensation. Suit by A., as assignee ot B., on a promissory note executed by the railway company. Answer: That the note was given for services rendered by B., the payee, as agent of the company to procure subscriptions of stock ; that, in the exercise of such agency, he had fraudulently, and with- out the knowledge of the company, received' reward from persons subscribing lands for stock, for procuring their lands to be taken by the company. Held, that the agency in behalf of the subscribers was inconsistent with the agency for the company; was an act of bad faith, and worked a forfeiture of all right to compensation from the company. Cleveland and St. Louis B. B. Co. ». Pattison, 15 Ind., 70, 1860. 12. — Where an agent of a railway corpo- ration rendered services in procuring a divis- ion of its charter, it is no defense to his claim for compensation, that, to induce another company to withdraw an unreasonable oppo- sition to such division made upon purely pri- vate grounds, the agent threatened to cause its unlawful use of part of the route of his principal to be restrained by injunction. Low v. Conn, and Passwmpsio Bivers B. B. Co., 46 N. H., 284. I860. 13. — If the original promoters of the en- terprise, although not authorized to bind the corporation, had promised the plaintiff that he should receive compensation from the cor- poration for his services, and for the injury to his business, and the corporation had, when organized, taken the benefits of these services with notice of such promise, it would be bound to perform it. lb. 14. — The ratification of the assumed au- tliority under which the plaintitf acted, by accepting the benefits of his services with no- tice of his claim, was equivalent to an ante- cedent request, even if there was at the time no party empowered to make such request. lb. 15. — Where, in an action upon an agree- ment, for personal services, the only issue raised by the defendant is, that it did not em- ploy the plaintiff, by itself or its agents, it is proper to admit proof of payment by the al- leged agents ; not to prove payment, but to show that the plaintiff considered them, and not the defendant, as his employers. Gilmore V. Atlantic and Pacific B. B. Co., 35 Barbour (N. Y.), 279._ 1861. 16. Contract. A contract for fencing a portion of the track of a railroad, made by a general agent of the compay will, under the statute of Indiana, bind the corporation. New Albany and Salem B. B. Co., v. Haskell, 11 Ind., 301. 1858. Cincinnati, Logansport and Chicago B. B. Co. v. Knowlton,ih., 839, 17. — Whatever an agent does or says In making a contract is evidence against the principal, being part of the contract. Penn- sylvania B. B. Co. V. Titusmlle Plankroad Co., 71 Penn. St., 350. 1872. 18. — A writing in the words: " Hired of R. C. the following negroes, to wit., etc., to work on the M. & C. Railroad, from now un- til the 25th Dec. next; for which I agree to pay said 0. $25 per month each, and I also agree to feed and pay all medical expenses; and the said C. loses all runaway time, if any. Given under my hand and seal ;" and signed, " W. H. E., agent for M. & 0. R. R. Co., per W. M. N.," is prima facie, the contract of the agent, and not binding on the principal per- sonally. Crutcher v. Memplds and Charleston B. B. Co., 38 Ala., 579. 1863. 19. — What contract amounts to a contract as an agent, and what amounts to a contract as a principal — considered. Milnor v. N. T. and New Haven B. B. Co., 53 N. Y., 363. 1873. 20. — A railroad company is not bound by the contract of its agent for transportation beyond the termini of its road, in the absence of express authority given him in that re- spect, and where the making of such contracts has not become an established business of the road by the custom of those having general authority in its management. Wait v. Albany and Susquehanna B. B. Co., 5 Lansing (N Y ) 475. 1871. ■ 21. — The fact that the vice president of a railway company had for years been in the habit of appointing local agents to look after its timbered lands ; that these agents had sold stumpage and timber thereon ; that the com- pany had brought suit on one of these con- tracts of sale and obtained judgment, the amount of which was paid to the local agent- AGENCY. 13 Rights, Duties and Liabilities of Agents. tliat the latter was accustomed each year to make a full report ia writing to said vice president, and to pay the moneys in his hands to the treasurer of the company — would au- thorize a jui-y to find that the company knew and acquiesced in the authority thus exer- cised, and was bound by such a contract of sale made by its local agent. Chicago and N. W. R. R. Co. V. James, 24 Wis., 388. 1869. 22 — The superintendent of a railroad was held, in this case, to have no authority to make a contract that would be binding upon his principal for medical services to be rendered to a child that had been run over on the track.' Stephenton v. N. Y. and Harlem R. R. Co., 3 Duer (N. Y.), 342. 1853. 23. — In hiring a machine to a contractor upon a railroad, the owner of the machine should ascertain who is responsible for the charges — the fact that the machine is used in constructing the railroad will not make the company liable. Chicago and Great Eastern R. R. Co. V. Fox, 41 111., 106. 1866. 24. — A railroad subscription agreement au- thorized certain persons as agents of the sub- scribers to enter into a contract with a rail- road company for the construction of a cer- tain line of road, whereupon the agents were to deliver to the company the subscription. Held, that no assignment by the parties there- to was necessary, but that a mere delivery by the agents was sufllcient. Cedar Rapids and St. Paul R. R. Co. V. Stewart, 25 Iowa, 115. 1868. 25. — The agreement authorized the agents to enter into a contract with the railway com- pany, according to their discretion, and upon such terms as they, or a majority of them, might deem best for the interest of the sub- scribers and for the construction of the road. Held, that the agents were empowered to bind their principals in covenants to finish depot grounds and provide the right of way, the per- formance of which, on their part, should be a condition precedent to the completion of the contract by the company. lb. 26. — The agents had the right to stamp the agreement when delivered by them to the company. lb. 27. General agent. Where the corpora- tion has a general agent who is employed by it for the express purpose of receiving and transporting mercliandize for hire, and is held out to the world as invested with authority for this purpose if goods are delivered to him to be transported in the way of his duty, the corporation will be liable for the manner in which that duty is performed, and the con- tract of the bailment may be regarded as made with it. Mayall ». Boston and Me. R. R. Co., 19N. H., 123. 1848. 28. Notice. Notice to an agent of a cor- poration* relating to any matter of which he has the management and control, is notice to tlte co^ymaXXoA." PiitsTmrgh, Ft. Wayne and Olii. B. R- Co. V. Ruby, 38 Ind., 294. 1871. • 29. Powers. The authority of an agent to assume the payment of the debt of a third person for his principal, 'should be clearly proved, or no recovery can be had upon such promise against the principal. Reading B. R. Co. ■». Johnson, 1 Watts & Sergeant (Penn.), 317. 1844. 30. — An authority to deliver goods to a common carrier for transportation includes all the necessary and usual means of carrying lit Jhto effect. It can only be executed by ob- taining the consent of the fearrier to receive them, and the agent fS therofor'e authorized to ' stipulate for the termS of transportation. ' Nelson v. Hudson Eiver R: R. Co., 48 N. Y^, 1 498. 1871: * • ■ , 31. — The consignor of gbods to a distant f consignee, who is the owner, is the agent of the consignee for the piirpose of shipping. lb. li. Eights, duties and liabilities , " ,0F AGENTS. 32; Foreign factor. It is presumed that credit given to a' foreign factor is given per- sonally to him instead of the principal, but this presumption may be rebutted by proof. New Castle M'f'g Co. v. Red River R. R. Co., 1 Robinson (La.), 145. 1841. 33. Payments made for principal. Where an agent for and at the request of his princi- pal, purchases land in his own name, pays part of the consideration, and gives his mort- gage for the residue, with a bond in which his principal joins; the agent is a surety for his principal in respect of such bond ; and equity will decree that he be paid his advance and indemnified against the bond, and mor'. gage, on his conveying the title to tlje prihci- 14 agency; Rights, Duties and Liabilities of Principals. pal. Mohawk and Hudson R. R. R. Co. v. Oostigan, 3 Sandforcl's Oh. (N. Y.), 306. 1845. 34. Profits. AH profits made by the agent as an agent belong to the principal. Minne- eota Cent. R. R. Co. ii. Morgaih 52 Barbour (N. Y.), 317. 1868. 35. — An agent cannot appropriate to his own use any jDortion of the profits arising ^from the business of the agency and a cus- tom which overrides that rule of law cannot prevail. lb. 36. Robbery. An agent who has been rob- bed of the money of his principal may show that banks and other custodians of money usually look to their vaults and safes for se- curity, and not to the outside fastenings of the building. Wright ®. Cent. R. R. Co., 16 aa., 38. 1854. 37. — Where a local railroad agent was in- structed to remit daily to the headquarters of the company all sums of money received over .$10, it was lield, that he would be allowed a reasonable time, in view of his other duties, to make his remittance, and not liable for money stolen from him, which he did not re- ceive in time to remit as instructed. Robin- son V. Ill Cent. R. R. Co., 30 la., 401. 1870. 38. — The mere fact that he might have pro- cured a sum of money which it was his duty to remit, and in time to do so, from another agent in whose possession it was, and who de- livered it to him, but not in time to remit, would not render him liable in the absence of any showing that it was a part of his duty to go to such agent and procure the money received by him. lb. 39. Sub-agents. An action for work, la- bor and services, done and performed by the plaintiff for the defendant under an agree- ment made with' a sub-agent of the defendant, whose acts, in such cases, to be valid, are sub- ject to the approval of a general agent of the defendant cannot be maintained, where notice has been given to theplaintifl' by the general agent of the disapproval of such contract. Mc&overn v. Western R. R. Co., 38 Howard's Pr. (N. Y.), 493. 1864. III. Eights, duties and liabilities OF PRINCIPALS. 40. Acts of agents. The acts of an agent, in the scope of his usual employment, are binding on the principal, as to third persons, until they have notice of a revocation of the agent's authority. Lamothe v. St. Louis Ma- rine R. R. Co., 17 Mo., 204. 1853. 41. Declarations. The declarations, ad- missions and representations of the agents of a corporation stand upon the same footing as those of the agent of an individual. Sender- son V. R. R. Co., 17 Tex., 560. 1856. 42. Indemnity to agents. The principal is under an implied obligation to indemnify an innocent agent for obeying his orders, where the act would have been lawful in re- spect to both, if the principal really had the authority which he claimed. Howe v. Buffalo,. N. r. and Erie R. R. Co., 37 N. Y., 397. 1867. Same v. Same, 38 Barbour (N. Y.), 124. 1863. 43. Negligence — rafts. Defendants will be liable for any injury sustained by third per- sons in consequence of negligence in drifting a raft, where it is shown that they had pur- chased and paid for the raft, and that it had • been delivered to their agent. Nor will proof that their agent took upon himself the risk of its safe transportation exonerate them, as owners, from liability to third persons. Taylor V. Mexican GulfR. R. Co., 3 La. An., 654. 1847. 44. Failure to repudiate acts of agent. When the property of one party has been ap- propriated by another without a prior con- tract, a subsequent contract for the same by an apparent ostensible agent, though not hav- ing actual authority, is binding on the princi- pal, at least unless the principal, immediately after making the contract,- and before the other party is prejudiced by relying on it, re- pudiates the act of the supposed agent, and puts the other party in statu quo by restoring the consideration. Beecher v. Grand Trunk R. R. Co., 43 Vt., 133. 1870. 45. — The original property still being in existence and accessible a recovery may be had in assumpsit, lb. 46. Failure to apply to principal for debt. Where a vendor, between whom and the de- fendant no privity exists, sells to the agents of the latter goods known to be for the use of their principal, but looks to such agents ex- clusively for payment, and after failure of the latter to pay suffers more than fifteen months to elapse before applying to the principal, during which time he had settled with his agents, the principal will not be liable to AGENCY. 15 Wrongful Acts of Agents. such vendor. New Castle M'fg Co. v. MedHiv- er B. B. Co., 1 Kobinson (La.), 145. 1841. 47. — A corporation, acting witliin the scope of its legitimate authority, is bound by a parol contract made by its authorized agent, the same as an individual. Bacine and Miss. B. B. Co. V. Farmers' Loan and Trust Co., 49 111., 331. 1868. IV. Weongful acts of agents. 48. Conversion. Where one receives from an agent money belonging to the principal, knowing that it is the money of the principal, and that the latter holds it in trust for his principal, as a simple depositaiy, the same may be recovered back in an action brought by the principal, for the conversion; where it appears tliat the money can be identified. Grand Trunk B. B. Co. v. Edwards, 56 Bar- bour (N. Y.), 408. 1868. 49. — The fact that the property converted is bank notes forms no legal objection to the maintenance of such an action ; so long as they are capable of being identified. J6. 50. Embezzlement. On the trial of an ac- tion, brought by a corporation against one of its agents, to recover money fraudulently tak- en from it by the defendant, when the succes- sor of the defendant in the same oflice has been called as a witness, and is sought to be impeached oa the ground that he committed the acts with which the defendant is charged, evidence that money had been taken from the ofSce while the defendant was employed there, prior to the time embraced 'in the plaintiff's specification of claim, is admissible for the purpose of sustaining the credit of the wit- ness. Boston and Worcester B. B. Co. v. Dana, 1 Gray (Mass.), 83, 1854. 51. — An agent of a corporation, who, on the trial of an action brought against him by the corporation to recover money of the cor- poration alleged to have been fraudulently taken by him, has expressly admitted the gen- eral carefulness and accuracy of the plaintiff's cashier, called as a witness, cannot take ex- ceptions to the refusal of the presiding judge 1o allow him, at a subsequent stage of the trial, to prove an inaccuracy of said cashier in regard to a particular entry, in no way bearing on the case, except as affecting the cashier's general carefulness and accuracy. lb. 52. — The doctrine of the English law, that for goods feloneously taken no action lies against the felon, before the institution .of criminal proceedings against him, is not in force in Massachusetts. Ih. 63. Fraud. A corporation will be affected by the fraudulent conduct of its agents, ih like manner as if such agents had been acting for private employers. Nugent v. Cincinnati, Harrison, etc. B. B. Co., 2 Disney (Ohio), 303. 1858. 54. — The possession, by the transfer agent of a corporation, of the transfer books of stock, and his authority to allow them to be used, do not constitute the indicia of an au- thority to make representations as to the own- ership of stock, so as to render tlie company liable for the falsity of such representations made by him. Henning v. N. T. and New Haven B. B. Co., 9 Bosworth (N. Y.), 283. 1863. 55. — An individual employed by a rail- road company, as its agent, to purchase wood and timber for its use, has no right, while purchasing woodland for the company, as such agent, to receive from the vendor a com- mission for promoting the sale. Morrison v. Ogdenslmrg and Lake Champlain B. B. Co., 53 Barbour (N. Y.), 173. 1868. 56. — The company having been , com- pelled, through the agent's negligence of duty, to pay more for the land than it otherwise would have paid, the difference, being the amount of the agent's commissions, in equity belonged to the company. lb. 57. — Such act by an agent is a fraud upon his employer justifying his discharge. lb. 58. General agent. The general agent of a corporation, clothed with certain powers by the cliarter, or the lawful act of the corporsu tion, may use those powers for an unauthor- ized, or even a prohibited purpose, in his deal- ings with an innocent third party, and yet the corporation be held liable for his acts. Mad- ison and Indianapolis B. B. Co. it. Norwich Saving's Society, 34 Ind., 457. 1865. 59. Torts. A railway company may be liable for the torts of its agents committed within the general scope of their employ- ment. Jeffersonmlle B. B. Co. v. Bogers, 38 Ind., 116. 1871. 60. — The responsibility of the principal for the acts of the agent is not limited to 16 AGREED CASES — AMENDMENTS— APPEALS. Ratification — Proceedings — Jurat — Pleading. cases where he is present. Bart v. If. 0. and CarroUonB. B. Co., 1 Robinson (La.), 178. 1841. 61. — Where a wagoner took rags from the depot of a railway company to his employer's paper mill, supposing them to be his, where they were used, held, that the employer was not, by the act of taking merely, involved in the consequences of a fraud. Pennsylvania B. B. Co. V. Zug, 47 Penn. St., 480. 1864. Y. Eatifioation. 62. Effect of ratification. The ratification by the principal of a contract of the agent, amounts to a waiver by the principal of a want of authority in tlie agent. Ohio and Miss. B. B. Go. V. Middleton, 20 111., 629. 1858. 63. — If a party use an article furnished under a written contract made by an agent, it will be presumed that it was intended to ratify the contract. Evans v. Chicago and Booh Island B. B. Co., 36 111., 189. 1861. 64. — Where the by-laws of a railroad com- pany entrusted the general freight agent with the power of negotiating contracts for the transportation of freight, with the approval of the president; it was held, that this restric- tion should be construed as meaning, subject to the aijproval of the president, if he should deem it proper to interpose, before the at- tempted execution or performance of the con- tract. But that if he did not think fit to in- terpose, and neglected to apprise the public that every special contract for the transporta- tion of freight must be ratified by him, the company would be liable for the fulfillment of the contract. Medbvry v. 2f. T. and Erie B. B. Co., 26 Barbour (N. Y.), 564. 1858. 65. — The ratification of part of an agree- ment made by the agent of a corporation be- fore its incorporation binds a party to other material parts of the contract. Titus v. Oata- wissa B. B. Co., 5 Phila. Rep. (Penn.), 172. 1863. AGREED CASES. 1. Proceedings. A case stated is like an issue developed by special pleading, and pre- sents the very matter which is up for judg- ment ; the court cannot go beyond the issue. Philadelphia and Beading B. B. Co. v. Water- man, 54 Penn. St., 337. 1867. 2. — A decision upon an agreed case, or an agreed statement of facts, is final to. the extent to which it goes. If the parties desire the case to be amended or discharged, or the facts to be waived, steps must be taken to afiect the object before the decision is an- nounced Goodrich o. East&rn B. B. Co., 88 N. H., 390. 1859. 3. Appeal. Where oral testimony is em- bodied in a bill of exceptions, an appellate court will indulge presumptions favorable to the decision below; but where a cause was tried upon an agreed case in writing no such presumptions arise. Indianapolis and Cin- innati B. B. Co. v. Kinney, 8 Ind., 402. 1856. AMENDMENTS. See Pleadings. 1. Jurat. The jurat of an affidavit, offered in evidence, may be amended by adding there- to a reference to the notarial seal of the notary before whom the affidavit is made, which reference was omitted in the original. Hal- lett V. Chicago and N. W. B. B. Co., 22 la., 259. 1867. 2. Pleading. The allowance of an amend- ment to a petition, increasing the amount of damages claimed, was held not erroneous. McDonald v. Chicago and if. W. B. B. Co., 26 la., 124. 1868. 3. — A year after judgment was entered on a verdict the court allowed an amendment in the name of the defendants to be made. Seld, that such an amendment was not within the acts of assembly. Pittsburg, Ft. Wayne and Chicago B. B. Co., v. Evans, 53 Penn. St., 250. 1866. APPEALS. See AoBEZD Cases; Dkikent Douain. I. Appeals to cotrBTS of last p.esobt. II. Appeals fkom coukts of limited ju- niSDICTION. III. Genebal tebms. IV. Pkoceedinqs fob the condemnation OF EEAL ESTATE. V. Miscellaneous mattees. APPEALS. 17 Appeals to Courts. of Last Eesort. I. Appeals to courts of last ee- sort. 1. Affirmance. The judgment or decree of an inferior court, when affirmed in this court, is only conclusive between the parties on the ■ matter involved. In iJie Matters of Soward, 9 Wallace, 175. 1869. 2. — Thus a decree, that the complainant and intervening claimants were entitled to a fund in the hands of a receiver, will not pre- clude third parties from assenting their rights by proper jiroceeding. lb. 3. Chancery. An appellant in chancery cannot complain of errors not affecting his interests. Origgs v. Detroit and Milwaukee R. M. Co., 10 Mich., 117. 1862. 4. — An order of the chancellor, made at the final hearing, for an issue to be tried by a jury, is appealable. Newark and N. Y. H. B. Co. i>. Newark, 8 C. E. Green's Ch. (N. J.), 515. 1873. 5. Damages. When an appeal is destitute of merit, ten per cent, damages may be award- ed. STiaekley v. North Mo. Co., 50 Mo., 410. 1873. 6. Default. By the R. S. 1853, if the record on appeal does not contain a copy of the sum- mons for the defendant, and show the same to have been properly served, a judgment by de- fault will be reversed. New Albany and Salem S. B. Go. V. WelsJi, 9 Ind., 479. 1857. 7. Dismissal. Plaintiff took an appeal , from the commissioners on the estate of W., but neglected to file, in the county court, a certified copy of the proceedings in the pro- bate court, with proper evidence that notice of such appeal had been given to the adverse party, according to the order of the probate court, as provided by statute, and also for the period of about six months no notice was given to the adverse party of such appeal. The county court, on motion, dismissed the cause as being irregularly in court. The court below, in tlie exercise of a discretionary power, having refused to retain the case, the decision will not be reexamined in the su- preme court. Butland and Burlington B.B. Co. V. Wales' Adrn'r, 24 Vt, 299. 1853. 8. — The Revised Statutes do not repeal, but expressly continue the laws in force regu- lating proceedings in the court of appeals, nor does the civil code repeal the provisions of the act of 1798, allowing damages on dis- missal of appeals to the court of appeals when the judgment or decree is for money. Madi- son, Indianapolis and Peru B. B. Go. «. Bris- coe, 18 B. Monroe (Ky ), 570. 1857. 9. — The neglect of an appellant who has regularly served notice of appeal, to procure his case to be filed within ten days after it has been settled, confers no right upon the re- spondent to have the appeal dismissed. Bob- inson v. Httdson Biter B. B. Go., 3 Abbott's Pr. (N. Y), 115. 1856. Same v. Same, 1 Hilton (N. Y.), 144. 1856. 10. — Where one of several defendants ap- peals to the supreme court without serving notice of appeal upon the other defendants, it seems the appeal should be dismissed. Pitts- burgh, Gincinnati and St. Louis B. B. Go. v. El- liott, 38 Ind., 153. 1871. 11. — When the clerk does not certify the time when the appeal was taken, nor even the fact that any appeal at all was taken, (Code, §§ 3016, 3023], the appeal will be dismissed on motion. Ala. and Miss. Bivers B. B. Go. v. Hungerford, 41 Ala., N. S., 388. 1867. 12. — Where the record of appeal is not filed within three judicial days after the re- turn day, and no extension of time has been obtained, the appeal must be dismissed, if re- quired by the appellee. C. P., 588, 590. New Orleans and GarroUton B. B. Go. v. Hood^ 3 La. An., 226. 1848. 13. — An appellant whose first appeal to the supreme court was dismissed for want of prosecution, may take a second within the time allowed by the statute for appealing. Marshall v. Milwaukee and St. Pa/u,l B. B. Co., 20 Wis., 644. 1866. 14. Evidence. The statutes of Ohio fur- nish no mode for reexamining the decision of a court overruling a motion for a new tri- al, asked on the ground that the verdict was against the weight of the evidence. Little Miami B. B. Co. v. Mien, 13 Ohio St., 438. 1861. 15. — The supreme court will not interfere with a finding in the court below where the evidence is conflicting and the witnesses have testified in the presence of the court. Butt v. Toledo, Wabash and Western B. B. Co., 34 Ind., 163. 1870. Ohio and Miss. B. B. Go. v. Black, ib., 553 ; Pittsburgh, Cincinnati and Si. Louis B. B. Co. V. Hume, ib., 336. 1870. Ji^-er- 18 APPEALS. Appeal to Courts of Last Resort. sonville, Madison and Indianapolis B. B. Co. V. Morgan, 38 ib., 191. 1871. 1 6. -^ It is not the pi'ovince of the supreme court to weigh tlie evidence and determine the preponderance tliereof. Before it will inter- fere upon the evidence alone, it must appear by the record, not merely tliat the finding was against the weight of evidence, but that it was wrong beyond any question whatever. Indianapolis, Cincinnati and La Fayette B. B. Co. «. Trisler, 30 Ind., 248. 1868. Sheeran v. Chi. and Mil. B. B. Co., 48 111., 523. 1868. 17. Exceptions. Where no questions of law are raised, and no bill of exceptions is pre- served, the judgment will be affirmed. Hedges ■0. North Mo. B. B. Co., 48 Mo., 382. 1871. To- ledo, Peoria and Warsaw B. B. Co. v. Miller, 55 111., 448. 1870. State ac rel. v. Comm'rs, Bipley County, 9 Ind., 310. 1857. Coffin v. Mvansville and Crawfordsville B. R. Co., 7 ib., 418. 1356. 18. Judgment. Irregularities in a judg- ment, which were known to the counsel be- fore taking an appeal from the judgment, are not ground for setting aside the judgment on a motion subsequently made. People v. Albany and Susquehanna B. B. Co., 8 Abbott's Pr., N. S. (N. Y.), 122. 1870; see Same ». Same, 39 Howard's Pr.(N.Y.), 49. 1870. Same v. Same, 3 Lansing (N. T.), 459. 1870. Same v. Same, 1 ib., 308. 1869. 19. — Where the appellan,ts cannot be in- jured by the judgment of the lower court, it will be affirmed. Langfitt v. Clinton and Port Hudson B. B. Co., 7 Robinson (La.), 41. 1844. Missouri, Kansas and Texas B. B. Co. v. Dur- kee, 10 Kan., 128. 1872. 20. — Where, on'a verdict for the plaintiff, at circuit, the defendant moved for a new ti'ial at special term of the supreme court, which was djnied, and on appeal from that order to the general term, it was affirmed, and the judg- ment then entered on the verdict, an appeal will not lie from such judgment to this court. Such judgment is Jiot an actual determination made at a general term of the supreme court. White V. Delaware, Lackawanna and Western B. B. Co., 41 N. Y., 520. 1860. 21. — A judgment of the district court which is not regular in form will, on appeal, be annulled, and a proper judgment will be retidered by the supreme court. Chapman v. New Orleans, Jackson and 0. N. B. B. Co., 21 La. An., 224. 1869. 22. Mandate. Under § 24 of the judiciary act, when the supreme court reverses tlie judgment of the court belpw and issues a mandate directing a judgment to be entered in favor of the defendant, the inferior court must obey the mandate and cannot grant a rule for a new trial. Ex parte Dubuque and Pacific B. B. Co., 1 Wallace, 69. 1863. 23. Notice. A judgment was set aside at the term at which it was rendered, on the de- fendant's motion, on the ground that ft had received no actual notice of the suit, etc. ; and the case was left standing on the complaint. Before any further proceedings were had, the plaintiff prosecuted an appeal to the supreme court. Held, that under the R. 8. 1852, the ap- peal would not lie. Branham v. Pt. Wayne and Southern B. B. Co., 7 Ind., 524. 1856. 24. Orders. An order of the supreme court, made at a general term, reversing a judgment rendered at the circuit, before a single justice of that court, and awarding a new trial, is not a judgment within the meaning of the code, and therefore is not appealable to this court. Duane v. Northern B. B. Co., 3 N. Y., 545. 1850. 25. — An appeal lies to the supreme court of Baltimore city, from an order of the Balti more city court, refusing to strike out a judg ment by default rendered therein. Merrickii Baltimore and Ohio B. B. Co., 38 Md., 481 1870. 26. — An appeal does not lie from an ordei of the supreme court removing an action com menced therein to the United States court on the ground that the defendant is a citizen of another state. Illius v. New York and New Haven B. B. Co., 13 N. Y., 597. 1856. 27. — It is not correct practice to move in one circuit an order which, in effect, dis- regards or treats as null and void a previous order made in the same cause in anotlier cir- cuit — the last mentioned order having been made, as alleged, upon a misapprehension of fact, and upon the motion being denied bring the matter by appeal before the supreme court. The matter complained of should, in some way, be made the subject of considera- tion by the court which made the previous order. Purman v. Greenville and Columbia B. B. Co., 3 So. Car., N 8., 427. 1871. 28. — An appeal lies from an order of the circuit court ascertaining the amount of in- APPEALS. 19 Appeal from Courts of Limited Jurisdiction. terest due on a mortgage, and providing for sale in case of default in payment. Milwaukee and Minnesota R. R. Co. ». Sautter, 2 Wallace 440. 1864. 29. — An order granteJ en terms upon an application to show cause why the defend- ants should not have thirty days in v\hich to make and serve a case, after default, is not appealable. Kiersted «. Orange and Aleai- nndria M. R. Co., 44 Howard's Pr. (N. Y.), 379. 1873. 30. — An order made by a circuit judge, refusing leave to bring an actio i against a private corporation, is not one from which an appeal will lie. State v. Oregon Central R. R. Co., 3 Or., 255. 1868. 31. — The right of appealing from orders of the circuit court, which set aside or refuse to set aside judgments or sales made under them, must be considered settled. Oarney v. La Orosse and Milwaukee R. R. Co., 15 Wis., 503. 1862. 32. Points not presented below. The ob- jection that there was a trial without an issue, in order to be available in this court as error, must have been properly brought to the atten- tion of the court below. Peru, etc., R. R. Go. V. Dayton, 18 Ind., 328. 1863. 33. — The supreme court will not consider objections to the action of the lower court which were not assigned in the motion for a new trial. Gowen v. St. Louis and Iron Ml. R. i?. Co., 48 Mo., 556. 1871. 34. Practice. Where there is a verdict or finding of the court for one party, whereupon the other moves in arrest of judgment, upon the ground of defects in the pleadings, and thereupon, in order to cure the alleged defect, an amended pleading is filed, and additional evidence submitted in support of the new allegation, to which a demurrer is interposed, and is sustained by the court, and the judg- ment against the defendant is arrested, and one is entered against the plaintiff for costs, a motion for a new trial is not necessary in order to present exceptions duly taken on ap- peal. Goatea o. Galena and Chicago Union R. R. Go., 18 la., 277. 1865. 35. Presumptions. It is due to the lower court to presume in its favor, unless the pleadershows it by the record to be clearly in error. J^ew Albany and Salem R. R. Go. v. Callow, 8 Ind., 471. 1856. 36. — The supreme court will indulge in no presumption against the ruling of the in- ferior courts. lb. 37. Time. The time for taking an appeal is to be computed from the date of the judg- ment, and not from the adjournment of court. Act of Feb. 16, 1865. Toledo, Peoria and Warsaw R. R. Go. v. Goomes, 40 III., 37. 1866. 38. Writ of Error. The question as to whether a principle, heretofore decided by the court, is or is not applicable to errors assigned in a case now brought here on writ of error, is one to be discussed on tlie hearing, and not on motion to docket and dismiss. Tower v. Detroit and Milwaukee R. R. Co., 7 Mich., 10. 1859. 39. — And the question, whether the plaint iff in error appeared and argued the case in the court below, or consented to the judgment there entered, is one which cannot be raised on affidavit, on motion to dismiss the writ of error. lb. 11. Appeals from courts of limited jurisdiction. 40. .Justice of the peace. An appeal taken by a party in default, and who has filed no motion to set aside sucli default,, will be dis- missed. Smith V. St. Louis, Kansas City and Northern R. R. Co., 53 Mo., 338. 1873. • 41. — Where, in the return of a justice of the peace to an appeal, there is abundant evi- dence to sustain the verdict of the jury, or the judgment of the justice, the court will not reverse the judgment on account of an im- proper question being put to a witness and answered. Spencer v. Saratoga and Washing- ton R. R. Go., 12 Barbour (N. T.), 382. 1852. 42. — The appearance in the circuit court of the appellee on appeal from a justice's ourt to obtain an affirmance of the judg- ment, is not such an appearance as will waive or imply notice, and a continued failure to give notice notwithstanding such appearance is a failure to prosecute the appeal. Purcell n. Hannibal and St. Joseph R. R. Go., 50 Mo., 504. 1873. 43. — Where an appeal is allowed from a justice of a peace on a day subsequent that of the judgment, and appellant fails to give 20 APPEALS. General Term. the ten clays' notice of his appeal required by the statute (3 W. S., 850, § 21), before the second ensuing term of the circuit court, tlie appellee may appear simply for the purpose of having the judgment affirmed, and will be entitled to such affirmance, by reason of the continued failure of appellant to give such notice. But judgment of afBrmance for want of prosecution cannot be taken at the return term of the appeal, unless appellee enter his appearance on or before the second day of the term. Nay v. Hannibal and 8t. Joseph B. B. Co., 51 Mo., 575. 1873. 44. — Where an action for damages against a railroad company was originally brought before a justice of the peace, under the com- mon law, for negligence in killing stock, and on appeal to the circuit court, an amended statement was filed under the provisions of § 5, ch. 51, R. C, 1855; held^ that the whole cause of action was changed, and, under the statute concerning appeals from justices of the peace, the same was properly stricken out on motion. Hansberger «. Pacific B. B. Co., 43 Mo., 196. 1869. 45. — The defendant subscribed for one share of railway stock, for which he agreed to pay plaintiff |100 in ten equal installments, not payable until the performance of a condi- tion precedent. The plaintiff brought an ac- tion before a justice of the peace for one of the installments under an ad damnum of ten dollars. Held, that the action was appealable, the amount in controversy in fact exceeding ten dollars. Connecticut and Passumpsic Rivers B. B. Go. V. Bates, 33 Vt., 420. 1859. 46. — An action for damages for the killing of stock, against a railway company, should not be dismissed on appeal because the jus- tice has neglected to copy the cause of ac- tion upon his docket. Indianapolis and Cin- cinnati B. B. Co. V. Toon, 20 Ind., 230. 1863. Same v. Smither, ib., 238. 47. — The decision of the county court on an appeal from a justice is final, and a writ of error will not lie to the High Court of Errors, and appeals to review the decision of the county court on such appeal. Mississippi Cent. B. B. (Jo. v. Kennedy, 41 Miss., 551. 1867. 48. — An. appeal from the decision of a justice of the peace, gives the appellate court jurisdiction of the party, although he was not served with process in the case appealed from. Ohio and Miss. B. B. Co. v. McCutchin, 37 III., 9. 1861. III. General teem. 49. Appeals to general term. A decision of a judge at chambers, on a motion under § 347 of the code, for judgment, on account of the frivolousness of the answer; is an order, and not a judgment. But such an order is appealable to the general term. Western B. B. Co V. Kortright, 10 Howard's Pr. (N. Y.), 457. 1854. 50. — An appeal to the general term, under S 349 of the code, relating to appeals from a decision at a special term, directing judg- ment in favor of the defendant on a demurrer to the whole of a complaint as an order will not lie. Bauman v. N. T. Cent. B. B. Co., 10 Howard's Pr. (N. Y.), 318. 1854. Contra, see Nolton v. Western B. B. Co., ib., 97. 1854. 51. — The eflect of an appeal considered with reference to the circumstances of a par- ticular case. Tracy v. N. Y. and Harlem B. B. Co., 9 Bosworth (N. Y.), 615. 1863. 52. — An appeal lies to the court at general term, from an order made at special term, giving a party leave to inspect and examine the books and papers of the parties appeal- ing. Thompson 'o. Erie B. B. Co., 9 Abbott's Pr., N. S. (N. Y.), 212. 1870. 53. Appeal from general term. The court of appeals will, in the absence of any other error, affirm a judgment of the supreme court, ordered at general term, upon excep- tions heard there in the first instance, under the stipulation of the parties, there having been no previous judgment nor direction to suspend it by the judge trying the cause. Lake Ontario, Auburn and N. Y. B. B. Co. v. ■Marvine, 18 N. Y., 585. 1859. 54. — What orders may be appealed from — determined. Carrington ». Florida B. B. Oo., 53 N. Y., 588. 1873. 55. — Where a judgment, recovered at a special term of the superior court by a plaint- ifi', for an Injury to his person, is reversed at a general term of said court, and remanded to the special term for a new trial, and thereafter, the plaintiff dies, no appeal lies from such reversal to the supreme court, in favor of the administrator of the deceased. Stout, Adm'r, V. Indianapolis and St. Louis B. B. Co., 41 Ind., 149. 1872. APPEALS. 21 Proceedings for Condemnation of Real Estate — Miscellaneous Matters. lY. Proceedings for condemnation OF REAL ESTATE. 56. Right of appeal and its effect. An appeal dots not lie to the court of appeals from an order of the supreme court made at a general term, confirming the report of com- missioners to appraise the compensation to be made for lands proposed to be taken under the general railroad act, and refusing to direct a new appraisal. N. Y. Gent. B. B. Oo. ti. Mar- vin, 11 N. Y., 376. 1854. 57. — The order of the district court dis- missing an appeal from an award of damages is a final order fi-om which an appeal will lie. Warren v. St. Paul and Pacific R. B. Co., 18 Minn., 384. 1872. 58. — The effect of an appeal in a proceed- ing to condemn land — determined. Minn. Valley B. B. Go. v. Doran, 15 Tviinn., 230. 1870. Same v. Same, ib., 340. 1870. V". Miscellaneous matters. 59. Accounting Officer. On appeal from a settlement with the accounting officers of the Commonwealth, no point can be reviewed unless specified in taking the appeal. Dela- ware Lackawanna and Western B. B. Go. v. The Gommonwealth, 66 Penn. St., 64. 1870. 60. Bond : Supersedeas. An appeal to the general term, from an order under § 319 oi the code, is per se a stay of proceedings; and no undertaking or security is required. Stew- art V. Saratoga and Whitehall B- B. Go., 13 Howard's Pr. (N. Y.), 485. 1855. 61. — The actual allowance of an appeal may be inferred, where the record shows that an appeal was prayed for in open court, and an appeal bond filed and approved by one of the j udges. Bailroad Oo.n. Bradley, 1 "Wal- lace, 575. 1868. 62. — Under the act of July 26, 1843, both an affidavit and security are indispensable con- ditions to be performed by a party appealing to the court in bank on an order of the judge ■ and certificate of the court of Niai Prius. Stiles V. Westchester B. B. Go., i Watts and Sergeant, (Penn.), 403. 1842. 63. — An appeal bond will be presumed to have been executed by the parties whose names are attached to it; and this presump- tion holds equally where the bond is e.xecuted by an attorney in fact. Garmichael o. West Feliciana B. B. Go., 3 Howard (Miss.), 817. 1838. 64. — In a case purporting to have come up from a justice of the peace on appeal, where it does not appear that any transcript of the proceedings before the justice was ever filed ; or that he ever rendered any judgment in said cause, or that any appeal was ever taken or attempted, this state of facts will not justify the entry of a judgment against the sureties on the appeal bond. Seaton i>. Ghicago, Bock Island and Pacific B. B. Co., 51 Mo., 500. 1873. 65. — An appeal from a judgment overrul- ing a motion to quash an execution operates as a supersedeas of the judgment upon which the execution issued, upon the filing of a suffi- cient bond ; and in such case an order could be entered of record, staying the execution till the appeal is determined. But the bond must comply with the requirement of the stat- ute, and be conditioned for the performance of the judgment, as well as the payment of all damages and costs which may be awarded against the appellant in the supreme court. Parker v. Hannibal and St. Joseph B. B. Go., 44 Mo., 415. 1869. Buky ii. Same, ib., US. 66. — Any judge of the supreme court, either in term time or in vacation, has author- ity to issue writs of supersedeas. Northern Ind. B. B. Co. 11. Midi. Gent. B. B. Go., 3 Carter (Ind.), 670. 1851. 67. — The supreme court will not hear a motion to discharge or set aside a supersedeas while setting at chambers, unless by the con- sent of both parties to the cause in which it was granted. Ib. 68. — Where the amount of an appeal bond has been fixed by an order of the circuit judge and the appeal perfected under it, the cause is removed from the control of the circuit court, and a subsequent order modifying or ■ vacating the former order is a nullity. Spauld- ing 11. Milwaukee and Horicon B. B. Go., 11 Wis., 157. 1860. 69. — The sureties in an undertaking on appeal to the supreme court must bo resident householders or freeholders in the state of Wisconsin. Smith v. Ghicago and if. W. B. B. Co., 19 Wis., 89. 1865. 70. — Where the appeal bond is insufficient at the time the appeal is brought up, the 22 APPEALS. Miscellaneous Matters. substltutiou of a new bond ivill not cure the defect. 12 La. An., 73. Viclcsburg, Shreveport and Texas R. B. Go. v. Hempkin, 15 La. An., 523. 1860. 71. — Where the supersedeas bond, in an appeal to the supreme court from a judgment against two defendants recited that one of the defendants, naming him, had appealed, with- out referring to the other defendant, and the notice of appeal was headesl as of the plaintift against the defendant alone who was men- tion in the supersedeas, but the body of the notice used the plural " defendants," it was held, that the defendant mentioned in the su- persedeas and in the heading of the notice, alone appealed, Wel>sler v. Cedar Rapids and St. Paul R. R. Co., 27 la, 315. 1869. 72. — A case being in this court by appeal the court has a right to issue any writ which may be necessary to render its appellate juris- diction effectual. Ex part^ Milwaukee R. R. Co., 5 "Wallace, 188. 1866. 73. — Accordingly, it will issue the writ of supersedeas if such writ be necessary for that purpose. It will issue this writ in preference to obtaining the same end by a mandamus to the court below. lb. 74. — An appeal bond copied into the rec- ord, purported to be executed by the Illinois Central E. R. Co., by an attorney in fact, with a scrawl attached ; it was held, on a motion to dismiss for want of the corpo]'ate seal, that the court did not know, judicially, that the company had a seal, other than the scrawl, " such as appeared in the record. III. Cent. R. R. Co. 1). Johnson, 40 111., 35. 1864. 7'5. — A motion to dismiss the appeal for the reason that the bond was not filed in time, comes too late after an appearance. Price v. Pittshwrgh, Ft. Wayne and Chicago R. R. Co., 40111., 44. 1864. 76. — In copying into the transcript of a record an appeal bond purporting to hare been executed by a corporation, the corporate seal may be represented by a scrawl ; a fac simile of the seal or device cannot be made in the copy. III. Cent. R. B. Co. v. Johnson, 40 111., 35. 1864. 77. — When judgment is rendered against several plaintiffs in a court for the trial of small causes, one of tlicm may appeal in the name of all. Van Buskirk v. Hoboken and N. Y. R. R. Co., 3 Vroom. (N. J.), 307. 1865. 78. Conductor. An appeal having been pra3'ed from a judgment against a railroad company for tilling cattle, thirty days' time was given to file a bond. Subsequently a motion was made by the plaintiflF for a writ requiring a conductor of the company to an- swer as to funds in his hands. Pending thi.s motion, an appeal bond was filed, and after- wards the writ was issued. Held, that the is- suing of the wi'it was erroneous. Indianapo- lis and Cincinnati R. R. Co. v. Kibby, 28 Ind., 479. 1867. 79. Death of appellant. When a party dies after appeal taken, and before return term, his representatives are entitled to a mo- tion to revive; and a motion to dismiss for want of an assignment of errors will not be granted. Oarmichael v. West Feliciana R. R. Co., 2 Howard (Miss.), 817. 1838. 80. Dismissal. The appellant may dismiss his appeal, and when a party, appealing from the inquest of a jury assessing damages, dis- misses his appeal, the proceedings of the jury are left in full force. In such case the appel- lant should pay the costs of appeal. Missis- sippi Central R. B. Co. v. Beatty, 35 Miss., 668. 1858. 81. Errors. In a trial under a, procedendo, no error can be imputed to Uie rulings of the court below, based on the terms of a contract and a modification thereof as interpreted by the appellate court on the first appeal. Balti- more and Ohio B. R. Co. v. Resley, 14 Md., 424. 1859. 82. Former decision. The supreme court will not revise a former decision made by the same court in the same cause, upon substan- tially the same state of facts. Stacy u. Vt. Cent. R. R. Co., 33 Vt, 551. 1860. 83. Orders. In controversies respecting railroads no appeal lies from an interlocutory order of the county court. Trevilian v. Louisa R. R. Co., 3 Grattan (Va.), 326. 1&46. Han- cock ®. Richmond and Petersburg R. R. Co., ib., 328. 84. Records and transcripts. The su- preme court cannot amend a transcript of a record, even by the original papers, should they be produced by a party for that purpose. III. Cent. R. R. Co. v. Garish, 40 111., 70. 1866. 85. — In county parishes judgments ai-e only signed at the end of the term; and or- ders of appeal, granted between the time of APPEAISEMENT LA.WS — ARBITRATION. 23 Agent — Agreement — Award. the rendition of the judgment and signing of the district judge, are not premature. Vicks- burg, Shreveport and Tex. S. B. Oo. v. Hamil- ton, 15 La. An., 521. 1860. , 86. — The insertion in the record of an improper name of the clerk will constitute no ground for reversal of the judgment of the inferior court. Qrimhall v. Mississippi and Alabama B. B. Co., 3 Smedes & Marshall (Miss.), 38. 1844. 87. — The court will adopt that construc- tion of the record of a case which will the more nearly harmonize the Whole record ; and if, with the record thus harmonized, there is sufficient to support the judgment of the infe- rior, court, it will he permitted to stand. Union Pacific B. B. Co. v. Homey, 5 Kansas, 840. 1870. 88. Reversal. When the appellate court has sent a case hack for the trial of a single remaining question, which belongs to the jury, the special term will order the cause put upon circuit calendar, notwithstanding objections that other issues are involved and unsettled. Vose v. Florida B. B. Co., 46 How- ard's Pr. (N. Y.), 434. 1873. 89. Time. The power is given to the court, in § 174 of the Code, to enlarge the time for appealing. Section 405 relates to the powers of a judge of the court at chambers, and has no application to the power of the court. Haase v. N. T. Cent. B. B. Co., 14 Howard's Pr. (N. Y.), 430. 1857. APPRAISEMENT LAWS. 1. — Under the laws of Indiana the rents and profits of lands levied upon under an ex- ecution must be appraised', or a sale under the execution will be invalid. Ind. Cent. B. B. Co. V. Bradley, 15 Ind., 23. 1860. ARBITRATION. See CoNSTBucnoif of Eailwats; Bmineht Dojcain; Injunction. 1. Agent. An agent cannot submit tlie cause of his principal to arbitration without express authority from his principal so to do. Mich. Cent. B. B. Co. v. Cougar, 55 111., 503. 1870. 2. Agreement of submission. An agree- ment to submit to arbitration the question of the " amount of damages or compensation to be paid by the defendant for any injury or loss that the plaintiflf may sustain," is suffi- cient to justify an awajrd for damages actually sustained. Md. and Bel. B. B. Co. v. Porter, 19 Md., 458. 1862. 3. Award. It is too late to urge in the su- preme court, as an objection to an award, that the arbitrators were not sworn; the objection should Iiave been made in the court below. Yalle V. North Missouri B. B. Co., 37 Mo., 445. 1866. 4. — An awai'd to be of any validity under the statute of Indiana must be signed by an attesting witness, before the expiration of the official existence of the arbitrators. New Al- bany and Salem B. B. Co. v. McPlieeters, 12 Ind., 472. 1859. 5. — An award upon a submission in the county, not returned into court, nor submit- ting questions of law to the decision of the court, is conclusive upon the parties, although flie arbiti-ators, "at the request of" one of the parties, annex " a statement of the facts and , principles upon which the foregoing award was mafle," " to be taken as part of said award; " and the court will not examine the questions of law arising upon that statement, especially if the facts are complicated, and the question of law doubtful. Smith v. Boston and Me. B. B. Co., 16 Gray (Mass.), 531. 1860. 6. — A mistake in a matter of fact, arising from the arbitrator misjudging, either in weighing the evidence or in consti'uing the contract or admissions of the parties, will not invalidate the award ; but only, such a mis- take as shows that he was misled, and deluded, and so far misapprehended the case that he failed to exorcise his real judgment upon it. Vanderwerker v. Vt. Cent. B. B. Co., 37 Vt., 130. 1854. 7. — ^^An agreement for arbitration being made in Tennessee, its validity and construc- tion in the courts of Georgia, depend on the laws of Tennessee, By the laws of Tennessee an award in parol may be good. Green v. Hast Tenn. and Ga. B. B. Co.,37 Ga., 436. 1867. 8. — If an arbitrator embraces in his award matter not submitted, and includes the result 24 ARBITRATION. Estoppel — Costs — Equity. in a single conclusion, so as to render it im- possible to separate the matters referred from those which have not been, the award is bad. York and Gumberland B. B. Co. v. Meyers, IS Howard, 346. 1855. 9. — But where the averments of the decla- ration cover the ground on which the award is based the award is final. lb. 10. — Arbitrators who are not restricted by the terms of the submission, are authorized to settle all questions of law and fact arising in the case ; and their decision upon -questions of law discussed before them, deliberately and fairly made, is conclusive. Their award may be impeached by showing that they have fallen into some mistake of the law by which they are misled, so that their award is not the result of their judgment; but their mistakes in drawing conclusions of fact from evidence, or in adopting erroneous opinions of the law, upon debated questions, are not legal causes for avoiding their award. White Mountain B. B. Go. V. Beane, 39 N. H., 107. 1859. 11. — A. contracted to build a railroad for B., to be paid upon monthly estimates to be made by B.'s engineers, of the work done, and made subcontracts with C. for the building of certain sections. As the work progressed the estimates anade were too small, and A. having died, C. presented claims against A.'s estate, on account of said underestimates. There being matters in dispute also between A.'s estate and B., they petitioned to the pro- bate court to make an order to refer all said mattei's to referees, under the statute, which was done. The claim of C. against A.'s escate on account of said underestimates, was also a claim on the part of A's estate against B. Held, that the submission was broad enough to cover all claims between the parties, A.'s estate and B., including the claim on account of said underestimates. Barker v. Belknap's Estate and Vt. Cent. B. B. Go., 39 Vt., 168. 1866. 12. — Held, also, that the claim being with- in the submission, the award is a bar to any action brought for tlie recovery thereof, or of any claim that was included in the suimis- sion, though it was not In fact brought before the arbitrators ; the same rule applying in this respect as if it had been an award by deed. Tb. 13. — One of the arbitrators was not pres- ent when an award was agreed upon, nor no- tified of the meeting at which it was made. Held, under the R. S. 1843, that the award wa3 invalid. Jeffersonville B. B. Go. v. Mounts, 7 Ind., 669. 1856. 14. — An award by the common law, to be valid, must have been concurred in by all the arbitrators. lb. 15. — The power of an arbitrator or referee expires with the retm-n of the award or report into court, and the report cannot afterward be altered. Ind. Gent. B. B. Go. v. Bradley, 7 Ind., 49. 1855. 16. — A referee having made his report to the court, in favor of the plaintiff, the defend- ant, more than two months afterward, filed a package of papers in the court, as containing the evidence which was given before the ref- eree. The afiidavits of the persons who took down the evidence were also produced, alleg- ing that it contained substantially all that was given. Held, that the package was no part of the report, and that it was not admissible to impeach it. lb. 1 7. Estoppel. In a suit upon a void award, made under the statute, the defendant is not estopped from denying its validity by not having appealed therefrom. Jefersonville B. B. Go. n. Mounts, 7 Ind., 669. 1856. 1 8. Costs. Where costs were allowed by the award of arbitrators without authority, that part of the award may be set aside with- out invalidating the residue of the award. Porter et al. v. Buekfield Branch B. B. Go., 32 Me., 539. 1851. 19. — If the award of arbitrators to whom a case is referred by rule of court, is silent on the subject of costs, the prevailing party is entitled to recover them. Woolson v. Boston and Worcester B. B. Go., 103 Mass., 580. 1870'. 20. Engineer as arbitrator. The meas- urement of the amount of work done under a contract by the person to whom it was re- ferred by the parties, is, in the absence of fraud, conclusive, and neiOier party is per- mitted ^o show it to bo erroneous. (See McAvoy V. Long, 13 111., 147.) Cent. Military Tract B. B. Go. v. Spurck, 24 111., 587. 1860. See CoNSTKuoTioN OP Eailwats and Cohtbaots. . 21. Equity. Equity will enforce an award of arbitrators, when the award provides a ARBITRATION. 25 Failure to Agree — Injunction — Referees. specific remedy, or provides tlie execution of a specific act, other tlian tlie payment of money. Story u. Norwich and Worcester S. JR. Co., 24 Conn., 95. 1855. 22. Failure to agree. Arbitrators, chosen under § 5, Local Laws 1849, p. 364, having reported to the circuit court that they were unable to agree, etc., 7ield, that their duties terminated witli such report, and that they could not afterwards proceed to make an ■award. Jeffersonmlle R. S. Go. ■». Mounts, 7 Ind., 669. 185G. 23. Injunction. A case was referred to an u'bitrator by consent, under rule of the court in which the suit was pending. While the matter was still before the arbitrator the de- fendant obtained an injunction restraining the plaintiff from proceeding with the refer- ence. The latter filed an answer and took an appeal from the order granting the injunc- tion, and gave bond as required by law. The arbitrator having filed his award during the pendency of the appeal, on exceptions to it for that cause, Jield, that the arbitrator was not prevented by the pendency of the injunc- tion case from going on with his award. Northern Gentral S. B. Go. v. Ganton Go., 24 Md., 500. 1866. 24. — Unless their acts are manifestly un- lawful an injunction will not issue to restrain the proceedings of arbitrators. West Jersey B. B. Go. V. Thomas, 7 Philadelphia Rep. (Penn.), 635. 1869. 25. Injury to passengers. If a passenger^ who is traveling in and seated by an open window of a railroad car receives an injury from the swinging of an unfastened door of a oar which has been left by another railroad company standing upon a track parallel with that over which he is riding, an award in his favor against the company by which the stationary car was left in its position which has been returned into the superior court in compliance with the terms of the submission, and is still pending therein, without entry of judgment thereon, is no bar to an action by him for the same injury against the company in whose cars he was riding, although the costs- of the arbitration have been paid by the company against whom the award was made. Todd V. Old Golony and Fall Biver B. B. Co., 3 Allen (Mass.), 18. 1861. 26. Interest of arbitrator. If an agree- ment is made to submit a cause to two arbi- trators, one of whom is interested, and they upon a hearing fail to agree, and notify the parties thereof, and of the determination of each of them, and thereupon, after the in- terest of the arbitrator has ceased, a new agreement is made, adding another abitrator, and providing that the decision of a majority of them shall be final, an award by a majority is valid and binding; although the plaintiff did not personally know of the facts in rela- tion to the interest of the arbitrator until after the award vras made. Wilson v. Concord B. B. Go., 3 Allen (Mass.), 194. 1861. 27. — Stockholders in a bank which holds shares of a railway company pledged to it as collateral security by a person in good credit are not disqualified by reason of interest from acting as arbitrators in a case in which the railroad company is a party. Leominster, In- habitants of, 11. Fitehburg and Worcester B. B. Go., 7 Allen (Mass.), 88., 1863. 28. Lease. In the indenture in which Railroad B. leased its road, etc., to Railroad A., there was an agreement to refer all mat- ters of dispute that might arise between them upon the lease. Seld, tliat this agreement to refer not only did not oust this court of its jurisdiction at law or in equity in a suit be- tween the parties to such contract, but also, that at the instance of a minority of the stock- holders in Railroad B., under the circum- stances stalled, this court might enjoin both said roads from entering into such reference, according to said agreement, in relation to the amount of rents due to said Railroad B. ; and if such reference had been entered into, from proceeding with such reference. March V. Eastern B. B. Co., 40 N. H., 548. 1860. Same b. Same, 43 ib., 515. 1862. 29. Review. The question whether an award is excessive or unjust cannot be re- viewed in a court of equity. But where there are errors enough to set aside an award the court will review them so that an award ap- parently excessive may be reviewed. West Jersey B. B. Go. v. Thomas, 6 C. E. Green's Ch. (N.J.), 205. 1870. 30. Referees. The construction of a con- tract by referees, appointed under a submis- sion at common law, cannot be reexamined by this court. Porter et al. v. Buckfield Branch B. B. Go., 33 Me., 589. 1851. 26 ARREST - ASSIGNMENT. Bond — Pleading — Eights of Assignee. 31. Statutes. The provision of the act of 1847 providing for arbitration in case of dam- ages done by a railway company — construed. Macon wnd Western B. S. Co. v. Davis, 13 Ga., 68. 1853. 32. Umpire. Two arbitrators, after hear- ing the evidence and arguments, being unable to agree, chose an umpire to act as third ar- bitrator, and the three met without notifying the parties of the appointment of the third arbitrator, or of the time and place of their meeting, giving no opportunity to the parties to be heard ; held, that their action, though believed by themselves to be lawful and prop- er, was 'misconduct in the sense of the law, and fatal to the validity of the award. Thomas v. West Jersey S. M. Co., 9 0. E. Green's Ch., (N. J.), 567. 1874. ARREST. 1. Bond. Under the provisions of § 14, page 615, of the Bevised Statutes, " no sheriff, or other officer, shall take any obligation of or from any person in his custody, for or con- cerning any matter relating to his office, oth- erwise than such as is specially directed by law. Every obligation taken by such officer, by color of his office, in any other manner or form, shall be null and void." Under an or- der of arrest, the sheriff, instead of the bond designated by the OimL Code (§ 190) took bond, with security, that the defendant would perform the judgment that might be rendered in the action. Held, that such bond was null and void. Lexington and Danville S. S. Go. ■». Barbee, 1 Metcalfe (Ky.), 384. 1858. 2. Female defendant. Where the com- plaint showed that a female defendant had aided her co-defendants in taking from the plaintiff certificates of stock and converting them to their own use, it was held, that this was a willful injury to -property for which a female could be arrested under the code. NortMm B. B. Co. of France v. Garpentier, 8 Abbott's Pr. (N. T.), 259. 1856. 13 Howard's Pr. (N. Y.), 323. 1856. ARREST OF JUDGMENT. 1, A motion in arrest of judgment must be made before judgment is rendered. Hilli- goss v. Fittsburgh, etc., B. B. Go., 40 Ind., 113. 1873. 2. — A motion in arrest of judgment is an affirmance of the verdict, and precludes a motion for a new trial. After a default and an inquest of damages, the defendant moved foi a new trial. Seld, that the motion was not a proper one. Held, also, that the proper motion would have been to set aside the in- quest. Marion and Logansport B. B. Co, v. Lo- mm, 7 Ind., 406. 1856. 3. Pleading. The objection that the peti- tion against a railroad company contains no averment of the corporate existence of the defendant, comes too late after judgment, and constitutes no ground for motion in arrest. Andre v. Chicago and JH'.W. B. B. Co., 30 Iowa, 107. 1870. ASSAULT AND BATTERY. See iKJUBtES TO Passekgers. ASSESSMENTS. See Stock: Subsceiptions-bt lNDivii>tiAi.s. ASSIGNMENT. See Cabbiase ov Mebohandise. 1. Rights of assignee. An assignment made in New York to a citizen thereof by a citizen of Wisconsin, of personal property then present with the assignor, the same being made in payment of a debt, will be upheld in Wisconsin, there being nothing in it contrary to good morals or public policy. Smith v. Chicago and N. W. B. B. Co., 23 Wis., 367. 1868. 2. — The thing assigned being a claim against the defendant, suit thereon must be brought in the name of the assignee. J5. 3. — The damages for the breach of coven- ant in a deed may be assigned. Vail v. Junc- tion B. B. Co., 1 Cincinnati Superior Ct. Rep., 571. 1871. 4. — A railroad company, having a con- tract guarantied by certain persons, took another contract in lieu thereof with guaran- ASSIGNMENT FOR THE BENEFIT OP CREDITORS. 27 Dividends — Effect — Form. ties also, but by neglect the first contract was not surrendered. Held, that the company Gould not convey the first contract to a third person as security for moneys advanced to the company. McDonald v. Kneeland, 5 Minn,, 353. 1861. 5. — Under the code, an assignee under a claim of damages, resulting from injuries to personal or real estate, may bring an action in his own name. Hall v. Cincinnati, Hamilton, etc., B. B. Co., 1 Disney (Ohio), 58. 1855. 6. — A cause of action founded on injuries to the person cannot be assigned. The code does not change this rule. Purple v. Hudson Biver B. B. Co., 1 Abbott's Pr. (N. Y.), 33. 1854. Samev.Same,iI>ueT.(H.Y.),'74:. ASSIGNMENT FOR THE BENEFIT OF CREDITORS. 1. Dividends. In a distribution by auditors of a fund assigned for the benefit of creditors, a jtidgment I'ecovered against the assignor in a suit commenced after the assignment, upon a claim which the record shows existed be- fore, is prima facie entitled to a dividend. Pittsburg and Steubenville Bailroad Company's Appeal, 3 Grant's Cases (Penn.), 68. 1859. 3 lb. 151. 1858. 2. Effect of an Assignment. An action on the case is properly brought in the name of the owner of property alleged to have been lost by the defendant's negligence, although after the cause of action accrued, but before it was commenced, he had assigned his whole estate for the benefit of his creditors. O'Neall and Chambers v. South Carolina B. B. Co., 9 Richardson's Law (So. Car.), 465. 1856. 3. Form of an assignment. A transfer by tlie Minneapolis and Cedar Valley R. R. Co. of certain state railroad bonds to a trustee " for the protection of the creditors of the company so far as they can be applied to that object " and reserving certain bonds from the effect of the trust was held not to be an assign- ment for the benefit of creditors. Banning v. Sibley, 3 Minn., 389. 1859. ' 4. — A deed of assignment was made for the benefit of creditors to J. L. and A. I., " the survivor or his assigns." J. L. died and the assignor joined with A. I. in making a new conveyance to said A. I. and G. R. Held, that the second deed was valid. Peck v. Ingraham and Bead, 28 Miss., 346. 1854. 5. — An agreement of lease by which the Philadelphia and Sunbury R. R. Co. placed its entire road in the possession of the Sun- bury and Erie R. R. Co. to be stocked, re- paired and run, at certain rates of tolls, and after applying the proceeds to these objects, so far as necessary, then to pay the earnings remaining to certain preferred creditors of the former company, is an assignment for the benefit of creditors, within the meaning of the act of March 24, 1818, and, having been re- corded within thirty days in the proper coun- ty, is good as an assignment for the benefit of creditors, although not so intended. Bitten- bender v. Sunbury and Erie B. B. Co., 40 Penn. St., 270. 1861. 6. — The preferences in the assignment are void being forbidden by law, but the assign- ment is good, although the assignee is in- eligible as a trustee, for the court can supply a trustee who is competent. lb. V. — An assignment lilie a grant, may be made of any property of which the assignor has the actual or potential possession, and the road being in possession, and its future earnings potential and capable of being ap- praised, both interests passed under the as- signment, lb. 8. — The lease possessing all the elements of an assignment must be construed as such. lb. 9. — "Where one of the preferred creditors, whose bill was against the Philadelphia and Sunbury R. R. Co., after it had taken posses- sion, upon the promise of the president of the latter company to pay him as prescribed in the lease, and upon failure of payment brought his action in assumpsit against the latter com- pany, proving the agreement, and that the lessees had received net profits enough to meet his claim; Tield, that the promise was but a-promise to pay in accordance with the terms of the assignment, and it was therefore an agreement to carry out the assignment and could not be enforced. lb. 10. — A transfer of property in trust for the payment of debts will not fall within the statutes which regulate assignments for the benefit of creditors unless made in due form and purporting to be an assignment. Lucas 28 ASSIGNMENT FOR THE BENEFIT OP CREDITORS. Fraud — Preferences — Stock. V. B. R. Co., 3 Philadelphia Rep. (Penn.), 215. 1858. 11. Fraud. An assignment to secure fu- ture advances is not per se fraudulent. It de- pends on the good faith of the transaction. Arthur v. Commercial and R. R. Bank of "Vicks- hurff, 9 Smedes and Marshall. (Miss.), 394. 1848. 12. --And a condition in the assignment that the assignees should each receive' an annual salary of $8,000, though suspicious in appearance is not necessarily fraudulent. lb. 13. — But where there is a conveyance made by a failing debtor to assignees, trans- ferring his property for an indefinite time un- til the profits shall have paid all the debts of the grantor, the conveyance is fraudulent and void as to existing creditors. lb. 14. Preferences. A creditor, in the ab- sence of a statutory prohibition, may, at any time, before liens have attached on his prop- erty, make a general or partial assignment to a trustee for the benefit of his creditors, ■with preferences, or he may assign the whole for the benefit of a single creditor. J^ew Albany and Salem R. R. Co. v. Huff,. 19 Ind., 444. 1863. 15. — The mere reservation, in such an as- signment, of the surplus, " if any there should be," to the debtor, will not vitiate the assign- ment, lb. 16. — A prior assignment of stock, trans- ferred to him for the benefit of creditors, will be preferred to a subsequent attaching cred- itor. Haldeman v. Hillsborough and Cincin- nati R. R. Co., 3 Handy (Ohio), 101. 1855. 17. — The Pennsylvania R. R. Co. being about to purchase the rolling stock and bonds of the Sunbury and Erie R. R. Co., and to lease its road for nine hundred and ninety- nine years, the lessee agreeing, by the con- tract, to keep the road in repair, maintain its equipment and pay thirty per cent, of the gross earnings for taxes, interest on bonds, and the balance of the rent, if any, to the les- sors ; a bill in equity was filed by a stock- holder in both companies for a preliminary injunction against the proposed purchase and lease. Held, that the intended contracts were valid, because within the corporate powers of the two companies under tlie acts of April 13, 1860, and April 23, 1861, and that they were not assignments in trust for the benefit of creditors with preferences. Qratz v. Penn- sylvania R. R. Co., 41 Penn. St., 447. 1863. 18. — By § 5 of act of 1843, prescribing the mode of proceeding against incorporated banks, for a violation of their franchises, etc., it was provided that the provisions of the act should not apply to the R. R. Bank of Yicks- burg, so as to effect the railroad and its opera- tion : held, that the operation of the law was only limited as to this bank, but tha;t the bank was not exempt from its operation. State v. Commercial and R. R. Bank of Vicksburg, 13 Smedes & Marshall (Miss.), 276. 1849. State v. Same, 34 Miss,, 144. 1853. 19. — An assignment for the benefit of cre- ditors was made by the company prior to the passage of said act; in the year 1846 proceed- ings in the nature of a quo warranto were commenced against the bank ; the assignees moved to quash the information and dissolve the injunction on the ground of the assign- ment to them; Held, that the motion could only be sustained so far as the interest of the assignees in the railroad was concerned lb. 20. Wliat may be assigned. The real estate of a corporation, purchased for r.-vilway purposes, is subject to sale on execution, and hence may be assigned for the benefit of the creditors. Arthxir v. Commercial and R. R. Bank of Vicksburg, 9 Smedes & Marshall (Miss.), 394. 1848. 21. — But the franchise of the road is not subject to sale or assignment without the con- sent of the power that granted it. lb. 22. Stock subscriptions. Unpaid stock subscriptions pass to the assignees and may be recovered by them. West Chester and Philadelphia R. R. Co. v. TJiomas, 3 Phila- delphia Rep. (Penn.), 344. 1856. German- town Passenger R. R. Co. v. ffitler, 60 Penn. St., 124. 1869. 23. — A corporation is not necessarily di- solved by its insolvency or by a writ of se- questration. Its franchises not capable of as signment must be exercised by it, but in sub- serviency to its legal and equitable obliga- tions, lb. 24. — The right to make calls upon stock- holders is vested in the managers, whose law- ful exercise of the right can only be objected to by creditors or their representative. lb. ATTACHMENT. 29 Bonds — Contractors — Curator — Foreign Corporation. 25. — Where the debts of the corporation require it, is the duty of the managers to make calls. They have discretion only as to the time and manner of making payments. lb. ATTACHMENT. See CoNTBAOT. Gaenishment. Stocks. 1. Attachment Bonds. Where an attach- ment was sued out in the name of A. for the use of B., and B. made the affidavit and exe- cuted the bond, which was conditioned for B's effectual prosecution of the suit ; it was held, that the affidavit and bond were within the statute, which required the officer granting the attachment to take bond and security from the party plaintiff. Grand Gulf B. R. and Banking Oo. for use of etc. v. Conger, 9 Smedes & Marshall (Miss.), 505. 1848. 2. Bonds. Railway bonds and Minnesota State railroad bonds are personal property, capable of manual delivery ; and as such, can- not be levied upon or attached, unless the at- taching officer succeeds in getting them in- to actual possession and under his control. Caldwell v. Sibley, 3 Minn., 406. 1859 ; Ban- ning V. Same, ib., 389. 1859. 3. — Bonds executed by a railway company and in the hands of its agents are not subject to attacliment against the company. Codding- ton V. Gilbert, 5 Duer. (N. Y.), 73. 1855. Same V. Same, 2 Abbott's, Pr., 242. Same v. Same, 17 N. Y., 489. 1858. 4. Contractors. The estimates of work done by a contractor for a railroad company, are made up to tlie 20th of each month, when they are considered due, though not paid for some days afterwards. As the price of the work done by the contractor after the 30th may be forfeited to the company for several causes, before the 20tli of the next month, no debt IS due from the. company to the contrac- tor, until the 20th arrives : and therefore an attachment being served on the company on the 14th of the month, there is nothing then in its hands due to the contractor which may be attached, though in fact no forfeiture oc- curs, and on the following 20th of the month tlie estimate may be due. Baltimore and Ohio R. R. Co. B. Gallahue, 14 Grattan (Va.), 563. 1858. 5. Curator. A curator ad Twa, appointed to represent an absent defendant, has no au- thority to waive the production of legal evi- dence. Edmonson i>. Mississippi and Ala. B. R. Co., 13 La. (O. S.), 282. 1838. 6. Foreign cor]}oration. A suit against a foreign corporation cannot be commenced by original writ or summons. Attachment is the only mode pro vided by statute. Lawrence i>. If. J. R. B. Co., ] Howard's Pr. (N. Y.), 250. 1845. 7. — A contract by a foreign corporation for the manufacture and purchase of property in New York, to be paid for on delivery at the office of such corporation out of that state, does not give the corporation a title to such property until delivered andpaidfor according to the agreement. Bates v. New Orleans, Jack- son and Great Northern R. R. Co., 13 Howard's Pr. (N. Y.), 516. 1856. Same v. Same, 4 Ab- bott's Pr. (N. Y.), 72. 1856. 8. — Therefore where such property Is on its passage through the state of New York to its destination out of that state, it is not lia- ble to be taken on attachment against the corporation. Ib. 9. — Where the demand for which the ac- tion was brought, .arose upon written con tracts for the payment of money, made, exe- cuted, delivered and made payable in Canada ; and all the labor done and materials furnished, were under those contracts, and upon work located in Canada, for a corporation created by the laws of Canada and existing there, ex- cept a small part, which was performed in New York, it was held not a case where the subject of the action was situated in New York ; and although the defendant had property in that state liable to attachment, the attachment could not be sustained by a nonresident plaint- iff. Campbell v. Champlain and St. Lawrence R. R. Co., 18 Howard's Pr. (N. Y.), 413. 1858. 10. — It seems, that the statute of New York (Session Laws of 1858, ch. 121), which authorizes a railway company, created by the laws of and located in Canada, to take and hold real estate, for the purpose of making a railway in New York, does not give authority to proceed against such company only as against a foreign corporation. Whitehead «. Buffalo and Lake Huron R. R. Co., 18 How ard's Pr. (N. Y.), 218. 1859. Campbell v. Champlain and Si. Lawi'ence B. R. Co., ib., 412. 1858. 30 ATTORNEYS. Powers and Duties. 11. — An attachment wili not lie against a foreign corporation owning property in New Jersey, and transacting business tliere under legislative authority. PMlUpiburgh Bank v. Lackawanna S. S. Co., 3 Dutcher (N. J.), 306. 1858. 12. — The property of a foreign corpora- tion within the limits of Georgia may be there attached. S. 0. B. B. Co. v. McDonald, 5 6a., 531. 1848. 13. — By the laws of Kentucky, Session Acts 1847-8, p. 344-5, all the privileges and imniu- nities were conferred upon the Mobile aud Oliio R. R. Co., in this state that it had granted to it in the state of Alabama ; and it was not subject in Alabama to have its property and efiEects attached for mere failure to pay its liabilities; and .unless it was so subject there it cannot be here, notwithstanding the provi- sion of the civil code on that subject, adopted since the passage of the above act. Martin and Merriwether v. Mobile and Ohio B. B. Go., 7 Bush. (Ky.), 116. 1870. 14. — A foreign corporation having its chief place of business in Missouri may, it seems, be sued as a resident there, by ordinary sunmons, and it cannot be sued there by attachment on the ground of nonresidence. Farnsworth v. Terre Haute, Alton and St. Louis B. B. Go., 39 Mo., 75. 1859. 15. Jurisdiction. In an action for the ■ recovery of money, jurisdiction of the defend- ant may be acquired by service by publica- tion, when the action is against a nonresident of the state, having property in the state sought to be taken by attachment. Code, § 70. National Bank of New London «. Lake Shore andMich. South. B.BXlo., 31 Ohio St., 321. 1871. 16. — A private corporation holds its cor- porate property in trust for the benefit of its stockholders. Hence, a nonresident stock- holder in a corporation in Ohio has property in that state. Ih. 17. — Such stock is taken in attachment when a notice of garnishment is duly served upon the corporation. lb. 18. — When such property is attached the jurisdiction of the court is complete and can- not be ousted by any subsequent answer of the garnishee. lb. 19. Locomotives. Tlie locomotive engines and cars of a railroad company are liable to attachment, when not in actual use, like other personal property. Boston, Goncord and Mon- treal B. B. Go. V. Gilmore, 37 N. H., 410. 1858. 20. Mortgaged property. When the prop- erty attached had been previously mortgaged to pay certain debts outstanding, of which those of the plaintiffs were a part, the plaint- iffs could not appropriate the mortgaged property to the payment of their debts with- out alleging that the residue of the debts se- cured had been paid, and bringing the trus- tees or legal titleholders before the court. Martin and Merriioether ». Mobile and Ohio B. B. Co., 7 Bush. (Ky.), 116. 1870. 2 1 . Notice. Where no property is attached and no garnishee found indebted, jurisdiction cannot be obtained against a foreign corpo- ration by publication of notice. Wh^at v. Platte Gity, etc., B. B. Go., 4 Kan., 370. 186S. 22. Practice. It is erroneous, where two attachments have been sued out by the same plaintiff against the same defendant, to sub- mit both causes to a jury, and to enter judg- ment upon their general verdict without any order consolidating the cases, and without publication having been made in one of them. Buckhalter v. Mississippi and Tennessee B. B. Go., 33 Miss., 119. 1856. 23. — It is too late to rule the plaintiff in foreign attachment to show his cause of action, after judgment entered at or after the third term for default of appearance. Manuel v. Miss, and Ala. B. B. Go., 2 Miles (Penn.), 398. 1840. 24. Storage of cars. In an action by a railroad company against an officer for stor- age of freight cars attached by him and left for some days on its premises, freight agents of other railroads are competent witnesses to the proper charge for such storage, although they have never known a case of storing cars except when the freight in a car has been at- tached. Fitchburg B. B. Go. «. Freeman, 12 Gray (Mass.), 401. 1859. ATTORNEYS. I. Powers and ditties. II. Compensation and lien. I. Powers and duties. 1. Authority. Where several suits were brought by the same plaintiff against differ. ATTOKNEYS. 01 ox. Compensation and Lien. cnt defendants — the defenses being the same in each case — and the attorneys of the several parties agreed that all the cases should abide the final decision in one case ; Jield, that the agreement was within the authority of the attorneys and was binding upon the parties. North Missouri S. S. Co. v. Stephens, 36 Mo., 150. 1865. 2. Appearance for commonwealth. A dis- interested counsellor at law, appointed by the court of common pleas for the purpose, may conduct the trial of a suit in behalf of the com- monwealth in that court, although the district attorney remains in court throughout the trial. Comraonwealth B, Conn. Biver JR. S. Co., 15 Gray' (Mass.), 447. 1860. 3. Change of sides. An attorney is never allowed to change sides in the same suit, or receive fees of two adversaries in one cause ; but where an attorney, in the course of other business, obtained a knowledge of matters connected with the suit in question, courts will not, in general, on that account, restrain an attorney from acting against the party through whose business he obtained such knowledge. Price v. Grand Bapids and Ind. B. B. Co., 18 Ind., 137. 1863. 4. Director. The constitution does not re- strain the legislature from prohibiting a di- rector.of a bank from appearing as its attor- ney. West Feliciana B. B. Co. v. Johnson, 5 Howard (Miss.), 378. 1840. 5. Prochein ami. The payment to the at- torney of record of a prochein ami, ot the amount due upon a judgment, and the satis- faction of the judgment by him is binding on the infant plaintiff. Baltimore and Ohio B. B. Co. V. Fitzpatrick, 36 Md., 619. 1873. 6. Release. A party receiving an injury from the wrongful acts of others, is entitled to but one satisfaction, and an accord and sat- isfaction by, or a release or other discharge by the voluntary act of the party injured, of one, of two or more joint tort feasors, is a dis- charge of all, but an attorney at law, as such merely, cannot settle a suit and give a release concluding his client in relation to the sub- ject in litigation, although he may discon- tinue the action. Barrett v. Third Avenue B. B. Co., 43 N. Y., 638. 1871. 7. Withdra^^al of appearance. It seems that it is in the discretion of the court to per- mit, or to refuse to permit, an attorney to withdraw his appearance in a cause. Ifew Albany and Salem B. B. Co. v. Combs, 13 Ind., 490. 1859. 8. — A full appearance waives defects in process ; but a limited one, for the purpose of making objections, does not. lb. II. Compensation and lien. 9. Fees. An attorney cannot recover for services rendered as such, unless he can show an employment or retainer. Chicago, St. Charles and Miss. B. B. Co. v. Larned, 36 111., 318. 1861. 10. — In cases where exemplary damages are allowed it is proper to prove the reasontu ble and proper charges of plaintiff's counsel. JIfew Orleans, Jackson and Great Nort/iern B. B. Co. V. Allbritton, 38 Miss., 342. 1859. 11. — Attorneys' fees are not recoverable in an action for breach of contract. New Or- leans, Jackson and Gi'eat Northern B. B. Co. v. Moore, 40 Miss., 39. 1866. 1 2. — The act of May 3, 1866, requiring cor- porations to pay counsel fees in suits against them does not apply to a case of an action against a railway company for interest upon its coupons after maturity. North Pennsylva- nia B. B. Co. V. Adams, 54 Penn. St., 94. 1867. . 13. — The provision in the statute of Dec. 33, 1840, ch. 584, § 2, authorizing land owners in certain cases to employ counsel at the ex- pense of railroad corporations, applies only to proceedings under that statute. Boston and Me. B. B. Co. v. Wentworth, 20 N. H., 406. 1845. 14. — A counsel fee that the plaintiff may be required to pay to his counsel in the cause is notlo be allowed by the jury in estimating the plaintiff's damages. Welc7e v. North East- ern B. B. Co., 13 Richardson's Law (So. Car.), 290. 1859. 15. — contract. S. contracted with defend- ant to build its railway and to bear all ex- penses of litigation growing out of its con- struction, and it was agreed tliat he might use tlie defendant's name in all necessary litigation. H., one of the directors, of which there were five, was also the agent of S., in re- lation to the execution of the contract. The plaintiffs not being aware of such contract were employed by H., and rendered profes- sional services in a suit against S. by a rival 32 AUDITA QUERELA -BAGGAGE. Wliat Constitutes Baggage. corporation, in whicli, however, the defendant was rcall}- interested, and charged the ser- vices to defendant. The remaining items of plaintiffs claim consisted of charges for ser- vices rendered in a suit in favor of H., against the same rival corporation, which suit was brought after consulting with H. and two other managing directors, and nothing was said as to whom the charges therefor were to be made. The object of the suit was to pro- tect defendants' interests, but the two directors who consulted with H. in reference to the suit supposed that the services were to be ren- dered on the credit of S. These services were originally charged by the plaintiffs to H. No action was ever taken by the board of direct- ors with reference to the employment of coun- sel for defendant in such suits. Held, that de- fendant was liable for all said services. Foot & Rodger «. Rutland and Wliiteliall S. R. Go., 32 Vt., 633. 1860. 16. — director's. Plaintiff's testator, while a director of a railroad company, acted as le- gal counsel in a certain action, to which the company was a party. Held, that the testator was entitled to compensation when so em- ployed by the company, and that it was not indispensable that his employment should be by a formal resolution of the board of direc- tors, but it might be inferred from the na- ture of the employment, the importance of the subject matter, the partial payment of his claim, and other acts of the board recogniz- ing an indebtedness. Jackson v. N. Y. Central iJ. iJ. Co.. 2 N. Y. Sup. Ct., 653. 1874. 17. Immaterial as to third persons. Evi- dence is inadmissible to show an agreement between the plaintiff and her attorney as to the measure of his compensation and the terms on which he was to commence and prosecute the action for her as such attor- ney, there being no issiie in respect to the proper parties to the action, and no other issue to which such evidence was material. Cook V.N. T. Central B. M. Co., 5 Lansing (N. Y.), 401. 1871. 18. Lien. The parties may settle an ac- tion without consulting an attorney employed in the cause, and the attorney will have no lien ick his costs, if there be no collusion between the parties to deprive the attorney of such costs. McDowell v Second Avenue JR. R. Co., i Bosworth (N. Y.), 670. 1860. 19. — Points of practice decided in relation to the lien of an attorney. Richardson v. Brooklyn City and Newtown R. R. Co., 24 How- ard's Pr. (N. Y.), 321. 1862. Same v. Sam£, 15 Abbott's Pr. (N. Y.), 342. 1863. 20. — The Code has not abolished the lien of an attorney for his costs upon a judgment recovered by him. Rooney v. Second Avenue R. R. Co., 18 N. Y., 368. 1858. 21. — Where a sum is confessed in dam- ages by the defendant, and the plaintiff pro- ceeds for more, but recovers nothing beyond the amount confessed, the attorney for the plaintiff is entitled to his lien upon the judg- ment for the amount confessed, and the attor- ney of the defendant to his lien upon the judgment rendered in his favor for costs; and the court will not set off the amount to be rendered in one judgment against the other to the prejudice of the lien of the attorney, of either party. Currier v. Boston and Maine R. iJ. Co., 87 N. H., 223. 1858. AUDITA QUEEELA. 1. When the basis of an audita querela is altogether personal it will die witli the per- son. Conneciicut and Passwmpsia Rivers R. R. Oo. V Bliss, 24 Vt., 411. 1852. 2. — In such case the bail upon the recog- nizance cannot be held. lb. 3. — Writs of error and audita querelas, when they go to the foundation of the judg mcnt, may be prosecuted by executors or ad- ministrators, lb. BAGGAGE. See JuBT. I. What constitutes baggage. II. Liabilities and duties of cakkiebs. I. "What constitutes baggage. 1. Articles inclnded. Common carriers are only responsible for the loss of a reason- able amount ot baggage. New Orleans, Jack- son and Great NortJiem R. R. Co. v. Moore, 40 Miss., 39. 1866. BAGGAGE. What Constitutes Baggage. 2. — Articles for use as baggage at the end of a journey, or during a temporary stay at a particular place, are as properly baggage as those actually used in transit. Toledo, Wabash and Western B. S. Co v. Hammond, 33 Ind., 379. 1870. 3. Clothing, etc. In an action brought to charge a railroad company as a common car- rier for the loss of an overcoat belonging to a passenger, it appeared that the coat was not delivered to the defendant, but that the pas- senger, having placed it on the seat of the car in which he sat, forgot to take it with him when he left, and that it was afterwards stolen. Held, that the defendant was not liable. Tower v. Utiaa and Schenectady B. B. Co., 7 Hill (N. Y.), 47. 1844. 4. Bedding, etc. Whether bedding, be- longing to a poor man who is moving with his family, carried along packed in a box or trunk, is baggage or not, is a question for the jury, taking into consideration the particular circumstances of the case and the use, qual- itj', value and kind of the articles in question. Ouimit V. Henshaw, 35 Vt., 605. 1863. 5. Jewelry and watches. A passenger may place his gold watch or jewelry in his trunk and in case of the loss of the baggage the carrier will be liable. MeOormiek v. Hudson B. B. B. Co., 4 E. D. Smith (N. Y.), 181. 1855. 6. — A gold watch deposited in his trunk by a traveler on a railroad is baggage, for which the carrier is responsible. Ameri- can Contract Go. v. Cross, 8 Bush (Ky.,) 472. 1871. 7. — A railroad company is held responsi- ble as a common carrier for the value of a gold watch which was lost from the trunk of a passenger by the negligence of the com- pany, lb. 8. — Whatever forms the necessary append- ages of the Ixaveler may be regarded as bag- gage, when placed in a trunk for convey- ance, lb. 9. Married Women. In the absence of statutes varying the rule, jewelry and orna- ments presented to a wife are her parapher- nalia, and as such are subject to the control of her husband, and he alone can sue for an injury to or conversion of them. McCormich ». Penn. Gent. B. B. Co., 49 N. Y., 303. 1873. 10. — Under the statutes relating to married women, the common law rule that a wife can- 3 not take by gift from her husband is abrogated. Bawson «. Penn. B. B.Go., 2 Abbott's Pr., N. S. (N. Y), 320. 1867. 11. — Hence a married woman may main- tain an action for the loss, by the negligence of the defendants, of apparel and jewelry which were a gift to her, whether from her husband or any other person. lb. 12. Laces. Old laces, purchased prior to the memory of persons living, were lost with baggage. Held, that their value should be proved. Frahff v. N. T. Cent, and Hudson Biver B. B. Co., 10 Blatchford (U. S. 0. C.;, 16. 1873. 13. Merchandise. Where a carrier of pas- sengers, in addition to passage money, de- mands and receives from a passenger com- pensation as freight for the transportation of packages- containing merchandise and bag- gage, in the absence of evidence of fraud or concealment on the part of the passenger as to the contents of the packages, such carrier, in case of loss, is liable for the merchandise, as well as baggage. Stoneman v. Erie B. B. Co., 53 N. Y., 439. 1873. 14. — A person, who, under pretence of having baggage transported, places in the hands of the carrier's agent merchandise, jewelry and other valuables, is guilty of fraud, which releases the carrier from its commcu law liability. Cincinnati and Chicago B. B. Co. V. Marcus, 38 111., 319. 1865. 15. — In such a case the carrier becomes possessed of the property as a common bailee for hire. Tb. 16. — Common carriers of passengers arc bound to transport the ordinary baggage of their passengers, but this liability is limited to ordinary baggage, consisting of such ar- ticles of necessity and convenience as are usually carried by passengers, and does not include merchandise and other valuables not designed for any such purpose. Mississippi Central B. B. Co. ■». Kennedy, 41 Miss., 671. 1868. 17. — In an action for damages to recover for lost baggage a passenger cannot recover his expenses in searching for the same. lb. 1 8. — The ticket of a passenger includes also the ordinary baggage required for his personal accommodation upon his journey, but does not include merchandise. Smith v. Boston and Me. B. B. Co., 44 N. H., 335. 1862 ; 34 BAGGAGE. What Constitutes Baggage. Collins V. Boston and Me.S. B. Go., 10 Gushing (Mass.), 506. 1853. 19. — Therefore a common carrier of pas- sengers is not an insurer of such merchan- dise, wlien taken along by the passenger, unless a reward be given for its transporta- tion, or it be of a character which, by usage or contract, is to be regarded as a part of the baggage. lb. 20. — The fact that other passengei-s on other occasions had taken along with them in the passenger cars similar bundles of mer- chandise, without objection has no legal tendency to prove that the bundle in ques- tion was transported at the risk of the carrier, unless it were shown that such bundles were knowingly carried as part of the baggage and paid for by the passenger ticket. lb. 21. — Although the carrier in such case is not liable as an insurer, he is liable as a bailee without reward, for loss or injury caused by his gross negligence; but such negligence must be proved, and is not to be presumed from the mere fact of the loss. lb. 22. — Merchandise cannot, without notice to the carrier, be shipped as baggage. Gin- einnati and Ghieago B. B Go. d. Marcus, 38 111., 319. 1865 ; MicJi. Southern and Northern Ind. B. B.. Co. V. Oehm, 56 lb., 293. 1870. 23. — The carrier's liability does not extend to articles which the passenger has purchased for a person not a member of his family and has packed with his own baggage. Dexter v. Syracuse, Bihghampton and N. Y. B. B. Co., 42 N. Y., 326. 1870. 24. — A package delivered by a traveler to be carried on a railroad, to his place of desti- nation, is not necessarily to be considered baggage, if not so represented by him and if not so put up as to deceive. Butler v. Sudson Biver B. B. Co., 8 E. D. Smith (N.Y.), 571. 1854. 25. — Although under such circumstances the package is carried by the same train that conveys the passenger, the railroad company may charge freight thereon, and the company will be liable, as a common carrier, for the loss thereof, where no fraud is practiced by the owner, by representing or treating it as baggage. lb. 26. — Where a passenger delivered his trunk and a piece of carpeting to the baggage master of a passenger railroad train, and re- ceived a check for his trunk, but was told that no check was necessary jfor the carpet as it would go safely — held, that the railroad company was liable for the loss of the carpet, although by the printed rules of the. company the baggage master was forbidden to receive as passengers' baggage articles of merchan- dise. Minter i). Pacific B. B. Co., 41 Mo., 503. 1867. 27. Liability. Where a railroad company knowingly receives and transports, in cars accompanying its passenger trains, the prop- erty of a passenger other than his baggage it assumes, in reference thereto, the liability of a. common carrier of merchandise. Hannibal B. B. Go. «. Swift, 12 Wallace, 263. 1870. 28. — Sm-gical instruments of an army sur- geon, traveling with troops, constitute a part of his baggage. lb. 29. Money. Common carriers of passen- gers are responsible for money bona fide in- cluded in the baggage of a passenger for trav- eling expenses and personal use, to an amount not exceeding what a prudent person would deem proper and necessary for the purpose; but not for money beyond that amount, or in- tended for other purposes, unless the loss is occasioned by the gross negligence of the carriers or their servants. Jordan v. Fall Biver B. B. Co., 5 Gushing (Mass.), 69. 1849. 30. — But the passenger cannot recover for money carried in his baggage for the purpose of purchasing clothing at the place to which he is going. Hiekox v. Naiigatuck B. B. Co., 31 Conn., 281. 1863. 31. — Where a trunk contains specie it is not incumbent upon the owner to notify the company of its contents, unless inquired of, notwithstanding the advertisement of the company, that passengers are " prohibited from taking with them anything as baggage but their wearing apparel, which will be at the risk of the owner; " and where the extra weight of the passenger's baggage was paid for ; -'- held, that it was immaterial whether the trunk was viewed as baggage or freight, and that the company was liable for its loss through the negligence or fraud of its agents. Camden and Amboy B. B. Go. v. Baldauf, 16 Penn. St., 67. 1851. 32. — A reasonable amount of bank bills may be carried in a trunk, and their value re- covered as lost baggage. III. Cent. B. B. Go. V. Copeland, 24 111., 333. 1860. BAGGAGE. 35 Liabilities and Duties of Carriers. 33. Principal and Agent. A mercliant's clerli went out on business for his employer and paid his fare on a railway. His trunk containing a suflttcient amount of his em- ployer's money to pay his reasonable expenses was lost by the railway company. Held, that the carrier was not liable for such loss in an action in the name of the principal. Weed ». Saratogaand Schenectady B. B. Oo., 19 Wendell (K. Y.), 534. 1838. 34. Revolver. A revolver is included in personal baggage. Davis v. Mich. Southern and Northern, Ind. B. B. Go., 23 111., 378. 1859. 35. — Two revolvers are not reasonably necessary as a part of a passenger's baggage in Illinois, and a recovery can only be had for one in case of loss of baggage. Chicago, Bock Island and Pacific B. B. Oo. v. Collins, 56 111., 313. 1870. 36. Sample valise. A railroad company is EOt liable, to either owner or agent, on its ordinary contract of transportation of a pas- senger, for losing a valise delivered into its charge as his personal luggage, but which contained only samples of merchandise, and, with its contents, was owned by a trader whose traveling agent he was to sell such goods by sample; nor in tort, for the loss, without proof of gross negligence. Stimson v. Conn. Biver B. B. Co., 98 Mass., 83. 1867. II. Liabilities and duties of car- RIEES. 37. Agent. It is enough to establish a de- livery of baggage to a common carrier, in the first instance, to prove that a person acting as the agent of the company, received and ac- cepted the property for transportation, even if there be in fact another person who is proved to be the actual agent having charge of the receipt of freight. Bogers v. Long Island B. B. Co., 38 Howard's Pr. (N. T.), 389. 1869. Same v. Same, 2 Lansing (IST. Y.), 369. 1869. 38. — "Where a ticket agent is apparently in charge of the depot, the company which sanctions his employment, is not at liberty to repudiate his acts; especially in accepting the delivery of baggage. lb. 39. Burden of proof. Where baggage is lost it is presumed to have been lost by the negligence or fraud of the carrier or his agent. Camden and Amboy B. B. Co., v. Bal- dauf, 16 Penn. St., 67. 1851. Garvey v. Cam- den and Amboy B. B. Co., 4 Abbott's Pr. (N. Y.), 171. 1857. 40. Checks. A check in the possession of a passenger is evidence that his baggage was delivered to the company. And as a trunk is the usual baggage it is evidence that a trunk with its contents was delivered. Dill v. South Carolina B. B. Co., 7 Richardson's Law (So. Car.), 158. 1854. 41. Where a passenger on a railroad, hav- ing lost the check of his baggage, applied for the latter to one of the company's employes at the station, who replied that the check, or proof of the property by affidavit, must be i produced; and the passenger afterward as- signed the baggage to the plaintiff, who, in company with the passenger, demanded it anew of the baggage master at the station, who represented that it was not in the de- fendant's possession; held, that the plaintiff's right of action against the company, for the value of the baggage, was complete. Cass v. New York and New Haven B. B. Co., 1 E. D. Smith (N. Y.), 523. 1852. 42. — The plaintiff's possession of a check, and the testimony of the baggage master that when required by passengers, he put checks on their baggage and gave duplicates to the passengers, is sufficient evidence that plaintiff was 9, passenger on the cars, and that he had baggage checked. Davis v. Cayauga and Sits- queltanna B. B. Co., 10 Howard's Pr. (N. Y.), 330. 1854. 43. — Proof that a passenger, riding on a through ticket from JSew York to Junction City, Kan., by way of the Hannibal and St. Joseph Railroad, delivered at Kansas City to the baggage master of the Kansas Pacific Railway certain checks of the H. and St. J. R. R. Co., for baggage, with the understand- ing and agreement that the Kansas Pacific Co. should forward said baggage to Junction City, is competent evidence to go to the jury as tending to show that the Kansas Pacific Co. received the baggage. Kansas Pacific B: B. Co. V. Montelle, 10 Kan., 119. 1872. ' 44. — The plaintiff took bis trunk to a rail- road station at 11 o'clock A. M., and request- ed that it might be checked for the next train 36 BAGGAGE. Liabilities and Duties of Carriers. to B., ■wliich was to leave at 3 P. M., "but being informed by the agent of the company that they did not check baggage until fifteen min- utes before the train left, he left the trunk ■with the agent, and at the proper time called for and obtained a check, and went himself toy the same train. When he received the trunk again some money and clothing had been taken from it, but it did not appear whether it was done while the trunk was ly- ing at the station or after it left. Held, I. That the railroad company was to be re- garded as receiving the trunk when first de- livered for transportation and not for storage, and that its liability commenced as soon as it was delivered to and received by its agent. II. That the delivery of a check was of no importance, as constituting the contract of the company, it being merely in the nature of a receipt, and intended as evidence of the ownership and identity of the baggage. Jlickox V. Naugatuck B. S. Co., 31 Conn., 381. 1863. 45. — The delivery of a baggage check by a railroad company, is prima facie evidence that the company has the baggage. Davis v. Michigan Southern and Northern Indiana R. B. Co., 33 111., 378. 1859. 46. — If on a change of passage from one railroad to another, the agent of the road does not find the baggage which is checked, he should give immediate notice to the owner, or the company owning the road on which the passenger embarks, will be held liable. lb. 47. — An aoiioa of tort before a police court or Justice of the peace, is the proper form of suing for the penalty of $10, provid- ed by St. 1854, ch. 33, for the refusal of a rail- road corporation to check the baggage of a passenger delivered to it for transportation. Commonwealth ■». Connecticut Biver B. B. Co., 15 Gray (Mass.), 447. 1860. 48. — A railway company which in fact receives the baggage of a passenger upon a train on which it is not bound to take it, to be transported over a portion of the road for which he has purchased a ticket, is subject, upon refusing to check the baggage, to the penalty provided in St. 1854, ch. 33. lb. 49. Commencement of liability. Where a passenger bought a through ticket, entitling him to a passage over several lines, and car- ried his baggage (a valise) with him in the cars over one of the lines, and delivered it to the next line to be carried in the baggage car, and it was lost; held, that the first railway company was not responsible for the loss, the baggage never having come into its posses- sion. Btraiton t. New York and New Haven B. B. Co., 3 E. D. Smith (N. T.), 184. 1853. 50. Compensation for carriage. The fare paid by a passenger over a railroad is the compensation for the carriage of so much of his baggage as is necessary for use on the journey. But baggage subsequently forward- ed by his direction, in the absence of any special agreement with or negligence im the part of the carrier, is liable like any other ar- ticle of merchandise to the payment of the usual freight. Wilson v. Grand Trunk B. B. Co., 56 Me., 60. 1868. 51. — The delivery of a trunk into the pos- session of a railroad station baggage master, at his station, for transportation, and his re- ception of the same for that purpose, impose upon the corporation the obligations of a common carrier. Wilson v. Orand Trunk B. B. Co., 57 Me., 138, 1869. 52. Connecting lines. Where a passenger ticket entitles the holder to travel over differ- ent lines of rpad to his place of destination, and to which his baggage is checked, all of them recognizing the validity of the ticket when presented by the passenger, each com- pany to whose possession the baggage may come will be liable to the owner for its loss while in the possession of such company. Chicago and Bock Island B. B. Co. v. Fahey, 53 111., 81. 1869. 53. — Where a railroad company in Wis- consin sells a through passenger ticket by a specified route to some point beyond its line, it seems that the first company undertakes to transport the passenger and his baggage safe- ly to the place of destination. It is liable for any loss or injury to his baggage occurring on any of the connecting lines over which his contract entitles him to be transported. Can- dee B. Pennsylvania B. B. Co., 31 Wis., 583. 1867. 54. — The rechecking of the baggage at a point on the route does not affect the contract so as to create a new liability, but is simply an act done in pursuance of the original un- dertaking, lb. 55. — In the absence of any averment of BAGGAGE. 37 Liabilities and Duties of Carriers. negligence upon the part of a connecting road it will not be held liable. lb. 56. — Where three separate railroad com- panies owning distinct portions of a continu- ous railroad between two termini, run their cars over the whole road, employing the same agents to sell passage tickets, and receive lug- gage to be carried over the entire road, an ac- tion may bo maintained against one of them for the loss of luggage received at one termi- nus to be carried over the whole road. Hart V. BemseUaer and Saratoga B. B. Co., 8 N. Y., 37. 1853. Gary v. Cleveland and Toledo S. B. Co., 29 Barbour (N. Y.), 35. 1859. 57. — A railway company by delivery of baggage at its terminus, to the baggage master of an independent steamboat company, who, by agreement between the raih'oad and steam- boat company, always entered the defendant's cars before their arrival at the depot and ex- changed the checks of the passengers for the checks of the steamboat company, cannot ex- onerate itself from liability for a loss caused by larceny of the servants of defendant after the baggage was delivered to the baggage master of the boat, unless the evidence shows that such baggage master was the authorized ogent of the plaintiff to receive the baggage. Mobile and 0. B. B. Co. v. Hopkins, 41 Ala., N. a, 486. 1868. 58. — By the appointment of a common agent to receive the entire consideration and issue through tickets and checks, which they recognize and assume, the several companies are made aware that the contract is treated by the passengers as entire, and not several. Check 11. Little Miami B. B. Co., 3 Disney (Ohio), 237. 1858. 59. — A railroad company selling through tickets over its own and other roads, is liable for the safety of baggage to the point of des- tination. III. Cent. B. B. Go. v. Gopeland, 34 111., 382. 1860. 60. — If the agent at the starting point fails to disclose his principals, and the con- tracts on their behalf, whether jointly or sev- erally, he, or the company represented by him, may be treated as sole principal : but if the contract be, in fact, entire, and he is, in fact, dealing for others, who receive the benefit of the contract, the other contracting party may look to the real principals, and subject all who are interested in the joint contract. Clieak V. Little Miami B. B. Co., 2 Disney (Ohio), 237. 1858. 61. — Where a passenger purchased, in Chicago, a " through ticket" for New York, consisting of four coupons, to be separated and delivered upon demand, three thereof at points between Chicago and Albany, and the fourth after leaving the latter place ; held, that the railroad company owning the last route of the journey, from Albany to New York, was liable for the loss of a trunk, the pas- senger having received its check upon surren- dering such trunk and a carpet bag at Buffalo, and said company having delivered a jjart of said baggage at New York. MeCormick v. Hudson Biver B. B. Co., 4 E. D. Smith (N. Y.), 181. 1855. 62. — Where railway passenger trains ar- rive late at night and stop for a few hours, and it is the usual course of the company upon whose train the baggage arrives, upon being informed that it is going on in the morning by the next train over a connecting road, to put it in the baggage room of the company, and keep it for delivery in the morning to the servants of another road, when called for by the owner and requested to do so, its liability during the night is that of a carrier and not a warehouseman. Oumit V. HenshoM, 35 Vt., 604. 1863. 6-3. — The usual course of business of a railway company in this respect is of great importance in determining the nature of its liability. lb. 64. — A railroad company is not liable for a passenger's baggage lost by a connecting steamboat line, unless the company has some interest in or control over the carriage of pas- sengers by such boat line. 0-reen v. N. T. Gent. B. B. Go., 12 Abbott's Pr., N. 8. (N. Y.), 473. 1872. 65. — Proof that the railroad com^jany checked the baggage to the terminus of the boat line, although there be evidence that it did so for its own convenience, without proof that the passenger paid it his fare for passage by the boat, is not sufficient. lb. 66. — A raih'oad company is not liable for a passenger's baggage lost by a connecting steamboat line, even though the company has given a check for the baggage to the terminus of the steamboat line, unless the company has some interest in or control over the carriage 38 BAGGAGE. Liabilities and Duties of Carriers. of passengers by suCh boat line. Oreen v. New Torh Central B. R. Co., 4 Daly (N. Y.), 553. 1873. 67. — Defendant, a railroad company, or- ganized under the laws of Connecticut for the purpose of constructing a railroad from New Haven, by the way of Bridgeport, west- erly to the line dividing the state of New York from Connecticut, was afterwards by a law of this state, authorized to extend its rail- road into this state. Beli, that it came within the provisions of the law of New York in respect to domestic corporations, and that it could not, in this state, make a contract for the carriage of passengers or their baggage beyond the limits of its own road. Milnor d. Neu) York and New Haven B. B. Co., 4 Daly (N.Y.), 355. 1873. 68. — The Chesapeake and Ohio E. K C». is the Virginia Central K. R. Co. under another name ; and is liable upon any contract, or fur the negligence of the Virginia Central R. R. Co. Wilson V. Chesapeake and Ohio B. B. Co., 21 Grattan (Va.), 654. 1873. 69. — Where a contract was made in the city of New York between R. and H., and a person professing to act as the agent of three lines of public conveyances, (including the N. Y. Cent. R. R. Co.), running in connection with each other, to transport R. and her bag- gage from N. Y.to C, in Canada, and she re- ceived of him three tickets, one of which was for a passage on defendant's road, which ticket was accepted upon that road by the conductors; held, that this was sufficient proof of an undertaking of defendant to transport R. and her goods on its road, until the contrary appeared. Olaseo v. N. T. Cen- tral B. B. Co., 36 Barbour (N. Y.), 557. 1863. 70. — Under the contract between the Va. Central R. R. Co. and Trotter & Bro., stage proprietors, for the carriage, by the latter, of passengers, from the terminus of the railroad to the White Sulphur Springs, Trotter & Bro. are the agents of the railroad company, and the company is liable for the loss of baggage of a passenger by Trotter & Bro. Wilson v. Chesapeake and Ohio R. B. Co., 81 Grattan (Va.), 654. 1873. 71. — Though the through ticket given to a passenger at Richmond, specifies on its face that each party to the contract is only liable for losses on their part of the line, the rail- road company is liable for the loss on the stage line. lb. 72. — AVhere one of several connecting lines is shown to have had possession of the lost baggage, it Is incumbent on the company operating that line to show that the property was delivered to the next carrier. Philadel- phia, Wilmington, etc., B. B. Co. v. Harper, 29 Md., 330. 1868. 73. — A railway company which receives passengers and commences their carriage at the station of another road, is bound to have a servant there to take charge of baggage un- til It is placed in its cars; and if it is the custom of the baggage-master of the station, in the absence of such seiTant, to receive and take charge of baggage, in his stead, the pro- prietors will be responsible for baggage so delivered to him. Jordan v. Fall Biver B. B. Co., 5 Gushing (Mass.), 69. 1849. 74. — If various railway companies whose lines fconnect together from Massachusetts into the British Provinces have arranged to- gether for an excursion train over their sev- eral roads, and the company at this end of Ihe route issues tickets with coupons attached for the whole distance, and its agent refuses to give n. check for the luggage of a purchaser of such ticket, saying that the same " would be perfectly safe, as he was to go through with them," and the luggage is accordingly put into one of the company's baggage cai-s, which is sent through the whole distance in charge of its agent, the company is liable if the luggage is lost anywhere upon the route. Najac V. Boston and Lowell B. B. Co., 7 Allen (Mass.), 329. 1863. 75. — The mere failure of a railroad com- pany to deliver at B., on its road, luggage of a passenger who delivered it to a connecting railroad at N., is not evidence of negligence on the part of the latter, which sold to the passenger at N. the tickets to transport him over both roads to B., and checked his lug- gage accordingly. Stimson v. Conn. Biver B. B. Co., 98 Mass., 83. 1867. 76. — The plaintiff purchased a ticket of the defendant to New York, and had his bag- gage checked for that city. He arrived there by the Hudson River railroad, a connecting line of road, at nine o'clock in the morning, and about noon of that day gave his check to an expressman in the city of Brooklyn, with BAGGAGE. 39 Liabilities and Duties of Carriers. instructions to get tlie trunk from tlie depot of tlie Hudson River railroad for him. The expressman neglecting to do so, when, two days afterward, the plaintiff demanded the trunk at the depot, it could not be found. , The defendant had, in pursuance of an ar- rangement with the Hudson River R. R. Co., transferred the baggage of the latter at Alba- ny, and it had been conveyed by it to New York. In an action brought by the plaintiff to recover the value of his trunk, and con- tents, it was lield, that he was entitled to re- cover, in the absence of any proof on the part of defendant accounting for the failure to deliver it. Bumell v. iV. T. Central B. B. , Co., 45 N. Y., 184. 1871. 77. — A railroad company which sells pas- senger tickets for its own road, with the ordi- nary coupons attached for connecting roads, to a point beyond its own terminus, in the ab- sence of proof of agency, as partner or other- wise, for such roads, contracts for through transportation to that point. But the inter- mediate carriers are only responsible for the transportation over their respective lines, Keesler v. If. T. Central B. B. Co., 7 Lansing (N. Y.). 62. 1372. 78 — "Where a party contracts for transpor- tation over a route composed of several rail- roads, for which he pays an entire sum, and receives a through ticket or receipt, the con- tract is entire, and not of several distinct lia- bilities. If no partnership in fact exists be- tween the roads, he may treat the contract as entire, or several, so far as the other parties are concerned. Clijsck v. Little Miami B. B. Co., 2 Disney, (Ohio), 237. 1858. 79. Contracts limiting the liability of the carrier. A carrier cannot limit his liability from the consequences of the negligence, will- ful default, or tort of himself and agents. Mobile and Ohio B. B. Co. ». Hopkins, 41 Ala., N. 8., 486, 1868. 80. — The liability of a railroad company for the safe carriage of a passenger's baggage is not limited by a notice, printed upon the face of the ticket issued by it, stating the terms upon which baggage will be carried. Bawion i>. Pennsylvania B. B. Co., 48 N. Y., 212. 1872. 81. — If, however, the passenger's atten- tion is called to it when purchasing his tick- et, or if he knew of it when he purchased, the law will presume, in the absence of any ob- jection on his part, that he assented to the terms. A discovery by the passenger of the notice after he has entered upon his journey does not affect his rights. Jb. 82. — There is no presumption of law that a railway passenger has read a notice limiting theliabilityof the company for baggage, print- ed upon the back of a check delivered to him, having on its face the words "look on the back," and also printed on a placard posted in the cars and containing other notices which he has read. Malone v. Boston and Worcester B. B. Co., 12 Gray (Mass.), 388. 1859. 83. — A notice of " all baggage at the risk of the owners " is no protection to common carriers. Camden and Amboy B. B. Co. v. Belknap, 31 Wendell (N. Y.), 354. 1839. 84. — A notice that a railroad company would not be liable for the baggage of pass- engers beyond a certain amount, printed on the back of the passage ticket, and detached from what ordinarily contains all that is ma- terial for the passenger to know, does not raise a legal presumption that the party at the time of receiving the ticket and before the train had left the station, had knowledge of such limitations. Brown v. Eastern, B. B. Co., 11 Gushing (Mass.), 97. 1853. 85. — Public notice of a railway company that all baggage is at the risk of the owner, not brought home to the owner, will not ex- onerate the company from liability as a carri- er. Logan v. Pontchartrain B. B. Co., 11 Robinson (La.), 34. 1845. 86. — A. purchased a ticket issued by the Indianapolis and Cincinnati R. R. Co., secur- ing a right of passage from I. to S. His baggage was taken charge of by the company for delivery at S., and a check given him for it, on one side of which was stamped these words : " In consideration of free carriage, its value is agreed to be limited to one hundred dollars," and on the other, " I. & C. R. R., 583, Indianapolis and Shelbyville." A. could have read the words and figures on the check. The value of tlie baggage exceeded one hund red dollars. It was lost by the company. Held, that the limitation expressed in the words stamped on the check could not, in any case, apply to a loss resulting from the com- pany's want of care. Held, also, that if such 40 BAGGAGE. Liabilities and Duties of Carriers. a limitation of the liability imposed by law could be secured by the carrier, it could only be by an express contract. Indianapolis and Cincinnati JR. JR. Co. v. Cox, 29 Ind., 360. 1868. 87. — A company using steamboats and railroads for the transportation of passengers and their baggage, is liable as a common car- rier for damages happening to the baggage of passengers from a defect in the vehicles or riiachinery used, although the company is not chargeable with actual negligence or want of skill or want of care in securing the safety of the baggage: nothing will excuse the com- pany but inevitable accident arising from su- perhuman causes, or the acts of the enemies of the country. Camden and Aniboy R. B. Co. v. Burke, VS Wendell, (K. Y.), 611. 1835. 88. — Notice in the usual form, " All bag- gage at the risk of the owners," though brought home to the knowledge of the pas- sengers, will not in such case excuse the com- pany. Common carriers cannot, by such no- tice excuse themselves from the implied agree- ment that the vessel, coach, or other vehicle used for the transportation of goods or bag- gage, is sufficient for the business in which it is employed. lb. 89. Damages. In an action for damages resulting from the loss of baggage, the value of the trunk and contents is the true measure of damages. It is improper to consider ex- penses incurred in the purchase of other arti- cles to supply the immediate wants of the party. New Orleans, Jackson and Great North- ern B. a. Co. v. Moore, 40 Miss., 39. 1866. 90. Delivery. The liability of a railway company as a carrier ceases upon the expira- tion of such reasonable time after the arrival of the baggage at its place of destination as wilj enable the traveler to receive and take charge of the same. Mote v. Chicago and N. W. JR. R. Co., 37 la., 22. 1809. 91. — In determining what would be a reasonable time the customs of the company, the manner of transporting baggage from the station and all the circumstances surrounding the case should be considered. Ih. 92. Detention. Chapter 165, of the acts of 1870, does not authorize a recovery against a railroad company by a traveler for delay caused by the mere detention of baggage, but only such delay as results from damage to the baggage and institution of suit to recover the same. Anderson v. Toledo, Wabash and West- ern R. R. Co., 33 la., 8fi. 1871. 93. Evidence. The rule of evidence which allows the plaintiflF in an action against a common carrier to recover for a lost trunk, etc., to prove the value of the contents by his own oath, is confined to ca.ses of fraud or wrong; and has no application to cases of loss through negligence merely. Oarvey v. Camden am.d Amboy R. R. Co., 4 Abbott's Pr. (N. Y.), 171. 1857. Same u. Same, 1 Hilton (N. Y.), 280. 1857. 94. — The provisions of the general rail- road act of 1850 — allowing plaintiff in an action to recover baggage lost to testify in his own favor — only applies in actions against companies formed under that act. lb. 95. — The provision of St. 1851, ch. 147, § 5, that in any action " brought by a passenger against any railroad cdrporation, steamboat proprietor or other common carrier," the plaintiff, after proof of the bailment of his trunk to the defendant, and of its loss " by the fault of such carrier, or of the agents of such carrier," shall be allowed to put in evi- dence a descriptive list of its contents, sworn to by himself, applies to the case of the loss of a trunk left by the passenger with the bag- gage master of a railroad company, after ar- riving at his place of destination. Harlow v. Fiteliburg R. R. Co., 8 Gray (Mass.), 237. 1857. 96. — In an action against a railroad com- pany to recover the value of a lost trunk, the ex parte afiSdavit of the plaintiff is not com- petent evidence to prove the contents of the trunk, but the plaintiff himself is a compe- tent witness for that purpose. Indiana Cen- tral R. R. Co. V. Chtlick, 19 Ind., 83. 1863. Douglass v. Montgomery and West Point R. R. Co., 37 Ala., N. S., 638. 1861. Nolan v. Ohio and Miss. R. R. Co., 39 Mo., 114. 1866. 97. — The owner of a trunk is a competent witness in a suit brought by him against a common carrier, for its loss, to prove the con- tents of the trunk, and their value, and for the same reason the evidence of the wife of the owner is admissible to prove the same facts. Mad River and Lake Erie R. R. Co. v. JPktlion, 20 O., 318. 1851. Davis v. Michigan South- ern and Northern Indiana R. R. Co., 23 111 , 278. 1859. BAGGAGE. 41 Liabilities and Duties of Carriers. 98. — A wife can be a witness in all cases, where her husband may. Illinois Central B. B. Co. V. Taylor, 24 III., 323. 1860. 99. — A party may prove by himself or wife the contents of lost baggage, but not its value. lb. 1 00. — In an action against a railroad com- pany to recover damages for the loss of a trunk by its negligence, the plaintiff is not a competent witness, although he. has no other evidence. Snow v. Eastern B. B. Co, 12 Met- calf (Mass.), 44. 1846. Pudor v. Boston and Maine B. B, Co., 26 Maine, 458. 1847. Smith V. North Carolina B. B. Co., Winston's Law (N. C), 203. 1864. Dill ». South Carolina B. B. Co., 7 Richardson's Law (So. Car.), 158. 1854. 101. — The declarations of a clerk of a rail- way company about the loss of a trunk, made some time after the loss had occurred, were held inadmissible as evidence, although the clerk had since died. Baltimore and Ohio B. B. Co. V. Christie, 5 W. Va., 325. 1872. 102. — An agent having charge of a depot, and the freight therein, is the proper person to inquire of, respecting lost baggage; and his answer is part of the evidence of the loss, and admissible, as res gestm. Curtis v. Avon, Qeneseo and Mt. Morris B. B. Co., 49 Barbour (N. Y.), 148. 1867. 103. — So, in regard to an arrangement be- tween a passenger and the baggage master, at a station, that the baggage of the former may remain at the depot, and that the latter will see to it until it can be sent for. lb. 104. — An admission by the superintendent of a I'ailroad company, on the presentation of a claim for lost baggage, that the claim is a good one, is not competent evidence against the company in an action to recover for the loss. Gheen «. N. T. Central B. B. Co., 4 Daly (N. Y.), 553. 1872. 105. — In an action against a railroad com- pany by a passenger for the loss of his trunk, the admissions of the conductor, baggage master or station master, as to the. manner of the loss, made in answer to ihquiries in be- half of the passenger the next morning after the loss, are admissible in evidence against the corporation. Morse ». Connecticut Biver B. B. Co., 6 Gray (Mass.), 450. 1856. 106. — In an action to recover the value of a trunk and contents alleged to have belonged to the plaintiff, the evidence tended to show that the trunk belonged to a third person, who took it away from the depot without the knowledge of the agent of the company, and then procured the plaintiff to bring suit for its recovery. Held, that a letter written by such third person to a stranger to the transaction, going to show the conspiracy, was admissible in evidence against the plaintiff. Chicago, Bock Island and Pacific B. B. Co. v. Collins, 56 111., 312. 1870. .107. Extra baggage. The obligation of the carrier is the same, whether the baggage is within the quantity allowed to a passenger, to be carried without any charge, other than the ordinary fare of the passenger; or whether it is an extra quantity, for which an additional charge is madei Qlasco v. If. T. Central B. B. Co., 36 Barbour (N. Y.), 557. 1863. 108. Fire. Where a passenger arrived at his destination at half past eight P. M., and left his baggage in the custody of the agent of the company, and during the same night the depot and contents, including the baggage, were destroyed by Are, it was held that the company was only liable as a warehouseman. Louisville, Cincinnati and Lexington B. B. Co. V. Mohan, 8 Bush. (Ky.), 184. 1871. 109. — Railroad companies are liable as common carriers for the baggage of passen- gers until the baggage is ready to be delivered to the owner at his place of destination, and until he has had a reasonable opportunity of receiving and removing it. lb. 110. — Plaintiff went with his baggage to defendant's depot in Philadelphia to take pas- sage to Chicago; upon presenting his bag-, gage, the baggage-master, in accordance witli a rule of the defendant, declined to check un- til plaintiff had procured his passage tickets ; he left his baggage to procure tickets; in his absence the baggage master caused it to be placed in the baggage car, and on plaintiff's return with tickets, the baggage master re- fused to give him the checks without his pay- ing extra compensation on account of extra weight. Plaintiff refused to pay the extra charge, and demanded his baggage ; this the baggage master refused to deliver, for the reason that it was covered by other baggage, and to obtain it would delay the train beyond the time fixed for starting. Plaintiff declined to take passage without his checks; his bag. gage was taken through to Chicago, and on 42 BAGGAGE. Liabilities and Duties of Carriers. the niglxt after its arrival was destroyed by Are. Tke action was for the conversion of the baggage. Held, that defendant did not occupy the position of common carrier of the plaintiff. Also, that the defendant was liable for the acts of the baggage master, though that act should be hold wrongful. McGormich v. Pennsylvania Central B. R. Co., 49 N. Y., 303. 1873. 111. Free pass. A passenger, who, having a free pass over a railroad for himself, buys a ticket for his wife, and delivers her trunk to the company without giving information that it is not his, may maintain an action for a loss of the trunk during the carriage. Malone D. Boston and Worcester B. B. Co., 13 Gray (Mass.), 388. 1859. 112. Liability of carriers generally. In respect to baggage of passengers, railway com- panies are common carriers. Dill ■». South Carolina B. B. Co, 7 Richardson's Law (So. Car.), 158. 1854. 113. — An express man, employed by plaint- iff, left a trunk, containing clothing, etc., part belonging to plaintiff and part to his wile, at the depot of defendant, at the time calling the attention of defendant's agent to tlie trunk, riie agent said " all right; " gave some men directions to take care of the trunk, and the expressman left the depot. Seld, thot the de- fendant was liable for the loss of the trunk. Bogers ii. Long Island B. B. Co., 1 N. Y. Sup. Ct.. 396. 1873. 114. — Voluntary assistance by railway em- ployes in looking for the baggage, or an offer by way of gratuity, to pay on account of it, will not render the company liable. Michi- gan Southern, etc., B. B. Co. v. Meyrea, 21 111., 037. 1859. 1 1 B. — Evidence to sliow that the passenger was lame, and unable to take charge of his baggage, personally, is admissible,' as tend- ing to prove that he was not guilty of negli- gence in not taking charge of his baggage, on the arrival at his place of destination ; and as furnishing a good reason for making an arrangement with the agents of the railroad company that it should remain in the custody of the company until called for. Curtis v. Awn, Geneseo and Mt. Morris B. B. Co., 49 Barbour (N. Y.), 148. 1867. 116. — Where a passenger, on arriving at his destination neglects to look after his bag- gage, and leaves it, without any arrangement that the carrier shall retain it for him, and it is lost, without fault on the part of the carrier, the latter is not liable. lb. 117. — But where there is no delivery of baggage carried upon a railroad, to the pas- senger, and no neglect to claim it, or inquire for it, but on the contrary the company's agents agree to retain it until it can be sent for, the company's liability as a common car- rier continues after the baggage is taken from the cars, and until it is delivered or tendered to the owner. lb. 118. Married women. Under the provisions of the act, statutes concerning the rights and liabilities of husband and wife, the parapher- nalia of a wife, given her by her husband, which prior to those statutes was her separate estate in equity, became clothed with all the inci- dents of a legal estate; and, for an injury to or conversion thereo'', she is the proper per- son to bring suit. Bawson v. Pennsylvania B. B. Co., 48 N. Y., 313. 1873. 119. Pleadings. The declaration need not- aver that the plaintiff was a passenger, this fact can be proved without such averment, and by the baggage check alone, if it appears that such checks are not given until the pas- senger tickets are shown. Illinois Central B. B. Co. V. Copeland, 34 111., 333. 1860. 120. — In an action in a justice's court for the loss of a trunk, the plaintiff may prove how the trunk came into the hands of the defendant, and the manner of the loss under a general claim. Byers v. Lessees of Des Moines Valley B. B. Co., 31 la, 54. 1866. 121. Public enemy. A railway company is not responsible for a loss of baggage caused by the act of the public enemy. Philadelphia, Wilmington, etc , B. B. Co. v Ea/rper, 39 Md., 330. 1868. 122. Termination of liability. Where the usage of the company was to run a car to the end of a pier forming one of the termini of the road, and to take from steamers all the baggage and effects of the passengers, and to return to the ticket office, a short distance from the pier, where passengers were at lib- erty to take off their baggage without charge, the car proceeding with the remaining bag- gage, and there was no person employed by the company to look after the baggage, but each passenger was expected to look after BAGGAGE. 43 Liabilities and Duties of Cai'i'lers. his own, and the plaintiff's baggage was put upon the car at the end of the pier and he did not accompany it, but took his passage on the succeeding train, and the baggage was lost : held, that the company was liable. Logan V. Pontehartrain B. M. Go., 11 Robinson (La.), 24. 1845. 123. — Where a railroad company is em- ployed by a person to transport his baggage for hire from A. to B;, stations on said com- pany's road, and does not deliver the goods to him at B., but carries them to C, another station on said road, and there stores them in the company's depot baggage-room, the lia- bility of the company as a common carrier is not thereby ended ; and if the goods are stolen from the company at C. and thereby lost to said owner, the company will be liable to him for the damage sustained by him by reason of the failure to deliver the goods at B. Toledo, Wabash and Western B. B. Go., v. Hammond, 33Ind., 379. 1870. 1 24. — Common carriers of passengers and their baggage are liable for the latter until its safe delivery to the owner. They are bound not only to safely carry the same to its place of destination, but there to deliver it, in a reasonable time and in a reasonable manner. Gary V. Gleveland and Toledo B. B. Go., 29 Bar- bour (N. Y.), 35. 1859. 1 25. — A carrier will not be relieved from its liability as such until he has either de- livered the baggage or stored it in a secure warehouse. Ba/rtholomew v. St. Louis, Jackson- ville and Ghicago B. B. Co., 53 111., 237. 1870. 126.— The wife of plaintiff was a passenger upon defendant's road from N. to M. ; im- mediately upon the arrival of the train the baggagemaster placed her trunk in the depot and went away. She waited fifteen minutes to get the trunk, but could find no one to deliver it. About three hours after, plaintiff's son went to the depot for it, but the baggage- master was still absent. The son went in pursuit of him, and returned with him, de- livered his check and the trunk was drawn out to the door, but meanwhile the convey- ance employed to remove the trunk had gone, and no other could be obtained, and it was thereupon left in charge of the baggage- master for the night. During the night It was broken open and the contents stolen: held, that defendant's liability as a common carrier had not terminated. Dininny v. New Yorh and Nm Haven B, B. Go., 49 N. Y., 546. 1873. 127. — Common carriers, who carry pas- sengers and their baggage as well as merchan- dise, are answerable under their common law liability for the baggage of passengers left at their offices in charge of their agents, with the intention of proceeding with the same in the next train of cars, steamboats or otlier con- veyances departing from the place where the baggage is deposited. Gamden and Amhoy B. B. Go. V. Belknap, 21 Wendell (N. Y.), 354. 1839. 128. — Where a railway passenger on arriv- ing at his place of destination, takes his. bag- gage into his own exclusive control, but afterwards, for his own convenience, hands it to the baggage master at the depot to be kept until sent for, the company is not liable for the baggage as a common carrier, but is liable only for gross negligence as a gratui- tous bailee. Minor v. Ghicago and North- western B. B. Go., 19 Wis., 40. 1865. 129. Theft. Where a passenger upon the defendant's railroad, having his valise checked from B. to U., on the arrival of the cars at the latter place left the valise in the open depot, after seeing it placed where baggage was usually kept during the day, in the charge of an employe of the company, without giving any directions respecting it, and did not present his check, or call for his valise, until nearly twenty-four hours afterwards: held, that he was guilty of negligence ; and that the defendant was not liable for the loss of the valise, during the interval, by theft. Hold- ridge V. Utica and Black Biver B. B. Go., 56 Barbour (N. Y.), 191. 1868. 1 30. — Where a passenger's baggage is not, from any cause, delivered to the passenger, at its destination, it is the duty of the com- pany to deposit such baggage in its baggage room, in which event its responsibility be- comes that of a warehouseman, and it must respond in damages for any neglect in that capacity. Ghicago, Bock Island and Pacific B. B. Go. v. Fairclough, 52 111., 106. 1869. 131. — The plaintiff purchased a ticket of defendant's agent to go from O. to F. His trunk was locked up in the baggage room of another company, whose check he held ; he gave his check to the defendant's station agent, who told plaintiff he would forward his 44 BAILMENT— BALTIMORE AND OHIO RAILROAD COMPANY. Apportionment — Trover — Terminus. trunli by next train. Tlie trunk was subse- quently forwarded to F., and tliere placed in the common passenger room, where it was broken open by burglars and rifled of its con- tents. Reld, that defendant was liable as a warehouseman. That it was immaterial whether the agent had authority to make such agreement or not. That the defendant hav- ing undertaken to carry out the agreement of the agent, was liable the same as if the trunk had been forwarded in the same train with the passenger. Warner ». Burlington and Missouri Siver B. B. Co., 23 la., 166. 1867. 132. Ticket. Wiere the ticket sold by a railway company to a point upon a connect- ing line contained a printed stipulation, that in selling, the company acted as the agent only for roads beyond the terminus of its own road, and assumed no responsibility therefor, the company is not liable to a passenger for the loss of baggage not occurring upon the line of its own road. Penngylvania Central B. B. Co. V. Schwarzenberger, 45 Penn. St., 208. 1863. 133. — The purchase of a ticket includes the payment for the transportation of the person's baggage, not exceeding a specified weight, Cincinnati and Chicago B. B. Co. v. Marcus, 38 111., 219. 1865. 134. Tools. A set of hm-nese maker's tools, valued at $10, in the plaintiffs trunk with his clothing, held to be included, and recoverable under the term baggage; it appearing in proof that the plaintiff was a harness maker by trade ; and that it was customary, when such persons leave one place to go to another, to pack their tools in their trunk, and take them with them. Davis v. Cayuga and Busque- Imutm B. B. Co., 10 Howard's Pr. (N. Y.), 330. 1854 135. — Where baggage is unclaimed within a reasonable time after its arrival it is the duty of the company to store it in a suitable place until called for ; and when thus stored the liability of a warehouseman attaches and that of a carrier ceases. Mote v. Chicago and Northwestern B. B. Co., 37 la , 32. 1869. 1 36. — Where such baggage was stored in a building insecurely fastened and without a watchman, and the baggage was stolen, the company was held liable for negligence as a warehouseman. lb. BAILMENT. 1. Apportionment; hire. If a slave, hired for a term, die during the term, the hire must be apportioned, even though his death is caused by the negligence of the hirer. Mul draw V. Wilmington and Manchester B. B. Co., n Richardson's Law (So. Car.), 89. 1860. 2. Loss of goods. A bailee of goods, upou w^hich labor is to be performed for a sum of money, and they are not converted into some- thing essentially different in their character, has only a special property in them, which is terminated by the performance of the labor and delivery to the owner. And when the goods have been delivered to a common car- rier for the general owner, the bailee has no right of action against the carrier for their loss. Morse v. Androscoggin B. B. Co., 30 Me., 285. 1855. 3. Negligence. A bailee without reward is only answerable for gross negligence. Knowles v. Atlantic and 8t. Lawrence B. B. Co., 38 Me., 55. 1854 4. — Thus where hay was left on defend- ants cars after shipment, without compensa- tion, and with notice to the shipper that if was at his risk, it was held, that in the absence of gross negligence the company was not liable. lb. 5. Trover. Where property is held for the time being, under a contract which gives the possessor a right to hold it against the owner, as in case of a hiring for a term unexpired, the right to maintain trespass for an injury to it, or trover for a conversion of it, is in the bailee; and neither of those actions can be maintained by the general owner. His remedy is a special action on the case, for the conse- quential injury to his reversionary interest. Lexington and Ohio B. B. Co. b. Kidd, 7 Dana (Ky.), 245. 1838. BALTIMORE AND OHIO R. R. CO, 1. Terminus. The act of March 6, 1847, sess. acts, ch. 99, p. 86, in securing to the city of Wheeling the benefits of the western ter- minus of the Baltimore and Ohio railroad, does not forbid said company to connect with BANKING— BILLS AND NOTES. 45 Illegal Banking — Act of Bankruptcy — Erie Railway — Alteration. the Oliio river or a railroad in the state of Ohio, at any point between the mouth of Grave Creek and Wheeling. Baltimore and Ohio B. B. Co. V. Wheeling, 13 Grattan (Va.), 40. 1S55. BANKING. See Quo Wakhanto. 1. Illegal banking. Under the act to pre- vent illegal banking a violation thereof may be pleaded in bar of any suit brought by a corporation, and it is not necessary that the franchise should have been forfeited upon di- rect proceedings for that purpose. I^orth Missouri B. B. Co. o. Winkler, 33 Mo., 354. 1863. 2. — Under the illegal banking act of 1855, a stockholder sued for his subscription is not estopped to plead the violation of the act by Uie corporation in bar of the suit. (R. C. 1855, ch. 16, §§ 4 and 9). lb. BANKRUPTCY. 1. Act of bankruptcy. It is not an act of bankruptcy, under § 39 of the bankrupt act, as amended July 14, 1870, for a railway com- pany to suspend and not resume payment of its commercial paper for a period of fourteen days. Winter v. Iowa, Minnesota and North- ern Pacific B. B. Co., 2 Dillon (U. S. 0. C), 487. 1873. 2. Assignees in bankruptcy stand no bet- ter than the bankrupts in respect to assets, ex- cept in cases of attachments or fraud of less than four months standing. Bookford, Bock Island and St. Louis B. B. Co., ex parte, 1 Lowell (U. S. C. C), 345. 1869. 3. Jurisdiction. A railroad company, in- corporated by the laws of a state, cannot be proceeded against, in bankruptcy, in a dis- trict court without the state or states whore its railroad is, or is to be, built, maintained and operated, on the petition of a creditor, charging an act of bankruptcy. Alabama and Cliattanooga B. B. Co., In re, 9 Blatchford (U. S.C. 0,390. 1872. 4. Petition. The sufficiency of a petition in bankruptcy against a railway company — determined. Boston, Hartford and Erie B. B. Co., In re, 9 Blatchford (U. S. C. C), 101.- 1871. See Same, ib., 409. BERGEN TUNNEL. 1. Erie railway. Under the act of March 4 and 11, 1858 (Pamph. Laws 204 and 321), the Delaware, Lackawanna and "Western R. R. Co. has a right of way through the Bergen tunnel, and the consequent right to connect its tracks with those running through the tunnel. Delaware, etc., B. B. v. Erie B. B. Co., 6 C. E. Green's Ch. (N. J.), 298. 1871. 2. — Under the acts of 1858, the Erie R., R. Co.'s' trains of every description have the right of precedence over those of the Dela- ware, Lackawanna and Western R. R. Co. through the Bergen tunnel. But the unlawful use of tliis privilege, with a view to embai-- rass or impede the Delaware, Lackawanna and Western B. R. Co. in the use of the tun- nel, or the road connected with it, will upon a proper case being made, be a ground of in- terference by this court. Such case, however, is not made by the present pleadings. Ib. 3. — That part of the regulations of the Erie company, giving preference to extra or irregular trains, enjoined. 76. BILLS AND NOTES. 1. Alteration. A promissory note in the following words was signed by the defendant : " For value received I promise to pay to Quincy R. R. Co.," (who yras the plaintifl), " or order, $1,030 in six months." The note was then indorsed by E. P., and delivered to the treasurer of the plaintiff, who without the knowledge or consent of the defendant, in- serted the words, " the order of E. P.," above the words, " Quincy R. R. Co., or order," but 46 BILLS AND NOTES. Bill of Exchange — Corporation. without erasing the latter -(vords. It was Tield, that, in the absence of fraud, this was not an alteration affecting the validity of the note. Oranite R. B. Go. e. Bacon, 15 Pickering (Mass.), 339. 1834. 2. Bill of exchange. A bill of exchange signed J. K., President of the E. and S. R. R. Co., is ambiguous and parol evidence may be introduced to show whether the individual or the corporation is the drawer. Kean v. Davis, 1 Zabriskie (N. J.), 683. 1847. 3. — A bill drawn by the president of a railroad company on the treasurer of the company, payable on demand, is, when dis- honored, properly sued on as a bill of ex- change, and presentment for payment, and notice of the dishonor must be proved, or an excuse for failing to do so, shown. Wetump- Tca and Coosa B. B. Co. v. Bingham,, 5 Ala. N. 8., 657. 1843. 4. — A bill of exchange drawn by one upon himself, as by a corporation upon its secre- tary, is in legal effect a promissory note, and may be the foundation of an action. Marion and Mississinewa B. B. Co. v. Hodge, 9 Ind., 163. 1857. 5. — Such draft must, however, be pre- sented for payment. lb. 6. — A resolution adopted by the corpora- tion that it would pay interest on the scrip issued by it, entitles the holder to interest on drafts drawn by the company after the adop- tion of the resolution, without a demand of payment. lb. 7. — If a bill of exchange is drawn, in- dorsed and accepted by some of the trustees of a masonic corporation, for the purpose of raising money to pay a debt incurred by them for its benefit, and is negotiated by a railroad company, without authority under its charter, and the money is expended in paying the debt incurred by the parties, — the railroad company may maintain an action for money had and received against the drawer, although no recovery could be had on the bill of exchange. Waddill v. Alabama and Tennessee Bivers B. B. Co., 35 Ala., N. S., 823. 1859. 8. Collaterals. Where the defendant, for the purpose of raising money for the use of a railroad company, signed a note payable to a bank, and delivered it to agents to procure it to be discounted, but the bank refusing to ad- vance the money, the agents obtained a larger sum of other persons upon the notes of the corporation and directors, and pledged tli(; note of the defendant, together with thi bonds of the company, as collateral security, and appropriated the money to the use of the road ; held, that the notes of the corporation not being paid, a suit could be maintained upon the note of defendant, in the name of the bank, for the benefit of those wlio ad- vanced the money. Bank of Newbury «. Band, 38N. H., 166. 1859. 9. — Where a note was delivered to A., and he gave his receipt therefor, agreeing to ac- count for the same or deliver it to an attorney for collection, and it was received by A. only twelve days before the next approaching term of court, it was held, that A. was cot liable for negligence in not suing in such court. Hall V. Junction B. B. Co., 15 Ind., 363. 1860. 10. Consideration. A certificate of depos- it is a good consideration for a note discount- ed in bank. Mississippi B. B. Co., v. Scott, 7 Howard (Minn.), 79. 1843. 11. — Where a note is given by one at the request of another, to a tliird person, in a suit between the payee and signer, it is not essen- tial that there should be shown a considera- tion between the payee and him at whose re- quest it was made. Peterborough and Shir- ley B. B. Co. V. Chamberlin, 44 N. H., 404. 1863. 1 2. Corporation. The authority of a pres- ident of a railroad company to make con- tracts for necessary labor for the company, is incident to his oflice. And he may furnish evidence of the amount payable under the contract, either before or after the service, and put that evidence, in his discretion, into the form of a due bill or promissory note, unless such power is restricted by special legislation, or by regulations of the company known to the other contracting party. Bichmond, Fred- ericksburg, etc., B. B. Co. v. Snead, 19 Grattan (Va.),354. 1869. 13. — A bill or note executed within the power of a corporation, but by an abuse of that power in the particular instance, would, if governed by the law merchant, be valid in the hands of a bona fide holder; but if exe- cuted entirely without the corporate power, it would not, if, indeed, there could be a bona, fide holder of such paper. Smead v. Indian- BILLS AND NOTES. 47 Evidence — Indorsers. apoUs, Pittsburgh and Cleveland B. B. Go., 11 iQd., 104. 1808. 14. — Under the original cliarter of the In- dianapolis and Bellefontaine Railroad Com- pany, that corporation had no general power to execute promissoiy notes and bills of ex- change, lb. 15. — Under its charter, as amended, it may execute notes or bills to pay the expense of altering the gauge of another railroad, to enable it to transport freight and pas- sengers over such road in its own cars, and its bills accepted oa such a consideration would be valid. lb. 16. — Prima facie a railway company has power to execute a promissory note, and a complaint upon such note need not show that the agent who made it was appointed by a written or sealed commission. Hamilton v. Newcastle and Danville B. B, Co., 9 Ind., 359. 1857. 17. — A note signed, " A. B., Prest. of the Dorchester Avenue R. R. Co.," binds A. B. personallj', altliough given by the authority of the railroad Company, and in consideration of a policy of insurance issued to that com- pany by the payee. Haverhill Mutiuil Insur- ance Company v. Ifewhall, 1 Allen (Mass.), 180. 1861. 18. — An instrument by which a railroad company promises to pay in Boston to W. S., or order, " $1,000, witli interest semi-annual- ly, as per interest warrants hereto attached, as the same shall become due; or upon the sur- render of this note, together with the interest warrants not due, to the treasurer at a time until six months after its maturity," to issue stock in exchange therefor, is a negotiable promissory note. Hodges v. S7mler, 23 N. Y., 114. 1860. Sam V. Same, 24 Barbour (N. Y.), 68. 1857. 19. — An order drawn by the president of a railroad company upon its treasurer, direct- ing the latter to pay to A. B., or order, a speci- fied sum, stated as being the amount due A. B. for work done by him as contractor, in building a section of the corporation's rail- road, is in effect a promissory note, and may be declared on as, such. Fairchild v. Ogdens- htrg, Clayton atid Borne B. B. Co., 15 N. Y., 887. 1857. 20. — Where a corporation is authorized to take a note for any purpose, the presumption with regard to any note executed to it is, that it was executed for a legitimate purpose. Howard v. Boorman, 17 Wis., 459. 1863. 21. — The complaint in an action upon such note, therefore, need not state facts show- ing that it was given for a purpose authorized by the charter. lb. 22. — Where a note was made payable to a railway company, and it appeared that such company was formed by tlie union of two other companies, and that such union was subsequently declared illegal and void, it was held, that if the payee was to be regarded as never having been a de facto company, that even then the note was good in the hands of a bona fide holder the same as a note made to a fictitious payee. Famsworth ■«. Drake, 11 Ind., 101. 1858. 23. Evidence. R., tlie president of a rail- road company, signed his name without any addition, to a due bill, acknowledging that there is due to 8. & S. $484, in full of labor performed, on cottage lot of the railroad com- pany. It being uncertain on the face of the note whether the labor was performed for R. or the company, parol evidence is admissible to prove that fact. Biclvmond, Fredericksburg, etc., B. B. Co. V. Snead, 19 Grattan (Va.), 354. 1869. 24. Indorsers. Where one who has con- tracted with A. to indemnify him and keep him harmless from liabilities incurred as an indorser for B., permits judgment to be taken against him in such indorsement, it is not necessary that the judgment should have been collected to enable A. to maintain an action for the breach of the contract. Smith v. Chi- cago and Northwestern B. B. Co., 18 Wis., 17. 1864. 25. — A coal company indebted to a rail- road corporation for freights gave its notes for a less amount, which the latter indorsed and procured to be discounted. There being no evidence that the coal company received the avails of the notes, it was held immaterial, in respect to the objection that the notes were in- dorsed for its accommodation, that it did not appear whether these notes were given to ap. ply on the coal company's indebtedness. If so, the railroad corporation was the owner; if not, the notes were lent for its accomodation Olcott V. Tioga B. R. Co., 37 N. Y., 546. 1863. Same v. Same, 40 Barbour (N. Y.), 179. 1863. 48 BILLS AND NOTES. Pleading — Protest — Signature. 26. Payable in property. The plaintiff paid off a note to defendant with certain ne- gotiable railroad bonds, but, by inadvertence, the note was not given up to plaintiff. After- ward defendant sold the note, before maturity, to a ionafide holder, who commenced suit thereon. Seld, that plaintiff could recover of the defendant for said bonds before judgment had been obtained on the note. Connecticut and Passumpsia Rivers B. R. Co. i. Newell, 31 Vt., 364. 1858. 27. — In a suit upon a promissory note payable in certain railroad scrip, where the maker had failed to pay in such scrip, the market value of the scrip is the measure of damages. Paries v. Marshall, 10 Ind., 20. 1857. 28. — If an obligation is executed for a sum of money, to be paid in the bonds of a railroad company, and said obligation is not complied with, the measure of damages in an action thereon, or when offered as a set-off is the nominal value of the bonds, and not the value at which they might be rated in the market. Memphis and Little Rock R. R. Co. v. Walker, 2 Head (Tenn.), 467. 1859. 29. Pleading. A declaration upon a note endorsed in blank, payable on a future day, should aver demand and notice. Tumley v. Olarkstille and Memphis R. R. Co., 2 Coldwell (Tenn.), 327. 1865. 30. Protest. The notice of protest being addressed to the endorser via a postoffice iu an adjoining parish, that being the nearest postofBce to his residence, is sufficient. The word via does not necessarily raise a pre- sumption that the notice was forwarded to another office. New Orleans and Ca/rrollton R. R. Co. V. Ratliff, 10 Robinson (La.), 37. 1845. 31. — Notice of protest may properly be sent to the office where the indorser keeps a postoffice box and ■ usually gets his mail, al- though there may be a postoffice nearer to his place of residence, it being proven that he does not receive mail at the latter office. New Orleans and CarroUton R. R. Co. v. Kerr, 9 Robinsin (La.), 132. 1844. Same v. Robert, lb. 130,157. 32. -~ To hold an indorser upon a new promise, made after he had been discharged by a failure to protest, the plaintiff must show that the promise was made by the indorser with full knowledge of his discharge. New Orleans and CarroUton R. R. Co. v. Mills, 3 La. An., 824. 1847. 33. — Where a person residing in New York, and acting as the authorized agent of another, requested a friend at Cincinnati to collect from a corporation there the amount of a dividend due to his principal, upon stock, and to transmit to him a draft for the amount ; it was ?ield, that if the agent left New York while expecting the draft, it was his duty to leave authority, with some one, to present the draft when received. Brady v. Little Miami R. R. Co., 34 Barbour (N. Y.), 249. 1861. 34. — For the negligence of the agent in not presenting such draft for payment within the proper time, the principal was responsi- ble, lb. 35. — Under the civil code art. 2259, before a recovery can be had upon any written in- strument that has been lost, its loss shall have been advertised a reasonable time. This ap- plies to a written new promise to pay a note executed by an indorser who had been dis- charged, as well as to the note itself. Both having been lost both should have been ad- vertised. New Orleans and Ca/rrollton R. R. Co. V. Armstrong, 2 La. An., 829. 1847. 36. — The executor of a deceased indorser is the proper person on whom to serve notice of protest, although the heirs may have taken possession of the property of the decedent. Creditors have the right to regard the executor as the representative of the estate until his discharge. New Orleans and CarroUton R. R. Co V Kerr, 9 Robinson (La.), 122. 1844. 37. Seal. A sealed note is not negotiable, and an action will not lie upon it in the name of the assignee. Conine v. Junction, and Break- water R. R. Co., 3 Houston (Del.), 288. 1866. Mopkins v. Railroad Co., 3 Watts & Sergeant (Penn.), 410. 1842. 38. Set-off. Where a note is made payable to a bank, the holder may su6 in the name of the bank for his own use, and proof is admis- sible on a tender in the bills of the bank, to show that the note was never the property of the bank. Craves v. Mississippi and Alabama R. R. Co., 6 Howard (Miss.), 548. 1842. 39. Signature. Proof of signature to notes, bills, etc., given by a corporation, is not neces- sary to authorize a judgment, and if the sig- nature is denied, it must be under oath. BILL OF DISCOVERT— BILLS OF EXCEPTIONS. 49 Equity — Amendment — Pacts. Peoria and. Oquoiwka R. B. Go. «. I[eil\ 16 111., 269. 1S55. 40. Suit. An instrument of writing in terms as follows, viz: "Treasurer of St. Louis" etc., "Eailroad Company will pay to A., or order, $1,700. Done by order of the Board of Directors; B., President, C, Secretary; " was a bill or note for the direct payment of money, within the meaning of the statute, and the party suing upon it was en- titled to default in case of failure to answer on or before the second day of the return term. OiUirap «. St. Louis, Macon and Omaha Air Line B. B. do., 50 Mo., 490. 1873. BILL OF DISCOVERY. 1. Equity. Where a railroad company brought a bill in chancery against B. and oth- erg, stating, that the plaintiff had made several contracts with B. for the construction of cer- tain portions of its road and the structure con- nected with it under which B. had performed a large amount of labor, and received from the plaintiff large sums of money, but finally failed to fulfill the stipulations on his part; that B. threatened to commence suits against the plaintiff for the recovery of the balance which he clairad to be due to him ; that sun- dry other persons, made defendants, claiming to be creditors of B., had already instituted suits against him, by process of foreign at- tachment, serving copies upon the plaintiff as his debtors ; that C, one of such attaching creditors, having obtained judgment against B., had brought his writ of scire facias against the plaintiff, which suit was still pending; and that the accounts between the plaintiff and B., and between him and the attaching creditors were numerous and complicated; praying for a discovery from the defendants respectively, that the accounts be taken, be- tween the plaintiff and B., and between him and the other defendants, and that the defend- ants be restrained from proceedings at law ; it was held, that no sufficient ground was shown for the interposition of a court of chan- cery. Norwich and Worcester B. B. Co. v. Story, 17 Conn., 364. 1845. 4 2. — Seld, in this particular case that no discovery was necessary, as the parties were competent witnesses, under acts of congress of July 6, 1862, and July 2, 1864. Heath v. Erie B. B. Co., 9 Blatchford (U. S. C. C), 316. 1872. 3. Petition. A petition for a discovery should be denied where it appears that the petitioner might have access to the books and papers without an order. Charliek is. Flush- ing B. B. Co., 10 Abbott's Pr. (K. Y.), ISO. 1860. BILLS OF EXCEPTIONS. See Evidence. 1. Amendment. A court cannot legally alter the record of its proceedings after the close of the term ; and a bill of exceptions cannot be altered. But before a cause is tried, it is proper that material issues, calculated to settle the merits of the pending controversy, should be formed, and courts possess the pow- er up to that point of correcting errors which have occurred in their proceedings. Heaston V. Cincinnati and Ft. Wayne B. B. Co., 16 lid., 275. 1861. 2. Authentication. A bill of exceptions not signed by the judge as being untrue, nor bystanders as required by the statute, but only accompanied by affidavits filed in vacation, and that without any consent that the same should be filed out of time, will not be con- sidered in the supreme court. Blanhenshvp o. North Missouri B. B. Co., 48 Mo., 376. 1871. Price V. Same, ib., 389. 3. — Where exceptions are taken at the time of the ruling, the bill of exceptions may be signed afterwards. Illinois Central B. B. Co. ■». Pa?™?-, 24 111., 43. 1860. 4. — Where the points presented by the bill of exceptions are reserved at the trial, but the bill itself is not drawn up and sealed until six months thereafter, the appellate court will consider it as a part of the record. Pool v. Cahawba and Marion B. B. Co., 5 Ala. N. S., 237. 1843. 5. Facts. The finding of a court, upon a question of fact, is conclusive, and cannot be 50 BILL OF EXCEPTIONS. Filing — Evidence — Firm . reviewed by motion in error, founded on a bill of exceptions, when no question of law arises thereon. Norwich and Worcester B. S. Co. V. Kaff, 23 Conn., 603. 1853. 6. — A bill of exceptions showed that plaintiff excepted to the finding and judg- ment: but no instructions were asked or giv- en. Held, that no point of law being saved, the supreme court will not review the finding of facts. Wihon v. North Missouri B. Jt. Co., 46 Mo., 36. 1870. 7. — The equity of the statute of "Westmin- ister 2, allowing bills of exceptions, embraces all such judgments or opinions of the court, as arise in the progress of a cause which are the subjects of revision by an appellate court, and which do not otherwise appear on the record. York and Cmriberland R. M. Go. v. Myers, 18 Howard, 346. 1855. 8. — But to present the question to the su- preme court, the subordinate tribunal must ascertain the facts upon which the judgment or opinion excepted to, is founded. lb. 9. — Therefore, where there was a refer- ence in the circuit court, and the bill of ex- ceptions set out the objections to the award and the testimony of the arbitrator who was examined in open court, and that testimony showed the facts on which the ' objections were founded, it was held a sufficient excep- tion, lb. 10. Piling. Where time is given, beyond the term, to file a bill of exceptions, and the bill is not filed within the time limited, the Court cannot at a succeeding term, allow the bill to be filed nunc pro tunc, without notice to the adverse party. New Albany and Salem S. S. Co. V. Wilson, 16 Ind., 403. 1861. 11. — Wlnen lime is given within which to flic a bill of exceptions, and one is copied in the record without any evidence of being filed, it will not be regarded on appeal, and a question on the sufliciency of the evidence cannot be considered. Louisville, New Al- bany and Chicago M. B. Co. v. LafUind, 38 Ind., 65. 1871 ; see also Ohio and Mississippi B. R. Co. V. Cobb, 43 Ind., 390. 1873. 12. Evidence. A bill of exceptions is de- fective in not stating that it contains all the evidence which was given in the cause. Routsong v. Pacific R. R. Co., 45 Mo., 330. 1870. Blankenship ®. North Missouri R. B. Co., 48 Mo., 376. 1871. Pme ». ySawe, ib., 389. 1 3. _ 'W'hen the bill of exceptions fails to state that it contains all of the evidence, the appellate court will presume that there was other and sufficient evidence to warrant the verdict. Illinois Central B. B. Co. <€. Garish 39 111., 370. 1866. 14. — A bill of exceptions may contain all the evidence, although it appear that the jury were allowed to inspect the place where the matters referred to in the pleadings occurred. Evansville, etc. B. B. Co. v. Cochran, 10 Ind., 560, overruled. Jeff'ersonvillejetc.fB.B.Co.v. Bowen, 40 Ind., 545. 1872. 1 5. Form. A bill of exceptions should only certify such matters as aro not necessarily a part of the record, and it is improper to cer- tify matters that are essential to the record through the medium of a bill of exceptions. New Orleans, Jackson and Great Northern R. R Co. V. Allbritton, 38 Miss., 343. 1839. 16. — A motion for a new trial cannot be certified in a bill of exceptions. /6. 17. — The supreme court will not review instructions on a general exception to all tjie instructions, wlien it is not claimed that they are all erroneous. Jack i>. Naber, 15 la., 450 1863. Cedar Rapids and Missouri River B. B. Co. V. Willetts. lb. 18. — A failure to except to the giving oi refusing to give instructions before the jury retires is considered an approval of the charge given by court. JJvans «. Burlington and Missouri Bimr B. B. Co., 21 la, 374. 1866. 1 9. — Where the error complained of in an appeal from the circuit court is apparent on the face of the record, it may be revised with- out the saving of exceptions or the filing of a motion for new trial. Hannibal and St. Joseph B. B. Co. ■». Mahoney, 43 Mo., 407. 1868. <20. — No exceptions are necessary to be made in order to bring a case from tlie dis- trict court to the supreme court on appeal; the statute in relation to such exceptions only applies to the circuit court. Quincy and Pal- myra B. B. Co. v. Taylor, 43 Mo., 3>. 1668. 21. — Bills of exceptions should be sent to the supreme court by copy and not in the original form; but an omission in this re- spect would only at most work a continuance to obtain a corrected transcript. Femow v. Dubuque and Southwestern R. R. Co., 23 la., 538. 1867. BILL OF LADING. 51 Alteration — Etfeot of a Bill of Lading. BILL OF LADING. 1. Alteration. Where a railway company made an alteration in the name of the place of delivery in a hill of lading, and sent the bill to the shippers who did not observe the alteration until after the los^ of the property, it was held, that this alteration was a rejection of the proposition contained in the bill of lading, and that the shipper was presumed to have consented to the alteration by not dis- senting within a reasonable time. MuUer v. Gincinn-iti, etc., S. S. Go., 3 Cincinnati Supe- rior Ct. Rep., 280. 1873. 2. Effect of a bill of lading. A carrier having given a bill of lading should be re- quired to introduce clear proof to show that he never received the goods. Idttle Miami, etc., S. B. Co. 11. Dodds, 1 Cincinnati Superior Ct. Rep., 47. 1870. 3. — Whoever receives a cargo from a ves- sel under a bill of lading, in the absence of circumstances showing a different under- standing, is liable for the freight. Philadel- phia and Reading B. B. Co. ii. Barnard, 3 Ben- edict (U. S. D. C), 39. 1868. 4. — When property is delivered to a for- warder or carrier, upon consignment to a fac- tor tor sale, but the receipt or bill of lading is not delivered or sent by the owner to the fac- tor, and the property has not reached him, the factor acquires by the transaction no gen- eral or special property in the goods. Bank of Bochester ». Jones 4 N. Y., 497. 1851. 5. — The delivery of a bill of lading with- out indorsement, if intended to pass the title to the goods, is sufficient for that purpose, although the bill is drawn to order and is not indorsed. City Bank v. Borne, Watertown ami Ogdemlmrgh B. B. Co., 44 N. Y., 186. 1870. Michigan Central B. B. Co. ■». Phillips, 60 111., 190. 1871 6. , — A shipment of goods by the owner, under an agreeufient by which the consignee has advariced money thereon, and agreed to make a further advance on receiving the bill of lading, gives the consignee a title to the goods to secure both advances, as against one who afterwards, though before this bill of lading is delivered, receives a second bill of lading of the goods, with notice that the first has been issued. Stevens v. Boston and Wor- cester B. B. Co., 8 Gray (Mass.;, 263. 1857. 7. — If A, has properly upon which he h«s received advances from B., under an agree- ment ,that he will ship it to B. to be sold to pny the advances, or to pay any indebtedness ; he may or maynbt cornply with this contract. He may ship to C. or B. upon conditions, but if he ships to B. in pursuance of his contract the title vests in B. upon the shipment. The highest evidence that he has so shipped is the consignment and unconditional delivery to B. of the bill of lading; but if A. retains the bill of lading, and notifies B. by letter that ho has shipped the property for him in pursu- ance of the agreement, the title passes as ef- fectually, as between them, as if the bill of lading had been delivered. Bailey v. Hudson Biv&r B. B. Co., 49 N. Y., 70. 1873. 8. — A. purchased a quantity of flour to be manufactured by a certain mill in St. Louis, ' Mo., and a parol agreement was made by A. and B for the sale of the flour by the former to the latter for cash on delivery. Afterwards a freight company, which ownpd no means of transportation, gave B. an instrument styled a bill of lading, dated before the flour had been manufactured, by which said com- pany acknowledged the receipt by it of the flour from B. and agreed to transport it to C. at Boston; Mass. A few days afterwards thu servants of a transfer company, an organiza- tion engaged in carrying freights across the river at St. Louis, took the flour' from said mill, conveyed it across the river, and put it in the custody of a railroad company for which said freight company acted as agent, receiving a certain percentage for all freights obtained for said railroad, said transfer com- pany giving the superintendent of said mill dray tickets for the floiir, and receiving from said railroad company a bill of lading for the flour to be delivered to C. at Boston. The barrels had been marked at the mill with B.'s brand without the knowledge of A. Before the flour was taken from the mill B. drew on C. for a certain amount payable to the order of the former, chargeable to account of the flour, and for value sold the bill of exchange to a bank and transferred to said bank the in- strument so given by said frciglit company to B., the bank having no notice of any claim on the flour in favor of A. Hearing of the embarrassment of B., who a few days after- wards became insolvent, A. inquired of the 52 BILL OP LADING. Evidence. superintendent of the mill about the flour,re- ceived from him said dray tickets, and the day after the delivery of the flour to thp rail- road company went with said tickets and biJl for the flour to B. and requested payment, which not being made, A. told B. that he would keep the tickets and make other dispo- sition of the flour, and went to the railroad company with said tickets and demanded a bill of lading, which was refused. No oi-der, oral or wriiten, was given by A. for the deliv- ery of the flour from the mill, but the agents of the transfer company received their orders from, the agent of said freight company, who received his authority from B. Held, that' A. was still the owner of the flour and entitled to its possession. Held, also, that said instru- ment given by said freight company to B. couki net be regarded as a bill of lading. Urivm R. JR. and T. Co. «. Teager, 34 Ind'., 1. 1870. ■ 9, — A. delivered to a railway company a quantity of flour to be shipped to B. at another station on its road, in pursuance of a contract between A. and B. for the sale of tlie flour from the former to the latter, to be so delivered on cars and to be paid for on re- ceipt of i,he bills of lading. At the time of the delivery B. was insolvent, and A. received from the station agent a bill of lading con- taining the usual clauses and in addition a provision, inserted at the request of A., that the Sour should be delivered to B. upon the presentation of a duplicate of such bill of lading, and received also a second bill of lading, marked "duplicate," in which the clause in relation to the presentation of the duplicate was omitted by mistake of the agent. A. drew a draft on B. for the purchase money and attached the duplicate thereto, and negotiated the draft to C, who in good faith paid for the same, knowing the form of the original bill of lading, which was then endorsed and delivered to C. as collateral se- curity for the payment of the draft, with the duplicate attached, at the bank where the draft was made payable, and the cashier of the bank presented it to B. before the delivery of the flour, and B. reifused payment but ac- cepted it, and after three days' grace being granted, the draft was protested for nonpay- ment, and next day C. presented the original bill of lading and demanded the flour, but the company had already delivered it to B., who was still insolvent, and B. had shipped the flour out of the state. Held, that the com- pany was liable to C. for his loss occasioned by the delivery of the flour to B. McEwen v. Jeffersonville, Madison and Indianapolis B. 11. Co., 33 Ind., 868. 1870. 10. — A carrier is not bound to forward goods to a person who claims to be the con- signee if they are not accompanied with any instructions or bill of lading, and the claim- ant produces no authority from the consignor for their delivery; although they are marked with the initials of the claimant's name. Finn v. Western B.R. Co., 103 Mass., 383. 1860. 11. Evidence. A bill of lading is prima facie evidence of the matters contained in it ; but is subject to explanation, and the carrier may show any injury, loss, fraud or deceit oc- casioned or practiced by any previous carrier, or by the shipper of the goods. Great West- ern B. B. Co. ■». McDonald, 18 111., 173. 1856. 12. — Where, by a bill of lading, goods were to be transported from Cincinnati to New York, over certain specified railroads, to Belle Air, " and there delivered to the agents of the next connecting steamboat, railroad company or forwarding line, etc. ; held, that the bill of lading was conclusive evidence as to the contract which the carrier made ; and that under it the carrier was not bound to carry entirely by railroad. Bostwiek v. Balti- more and Ohio B. B. Co., 55 Barbour (N. Y.), 137. 1869. 13. — Where a bill of lading is made out by the carrier and accepted by the shipper, all previous parol agreements are merged iu it. Bostwiek V. Baltimore and Ohio B. B: Co., 55 Barbour (N. Y.), 137. 1869. Long v. New York Central B. B. Co., 50 N. Y., 76. 1873. 14. — Evidence that a consignor of goods shipped them on a vessel, took a bill of lading from one whom he believed to be master of the vessel, and who was personally acting as such, indorsed and sent it to the consignee, and procured a policy of insurance on the goods payable to the consignee, is sufficient to war- rant a finding of a delivery to the consignee, who had made advances on the goods; al- though the bill of l.iding was signed by one who was not in fact the master, and who had no authority to sign it. Prince v. Boston and Lowell B. B. Co., 101 Mass., 543. 18«9. BILL OF SALE — BONDS OF RAILWAY COMPANIES. 5a Bunds. 15. Limitation of carrier's liability. — When goods are shipped under a verbal agree- ment for the transportation thereof, such agreement is not merged in a bill of lading, partly written and partly printed, delivered to the shipper after he has parted with con- trol of his goods, although such bill of la- ding, by its terms, limited the liability of the earner and expressed on its face that by ac- cepting it, the shipper agreed to its condi- tions. The mere receipt of the bill, after the verbal agreement has been acted on, and the shippers omitting, through inadvertence, to examine the printed conditions, are not suffi- cient to conclude him from showing what the actual agreement was, under which the goods had been shipped. Boitwick ». Balti- more and OMo B. B. Co., 45 N. Y., 713. 1871. See CABBuai: of Mebchakdiss. 16. — A bill of lading exempting the car- rier from loss or damage by fire beyond its own route — construed. Zami v. Camden and Arriboy B. B. Go.. 46 N. Y., 371. 1871. 17. — A steamboat bill of lading for the shipment of goods at Memphis, to be deliv- ered at Cairo, specifying the rate of freight through to Baltimore, and signed by the agents of the connecting railroad company, is a contract for through shipment, and the railroad company is entitled to the benefit of the exceptions contained in the bill of lading. Woodward v. IlUnou Cemtral B. B. Co.^ 1 Bis- sell (U. S. C. C), 447. 1864. BILL OP SALE. 1. Bonds. A bill of sale of railroad bonds, coupled with a guaranty that certain railroads should be consolidated — construed. Litch- field V. Iroin, 51 N. Y., 51. 1873. BOATS. 1. Damages. When a person undertakes to load a boat with goods, and by his negli- gence the goods are suffered- to fall, so as to injure the boat, he is liable for the damages to the owner of the bo^it. Pate o. Greenville and Boanoake B. B. Oo., 13 Iredell's Law (N. C), 835. 1S53. BONDS OP RAILWAY COMPANIES. Sec Bill of Sale; Gaknishment; Income Bonds; MOBTGAUE. I. Bonds. II. Coupons. III. Miscellaneous. I. Bonds. 1. Negotiability. Bonds issued by a rail- way company of Massachusetts, payable in ilank, and issued to a citizen of that state, which had passed through several intervening holders, could bo filled up by a citizen of New Hampshire, payable to himself or order, and then suit could be maintained upon them in the circuit court of the United States for Massachusetts. White v. Vermont and Massa- chvMtts B. B Co., 21 Howard, 575. 1858. 2. — The eleventh section of the judiciary act does not apply to such a case. lb. 3. — Such instruments are negotiable. lb. 4. — The later English authorities on this point are overruled. lb. .'j. — The bond of a railroad corporation, payable to A. B., or his assigns, is in the na- ture of commercial paper, negotiable by de- livery under an assignment in blank, and not a specialty, subject to equities between the corporation and the person named in the bond as the primary payee. Brainerd «. New York and Harlem B. B. Co., 35 N. Y., 496. 1863. See Same n. Same, 33 Howard's Pr. (N. Y.), 491., 1863. Same v. Same, 10 Bosworth (N. Y.), 333. 1863. 6. — Bonds issued by a railroad company, whether under seal or not, payable to A. B., or the holder thereof, are negotiable, and will pass by delivery. Connecticut Mutual Life In- surance Co V. Cleveland, Columbus and Cincin- nati B. B. Co., 41 Barbour (N. Y.), 9. 1863. See Same ii. Same, 33 Howard's Pr. (N. Y.), 180. 1863. Same v. Same, 26 ib., 225. 1863. 7. — A railroad corporation, having charter power to build a road, and issue bonds to raise money therefor, has power to issue to contractors in payment for work done, nego tiable certificates of indebtedness, payable in money or bonds, Pusey v. New Jersey B. B. Co., 14 Abbott's Pr., N. S. (N. Y.), 434. 1873 8. — Such an instrument, issued, under thp signature of the projier ofBcers and the seal 54 BONDS OP RAILROAD COMPA];nES. Coupons — Miscellaneous. of the corporation', is presumed to have teen properly issued. lb. , 9. — Wliere a railway bond is issued paya- ble to or assigns, any lawful holder may flu up the blank with his own name, and may bring suit thereon as payee when it falls due. Jlvibard i>. New Yorle and Harlem B. S. Co., 36 Barbour (N. Y.), 286, 1862; Same v. Same, 14 Abbott's Pr. (N. Y.), 275, 1863. 10. Set-off. A railway company entered into a contract for finishing its road in a spe- cified time, and in payment delivered its cou- pon bonds to the contractor, from time to time as the road progressed ; the road having been finished, but not in the time specified, it was held, that the company could not set up a claim for damages for the delay as against bona fide holders of the bonds. McElrathv. Pittsburgh and Steubenville S. R. Go., C5 Penn. St., 189. 1807. 1 1. A bona fide holder, for value, of a lost bond, is entitled to recover the full amount of principal and interest due thereon, notwith- standing he may have had a suspicion, and good grounds for suspicion of defect in the title, and been guilty of gross negligence in respect to it at the time of the transfer. His title will not be defeated unless he was also guilty of bad faith. Neio Orleans, ete., S. S. On. V. Mississippi College, 47 Miss., 560. 1873. 12. — A bond to pay money, and to do something else, as to feed and clothe a slave, is not negotiable. Knight v. Wilmington and Manchester B. B. Co., X Jones' Law (N. C), 357. 1854. II. Coupons. 13. Attachments. Coupons are ehosca in action and cannot be attached by trustee pro- cess, even though they have been pledged as collateral security. Smith v. Kennebec and Portland B. B. Co., 45 Me., 547. 1858. 14. Demand. Suit may be brought upon a coupon bond, made payable at a certain time and place, without first making demand of payment. Langston v. SoutJvGa/rolina B. B Co., 2 So. Car. (N. S.), 248. 1870. 15. Guaranty. Where a corporation in- dorses upon an interest-warrant, or coupon, issued by another company, a guaranty of payment, " for value received," it is not to be deemed an accommodation indorser or guar- antor. The words "value received" imi^oit a sufficient consideration. Comiecticut Mutual Life Ins. Co. v. Cleveland, Columbus and Cin- cinnati B. B. Co., 41 Barbour (N. Y.), 9, 1863 ; see Same v. Same, 23 Howard's Pr. (N. Y.), 180, 1862. Same i). Same, 26 ib., 225, 1863. 16. Interest. If interest coupons, annexed to a negotiable bond, are not paid, when due, interest should be allowed, by way of dam- ages for nonpayment. Connecticut Mutual Life Ins. Co. u. Cleveland, Columbus and Cin- cinnati B. B. Co., 41 Barbour (N. Y.), 9, 1863 ; see Same v. Same, 23 Howard's Pr. (N. Y.) 180, 1862; Same v. Same, 26 ib., 225, 1863; WhitaJcer v. Hartford, Providence and Fishkill B. B. Co., 8 R. I., 47, 1864. 17. Negotiability. Coupon bonds, paya- ble to bearer, are negotiable. Langston v. South Carolina B. B. Co., 2 So. Car. (N. S.), 248. 1870. 18. — A coupon-bond is negotiable, and its coupons may be detached and negotiated sep- arately by simple delivery, and sued on sepa- rately from the bond, even after the bond itself has been paid and satisfied. National Exchange Bank v. Hartford, Providence and Fishkill B. B. Co.. 8 R. I., 375. 1866. 19. — A coupon, once detached and nego- tiated, ceases to be a mere incident of the bond, and becomes an independent claim. Ib. 20. — In the absence of proof of custom as to negotiability of coupons disconnected from the bonds, and in the absence of any statute, they will not be held to have an inde- pendent negotiable character, unless the in- tention of the party issuing them appears up- on the coupon itself. Myers v. Tork and Cum- berland B. B. Co., 43 Me., 332. 1857. 21. — At common law the assignee of a chose in action cannot maintain a suit in his own name unless there has been an assent to the assignment and a promise by the debtor to pay the assignee. Ib. 22. — The owner of coupons which have been lost may recover by making indemnity. Fitchett V. North Pennsylvania B. B. Co., 5 Philadelphia Rep. (Penn.), 133. 1863. •III. 'Miscellaneous. 23. Contract. Where a person acknowl- edged the receipt of "the sum of $119,000 in bonds'' of a railway company, and of " 50,405 BONDS OF BAILROAD COMPANIES. 60 Miscellaneous. dollars of coupons " amounting in the aggre- gate to the " Slim of $169,405," " wliich said sum lie promised to expend in the purchase of lands " of the same company " at or near the average price of $5 per acre," held, that this was a trust to buy the lands with the bonds at or near the price of $5 an acre ; and not to buy them witli tlie proceeds of the bonds af- ter they had been sold at a nominal price. Kitchen «. Bedford, 13 Wallace, 413. 1871. 24. Convertibility. "Where by the terms of a railroad bond, a period was fixed within which it might be converted into stock at the option of the holders, held, that an agreement for the extension of the time of payment be- fore maturity of the bond, did not extend the right of conversion after the time limited. Muhlenberg v. Philadelphia and Reading B. B. Co., 47 Penn. St., 16. 1864. 25. — The directors of the Erie R. E. Co., acting in good faith, have power to issue con- vertible bonds in the name of the corporation for the amounts they may borrow to complete and finish, or to operate the road, with the right to authorize their conversion into stock ; although it increases the amount of capital stock beyond that fixed by the charter. Bam- sey V. Erie R. B. Co., 38 Howard's Pr. (N. Y.), 193. 1869. 26. Demand. Where a bond is payable at a particular place, it is not necessary to aver and prove a demand of payment at that place to show a default. Truman v. McCoUum, 20 Wis., S60. 1866. 27. — Where a railroad company issued bonds, payable at its oflSce, in a particular way, and at the maturity of the bonds there was no office of the company at that place; held, that a demand for payment elsewhere was sufficient. Alexander v. Atlantic, Tennes- see and Ohio B. B. Co., 67 N. C, 198. 1873. 28. Exchange. Where an exchange of bonds of three classes was made for new bonds, and W. consented to the exchange and took the new bonds, and the road was subse- quently sold under a foreclosure of the mort- gage to secure the same, and the proceeds were first applied to the payment of such of the old bonds as had not been surrendered under the arrangement, and the remainder was insufficient to p?,y the new bonds, and W. intervened by petition and set up a sepa- rate agreement by which it was specified that he should not be held to surrender Lis rights under the old bonds unless all the stockhold- ers consented, it was Iield, that he was not entitled to any relief, as the holders of the new bonds took the same without notice of his equity. Ex parte White, «. Wilmington and Manchester B.B. Co. 3 So. Car. (N. S.) 469. 1871. 29. Guaranty. A railway company, under the laws of Iowa, having power to issue bonds may guaranty the bonds of a municipal corpo- ration issued for railway purposes. Bailroad Company v. Howard, 7 Wallace, 393. Ib88. 30^ — In 1851, the legislature of Ohio au- thorized railway companies to subscribe aid to other companies, but required the assent thereto of two-thirds, in value, of the stock- holders. In 1853 this act was reenacted with tlie further proviso that any company might ac- cept the provisions of the act, and wlien so accepted and a certified copy of their accept- ance filed with the secretary of state, that por- tion of their charters inconsistent with this act, should be rejjealed. The defendant had- guarantied bonds for another company with- out formally complying with these require- ments. A stockholder of the defendant's company brought suit to enjoin the payment of the interest on the guarantied bonds. Held, that as between the parties to this suit the ac- ceptance of the acts of 1851 and 1853 may be inferred from the acts of the corporators. Zairiskie c. Cleveland, Colwnbus and Cincin- nati B. B. Co., 23 Howard, 381. 1859. 31. — The act of the corporators, in ap- proving, adopting and sanctioning the en- dorsement of these bonds, at a meeting in which the complainant was present, and de- clined to vote, taken in connection with the fact that the bonds were placed on sale ac- companied by the resolutions and votes of such meeting, and no effort was made by any of the corporators to disabuse the public mind, will estop the corporators or corpora- tion from afterward defeating the claims and calculations their own conduct has superin- • duced. lb. 32. — The general railroad laws of Oliio provided that any railroad company might, by means of subscription to the capital stock of auy other company, or otherwise aid such company in the construction of its raijroad, for the purpose of forming a connection be- 56 BONUS — BRAKEMEN — BRANCH RAIL WAYS. Consideration. (ween said last mentioned road and the road owned by the company furnishing such aid ; and authorized any two or more railroad com- panies, whose lines were connected, to enter into an arrangement for their common bene- fit. Held, that these provisions gave the pow- er to companies whose lines of road were con- nected, to enter into an arrangement witli each other for the purpose of securing a uni- form gauge of the connecting roads, and to make it part of such arrangement that one or more of the companies should guaranty the payment of the interest coupons issued by another. Oonneoticut Mutual Life In»urance Company v. Ciemeland, Columbus and Oinein- nati S. B. Co., 41 Barbour (N. Y.), 9, 1863 ; see Same «. Same, 23 Howard's Pr. (N. Y.), 180, 1863; Same v. Same, 26 ib., 235, 1863. 33. — An arrangement between several connecting railroad companies, entered into for the purpose of securing a uniform gauge of the several roads, and thus increasing the business and profits of each, forms a sufficient consideration for a guaranty by one of the corporations, of the payment of the coupons issued by another. Ib. 34. — Holders of the coupons guarantied have a right to presume that tlie guarantors have proceeded regularly in the execution of the power. Tb. 35. Interest. Where the interest on bonds is fixed at six per cent., but the bonds are si- lent as to the rate of interest after maturity, they will draw seven per cent, from maturity. Langiton v. South Carolina S. H. Co., 3 So. Car. (N. S.), 348. 1870. 36. North Carolina. The state, under the act of 1840-41, entitled "An act to secure the state against any and every liability incurred for the Gaston and Raleigh Railroad Com- panyj and for the relief of the same," cannot recover upon any bond given under the said act, unless it is proved that the whole amount of $500,000 had been secured by bonds. Sen- nehoM v. Webb, 6 Iredell's Law (N. C), 57. 1845. 37. Special fund. Where bonds are issued by the defendant corporation under the act of 1841, and a special fund was designated for the payment of the interest, etc., and in 1843 an act was passed disregarding the act of 1841 ; Jield, that the creditors to whom bonds were issued under the act of 1841 were entitled to the funds specified in that act, and such funds could not, without their consent, be taken from them. McCullough v. Annapolis and Elk Ridge B. B. Co., 4 Gill (Md.), 58. 1846. 38. Warranty. If a railroad company issues and sells bonds bearing upon their face a certificate, signed by persons describing themselves as trustees, that the same are se- cured by a first mortgage to them in trust for the bondholders, there is no absolute pre- sumption that a purchaser thereof relies upon such certificate; and, in an action upon a note given by him as a part of the considera- tion of the purchase, the question should be submitted to the jury to determine whether he accepted the bonds, relying upon such cer tificate. Edwards v. Marey, 3 Allen (Mass.), 486. 1861. BONUS. See StrEscRiFnoNS by iNDinuuAis. 1 . Consideration. An engagement to pay an incorporated railroad company a certain sum to induce the location of their route at a particular place, is valid and binding, and may be enforced by action. Cumberland Val- ley B. B. Co. V. Baab, 9 Watts (Penn.), 458. 1840. 2 — Seld, that the Indianapolis and Vin- cennes R. R. Co. had built its road in accord- ance with the terms of the contract in this particiTlar case, and that defendant was there- fore liable for the amount of his subscription. Branham v. Beeord, 43 Ind., 181. 1873. BRAKEMEN. See Injitbies to Smployxs. BRANCH RAILWAYS. See Latebal Kaelwats. BKIDGES. 57 Approaches — Charter — Contract — Damages. BRIDGES. See CoNSTiruTioifAi, Law; Isjubies to Employbs; Mechanic's Liens; Ndisancb. 1. Approaches, A person having paid toll attempted to cross a bridge and fell over an embankment in a dark night and was injured. neld, under the facts of this particular case, the company was liable for the damages. It was the duty of the company in erecting such bridge to so construct the approaches as not to render them dangerous for passengers by day or night. Baltimore and Ohio B. B. Co. v. Boteler, 38 Md., 568. 1873. 2. Charter.. The right to cross a naviga^ ble water by a railroad bridge, must be given by the sovereign power, by a special or gen- eral grant. Works v. Junction B. B. Co., 5 McLean, 435. 1853. 3. — Where a railway company is author- ized to construct its road between two points " over " a navigable river, a right to bridge the stream is implied. lb. 4. Commissioners. The validity of the ap- pointment of one who holds a commission as commissioner, to supervise certain work, un- der St. 1856, ch. 396, upon a bridge at the in- tersection of the Boston and Lowell, and the Fitchburgh and Grand Junction railroads, in Somerville, and to apportion the cost thereof between the Fitchburgh B. R. Co. and the Grand Junction R. R. Co., in such proportion as should by him be deemed equitable, can- not be inquired into in an action brought un- der tbat statute by the Fitchburgh R. R. Co. against the Grand Junction R. B. Co., to re- cover a fair and just proportion of the cost incurred in doing the work. FitcKbiLrgh S. B. Co. V. Grand Junction B. S. Co., 1 Allen (Mass.), 553. 1861. 5. Conflicting charters. A franchise, granted in 1766, to erect and keep a toll bridge over a stream, and forbidding the erec- tion of any other bridge or ferry within six miles, and imposing a penalty of twenty shil- lings for every passenger " set over " in viola- tion of such act, is not violated by a railroad^ company, (incorporated by a modern act), which carried passengers along its road, and as a part of its road over its bridge, though the latter was within less than six miles of the other. McBee v. Wilmington and Baleigh B. B. Co., 2 Jones' Law, (N. C), 186, 1855; see Taylor v. Wilmington and Manchester B. B. Co., 4 ib., 277, 1857. 6. — A railway viaduct, constructed so as to make it as nearly impossible as may be for a man or beast to cross, except in cars, is not a " bridge " within the meaning of the act of New Jersey, passed in 1790, hence the act of the assembly of that state passed in 1860, au- thorizing the building of a railway and the necessary viaduct does not impair the obligar tion of a contract made by the act of 1790. Bridge Proprietors . STiore Line S. S. Co., G Blatchford, (U. S. C. C), 270. 1868. 13. Indictment. Where a corporation is authorized to construct a bridge over a navi- gable stream, " provided said bridge is so constructed as not to prevent the navigation " of the stream, an indictment that charges the company with erecting a bridge, so as to ob- struct and impede navigation, is insufficient. State V. Portland and Kennebec B. B. Co., 57 Me., 403. 1869. 14. Injunction. Where an injunction is prayed to restrain the erection of a bridge, on the ground that it will obstruct navigation, and the evidence is vei-y nearly balanced, the injunction ought not to be granted. Works v. Junction B. B. Co., 5 McLean, 425. 1853. 15. — A bill prayed for an injunction against a rkilroad corporation, upon the ground that a certain railroad bridge which the respondents intended to build across the Connecticut river, would injure the orator's bridge, which had been erected under a char- ter from the legislature. The answer stated that the orator and his wife owned certain land adjacent to the bridge, and held it and the franchise of the bridge by the same title. It was then stated that the assessment of dam- ages to them was for injuries sustained by them as owners of the bridge and franchise, and also as owners of the land. Held, that the statement of the ownership of the land was not important, because it explained the reason of the assessment. Tucker v. Cheshire B. B. Co., 1 Foster (N. H.), 29. 1850. 16. — The bridges proposed to be con- Btructed over the Mississippi river at Kock Island, will not, as projected, cause any ap- preciable obstruction to commerce, and there is no cause for the interference of the court to prevent their erection. United States v. Bock Lsland B. B. Bridge Co., 6 McLean, 517. 1855. 17. — Where there is an obstruction to commerce, which operates to the irreparable injury of an individual, the court may act to prevent the injuiy. And in a similai- case re- lief can be granted to the United States. lb. 18. — The injury done to land on Rock Island does not justify such interference. lb. 19. Justice of the peace. The charter of the St. Louis and Irott Mountain Railroad Company did not confer upon a justice of the peace jurisdiction of an action against the company to recover damages for injuries sus- tained by reason of the construction of a cul- vert. Fatchell V. St. Louis and Iron Mountain B. B. Co., 28 Mo., 178. 1859. 20. Location. The charter of the Central R. R. Co. required it to construct a suitable bridge over any navigable water that it might cross, and required that such bridge should be "located at a point convenient for naviga- tion." ITeld, that in the absence of any alle- gation of the want of caa-e or good faith in the selection of the location of such bridge, the company was not liable at the suit of a party who complained of damage from an alleged mislooation of such bridge. StepJiens & Condit Transportation Co. v. Central B. B. Co., 5 Vroom(]SI. J.), 280. 1870. 21. Mandamus. Mandanms is a proper remedy to compel a railway company, iu making its track across a navigable stream, to pursue the mode prescribed by its chai-ter, and not to obstruct navigation. State v. Norths eastern B. B. Co., 9 Richardson's Law (So. Car.), 247. 1856. 22. Maritime lien. Though bridges and whai-ves may aid commerce by facilitating intercourse on land, or the dischai-ge of car- goes, they are not in any sense subjects of maritime liens. (U. S. Sup. Ct.) Galena Packet Go. ■». Bock Island Bridge Co., 35 How- ard's Pr. (K. Y.), 190. 1868. 23. Blills. The state has the right to au- thorize the erection of a railway bridge over a navigable stream entirely within its borders ; and a mill owner on the stream above has no right of action for the resulting obstruction to navigation and loss of flowage of the water. BRIDGES. 59 Municipal Corporations — Nuisances — O verflo-w. Bailey s." PMladelpMa, . Wilmington and Bal- timore S. JR. Co., 4 Harrington (Del.), 389. 1846. 24. Municipal corporations. The charter of New Haven authorizes the city to require the railway bridges in its limits to be kept in repair, etc., and in case of the failure of a railway company to comply with the orders of the city authorities in that respect, that such repairs might be made by the city and the expense thereof collected from the railway company. Held, that the term " bridge " in the city charter did not include the embank- ments, fills or approaches. N'ew Hwoen v. New York and New Baven B. M. Co., 39 Conn., 138. 1872. 25. — Where a municipal corporation has granted a right of way through a street to a railroad company, and the company solely for its own use, erects a culvert on the street, the municipal corporation is not liable for an in- jury resulting to an individual from an over- flow of water caused by the defective con- struction of the culvert. Staekhouse e. Gity of Lafayette, 26 Ind., 17. 1866. 26. — If the expense of keeping a bridge in repair is imposed by statute upon several towns and a railroad company jointly, with a provision that the municipal authorities of one of the towns shall have the care and su- perintendence of it, and shall employ all ser- vices necessary in the care of it, no action lies against said town, in favor of the railroad company, to recover for damages sustained by the latter in consequence of a defect in the bridge. Maiden and Melrose B. B. Go. v. Oharlestown, 8 Allen (Mass.), 245. 1864. 27. Negligence. It is negligence to leave a bridge uncovered at night over a public street in a city in the vicinity of a railway. Chicago and Northwestern B. B. Go. v. Fillmore, 57 111., 365. 28. Nuisance. Where a party suflfers any special damage by reason of a nuisance, an action lies in his favor for the injury. South Carolina B. B. Go. «. Moore, 38 Ga., 398. 1859. I. 29. — The erebtion of bridges over rivers, suitable draws being constructed, is not a nui- sance. But a bridge should be so erected as to do the least possible injury to navigation. At- torney General ». Patterson and Hudson Biver B. B. Co., 1 Stockton's Ch. (N. J.), 526, 1853; see Attorney General v. New York and Long Branch B. B. Co., 9 C. E. Green's Ch. (N. J.)y 59. 1873. 30. — The provision in the charter of a rail- way company authorizing it t9 bridge a navi- gable stream, provided that the navigation of the stream shall not be obstructed, is not vio- lated by a temporary obstruction of the stream by scaffolding, etc., in the construc- tion of the bridge. Memphis and Ohio B. B. Go. V. Hicks, 5 Sneed (Tenn.), 427. 1858. 31. — Congress has power to prevent the obstruction of a navigable river, which is a means of commerce between any two or more states. Works «. Junction B. B. Co., 5 Mc- Lean, 425. 1853. 32. — A public nuisance cannot be toler- ated on the ground that it is of advantage to a local community. lb. 33. — A draw bridge, although it unavoid- ably occasions delay, is not necessai-ily a nui- sance, lb. 34. — Where damages result from the un- lawful building of railway bridges and cause- ways, so as to interfere with navigation, the remedy is not by an application to the county commissioners, but by an action at law for the damages occasioned by such structures. Sogers v. Kennebec and Portland B. B. Co., 35 Me., 319. 1853. 35. Overflow. Arailroad company, build- ing and maintaining, as part of its road, a bridge across a river ,_ in such a manner as to obstruct the passage of the water, is liable to an action of tort by the owner of land thereby flowed, unless it shows that it has taken rea- sonable precautions to prevent unnecessaiy damage toliis land. Mellen «. Western B. B. Co., 4 Gray (Mass.), 301. 1855. 36. Post route. An act of congress de- claring " that a bridge shall be a lawful struc- ture, and shall be known and recbgnized as a _post route," sanctions the bridge, and makes it lawful as it then is. Tlie Chnton Bridge, 10 Wallace, 454. 1870. 37. — Such act abates a suit in equity brought praying for an injunction against the building of the bridge as a nuisance. lb. 38. — A law declaring lawful a bridge over the Mississippi, which obstructs the naviga- tion of the river, is not unconstitutional be- cause of the treaty with France, by whicfi its free navigation is secured. The Clinton Bridge, 1 Woolworth (U. S. C. C), 150. 1867. 60 BRIDGES. Repairs — States — Tolls. 39. Purchase. A corporation authorized by law to tiuild a bridge at a given point, may buy one already built, at tlie same point, if suitable for its purpose. TJuimpson ■». Ifew York and Harlem S. B. Co., 3 Sandford's Ch. (N. T.), 625. 1846. 40. Repairs. A corporation, purchaser of the " canals and public works of the state," subject to all contracts and arrangements heretofore made by act of Assembly, or oth- erwise, for or in respect to the use of such works ; " and required to " carry out the same with all persons interested therein, in the same manner as the commonwealth or its agents were required to do by law; " is bound to re- build a bridge, necessaiy to the public, which had been erected by the state over a canal when made, but which had fallen down since the purchase. Pennsylvania R. if. Co. v. Dtt- queme BorcniCgTi, 46 Penn. St., 223. 1863. 41. — "While the state owned the canal, the question of the necessity of the bridge was for the canal commissioners alone, because of the immunity of the state from suit; but when it passed to a private corporation, the question of necessity became one of private rights and in the jurisdiction of the courts. 76. 42. — And upon a failure of the corpora- tion to make the repairs, after notice from the proper public oflicers, they may make the necessary repairs and recover the expense thereof from the corporation in an action of assumpsit. /6. ' 43. — The facts in a particular case with regard to the negligent construction of a bridge and damage by floods — considered. Brown v. Mohawk and Hudson S. S. Co., 1 Howard's Cases (N. Y.), 53. 1847. 44. Right of way. In 1798 a charter for 100 years was granted to the E. T. Co. to erect abridge and maintain the same across the. Connecticut river, and the charter provided that no person should erect another bridge across said river within certain limits. Held, that the erection of a bridge for railway pur- poses exclusively within such limits was a violation of the charter of the E. T. Co., the railway bridge having been erected without compensation to the E. T. Co. That the fran- chise of the bridge company might be thus injured upon the payment of compensation. Bnjkld Toll Bridge Co. «. Hartford and New Haven R. R. Co., 17 Conn., 40, 1845; Same v. Same, ih.,i5i. 1846. 45. — Where the charter of the railroad company provided that the company should be holden to pay all damages that might arise to any person or persons; and that freehold- ers should assess the damages to those whose real estate might be taken or injured ; it was Tield, that a franchise issuing out of land was an incorporeal hereditament, which might be treated as real estate within the charter, and an injury done to it be the subject of assess- ment. Same v. Same, ib., 454. 1846. 46. States. It is competent for a state gov- ernment to authorize the erection of a bridge across a navigable river, at a point below where the coasting trade is carried on by li- censed vessels, provided that the bridge be built with a draw for the passing and repass- ing of vessels free of expense. People v. Rens- sellaer and Saratoga R. R. Co., 15 "Wendell (N. Y.), 113. 1836. 47. Stockholders. Any act of incorpora- tion, impairing the vested rights of a stock- holder in a bridge company, would not be binding upon him without his consent. His rights can only be taken for public use upon the payment of compensation. But long ac- quiescence will be considered as equivalent to consent. Qifford v. New Jersey R. R. Co., 3 Stockton's Ch. (N. J.), 171. 1854. 48. Street railways. The right of the commonwealth to widen tlie draw in a bridge belonging to it over a navigable stream, is not impaired by the fact that the widening will temporarily interrupt the use of the street railway of a corporation to which it has granted a right of way to run cars over the bridge. Middlesex R. R. Co. v. WakepeU, 103 Mass., 261. 1869. 49. Tolls. A charter authorizing tlie grantees to collect toll at the Augusta bridge, across the Savannah river, from persons going from the South Carolina side, provided that "the collecting of said toll shall not subject the railroad company or the community to the payment of double toll": Held, not to au- thorize the grantees to collect toll from per- sons going from the South Carolina side, as long as such persons are required to pay again at a gate on the Georgia side owned by the city council of Augusta. South Carolina R.R. Co. v. Jones, 4 Richardson's Eq. (So. Car.) 459. 1853. BROKER— CARRIAGE OF LIVE STOCK. 61 Commission — Evidence — Canal Lands — Injuries to Carriages. BROKER, 1. Commission. Tlie plaintiff contracted ■with the defendant to negotiate a loan of $100,000 to it, and did negotiate such a loan with one H., upon the condition that what the plaintiff's brother was owing H. should con- stitute a part of it, and this amount the plaint- iff expected to cash to defendant at the time the loan was made. Held, that this consti- tuted a sufficient compliance with the contract on the part of the plaintiff. Durkee «. Ver- mont Central R. S. Co., 39 Vt., 128. 1856. BY-LAWS. 1. Evidence. The by-laws of a corporation are not evidence for it against strangers who deal with it, unless such by-laws are brought home to their knowledge and assented to by them. Smith ». North. Carolina B. B. Co., 68 N. C, 107. 1873. CANALS. See Bkidses; Bminbkt Domaiit. 1. Canal lands. The state obtained from R. a grant of certain lands in perpetuity, and constructed a canal upon the same. Subse- quently the state sold the canal, and the ven- dee abandoned it. Held, that the lands did not revert to R. Robinson v. West Pennsylva- nia R. R. Co., 73 Penn. St., 316. 1873. 2. Railroads. Where a railroad company is authorized by statute to construct its road upon a particular route, a mere temporary in- jury to a canal which has been previously constructed, and which can be compensated in damages, is not sufficient to justify the granting of an injunction to stop the progress of the work. Hudson and Delaware Canal Co. V. New York and Erie R. R. Co., 9 Paige Ch. (N.Y.), 833. 1841. 3. — But if the railway is being constructed upon such route without authority, and such construction will probably injure the works of the canal company, an injunction will be granted to restrain the construction of the railway upon the route of the canal. lb. 4. — It is no objection to the construction of a railroad on the route of a canal that the road cannot be traversed by steam engines, after it is completed, without frightening the horses upon the towing path of the canal, so as to destroy the navigation of such canal. Such question cannot be raised until the rail- way company attempts to use steam instead of horses upon its road. lb. 5. State canals. The purchasers of the state canals, under act of April 31, 1858, took the same subject to all the provisions of the resolution of April 14, 1843, respecting the payment of the tolls collected at Williams- port, to the Williamsport and Elmira Railroad Company. Williamsport and Elmira R. R. Co. v. The CommoTmealth, 33 Penn. St., 288. 1859. CARRIAGES. - 1. Iiy'uries to carriages. A party will be responsible for damages occasioned by negli- gence or want of skill in a driver, or by the vicious temper of his horses where the latter belonged to him, or where the former was in his employment. Hart v. New Orleans and , Ca/rrollton R. R. Co., 1 Robinson (La.), 178. 1841. 2. — In an action for damages done to the plaintiff's carriage by an omnibus belonging to the defendant, it is not necessary that the plaintiff should prove the legal title of the^ omnibus in the defendant; public reputation and prima facie evidence of title is sufficient. lb. CARRIERS — COMMON. See BAaoAQB; Caeeiage of Mbbohastdisb ; Cae- BiAOE OF Live Stock;; Ikjtuby to Passengebs; Pabsbnoers. [The various matters pertaining to common carriers are distributed nnder different heads throughont this digest.] CARRIAGE OF LIVE STOCK. . See Caeeiab-e of Mbeohandise. I. CONTKACTS LIMITING THE CaRRIEK'S LIABILITY. II. Extent of cabhiek's liability. III. General matters. 62 CARRIAGE OF LIVE STOCK. Contracts Limiting the Carrier's Liability. I. OONTEACTS LIMITING THE CAERI- EE'S LIABILITY. 1. Agency. Where A. contracted to pay a certain price for cars to carry 400 cattle, anJ delivered a part, signing a contract restrict- ing the liability of the company, it will be presumed that other persons, who delivered the remainder of the cattle, acted as his agents, and had authority to sign similar con- • tracts. Illinois Central B. R. Go. v. Morrison, 19 111., 136. 1857. 2. Power to limit liability. A railroad company acting as a common carrier of live stock, cannot, by special contract, procure exemption from responsibility for losses aris- ing from its own neglect of the duties inci- dent to such employment. Welsh v. Pitts- , hurgh, Fort Wayne and Cliieago B. B. Co., 10 Ohio St., 65. 1859. 3. — Such common carrier is liable for damages resulting from defective and unsafe cars, or vehicles of transportation, notwith- standing an express contract to the contra- ry, lb. 4. — A contract exempting a railway com- pany from the consequences of its negligence does not exempt it from the necessity of fur- nishing suitable cars. Hawkins v. Great West- ern B. B. Co., 17 Mich. 57. 1868. 5. — A railroad company engaged in the business of transporting cattle, assumes all the responsibility of a common carrier; and it can limit such responsibility only to the same extent and by the same means as in the transportation of other property. Kansas Pacific B. B. Go. v. Reynolds, 8 Kan., 628. 1871. 6. — A common carrier may contract that the owner of live stock shall assume all risk of damage from whatever cause in the course of transportation. Belts v. Farmers' Loan and Trust Co., 31 Wis., 80. 1866. 7. Effect of contract. Where a contract for the shipment of live stock limits the lia- bility of a carrier to losses occurring from gross negligence, only the burden of proving gross negligence is upon the shipper. Bank- ard V. Baltimore and Ohio R. B. Co., 34 Md., 197. 1870. 8. — Defendant contracted to transport a lot of hogs for plaintiffs from B. to A. By the contract, in consideration of a reduced rate of freight, plaintiffs assumed the risks of injuries from heat, etc. Forty-three of the hogs died from the effects of the heat, the re- sult of the negligence of defendant's em- ployes in not watering and cooling the hogs by wetting. Seld, that as the common law liability of carriers did not apply to live stock, but in the transportation thereof they were only liable for negligence, to give effect to the stipulation in the contract, it must be construed as exempting defendant from inju- ries by heat, the result of negligence, and that therefore defendant was not liable. Cra- gin «. New York Central R. R. Co., 51 N. T., 61. 1873. 9. — Where the jjlaintiff signed a special contract for shipment of horses made by the defendant as a common carrier, in which was a clause that " the owner undertakes all risk of loss, injury, damage and other contingen- cies, in loading, unloading, conveyance and otherwise," and, as the plaintiff alleged, the defendant carelessly and willfully run the car containing the horses upon a side track, and kept them locked up for four days and nights without food or drink, and refused to permit them to be unloaded so that they could be fed .^ it being Impossible to feed them in the car ; by reason whereof the horses were nearly starved to death and thereby rendered compar- atively valueless ; it Was held, that an action by the plaintiff' against the defendant for dam- ages by reason of such acts, could not be sus- tained. Heineman v. Grand Trunk R.B. Co., 31 Howard's Pr. (N. Y.), 430. 1866. 10' — Although the shipper has contracted to assu'ne all risks occasioned by delay or other cause, this will not excuse the carrier from liability for deliberately causing cars loaded with cattle to be placed upon a side track, where the cattle can neither be unloaded nor fed and watered, and left there for three or four days. Keeney «. Grand Trunk R. R. Co., 59 Barbour, (X. Y.), 104. 1870. 1 1 . — A contract for shipping hogs pro vided that the company should not be liable for loss " by delay of trains, or any damage the property might sustain, except such as might result from a collision of a train, or when cars were thrown from the track in course of transportation." During the trip one car was thrown from the track by reason of a broken rail, while all the cars containing CARRIAGE OF LIVE STOCK. 63 Extent of Carrier's Liability. the hogs remained on the track. Meld, that the ooimoany was liable for whatever hogs were lost, or whatever shrinkage occurred by reason of the delay caused by the accident. Illinois Central R. R. Go. v. Omens, 53 111., 391. 1870. 12. — Where hogs were shipped by railway under a written contract providing that the shipper should take the risk of injuries which the animals might receive from heat, suffoca- tion or being crowded, it was held that the company was not liable for any loss arising from suffocation, although the contract was signed without a full knowledge of its con- tents, and although the company did not fur- nish suitable cars. Squire v. Neiw York Cen- tral R. R. Co., 98 Jlass., 239. 1867. 13. Rates. Where the contract exonerated the defendant from all liability for loss or damage that might happen from any other cause than willful negligence or fraud ; and stated that the rate of freight to be paid by the plaintiffs had been reduced in consequence of their assuming these risks ; held, that the de- fendant was not liable for damages to the plaintiffs' cattle arising from the cars being thrown off the track, without any willful neg- ligence on the part of the defendant or any of his agents. Lee v. Marsh, 48 Barbour (N. Y.),102. 1864 14. — The company offered to carry the dead stock through, if the owner, who accom- panied the train and was present at the acci- dent, would take charge of them, but he re- fused to do so: held, that the owners could not recover on the ground of the failure to de- liver the carcasses of the dead animals. lb. 15. — Certain cattle were delivered at Brady's Mills, to the Baltimore and Ohio R. R. Co., to be transported thence to Baltimore. The charge for transportation was paid in ac- cordance with a tariff of special rates under which, by the printed table, the company as- sumed no responsibility for loss, damage or delay to stock. A portion of the cattle were killed on the route, and others were injured. An action was brought against the railroad compimy bj'the owner of the cattle, to recover damages for their loss and injury. The com- pany claimed exemption from responsibility for the loss upon the ground that the trans- portation charges were paid under the tariff of special rates. Held, that this alone was not suflBcient — it was necessary to show that the owner of the cattle had notice or actual knowledge of these terms at the time, or be- fore the delivery of the stock by him to the railroad company for transportation, and that they were assented to by him. Baltimore and Ohio R. R. Oo. V. Brady, 32 Md., 333. 1869. 16. Snowstorm. Cattle were shipped un- der an agreement that the shipper should as- sume certain risks, including those caused by delay. The agreement provided that the ship- per should load and unload, the company fur- nishing assistance as required. At D., on the route, the train was delayed three days by a snow storm. The cattle could have been un- loaded by the construction of a platform, but the company declined to do this, and the cat- tle, in consequence, remained twenty-four hours in the cars, and some of them died in consequence. Held, that the provision for loading and unloading related to the terminus only, and that the company was not bound to furnish facilities at D. for unloading, and that the injury was attributable to the fault of plaintiff. Penn v. Buffalo and. Erie R. R.Oo., 49 N. Y., 204. 1872. 17. — Where, under a similar contract, a train loaded with cattle was left at an inter- mediate station two or three days, where they could not be fed, watered or unloaded, this was held to be an intentional abandonment of the contract of shipment by the company, constituting a breach of contract, for which it was liable. Keeney «. Grand Trunk R. R. Co., 47 ib., 525. 1872. II. Extent of caeeiers liability. 18. The liability of a common carrier of cattle is governed by the general legal princi- ple's applicable to the common carriage of other property. Rixford v. Smith, 53 N. II., 355, 1872 ; Ritz v. Pennsylvania R. R. Co., 3 Philadelphia Rep. (Penn.), 83, 1858. 19. — The liability of a common carrier of live stock is not, in all respects, the same as that of a common carrier of goods. Clarke . Great Wentern S. B. Co., 65 Barl)our (N. Y.), 619. 1873. 19. Delay. A railway company receiving goods from a connecting line to be forwarded, is liable for damages occasioned by delay, wben such delay is for the purpose of await- ing the arrival of a bill of back charges from the connecting line. Michaels v. New York Central B. B. Oo., 30 N. T., 564. . 18C4. 20. Delivery to next carrier. Where property is delivered to a railroad company, to be transported by that and another com- pany, over their respective roads, it is enough for the owner, in an action against the com- pany delivering the property, to recover dam- ages for negligence, to show that he delivered the property to the first company in good or- der, and the burden of proof is then cast upon defendant. Smith v. New York Central B. B. Co., 43 Barbour (N. Y.), 325, 1864; Same 1). Same, 41 N. Y., 630, 1869. 21. — 'When goods are delivered to a car- rier for transportation beyond the terminus of his line, and they are there delivered to another carrier to be forwarded, the latter is not liable for any damage to the goods, except upon proof that the injury occurred while they were in his custody. And it makes no difference that he received freight as agent for the other lines in addition to his own charges for transportation. Hunt v. New York and Erie B. B. Co., 1 Hilton (N. Y.), 328. 1856. 22. — A contract to ship goods from one point^to another with stipulation that the car- rier shall not be responsible if the goods are •'receipted for in good order" by an interme- diate carrier on the route, does not relieve the first carrier from his common law liability. Fatman v. Cincinnati, etc., B. B. Co., 2 Disney (Ohio), 248. 1858. 23. — "When goods are delivered to a com- mon carrier to be transported over his rail- road to his depot in a place named, and there to be delivered to a second line of convey- ance for transportation further on, the com- mon law liability of common carriers remains on the first carrier until he has delivered the goods for transportation to the next one. His obligation, while the goods are in his depot, does not become that of a warehouseman. Bailroad Co. v. Manufacturing Co., 10 Wallace, 318. 1873. 24. — A.n agreement to carry goods from A. to B., and to deliver them at B. to another carrier, is complied with when the goods are delivered to such carrier at B. And this is true although the goods are directed to a point beyond B. Marshall v. New York Cen- tral B. B. Co., 45 Barbour (N. Y.), 503. 1866. 25. — Arailroad company, receiving goods for transportation to a place, situated beyond the line of its road, on another railroad with which it connects but with ^e i)roprietors of which it has no connection in business, and taking pay for the transportation over its own road only, is not liable, in the absence of any special contract, for the loss of the goods, after their delivery to the proprietors of the other railroad. Nutting «. Connecticut Bitev B. B. Co., 1 Gray (Mass.), 503. 1854. 26. — If an arrangement or course of busi- ness exists between two railroad companies whose roads are ujion the same general route, but do not actually connect witli each other, by which goods, which have been carried to the termination of one road, and are destined to some point upon or beyond the line of the other, are delivered to the second company with a bill of the expenses already incurred, from which, if found to be correct, a way bill is made out, the second company is only re- sponsible as a warehouseman, and not as a common carrier, for goods so received and stored by it, until the deliveiy of the bill of expenses. Judson «. Western B. B. Co., 4 Allen (Mass.), 520. 1862. 27. Duty of connecting carriers. Where goods are shipped and must pass through the hands of several intermediate carriers before arriving at the place of their destination, the duty of each, intermediate carrier is to transport the goods safely to the end of his route, and deliver them to the next carrier on the route beyond. McDonald v. Western B. B. Co., 84 N. Y., 497. 1866. 28. — An intermediate carrier, in such case, does not relieve himself from liability by simply unloading the goods at the end of his route, and storing them in his warehouse, without delivery or notice to, or any attempt to deliver to, the next carrier. lb. 29. — In the absence of any contract, a railway company is not bound to carry goods beyond its terminus, but if the goods are di- rected to a point beyond its terminus, it is CARRIAGE OF MERCHANDISE. 71 Connecting Lines. bound to deliver them to the proper custody to ensure their transportation. Rome S. B. Co. «. Sullivan, 25 Ga., 228. 1858. 30. Evidence; goods lost beyond route of carrier. Instructions given by the pur- chaser of goods to the vendor, as to the man- ner of marking and shipping them, are not admissible in evidence for the plaintiff, in an action by the purchaser against the common carrier, who undertook to transport them. Angle & Go. ii. Mississippi and Missouri R. R. Co., 9 la., 487. ' 1859. 31. — In an action against a common car- rier for loss of goods on a receipt or bill of lading, showing the destination of the goods to a point beyond the route of the carrier, it was held, that parol evidence is admissible to show the termini of such carrier's route, the usage as to carrying beyond the same, and the knowledge of such termini and usage by the consignor; and such usage, when known to the consignor, was held to enter into and form a part of the contract evidence by the bill of lading. lb. 32. Instructions. A common carrier who undertakes to transport goods over the whole or any part of his own route, and then to for- ward them to a designated destination be- yond, is bound to transmit, with their deliv- ery to the carrier next en route, all special in- structions received by him from the con- signor; and will be held liable for neglect to do so. Little Miami R. R. Co. «. Washburn, 22 Ohio St., 324. 1872. 33. Joint liability. Where two railway companies are sued on a joint contract for transportation, evidence, offered by one of them to prove that the other neglected to fur- nish cars is immaterial. Sisson v. Cleveland and Toledo S. R. Co., 14 Mich., 489. 1866. 34. — Where several parties are associated for the transportation of freight from Louis- ville to New York, executing through bills of lading, and charging through freight, they will each be chargeable as common carriers between those points. Cincinnati, Hamilton and Dayton R. R. Co. v. Spratt, 2 Duvall (Ky.), 4. 1865. 35. — Where several common carriers are associated in a continuous line of ti-ansporta- tion, and in the course of the business, goods are carried through the connected line for one price, under an agreement by which the freight money is divided among the asso- ciated carriers, in proportions fixed by the agreement; if the carrier at one end of the line receives goods to be transported through marked for a consignee at the other end of the line, and on delivery of the goods takes pay for transportation through, the carrier, who so receives the goods, is bound to carry them, or see that they are carried, to their final destination, and is liable for an acciden- tal loss happening in any part of tlie con- nected line. Nashua Lock Co. v. Worcester and Nashua R. R. Co., 48 N. H., 339. 1869. 36. Marks. When railroad companies re- ceive goods to carry, marked to a ijarticular place, they are bound, prima facie, under an implied agreement from the mark or direc- tion, to carry to and deliver at that place, al- though it be a place be3''ond their own lines of carriage. Illinois Central R. R. Co. v. Frankmberg, 54 111., 88. 1870. 37. — In the absence of any contract, a railway company, it seems, is not liable for losses of goods occurring beyond its own line, although the goods are received by it marked for a particular destination beyond such line. Jenneson v. Camden and Amboy R. R. Co., 5 Penn. Law Jour. Rep., 409. 1856. 38. — In England, the rule is that where a railroad company, as a common carrier, re- ceives property destined and directed 'for a point beyond its line, it is bound to deliver it to its place of destination without any con- tract to that effect; but, in the LTnited States, the rule is established in most of the states, including Vermont, that a railroad company is liable for loss or injury occurring bejond the termination of its road only when it stipu- lates to deliver the property to a point beyond. Morse v. Brainerd, 41 Vt., 550. 1869. 39. — Where a railroad company received a box of goods for transportation, directed to a place beyond the terminus of its own road, and gave a receipt therefor, as follows : " Vt. Cent. R. R. Co., "Burlington, Sep. 13, 1866. [Mark and numTjers.] Eec'd from W. E. Lewia W. E. Lewis, Brooklyn, Iowa. 1 box, weight 350, "Numbered and marked as above, which the company promises to forward by its road, and deliver to or order, at its depot in , he or they first paying freight, etc. N. B. If merchandise be not called for on its ar- 72 CAKRIAGE OF MERCHANDISE. Connecting Lines. rival, it will be stored at the risk and expense of the owner." Held, that this was a contract to carry the goods to Brooklyn, Iowa. Cutis v. JBrainerd, 43Vt., 566. 1870. 40. — A corporation established to trans- port goods for hire between certain places, and receiving goods directed to a more dis- tant place, is not responsible, beyond the end of its own route, as a common carrier, but only as a forwarder, unless it makes a posi- tive agreement extending its liability. Bur- roughs V. Norwich and Worcester B. B. Co., 100 Mass., 26. 1868. 41. — When a carrier receives goods to carry, marked for a particular place, he is bound, under an implied agreement from the mark or direction, to carry to and deliver at that place, although it be a place beyond his own line of carriage. Illinois Central B. B. Co. V. Johnson, Z^ 111., 389, 1864; see JKmojs Central R. B. Co. v. Cowles, 32 ib., 116. 1863. 42. — Where a railroad company receives, for transportation, property addressed to a person at a point beyond the terminus of its road, it will be presumed to have agreed to deliver the property, in the same order and condition in which it was received, to the consignee. li'oy v. Troy and Boston B. B. Co., 24 Barbour (N. Y.), 382. 1856. 43. Presumption. In the absence of proof of authority to contract as agent for connect- ing lines, a carrier, which receives charges for carriage to places on such lines, is pre- sumed to contract for the whole distance on Its own account. Condict v. Grand Trunk B. B. Co., 4 Lansing (N. Y.), 106. 1871. 44. Rights of carriers. A railroad com- pany cannot be compelled, as a common car- rier, to receive goods at stations along its line for transportation, on the requirement of the consignor that it shall deliver the goods at a point beyond or off its own line of road. People ex rel. v. Chicago an^ Alton B. B. Co., 55 111., 95. 1870. 45. Set-off. In an action by a railroad company to recover freight of goods over a continuous line of transportation, of which its road forms a part, and the freight for which transportation is to be divided among the proprietors of the different parts of the line in certain stipulated proportions, the de- fendant may set off damage to the goods by the fault of the carrier on any part of the line. Fitehlurg and Worcester B. B. Co. v. Hanna, 6 Gray (Mass.), 539. 1856. 46. Statutes. The provision of the statute, that "whenever two or more railroads are connected together, any company owning either of said roads receiving freight to be transported to any place on the line of either of said roads shall be liable as common car- riers, for the safe delivery of such freight at such place," was intended to apply only to the company originally receiving the goods. Smith V. New York Central B. B. Co., 43 Bar- bour (N. Y.;, 225. 1864. 47. — A common carrier, who ships goods over a part of his route on a vessel which he does not own or charter, is not relieved from liability by the U. S. St. of 1851, ch. 43, if the goods are destroyed by an accidental fire oa the vessel. Hill M'fg Co. «. Boston arid Low- ell B. B. Co., 104 Mass., 123. 1870. 48. — By the act of 1847 (ch. 270), each successive railroad company forming a link in the chain of communication between the place of freighting and the place of destina- tion, which agrees to convey property beyond the terminus of its own road, and receives the goods under such an agreement, is liable, as a common carrier, for the delinquencies of each of the other roads running in connection with it, over which the property shall subse- quently pass on the route to the place of de- livery. Boot V. Oreat Western B. B. Co., 2 Lansing (N. Y.), 199. 1869. 49. Streetage. Where the defendant ac- cepted oats for transportation from Baltimore to Washington, and charged, in addition to the ordinary freight charges, for streetage to the foot of Sixth street, it was Jield, that the carrier was bound to deliver the goods at that point. Such djity, although not within the common law liability of the carrier, is the result of the implied agreement resulting from receiving payment therefor. Baltimore and Ohio B. B. Co. v. Green, 25 Md., 73. 1866. 50. Transportation companies. Where flour was brought to Ogdensburg by the N. T. Co., consigned to the plaintiffs at Concord, and to go over the railroad of the N. R. R. Co., and was deposited in a storehouse under the control of the N. T. Co. : and, according to the course of business for six or seven years, a clerk of that company forwarded to CARRIAGE OF MERCHANDISE. 73 Connecting Lines. plaintiffs a way bill marked " duplicate," and headed " K.R.R.Co.," and dated " Ogdensburg Depot," but not signed by any one, reciting that said company had received the flour, and promising to deliver it to the consignees, sub- ject to charges ; and at the same time sent a duplicate way bill to the N. R. R. Co., which was entered by that company in its books ; and the N. T. Co. also drew upon the con- signees for the freight to Ogdensburg ; after which, communications were had between the agents of the N. R. R. Co. and the consignees, without reference being had to the N. T. Co. ; after which the flour was destroyed by Are ; and defendants, being the trustees of the rail- way company, did not deny the receipt of the flour until after the suit had been brought. Held, that if the defendants had knowledge of such way bills at the time they were sent, they would be estopped from denying that they had received the flour. Bart&r & Co. v. WlieeUr, 49N. H., 9. 1869. 61. — It was for the jury on this evidence to find all the facts necessary to constitute such estoppel. lb. 52. — That-while the flour was held at Og- densburg waiting means of transportation, de- fendants held it as common carriers. lb. 53. — That where several companies aeso- ciate and form a continuous line of carriers for the whole line, they are each jointly and severally liable for losses occurring on any part of their line. lb. 54. — That where goods are delivered to a transportation company to be carried over its route over several railroads, an intermediate company is liable for the loss of goods hap- pening on its part of the line. lb. 55. — When a contract is made to carry goods over such a line, extending through dif- ferent states, and a loss occurs, the rights of the parties will be governed by the laws of the state where the loss happens. lb. 56. When liability attaches. When freights received by one railroad are to be carried over connecting roads, in the car in which they are shipped, without being transshipped to the cars of the connecting road, the liability of the connecting road does not commence till the car is delivered to, and received by the lat- ter ; and the first carrier is liable to the ship- per till it shows such delivery. Borne B. B. Co. V. Sloan, 39 Qa., 636. 1869. 57. — Ordinarily when goods are shipped to be transported by several successive and connecting lines, they are to be considered in transit until they reach their final destination, and the peculiar liability of a common carrier exists continuously, although, for the conve- nience of the successive carriers, the goods may be temporarily deposited in depots or warehouses on the route. And the carrier in whose possession they are when destroyed or injured, is liable, as such, to the owner or con- signee for the loss. Wood v. Milwaukee and St. Paul B. B. Co., 27 Wis., 541, overruled as to these points. Gonkey v. Milwaukee and St. Paul B. B. Co., Si Wis., 619. 1873. 58. — Where a steamboat connected with a railway at a wharf and certain goods were being transferred from the boat to the cars, the employes of both the boat and railway com- pany acting in concert in the transfer, and before all the goods had readied the wharf, a fire broke out which stopped the work and destroyed the boat, wharf, cava and goods, it was held, that the railway company was not liable for any of the goods destroyed upon the boat. Gass v. New Tork, Providence and Boa- ton B. B. Co., 99 Mass., 220. 1868. 59. — If an arrangement is made between several connecting railroad companies, by which goods to be carried over the whole route shall be delivered by each to the next succeeding company, and each company so receiving them shall pay to its predecessor the amount already due for the carriage, and the last one collect the whole from the con- signee, a reception of such goods by the last company, and a payment by it of the charges of its predecessor, will not render it liable for an injury done to the goods before it received them. Purling v. Boston and Worcester B. B. Co., 11 Allen (Mass.), 295. 1865. 60. When liability terminates. The doc- trine that when goods have arrived at their destination and been stored in the company's warehouse that the liability of the carrier ceases does not apply where the goods are consigned to a point beyond the company's route. Hooper v. Chicago and Northwestern J?. iJ. Co., 27 Wis., 81. 1870. 61. — In an action on the case, founded on the legal liability of a railroad corporation as a common carrier to recover for the loss of goods directed to N. Y., a place situated be- 74 CARRIAGE OF MERCHANDISE. Contract Limiting Liability. yond the terminus of such road, the declara- tion alleged that the defendant was a common carrier to N. Y. On the trial, it was admitted that the goods had been transported safely over the defendant's road and deposited on board a steamboat for N. Y., where they were burned. The plaintiff gave in evidence the defendant's charter containing the permission aforesaid, also an advertisement, published in a newspaper, stating that freight would be billed by the defendant to N. T., and evi- dence that the plaintiff had been in the prac- tice of sending freight to N. Y. over the de- fendant's road from the time it went into op- eration, and that the defendant had made no demands of the plaintiff for the freight of said goods, and then rested its cause. The defend- ant thereupon moved for a nonsuit which was granted. Held, that such nonsuit ought not to be set aside. Naugatuck B. B. Co. v. WatevTmry Button Co, 24 Conn., 468. 1856. 62. — Where a common carrier conveys goods over only a portion of the route be- tween the points of shipment and consign- ment, and holds them for delivery to some connecting carrier, the latter is the owner's or consignee's agent to receive the delivery; and the liability of the former as a common car- rier continues until the goods are ready for delivery to such agent, and he has had a reasonable time to take them away. Citing Schneider v. Evans, 25 Wis., 241; Wood v. Crocker, 18 Wis., 345 ; Wood u. Milwaukee and St. Paul B. B. Co., 37 Wis., 541. 1871. 63. — Such " reasonable time " is the ear- liest practicable time after the first carrier is ready for delivery, and is not measured by any peculiar circumstances in the condition of the second can-ier requiring for its convenience that it should have a longer time. Ih. 64. — Subject to these legal principles, the question as to what is a reasonable time is for the jury. lb. 65. — Where the uncontradicted evidence for the plaintiff fails to show that the goods were not ready for delivery long enough be- fore the accident to afford a reasonable op- portunity for their removal, it is error to take from the jury the question whether the de- fendant carrier's liability was simply that of a warehouseman. lb. 66, — It is not necessary to show a written or oral notice that the goods were ready for delivery; but notice may be implied from the course of dealing between the parties, or the customer usage of business. lb. 67. — In the absence of any special agree- ment, or custom, where goods are deliv- ered to a carrier to be transported to a point beyond his route, his duty as a carrier is not terminated by storing the goods in his ware- house at the end of the route. Irish v. Mil- waukee and St. Paul B. B. Co., 19 Minn., 376. 1872. 68. — Where the defendant has contracted to carry cotton and deliver the same in Charleston, it cannot avoid liability by show- ing that it safely delivered the goods, at its terminus, to another company for shipment to Charleston. Ky^^ v. Laurens B. B. Co., 10 Richardson's Law (So. Car.), 382. 1857. II. Contract limiting liability. 69. Bill of Lading. It is not competent to limit the liability of the carrier by merely proving a usage on his part In giving bills of lading exempting him from certain classes of losses. Illinois Central B. B. Co. ■». Smyser, 38 111,, 354. 1865. 70. — Although a common carrier may issue a bill of lading, containing provisions restricting his common law liability, that is not conclusive upon the shipper, but he may show by parol that there was a different prior verbal agreement, under which the goods were shipped. Baker v. Michigan Southern and Northern Indiana B. B. Co., 42 111., 73. 1866. 71. — If a carrier has acted under a bill of lading as delivered to the shipper and accept- ed by him, and a loss occurs from one of the perils mentioned in such bill, exempting the carrier from liability, no recovery can be had therefor. Bostwick v. Baltimore and Ohio B. B. Co., 55 Barbour (IT. Y.), 137. 1869. 72. Connecting lines. Where one railway company receives goods from another, to be carried under a contract between the latter company and the owner, it is entitled to the benefits of any stipulations in such contract affecting the liability of the carrier. Man- Mttan Oil Co. v. Camden and Amboy B. B. Co., 53 Barbour (N. Y.), 73, 1868; Same 7>. Saml, 5 Abbott's Pr., N. S. (N. Y.), 289, 1868; Same V. Same, 54 N. Y., 197, 1873; Lamb v. Cam. CAREIAGE OF MERCHANDISE. 75 Contract Limiting Liability. den and Airiboy B. R. Go., 2 Daly (N. Y.), 454, 1869 ; Maghee v. Camden and Amboy JR. B. Co., 45 N. Y., 514, 1871 ; Babeock ». Lahe Slwre and MicTiigan Southern B. B. Co., 43 Howard's Pr. (N. Y.), 317, 1872. 73. — Where a company has become liable under a contract for the shipment of goods over its own and other lines of road forming a continuous line, a contract or notice limit- ing its liability as to negligence on any such connecting line, is void as against public policy. Cincinnati, Hamilton and Dayton B. B. Go. V. Pontius, 19 Ohio St., 231. 1869. 74. — When a bill of lading made in To- ledo, O., by a common carrier by water, stip- ulated to deliver the goods to the consignee at Concord, N. H., " the damages of navigation, flre and collision on the lakes, rivers and ca- nal excepted, it was lield, that this limitation did not extend to losses by flre on the rail- roads. Barter & Co. v. Wheeler, 49 N. H., 9. 1869. 75. — Where a common carrier has trans- ported freight under a special contract limit- ing liis liability, and by which he undertook for an agreed compensation to carry it to the terminus of his route, and then deliver it to another carrier, lie has no authority to enter into a special contract on .behalf of the owner with the next carrier, limiting or restricting the liability of the latter. Babeock v. Lake Shore and Michigan Southern B. B. Co., 49 N. Y., 491. 1872. 76. — A railroad company may limit its liability as a common carrier to the line of its own road, by express contract, although the goods may have been received under a contract to send them to a point beyond the line of such company. Detroit and Milwau- kee B. B. Go. 11. Farmers' and Millers' Bank, 20 Wis., 123, 1865 ; Chicago and Northwestern B. B. Go. V. Montfort, 60 111., 175, 1871. 77. Effect of such contract. In a bill of lading, or receipt for freight, given by a rail- road company, an exception in these words, " taken at the owner's risk," only exempts the company from liability as an insurer. Mobile and Ohio B. B. Co. v. Jarboe, 41 Ala., N. S., 644. 1868., 78. — A contract by a railway company limiting its liability as a carrier, does not re- lieve it from ordinary care in the performance of its duty. The most that it can do is to re- lieve the company from those conclusive pre- sumptions of negligence which arise when an accident happens that is not inevitable, and to require that negligence be actually proven. 0-oldey v. Pennsylvania B. B. Co., 30 Penn. St., 343. 1858. 79. — A clause in a bill of lading, given to a shipper of goods by a common carrier, exempting the carrier from liability for loss of the goods from certain causes, is binding upon the shipper, as a special contract be- tween the parties. Steinweig i>. Erie B. B. Co., 43 N. Y., 133. 1870. 80. — But where such clause releases the carrier " from damage or loss to any article from or by fire or explosion of any kind," it does not release him from liability for damage by those means, resulting from his own neg- ligence, lb. 81. Eire. A bill of lading exempting a carrier from liability for " damage or loss by fire," will not exonerate the carrier from a loss by fire occasioned through his negligence. Zamb V. Camden and Amboy B. B. Co., 46 N. Y., 371. 1871.- 82. — A bill of lading contained "the dan- gers incident to railroad transportation, fire and all other unavoidable accidents excepted ;" 7ield that the exception of loss by fire was a limitation on the common law liability of car- riers. Colton «. Cleveland and Pittsburg B. B. Go., 67 Penn. St., 311. 1870. 83. — The goods having been burned, the burden of proof to show negligence was on the transporter. lb. 84. — The exception was of fire, unavoid- able or not, vinless it was by the negligence of the carrier, which cannot be provided against in a contract. lb. 85. — The exceptions restricted the liabil- ity of the carrier to that of a private carrier, and rendered it liable only for a want of or- dinary care and skill. lb. 86. — Where a contract limiting the lia- bility of the carrier was made, stipulating that the cariiier should not be liable for loss by fire, and a delay of six days was made in the shipment by reason of a disagreement be- ' tween it and a connecting line, it was held, that the delay was unreasonable and that the carrier was liable for a loss occurring by flre during such delay. Condiet v. Grand Trunk B. B. Co., 54 N. Y., 500. 1873. 76 CARRIAGl!; OF MERCHANDISE. Contract Limiting Liability. 87. Illegal contracts. Tlie validity, na- ture, obligation and interpretation of a con- tract is, as a general rule, to be governed by tbe law of the place of performance; if the contract is void- and illegal there, it will be so held everywhere. McDaniel v. Chicago and Northwestern R. iJ. Co., 24 la., 413. 18C8. 88. — Where a railway company under- took to transport from the city of Clinton and to deliver in Chicago a certain lot of cat- tle, it was held, that the contract being entire, and made and to be partly performed in this state, must be interpreted in accordance with the laws of this state. Ih. 89. — Therefore where the liability of the company as a carrier was limited by a stipu- lation inserted in it, such stipulation was void under ch. 113 of the laws of 1866. lb. 90. Instrnctions. When a carrier accepts goods to be carried, with a direction on the part of the owner to carry them in a particu- lar way, or by a particular route, he is bound to obey such directions, or he cannot avail himself of any exception in the contract. Maghee v. Camden and Arriboy B. B. Co., 45 N. y., 514. 1871. 91. Negligence. Where an agreement is relied upon to exempt a common carrier from liability on account of the gross negligence of his employes, the terms of the contract ought to be so clear and explicit as to leave no doubt of its meaning. French v. Buffalo, New York and Erie B. B. Co., 4 Keyes (N. Y.), 108. 1868. 92. — Carriers may limit their liability at least against ordinary negligence. Baltimore and Ohio B. B. Co. v. Skeels, 3 W. Va., 556, 1869 ; Hannibal B. B. Co. u. Swift, 13 Wallace, S62, 1870. 93. — Where the agreement between the common carrier and the owner of the goods provides, in general terms, that the same are transported at the " owner's risk," the carrier is liable only for damages resulting from his own personal negligence, or from the gross negligence of his employes. French v. Buf- falo, New York and Erie B. B. Co., 4 Keyes (N. Y.), 108. 1868. 94. — A common carrier may, by contract, restrict his liability even for gross negligence. Baltimore and Ohio B. B. Co. v. Bathbone, 1 W. Va., 87. 1865. 95. — A railroad company may restrict its liability by special agreement, the carrier be- ing still held responsible for gross negligence or willful misfeasance. Illinois Central B. B. Co. a. Smyser, 38 111., 354. 1865. 96. — The terms, " at owner's risk," in a bill of lading, in connection with other stipu- lations, Iield, to exempt the carrier only from ordinary negligence. Baltim/>re and Ohio B. B. Co. V. Bathbone, 1 W. Va., 87. 1865. 97. — A special contract of a common car- rier that he shall not be liable for breakage, operates only to relieve him from his liability as insurer, and leaves him responsible for or- dinary negligence, as any other bailee for hire. Missouri Valley B. B. Co. v. Caldwell, 8 Kan., 344. 1871. 98. Power to make such contracts. A common carrier may limit his common law liability by contract. Wallace v. Matthms, 30 Ga., 617, 1869; Thayer v. at. Louis, Alton and Terre Haute B. B. Co., 22 Ind., 26, 18G4; Illinois Central B. B. Co. v. Frankenberg, 5t 111., 88. 1870. 99. — A stipulation by which the consignor agrees to assume all risk of loss or damage by fire, does not relieve the company from lia- bility for a loss by fire caused by the negli- gence of its servants; and if placing the goods on an open, uncovered car, constitutes negligence, notice to the consignor, at the time of the shipment, that they would be car- ried on such a car, would not relieve the com- pany from liability for the loss. Montgomery and West Point B. B. Co. n. Edmmds, 41 Ala., N. 8., 667. 1868. 100. — A common carrier cannot contract against liability for loss from his own ordi- naiy negligence. Such a condition is void as against public policy. Indianapolis, Pitts- burg and Cleveland B. B. Co. v. Allen, 31 Ind., 394, 1869 ; Michigan Southern and Northern Indiana B. B. Co. v. Heaton, 37 Ind., 448, 1871. 101. — A contract limiting the liability of a carrier will not excuse him from the efiFects of his negligence. Lamb v. Camden and Am- boy B. B. Co., 3 Daly (N. Y.) 454, 1860; Pennsylvania B. B. Co. v. McCloskey, adm'r, 23 Penn. St., 526, 1854; School District in Med- field V.Boston, Hartford and Erie B.B.Co., 103 Mass., 553, 1869 ; Urdm Mutual Int. Co. 11. Indianapolis and Cincinnati B. B. Co., 1 Disney (Ohio), 480, 1857; York Manufactur- CARRIAGE OF MERCHAKDISE. 77 Contract Limiting Liability. ing Co. v. Illinois Central S. B. Co., 1 Bissell (U. S. C. C). 377, 1862; Woodward v. Illinois Central. R. B. Co., ib., 447, 1864; Farn?iam B. Camden and Amboy B. B. Co., 55 Penn. St., 53. 1867. 102. — A bill of lading limiting Ihe re- sponsibility of the carrier, signed by bis agent, delivered to the shippers, accepted by them and sent to their agent as authority to receive the goods, shows terms on which the shippers shipped the goods, and on which they were received. Ib. 103. — Whei'e, in such case, the goods are transported to the place of destination, put into the shed of the carrier on its wharf, where it had four watchmen, and a fire, from an unknown cause, took place in its steam- boat lying at the wharf (the boat being fully manned), which consumed the goods; held, that the burden of proof of negligence was on the shipper. Fwrnliam «. Camden and Am- hoy B. B. Co., 55 Penn. St., 53. 1867. 104. — A contract to exonerate a carrier from all damage that " might happen " to the goods, will not release him from the effect of his negligence or misconduct. Sager v. Ports- mouth, etc., B. B. Co., 81 Me., 228. 1850. 105. — The burden of proof to show neg- ligence or misconduct in such case, is on the plaintiff. Ib. 106. — The common law liability of a common carrier for the safe carriage of goods may be limited and qualified by special con- tract with the owner ; provided such contract do not attempt to cover losses by misconduct or negligence. TorkGompanyv. Illinois Cen- tral B. B: Co., 3 Wallace, 107. 1865. 107. — Thus a contract to exempt a com- mon carrier from loss by fire was held valid, the fire not having been occasioned by the fault or negligence of the carrier. Ib. 108. — When the responsibility is limited by special contract, the burden of proving negligence is on the shipper. Kansas Pacifii B. B. Co. 1). Beynolda, 8 Kan., 628. 1871. 109. Notice to limit liability. A notice limiting the liability of a carrier, even though brought home to the knowledge of the ship- per, will not exempt the carrier from liability for negligence. Blumenthall v. Brainerd, 38 Vt., 402. 1866. Mannv.£irc7iard,iO il).,S26. 1867. 110. — If such notice could limit the lia- bility of the carrier, knowledge of it in other transactions by the agent of the owners of the goods, in this transaction, would not affect the principals. A notice to the agent to bind the principal must be in the same transac- tion. Ib. 111. — Although a carrier's liability may be limited by express contract, a general no- tice will not have that effect, even though brought home to the knowledge of the ship- per. 76. 112. — The common law liability of a common carrier may be restricted by a notice from him, brought to the knowledge of the owner of the goods. Sager v. Portsmouth, etc., B. B. Co., 31 Me., 228. 1850. 113. — But no notice or contract will ex- onerate the carrier from the effects of his mis- conduct or negligence. Ib. 114. — A common carrier cannot limit his liability by a notice brought home to the knowledge of the shipper. Moses ii. Boston and Maine B. B. Co., 32 N. H., 523, 1856; Bailroad Co. v. Manufacturing Co., 16 Wallace, 318, 1872; Michigan, Central B. B. Co. v. Sale, 6 Mich., 243, 1850. 115. — The common law liability of a common carrier may, however, be restricted by a special contract. The case of the Michi- gan Central B. B. Co. ii. Ward, 2 Mich., 538, overruled. Ib. 116. — A public notice will not discharge a common carrier from his legal liability to answer for an accidental loss or destruction of the goods in his possession. Moses v. Bos- ton and Maine B. B. Co., 24 N. H., 71. 1851. 117. — Although a common carrier can- not, bj' a general notice to such effect, free it- self from all liability for property by it trans- ported, yet by notice brought to the knowl- edge of the owner, it may reasonably qualify its liability. Smith v. North Carolina B. B. Co., 64 N. C, 235. 1870. 118. — A common carrier may, by special contract with the owner of the property to be transported, so change his relation as to be- come a private carrier; but a general notice to the public will not be evidence of such contract, even if the existence and contents of such notice are brought home to the party. Kimball v. Butland and Burlington B. B. Co., 26Vt., 247. 1854. 119. — But where the company has one 78 CARRIAGE 01? MERCHANDISE. Contract Limiting Liability. rate of transportation Tvithout tlie risk of a common carrier, and a higher rate with such risk, if the owner of the property elect to pay the lower rate, he cannot hold the company as a common carrier. lb. 120. — A notice to restrict the common law liability of a carrier, which was given by the carrier to a person who was simply di- rected by the owner to deliver the goods to the carrier, was held insuflBcient, in the ab- sence of any knowledge of, and assent to, such notice, on the part of the owner. Fille- brown «. Grand Trunk B. B. Co., 55 Me., 462. 1867. 121. — Though a railway company may limit its liability by notice, yet the terms of the notice must be clear and explicit, and the person with whom the carrier deals must have knowledge of the terms of the notice; and where the notice is in the English lan- guage and the passenger is a German, it is in- cumbent upon the carrier to prove the knowl- edge by the passenger of the limitation in the notice. Camden and Amboy B. B. Co. v. Baldauf, 16 Penn. St., 67. 1851. 122. — "Where the notice is printed upon a ticket, it must be in a language understood by the passenger, or else it must be explained to him. lb. 123. — Carriers c.innot, by special agree- ment, discharge themselves from ordinary care. lb. 124. — A portion of a certain quantity of wool was delivered to the D. and M. B. R. Co. ty the owner, and received by the agent of the company for transportation, with the under- standing that the balance should be sent to the depot as soon as the company should give notice that cars were ready to ship it. The owner sent up the wool, which was accepted by the company, whereupon the owner signed a shipping request furnished to him, to the effect that said company would forward all of said wool, according to certain specific conditions endorsed thereon, and limiting the company's liability. Part of the wool was lost before the balance was shipped. Held, that whatever might have been the effect of such a notice, if given before the delivery of the property at the depot, it came too late to affect the question of a prior delivery to and acceptance by the company as a common car- rier. At the time of the receipt of the no- tice, plaintiffs had a right to consider it as intended to refer only to the liability of the company in respect to the carriage of the property. Detroit and Milwaukee B. B. Co. v. Adams, 15 Mich., 458. 1867. 125. Receipt. If a shipper takes a receipt for his goods from the carrier, containing conditions limiting the liability of the car- rier, with a full knowledge on the part of the shipper of such conditions, and intending to assent to the restrictions contained in them, it becomes his contract as fully as if he had signed it. Illinois Central B. B. Co. v. Frank- enberg, 54 111., 88. 1870. 1 26. — Plaintiffs agreed with a common carrier of freight for the transportation of certain bales of cotton at a specified rate of freight. At the time the agreement was made no bills of lading or shippers' receipts were given by the carrier, but after the goods had been shipped, receipts were sent to the ship- pers containing a clause exempting the car- rier from liability for loss by fire, but this clause was not brought to the notice of the shippers until after the cotton had been de- stroyed by fire. Held, that the carrier was liable for the loss. Lamb v. Camden and Am- boy B. B, Co., 4 Daly (N. T.), 483. 1873. 127. — The acceptance from a carrier of a receipt for goods in which is a clause limit- ing its liability. Is only prima facie evidence that the owner assented to the conditions. Strdhn v. Detroit and Milwaukee B. B. Co., 31 Wis., 554. 1867. i 28. — If the owner had previously en- tered into a parol agreement, he had a right to presume that the receipt contained nothing contrary to that agreement. 76. 129. — The plaintiffs should have been per- mitted to prove that the goods were delivered under such oral agreement, and that the re- ceipt was not delivered until some days after- wards, lb. 130. — A carrier may stipulate for a limi- tation of liis responsibility, so far as he is an insurer against losses by accident or mistake ; but he cannot exempt himself from losses caused by neglect of that degree of diligence which the law casts upon him or his charac- ter of bailee. Public policy and fair dealing cannot be frustrated by the design and cir- cumvention of artfully prepared printed re- ceipts thrust upon the public, without the op- CARRIAGE OF MERCHANDISE. 79 portunity of fair assent, in the press and hurry of railroad travel. Lettering v. Union Trans- portation and Ins. Co., 42 Mo., 88, 1867 ; see also Frencli v. Buffalo and Erie B. JR. Co., 2 Abbott's Ct. of Ap. Dec. (N. Y.), 196, 1868. 131. Release. A release of all damages that migh; occur within one year from the date of the release was held valid. McCann V. Baltimore and Ohio B. B. Co., 20 Md., 202. 1863. 132. Statute. The parties may fix such reasonable rates as they may agree upon, and they may make such limitations to the liabil- ity of the carrier as they think proper. The railroad act of 1850 does not fix the terms of shipment. Nelson v. Hudson Biver B. B. Co., 48N. T., 498., 1873. 133. — The General Railroad Law (Session Laws 1855, p. 173), docs not prevent a railway company from restricting, by special contract, its common law liability as a carrier. Mc- Millan V. MicJiigan Southern and Northern In- diana B. B. Co., 16 Mich,, 79, 1867; Heffron e. Same, ib. ; King «. Same, ib. 134. — The act of 1863, providing that rail- way companies shall not by contract limit their liability as common carriers, is not in- consistent with the rights of the charter of the Mobile and Ohio R. R. Co. Mobile and Ohio B. B. Co. V. Franks, 41 Miss., 494. 1867. 135. Terms of contract. A contract lim- iting the liability of a carrier will Iiave no greater operation given it than the language used plainly indicates that the parties in- tended that it should have. Menzell v. Bail- road Co., 1 Dillon (U. S. Cir. Ct.), 531. 1870. 136. — While it is competent for common carriers to provide by contract for sucli ex- emptions, it must be done in clear and unam- biguous terms. Edsall «. Camden and Amboy R. B. Co., 50 N. T., 661. 1872. III. Damages. 1. Delay. 137. Acts of a third person. Where it is shown that the delay beyond the ordinary time was solely imputable to the reckless act of a third party the carrier will not be re- sponsible for the delay. Conger v. Hudson Biver B. B. Co., 6 Duer (N. Y.), 375. 1857. 138. Blockade of freight. A railway com- pany may on account of unusual pres'3 of bu- siness, or inadequacy of rolling stock, decline to receive freight, but if it receive the freight it must be forwarded without delay or the company will be liable for the damages caused thereby. Faulkner ii. South Paeifio B. iJ. Co., 51 Mo., 311. 1873. 139. — An instruction that " press of freight will not excuse failure to carry goods in ordi- nary time, where such press had existed for a long time, and was known to the company when they received the goods, unless they no- tified the shipper," was held to be erroneous. Feet «. Chicago and Northwestern B. B. Co., 20 Wis., 594. 1866. 140. — There is no invariable rule requir- ing frciight to be carried in the order in which it was received, without regard to its charac- ter and condition, or its liability to perish. Ib. 141. — A railroad company receiving goods in Wisconsin to be carried by its own and connecting lines to Buffalo, N. Y., held, not to be excused for a failure to transport to tlie end of its own line at Detroit, and deliver, or offer to deliver, to the next carrier, merely by the fact, which its agents knew, that there was a block of freight at Suspension Bridge Cover Niagara river), which created a block at Detroit, and the further fact that there was no room for the goods in the defendant's de- pot at Detroit, specially where it is not clear that the general block of freight for tlie east at the bridge would have prevented the trans- portation of plaintiff's goods to Buffalo. Mc- Laren v. Detroit and Milwaukee B. B. Co., 23 Wis., 138. 1868. 142. — A railway company having its rotid properly equipped and in good order, is not liable, in the absence of a special contract, for delay occasioned by an unusual quantity of freight being delivered to it for shipment. Wibert e. New York and Erie B. R. Co , 13 N. Y., 245, 1855 ; Same «. Same, 19 Barbour (N. Y.), 36, 1854; Jones v. New York and Erie B. B. Co., 29 ib, 633, 1859; (disapproving Kent V. Hudson Biver B. B. Co., 22 ib., 278.) 143. Burden of proof. The burden is on the plaintiffs to show that the defendants fail- ed to exercise ordinary care and diligence in carrying the goods, but unusual and unex- plained delay is prima facie evidence of want of ordinary care. Mann v. Birehard, 40 Vt., 326. 1867. 80 CARRIAGE OF MERCHANDISE. Damages. 144. Coimecting lines. Where a carrier agrees to carry goods to Buffalo known to be destined to Albany or New York, and bis de- fault or delay causes damage to the shipper from the non-arrival of the goods in a reason- able time at Albany, he is responsible for such damage as much as if it had actually oc- curred at Bufifalo. Sisson v. Cleveland and To- ledo R. B. Co., 14 Mich., 489. 1866. 145. — Railroad companies, as common carriers, may make valid contracts to receive freight at, or to convey it to points beyond the limits of their own road ; and thus become li- able for the acts and neglects of other carriers not under their contol. Noyet v. Rutland and Burlington R. R. Co., 27 Vt., 110. 1854. 146. Contract. A railroad company is bound by its freight agent's agreement to carry goods within a specified time, if it be a reasonable time. Strohn v. Detroit and Mil- waukee R. R. Co., 23 Wis., 126. 1868. 147. — A mere statement by the agent that the ordinary time for transportation over a proposed route is a certain number of days, does not constitute an agreement to carry in that time. lb. 148. Conversion. A mere delay in the de- livery of goods, is not a conversion of the property; nor will it entitle the owner to re- cover the value thereof. Brigga v. Neui York Central R. R. Co., 28 Barbour (N. Y.), 515. 1858. 149. Corn. Where corn was received by a railroad company to be transported to a point, the usual time for reaching which was two and one-half to three days, and the ship- ment did not reach its destination, a part of It until eleven days, and a part forty-five days after it was shipped: held, that this was such delay as would render the company liable for the resulting damages. Illinois Central R. R. Co. V. McOlellan, 54 111., 58. 1870. 1 50. — In an action against a railroad company to recover for injury to a quantity of corn, occasioned by delay in the transport- ation, the company cannot claim exemption from liability under a clause in the bill of lading which releases it from loss on perisha- ble property. Mature, merchantable corn cannot be regarded as of that character. lb. 151. Cotton. A carrier, upon being ap- plied to by the owner to deliver certain cot- ton (then at its depot and in its possession for transportation) to another railroad company, declined to do it, or to allow the owner to do it — promising to deliver it itself, within three days. Held, tbat it was gross negligence for such carrier to allow the cotton to remain un- delivered for several months afterwards and until it became rotten by exposure to the weather. Glenn v. Charlotte and South Caro- lina R. R. Co., 63 N. C, 510. 1869. 152. Duty of carrier. A carrier is re- sponsible in damages for a failure to ship goods in a reasonable time. Rome R. R. Co. V. Sullivan, 32 Ga., 400, 1861 ; Kent v. Hud- son River R. R. Co., 22 Barbour (N. Y.), 278, 1856. 153. Duty of shipper. The party injured must make all reasonable efibrts to reduce his damages as much as possible. Vicksburg and Meridian R. R. Go. v. Ragsdale, 46 Miss., 458. 1872. 154. Expenses. The consignee cannot re- cover for the time and expenses of an agent and team, w^hile waiting for the goods at the place of destination, without showing that defendant had notice, at the time of contract- ing for the transportation of the goods, that such agent of the owners would be waiting to receive them. Briggs v. New York Central R. R. Co., 28 Barbour (N. Y.), 515. 1858. 155. Machinery. In an action against a common carrier, for not delivering machinery in proper time, the measure of damage is the value of the use of the machinery during the period of improper detention. Priestly «. Northern Indiana and Chicago B. R. Co., 26 111., 205. 1861. 156.— Where apart of a machinery was consigned to a defendant as plaintiff's agent, to be forwarded to him, and defendant negli- gently detained it, whereby the whole ma- chinery was kept idle, it was held, that tho measure of damages was not what might have been made by the machinery while it was idle, but the legal interest on the capital in- vested, the price of the hire of hands necessa- rily unemployed during the time, the cost of sending for the missing machinery, and all other damages that resulted, necessarily, from defendant's negligence. Foard v. Atlantic and North Carolina R. R. Co., 8 Jones' Law (N. C.),235. 1860. 157. — Where machinery was consigned to the agent of a railroad company to be for- CARRIAGE OF MERCHANDISE. 81 Damages. warded to the plaintiff over its road, and it was negligently detained for a time, it was }ield, that the defendant was not liable as a common carrier for this neglect, but only as bailee. lb. 158. — Where the defendant failed to de- liver, in a reasonable time, a boiler construct- ed for a steam saw-mill, the measure of dam- ages would be as follows: The actual ex- pense incurred, as well as the reasonable time and trouble in traveling to ascertain what had become of the boiler, and the expense in- curred in preparations for connecting the boiler with the fixtures and machinery of the saw mill, and interest on the value of the property during the time of detention. Bams ». Oiiicinnati, Hamilton, etc. B. B. Go.. 1 Dis- ney (Ohio), 23. 1855. 159. Measure of Damages. Where goods are contracted to be sold at a price fixed, to be delivered at a particular place, and a carrier promises to transport and deliver them in due time, with full notice that the goods are sold if forwarded seasonably, the measure of dam- ages for a breach of his contract by which the consignor loses the sale, is the difference between the contract price and the value of the goods when actually delivered. Denning B. Grand Trunk B. B. Co., 4S N. H., 455 1869. 160. — Where there was a contract to carry freight at a particular time, proof that its transportation was prevented by an unex- pected rush of freight is not admissible. lb. 161. — Testimony that the purchaser of the goods was informed, after they were shipped, that they would soon arrive, and that he was satisfied, is admissible. . lb. 162. — If goods are shipped to be sold, the enhanced price at place pf delivery is to be considered in estimating the damages. But where the property shipped is not for sale this rule is not sufficient. There can be no fixed rule of compensation, but this much may be considered as well settled : 1. The natural con- sequences of the breach must always be con- sidered ; 3. Such consequences as the parties are presumed to have contemplated ; 3. Dam- ages not the direct and natural consequence of the breach shall not be considered unless by the terms of the agreement ; 4. Loss of profits in business cannot be allowed, un- less the data of estimation arc so definite and certain that they can be ascertained reason- 6 ably by calculation, a^d then the party in fault must have had notic(!, either from the nature of the contract itself, or otherwise that such damages would ensue from nonperform- ance; 5. Speculative profits cannot be con- sidered; 6. If machinery is transported, its rental price and expenses of idle hands may be considered. Vicksburg and Meridian B. R. Co. V. Bagsdale, 46 Miss., 458. 1872. 16.S. — In an action against a common car- rier for damages in not reasonably transport- ing goods, the decline in their market value, between the time when they actually arrived at their place of destination, an-d when, in the exercise of propei; diligence on the part of the carrier, they might have so arrived, is a material element proper for the consideration of the jury in ascertaining the actual dam- ages sustained by the shipper. Weston v. Grand Trunk B. B. Co., 54 Me., 376. 1867. 164. — Where flour delivered to be trans- ported to New York for sale, was not deliv- ered tliere in a reasonable time, the measure of damages is the depreciation in its value in the New York market, between tlie time when it should have been delivered and that at which it was delivered — it having actually been sold at a diminished price. Peei v. Ohi- cago and Northwestern B. B. Co., 20 Wis., 594, 1866; Galena and Chicago Union B. B. Co. v. Boe, 18 111., 488, 1857; Faulkner v. South Pacific B. B. Co., 51 Mo., 311, 1873; Cutting V. Grand Trunk B. B. Co., 13 Allen (Mass.), 381, 1866; Ward v. New York Central B. B. Co., 47 N. Y., 29, 1871 ; Sisson v Cleveland and Toledo B. B. Co., 14 Mich., 489, 1866. 165. — In such case the inquiry as to the values should be limited to the place of de- livery. Kansas Pacific B. B. Co. v. Beynolds, 8 Kail., 623. 1871. 166. — Where goods are delivered to a car- rier, and they are not transported according to his undertaking, but are injured or de- stroyed, the rule of damages is the value of the goods at the place to which they were to be carried, less the freight. Michigan South- ern and Norflmm Indiana B. B. Co. v. Caster, 13 Ind., 164, 1859; see also Holden i>. New York Central B. B. Co., 54 N. Y., 662, 1873. 1 67. — Contract price. The contract price should be taken as the basis for estimating the damages; otherwise, the market price at the place of delivery, at the time the grain CARRIAGE OF MERCHANDISE. Damages. should h.ave reached there. Illinois Central B. R. Co. V. McClellan, 54 111., 58. 1870. 168. — In an action to recover damages for the nonperformance of a contract to transport flour from one place to another, and to deliver the same at the latter place, on or before a specified day, the measure of dam- ages is the difference between the contraci price of the flour, had it arrived at the place of delivery on the day specified, and the price for which it was actually sold in the market, on its arrival. Medbury v. New York and Erie Ji. S. Co., 36 Barbour (N. T.), 564. 1858. 169. Neglect to forward goods. Where the agent of a railroad company for the de- livery of freight, authorized to make all nec- essary arrangements as to the time and place of its delivery, agrees to forward freight by another line, if this agreement is neglected, the railroad company will be liable. Michi- gan Southern and Northern Indiana R. S. Co. V. Day, 20 111., 375. 1858. 170. Particular case. The defendant, a railway company, held guilty of negligence in delaying to forward goods under the facts of this particular case. Coffin t. New Yorh Central B. B. Co., 64 Barbour (N. T.), 379. 1873. 171. Place of computation of damages. Damages for delay are to be appraised at the place of destination of the property. And the place of destination, in this sense, must, in the absence of any express contract to de- liver it at any particular place, be where the route of the carrier ends. Marshall v. New York Central B. B. Co., 45 Barbour (N. Y.), 503. 1866. 172. Plank. Plank to construct a plank- road was delivered at a station of a railroad, to be transported to another station ; the com- pany did not transport it; if liable in dam- ages, the measure would be the difference of value of the plank at the first station and the station to which it was to be carried, deduct- ing cost of transportation; provided, such lumber could be obtained at the latter station, and that the carrier should compensate for the delay from his failure. Pennsylvania B. B. Co. V. Titusville Plankroad Co., 71 Penn. St.) 330. 1873. 173. Pleading. Such damages as are pre- sumably necessarily the result of the breach of the contract need not be specially pleaded, but if other special damages are claimed, they must be stated. Vickshurg and Meridian B. B. Co.v. Bagsdale,A!a'M.iss.,45'i. 1873. 174. — A suit against a carrier for a breach of his contract as such, should be upon' the bill of lading, under the Code, where such bill is given, and embraces the terras of the contract. Indianapolis and Cincinnati B. B Co. V. Bemmy, 18 Ind., 518. 1859. 175. Strikes. A railroad corporation la responsible for damages resulting from a de- lay to transport freight in the usual time, which was caused by a great number of its servants suddenly and wrongfully refusing to work. Blaekstock v. New York and Brie B. B. Co., 20 N. Y., 48, 1859; Same v. Same, 1 Bos- worth (N. Y.), 77, 1857. 176. Unusual press of business. A rail- road company is not liable for damages with reference to expected profits in a case where no special contract is made, and a delay hap- pened in the transportation, in consequence of an unusual press in business, the company having a reasonable equipment for all ordi- nary purposes, and having forwarded the goods with as much expedition as practica- ble. It is liable for any injury to the goods during the delay. A railroad company can- not be relieved from its contract to deliver goods at a particular place, by showing that the next carrier would not receive the goods from it at the terminus of its line. East Ten- nessee and Georgia B. B. Co. v. Nelson, 1 Cold- well (Tenn.), 272. 1860. 177. — The law implies that goods shall be delivered at their destination within a reason- able time. Nothing relieves from this obli- gation but the act of God, the public enemy, the act or conduct of the owner, or a special contract. Vickslurg and Meridian B. B. Co. «. Bagsdale, 46 Miss., 458. 1873. 178. — The law does not attempt to fix what is a reasonable time. Each case must be governed by the circumstances surround- ing it. Ih. 179. — "Where the company has a reasona- ble equipment for all ordinary business, un- usual and extraordinary press of business is a sufficient excuse for delay. lb. 180. Veal. A Massachusetts statute pro- hibits the gale of veal killed when less than four weeks old. The plaintiffs, residents of Vermont, were not shown to have knowledge CAERIAGE OF MERCHANDISE. 83 Damages. of this statute. Sdd, that the fact, if proved that some of the veals sent by the defendants' railway to Massachusetts to be sold, were within the provisions of this statute, would not avail defendants as a defense to an action for want of care in transporting the goods, and the statute could only be considered so far as' it might affect the value of the veal- Mann v. Birchard, 40 .Vt., 326. 1867: 181. War. The fact that a railway is un- der military control in time of war, is a suffi- cient excuse for delay in making shipment of goods. Illinois Central M. B. Go. v. AsJimead, 58111., 487. 1871. 182. Weather. In the absence of a special contract, the obligation of a carrier of goods is to transport them by the usual route pro- posed by him to the public, and to deliver them within a reasonable time. He must use reasonable expedition, but is not bound to use extraordinary exertions, or extra expense, to surmount obstacles caused by the weather. Umpire Transportation Co. v. Wallace, 68 Penn. St., 303. 1871. 183. — The established route of the carrier was by rail to Philadelphia, and by water to Boston. He was not bound to send goods by rail from Philadelphia when there was an ob- struction to water navigation. lb. 184. — Where a railway company knows that its road is blockaded by snow, and that goods cannot be forwarded within a reasona- ble lime, it is its duty to so inform a shipper upon receiving goods, or it will be liable for damages for delay in shipment. Great West_ em B. B. Go. v. Burns, 60 111., 384. • 1871. 18.5. What delay is unreasonable. When a box, shipped at Adrian for Chicago (the usual railroad time of transportation being three days) on the 39th October, arrived at Chicago on the 3d of November, and was not delivered by the freight agent until the 15th of the latter month, this was held so unreas- onable a delay as to entitle the owner to damages. Michigan SoutJiern and Northern Indiana B. B. Co. ■». Day, 20 111., 375. 1858. 2. Damages generally. 186. Damages byweather. Although the goods are not taken by the consignee within the time fixed for the removal, yet the carrier has no right to cast them away, or leave them where they will be open and exposed to in- jury from the elements. Oooh ii. Erie B. B. Go., 58 Barbour (N. Y.), 313. 1870. 187. — After the arrival of goods at their place of destination, the consignee com- menced removing them, but residing at a dis- tance of twenty miles from the depot, with only one team, he could not conveniently take more than one load per day. The goods were thrown out of the car, upon the ground, on the company's premises, and by directions of their agent; and while in this situation, were wet and damaged by the rain, for want of shelter. Held, that the question whether the defendant had taken proper care of the goods, was a question for tlie jury, and it was properly submitted to them. Ih. 188. Delivery. A lot of wheat was deliv- ered to the M. & M. R. R. Co. at E., to be consigned to E. & W. at M., and on the next morning, after the arrival of the train, the consignee called for the wheat and it could not be found, though landed on the platform the night previous. Seld, that the company was liable for its value. Milwaukee and Mis- sissippi B. B. Go. 11. Fairchild, 6 Wis., 403. 1859. 189. Evidence. The owner of goods suing for damages must show that they were in a good condition when they came to the pos- session of the defendant, as a part of the evi- dence that they have been injured while in his custody. Smith v. New York Central B. B. Co., 43 Barbour (N. Y.), 235, 1864; Same V. Same, 41 N. Y., 620, 1809. 190. Interest. Interest may be allowed as damages upon the value of goods lost in shipment. Kyle v. Laurens B. B. Co., 10 Richardson's Law (So. Car.), 383. 1857. 191. Measure of damages. The rule of damages in case of the loss of goods by a common carrier, is their value at their place of destination, at the time of the loss, with interest from that time, deducting the freight where it has not been paid. Blumentliall v. Brainerd, 38 Vt., 403. 1866. 192. — While the measure of damages is the value of the cotton at the point of destina- tion, the defendant has no cause of complaint that the proof is confined to the value of the cotton at the point of shipment, or the place where it was burnt on the line of the road ; 81 CARRIAGE or MERCHANDISE. Losses by Fire. as goods are presumed to be worth as much or more at the place of destination than at the point of shipment, till that presumption is rebutted by proof. Rome It. R. Co. v. Sloan, SOGa., 636. "l869. 193. — Where goods have been lost in transit, their value at the place of destination is the measure of damages, and no deduction should be made on account of commissions. £^yle 7>. Laurens R. R. Co., 10 Richardson's Law (So. Car.), 382. 1857. 1 94. — The application of the general rule in an action for damages for injuries done to goods in course of transit, that the measure of damages is the difference between the market value of the goods, as delivered, and what their value 'would have been if they had not been damaged, is not always just and proper. Winne v. Illinois Central R. R. Co., 81 la., 583. 1871. 195. — It was therefore held, in an action for damages to a lot of flour, that the plaintiff might recover what it cost to put the flour in a saleable condition, after its arrival at the place of consignment, it appearing that such expenditure was beneficial to the defendant by reducing the damages which it would have sustained under the general rule. lb. 196. Nursery stock. In an action for damages resulting from the negligence of a carrier in transporting nursery stock, it was for the jury to determine from tlie evidence whether the carrier was guilty of negligence, and whether the damaged condition in which the stock was afterwards found resulted from that negligence. Congar v. Galena and Chi- cago Union R. R. Co., 17 "Wis., 477. 1868. 197. Partial loss. A common carrier is not . liable for the whole value of property damaged by his want of care, so long as its character is not so changed but that it may be applied to the ordinary uses of such prop- erty, though he will be answerable for the de- preciation in its value by reason of its being rendered unfit for some particular use. Haekett v. B. C. and M. R. R. Co., 35 N. H., 390. 1857. 198. Property not the subject to traffic. Wlierc property is destroyed by the negli- gence of a carrier in transit, the measure of damages, where such property has not been the subject of traflElc, is the fair market value of the property at or near the place of its destruction ; so held in a case where a horse had been injured in transit. Harris v. Pana- ma R. R. Co., 3 Bosworth (N. Y.), 7. 1858. 199. Value. Evidence of value of thirty barrels of whisky, etc., considered, and held, that a statement of its value would be consid- ered as at the place of its destination. Toledo, Peoria and Warsaw R. R. Co. v. Eichler, 51 111., 157. 1869. ly. Losses by fiek 1. Liability as carriers. 200. Burden of proof. Because goods were destroyed in a railroad car, by an acci- dental fire, the carrier is not thereby released. It is the duty of the carrier to show what be- comes of goods; the burden of proof is upon him. Porter v. Chicago and Rock Island R. R. Co., 20 111., 407. 1858. 201. Connecting lines. The defendant was a joint-stock corporation organized for the purpose of conducting the business of a common carrier by water between N. and L., and had made a contract with a railroad company, whose line ran from L. to S., by which it was agreed that its boats should run daily in connection with certain trains upon the railroad, that through freight received for ti-ansportation over the route of both com- panies should be carried at reduced rates, that the receipts for such freight should be divided in certain proportions between them, that the railroad company should build a wharf and depot in L., where both companies could transact their freight business, the de- fendant paying a rent for its use of the same, and which contained other minor provisions directed to the same general purpose of se- curing a through-freight business for the benefit of both. Goods having been shipped at N. for transportation to S., the dcifendant gave a written receipt for them as received " on board the Norwich and "Worcester boat, bound for S." Held, that in the absence of further evidence of an express contract, the defendant was only bound to carry the goods to L., and there deliver them to the railroad company. Converse v. Norwich and New York Transportation Co., 83 Conn., 166. 1865. 202. — Held, also, that their liability was CARRIAGE OF MERCHANDISE. 85 Losses by Fire. between the companies, wliich was known to tlie owner of the goods, that in such cases a single bill for the amount of the freight from N. to S. should be made out by the defendant, and collected and receipted by the agent of the railroad company at S. on delivery. lb. 203. — The railroad company and steam- boat company had a covered wharf in com- mon at their common terminus, used both as a depot and wharf, and it was the established usage for the steamboat company to land goods for the railroad on the arrival of its boats in the night, upon a particular place in the depot, where they were taken by the rail- road company the next morning, both com- panies having equal possession of the depot. Freight received by the steamboat company for delivery to the railroad company was landed in the depot and at the place iu ques- tion during the night of Saturday, and was burned with the depot in the afternoon of Sunday following, the railroad company hav- ing done no act in the meantime accepting delivery. Held, that the steamboat company had delivered the goods, and was not liable for tlieir loss. lb. 204. — The defendant was a common car- rier of passengers and freight by railroad from Providence, R. I., to Groton, Conn., con- necting at Providence with a railroad from Boston, and at Groton with steamboats for New York, the three having formed for sev- eral years a through line for passengers and freight from Boston to New York. The line had a standing advertisement in a Boston newspaper that cars would leave the station there at half-past five, P. M., every week day, connecting on three days named with the steamboat Commonwealth, and on the alter- nate days with the steamboat Plymouth Rock, for New York, and that through tickets were furnished and baggage checked through to sundry places beyond New York. The de- fendant also, by handbills and placards, ad- vertised those two boats as running between Groton and New York, in connection with its road. The plaintiffs, who had for a long time been in the habit of sending by the line, shipped a quantity of goods by it at Boston for New York, on the 38th day of De- cember, taking bills of lading signed by an agent of all the companies forming the line, by which it was provided that the companies I not affected by the fact that there was a usage should not be liable for any injury to freight in the course of transportation arising from accidental delays, and that no package of goods, if lost, should be deemed of greater value than $200, unless specially receipted for at a greater valuation. The plaintiffs pro- cured the bills of lading printed and kept them in blank, to be filled up by themselves as needed. The steamboat Plymouth Rock, which was the regular boat for December 28th, had been taken off for necessary repairs, and the Commodore, a much smaller boat, be- longing to the same owners, and which they were accustomed to put on in the place of either of the regular boats when taken off for repairs, was running in her place. By reason of her small capacity, a large quantity of freight, which "came by railroad from Boston on the evening of the 28th of December, in- cluding a part of the goods of the plaintiffs, and which the Plymouth Rock would have been able to take, could not be carried, and had to be discharged, as was the custom in such cases, into the depot of the defendant at Groton, to wait for the boat of the next day, and during the night was destroyed by fire with the depot. In a suit brought by the plaintiffs for the value of the goods lost, in which the jury returned a verdict for the plaintiffs for the full value of the goods, with- out reference to the limitations in the bills of lading, it was 7ield, on a motion of the de- fendants for a new trial : — I. That the advertisement was obviously published for the information of passeigers and not of freighters, and that therefore the court .below erred in instructing the jury that, in determining -whether there was a contract on the part of the defendant that the Ply- mouth Rock should be the boat for the night in question, they should particularly consider the advertisement. II. That there was nothing in the represent- ation of the defendant as to the boats regu- larly running in connection with its road that constituted a binding stipulation that one of the boats should not be taken off for neces- sary and usual repairs, and another tempora- rily substituted for it. III. That on the arrival of the goods at Groton, the defendant was bound to forward by the boat of that evening, only so much of CARRIAGE OF MERCHANDISE. Losses by Fire. the freight as the boat coukl take, and Was not responsible for the delay of the rest. IV. That all that could be required of de- dcfendant was to take reasonable care of the goods left over, until they should be taken by the boat of the next day. V. That if the defendant was liable at all, it was only to an amount not exceeding $200 for each package. Lawrence v. New York, Provi- dence wnd Boston R. R. Co., 36 Conn., 63. 1869. 205. — Where a railroad company had an agreement with a teamster, by which ^oods were carried to a point beyond the line of its railroad, although the company had no in- terest in the profits of ^uch transportation, it was luild, that where the goods were destroyed by fire in the depot of the company, while awaiting transportation by said teams, the liability of the company, under the facts of this case, was that of a common carrier. Lawrence v. Winona and St. Peter B. B. Co., 15 Minn., 890. 1870. 206. Contract. A special contract for the carriage of goods, construed with reference to damages caused by sparks. Steinweig v. Erie B. B. Co., 43 IT. Y., 123. 1870. 207. —limiting liability. Where a rail- road company, being unprovided with the means of arresting sparks, gave notice that it would transport cotton at half rates, in case it were relieved from risk as to fire, and there- upon an agent of the owner shipped cotton upon the road at half rates: /teZtZ, that bare proof of destruction by fire whilst being transported by the company, would not en- title the owner to recover damages for such loss. Smith v. North Carolina B. B. Co., 64 N. C, 235, 1870 ; see also New Orleans, etc., Ins. Co. V. New Orleans, etc., B. B. Co., 20 La. An., 302, 1868 ; Lev}/ d. Pontchartrain B. B. Co., 13 ib., 477, 1871. 208. — The Pennsylvania R. R. Co. gave a receipt to F. B. & Co. for oil to be delivered to " Leech at the company's freight station, Philadelphia;" appended to the receipt was "Rate to Red Hook, 65 cents;" also, "This oil is carried only on open cars and entirely at the owner's risk from fire and leakage, whilst in the possession of the railroad company, or carriers, while standing or in transit." The freight was to be paid at Red Hook. Men- tioning Red Hook as the ultimate destination and payment of freight there, was at most no more than an engagement to forward to that place. Camden and Amhoy B. B. Co. V. Fonyth, 61 Penn. St., 81. 1869. 209. — The limitations as to liability only apply to the Pennsylvania R. R. Co. Ib. 210. — The Camden and Amboy R. R. Co. having given a receipt to " Leech, agent of the Pennsylvania R. R. Co." for the oil to be transported to New York, and it having been destroyed by fire between Philadelphia and Red Hook, it was held, that it was liable as a common carrier, there being no other contract with it than its receipt, which did not limit its liability. Ib. 211. Mistake. Goods shipped by rail for C, wore plainly marked " J. Weil & Bro.," but the station agent entered them on the way- bill as " T. Weil & Co." When J. Weil & Bros, called for the goods at C, they were told that there was nothing for them ; and the mistake was not discovered until the goods were de- stroyed with tie depot by fire. Meld, that the carrier was liable. Meyer v. Chicago and Northwestern B B. Co., 24 Wis., 566. 1869. 212. — A consignee of goods arriving by railroad sent to the depot a teamster, who knew the place to which the goods were to go, but did not know the marks of the bales : the teamster demanded the goods of the freight agent of the company, who, after a superficial examination, said that the goods had already been delivered. The teamster pointed out some bales, and asked if those were not the goods, as in fact they were. The freight agent turned over one of the bales so as to exhibit the marks, and said those were not the goods, but came from another place. The teamster went away without the goods. Held, that the agent was guilty of negligence in not deliver- ing the goods; and the goods being destroyed by accidental fire during the following night, the corporation was responsible for their val- ue. Stevens v. Boston and Maine R. R. Co., 1 Gray (Mass.), 277. 1854. 213. Place of delivery. Transportation by steamboats and railroads is necessarily such, that the wharves of the former and de pots of the latter are their place of delivery. Jefersonville R. R. Co. v. Cleveland, 2 Bush. (Ky.),468. 1867. 214. — What is a " reasonable opportunity " of receiving and removing freight aftpr its ar- rival, will depend upon the peculiar circum- CARRIAGE OF MEECHANDISli". 87 Losses by Fire. stances of each case — whether the freight ar- rived at its destination out of time, etc. /&. 215. Reasonable time for taking away goods. A consignee cannot, after notice of the arrival of property for him, defer taking it away while he attends to his other affairs. lledffcs v. Hudson Biver B. B. Co., 49 N. Y., 223. 1872. 216. — Where goods arrived at their place of destination on the defendant's road, at 11 o'clock A. M., were unloaded into its depot between 1 and 3 P. M.,and were probably ready for delivery to the consignee about 4 P. M., and the depot was closed as usual at 6 P. M., and was destroyed with the goods, by fire, the next morning before business hours: held, that it was not error to find that, after the goods were ready for delivery a reason- able time for the consignee to take them away had not elapsed before their destruction, and that defendant continued liable for them as a common carrier. Parker v. Milwaukee and St. Paul B. B. Co., 30 Wis., 689. 1872. 217. — Goods for the plaintiffs, transported over defendant's railway, reached their desti- nation near sundown and were taken from the cars and placed in the warehouse of the company about dai-k Saturday night, and a few minutes afterwai-ds, the warehouse was closed for the night. The warehouse was about three-quarters of a mile from plaintiffs' place of business. Their cartman had called for the goods on Saturday afternoon, about three o'clock, and was told by the freight agent that he need not cone again that day, as it would be late before the train would ar- rive. He was informed about dusk that the goods had come, but made no efforts to get them, as it was about time for the warehouse to close. Before Mor day morning the goods and warehouse were burned, without fault of defendant. Held, that the defendant was lia- ble for the goods as a common carrier. Wood V. Crocker, 18 Wis., 345. 1864. 218. — Where goods, transported by rail- road, after reaching their place of destination, are before delivery to the consignees, and while yet remaining in the freight car, de- stroyed by fire — the consignees using due diligence in regard to taking them away — the carrier is liable. Hedges v. Hudson Biver B. B. Co., 6. Robertson (N. Y.), 119. 1868. 219. — Certain wool was delivered by plaintiff to defendant at Exeter, K. H., to be carried to Boston, and there to be delivered to the consignee. The wool arrived at Boston at defendant's freight house, between one and three o'clock in the afternoon. In the usual course of business, from, two to three hours were required to unload the freight from the cars into the warehouse, and the gates were closed at five o'clock, so that no goods could be removed from the warehouse after, that, hour till next morning. During the night the warehouse and wool were consumed by fire. Held, that the jury were warranted in finding that the consignee had not a reason- able opportunity to take the wool into his possession before the fire, and that defendant was liable as a common carrier, notwithstand- ing it might be proven that before the fire the wool had been placed upon the platform in the warehouse, from which such goods were usually delivered, separate from other goods, and ready for delivery. Moses v. Boston and Maine B. B. Co., 32 N. H., 523. 1856. 220. Unavoidable casualty. Eire cannot be considered, in itself, an unavoidable dan- ger, and in case of loss from that cause, the de- fendant i;s bound to show the origin or cause of the fire, to bring himself within the excep- tion, otherwise the presumption is, it might have been avoided by proper care. Union Mutual Ins. Co. v. Indianapolis and Cinei'n- , nati B. B. Co., 1 Disney (Ohio), 480. 1857. 2. Liability as warehousemen. 221. When liability is that of a ware- honseman. Where a railroad corporation, being a common carrier, has a warehouse at which it receives goods for transpsrtation, if goods are delivered there with instructions to forward presently, while the goods remain in the warehouse for the convenience of the company, until they can be forwarded in the usual course of business, the railroad com- pany holds them as a common carrier, and is liable for them as such. Moses v. Boston and Maine B. B. Co., 24 N. H., 71. 1851. 222. — But if the goods are kept back in the warehouse for the convenience of the owner, and by his order, while they are so detained the railroad company will not be liable as a common carrier, but as a deposi- tory only. lb. 88 CARRIAGE OF MERCHANDISE. Losses by Fire. 223. — The liability of the carrier ceases, and it becomes responsible as a ■warehouse- man, upon the arrival of the goods at the point of destination, and their deposit there, in the ■warehouse of the company, to await the convenience of the consignee. Francu v. Dubuque and Sioux City R. R. Co., 35 la., 60. 1868. 224. — A railway company undertook to carry goods for F. from C, the place of ship- ' ment to A., where F. resided. The goods ar- rived at A. on time, about 8 o'clock P. M. ; but F. was not there to receive them, nor ■was he notified of their arrival : they were placed in the company's warehouse ready for deliv- ery. During the night the warehouse and goods were burned. Meld, that the company was not liable as a common carrier. lb. 225. — A different rule might have pre- vailed if they had not arrived on time. lb. 226. — The carrier is bound to deliver the goods to the consignee or such person as he may direct ; and until such delivery, or that which is equivalent, the liability of the car- rier contii'.ues. Angle v. Mississippi and Mis- souri R. R. Co., 18 la., 555. 1865. 227. — The absence or failure of the con- signee to receive the goods will not absolve the carrier from responsibility. He must make reasonable efforts to place them in proper hands, and if this cannot be done he may take care of the goods by holding them himself. lb. 228. — In the absence of special circum- stances or rules, he may lodge them with suit- able persons for the owners, and whether held or thus lodged the duties of the carrier cease ; but if, according to the uniform course of business, goods not demanded within the specified time are disposed of and kept in a particular manner, or in a designated build- ing, he cannot terminate his liability by lodg- ing them with some third person not author- ized to receive them. lb. 229. — If they are delivered to a person as the agent of the owner, he must show the fact of such agency, or circumstances which, in the opinion of the jury, would justify such delivery. lb. 230. — Where one of the rules of the com- pany required that goods should be taken away within twenty-four hours after their re- moval from the cars at their destination, and if not thus removed tjiey should be placed in store and storage charged thereon; it was held, that if placed in store after the twenty- four hours, the liability of the carrier would be changed to that of a warehouseman ; but that a delivery of the goods within the twen- ty-four hours, to a person who had no author- ity to receive them, did not change the lia- bility of the carrier, notwithstanding that the owner did not make demand for them until after the expiration of the time mentioned. lb. 231. -^ The agent of a common carrier iu charge of the general business of the carrier at a particular place, has the prima facie pow- er to bind his principal by contracts for the storage of goods, but cannot make a valid con- tract inconsistent with the established rules of the principal which were known to the other party. lb. 232. — When the consignee has notice of the arrival of his goods, and agrees with the carrier, for their mutual convenience, that the goods be left over night in the freighthouse, the liability as a common carrier has ceased, and the goods being destroyed by fire during the night, the carrier cannot be hold as an insurer. Fenner v. Buffalo and State Line R. R. Co., 44 N. Y., 505, 1871 ; reversing Same v. Same, 46 Barbour (K. Y.), 103, 1866. 233. — Where A. delivered to a railroad company for ti-ansportation, a quantity of hay, which was placed on platform cars ; the next day, when the company was about to send it forward, A. requested that it should not be taken away until he could first sec the party to whom it was sold, which request was complied with, and the next day the hay ■was ignited by sparks from a passing locomotive, and a portion of it burned. Held, that from the moment A. requested the hay to be detain- ed, the liability of the company was.that of a warehouseman only. St.Louis, Alton and Terre Haute R. R.Co. v. Montgomefry, 89 Ill.,.333. 1866. 234. — Where goods transported by a rail- road company arrive at the place of destina- tion, and are placed upon the platform of the depot, at the usual place of discharging goods, ready for delivery to the consignee in good order, and he is notified of their arrival, and pays the freight upon them, the liability of the company as a carrier is at an end. Nw) Albany and Salem R. R. Go. v. Campbell, 13 Ind., 55. 1859. CAERIAGE PF MERCHANDISE. Losses by Fire. 235. — The plaintiff brought suit for the value of goods burned in defendant's freight- house, which were part of a lot that he was delivering for transportation, his evidence tended to show that the company had " au- thority and direction " from him to transport the goods as fast as delivered ; and defendant's evidence tended to show that the goods burnt were kept in the freightliouse for his conve- nience, to await the deliveiy of the whole lot before beginning the transportation. Held, that the defendant had good ground of excep- tion to a ruling of the judge, that it was lia- ble as a common carrier if it had " either such authority or direction " to transport the goods as delivered. Watts v. Boston and Lowell R. R. Co., 106 Mass., 466. 1871. 236. — A railroad company may terminate its liability by storing the goods after their arrival, and if they are not removed within a reasonable time, its liability will be that of a warehouseman only. Derosia v. Winona and St. Peter R. R. Co., 18 Minn., 133. 1873. 237. — A common carrier may terminate his liability as a Carrier by storing the goods in a warehouse where no notice can be given to the consignee. Nortlirop v. Syracuse, etc., R. R. Co., 3 Abbott's Ct. of Ap., Dec. (N. Y.), 386. 1867. 238. — It is the duty of the consignee to give information to the carrier before the arrival of the goods, so that the car- rier may know where to give notice to the consignee. If such information is not given, the carrier may be exonerated by storing the goods after having first made due inquiry to ascertain the residence of the consignee. Pel- ton V. Rensselcer and Saratoga R. R. Co., 54 N. Y., 314. 1873. 239. Instructions of court. Where a rail- way company is sued for goods destroyed by fire while in its control, the goods having ar- rived at their destination and been stored in the warehouse of the company, and is sued for negligence as a warehouseman, it is error to assume in the instructions to the jury that it was sued as a common carrier. Porter v. .Chicago and Northwestern R. B. Co., 30 la., 73. 1865. 240. Mistake. Goods shipped by railroad were retained several days after aiTival at the place of destination, in the company's depot, and were then transferred to the store of care- ful and responsible warehousemen. No no- tice was received by the consignee ot the transfer to the warehouse, and after such transfer the consignee was informed, upon in- quiry at the railroad office, that the goods had not arrived. Subsequently the goods were destroyed by the burning of the warehouse. Helcf,, that the carrier was responsible for the direct results of the false information given by its employ^, and the jury having found that the destruction of the goods was the direct result thereof, the court refused to dis- turb the finding. Jefersontiille R. R. Co. v. Cotton, 39 Ind., 498. 1868. 241. Pleading. Where the petition seeks to make defendant liable as a warehouseman, and the allegations are denied by the answer, such denial does not confer upon the plaintiff the right to recover agairist the defendant in some other capacity, as in that of a common carrier, lb. 242. Wool waste. After evidence had been given, to:iding to show that " wool waste" was stored in the depot along with plaintiffs' goods, and that it could be dis- tinguished from ordinary wool by its external appearance, by those accustomed to handle the latter, plaintiffs were entitled to show that such wool waste was liable to spontaneous combustion. Whitney v. Chicago and North- western R. R. Co., 37 Wis., 337. 1870. 243. — An instruction that " if there was stored in defendant's depot, with plaintiff's property, ordinary wool sacks, appearing from all external indications to be wool, but in fact containing wool waste, negligence on. that account could not be imputed to the company unless it appeared that such waste was not a proper article of storage, and that some of defendant's servants knew, or had reason to think that such sacks contained waste instead of wool " — coupled with an- other instruction that, "if the depot was burned byreason of the spontaneous combus- tion of wool waste stored therein, and if the servants in charge of the depot, by the exer- cise of that care and caution which ordinarily prudent men exercise in the care of their own property, would have discovered such dan- gerous article, and so stored it that in case of spontaneous combustion, it would not have endangered the entire contents of the build- ing, and if they failed to do so, defendant 90 CABRIAGE OF MERCHANDISE. Liability of Carriers Generally. ■was chargeable," — held,, to be a fall and cor- rect statement of the law on that subject. lb. V. Liability op caekieks gener- ally. 244. Act of God. In case of loss or dam- age to goods while in the hands of a common carrier, the burden of proof is on the carrier to show that loss was occasioned by the act of God or the public enemies. Winne v. Illi- nois Central R. R. Co., 31 la., 583, 1871 ; Ban- semer v. Toledo and Wabash B. 11. Co., 25 Ind., 434, 1865. 245. — Common carriers are bound to de- liver goods carried by them subject only to contingencies arising from the act of God, or from the public enemy. Angle v. Mississippi and Missouri M. R. Co., 18 la., 555, 1865; Bansemer v. Toledo and Wabash R. R. Co., 25 Ind., 434, 1865. 246. — A snow storm which blocks up a railway is an act of God, and will excuse a carrier for delay. Ballentine v. North Missouri i?. iJ. O'o.,40Mo.,49]. 1867. 247. — Where a common carrier shows that a loss was by some m» major, as by a flood, he is excused without affirmatively proving that he was guilty of no negli- gence. Railroad Co. v. Reeves, 10 Wallace, 176. 1869. 248. — If negligence is asserted to exist, the proof of such negligence rests upon the other party. lb. 249. — The maxim, causa proxima non re- mota spectatur, applies to such cases as to other, contracts and transactions; and ordina- ry diligence is all that is required of the car- rier to avoid or remedy the effects of the overpowering cause. lb. 250. — Where the act of God is the proxi- mate cause, the carrier is excused though his own negligence may have contributed as a remote cause. lb. 251. — Where a freshet destroyed a rail- road bridge and caused delay in the shipment of cotton, and where the cotton was injured by bad handling, it was Tield, that the com- pany was liable for the injury occasioned by bad handling, but not for the delay. Zipford V. Charlotte and South Carolina R. R. Co., 7 Richardson's Law (So. Car.), 409. 1854. 252. — If the carrier has departed from the line of duty, and has violated his contract, and while thus in fault, and in consequence of that fault, goods being carried are injured, by an act of God, which would not otherwise have produced the injury, then the carrier is liable. Michaels v. Neie York Central R. R. Co., 30 N. T., 564. 1864. 253. Agency. The fact that a mere agent, having charge of goods, contracted for their transportation without disclosing the name of the owner, does not deprive the owner of his right of action against the carrier for the loss of the goods. Ames v. St. Paul and Pacific R. R. Co., 13 Minn., 413. 1867. 254. — Where an agent, without disclosing the name of his principal, makes a contract with a common carrier to transport the prop- erty of the principal, the latter may maintain an action in his own name against the carrier, to recover damages for the loss of the prop- erty. Elkins D. Boston and Maine R. R. Co., 19 N. H., 337. 1849. 255. Assignment of canse of action. A right of action against a common carrier, for negligence in not transporting and delivering personal property, is assignable, so as to au- thorize the assignee to sue in his own name, under the code. Smith v. New Yorh and New Haven R. R: Co., 38 Barbour (N. Y.), 605, 1858 ; Same v. Same, 16 Howard's Pr. (N. T.), 277, 1857. 256. — Where a common carrier has pos- session of the property of A., and also similar property of B., and through mistake delivers the property of A. to a third person upon the order of B., and when the mistake is discov- ered the carrier pays to A. the value of the property; the carrier can recover the value thereof from the person to whom it is deliv- ered. Hudson River R. R. Co. v. Lounsberry, 25 Barbour (N. Y.), 597. 1857. 257. Bailment. Where, by the custom of a. railroad company, persons whose grain is shipped by its road are entitled to have the empty bags carried " free," this is not a gratu- itous bailment so as to exempt the company from liability except for gross negligence, in case such empty bags are lost. Pierce v. Mil- waukee and St. Paul R. R. Co., 23 Wis., 387. 1868. 258. — Where goods are shipped upon a railroad for transportation, the consignor may CARRIAGE OF MERCHANDISE. 91 Liability of" Carriers Generally. sue for their non-delivery, though he be but a bailee. Chreat Western S. R. Oo. v. McOomas, 33 111., 185. 1864. 259. — In such case either the bailee or the bailor may maintain an action against the car- rier for the loss of the property. Slkins v. Boston and Maine B. S. Co., 19 N. H., 337. 1849. 260. Burden of Proof. The buiden of excusing the non-delivery of freight is upon the carrier. CJiapman v. New Orleans, Jackson and a. N. B. B. Co., 31 La. An., 224. 1869. 261. Clothing. A third person rolled up the plaintiff 3 coat in a bundle^ -with his own coat, and placed his own name and address upon the bundle, and delivered it to the de- fendant, who was a common garrier, for transportation. Held, that the plaintiff might maintain an action against the defendant to recover damages for the loss of his coat. Blkins !). Boston and Maine B. B. Go., 19 N. H., 337. 1849. 262. Defective Cars. The fact that a per- son who delivered goods to a railroad com- pany for carriage, accepted a defective car for their conveyance, knowing such defect, does not excuse the carrier for the loss of the goods through such defect, in the absence of any agreement upon the part of the shipper as- suming the risk. Pratt v. Ogdensiurg and Lake Champlain B. B. Co., 103 Mass., 557. 1869. 263. Evidence. A verdict for the defend- ant sustained under the evidence. Cohen v. Borne B. B. Co., 45 Ga., 393. 1873. 264. — On receipts of the W. & A. E. R. Co., in Georgia, for twelve bales of cotton con- signed to B. & S. in Charleston, and proof that the S. 0. R. R. Co., usually received cot- ton sent as this was, and delivered it on such receipts in Charleston, it was held, that the evidence was insufficient to charge the latter company. South Carolina B. B. Co. v. Brad- ford and Saunders, 10 Richardson's Law (So. Car.), 307. 1857. 265. — Parol evidence that a corporation established by law in another state has held itself out through its agents, as a common carrier over a railroad in Massachusetts, is prima facie evidence sufficient of its capacity to contract for such carriage. McCluer v. Mancliester and Lawrenceburg B. B. Co., 13 Gray (Mass.), 124. 1859. 266. — The consignor of cotton, who is the owner thereof, may maintain his action against a comuion carrier for the loss of the cotton ; and the consignee, who is a mere fac- tor, may be a witness for him. Western ana Atlantic B, B. Co. v. Kelley, 1 Head. (Tenn.). 158. 1858. 267. — In an action to recover damages of a railway company for injury to a lot of flour, during its transportation, the evidence of a witness, who only saw a part of the flour ex amined at the place of destination is admis- sible in behalf of the plaintiff'. The objec- tion that he only saw a part of the flour does not affect his competency. Winne ■!). Illinois Central B. B. Co., 31 Iowa, 583. 1871. 268. — In a suit against a common carrier for the value of household goods lost, it is competent for plaintiff to ask a witness as to value, whose opinion is based upon a knowl- edge of the articles lost, and not on his skill as an expert, his opinion as to their value in bulk. The plaintiff is not obliged to restrict the examination to the value of each article, and in that way arrive at their total value; nor is it incumbent on him to show the pro- cess by which the conclusion of the witness is reached. Seyfarth v. St. Louis and Iron Mountain B. B. Co., 53 Mo., 449. 1873. 269. — In an action by the owner of goods against a common carrier, a cartman em- ployed by the plaintiff to deliver the goods, is a competent witness for the plaintiff to prove the delivery, without a release, though the defendant offer to prove to the court that the goods were lost by the misconduct of the. witness. Moses «. Boston and Maine B. B. Co., 34 N. H., 71. 1851. 270. Forwarding. A railroad company that undertakes to cai'ry goods over its road, and forward them to a place beyond the ter- mination of its line of transportation, is bound to deliver the goods to the consignee, with notice of the ultimate destination and ownership of such goods. Selma and Merid- ian B. B. Co. v. Butts, 43 Ala., 385. 1869. 271. — The notice must be given by some agent or servant of the company, especially charged with that duty, and in a reasonable time after the goods have reached the point of reshipment, from which they are to be for- warded. In such a case, notice to one mem- ber of the firm who are consignees, is suffl- 92 CARRIERS OF MERCHANDISE. Liability of Carriers Grcnerally. cient; it need not be given to eacli member of the firm. lb. 272. — Tlie New Tork and Erie R. R. Co. received goods for transportation directed to a point beyond the terminus of its route, and known to be so by the shipper. At the time of receiving them the agent of the company told the shipper that it would not be necessa- ry for him to have any one at the terminus to receive the goods, but that they would be shipped right through to the place of their ultimate destination. There being no evi- dence that the company received, or agreed to receive, freight for the entire distance, held, that the company was not liable, as a com- mon carrier, for the safe carriage and the de- livery of the goods at their final destination. It was liable, as a common carrier only, to the terminus of its road, and thereafter its lia- bility was that of a forwarder. Dillon v. New Fork and Erie S. B. Co., 1 Hilton (N. Y.), 331. 1856. 273. — For the plaintiffs doing business in Columbia, goods were shipped from New York to Charleston to the care of the S. C. R. R. Co., whose course of business it was to re- ceive and forward goods so addressed : Seld, that the company was not liable as a carrier until the goods were received for carriage. As a forwarding agent it would be liable for not taking all the care that a prudent man would do about his own business. Mayhin and Van Wirt v. South Carolina B. R. Co., 8 Richardson's Law (So. Car.), 340. 1855. 274. Flood. A railroad company which negligently delays the transportation of goods delivered to it as a common carrier, and then transports them safely to their destination, is not responsible for injuries to the goods by a flood while in its depot at that place, although the goods would not have been exposed to such injury but for the delay. Denny v. New Torh Central B. B. Co., 13 Gray (Mass.), 481. 1859. 275. — An unusual and extj-aordinary flocjd in a river is such an act of God as excuses a common carrier from his liability, at' all events for goods he has undertaken to trans- port ; but even in such a case, the carrier is bound to exercise the care of a very prudent man to preserve the goods entrusted to him for carriage. Wallace, Superintendent, etc., v. Clayton, k 0:3.., UZ. 1871, 276. — The fact that the carrier has done what is usual, is not suflficient to exempt him from a charge of negligence. He must show that he has done what was necessary to be done under all the circumstances. Wing v. New Tork and Erie B. B. Co., 1 Hilton (N. Y.), 335. 1856. 277. Freezing of fruits, etc. W. shipped 144 barrels of potatoes by the B. C. & N. Y. R. R. for New York, paying that company the freight for the entire distance. The pota- toes were delivered by that company to the N. Y. & E. R. R. Co. at C, to be transported to New York. While in their custody and on the deck of a barge in the North river, they were frozen. Held, that the N. Y. & E. R. R. Co. was liajile to the owner for the injuries occasioned to the potatoes by freezing. lb. 278. — In an action against a common car- rier for damages caused by the freezing of certain casks of wine, where it appeared in evidence that the cold weather was not the sole, nor entirely the proximate, cause cf the injury, and that the loss would not have taken place nor the damage occurred, had not the negligence and inattention of defendant co- operated with the cold: held, that plaintiff was entitled to recover for the loss of the merchandise. Where no restriction is stipu- lated for, the common carrier is held liable as an insurer, and is responsible in that high degree of diligence commensurate with the duties he assumes. And his liabilities will extend to agencies which the violence of na- ture causes in consequence of his negligence or defective means. Wolf v. American Ex- press Co., 43 Mo., 421. 1869. 279. — If a railroad train of nine cars, loaded with various lots of freight, becomes obstructed by a snow storm so that four of the cars must be left behind on a cold night without shelter, and the conductor is able to select which cars shall be left, and knows that one car contains goods which will be in- jured by freezing, he is not bound, as matter of law, to take that car forward rather than other cars containing goods of which in re- spect to their liability to injury by freezir g he knows nothing. Swetland v. Boston and Albany B. B. Co., 103 Mass., 276. 1869. 280. — Where potatoes were left by the plaintiff at a certain depot under a contract for their transportation to Chicago, on the CARRIAGE OF MERCHANDISE. 93 Liability of Carriers Generally. same day, and they were not shipped until next day, it was not error, in an action for in- juries to the same by freezing in transitu, as alleged, in consequence of delay in shipment, to permit a witness to testify as to their con- dition when seen by him in the warehouse of the consignee at Chicago, a week or more af- ter they were shipped. It was a question to be determined upon the whole evidence, whether the potatoes were frozen in transitu, or after their arrival in Chicago. Curtis v. Chicago and Northwestern R. B. Co., 18 Wis., 313. 1864. 281. — Nor was it error to permit tlie wit- nesses to give their opinion as to the weather, and whether it was cold enough to freeze them while on the cars and in the store-room at Chicago. lb. 282. — If a carrier cannot carry all the property received at the same time for trans- portation, he may give preference to perisha- ble property, over that which is not perisha- ble; and if either must wait it should be the latter. Marshall v. New York Central £. jffi. Co., 45 Barbour (N. Y.), 503. 1866. 2S3. — Where a raihvay company receives fruits for carriage, it will be lield to the obli- gations and duties required in the carriage of that kind of goods. Heed «. Philadelphia, Wilmington and Baltimore B. B Co., 3 Hous- ton (Del.), 176, 1865 ; Truax ». Same, ib., 233. 284. Fruits; contract. An arrangement made with a committee of a peach growers' convention, to run a special train during the peach season, making certain connections, such an arrangement being duly advertised by the company, will not constitute a special contract with the peach growers of the state, or with any one of them. Ib. 285. Handling of goods. A carrier is lia- ble for injury to goods by careless handling, where they have been properly packed for shipment. Culbreth ■». Philadelphia, Wilming- ton and Baltimore B. B. Co., 3 Houston (Del.), 393. 1866. 286. Inevitable accident; cars thrown from the track. The company cannot ex- cuse itself, as for an inevitable accident, by showing that the cars were thrown off the track by accidentally running over a man ; if it appear that the man was a drover attending to cattle on the train, and fell off because no proper place was provided for such attend- ants, and he was compelled to stand on the bumpers. Even if he fell off by his own carelessness, this does not excuse the com- pany for putting him in a position where his carelessness is productive of injury to others. Coldey v. Pennsylvania B. B. Co., 30 Penn. St., 343. 1858. 287. Instructions. A common carrier will be held liable for damage to goods, resulting from disobedience to directions, given by the owner and assented to by the carrier, respect- ing the mode of conveyance. Sager v. Ports- mouth, etc., B. B. Co., 31 Me., 328. 1850. 288. — Where the owner has given the carrier instructions to forward immediately, goods which are to be afterwards delivered by a cartman, and the cartman at the time of the delivery, without authority from the owner gives contrary directions, the owner is not bound by such directions of the cartman, nor can the carrier protect himself by them. Moses V. Boston and Maine B. B. Co., 24 N. H., 71. 1851. 289. — Although a deviation from the in- structions of the shipper may be made, in case of an unforeseen necessity, such devia- tion cannot be made for the mere convenience of the carrier, without rendering the carrier ' liable for the risk of consequent injury or loss. Johnson v. New York Central B. B. Co., 38N. Y., 610, 1865; reversing Same v. Same, 31 Barbour (N. Y.), 196, 1857; and Same v. Same, 39 Howard's Pr. (N. Y.), 127, 1870. 290. — Where goods are delivered for shipment ■ erroneously marked, and subse- quently, before shipment, the direction is cor- rected with the assent of the carrier, such change does not affect the .liability of the car- rier as an insurer. Dunson v. New York Cen- tral B. B. Co., 3 Lansing (N. Y.), 265. 1870. 291. — Instructions to forward goods forth- with, may be inferred from an established course of dealing between the owner and car- rier, without direct evidence of such instruc- tion. Moses v. Boston and Maine B. B. Co., 24N. H.,71. 1851. 292. — So the assent of the carrier to the delivery of goods may be inferred from a like course of dealing without any express act or assent of the carrier or his agents in relation to the particular goods in question. Ib. 293. Intermediate consignees. In regard to the payment of freight, intermediate con- 9i CARRIAGE OF MERCHANDISE. Liability of Carriers Q-eiieriilly. signees stand iu tlie same attitude as respects the carrier of tlie goods, as the ultimate con- signees and owners assume. Oanfield v. North- ern B. R. Oo., 18 Barbour (N. Y.), 586. 1854. 294. — A request, In a bill of lading, to pay freight, on condition that the property is de- livered, is addressed to every consignee named; and the acceptance of the property subject to charges, creates an implied under- taking to pay those charges. Ih. 295. — An intermediate consignee to take care of, and forward, the goods, cannot with- out special authority in the bill of lading, ad- just the matter of damages on account of los- ses or injuries thereto; and has no right to insist upon such adjustment as a condition of paying the freight to which the goods were subject when they came into his hands. lb. 296. Leakage. Where a cask of brandy was sliipped by the plaintifl", at S., on the de- fendant's railroad, consigned to a person at O., which was proved to have been in good order when it left the plaintiff's store to be de- livered to the defendant, and to have been re- ceipted by the defendant's agent, but when it was delivered to the consignee, the cask was injured and leaking, and a portion of the con- tents gone; held, that the justice was war- ranted in finding, upon this evidence, that the cask was in good order when delivered. Hffwe ®. Oswego and Syracuse S. S. Co., 56 Barbour (N. Y.), 121. 1867. 297. — Where brandy was shipped by railway, and a part was lost by leakage, it was held, that in the absence of any proof that the remainder was of less value per gallon, by reason of such leakage, it was the duty of the consignee to receive it and hold the company liable only for the portion that was lost. lb. 298. — H. delivered to the Central Ohio R. B. Co.', at Newark, Ohio, two hundred and fifty barrels of coal oil to be transported to Bell Air, in the same state, by the said com- pany, thence by way of the Baltimore and Ohio R. R. to Baltimore, and thence by steamer to New York, there to be delivered to S., or his assigns. The oil was delivered to the Baltimore and Ohio R. R. Co. at Bell Air, and reached Baltimore, where, upon being taken from the cars of the company, it was placed in an open lot near the company's warehouse on Locust Point, and thence for- warded to New York, where, upon its arrival, it was ascertained there was a deflciepcy in quantity of sixty-seven barrels. Held, that the responsibility of the proper custody and storage of the oil after it was unladen from the cars in Baltimore, attached to the Balti- more and Ohio R. R. Co. as a warehouseman and forwarder, and it was bound to use ordi- nary care and diligence in its protection. Baltimore and Ohio H. B. Co. v. Schumacher, 39 Md., 168. 1868. 299. Leased lines. A railroad corporation cannot dispute its liability for freight deliv- ered to it to be caiTied over a railroad leased to it, on the ground that the lease is void. McCluer v. Manchester and Lawrence B. B. Co., 13 Gray (Mass.), 124. 1859. 300. —A railroad company which has leased a portion of another railroad connect- ing with its own is not exempted from liabil- ity to the owner of goods delivered to it at a depot on the portion so leased, by any agree- ment with the proiDrietors of that road. lb. 301. Lien for carriage. A common car rier who has received goods from a wharfin- ger, with -whom they have been deposited by their owner without, authority to forward them, has no lien on them for freight against thc^ owner. Glark v. Lowell and Lawrence B. B. Co., 9 Gray (Mass.), 231. 1857. 302. — A common carrier, receiving goods from a wrongdoer, has no lien thereon against the rightful owner, even for freight which he has paid to a previous carrier, by whom the owner had directed them to be carried. Ste- vens V. Boston and Worcester B. B. Co., 8 Gray (Mass.), 263. 1857. 303. Loading. The duty which a railroad company, in the management of its trains, owes to a shipper of freight while lading the same, is the exercise of that ordinary care which every man owes to his neighbor. Stin- son V. New York Central B. B. Co., 33 N. Y., 333. 1865. 304. Marks. Where a common carrier re- ceives goods marked for a particular place beyond the terminus of his route unaccom- panied by any directions as to their transpor- tation and delivery, except such as may be in- ferred from the marks themselves, he is prima facie bound to carry and deliver them ac- cording to the marks. Angle & Co. v. Mississ- ippi and Missouri B. B. Co., 9 Iowa, 487. 1859. CARRIAGE OF MERCHANDISE. 95 Liability of Carriers Generally. 305. — The marks upon bales o'f cotton are no evidence of a contract as to their ship- ment. Rome B. B. Go. v. Sullivan, 35 Ga., 328. 1858. 306. — Where Koods are delivered to a car- rier marked for a particular destination, with- out any directions as to their transportation and delivery, except the marks on the goods, the carrier is only bound to transport and de- liver them according to the established usage of his business. Hempstead v. New York Cen- tral B. B. Oo., 28 Barbour (S. Y.), 485. 1858. 307. Missent goods. A railroad company is not liable for a mistake made by its agent in Chicago in forwarding goods directed to a point near the line of its road in Iowa, such agent having used due care and diligence, al- though its agents in Iowa knew the proper route for sending the goods. Oongar 'e. Chi- cago and Northwestern B. B. Co., 34 Wis., 157^ 1869. 308. — The plaintiff was guilty of con- tributory negligence in omitting the name of the county in marking the goods, where there were two places of the same name in the state. lb. 309. — A railroad company, whose road ended in Boston, received at a way station goods addressed to St. Louis, which it agreed to convey to Boston, and forward thence by the Merchants' Express. But instead of de- livering them to the Merchants' Express at Boston, it forwarded them to New York by other carriers, who there delivered them to a company styled the Merchants' Express and Transportation Co., which conveyed them thence to St. Louis, at a cost greater than that of the Merchants' Express. Held, that the railroad company was liable to the consignor of the goods for the difference in cost; and that it was immaterial that its general freight agent was ignorant of the Merchants' Ex- jjress line from Boston, and failed to be in- formed of it upon inquiry of several persons. Prootor «. Eastern B. B. Co., 105 Mass., 513. 1870. 310. Money. A person carrying a large sum of money in a carpet bag cannot, by keeping the possession of such carpet bag, avoid the payment of freight upon such money. Hutehings ®. Western and Atlantic B. B. Co., 25 Ga., 61. 1858. 311. — Common carriers are not liable for the loss of money packed among other goods in a box in such a way as to deceive and mis- lead them. To be held liable they should be told of the contents. Chicago and Aurora B. B. Co. •». Thompson, 19 111., 578. 1858. 3 J 2. — An emigrant having packed and shipped a quantity of gold coin in the center of an ordinary dry goods box, filled with clothing and household goods: held, if this was calculated to deceive the company as to the value of the contents, and by no reasona- ble inference could it have been suiDposed that the box contained coin, the company will not be held liable as a common carrier. Ku- ter V. Michigan Central B. B. Co., 1 BisscU (U. S. C. C), 35. 1853. 313. Mistake; payment. The defendants, applied to the agent of a railroad company to transport fifty thousand laths from M. to H., and inquired the expense of transportation. The latter having asked how many bundles that quantity would make, a companion of the defendants, to whom they referred the in- quiry, replied, five hundred, but said agent understood him to say one hundred, and he thereupon gave the defendant the price of ti'ansporting one hundred bundles as tlie price of transporting five hundred bundles, which price the defendants agreed to pay. Held, that the misunderstanding of the agent in re- gard to the quantity of laths, prevented that meeting of the minds of the parties which was essential to a contract between them. Hartford and New Haven B. B. Co. v. Jackson, 34 Conn., 514. 1856. 314. — Such corporation having discovered the misunderstanding, and, although con- scious that the defendants had no knowledge of it, forwarded said laths. Held, in an action brought to recover the price of transportation, at the usual rates, that this circumstance did not preclude the plaintiffs from claiming, on the trial, that such a mistake occurred, but was merely evidence, to be submitted to the jury, of the plaintiff's assent to the price, as understood by the defendants. lb. 315. — Where, on such trial, the defend- ants claimed that the transmission of the laths by the plaintiff constituted, in law, an assent by it to the terms of the contract, as understood by the defendants, and that the plaintiff was therefore precluded from show- ing that there was any such mistake, arid the 96 CARRIAGE OF MERCHANDISE. Liability of Carriers Generally. court instructed the jury in conformity ■with sucli request, it was held, that such instruction was erroneous. lb. 316. Negligence. It is negligence in a carrier to omit to furnish for its vehicles any improvement known to practical men, and which has actually been put into practical use ; but a failure to take every possible pre- caution which the highest scientific skill might suggest, is not, of itself, negligence. ' Steinweg «. JEJrie B. S. Co., 43 N. Y., 133. 1870. 317. — The want of suitable vehicles, in which to transport articles, is negligence on the part of the carrier. Sager v. Portsmouth, etc., B. B. Co., 31 Me., 228. 1850. 318. Notice of arrival of goods. A car- rier should give notice of the arrival of goods. Sprague v. New York Central B. B. Go., 52 N. Y., 687. 1873. 319. — No notice to the consignee, where the goods arrive on time, is necessary to re- duce the liability of the company from that of a common carrier to that of a warehouse- man. Southwestern B. B. Co. v. Felder, 46 Ga., 433. 1873. 320. — The consignee, after notice of the arrival of the goods, is bound to take them away within a reasonable time. Culbreth ■». Philadelphia, Wilmington and Baltimore B. B. Co., 3 Houston (Del.), 392. 1866. 321. — Common carriers are excused from personal delivery of goods, but in lieu of de- livery they must give notice to the consignee of the arrival of the goods, and their liability as carriers continues until the consignee has a reasonable time to remove the propert3'. Michigan Central B. B. Co. v. Ward, 2 Mich., 538. 1853. 322. — Under the charter of the Michigan Central R. R. Co., its liability as a common carrier does not cease until notice is given to the consignee. After such notice the com- pany is liable only as a warehouseman. lb. 323. — That company cannot, under its charter, limit its liability as a carrier. lb. 324. — Notice to the consignee of the ar- rival of goods is not necessary to terminate the liability of a railway company as a car- rier. Chicago anfl Alton B. B. Co. v. Seotf, 43 111., 133. 1866. 325. — Where it is the custom of the com- pany to give notice of the arrival of freight, it is its duty to do so, and a failure to do so will render it Liable for the difference in value of the goods between the time of arrival and the time when the notice was actually given. New Orleans, Jackson and Great Northern B. B. Co. V. Tyson, 46 Miss., 739. 1872. 320. — The consignee should sell the freight for the market price, and cannot hold the company liable for its full value. lb. , 327, — It is a very extreme case that would justify the consignee in refusing to receive the goods. 76. 328. — If notice of the arrival of goods, requiring their removal in twenty-four hours, is given, it does not follow that the liability as carrier continues for that time ; such a no- tice only implies that the goods may remain twenty-four hours free of charge. Bichaa-ds V. Michigan Southern and Northern Indiana B. B. Co., 20 111., 404. 1858. 329. — Where freight is carried from sta- ■ tion to station, if the owner is not ready to re- ceive it at its destination, the duty of the car- rier is discharged by placing it in the ware- house of the company without giving notice to the owner or consignee. Neal v. Wilming- ton and Weldon B. B. Co., 8 Jones' Law (N. C), 483. 1862. 330. — Goods were shipped on a railway for a place thirty-six miles distant, the ship- per was at their destination in three days' time to receive them, and occasionally for twelve days, and they had not arrived ; the freight agent then informed him that he would give notice of their arrival ; they ar- rived six days afterwards. Held, that the com- pany was bound to give the shipper notice. Tanner v. Oil Creek B. B. Co., 53 Penn. St., 411. 1866. 331.— The facts in the case did not entitle the shipper to treat them as lost, and bring suit for their value. lb. 332. — Where a carrier of goods notifies the consignee of their arrival, and that they must be unloaded and taken away by a speci- fied day, and then causes the goods to be un- leaded before that time, and they receive in- jury in consequence, the carrier is liable as such, for the damage. Cook v. Erie B. B. Co., 58 Barbour (N. Y.), 313. 1870. 333. — Where the consignee lives at a dis- tance of eighteen miles from the place of destination of goods, the carrier is not re- quired to notify him of their arrival. But if CAKKIAGE OF MEKCHANDISE. 97 Liability of Carriers Generally. he has an agent at the place of delivery known to the carrier, such agent should be notified. Finney «. 8t. Paul and Paaijic S. B. Co., 19 Minn., 251. 1872. 334. Order of shipment. The ordinary business of a railway is the measure of its obligation to furnish transportation. In case of a sudden influx of freight, it will be re- quired to ship in the order of time in which it is offered. Ballentine v. North Missouri JR. .H. Co., 40 Mo, 491. 1867. 335. Owner accompanying goods. The liability of the carrier is not lessened by the fact that the goods "are loaded by the owner, or that the owner accompanies the property and keeps watch for its safety. Hannibal li. B. Go. V. Swift, 12 Wallace, 262. 1870. 336. Owner's right to resume possession. Where a party delivers to a railroad company, chattels to be transported from the point oi delivery to another designated point on its line, and pays the charges for such transporta- tion in advance, he has the right, as against the company to resume the exclusive posses- sion and control of his chattels before they have reached their destination, whenever and wherever he can do so without unreasonable interference with the business of the com- pany. Cleveland and Pittsburg B.B.Co.v. Sar- gent, 19 Ohio St., 438. 1869. 337. — If he do thus resume exclusive possession and control of his chattels, during the time within which the company might, without unreasonable delay, proceed in the performance of its contract of affreightment, and receive them in good order and condi- tion, he thereby absolves the company from further resisonsibility on their account. lb. 338. — A railroad company having no in- terest in a contract for through transportation made between other parties, cannot prevent the consignee from stopping the goods before reaching its line of road. If it carries the goods over its line in spite of the objections of the consignee, it will have no right to col- lect any freight or expenses. Withers v. Ma- con and Western B. B. Co., 35 Ga., 273. 1866. 339. — The shipper cannot, by notice to the carrier, compel him to stop the goods at an intermediate point, when the goods are shipped to a consignee, Pinnix v. Charlotte and South Carolina B. B. Co., 66 N. C, 34. 1872 7 340. Partial loss. Where a part, only, of property transported by a common carrier, is injured, and the remainder is safely carried to the point of destination, the consignee or owner cannot, in consequence of the injury to a part reject the part uninjured, and hold the carrier liable for the whole. Michigan Soutliern and Northern Indiana B. B. Co. v. Bivens, 13 Ind., 263, 1859; Shaw v. So. Car. B. B.Co., 5 Richardson's Law (So. Car.), 462. 1852. 341. — The carrier is not made liable for the whole, by a failure to offer to deliver the uninjured part. A carrier by railroad is not bound to make personal delivery of the prop- erty to the consignee, nor to offer to deliver it. Quere, whether he must give notice of its ar- rival, lb. 342. Parties to action. The plaintiff, who carried on business in her own name, having possession of certain goods, claiming to own them, delivered them to the defendant's agent, for the purpose of being transported. In an action on the case for the loss of the goods, it was held, that the plaintiff was entitled to re- cover, although some third person mighthave an interest in her business, as the legal intci'- est in the contract resided in her. Mayall v. Boston and Maine B. B. Co., 19 N. H., 122. 1848. 343. Passenger train, The plaintiff sent by a passenger train a quantity of merchan- dise, expecting to go himself in the same train, but did not. The goods were lost with- out any gross negligence in the carrier, or any conversion by him. Held, that the car- rier was not liable for the loss. Collins v. Bos- ton and Maine B. B. Co., 10 Gushing (Mass,) 506. 1852. 344. — Evidence that the conductor of a railway passenger train had carried goods and eggs to market for an individual, does not tend to show that the company is a common carrier of goods by such trains, where it does not appear that he rendered such services by virtue of any authority derived from the company, or that any compensation was re- ceived for them, either by the company or himself. Elkins «. Boston and Maine B. B Co., 3 Foster (K. H.), 275. 1851. 345. — One instance of the transportation of goods by a railway passenger train, and of the payment of freight for them, does not tend 98 CARRIAGE OF MERCHANDISE. Liability of Carriers Generally. to prove that the company exercises the busi- ness of a common carrier by such trains, as a public employment, or undertakes to carry goods in such way for persons generally; and is not competent evidence to be submitted to the jury as tending to prove it to be a common carrier of goods by such trains. lb. 346. — The plaintiif delivered certain arti- cles to a ticket master to be transported by a passenger train, and requested him to label them, which he promised to do, but wliich it did not appear was done. It was neither his duty nor the duty of the company to affix la- bels en articles. Meld, that as there was noth- ing to indicate the owners name, or the place to which the articles were to be sent, and as the promise of the ticket master did not bind the company, they were not liable for the loss of the articles. lb. 347. Pleadings. The declaration did not charge that defendant received certain cotton in its character of common carrier, and the pre- siding judge charged the jury that they might find the defendant liable as such for the loss of the cotton. On appeal by defendant, held, that in this there was error, and a new trial was ordered. Smith b. King's Mountain B. B. Co., 3 So. Car., N. S., 53. 1871. 348. — Under a declaration in contract. Which 'alleges the receipt by the defendant, as a common carrier of goods for transporta- tion to the plaintiff, and the injury of the goods, " though the fault of the defendant," while in its care and custody, and before de- livery to the plaintiff, the plaintiff may re- cover for an injury of the goods through ac- tual negligence of defendant. Medfield School Dist. V. Boston, Martford and Erie B. M. Co., 102 Mass., 553. 1869. 349. — In a suit against a common carrier, for failure to deliver goods, the complaint must show that after the Carrier received the .goods to be transported, areasonable timehad elapsed, in due course of transportation, fur the delivery of the goods, before the demand was made, and also that the defendant's rea- sonable freights and charges have been paid or tendered, or a reason given for not having done so. Jeffersonville, Madison and Indian- apolis B. B. Co. V. Gent, 35 Ind., 89. 1871. 350. Ponltry.^ The defendant was a car- rier of freight by a steamboat making daily trips from Bridgeport to New York, and was accustomed to carry dressed poultry for the plaintiffs, who were dealers in that article, and who lived upon a railroad running into Bridgeport. It was their custom to send the poultry packed in boxes by the railroad, in season for the boat, to be forwarded by the agents of the railroad by the boat, unless there was reason to fear that the boat would be de- tained, and in that case, by the New York railroad ; and in several cases where the boat was detained, the agents of the boat had trans- ferred the poultry to the railroad, for the even- ing freight train to New York. A quantity of poultry was sent by the plaintiffs by the railroad on the 13th of May, and delivered on board the boat, packed in ice, and directed to certain poultry dealers in New York, and a receipt taken for the boxes, stating their con- tents, signed by the clerk of the boat. The delivery was iu season for the trip of that day, but the boat was detained by the I'og and did not leave until the 15th of May. The de- lay was unavoidable. No care however was taken of the poultry by the persons in charge of the freight, and in consequence the ice melted, and the poultry became injured. Held, that the defendant was liable. Seld, thai it was no excuse that the clerk of the boat signed the receipt without examination, and had no actual knowledge of the contents of the boxes. Peck v. Weeks, 34 Conn., 145. 1867. 351. Receipt. A receipt given by the con- signees of goods to the carrier, acknowledg- ing their receipt in good order, and in which the consignees are requested to notice any errors therein in twenty-four hours, or the carrier will consider himself discharged, does not estop the consignor from suing the car- rier for damages caused by negligence in transporting the goods, although no notice wag given tliereof to the carrier. Sanford ■». Housatonic B. B. Co., 11 Cushing (Mass.), 155. 1853. 352. — Where the agent of a railroad com- pany, signed a receipt for a lot of furniture for shipment, among which was specified *' 1 cradle," which had a carpet wrapped around it, was bound with cords, and contained a va- lise with wearing apparel in it, and the agent was informed what the cradle contained; it was held, that the company was bound to carry not only the cradle, but also the goods then in it, and was liable for their loss. Harmon v. CARRIAGE OF MERCHANDISE. Liability of Carriers Generally. Ifew York and Erie B. R. Oo., 38 Barbour (N. Y.), 323. 1858. 353. — The statement in a receipt given by a railroad company that goods were received in good order, is not conclusive evidence of that fact, but may be rebutted. Illinois Central B. B. Oo. v. Cowles, 33 111., 116. 1863. 354. — A receipt for goods, given in the usual form by a common carrier, implies an agreement to transport the goods to their des- tination if upon the carrier's line. Landes v. Pacific B. B. Co., 50 Mo., 346. 1873. 355. Seizure on legal process. A com- mon carrier is exonerated from his obligation to h'is bailor, where the property of the latter is taken by legal process, and where the car- rier immediately notifies the owner of such taking. Blimn v. Hudson Biver B. B. Co., 86 N. Y., 403. 1867. 356. Special contract. The mere promise of a carrier to forward freight, (already en route,) without any additional consideration, by an earlier train than usual, is not evidence from which a special contract will be inferred. Bailroad Oompany «. Beeves, 10 Wallace, 176. 1869. 357. Title. A carrier who contracts with a corporation to transport goods for it, can- not defend an action for damages resulting from its negligence in transporting such goods, on the ground that the corporation could not lawfully acquire title to them. Farmers^ and Millers^ Bank «. Detroit and Milwaukee B. B. Go., 17 Wis.. 873. 1863. 358. — Acts done by corporations in vin- lation of their charters are not necessarily void. They may by such acts acquire title to property and transmit it to others. lb. 359. — A common carrier cannot dispute the title of the person delivering goods for shipment by setting up adverse title in him- self, or in third persons, which is not being enforced against him. Wallace, 8upH, v. Mat- thews, 89 Ga., 617. 1869. 360. — The carrier is the agent of the con- signor from whom he receives the properly, and is not at liberty to dispute the consignor's title in an action brought by him. Great West- em B. B. Oo. ■». McOomaa, 33 111., 185. 1864. 361. — When the conract is executory, and the consignee is only bound to pay for the goods when delivered to him by a given day, and at a particular place, the consignor is the owner of the goods until delivered, and the proper person to sue the carrier if lie fails to deliver the same. East Tennessee and Geor- gia B. B. Oo. B. Nelson, 1 Coldwell (Tenp.), 373. 1860. 362. — The shipper of goods, who has con- tracted tor their safe conveyance, may sue for injuries in their transportation, although the title of the goods has vested in the consignee. Hooper v. Ohieago and Northwestern B. B. Oo., 37 Wis., 81. 1870. 363. Trover. Gtoods were sent by a sealed railroad car, to be delivered unbroken at the place of destination. The railroad compan}' on the way oiDCned the car and transfen-ed the goods to another. The owner refused to re- ceive them and brought trover. Held, that if the goods were removed for the convenience of the carrier, and were afterwards delivered without loss of quantity, and without injury, the carrier would not be liable in trover. Tucker v, Housatonic B. B. Oo., 39 Conn., 447. 1873. 364. Unloading. Railway companies are liable for want of ordinary care in their ser- vants in unloading freight from their cars, though the consignee has neglected to un- load it, knowing it to be the rule of tlje car- riers that he must unload freight, and that if he did not unload it within a certain time the carriers would. Kimball ». Western B. B. Oo., 6 Gray (Mass.), 543. 1856. 365. Vendor and Vendee. As a general rule, an action against a carrier for the loss of goods sent by a vendor to a vendee, must be brought in the name of the consignee; for the law infers that, by the delivery to the carrier, the goods become the property of the consignee, and this though the consignor pay the freight ; but where, by agreement between the vendor and vendee, the goods did not be- come the property of the latter, and he was at no risk in regard to them until they actually reached him, the consignor should sue. Mad- ison, Indianapolis and Peru B. B. Oo. v. Whitesel, 11 Ind., 55. 1858. 366. — Where the purchaser of a chattel (being dissatisfied with it) resliipped it to the vendor, and afterwards — the chattel not hav- ing come to the vendor's hands — paid him therefor : held, that the right of action against the carrier for its loss was in such purchaser. 100 CARRIAGE OF MERCHANDISE. Liability of Carriers Generally. Ralph V. Chicago and, Nortlmestern B. B. Co., 83 Wis., 177. 1873. 367. War: loss of goods; destruction by soldiers. A common carrier may, for reason- able cause, refuse to receive goods, but if he once receive them, he becomes an insurer, and it is no excuse to show that the military au- thorities were using the road in removing troops, and that the troops destroyed the goods. Porcher v. N'ortJieastem B. B. Co., 14 Richardson's Law (So. Car.), 181. 1867. 368. — A party can recover damages only when they are the natural and necessary con- sequence of the act complained of. The act of public enemies is an excuse to a carrier for a loss of goods delivered to him, if the loss was not occasioned by his own negligence or want of proper care. The carrier is bound to transport and deliver the goods within a reasonable time, and without unnecessary de- lay, but his failure so to do will not make him responsible for losses not occasioned b; such delay. Clarlc v. Paeifie B. B. Co., 39 184. 18(J8. 369. — To exonerate a common cj upon the ground that the goods wer/ through the act of the public enemy, he should establish that fact by clear and satis- factory evidence. Van Winkle v. South Caro- lina B. B. Co., 38 Ga., 33, 1868; Fla»h, Sari- well & Co. V. New Orleans, Jadlcson and &>'eat Northern B. B. Co., 33 La. An., 353, 1871. 370. War of 1861. The shipment of to- bacco from Charlotte to Columbia, on the 4th day of February, 1865, cannot be deemed the proximate cause of its loss by the burning of Columbia by Gen. Sherman, on the 17th of the same month. Pinnix t. Charlotte and South Carolina B. B. Co., 66 N. C, 34. 1873. 371. — Destruction of whisky by a provost marshal, under the authority of the Confeder- ate States, in 1863, cannot be claimed as the act of a public enemy, by a railroad company situated within the limits of that government, and recognizing its control. Patterson v. North Carolina B. B. Co., 64 N. C, 147. 1870. 372. Warehouseman. A railway compa- ny is bound to store goods upon their arrival if not delivered, unless there is some well known usage to the contrary. McSenry ii. Philadelphia, Wilmington and Baltimore B. B. Co., 4 Harrington (Del.), 448. 1846. 373. — Where goods have been carried to their place of destination and there deposited in the carrier's warehouse, to await the own- er's convenience in taking them away, the caiTiers are only subject, in respect to such goods, to the responsibilities of warehouse- men. McCarty v. New York and Erie B. B. Co.,30Pemi. St., 347. 1858. 374. — The owner of such goods is bound to take notice of the usage of the carrier to store them on their arrival at their place of destination. Jb. 375. — This is the rule, although the con- signee has had no opportunity to remove the goods before they have been destroyed by fire. Norway Plains Co. t. Boston and Maine B. B. Co., 1 Gray (Ma,ss.), 363. 1854. 376. — The warehouse or depot at the town or station to which goods are shipped by railroad, is the proper place of delivery to the consignee. When they are discharged from the cars, and, in the absence of the con- signee, are safely stored in 'the company's rehouse, the liability of the railroad com- ly as a common carrier is terminated, with- itice to the consignee of the arrival of 'oods. Bansemer v. Toledo and Wabash : Co., 35 Ind., 434. 1865. 77. — When goods are thus stored, the liaracter of a warehouseman attaches to the company, and as such it is required to keep the goods in store for the consignee for a reasonable time, without additional reward. But during such time the company is only liable as a warehouseman. Ih. 378. — After goods have amved and been stored at the station where they were destined, the can-ier is not liable except for negligence after a reasonable time has elapsed for their removal. Thomas v. Boston and Prividence B. B. Co., 10 Metcalf (Mass.), 473. 1845. 379. — After the goods are safely stored and protected from the weather, and from ' trespassers, and ready for delivery, the rail- road company becomes a warehouseman lia- ble only for ordinary care. Ayres v. Morris and Essex B. B. Co., 5 Dutcher (N. J.), 893. 1863. 380. — A gratuitous bailee is liable only for gross neglect. MeCombs v. North Carolina B. B. Co., 67 N. C, 193. 1873. 381. — In an action against a railroad company to recover for property stolen from it while in its care, as a warehouse- CARRIAGE OF MERCHANDISE. V-r 4^ ^\] Liability of Carriers Generally. v irtr man, eyidenoe is competent in defense to show that it exercised the same degree of care in relation to tlie property that was usually exercised in tlie vicinity in relation to such property by other railroad companies. Gass o. Boston and Lowell R. S. Co., 14 Allen (Mass.), 448. 1867. 382. — Where the owner of goods carried by railroad is present at their arrival, and is told that the railroad company cannot store them for want of room, and he still leaves them on their hands, they may be chargeable as de- positories, if they assume the care of the goods by putting them in their storehouse. Smith 1). Ifashua and Lowell B. B. Go., 27 N. H., 86. 1853. 383. — Tliey may refuse to store them, and If they do nothing with them, or merely put them oflf their premises, without damage, they will not be chargeable. 76. 384. — But if, after such refusal, they as- sume any care of the goods, it will be compe- tent for the jury to find a waiver of the refus- al, and an assumption of the duties of depos- itories, lb. 385. — There is no presumption where the owner is notified that the carrier cannot store the goods, and is requested to take tliem away, but he still leaves them, that he has made the carrier's servants his own, although they may be forbidden to contract for the lieeping of the goods at the risk of the carrier. lb. 386. — The evidence being conflicting as to whether the defendants were to deliver cer- tain mules at M., or to deliver them to another railroad company at M., the employes of the company having permitted them to escape while being transferred from the one railway to the other, it was held proper to make the distinction between the duties of the company as common carriers and as warehousemen, and to submit to the jury the question of fact as to which capacity the defendant acted. Nortk Missouri B. B. Go. v. Akera, 4 Kan., 453. 1868. 387. — Where the goods arrive at the place of destination, and are placed in the ware- house of the company, the liability of a ware- houseman commences, and from that time it is bound only for the use of ordinary care and the burden of proof in case of loss is on the bailor. Jackson v. Sacramento Valley B. B. Co., 23 Cal., 369. 1863. 388. — Where in such action- tlie' proofs render it uncertain whether the goods were lost while being transported or after being de- posited in the warehouse, and there is no proof of the want of ordinary care, a new trial will be ordered. lb. 389. — A railway company is not liable as a common carrier, for property deposited in its warehouse to await orders for its transpor- tation from tlie owner. Michigan Southern and NortMrn Indiana B. B. Co. v. Sehurts, 7 Mich., 515. 1859. 390. — And where the company is prohib- ited in its charter from charging storage, it is only liable as a gratuitous bailee in such case. lb. 391. — In the absence of any usage, espe- cial circumstances or agreement, the liability of railway companies for goods in warehouse awaiting delivery is that of common carriers. Buckley v. Great Western B. B. Co., 18 Mich., 131. 1869. 392. — If anything remains to be done by the consignor of goods or his agents after their delivery to a railroad company, before they are ready for transportation, the compa- ny is only responsible for them as a warehouse- man, and not as a common carrier. Judson v. Western B. B. Co., 4 Allen (Mass.) 520. 1863. 393. — Where the distance on a railroad, over which a commodity was carried, was very short, and the consignee lived sixteen miles from the road, and no agent was pres- ent to receive it on its arrival, it was held, that the depositing of the commodity in the com- pany's warehouse at the point of delivery, ex- onerated it from the liabilities of a common carrier. Hilliard v. Wilmington and Weldon B. B. Co., 6 Jones' Law (N. C), 343. 1859. 394. — Suit to recover the value of goods shipped by railroad from C. to K. The goods were safely carried to K., and the consignee not being present to receive them, were there stored in the company's warehouse, which was reasonably secure. During the night the goods were destroyed by some un- known person, who entered the warehouse through a grain shoot. Seld, that the liability of the railroad company as a common car- rier was terminated when the goods were dis- cliarged from the cars and stored in the ware- house. Cincinnati and Chicago B. B. Co. ®. McCool, 26 Ind., 141. 1866. 102 CARRIAGE OP MERCHANDISE. Liability of Carriers Generally. 395. — The defendant, a railroad company, liaving transported for the plaintiff eighteen bains of cotton, lield the same at its warehouse to be called for by him, but ultimately deliv- ered to him but sixteen. The two other bales had been in some manner lost. In assumpsit against the defendant as a warehouseman for the nondelivery of the two bales, the plaintiflF having offered no proof of negligence except what was to be inferred from the receipt and non-delivery of the bales, and the defendant not having explained how the bales had been lost or in any manner accounted for them, nor shown that it had exercised reasonable care to prevent their loss, the court ruled that the defendant, to relieve itself from responsibil- ity for the goods, was bound to prove either a delivery to the plaintiff or that it had exer- cised ordinary care in keeping them, and that under the circumstances the burden was not on the plaintiff to show the manner of the defendant's negligence by means of which the loss occurred. Held, that this ruling, in the circumstances of the particular case, was cor- rect. Boies V. Hartford and New Haven B. B. Co., 37 Conn. 272. 1870. 396. — In the case of depositaries for hire where the goods are lost, the authorities are not agreed as to whether the burden of proof of negligence is on ihe owner of the goods or of reasonable care on the depositary. In England, it is held that the burden is upon the owner, but the courts in this country have in some cases held otherwise. lb.. 397. "Weight and Measurement. Although the Central R. R. Co. cannot charge for cotton both as "weight freight" and as "measure- ment freight," it may charge for either one or the other. Act of Sept. 1, 1850 ; Central B. B. Go. V. Hearne, 32 Tex., 546. 1870. 398. — A quantity of coal was shipped for the port of B., consigned to a railroad com- pany having its terminus tliere, and to be transported by the latter to W. The bill of lading stated the quantity and the freight per ton. The railroad company paid the freight to the master of the vessel, and transported all the coal received to W. On being weighed tliere after the delivery, it was found to fall short several tons from the amount stated in the bill of lading. It was the custom of the railroad company, known to the parties for whom the coal was transported, not to weigh coal thus delivered, but to depend on the bill of lading; but in the present case, the agents of the road could with ordinary care have ob- served a deficiency in the quantity. Held, that the railroad company had not made it- self liable for the deficiency in the coal, and that it was entitled to the full amount of the freight paid to the master of the vessel. Wau- gatuck B. B. Co. v. Beardsley Scythe Co., 83 Conn., 218. 1866. 399. — To establish the weight of 19 bales of cotton burned on defendant's railroad, it is competent for a witness to state the average weight of the lot of 33 bales, of which the burned bales were a portion, and then fix the weight of the 19, bales by approximation. Smith V. North Ca/roUna B. B. Co., 68 N. C, 107. 1873. 400. When liability as a carrier attaches. A carrier is presumed to be a bailee for hire, and it is not necessary to prove payment in order to hold him in his capacity of common carrier. Winne v. Illinois Central B. B. Co., 31 Iowa, 583. 1871. 401. — The liability of a railroad com- pany as a common carrier for goods delivered to it attaches only when the duty of immedi- ate transportation arises. So long as the ship- ment is delayed for further orders as to the . destination of the goods or for the conveni- ence of the owners, the liability of the com- pany is that of a warehouseman. Barron ». Bldredge, 100 Mass., 455. 1868. 402. When the carrier's liability ceases. The liability of a railroad company as a com- mon carrier of goods continues, after the ar- rival of the car containing them at its point of destination, until they are unloaded and put into a reasonably safe and suitable place for their reception. Bice v. Boston and Wor- cester B. B. Gn., 98 Mass., 213. 1867. 403. — "Where the consignee is absent from the terminus of the carrier's route, and has no agent to whom delivery can be made or notice given, the carrier may terminate his liability as carrier, by depositing the merch- andise in a warehouse; although it is other- wise as to an intermediate carrier. Northrop V. Syracuse and O. B. B. Co., 5 Abbott's Pr., N. S. (N. y.), 425. 1867. 404. — "When goods are shipped by rail- road to a specified point, whence the owner intends to remove to their final destination, CARRIAGE OP MERCHANDISl;. 103 General Matters. the railroad company is not an intermediate carrier, and the rules applicable are those which govern at a place of destination. Fen- ner ». Buffalo and State Line S. B. Oo., 44 N. y., 505, 1871 ; reversing Same v. Same, 46 Bar- bour (N. Y.), 103. 1866. 405. — The liability of a common carrier by railway terminates, if the goods, after reaching their destination, are properly stored in any warehouse. Davis v. Michigan Soutli- em and Northern Indiana B. R. Co., 30 111., 413. 1853. 406. — Where the bill of lading shows that the goods transported were shipped to the owner as consignee, " care of the raih-oad company," to be delivered at a station on the railroad, if the goods are transported -with the usual expedition, and the owner or his agent is not at the depot ready to receive them, they may be deposited in the warehouse of the company, and from such deposit the liability of the company as a common carrier ceases. Mobile and Qirard B. B. Oo. v. Prewitt, 46 Ala., N. S., 63. 1871. 407. — A railway company may terminate its liability as a common carrier witliin a reasonable time after the arrival of goods at their place of destination, by depositing them in the warehouse of a responsible third per- son. Alabama and Tennessee Bivers B. B. Oo. D. Kidd, 35 Ala., N. S., 309. 1859. 408. Whisky. In an action for failure to deliver a quantity of whisky, it is competent for the carrier to show that the excise tax on such whisky was unpaid, as that would affect its value. Toledo, Peoria and Warsaw B. B. Co. V. Kiehler, 48 111., 438. 1868. VI. General matters. 409. Bill of lading. A bill of lading is not conclusive evidence of title in the con- signee, but any presumption arising there- from may be repelled by parol evidence. Hooper v. Chicago and Northwestern B. B. Oo., 27 Wis., 81. 1870. 410. — Where flour was by the shipper sold " to arrive at Boston," the title remained in him till such arrival. lb. 41 1. — Where a bill of lading of goods destined to Boston, provided for their trans- portation from the point of shipment on de- fendant's road to its Chicago station, but stated nothing as to what was to be done with them there, the shipper (in an action for inju- ries done to them between said statitin and the depot of the next carrier;, might show a practice of shippers to give, and of defendant to comply with, directions as to delivering goods to the next carrier, such evidence not tending to vary or contradict the bill cf lad- ing, lb. 412. — From the face of the bill and the nature of the transaction, it would be inferred that the defendant was to transfer the goods to the next carrier. lb. ' 413. — The plaintiff was presumed to have contracted with reference to such known cus- tom, lb. 414. — The cartman transferring the goods from defendant's depot to that of another car- rier is the _agent of defendant, and does not act as an independent carrier. lb. 415. Cars of one company carried by an- other. Where a common carrier undertakes to carry an article for a compensation, the legal presumption is, that he does it subject to his common law liability — and this pre- sumption holds till disproved. Pennsylvania B. B. Go. V. New Jersey B. B. Oo., 3 Dutcher (N. J.), 100. 1858. 416. — But where a railroad company takes a car through on its own trucks, over its railroad, and has the sole charge of it, it is as to the article transported, a common car- rier, lb. 417. — A railroad company engaged in business as a common carrier, agreed with the plaintiff to furnish the motive power to draw his cars, laden with his property, over its railroad, the plaintiff being bound ti) load and unload the cars, and to furnish brakemen to accompany them on the road, who were to be under the control of the defendant's con- ductor. Held, that the defendant assumed the liabilities of a common carrier, and was lia- ble as such for an injury to the cars of the plaintiff, and his property therein. Mallory V. Tioga B. B. Go., 39 Barbour (N. Y.). 488. 1863. 418. Change of route. The defendant having contracted to ship goods over its line from B. to M., delivered the goods to a pro- peller Instead for shipment, and they were lost. Held, that it was incumbent on the de- 104 CARRIAGE OF MERCHANDISE. General Matters. fendant to sliow that such change of the man- ner of shipment was made under circum- stances exonerating it from liability. Le- Sage V. Great Western. S. S. Co., 1 Daly (N. Y.), 306. 1863. 419. Coal: damages by careless unload- ing. A railroad company, having undertak- en to carry assorted coal from one place to another on its road, immediately on the ar- rival of the cars containing it at the point of destination, without notifying the consignee, discharged the coal on the bare ground so as to mix the different sorts and mingle soil with them. Held, that it was liable in dam- ages to the consignee. Rice u. Boston and Worcester B. B. Co., 98 Mass., 212. 1867. 420. Condition of goods. From proof of a certain state of facts at a certain time in re- spect to the condition of goods, the jury may presume that the same continued up to the time the evidence shows a different state of facts to have existed. LaughUn «. Chicago and Northwestern B.B. Co., 28 Wis., 204. 1871. 421. — Thus when goods were shipped by three successive carriers, and when delivered to the consignee (although there was no ex- ternal evidence of the fact), the box was foimd to have been opened, and certain goods taken out, the jury may presume, in the ab- sence of evidence to the contrary, that the box remained unopened until it came into the possession of the last carrier, and that the loss occurred through his fault. Ih. 422. — When goods are to be delivered to the care of one person, for another as owner, tlie owner is the consignee. Jeffersonville B. B. Co. 0. White, 6 Bush (Ky.), 251. 1869. 423. Contract. Where a railway compa- ny, through its agent, agreed to ship flour from Niles, and deliver it " on board at De- troit," the company was held liable as a com- mon carrier until the flour was delivered on board the vessel at Detroit, and the company was held liable for tlie destruction of the property by fire in its warehouse at Detroit. Moore v. Michigan Central B. B. Co., 3 Mich., 23. 1853. 424. — Where the owner talked with de- fendant's agent about shipping certain goods, and the rate, and how they should be marked, but the shipper did not accept the agent's proposition at the time, but about eighteen days afterwards delivered the goods at the de- pot marked as directed, it was held, that the conversation between the agent and shipper d id not amount to a contract. Bicketis v. Bal- timore and Ohio B. B. Co., 61 Barbour (N. Y.), 18. 1871. 425. Custom. Where an agent of a rail- road company was introduced in its behalf, to prove that certain goods were not delivered to the company as a common carrier, it was competent for this purpose to show that it was the custom of the company to weigh, mark and book such goods ; those in question not having been so treated. Vaughan ». Baleigh and Gaston B. B. Co., 63 N. C, 11. 1868. 426. — Where the contract is silent upon the subject, evidence of custom may be in- troduced as to the place w^here a railw^ay com- pany usually delivers its freights. Alabama and Tennessee Bivers B. B. Co. v. Kidd, 29 Ala., N. S., 221. 1856. 427. — On the trial of an action against a railroad company for the loss of goods trans- ported by it, it appeared that the servants of the company had placed the goods upon an open and exposed platform at the place of des- tination, from which they were stolen, no no- tice of their arrival having been given to the consignee. The defendant offered to show that, by a well known and long established custom of the company, goods were deemed delivered when sately deposited at the plat- form of the station ; and were considered, by the custom and printed rules of the company, to be thereafter at the risk of the owner. Held, that the offer was properly refused, on the ground that if such a custom were admis- sible, it would not have been available, as the goods in this case were not " safely deposited " at the platform, without which no foundation was laid for the proof Browning v. Long Is- land B. B. Co., 2 Daly (N. Y.), 117. 1867. 428. Conversion by carrier. Where, ow- ing to the war of 1861, a railway company could not deliver certain goods shipped over its line, it was held liable for the value of the goods, it appearing that they had been con- verted by the company to its own use. Balti- more and Ohio B. B. Co. v. Moreliead, 5 W. Va., 293. 1872. 429. Delivery— to carrier. Where spirit- uous liquors are ordered of a dealer in Boston to be forwarded to the purchaser in New CARRIAGE OF MERCHANDISE. 105 General Matters. Hampshire by railroad, the sale is complete the moment the goods are delivered to the carrier, and the sale must he regarded as made in Massachusetts. Garland «. Lane, 46 N. H., 245. 1865. 430. — In order to charge a common car- rier for the loss of property, it is necessary that it should be delivered to him, or his agent, for transportation. But such delivery may be either actual or constructive. Merri- am 0. Hartford and New Haven B. B. Co., 20 Conn., 354. 1850. 431. — If a common carrier agree, that property intended for transportation by him, may be deposited at a particular place, with- out any express notice to him, such deposit merely, would amount to constructive notice, and be a sufficient delivery. lb. 432. — And such agreement may be shown, by proof of a constant practice and usage by the carrier, to receive property left for trans- portation, at a particular place, without any special notice of such deposit. lb. 433. — Where goods were delivered, in the usual manner, for transportation, by a com- mon carrier, on his private dock, and in his exclusive use, for the purpose of receiving property to be transported by him; it was held, that such delivery was a good delivery to the carrier to render him liable for the loss of the goods, although neither he nor his agent was otherwise notified of such delivery. lb. 434. — Where the defense to an action against a common carrier for the loss of goods was placed solely on the ground of a want of notice to him of delivery, and the court in- structed the jury, that the delivery, if in ac- cordance with the usage claimed to be proved by the plaintiff, was sufficient, without sub- mitting to the jury the question of fact whether such usage influenced the plaintiff in his conduct ; it was lield, that the charge was not exceptionable, by reason of such omis- sion, lb. 43.5. — If a heavy article has been carried by a truckman to the depot of a railroad cor- poration, and injured while being loaded upon the cars, the company is liable therefor if it had accepted and taken charge of the same ; and in such case it cannot show the carelessness of the truckman as a defense. Merritt v. Old Colony, etc., B. B, Co., 11 Allen (Mass.), 80. 1865. 436. — Where goods were deposited on the stoop of a freight house, no one being there to receive them, and the cartman subsequently informed the freight agent that the owner of the goods would call and order where they should go ; but there was no proof that any such direction was ever given by the owner ; it was held, that the carrier was not in default, and could not be made liable, for not trans- porting the goods. Spade ». Hudson Biver B. B. Co., 16 Barbour (N. Y.), 383. 1853. 437. — Where goods are placed in a car of a railroad company, with its assent, for the purpose of shipment, the car being under its exclusive control, the goods thereby pass into the possession of the company as effectually as if they had been delivered in its warehouse. Illinois Central B. B. Co. v. Smyser, 38 111., 354. 1865. 438. — So where a car load of cotton was loaded upon a car provided by the carrier for the purpose, upon a side track, and while standing there the cotton accidentally took fire and was injured thereby, the carrier was held liable for the loss, although there had been no receipt or bill of lading given for the property. Ih. 439. — An action cannot be maintained against a railroad company as a common car- rier for the loss or destruction of goods de- posited on the roadside, at a place where there was no regular station, and no agent, although a conductor of a freight train had promised to stop and take them. Wells v. Wilmington and Weldon B. B. Co., 6 Jones' Law (N. C), 47. 1858. 440. — To render a common carrier liable for goods to be carried by him, the fact that the goods were actually delivered to him or to some person authorized to act in his be- half, must be established. Grosvenor v. New York Central B. B. Go.,ZQ N. Y., 34, 1868; Same v. Same, 5 Abbott's Pr. N. S. (N. Y.), 345, 1868. 441. — by carrier. Without a special con- tract to that effect, a railway company is not bound to deliver freight to the consignee, un- less such is its custom. New Orleans, Jackson and Great NortJiern B. B. Co. v. Tyson, 46 Miss., 729. 1872. 442. — ' Certain goods were directed to J. F. Roberts, Roxbury, Mass. There was no such person in Roxbury, and no person there 106 CARRIAGE OF MERCHANDISE. General Matters. ■was known or passed by that name. Collins, ■whom the plaintiff well kne'w as Collins, had represented that there was such a person there, and had induced the plaintiffs to con- sign the goods at Brattleboro to that address. Collins then went to Boston, and upon the ar- rival of the goods employed one Clough, a truckman, to get them at this depot and de- liver them to a dealer in Boston, representing himself to Clough as the J. F. Roberts to whom the goods were addressed. Clough ob- tained the goods, giving his own receipt there- for, and paid the freights and delivered the goods to Collins, without any knowledge of the fraud, and Collins sold the goods and ob- tained the money and left the country, and plalntiflfs were never able to recover the money of him. Held, that the defendant was liable as a common carrier for the loss. Winslow V. Vermont and MassacJmaetts B. JS. Co., 43 Vt., 700. 1870. 443. — All classes of carriers are responsi- ble for loss of goods by delivery of goods to the wrong person. lb. 444. — Carriers are responsible as such, and not as warehousemen, where such mis- delivery has been made immediately after the arrival of the goods. lb. 445. — Where goods were delivered to the agent of a railroad company at B., labelled " L. W. B., care of 8. U., Troy," no direction being given to the agent except by the labels, it was held, that the company promised on its part that it would carry the goods to Troy and de- liver them to U. ; and that a delivery thereof to TJ. was a toll performance of the contract, whatever might become of the goods after- ■wards, notwithstanding the goods delivered to U. were received and taken charge of by him as the agent of the company. Bristol v. Bensaelaei- and Saratoga B. B. Oo., 9 Barbour (N. Y.), 158. 1850. 446. — Railway companies are liable as commim carriers for goods received by them, to be transported over their roads for hire, though not yet laden on their cars. Fitcliburg and Worcester B. B. Co. xi. Hanna, 6 Gray (Mass.), 539. 1856. 447. — Where bulky articles of freight af-e landed from a vessel in the customary man- ner upon a public wharf, with due notice to the consignee (he being the owner), who pays the freight and takes steps toward removing them, and is afforded, a reasonable opportu- nity of doing so, the legal custody is trans- ferred to him, and if he necessarily delays the removal, he does so at his own risk. Goodwin u. Baltimore and Ohio B. B. Oo., 50 N. Y., 154. 1872. 448. — Whether a common carrier who has transported property over his line and stored it in his warehouse awaiting delivery to the consignee, who has not yet been noti- tied of its reception, continues to be liable as a carrier, qumre? McMillan v. Michigan South- ern and Northern Indiana B. R. Co., 16 Mich., 79, 1867; Heffronv. Same, ih.; King v. Same, ib. 449. — to agent. Where an order was given to a firm of warehousemen, autliorizing them to receive from a railway company all goods shipped to the drawer, after which the firm was dissolved, and a nc'w firm composed of a part of the members of the old firm was formed, held, that the new firm derived no au- thority from the order to receive the goods of the drawer. Angle & Co. v. Mississippi and Missouri B. B. Co., 9 Iowa, 487. 1859. 450. — The facts and circumstances tend- ing to show the agency of such new firm are admissible, although such facts and circum- stances were unknown to the company when the goods were delivered. Ib. 451. — damage. A quantity of sheet-iron, consigned to the plaintiffs at New York, and transported by the defendant, was unloaded upon the wharf, in New York. The plaintiffs received notice of the arrival of the iron, and received a small portion of the iron unin- jured. On sending for the remainder, they, were unable to get it until some days, by rea- son of other freight having been so placed that the iron could not be reached. While it was in this position, it was damaged by rain. Eeld, that the defendant was bound to deliver the goods at the usual place, and to deliver them in a conveniently reasonable manner for their removal; and that the defendant was liable in this case for the damages. Goodwin v. Baltimore and OhioB. B. Co., 58 Barbour (N. Y.), 195. 1870. 452. — contract. A contract to deliver 300 barrels of flour in lota of 100 each, pay- ment to be made for each lot on delivery thereof, is severable; and acceptance of pay- ment for each lot on delivery was not a waiv- er of any rights of the seller arising out of CARRIAGE OF MERCHANDISE. 107 General Matters. the unauthorized delivery of the first lot by the railroad company without payment made. Bmwyer «. Chicago and Northweitern JR. R. Co., 23 Wis., 403. 1868. 453. — Goods were shipped from Baltimore to St. Louis, and the receipt contained the fol- lowing stipulation : " the responsibility of the company is to terminate when the goods are unloaded from the cars, and that goods in- tended for all railroad shall be marked ' through by rail,' and river goods ma Wheel- ing or Parkersburg must be marked on this ticket." The goods were damaged in transit after passing out of the hands of defendant. Held, that as under certain contingencies the goods might be transported in part by boat, the " unloading of the cars " referred to in the receipt, meant at the terminus of defend- ant's road. McCann v. Baltimore and Ohio R. R. Co., 30 Md., 303. 1863. 454. — conversion. Where goods are trans- ported by a railroad company and, upon their reaching the place of destination, are stored in a warehouse and no notice given of their arrival, under a notice published in a news- paper that all goods not taken away within a given time would be thus disposed of: held, that such delivery was erroneous, but did not amount to a conversion of the goods. Rome R. R. Co. ®. Sullivan, 14 Ga., 377. 1853. 455. — custom. There was a custom that a railroad company should deliver freight on the platform of minor stations whose business would not justify a warehouse, to be received there by the consignee on discharge from the car. Seld, a good custom. McMasters v. Pennsylvania R. R. Co., 69 Penn. St., 374. 1871. 456. — To relieve a carrier, the custom must be clearly proved, and that the employer knew it, or was presumed to know it by rea- son of its generality in the neighborhood. lb. 457. — demand. It is the duty of the con- signee to repair to the depot or place of deliv- ery, for his goods, and the carrier cannot be sued for non-delivery unless there has been a refusal to deliver on request. Michigan South- ern and Northern Indiana R. R. Co. v. Bivens, 18 Ind., 263. 1859. 458. — fictitious consignee. In an action brought by the consignor against a carrier, for the value of the goods, the claim was that the consignee had assumed a fictitious name, or had falsely pretended to be doing business as a copartnership, for the purpose of obtain- ing the goods without payment. Seld, that the truth or falsity of the representations should have been ascertained by the plaintiff before he parted with his property. The omis- sion to do so was his negligence, and not that of the carrier. Price v. Oswego and Syracuse R. R. Co., 58 Barbour (N. Y.), 599. 1871. 459. — Where a common carrier, without requiring evidence of identity, delivers goods to a stranger, which have been fraudulently ordered by the latter in the name of a fictitious firm, and which have been shipped in com- pliance with the order directed to the fictitious firm, he is liable to the consignor for their value. Price v. Oswego and Syracuse R. R. Co., 50 N. Y., 313. 1873. 460. — misdelivery. Where an article was delivered to a common carrier, to be delivered to a factor, at a certain market, who had been instructed not to sell until ordered, and such carrier delivered it to a factor at a different market, who had no instructions concerning it, and was by him immediately sold, upon its appearing that the article in question rose in price, from that day until the suit was brought; ?ield, that in a suit against such com- mon carrier, the plaintiff "was entitled to re- cover the higliest price attained by the arti- cle within that period. Arrington v. Wil- mington and Weldon R. R. Co., 6 Jones' Law (N. C), 68. 1858. 461. -^ The receipt of the proceeds of the sale from the factors making it, was no bar to the recovery of damages for this misfeasance. lb. 562. — The owners of a lot of flour which had been brought to B. by a railroad company, and which remained at the railroad depot, sold fifty barrels thereof and gave to the pur- chasers an order upon the company for the delivery thereof, and the purchasers upon pre- senting the same received another order, or "fiour check, " for the same, which according to the usual course of business was delivered to a clerk who had charge of the actual deliv- ery of flour from the depot, and who was ac- customed to keep such " flour checks," and take receipts upon the back thereof for flour actually delivered. This clerk delivered twenty-two barrels of flour to the purchasers, 108 CARRIAGE OP MERCHANDISE. General Matters. and twenty-eigiit b.irrels to other persons not authorized to receive them. Held, that the coinpanywas liable to the purchasers for the value of the twenty-eight barrels, without re- gard to the question of its due care or negli- gence. Hall V. Boston, and Worcester Ji. M. Co., 14 Allen (Mass.), 439. 1867. 463. — Misdelivery by a carrier of an ar- ticle intrusted to him to be carried is a con- version. Glaflin v. Boston and Lowell B. B. Co., 7 Allen (Mass.), 341. 1863. 464. — If dutiable goods, which are sent into the United Stales from Canada, are marked to the care of another person than the consignee, in order that such person may pay the duties, under an arrangement by which such goods came in bond, this gives to the agent no authority to change their des- tination; and a carrier, who, knowing the limited authority thus conferred upon the agent, upon his order delivers them to per- sons not entitled to receive them, is liable for a conversion. lb. 465. — Goods consigned to the owner, at Nashville, Tenu., to the care of N. W. & Co., Louisville, Ky., were delivered to M. & Co., at Louisville, to be stored and forwarded by them to the owner at Nashville ; M. & Co. de- livered the goods to a party who was not au- thorized to receive them, and in consequence thereof, they were not delivered to the owner. The owner was entitled to a judgment against the carrier, and the carrier was entitled to a judgment against M. & Co., as for a conver- sion for the value of the goods. Jeff'ersonviUe B. B. Co. v. White, 6 Bush (Ky.), 251. 1869. 466. — partial delivery. If upon the ar- rival at the place of their destination of goods delivered to a railroad corporation for transportation, the agent of the owner of the goods, in the presence of the station . master of the corporation, removes a portion of them from the car in which they have been transported, saying that he will come again for the rest, and some of the rest are after- wards lost from the car or from the freight house of the corporation, it is a question for the jury, in an action by the owner of the goods against the corporation for the loss, whether the delivery to the plaintiff's agent of the portion of the goods taken by him from the car was intended by the parties for a delivery of the whole or only of the por- tion taken. Sessions v. Western B. B. Co., 16 Gray (Mass.), 132. 1860. 467. — A shipper is not bound to take a remnant of his goods in whatever condition they may be identified and offered to him. Chicago and Bock Island B. B. Co. v. Warren, 16 111., 502. 1855. 468. — place of delivery. Where a hogs- head of molasses, instead of being landed on a platform, the usual place for heavy articles, was lost in an attempt to deliver it to the plaintiff at an unusual and ttnfit place, the company was held responsible. Benbow v. North Carolina B. B. Co., Phillip's Law (N. C), 421. 1868. 469. — The consignee of goods is presumed to be the owner; but this presumption may be rebutted. Congar x. Galena and Chicago Union B. B. Co., 17 Wis., 477. 1863. 470. — Goods were forwarded from White- water to Mt. Carmel upon the following order : "Forward us the following bill of nursery stock to Bridgeport, 111. 'Terms, our notes at six and twelve months. ***** AH the above stock to be properly packed and delivered at the railroad depot at Whitewater, free ; freight and charges to be paid by us on deliver}' at Bridgeport." Meld, that the words ," delivered at the depot at Whitewater, free," must be understood to mean merely that the consignees were not to be at any expense for the packing of the goods and hauling them to the depot. That the delivery which was to change the ownership was the one at Bridge- port. That where payment is to be made in the notes of the vendees, the property in the goods does not vest in the vendees until the giving of the notes. lb. 471. — receipt. A railroad company has the right to require a receipt, showing that goods when delivered to the owner, were in good order; and the owner has an equal right to examine the goods to be delivered, before executing such receipt. ' Such examination should be made at the place of delivery be- fore removal. Skinner «. Chicago and Bock Island B. B. Co., 12 la:, 191. 1861. 472. — Where a railroad company has freight in its warehouse in good condition ready for delivery, it is not bound to take a receipt for each portion as it is taken away, but they may require a receipt for the whole before any part thereof is removed. Ayres v. CARRIAGE OF MERCHANDISE. • 10& General Matters. Morris and JEssex B. JS. Co., 5 Dutcher (N. J.), 393. 1863. 473. — time. Common carriers sre bound to deliver goods within a reasonable time, and if tliey fail to do so, they are answerable for the damages occasioned by the delay, unless they disprove negligence. Nettles v. South Carolina Jt. JR. Co., 7 Richardson's Law (8o. Car.), 190. 1854. 474. — The measure of damages in such cases is reasonable loss and expense occsi- sioned by the delay, together with the differ- ence between the value of the goods when and where delivered and their value at the time and place where they ought to have been delivered. 76. 475. — The doctrine of technical abandon- ment is not applicable to carriers as to in- surers, lb. 476. — teamster. A teamster, employed by a mill-owner to deliver flour to a railroad company for transportation, has no power, by virtue of such employment, to authorize the delivery of the flour by the company to a third party. Sawyer v. Chicago and Northwest- ern S. B. Co., 33 Wis., 403. 1868. 477. — A statement by such teamster, (who was known by the company to be in the own- er's employ), that the flour was for such third party, did not imply tliat it was to be deliv- ered by the company to him without further instructions from the owner. lb. 478. — waiver. Plaintiff shipped goods consigned to J. D., Boston. After their arri- val at Boston, the carrier delivered them to the Pawners' Bank, which bank received them as security for a loan to one M. Subse- quently, the consignee called at the bank, des- ignated a portion of the goods to be held as security for the loan to M., and from time to time thereafter took portions of the remainder to the store of M., where they were sold with his consent. Held, that although the original delivery might have been erroneous, and the carrier liable to the consignor, such liability was discharged by the subsequent acquies- cence of the consignee in the delivery. CDmiglierty o. Boston and Worcester B. B. Co., 1 N. Y. Sup. Ct., 477. 1873. 479. — In this case, parol evidence was held admissible to show the customary place for the reception of freight by a carrier, the freight not having been delivered at the depot. Homesley v. EKas, 66 N. C, 330. 1873. 480. Express company. A private ar- rangement between a railroad company and an express company, for the transportation of light freight, will not relieve the railroad company from liability, as a common carrier, for packages received on the cars from per- sons having no notice of the arrangement. Langworthy v. New York and Harlem B. B. Co., 3 E. D Smith (N. Y.), 195. 1853. 481. — It is immaterial whether the article was given at the cars, to the agent of the ex- press company, or to a baggage master, or other agent of the railroad company. lb. 482. Former adjudication. A judgment in a suit between consignor and consignee, for the price of goods destroyed in the freight house of a railroad, rendered in favor of the , consignee on the ground that the property never passed to him, owing to an insufficient delivery to the railroad company as a carrier, does not estop the consignor to maintain a suit against the company, as a carrier for neglect to forward the goods. Finn v. West- ern B. B. Co., 103 Mass., 383. 1869. 483. Letter. Where a letter was written to B. at Rome by the agent of the East Ten- nessee and Georgia R. R. Co., in response to a letter from B., which letter B. showed to M. Held, that the shipment of goods by M. upon the faith of such letter did not, without notice to the railroad company, constitute the letter as a contract between the railway company and M. Hast Tennessee and Georgia B. B. Co. V. Montgomery, 44 6a., 278. 1871. 484. Payment under a mistake. Where the owner of property in possession of a car- rier is compelled to pay money in order to obtain his property, and the sum charged is either paid under mistake or compulsion, it may, if erroneous, be recovered back in an action. The payment will not be treated as voluntary. The same rule will prevail if such payment is made under an agreement that it shall not be regarded as voluntary. Lafayette and Indianapolis B. B. Co. v. Pattison, 41 Ind., 313. 1873. 485. Rules. A regulation or usage of a railroad company requiring all claims against it for damages, by reason of loss or injury to goods transported by it, to be made within ten days after the delivery at the station, lield. no CATTLE — CERTIFICATES OF DEPOSIT. Collision — Constitutional Law — Contract. unreasonable ; and that an offer to prove it was properly rejected. Browning v. Long Is- land R. R. Co., 2 Daly (N. Y.), 117. 1867. 486. Shortage. In an action by a carrier against an intermediate consignee for a de- duction of freight, by virtue of an alleged dustom permitting shortage to be deducted when it did not arise from the fault of a pri- or carrier: Jield, that the action was prop- erly brought, if the deduction was made un- der protest, and the carrier had not accounted with the owner of the cargo when suit was commenced. Strong v. Grand Trunk B. B. Co., 15 Mich., 206. 1867. 487. — A custom that an intermediate car- rier, who received property subject to charges, may deduct from the freight earned by a prior carrier the value of any deficiency between the quantity delivered and tliat stated in the bill of lading, and that the prior carrier shall not be allowed to show that an error occurred in stating the amount in the bill of lading, is not such a valid custom as the court will en- force, lb. CATTLE. See CAnBiAOE of Litb Stock ; Injurt to Domestic Animals. 1. Collision: injury to cars. An action cannot be maintained by a railway company against the owner of cattle for damages occa- sioned by the cars coming in collision with the cattle on the road, while it remains unin- closed. Jenkins v. New Orleans, Opelousas and Great Western B. B. Co., 15 La. An., 118. 1860. 2. — A railroad lay open to the highway, which ran by the side of it, for 59 rods. The defendant, who lived near by, had milked his cows in the highway, where they were left to be driven to a pasture on the other side of this place. A boy who had charge of them started them along and stopped a short time at a neighboring house for a cow to be milked which he was to drive with them, and while he was waiting, the cows strayed upon the railroad track. It was 8 o'clock in the even- ing, in July, and nearly dark, and a train of cars was then overdue on the railroad. The train soon came along, ran over one of the cows, and was thrown off the track, and badly damaged. In a suit brought by the railroad company, the defendant claimed that the plaintiff had not exercised proper care, and a large amount of evidence was introduced on both sides on the subject. The jury returned a verdict for the defendant, and the plaintiff moved for a new trial on the ground that the verdict was against the evidence. Held, I. That the negligence o!f the defendant was of the grossest kind. II. That upon the question of the plaintiff^s negligence, the preponderance of the evidence was in its favor, and the jury ought to have so decided. III. But that this preponderance was not so great as to evince that the jury were unable to understand or, in fact, misapprehended the law or the evidence, or that they were influ- enced by partiality, prejudice or other im- proper motive; and a new trial was denied. Housatonic B. B. Oo. v. Knowles, 30 Conn., 313. 1863. CATTLE GUARDS. See Ihjukies to Domestic Animals. 1. Constitutional law. The legislature has the power to require existing railway com- panies, and all hereafter incorporated, to maintain cattle-guards at all crossings, or to respond in damages for all cattle injured by their trains through such omission. This subject comes clearly within the police power of the state, and such requirement cannot be regarded as destroying vested rights or im- pairing the obligation of any contract con- tained in the charters of such corporations. Thorpe V. Butland and Burlington B. B Co 27Vt., 140. 1854. 2. Contract; specific performance. A suit for specific performance will not lie upon a covenant by a railroad company to maintain and keep in repair the cattle guards upon the lands of the plaintiff. Columbus and Shelby B B. Co. V. Watson, 26 Ind., 50. 1866. CERTIFICATES OP DEPOSIT. 1. The holder of a certificate of deposit having commenced suit by a foreign attach- CERTIORARI. Ill Affidavits — Equalization of Taxes — Highways. ment, surrendered it and took new certifi- cates, held, that the action could be main- tained thereon. Manuel v. Mississipi B. B. Co., 2 Penn. St., 198. 1845. CERTIORARI. 1. Affidavits. Opposing affidavits may be read on motion for a common law certiorari. Saratoga and Washington B. B. Co. «. MoGoy, 5 Howard's Pr. (N. Y.), 378. 1851. 2. Assessment of damages. Proceedings on the assessment of damages in the case of land taken by a railroad company, under the authority of an act of assembly, may be re- moved into the supreme court by certiorari. Schvier v. Northern Liberties and Penn Tp. B. B. G.O., 3 Wharton (Penn.), 555. 1838. 3.— Where the statute gives an appeal from an assessment, for a right of way, a certiorari will be sustained ; it appearing that the peti- tioner had not notice of the assessment, or an opportunity to appeal. Joliet and Chicago B. B. Go. B. Barrows, 24 111., 562. 1860. 4. — Where the judgment in proceedings for the condemnation of land is defective in matters of form, the proper course is to apply to the court in which the judgment was ob- tained for a correction of the record, and not to the supreme court for a certiorari. St. Paul and Sioux City B. B. Co. «. Murphy, 19 Minn., 500. 1873. 5. — A writ of certiorari will not be issued to quash the proceedings of county commis- sioners in determining the amount of com- pensation to be paid by a street railway com- pany for extending its track over a bridge, the title to which has become vested in the com- monwealth by the expiration of the franchise of the corporation which built it, because at the hearing they cited towns interested in the subject to appear before them, and also lis- tened to suggestions from private persons ; es- pecially if no objection thereto was made at the time of the hearing. Salem and South Bankers B. B. Co. v: County Comr's of Essex, 9 Allen (Mass.), 563. 1865. 6. — If the proceedings of the county com- missioners, in estimating damages for land taken for a railroad, are irregular, the remedy is to be sought by an application for a certio- rari, and not by an application to the com- missioners for a jury to revise the damages. Fitchhurg B. B. Co. v. Boston and Maine B. B. Co., 3 Gushing (Mass.), 58. 1849. 7. — A railroad company was proceeding, under its charter, to condemn part of a turn- pike, which the railroad was to cross ; pend- ing the proceedings, they were brought before the superior court by a writ of certiorari, is- sued at the instance of the turnpike company, and the writ having been returned, was quashed. The charter of the railroad com- pany provides for the confirmation of the in- quisitions by the county courts, if no cause be shown to the contrary, and no appeal from the judgment of the confirmation is provided ^ for. Upon appeal from the order quashing the certiorari, held, that the writ was properly quashed by the superior court for want of ju- risdiction over the subject matter at that stage of the proceedings ; the want of power in the railroad company to condemn the property (if they had no such power), could not have been shown as cause against the confirmation of the inquisition. Baltimore and Havre de Orace T. Coj^. Northren Central B. B. Co., 15 Md., 193. 1859. 8. Equalization of taxes. In making a return to a writ of certiorari requiring the board of equalization to certify lo the proceed- ings had before them in relation to equalizing the value of property, the clerk can only re- turn such documents and orders as remain on file. It is not his duty to take down or pre- serve the evidence. Central Pacific B. B. Co. «. Placer Co., 32 Cal., 582. 1867. 9. — The statute does not require the board of equalization to take down or preservesuch evidence. lb. 10. — A writ of certiorari was sued out against the board of equalization of i lacer Co. The return to the writ embraced all the proceedings and matters connected with an assessment in controversy, except the evi- dence. The petitioners then moved for a fur- ther writ requiring the evidence to be certified up. Held, that the motion should be denied, as there was no showing that the evidence was in writing or that it was preserved in any manner by the clerk. Central Pacific B. B. Co. V. Placer Co., 34 Cal ., 352. 1867. 11. Highway. A writ of certiorari will lie to remove the record of the laying out of a 112 CHAMPERTY— CHANGE OF CAES. Lateral Railways — What Constitutes Champerty. highway by selectmen. Boston and Maine' R. B. Oo. V. Folsom, 46 N. H., 64 1865. 12. — The writ will be refused where the errors are merely formal and technical. 76. 13. — The writwillnotlie to correct an erro- neous assessment of damages by the selectmen, as a specific remedy by appeal is given by statute. lb. 14. Jnstice of the peace. Where a justice certifies that certain facts were proved on the trial, and as to others, though he can't re- capitulate the evidence, yet enough was proved to warrant the judgment, this court cannot, on certiorari, say there was no evi- dence to warrant such judgment. Paterson amd Ma/mwpo M. B. Co. v. Acherman, 4 Zabris- kie (N. J.), 535. 1854. 15. — Certiorari is not a proper remedy to authorize a review of the judgment of a jus- tice of the peace, in a case of trespass. Chi- cago and Rock Island B. B. Co. v. Fell, 23 111., 333. 1859. 16.— In an affidavit for certiorari to a jus- tice's court, errors alleged were: 1st. That the justice erred in refusing to dismiss the cause for defective service of process. 2d. That the court erred in rendering judgment in favor of the plaintiflF and against the de- fendant. 3d. That judgment should have been for defendant. Held, that the second and third allegations of error were not sufficiently spe- cific to raise any question on the merits, and must be understood as referring only to the decision of the justice on the motion to dis- miss. Fowler v. Detroit and Milwaukee B. B. Co., 7 Mich., 79. 1859. 17. — A writ of certiorari to a justice of the peace, is distinct and separate froni an appeal. Chicago and Bock Island B. B. Go. «. Whipple, 23 111., 337. 1859. 18. — A certiorari to remove proceedings before two justices to' recover possession of land bought at slieriflf's sale, brings into the Common Pleas nothing but the record of the proceedings before the magistrates and jury, and on writ of error, nothing else is before the supreme court. Oakland B. B. Oo. «. Keenan, 56 Penn. St., 198. 1867. 19. Lateral railways. Where the excep- tions to the report of the viewers are over- ruled in the court below, and no appeal has been taken, a certiorari will lie. HalVs Ap- peal, 56 Penn. St., 238. 1867. 20. Mnnicipal corporations. Proceedings under the " bonding acts " have always been reviewed on certiorari. Aybi'S v. Lawrence, 63 Barbour (N. Y.), 454. 1873. 21. When the writ will issue. A writ of certiorari may issue to all inferior tribunals and jurisdictions, in cases where they ille- gally exceed their jurisdiction, and there is no appeal or other mode of directly reviewing their proceedings. Dooliitle v. Galena and Chicago Union B. B. Co., 14- 111., 381. 1858. 22. — The only cases in which the writ of certiorari will lie are those in which an in- ferior tribunal, board or officer exercising ju- dicial functions, has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy or adequate remedy. Cen- tral Pacific B. B. Co. v. Placer County, 43 Cal., 365. 1873. 23. — A certiorari will not be issued upon suggestion that parts of the charge of the court below, not appearing by the bill of ex- ceptions to have been excepted to, are not in the record. Stimpaon v. West Chester B. B. Co., 3 Howard, 554. 1844. CHAJVIPERTY. 1. What constitutes champerty. An agreement between an attorney and his client that the attorney shall receive as a contingent fee a certain portion of the amount recovered against the other party, is not void as being champertous. The case of Boardman and Brown v. Thompson, 35 la., 487, distinguished from the present one. McDonald v. Chicago and Northwestern B. B. Co., 29 la., 170. 1870. 2. Motion. An objection that a bill in equity was filed under an agreement made be- tween the plaintiffs and certain other parties, which is void for champerty, ought to be raised formally, by answer, and not by a mo- tion to take the bill from the flies. Sperry v. Erie B. B. Co., 6 Blatchford (U. S. C.C), 435. 1869. CHANGE OF CARS. See P^SSBHSEBB, CHANGE OF VENUE — CHARTER. 133 Practice — When Change will he Allowed — Act of Two States. CHANGE OF VENUE. 1. Practice. By the act of the 14th of April, 1834, a railroad company may remove an ac- tion pending against it in court, to another county,- at any time before the jury is sworn. And upon the affidavit, required by the act, having been made by the president of the company, it is error in the court to proceed further. Railroad Co. o. Gummins, 8 Watts (Penn.), 450. 1839. 2. — When -a summons has been served, and the complaint filed, the case is pending sufficiently to entitle a party to remove it to an adjoining judicial district, if the presiding judge is a pajty to the suit, Ch. 20, acts of 1820-1. Carter V. Western North Carolina B. S. Co., 68 N. C, 346. 1878. 3. — A motion for change of venue cannot be made, before a written demand for the re- quired change is mfide, under g 126 of the Code. Vermont Central S. R. Co. v. Northern B. B. Co., 6. Howard's Pr. (N. T.), 106. 1851. 4.. — Where an order is made, changing the place of trial in a cause to another county, the change is effected at once. The transfer of the papers is a subsequent clerical duty. Fisk V. Albany and Susquehanna R. B. Co., 41 Howard's Pr. (N. Y.), 865. 1870. 5. — Where a change of venue is granted in a. civil action in the circuit court (\r court of common pleas because of an objection to the county, under §§ 307, 208, and 209 of the Code, the cause may be sent on such change to a county in another judicial^ circuit or district. Miller v. Toledo, Wahoih and Western B. B. Co., 33 Ind., 535. 1870. 6. WTien change will be allowed. — Where the venue in a cause is laid in a coun- ty where there has been and still is great and extensive excitement in regard to the subject matter for which the suit is brought, and many of the citizens of the couijty are inter- ested in the event, the venue on that account will be changed. Udall v. Long Island B. B. Co., 3 Howard's Pr. (N. Y.), 188. 1846. 7. — The circumstances justifying a change of venue considered. People v. Long Island B. B Co., 16 Howard's Pr. (N. Y.), 106, 1858; Same v. Same,4: Parker's Cr..(N. Y.), 603, 1858. 8. — In order to warrant a change of venue, it must appear that a fair trial cannot be had in the county where it is laid, by positive evi- 8 dence or facts, and not by the mere opinion of the witnesses. Murray v. New Jersey B. R. Co., 3 Zabriskie (N. J.), 63. 1850. CHARTER. See BBiDOBe; CossTrrnTiosfAi. Law; Disbctobs; Em- INEHT Dodiain; Injunctions. 1. Act of two states. It is no cause of forfeiture of a charter from Pennsylvania that the same corporation has obtained a charter from another state. Commonwealth -o. Pitts- burgh and Connellsville R.R. Co., 58 Penn. St., 26. 1868. 2. — All the rights of the commonwealth against her own corporation will be enforced, without regard to immunities claimed from process beyond her territories and within the jurisdiction of another state. lb. 3. — The action of such corporation as a Maryland corporation against the Pennsylva- nia corporation, brought to declare an act of assembly void, is not a violation of a duty to the state of Pennsylvania. lb. 4. — The mere intention of a corporation to violate its duty is not a cause of forfeiture. lb. 5. — A corporation endued with the capac- ities and faculties it possesses by the cooper- ating legislation of two states, cannot have one and the same legal being in both states. Neither state could confer on it a corporate existence in the other. Ohio and Mississippi R. R. Co. V. Wheeler, 1 Black, 386. 1861. 6. — Two such corporations cannot unite in a suit in a court of the United States against a citizen of either of the states which char- tered them. lb. 7. — A corporation chartered in two states, with the same capacities and powers, and in- tended to accomplish the same objects, exer- cising the same powers and fulfilling the same duties in both states, is a distinct and separate body in each state. Allegheny Coun- ty V. Cleveland and Pittsburgh R. R. Co., 51 Penn. St., 228. 1865. 8. — A charter granted by two states to a company to construct a railroad, is not only a contract with the company, but a compact be- tween the states. . It is to be liberally con- 114 CHARTER. Acceptance — Branch Roads — Effect of Amendment. strued. Like a treaty, it isUie law of all the contracting states, not subject to interpreta- tion by the local usages of either. The same construction must be made in both. Cleveland and Pittsburgh B. B. Co. v. Speer, 56 Penn. St., 335. 1867. 9. — There is no legal diflBculty in the way of the creation of a single corporation by the concurrent action of two or more states, nor of the creation of a new corporation out of two or more corporations already existing, nor of the creation by one state of such a corpora- tion where one of the constituent corporations is a foreign one. Bishop v. Brainerd, 28 Conn., 389. 1859. 10. Acceptance. Acceptance of an act of assembly by a corporation, may be inferred from the exercise of corporate powers, or other unequivocal acts on its part; but this presumption cannot prevail against direct proof. Lyons v. Orange, Alexandria, etc, B. B. Co., 33 Md., 18. 1869. 11. Amendment. Under the section of the revised statutes declaring that the charter of every corporation thereafter to be granted shall be subject to alteration, suspension and repeal, in the discretion of the legislature, the legislature has power to alter and amend rail- > road charters granted since the revised stat- utes ; although there is no clause in the charter reserving to the legislature the right to alter or amend it without the consent of the com- pany. Suydam, v. Moore, 8 Barbour N. Y., 358. 1850. 12. — A charter granted by the legislature, since the passage of the act of 1846, concern- ing corporations, is subject to alteration or re- peal, although it contains no words in express terms so declaring. State v. Person, 3 Vroom (N. J.), 184. 1866. 13. — acceptance. The acceptance of an amendment to its charter, is a power incident to a corporation, and its exercise belongs to the board of directors, if there be no other ac- tive governing body in whom it is vested. Dayton and Cincinnati B. B. Co. v. Match, 1 Disney (Ohio), 84. 1855. 14. — An acceptance of an amendment to a charter may be implied from corporate acts. Bangor, Oldtown and Milford B. B. Co. v. Smith, 47 Me,, 34. 1859. 15. Associates of the Jersey Company. The third section of the " act to incorporate the associates of the Jersey company " (Pamph. L. 1804, p. 370), enacts as follows: " That the said associates shall have the privi- lege of erecting or building any docks, wharves and piers, opposite to, and adjoining the said premises in Hudson river, and the bays thereof, so far as they may deem it nec- essary for tlie improvement of the said prem- ises, or the benefit of commerce, and to appro- priate the same to their own use. Held, that this section merely gave the associates a priv- ilege or license to build docks, wharves and piers in the waters of the Hudson river, and the bays aforesaid,, in tlie manner therein mentioned, and when so built, to appropriate them to their own use, and conferred upon them no power to transfer or convey such privilege or license to any other corporation. Morris Canal and Banking Oo.v. Central B. B. Co., 1 C. E. Green's Ch. (N. J.), 419. 1863. 1 6. Atlantic, etc. R. R. Co. The charters of the Atlantic and Pacific and South Pacific of Missouri Railroad Companies — construed. Dinsnwre v. Atlantic and Pacific B. B. Co., 46 Howard's Pr. (N. Y.), 193. 1873. 1 7. Branch roads. A reservation, in the charter of a railroad company, of a right to authorize other corporations to enter upon and use such railroad, extends to a branch railroad purchased from another company whose charter contained no such reservation. Lexington and West Cambridge B. B. Co. v. FitcJiburg B. R. Co., 14 Gray (Mass.), 266. 1859. 1 8. Effect of amendment. An amendment to the charter of * railway company author- izing a material change in the route, is not binding on the stockholders who have not as- sented thereto. And, upon the abandonment of the original route, such stockholders are released from their subscriptions. Hester v. Memphis and ClMrletton B. B. Co., 33 Miis , 878. 1856. 1 9. — The act of 1836, amending the charter of the N. O. & C. R. R. Co., required the com- pany to pay to the state a certain amount of money, to be used by the state for certain in- ternal improvements. Held, that the state had the right to recover, whether the improve- ments bad been commenced or not. State v. New Orleans and CarrolltonB. B.Co., 3 Robin son (La.), 418. 1848. 20. — The Eranldin Canal Company built a railway from Erie to the Ohio state line, CHARTER. 115 Power to Amend. ■which was forfeited to, and taken possession of by the state. The right to use *.he road was afterwards given by act to the C, P. & A. R. R. Co., to construct and use a road along the F. C. Co.'s road, and to connect its road with any other road legally authorized to come into Erie. The second section required the C, P. & A. Co. to purchase the road al- ready built at a certain price. The E. & N. E. R. R. Co. had built a road from Erie eastward- ly, which by act of the legislature had been declared forfeited. Held, that the C, P. & A. R. R. Co. might build a road or purchase that already built. That the C, P. & A. R. R. Co. might connect its road with the E. & N. E. Cot's road, — that it was a legally constructed road for the purposes of the act under which the plaintiffs claim. That the legality of th« E. & N. E. Co.'s road cannot be enquired into collaterally. That a party in possession of anything is presumed to have a good title, as between other persons. Cleveland, Painesmlle and Ashtabula B. S. Oo. v. Erie, 27 Penn. St., 380. 1836. 21. Power to amend. The legislature may, by general laws, Impose upon railroad companies new conditions, not contained in their charters. Nelson ». Vermont and Canada R. B. Co., 26 Vt., 717. 1854. 22. — The legislature has power to de- termine in what manner a railroad company whose charter was made subject to the duties, liabilities and restrictions of R. S., cli. 44, shall exercise its franchise, and to make changes in the level, grade and connections thereof, and to direct the construction of a new connecting tract, if this is necessary in order to preserve the continuity of the road ; and to provide in what manner, and under whose supervision, the work shall be done, and how paid for. Fitchhurg B. B. Co., v. Grand Junction B. B. Co., 4 Allen (Mass.), 198. 1862. 23. — The right of the legislature to amend, alter or repeal the charter of a railroad com- pany under the Gen. Stats., ch. 08, § 41, in- cludes authority both to withdraw powers granted to the corporation, and to confer new powers on it and require their exercise, and is independant of th« assent of the corpora- tion. Mayor, etc., of Worcester ii. Norxoich and Worcester B. B. Co., 109 Mass., 103. 1871. 24. — When the act of incorporation con- tains no provision for the liquidation of the affairs of the company, and the charter has been forfeited, it is competent for the legisla ture, by a subsequent enactment, to make such provision. Haynes v. Carter, 9 La. An., 265. 1854. 25. — Where the charter is silent as to the manner in which amendments to it may be accepted, the majority of the stockholders have no power to accept amendments. The charter is a contract, not only with the state, but between the stockholders. The majority of a corporation may control the management of its business, but cannot change the terms of the contract by which the stockholders were originally associated. New Orleans, Jackson and Great Noriliern B. B. Co. v. Har- ris, 27 Miss., 517. 1854. 26. — An acceptance of an amendment to a charter by a majority of the stockholders, without the consent of the minority, is void. lb. 27. — An act, general in its terms; and ap- plicable to all railroads, is within the mean- ing of the statute of 1831, ch. 503, empower- ing the legislature to modify the charters of corporations ; and affects the charter of any company which contains no express limita- tion to the contrary. Bangor, Oldtown and Milford B. B. Co. v. Smith, 47 Me., 34. 1859. 28. — The power to alter or modify a char- ter is restrained to the powers and franchises granted by the charter. It does not author- ize the legislature to change the object of the incorporation, or to substitute another for it. An alteration or modification is necessarily of the grant or thing to be altered or modified, and cannot be done by substituting a different thing; that would be a change. Zabriskiev. Sackensack and New York B. B. Co., 3 C. E. Green's Ch. (N. J.), 178. 1867. 29. — The act of December 81, 1859, incor- porating the Cape Girardeau and State Line Railroad, was not void under article IV, § 27 of the present constitution, as being an act of special legislation. That clause was obvi- ously intended to have a prospective opera- tion, and to apply only to laws passed after the adoption of the constitution. And the amendment of February 18, 1869, permitting the company to build the road to the state line through or near Bloomfield, was valid under § 3, article XI of the constitution. 116 CHA.RTER. Banking— Central R. R. Co. of N. J. ■which section empowered the legislature to make subsequent amendments to charters already in operation. State ex rel. v. Cape Oirardecm and State Liiie R. H. Co.. 48 Mo., 468. 1871. 30. — The act of 1868, which professed to amend the charter of the Louisiana and Mis- souri River Railroad was illegal and void, and did not constitute a new charter of said road. State ex rel. «. Saline County Court, 51 Mo., 350, 1813 ; Slate ex rel. s. Callaway County Court, ib., 395. 31. — The Boston and Providence R. R. Co., having accepted its ac; of incorporation passed since the act of 1830, ch. 81, by which the legislature reserved power to amend, alter or repeal, at pleasure, all acts of incorporation which should be subsequently ' passed, ■ is bound by any reasonable alteration or amend- ment of its charter. Moxbury v. Bogton and Promdenee R. R. Co., 6 Gushing (Mass.), 424. 1850. 32. Banking. A railway company whose Charter confines its business to the completion and maintaining of a railway cannot engage in banking. People «. River Raigin and Lake Erie R. R. Co., 12 Mich., 389. 1864. 33. — The issue of pai>er designed to cir- culate in the form and similitude of bank bills is an act of banking. Ib. 34. Baltimore, Catonsville, etc., R. R. Co. The charter of the Baltimore, Catonsville and Ellicott's Mills Passenger R. R. Co. — con- strued. Peddieord v. Baltimore, etc., R. R. Co., 34Md.,463. 1871. 35. Baltimore and Ohio R. R. Co. The charter of the Baltimore and Ohio R. R. Co., — construed. State v. Baltimore and Ohio R. R. Co., 6 Gill (Md.), 863. 1847. 36. Constitutional law. A clause in a charter of a railroad corporation enabling it to have land condemned to its u-je on pay- ment of the valuation found by an inquisi- tion, does not prevent the legislature from passing an act requiring the court to set aside an inquisition found in 1836, confirmed in 1837, but under which the company made no payment or tender, until after the passage pf the act in 1841. Baltimore and Susque- hanna R.R.Co. V. Nesiit, 10 Howard, 395. 1850. 37. — Such an act does not impair the ob- ligation of any complete contract in existence when it was passed. Ib. 38. — The charter of the Pontiac R. R. Co. is not unconstitutional because no provision is made for notice to owners of lands, of pro- ceedings to assess damages' for taking the same. Swan v. Williams, 3 Mich., 427. 1853. 39. Camden and Amboy R. R. Co. The franchise of the Camden and Amboy Railroad Company, to perfect an expeditious and com- plete line of communication between the cities of Philadelphia and New York, and to build across the state a railroad to be part of that line, is exclusive against all but the state and those upon whom the state has con- ferred it. Pennsylvania R. R. Co. v. National R. R. Co., 8 C. E. Green's Ch. (N. J), 441. 1873. 40. — Any railroad over the state wherever built, if built for and adapted to be part of a through competing line between said cities is unlawful and liable to be enjoined, unless authorized by legislative enactment. Ib. 41. — No authority is conferred by any or all of the charters together, of the several New Jersey corporations codefendant With the Na- tional R. R. Co. to build a road .across the state, to be used for part of a competing line between the cities of Philadelphia and New York, and the attempt by the defendants to build such road is in fraud of the rights of the complainants, and will be enjoined. Ib. 42. — The charter of the Camden and Am- boy R.R.Co. — construed. Delaware, etc.. Canal Co. V. Camden and Atlantic R. R. Co., 1 C. E. Green's Ch. (N. J.), 321. 1863. 43. Canal company. The grant of a chai-- ter to a canal company, authorizing it to con- struct its canal along the line of a certain val- ley, there being no provision in the charter granting a monopoly to such company, will not prevent the granting of a charter to a rail- way company empowering it to construct a railroad along the same valley. Tuckahoc Canal Co. v. Tuckahoe and James River R. R, Co., 11 Leigh. (Va.), 43. 1840. 44. Central R. R. Co. of Ga. The char- ters of the Central R. R. Co. and the South Western R. R. Co.— construed. Central R. R. Co. V. Collins, 40 Ga., 582. 1869. 45. Central R. R. Co. of N. J. The char- ters of the Central R. R. Co. of N. J. and the Morris and Essex R. R. Co. — construed. Morris and Essex R. R. Co. v. Central R. B. Co., 2 Vroom (N. J.), 205. 1865. CHARTER. 117 Commissioners — Conditions. 46^ Change of name. The act amending tlie charter, of the Fox River Valley R. R. Co. and changing its name, does not create a new ■corporation. Milwaukee and Noi-thern, Illinois B. JR. Co. V. Field, 12 Wis., 340. 1860. 47. Commissioners. When an act names a great number of persons, and then enacts that they, " or any three of them, be and are hereby appointed commissioners," it is in the alternative, and the whole number named, or ■any three ofithem, are appointed at the elec- tion of the individuals named in the act. Commonwealth v. WeBtc?iester S. S. Co., 3 Grant's Cases (Penn.), 200. 1855. 48. Compliance with statutes. An attempt to comply with the statute concerning corpo- rations, and a substantial compliance with its provisions, renders a company claiming in good faith to be a corporation a corporation dejure. Oroville and Virginia B. R. Co. v. Plumas Co., 37 Cal., 354. 18G9. 49. Compensation for services in perfect- ing organization. Where, after the charter, and before the organization of a corporation services are rendered which are necessary to complete that organization, and, after it has been perfected, the corporation elects to take the benefit of such services, knowing that they were rendered with the understanding that compensation was to be made, it will be held liable to pay for the services up- on the ground that it must take the burden with the benefit. Low v. Connecticut and Passumpsie Sivers B. B. Co. 45 N, H., 370. 1864. 50. — Held, also, that a suit at law will lie to recover such compensation; but that no prom- ise to pay would be implied from the fact that such services were rendered at the request of any number of the grantees less than a ma- jority, lb. 51. — Seld, also, that the sole power of de- termining by what measures and by what agency such organization shall be effected, rests in the body of the grantees, a majority of whose votes must govern. lb. 52. Conditions. It was provided by § 14 of the charter of a railroad company, granted in 1835, that such charter was to be- come void " if said company shall not expend the sum of fifty thousand dollars upon said railroad, or way, within four years after the passage of this act." Nothing having been done under such charter, the legislature, in 1846, passed a resolution, by which it was re- newed, and which provided, " that if said com- pany should not expend the sum of $50,000 upon said railroad, as was prescribed in said § 14 of the original charter, within two years from the rising of the general assembly, at which said resolution was passed, or if it should not complete or put in operation a single, double, or treble Way, as authorized in said charter, within four years after the rising of ■ said general assembly, then the rights, privileges and powers of said corporation should be null and void." Seld, that said company was required to expend said sum of ' $50,000, and to complete its said road, within the" times respectively provided therefor. Dan- bury (md NorwalkB. B. Co. v. Wilson, 22 Conn., 435. 1853. 53. — Where the law required that the pay- ment of ten per cent, of the subscriptions should be made in good faith before incorpo- ration, and the incorporators gave their check in payment upon a bank in which they had no funds, it was held, that such payment was insufficient, even although it appeared that the bank would have paid the check if pre- sented. (Stat. 1861, p. 607). People v. Cham^' 5erg, 42 Cal., 201. 1871. 54. — Where a charter was granted upon a certain condition, with a reservation of the right to repeal it if the condition was broken, after the breach of the condition the corpora- tion held its franchise as a tenant at will, and the legislature was invested with as full pow- er to reijeal the charter as if the reservation had been unconditional. JErie and Northeast B. B. Co. V. Casey, 26 Penn; St., 287. 1856. 55. — The fact that the corporation had been compelled by judicial proceedings to comply with the conditions in its charter will not estop the legislature from exercising its right of repeal. lb. 56. — A law passed by the legislature will be presumed constitutional until the contrary appear. And where the legislature declares a charter forfeited under its conditions, it will be presumed that the facts authorizing for- feiture have occurred. Tb. 57. — Wliere a charter is repealed, the franchises are resumed to the state, and the railroad remains, as it always was, public property. lb. 118 CHARTER. Constitutional Law. 58. — The corporators are not entitled to compensation, for their rights in the road are only franchises and not projierty, and the re- sumption of these francliises under the terms upon whicli they were granted does them no injury, only what they have agreed to submit to. lb. 59. — The law itself declaring a forfeiture makes a prima facie case, and it is for the com- pany to show that the breach has not occurred. lb. 60. — In such a case, tlie lands condemned as a right of way do not revert to their origi- nal owners, but remain vested in the state for public use. lb. 61. — If, after the passage of the act de- claring the forfeiture, the legislature pass a new act restoring the road to the company, but retaining possession in the state until the acceptance of the new act by the company, and the acceptance is formally made, the original charter is repealed, and the company is estopped to deny the validity of the law to which it has assented. lb. 62. — A contract between the state and a railway company cannot arise by implication, and hence a law regulating the manner of voting at elections and the gauges of the rail- way, will not be construed as an agreement by the state to relinquish its right to repeal the charter for abuse or misuse. lb. 63. — Abuse or misuse consist of any positive act in violation of the charter, and in derogation of public right, willfully done by the corporation. lb. 64. Constitutional law. The charter of a railroad company is a contract which is pro- tected by clause 1, § 10, art. I, of the consti- tution of the United States, unless the charter is by its terms i-epealable. Alabama and Flo- rida, B. JR. Go. V. BurTcett, 46 Ala., N. S., 569, 1871 ; New Orleans, Jackson and Cheat Northern B.B. Go v. Harris, 27 Miss., 517, 1854; Smead V. Indianapolis, Pittsburgh and Gleveland B. B. Co., 11 Ind., 104, 1858. 65. — But the legislature may alter such a charter with the assent of all the corporators; and that assent may be manifested in at least three ways — by asking the legislature to make the amendment; by expressly accepting an amendment enacted without request ; and by acting upon and acquisescing in an amend- ment enacted without request. Smead v. In- dianapolis, Pittsburgh and Gleveland B. B. Co., 11 Ind.. 104. 1858. 66. — The legislature has authority, under the constitution, to create a railroad corpora- tion by special act, whenever in its judgment, a special act is necessary, notwithstanding the constitutional provision. Hosier v. Hilton,, 15 Barbour (N. Y.), 657. 1853. 67. — Special acts of incorporation will be valid, notwithstanding the constitutional pro- vision, requiring general laws for such pur- poses; without any recital by way of pream- ble, that the object could not be accomplished by geneial law. Johnson v.Joliet and Chicago B. B. Co., 33 III., 303. 1859. 68. — The corporators of the F. W. and S. R. R. Co. having accepted the charter before the constitution of 1851 took eflfect, it became a valid and binding contract between them and the state, which could not be abrogated or impaired, except for cause. State ex rel. v. Dawson, 22 Ind., 273. 1864. 69. — Corporations not municipal can only be created by general laws. Art. 4, § 31, - Const. Oroville and Virginia B. B. Co. v. Plu- mas Co., 37 Cal., 354. 1869. 70. — The JeflFersonville railroad company was incorporated by a special charter, Janu- ary 20, 1846. By § 33 of the act, the legisla- ture reserved the right to alter the charter. Held, that under the power reserved, the legis- lature might properly apply the general "law regulating the liability of railroad companies for stock killed to this company. Jeferson- ville B. B. Co. v. Gabbert, 25 Ind., 431. 1865. 71. Construction. That which a company is authorized to do by its act of incorporation, it may do; beyond that all its acts are illegal. The power must be given in plain words or by necessary implication. Commonwealth v. Erie and North East B. B. Co., 27 Penn. St., 339. 1856. 72. — The charter of defendant authorized the construction of a road from the borough of Erie, then bounded on the south by Twelfth street. The borough was afterwards enlarged, and the company constructed its road from a point within the enlarged borough sixty rods soutli of the old boundary. Held, that this was not a compliance with the charter. lb. 73. — Laws must be executed in accord- ance with their sense and meaning at the time of their passage. lb. CHAKTEB. 11& Division of Kailway Corporation — Double Track. 74. — Where a privilege is given to a rail- way company, by an act of the legislature, to extend or make certain connections as " here- inafter provided," and there are two provisos appended, they must both be considered to- gether, and the privilege cannot be exercised in a manner inconsistent with either, unless they are repugnant. Packer v. Sunhury and Erie B. B. Co , 19 Penn. St., 211. 1852. 75. — Railroad charters are to be strictly construed against the grantees. South Caro- lina B. B. Co. V. Cohtmbia and Augusta B. B. Co., 13 Richardson's Eq. (So. Car.), 339. 1867. 76. — This rule applies especially where one grant interferes with another previously made. Packer v. Sunbury and Erie B. B. Co., 19 Penn. St., 211. 1852. 77. — Where the charter leaves a right in doubt, the doubt is resolved against the corpo- ration. Oommonwealth «. Central Passenger B. B. Co., 52 Penn. St., 506. 1866. 78. — A company was authorized to hold land and " mine for coal oil and other miner- als, cultivate and improve," etc., and also "to construct a railroad or railroads from any other lands to connect with any road or to any navigable stream," etc. If the company had no land, it could build no road, and could only build from its own land to carry off its products. Warren and Franklin B. B. Co. v. Clarion Land Co., 54 Penn. St., 28. 1867. 79. — It could not build a railway inde- pendent of its own lands, for the mere accom- modation of the public, and for the compa- ny's pecuniary profit arising only from gen- eral travel. lb. 80. — A proviso to the law was that " the said roads do not exceed twenty miles in length." Seld, that all the roads together could not exceed twenty miles in length. lb. 81. — The terminus a quo must be on the company's land, if the beginning be illegal there is no lawful railroad. lb. 82. — When the road reached a navigable stream or other railroad, it ended. lb. 83. — The charter of the P. W. & B. R. R. Co. authorizes it as soon as it conveniently can, to construct a road, with one or more tracks, and to make and erect such ware- houses, etc., and all the works and append- ages for the convenience of the said compa- ny, for the use of its railroad. This gives the right to construct sidings, turnouts, stations. engine houses and all works and appendages usual in the convenient operation of the road. Philadelphia, Wilmington and Baltimore B. B. Go. V. WiUiams, 54 Penn. St., 103. 1867. 84. — The expression " as soon as it con- veniently can locate and construct," is not a limitation upon the power to compel the company to exercise its whole authority in the very beginning. lb. 85. — The power to take land includes the power to take a right of way over it. lb. 86. — Grants of exclusive privileges, being in derogation of public rights belonging to the state, or to its citizens generally, must be construed strictly. Mohawk Bridge Co. v. Uti- ea and Schenectady B. B. Co., 6 Paige Ch. (N. y.), 554. 1837. 87. — A corporation which has been au- thorized to construct a railroad, and l.i after- terwards authorized by statute to make It in sections of five miles each, provided that it shall not commence the construction of any portion of its road within a certain distance of one of its terminations, until all the stock is subscribed for by responsible persons, and a certain portion thereof actually paid in, is not obliged to have its stock subscribed for, and the specified amount paid in, as a condi- tion precedent to constructing its whole road not in sections. Boston and Providence B. B. Co. V. Midland B. B. Co., 1 Gray (Mass.), 340. 1854. 88. Division of railway corporation. On the division of the route of a railway com- pany into two parts, one part retaining the corporate name with all the subscriptions for the capital stock: lield, that this was not to be deemed a new corporation, but rather a con- tinuation of the original one with a dimin- ished franchise. Low v. Connecticut and Pas- sumpsic Bivers B. B. Co., 46 N. H., 284. 1865. 89. Domicil of a corporation. Where a corporation derives its charter from the state of Virginia alone, its domicil is in that state exclusively. It cannot reside in Maryland and in Virginia at the game time under the same charter. Baltimore and Ohio B. B. Co. B. QUnn, 28 Md., 287. 1867. 90. Double track. The act incorporating the New York and Harlem R. R, Co., passed April 25, 1832 — construed. Seld, that the permission to build a double track should be construed to mean two tracks upon the same 120 CHARTER. Extension of Road — Forfeiture. location, for the purpose of enabling cars to run in opposite directions, and not two es- sentially different routes tlirough different streets or avenues ; especially as the right of granting to other persons or corporations au- thority to construct parallel railroads on streets or avenues not occupied by the New York and Harlem Railroad Company, was expressly reserved by § 10 of the same act. People v. New Torh and Harlem B. Jt. Co., 45 Barbour (N. Y.), 73, 1864; Same v. Same, 26 Howard's Pr. (N. Y.), 44, 1863. 91. Extension of road. The grant of a right to a railroad company to extend to and unite with any other railroad In this state, , gives a general authority to extend to any other road within the prescribed limits. Belleville and Illinowtown S. B. Co. v. Gregory, 15 111., 20. 1853. 92. Ferry. The charter of the Southern Minn. R. R. Co. — construed. Held, that it was not entitled under its charter to run ferry boats within the territoiy in whicli McR. had a ferry license. McBoberts v. Southern Minn. B. B. Co., 18 Minn., 108. 1871. 93. Filing. Parol evidencie is admissible to show the date of the filing of the articles of association of a railroad company organ- ized under the general statute of 1852, in the office of the secretary of state. Johnson v. Craiofordsville, Frankfort, etc. B. B. Co., 11 Ind., 280. 1858. 94. — The filing Is no part of such articles. It is a fact separate from and independent of them. It is a fact separate from the indorse- ment of the fact of filing. The indorsement is not the filing ; it can be no more than prima facie evidence of the time of the filing. lb. 95. — .The filing of a paper, as between the party and the oflScer, is the delivery of it to the' officer, at his office, to be by him kept as a paper on file ; and such delivery may be proven by evidence other than the indorse- ment of the officer. 76. 96. Forfeiture. On a bill brought by a corporation against another corporation for interference with its rights, it is entitled to relief against wrongs committed before the issuing of its- letters patent, if there was no such tardiness in organizing as forfeited the privileges given by the charter. Packer v. Suniuryand Brie B. B. Co., 19 Penn. St., 211. 1852. 97. — The legislature is not the final judge of whether the act upon which the authority to repeal a charter is based, has -accrued. Com- monwealth ex rel. V. Pittsburgh and Connells- ville B. B. Co., 58 Penn. St., 26. 1868. 98. — The declaration of a forfeiture by an act of the legislature, cannot be sustained on the ground of a taking under the right of eminent domain, unless there is some ade- quate remedy provided for obtaining com- pensation, lb. 99. — The sale of a railroad, etc.under the act of April 8, 1861, does riot extinguish the corporation, but creates the purchasers a body corporate with all the rights of the corpora- tion whose property they have bought. Com- monwealth V. Central Passenger B. B. Co., 52 Penn. St., 506. 1866. 100. — Irregularities in the organization are not necessarily fatal to the being of the corporation ; organization is but the creation of an agency by which it cau act; it presup- poses its existence. Ih. 101. — A defect in organization may work a forfeiture 'of franchises but will not entitle the commonwealth to a judgment that the franchises do not exist. lb. 102. — Under an original grant of corpo- rate rights, the grantee must comply strictly with all the conditions precedent to the taking effect of the grant. lb. 103. — Where the causes of forfeiture are clearly made out, the charter will be pro- nounced forfeited. State v. Clinton and Port Hudson B. B. Co.,4: Robinson (La.), 445. 1843. 104. — To authorize a suit in the name of the state to declare a forfeiture of a charter, it is not necessary that the legislature should by a statute have authorized and directed the in- stitution of such suit. State v. Southern Pa- cific B. B. Co., 24 Tex., 80. 1859. 10.5. — The manner and form of bringing such suit considered. lb. 106. — If an act of incorporation fixes a definite time in which the charter shall ex- pire, when the time fixed for its expiration arrives, the corporation is dissolved. But if its continuance beyond a fixed time is made dependent upon the performance of a given condition, the nonperformance of the condi- tion is a mere ground of forfeiture. This, however, can only be taken advantage of in a proceeding by a quo warranto. La Grange CHARTER. 121 Franklin R. R. Co'. — Mississippi and Atlantic R. R. Co. and Memphis B. H. Co. v. Mvdney, 7 Coldwell (Tenn.), 430. 1870. " 107. — As long as the state, recognizes the existence of a corporation, it may sue and be sued. lb. 1 08. — constitntional law. An act which repeals the charter of a railroad company and confers its powers upon a different hody, with a view to declare a forfeiture or create a dis- solution, is unconstitutional. Bruffett v. Grjsat Western B.B. Co:-, 25 111., 353. 1861. 109. — evidence. The' only competent ev- idence to puove'a forfeiture of a charter is the judgment of a court directly on the point. Cleveland and Bittsburgh B. B. Co. v. Speer, 56 Penn. St., 825. 1867. 110. Franklin R. R. Co. The charter of the Franklin R. R. Co. — construed. Oommis- sioners of Washington County v. Franklin B. B. Co., 34 Md., 159. 1870. 111. Harlem R. R. Co. The time limited for the completion of the Harlem railroad only applied to the road as originally author- ized by its charter. Hamilton ». New York and Harlem B. B. Co., 9 Paige Ch. (N. Y.) 171. 1841. 112. Illeg;al contract. A contract to with- draw opposition to the passage of a railway charter will not be enforced in equity. Mar- tin 11. Second and Third St. B. B. Co., 3 Phila- delphia Rep. (Penn.), 316. 1858. 113. Infringement of chartered routes. A provision in the charter of a railroad com- pany, that no railroad, other than the one established, shall be authorized to be made from one termination thereof to any place within five miles of the other termination, is not infringed by an act authorizing the con- struction of a railroad from the first men- tioned termination, to a point not within five miles of the other termination, although within the space included by two straight lines drawn from the first termination to points five miles on each side of the other ter- mination. Boston and Lowell B. B. Co. v. Bos- ton and Maine B. B. Co., 5 Cushing (Mass.), 375. 1850. 114. Illinois Central R. R. Co. The Illi- nois Central R. R. Co. has the right, under its charter, to locate its road in the waters of Lake. Michigan. Illinois Central B. B. Go. v. Bucker, 14 111-., 353. 1858. 115. Judicial notice. The act incorporat- ing the C. and I. R. R. Co., is a private act and will not be judicially noticed by the court unless such act. is set out in the plead- ings. Ohio and Indianapolis B. B. Co. v. Bidge, 5 Blackford (Ind.), .78. 1889. 116. — A supplement to an act incorporat- ing a private company, containing a clause that " it shall be deemed and taken as a pub- lic act," will itself receive judicial recogni- tion. Stephens and Condit Transportation Go, V. Central B. B. Co., 4 Vroom (N. J.), 329. 1869.: , , 117. Limitation. An act incorporating a railroad company, with a condition inserted therein- that it shall be void if not carried into effect within a time limited, and containing also a proviso, that after 'twenty years, the commonwealth may, in a certain contingency, purchase the franchise of the road, is not in virtue. of either of these provisions, expressly limited as to its duration, within the act of 1880, ch. 81. (R. S., ch. 44, § 33.) Boxbury v. Boston -and Providence B. B. Co., 6 Cushing (Mass.), 434. 1850. 118. Macon and Western R. R. Co. Where a railroad company, by its charter, had: the exclusive right to transport and carry persons, merchandise, etc., over its road from Atlanta to Macon, it was held, that such charter did not give the company the right to engage in transporting produce through Macon across the' Ocmulgee bridge to the depot of another railway company. Such- charters are to be strictly construed. Mayor of Macon v. Macon and Western B. B. Co., 7 Ua., 221. 1849. 119. Memphis Branch R. R. Co. The charter of the Memphis Branch R. R. Co. — construed. Mitchell v. Borne B. B. Co., 17 Ga., 575. 1855. 120. Minneapolis and Cedar Valley R. R. Co. The legislature, by an act approved March 10, 1863, entitled " An act to facilitate the construction of the Minneapolis and Cedar Valley Railroad, and to amend and continue certain acts in relation thereto," did not revive the Minneapolis and Cedar Valley R. R. Co., or continue or regrant to it the franchises and property which it had forfeited to the state. Fitz v. Minnesota Central B. B. Co., 11 Minn., 414. 1866. 121. Mississippi and Atlantic R. R. Co. The Mississippi and Atlantic R. R. Co. is a valid and subsisting corporation. People 122 CHARTER. Monopoly. v. Mississippi and Atlantic S. B. Go., 14 111., 440. 1853. 122. Monopoly. The legislature, having granted a charter to a railway company be- tween certain termini, may afterwards char- ter another between the same points, unless there is a limitation to the contrary in the first charter. State v. Noyes, 47 Me., 189. 1859. 123. — It is provided in a section of the the charter of the Michigan Southern E. R. Co., that no railroad or railroads, from the eastern or southern boundary of the state, shall be built or maintained, any portion of which shall approach westwardly of Wayne county, within five miles of the line of said railroad, without the consent of the said com- pany ; nor that any railroads shall be author- ized, which shall commence within twenty miles of Detroit, and extend to lake Michigan on the southern boundary of the state, the line of which shall, in an average, run within twenty miles of the main line of said Michi- gan Central Railroad : provided, that said act should not be construed to restrict or prevent the construction of public roads, or canals, or railroads or private ways, under, above or across the road of said company, when deem- ed expedient; but so as not to unnecessarily obstruct the the same. Held, that the prohibi- tion contained-in the first subdivision of the said section does not apply to a chain or series of railroads, one of which might reach one of the prohibited points, and another of which might reach the other point; but only to an entire road in itself extending to each point. Michigan Central R. B. Go. «. Michigan South- ern B. B. Go.,4:M.ich.,S61. 1856. 124. — The provision of § 12 of the act in- corporating the Boston and Lowell R. R. Co., (St. 1830, ch. 4), " that no other railroad than the one hereby granted shall, within thirty years from and after the passage of this act, be authorized to be made, leading from Bos- ton, Charlestown or Cambridge to Lowell," (the legislature also reserving, in this act, tlie right to regulate the tolls to a certain extent, and to purchase the franchise upon certain terms), constituted a contract by the common- wealth with the Boston and Lowell Co., that no other railroad from Boston, Charlestown or Cambridge to Lowell, should be lawfully made for thirty years; and was within the constitutional power of the legislature to make, and binding upon their successors. S/ston and Lowell B. B. Go. v. Salem and Lowell B. B. Gq., 2 Gray (Mass.), 1. 1854. 125. — A railroad company which is unlaw- fully disturbed in the enjoyment of its fran- chise by another railroad corporation, may maintain a bill in equity in the supreme court for an injunction of such disturbance as of a nuisance: and is not obliged to apply to the county commissioners for damages under R. S., ch. 89, § 50 ; nor to this court for leave to file an information in the nature of a quo war- ranto, under St. 1852, ch. 312, § 42. lb. 126. — Such right, however, is subject, like other private property, whenever, in the opin- ion of the legislature, the public exigencies require it, to be appropriated to public uses, reasonable compensation being made. lb. 127. — Under a stipulation in the charter of a railroad corporation, that the state would not, within tiirty years, allow any other rail- road to be constructed, within certain limits, the probable efiect of which would be to di- minish the number of a certain description of passengers on the railroad then chartered. Held, 1. That this stipulation was to be con- strued strictly, as against the corporation. 2. That it was not violated merely by charter, ing another railroad, which might be exclu- sively used to transport merchandise. BicTt- mond, etc., B. B. Go. v. Louisa B. B. Go., 13 Howard, 71. 1851. 128. — Where an injunction is asked against a street railway company to prevent the construction of a road, on the ground that the plaintiff had an exclusive right, the in- junction will be dissolved if the plaintiff does not show that he has that exclusive right. The fact that the plaintiff has had an exclu- sive right and afterwards abandoned it, will not confer an exclusive right upon a third party who may obtain permission from the city to build a. road through a particular tract of land. iVewi Orleans Gity B. B. Co. v. Cres- cent City B. B. Go., 23 La. An., 759. 1871. 129. — An exclusive privilege was granted to the Pontchartrain R. R. Co., of building and operating a railway from New Orleans to Lake Pontchartrain. Subsequently, a company was authorized to build a road from said city to Carrollton, and another company was au- thorized to build a road from Carrollton to. said lake. A combination was made by the CHARTEK. 123 Organization. two latter roads to run through trains from the city to the lake. Held, that this was a vi- olation of the privilege of the former com- pany, and an injunction was granted with damages. Pontcliartrain B. B. Co. v. New Or- leans and Carrollton B. B. Go., 11 La. An., 253. 1856. 130. — The exclusive privilege, vested in the plaintiff, hy the act of 1880, to construct a railway, within certain limits, must be con- strued with reference to the extent of the city of New Orleans, at the time of the passage of the act. Pontchartrain B. B. Go. v. Lafay- ette and Pontcha/rtrain B. B. Go., 10 La. An., 741. 1855. 131. Morris and Essex R. R. Co. The charter of the Morris and Essex B. R. Co. — construed. Vail v. Morris and Essex B. B. Co., 1 Zabriskie (N. J.), 189. 1847. 132. Municipal corporations. Where a railroad company by its charter, is authorized to bring its road to a city, and acquire prop- erty within it, the right to enter the city is also conferred. Moses «. Pittsburgh, Fort Wayne and Chicago B. B. Go.,2\ 111., 516. 1859. 133. Name. The charter of the St. Paul and Pacific R. R. Co. — construed. The corpo- ration had no authority to make a change of its name. Morris v. St. Paul and Chicago B. B. Go., 19 Minn., 538. 1873. 134. New enterprise. A stockholder in a corporation, the charter of which by St. 1830, ch. 81, is subject to alteration, at the pleasure of the legislature, cannot maintain a bill in equity to restrain the corporation from engag- ing in a new enterprise in addition to that contemplated by the charter, but of the same kind, if it is sanctioned by an express legisla- tive grant, and by a vote of a majority of the stockholders. Durfee v. Old Colony and Fall Biver B. B. Co., 5 Allen (Mass.), 230. 1863. 135. Neglect of duty. If a state injure one company by the unlawful grant of a char- ter to another and rival one, the remedy of the first company is by proper proceedings to /•estrain the second from getting iiito opera- tion, and not by neglecting its own duties. Turnpike Co. v. The State, 3 Wallace, 310. 1865. 136. — Nor can it plead its lessened reve- nues, caused by such second corporation, as an excuse for a violation of its charter. lb. 137. Newark and Bloomfleld R. R. Co. The charter of the Newark and Bloomfleld R. R. Co., and supplement thereto, construed. Oifford v. New Jersey B. B. Co., 3 Stockton's Ch. (N. J.), 171. 1854. 138. Orange an^ Newark R. R. Co. The charter of the Orange and Newark R. B. Co. construed. McFarland v. Orange and Newark B. B. Co., 3 Beasley's Ch. (N. J.), 17, 1860; Same v. Same, ib., 561. 139. Organization. Where, in the organ- ization of a railroad company, all the require- ments of the charter were observed, though not in the order prescribed, the organization was deemed sufficient. BahrigM ®. Logansport and Northern Indiana B. B. Go., 13 Ind., 404. 1859. 140. — general statute. The statute re- lating to the formation of railroad corpora- tions is substantially complied with if the only defect in the papers necessary to consti- tute a corporation, is the omission of the words, " in good faith," in that portion of the affidavit attached to the certificate relating to the payment of the ten per cent. People v. Stockton and Visalia B. B. Go., 45 Cal., 306. 1873. 14)1. — conditional subscriptions. An act of assembly appointed commissioners and authorized them to open books and receive subscriptions for the purpose of constructing a railway, and provided that no subscription should be valid unless five dollars was paid on each and every share, at time of the sub- scription, and provided that when a certain number of sliares should have been sub- scribed, and five dollars paid upon each as aforesaid, and the same should be certified to the governor by the commissioners, under oath, he should thereupon issue letters patent incorporating the subscribers, and those who should thereafter become subscribers to the stock, all of which was done, and the com- pany duly organized. Held, that the act im- posed no restriction upon the corporation after it was organized, in regard to the pay- ment of the sum of five dollars on each share at time of subscribing. Philadelphia and West Chester B. B. Go. v. Hickman, 38 Penn. St., 318. 1857. 142. — That the commissioners were only invested with special authority, but the offi- cers of the company, after its organization, acted under the general corporate powers granted. Ih. 124 CHARTEK. Penalty — Powers. 143. — The condition annexed to the sub- scription, that it should be binding only in the event of a certain amount of stock being subscribed, was a valid one. II. 144. — The company had the right to ac- cept payment of stock in labor, materials, in damages which the company was liable to •pay, or in any other liability of the corpora- tion. Ih. 145. Private road. R. having constructed a private railroad to his own mines without au- thority of law, was enjoined from using it and ordered to remove his rails. He procured the incorporation of himself and six others into a railway company, with a capital of $100,000. The company was organized before any stock was taken, and B. sold to the com- pany his railroad, mines, etc., for $100,000, payable in the slock of the company, which had no other assets than the property sold by E. The company relaid the road and oper- ated it. Held, that R. was the owner after the organization and sale. That the road was still a private road and not covered by the act of incorporation. McGandlets' Appeal, 70 Penn. St., 210. _1871. 146. Penalty. The state of Maryland passed a law to subscribe $100,000 to the stock of the Baltimore and Ohio R. R. Co., providing that, if the road should be located so as not to pass through certain towns, the company should forfeit $100,000 to the state for the use of Washington county. The com- pany assented to tliis law as a part of its char- ter. Held, that this, was a law inflicting a penalty; that nothing was due to the county by the contract, and that the state could re- lease and had released the penally by a sub- sequent law. State of Maryland «. Baltimore and.Ohio B. R.Go., 3 Howard, 535. 1844. 147. Pensacola, etc., R. R. Co., The char- ters and corporate rights ot the Pensacola and Ga., and Fla., Atlantic and Gulf Cent. R. R. Companies — examined. Florida, Atlan- tic and Oulf Central B. B. Co. v. Pensacola and Georgia B. R. Co., 10 Fla., 145. 1863. 148. Philadelphia, etc., R. R. Co. The charter of the Philadelphia, Germantown and Norristown R. R. Co. — construed. Soberts V. Philadelphia, etc., B. B. Co., 5 Penn. Law Jour. Rep., 124. 1851. 149. — The act incorporating the Phila- delphia and Wilmington R. R. Co. — con- strued. Jarden ■». Philadelphia, Wilmington and Baltimore B.B.Co., 8 Wharton (Penn.), 502.- 1838. 150. Place of existence. A corporation can have no legal existence out of the bounds of the sovereignty which created it; it must dwell in the place of its creation. Allegheny County 11. Cleveland and Pittsburg B. B. Co., 51 Penn. St., 228. 1865. 151. Police regulations. Police regula- tions, established by law tor the coneenience of passengers cannot affect companies already charteied, but regulations tov ^the safety of passengers may be enacted. State v. Noyes, 47 Maine, 189. 1859. 152. Powers — to hold land. The char- ter of the Pacific Railroad Company gave it power to acquire a strip of land not exceeding one hundred feet wide for a right of way, and to hold sufBcient ground for the erection and maintenance of depots, landing places, etc. Held, that the corporation had no power to acquire land for purposes of speculation. A corporation can purchase and hold land only for such purposes as are authorized by its charter. Pacific B. B. Co. v. Seeley, 45 Mo., 212. 1870. 153. — But although an executory contract to convey suchlandcannotbe enforced on ac- count of being against public policy, yet if the deed were in fact made voluntarily, it will be good to pass title. Land v. Coffman, 50 Mo., 243. 1872. - 1 54. — The amount of lands which a cor- poration may hold cannot be determined in a suit between private parties. That question can only be raised by the state in a direct pro- ceeding against the company. lb. 155. — A railroad company cannot law- fully engage in any distinct branch of busi- ness not authorized by its charter, for the pur- pose of raising funds to accomplish the ob- ject for which it was created. Waldo v. Chi- cago, St. Paul and Fond du Lac B. B. Co., 14 Wis., 575. 1861. 156. — The Chicago, St. Paul and Fond du Lac R. R. Co. had no power under its charter to buy and hold lands situated at a distance from the road, and which it did not need and could not use in constructing or operating its road. Ih. 157. —The Ohio R. R. Co. is authorized by its charter to purchase and hold real estate. CHAKTER. 125 Repeal — Route Designated. ■when necessary for the procurement of mate- rials, or for the economical construction of the road. Omrmyer «. Williams, 15 Ohio, 26. 1840. 158.— In the authority to the P. & R. R. R. Co. to construct a railroad are included sidings and liranches to its wharves. Black v. Philadelphia and Beading B. iJ. Co., 58 Penn. St., 349. 1868. 159. — generally. In ordinary transac- tions between the corporation and strangers, the authority of agents, and the existence of cpntracts, may be implied from circumstances, or where the assent of the board is required by a by-law; but where the charter grants a power, the mode prescribed for , its exercise must be strictly pursued. Pittsburgh and Con- nellsmlle B. B. Go. v. Clarke & Thaw., 29 Penn. St., 146. 1857. 160. Repeal. Where the charter of a cor- poration reserves to the legislature an uncon- ditional pciwer of repeal, the legislature may arbitrarily repeal the charter without cause. Mayor of Baltimore v. Pittsburgh andConnells- vilU B. B.Co., 1 Abbott (U. S. C. C), 9. 1865. 161. — Suit upon a promissory note. An- swer: that the note was given for certain shares of the capital stock of the Fort Wayne and Southern R. R. Co., and that at the lime of giving the same the said corporation had no legal existence in this ; that said company was authorized by an act of the legislature, in 1849, but did not act upon or accept said char- ter until November 19, 1852, before which time the new constitution had gone into force, prohibiting the creation of corporations, other than banliing, by special act. Held, that the organization of the company was a naked as- sumption, without authority of law, or sem- blance of right. Gillespie v. Ft. Wayne and Southern B. B. Co., 17 Ind. 243. 1861. 1 62. — A promise to a body or organization Of men, professing to act as a corporation, in an instance, or under circumstances, where by law a corporation of that character could not have a legal existence, does not estop the per- son making it from showing the facts. lb. 163. — The legislature, in granting a char- ter to the Penobscot and Kennebec R. R. Co., adjudged that the road was a public necessity; and this decision is conclusive. /State v. Noyes, 47 Me., 189. 1859. 164. — Whether or not the company lias abused its privileges is a question for the court. lb. 165. — A charter is a contract and will be construed as such. lb. 166. — The privileges granted by the char- ter may be taken for public use, the same as tlie property (jf an individual. lb. 167. — The reserved power to annul tl;e charter, carries with it no power whatever to seize the railroad, or to divest the stockhold- ers, or the OM'ners of the land, of their rights and property, but only takes away the fran- chise, this being all the legislature gave. Erie and Northeast B. B. Co. v. Casey, 1 Grant's Cases (Penn.), 274. 1856. 168. — Under the power of eminent do- main, a ptate may resume grants of lands, franchises or any other private property, whenever the public interest requires it; but in such cases the resumption must always be accompanied with just compensation to the party injured tliereby. lb. 169. — The power of the legislature to re- voke corporate charters is reserved by the constitution, and need not be contained in the charter. Delaware B. B. Co. i>. Tharp, 5 Harrington (Del.), 454. 1854. 170. — In 1840, the legislature incorporated the Cross Plains and Red Clay R. R. Co., re- serving the right to repeal the charter. In 1847, an act was passed granting the right of way over the same route to others. In 1849, the legisla,ture, by act, recognized the privi- leges granted by the act of 1840, changed the name to Union Branch Railroad, and re- pealed the clause in the act of 1840, reserving the right to repeal that' act. Held, that the act of 1849 could not affect the rights acquired under the act of 1847.' Union Branch B. B. Co. V. East Tennessee and Georgia B. B. Co., 14 Ga., 327. 1853. 171. Route designated. When the legis- lature authorizes the construction of a rail- road between two designated points, no inter. mediate points being named, and there are routes between said points equally feasible, th^t which is most direct will be deemed to have been contemplated ; l)ut where there is a difference in the feasibility of the routes, a reasonable discretion must be allowed in the selection of that to be followed. Newcastle and BirJimond B. B. Co. v. Peru and Indianap- olis B. B. Co., 3 Ind., 464. 1853. 126 CHATTEL MORTGAGE — CHURCHES. Checks — Damage. 172. Sale of right of way. The Dayton and Cincinnati R. R. Co. had the right to sell a portion of its right of way on which no work had been done, it having choice of sev- eral routes under its charter. Donner v. Day- ton and Cincinnati R. B. Co., 1 Cincinnati Superior Ct. Eep., 130. 1871. 173. Savannah, Albany and Gulf R. R. Co. The charter and amendment thereto, of the Savannah, Albany and Gulf R. R. Co., construed with reference to the extension of its road to Tybee Island. Savannah, Albany and Gulf M. R. Co. v. Shiele, -33 Ga., 601. 1863. 174. Somerville, etc., R. R. Co. The charter of the Somerville and Easton R. R. Co. — construed. Doughty «. Somerville and Boston R. R. Co., 1 Zabriskie (N. J.), 443. 1848. 175. Street railways. The charter of a street railway company is a contract, and it cannot be impaired by a subsequent charter. Second and Third Street R. R. Co. ■». Green and Coates Street R. R. Co., 3 Philadelphia Rep. (Penn.),430. 1859. 176. Taxation. The charter of the Balti- more and Port Deposit R. R. Corporation, taken in connection with the acts of assembly of Maryland, Delaware and Pennsylvania, which united that and two other companies into one corporation, did not exempt from taxation the property which belonged to the first mentioned corporation. Philadelphia and Wilmington R. R. Co. v. Maryland, 10 Howard, 391. 1850. 177. Tide water. Under a charter to a railway company, authorizing the construc- tion of a railway to the place of shipping lumber on a tide water river, the right of loca- tion is not limited to the shore, but may be extended to a point at which lumber may be conveniently shipped. Peavey v. Calais R. R. Co., 30 Me., 498. 1849. 17S. Transfer. If one corporation in any authorized mode, becomes the proprietor of the property and franchise of another, the former is released from the indebtedness of the latter, not ripened into a prior li^n. Bruffett V. Great Western R. R. Co., 35 111,, 353. 1861. 179. — The sale of the property of a cor- poration does not disorganize it. lb. 180. Transit R. R. Co. The act of the legislature, approved March 10, 1863, entitled " an act to facilitate the construction of a rail- road from Winona westerly by the way of St. Peter," did not revive the Transit R. R. Co.', or continue or regrant to it the property or franchises which it had foi felted to the state. Hvff V. Winona and St. Peter R. R. Co., 11 Minn., 180, 1866 ; Eilbert v. Same, ib., 246, 1866. 181. Void charter. A corporation char- tered by the laws of Pennsylvania, with a stipulation in the charter that it shall not do business in that state, cannot do business in Kansas. Such charter is void. Land Grant R. R. Co. V. Commissioners, 6 Kan., 345. 1870. 182. When a corporation commences to exist. The act to incorporate the Utica and Schenectady R. R. Co. did not create a corpo- ration the instant it became a law; it only constituted such persons as should become Stockholders, in the manner prescribed in the act, a body corporate. Walker v. Devereaux, 4 Paige Ch. (N. Y.), 229. 1833. CHATTEL MORTGAGE. See MoBTGAOE of Chattels. CHECKS. 1. A check drawn upon a bank is only pay. able in such kind of funds as the drawer has in bank. Lester v. Georgia R. R. Co., 42 6a., 244. 1871. 2. — Where a check is drawn in payment of a debt, against a bank where there were sufficient funds of the drawer to pay the same, and the holder of the check negligently fails to present the check in a reasonable time, and the bank fails, the holder of the check can- not recover from the drawer. Syracuse, etc., R. R. Co. V. Collins, 3 Lansing (N. Y.), 29. 1870. CHURCHES. 1. Damage. In an action for damages by the trustees of a religious society, against a railroad company, the declaration alleged that the religious society had been disturbed, during worship on the sabbath, in the church edifice, by the noise made by the defendant in CITIES — COMPENSATION. 127 County Bonds — OfBcers. the use of its road, by which the property had become very much depreciated in value and rendered unfit for use as a church. Held, on demurrer, that althouglx tlie injuries com- plained of might amount to a public nuisance, yet that no action could be sustained by the plaintiffs, as owners of the building, for the depreciation in the value thereof, the conse- quences being too remote. First Baptist Church V. Utica and Schenectady B. li. Co., 6 Barbour (N. Y.), 313, 1848. In case of First Baptist ChurcJt f. Schenectady and Troy R. R. Co., 5 Barbour (N. Y.), 79, 1848, the contrary view is held. 2. — If the trustees could not recover for the depreciation of the property, they could not recover at all, for they cannot sue for the disturbance to those worshipping in the church. Ih. CITIES. See iHjiTBilis TO Febsons on the Tbaok; Municipal COBFOBATIOHS ; SUBSCBIFTIONS BT CiTISB. COAL. See Cabbiase ov Kebchandise. COLLATERAL SECURITIES. 1. Counlty bonds. Actual knowledge of the sale of bonds pledged as collateral, is sufficient to the party who pledged the same, although no notice of such sale has ever been given to him. Alexandria, Loudon and Hamp- ghire R. R. Co. n. Burke, 23 Grattan (Va.), 254. 1873. 2, Sale. A sale by a creditor of collateral securities, placed in his hands by the princi- pal debtor, in violation of a stipulation for a particular notice of sale contained in the con- tract under which they were pledged, does aot per se, discharge a surety in toto who is liable for the debt, but by such sale the creditor makes the securities his own to the extent of discharging thcj surety to an amount equal to their value. Yoae v. Florida R. R. Co., 50 N. Y., 369. 1873. COLLISIONS. See iNJTjniEs to Employes; iN-imiiEa to Passen- gers. COLORED PERSONS. See Passenqebs. COMMONS. See EMtMENT Domain. COMPARATIVE NEGLIGENCE. See Injuries to Domestic Animals ; Injueies to Em- ployes; Injuries to Passengebs; Injuries to Persons on the Track ; S[£oligenoe. COMPENSATION. See DiBEcTOES. ' 1. Clerk of corporation. The value of the services of a clerk of a corporation who attends the meeting of the board of directors, waits upon their deliberations, reduces the results of their action to proper form, under the responsibility attaching to his offlce of clerk, is not to be determined by the value of the mere clerical service of writing or copy, ing so many pages or folios; and when the compensation or salary of such clerk or olflcer is not fixed by contract or by law, he may recover such sum as he may by compe- tent evidence prove his services to be worth. Missouri River R. R. Co. ■». Richards, 8 Kan., 101. 1871. 2. — A ijerson who has personal knowledge of the services rendered, and has a knowledge of the value of the services, and what was usu- ally paid for such services in the east, is com- petent to testify what the services were worth, although he may not have known of any established price for such services in tho vicinity where rendered. lb. 3. Officers. When the by-laws of a corpo- ration provide that the officers shall receive such compensation for their services as the board of directors shall fix and.allow, and the board has not fixed any compensation, a sec- retary who has rendered services is entitled to recover therefor, unless there was an under- 128 COMPETING LINES — CONFEDERATE MONEY. Miscellaneous. standing that he was . to render the services ■without compensation. lb. COMPETING LINES. 1. Where two railroad companies have the authority to build and run a railroad between the same termini, neither can take exception to any irregularity or unlawfulness in the ex- ercise of such franchise by the other, unless it can show a particular injury to itself and from such course. „ Erie B. R. Oo. v. Dela- ware, Lackawanna, etc., R. R. Oo., 6 C. E. Green's Ch. fN. J.), 283. 1871. CONDEMNATION OF LANDS. See BjiiNEitT DoHAiH. CONDITIONAL SALE. ' 1. Railway iron. Although iron rails are so fastened upon a railroad as to be part of the realty in the absence of any agreement to the contrary, yet if the vendor delivered and the company received them under an agree- ment that they should be laid dpwn on a specified part of the road and remain the vendor's property until paid for, and they have not been paid for, they continue to be personal property as between the vendor and the company, and subsequent incumbrancers and grantees, with notice; but not as between the vendor and prior mortgagees. Sunt v. Bay State Iron Co., 97 Mass., 379. 1867. CONDUCTOR. See Appeals; Ikjttbibs to Emflotbs. 1, Duties and liabilities. An agent of the Concord R. R. Co., whose duty it was to sell tickets issued by that road, for his own profit, purchased joint tickets issued by other roads under a contract with the Concord R. R. Co., entitling the holder to a passage on the Con- cord Railroad, and sold these tickets to pas- sengers who would have otherwise bought the tickets issued by the Concord Railroad, and entrusted to the agent for sale. The Con- cord R. R. Co. derived a larger profit from its own tickets than from the joint tickets issued by other roads. The agent bought and sold the joint.tickets with the knowledge and con- sent of the supermtend/ent of the Concord R. R. Co., but the corporation and its directors had no actual knowledge of it. Held, that the Concord R. R. Co. could recover of the agent, in assumpsit for money had and received, the profits made by him in thus buying and sell- ing the joint tickets. Oonei'rd R. R. Co. v. Clough,.49 N. H., 357. 1870. 2. — The rules of the C. R. R. Co. required its conductors to collect ten cents more than the regular fare from passengers making pay ment on the trains. One of the conductors, in certain instances, only collected the regu- lar fare, and in order to conceal the irregu- larity, took the money and bought tickets and punched them in the usual way, to show that they had been used. This was done with the knowledge and consent of the superintend- ent, but with the understanding that it should be kept concealed from the company, and it was so concealed. Held, that this did not constitute a payment of these fares to the company, and that the company could recover the same from the conductor in assumpsit. lb. CONFEDERATE MONEY. 1. Contract. Where it appeared that the plaintiff, on the 1st of January, 1865, hired his slaves to the defendant upon the express understanding that he was to take Confeder- ate money in advance, or whenever he should apply for it, and the defendant was always ready to pay the confederate money, but the plaintiff never applied for it, it was held, that he was not entitled to recover the value of the hire of the slaves. Erwin v. Western NortJi GaroUna R. B. Co., 65 N. C, 79. 1871. 2. — A contract is not void because the consideration was confederate money, where the contract had nothing to do with carrying on the war against the general government. Georgia R. B. Co. «. Eddleman, 38 Ga., 465. 1868. 3. Payment. The fact that at the time of the payment of a debt in Confederate money, CONFESSION - CONNECTING LINES. 129 War of 1861 — Abandonment — Carriage of Goods. the plaintiff objected, but the defendant told him he "must take it," but used no force, and the further fact that at the time the Confed- erate army was in Holly Springs, where the payment was made, and a military order had been issued requiring the arrest of persons who refused to accept such money, do not constitute duress, and a payment made under these circumstances is valid. Dams v. Mis- sissippi Central S. B. Go., 40 Miss., 553. 1872. 4. Statate. — The ordinance of 1865, in re- lation to contracts for confederate money — construed, Bowdre v. Macon and Brunswick B. B. Co., 40 Ga., 148. 1869. 5. — The act of the General Assembly of 1866-67, entitled " an act relating to debts con- tracted during the war," and allowing either piirty to show on the trial, the consideration of the contract, and the jury in making up their verdict to take the same into considera- tion, is not unconstitutional. King s. Wash- ington and Wilmington B. B. Go., 66 N. C. 277. 1873. 6. — A bond of a railroad company, for the payment of money, executed in 1863, comes within the provision of the ordinance of the convention of 1865, and is presumed to be solvable in money of the value of Confederate currency, subject to the evidence of a different intent by the parties. Alexander v. Atlantic, Tennessee and Ohio B. B. Co., 67 N. C, 198. 1872. CONFESSION. 1. — A confession is an admission of a cause of action to the extent of its terms only. Backett «. B., 0. and M. B. B. Go., 35 N. H., 390. 1857. CONFISCATION. 1. War of 1861. In the war of the rebel- lion, the United States had belligerent, as well as sovereign rights. They had the right to confiscate the property of public enemies. Miller v. United States, 11 "Wallace, 268. 1870. 2. — The right of confiscation exists as well in a civil as in a foreign war. lb. 9 3. — Congress may specify what property of enemies shall be confiscated. lb. 4. — In a judicial" proceeding to confiscate stocks in a railroad company under the acts of congress of Aug. 6, 1861, and July 17, 1863, the person whose property has been seized, may sue out a writ of error, though not a claimant in the court below. lb. 5. — Such seizure may be made by giving notice of seizure to the president or vice presi- dent of the company; and a seizure thus made, under a warrant and monition is suffi- cient to give the district court jurisdiction. lb. 6. — In a seizure upon land, a trial by jury is not necessary when there are no issues of fact to be tried. lb. 7. Revenue cases. In admiralty and rev- enue cases when a default has been duly entered to a monition founded on an informa- mation, averring all the facts necessary to a condemnation, it has substantially the effect of a default to a summons in a court of com- mon law. lb. CONNECTING LINES. SeeAoENcr; E ago age; Cabbiage or Lrrs Stock; Cabbiaoe of Mesghakdise ; Gauge; Injubies to Passengees ; Isjtjeies to Pebsons on the Teack ; Street Railways. 1. Abandonment. Where, by virtue of their respective charters, a connection is macjo between two railroads, the company procuring the connection is not bound to continue to avail itself permanently of such connection, but may construct additional lines of its own, superseding the necessity of such connection, and it will not be liable for damages for dis- continuing the use of the line of the other company. Boston and Lowell B. B. Go. ■». Bos- ton and Maine B. B. Go., 5 dishing (Mass.), 875. 1850. 2. Carriage of goods. A railway company which acts as the forwarding agent of the owner of goods in giving directions by way- bills or otherwise to the successive lines of transportation over which they are to be car- ried, beyond the termination of its own route, is responsible as such forwarding agent only for the want of reasonable diligence and caro. Northern B. B. Go. v. FitcKburg B. B. Go., 6 Allen (Mass.), 354. 1863. 130 CONNECTING LINES. Connection defined — Contract. 3. Connection defined. " Railroad connec- tion," without qualifying terms, means either such a union of tracks as to admit the pas- sage of cars from one road to another, or such intersection of roads as to admit the conve- nient interchange of freight and passengers at the points of intersection. Philadelphia and Erie B. M. Co. v. Oatawissa B. B. Co., 63 Penn. St., 20. 1866. 4. — The Atlantic and Great Western R. R. Co. was connected with the Catawissa R. R. Co. by the intervening of the Philadelphia and Erie R. R. Co., notwithstanding the diver- sity of gauge prevented the running of com- mon cars. lb. 5. Contract. In a contract between com- panies owning connecting lines of railroad for the continuous transportation of passen- gers and freight over both lines, it is lawful to agree upon a division of the fares by which one company allows part of the fares earned on its line to the other company. Sussex R. B. Co. V. Morris and Essex B. B. Oq., 4 C. E. Green's Ch. (N. J.), 13. 1868. 6. — A railway company may bind itself by special contract to transport persons be- yond the line of its road. Perkins v. Port- land, Saeo and PortsmoutJi B. B. Co., 47 Me., 573. 1859. 7. — A company may be thus bound, al- though it has :io actual arrangement with connecting lines. lb. 8. — Although the agent making such con- tract had no authority from the company to make it, yet if he had for several years, before and after the case in suit, practiced making similar contracts, the company will be es- topped from denying his authority. Jb. 9. — In such a case, the measure of dam- ages for goods lost, is their value at the place of destination, less the cost of transportation, if unpaid. lb. 10. — It being provided in the charter, that a railroad corporation might " make any lawful contract with any other railroad cor- poration in relation to the business of such road," it was Jield, that the object of this per- mission was to enable such company to con- tract for the common use of so much of an- other road already constructed as lay within the limits of the road so chartered. Nauga- tuck B..B. Co. V. Waterbury Button Co., 24 Conn., 468. 1856. 11. — If railroads make a connection un- der a contract, its continuance may be en- forced, in certain cases, by proceedings in equity. Androscoggin ajid Kennebec B. B. Go. V. Androscoggin B. B. Co., 52 Me., 417. 1864. 12. — But equity will not interfere where such connection is terminated by the parties. lb. 13. — Several railroad companies entered into a contract by which one of them was to build a connecting road and the others t- • contribute a specified proportion of the ex pense — the company building the road to control it and to pay over net earnings of the road to a trustee to be agreed on, who should distribute the fund monthly among the con- tributing companies until their contributions were reimbursed, after which the road was to be owned by all the companies in the propor- tion of their contribution to the expense of building it. A few weeks later, and before the road was built, another contract was entered into by the same companies, by which it was agreed that two express through trains should run over their respective roads daily for the terra of five years. The connecting road was built, and the share of each company toward the expense paid, except a part of that due from the N. comi)any, which was afterwards collect- ed by suit, but soon after, by reason of the fail- ure of the N. company, the arrangement for through trains and a through route was aban- doned, and the new road went to decay. Some years after, the company that built the con- necting road repaired it and used it in con- nection with its own road. Upon a petition in chancery against this company, brought by a purchaser of the rights of the insolvent N. company for an account of the net earn- ings of the connecting road and the appoint ment of a trustee to receive them, that the share due to the N. company mi>ght be ap- plied to the reimbursement of its share of the expense of the construction of the road, it was held, that the second contract was not to be regarded as superseding the first; that the duties of the respondent company under the first contract to apply the net earnings of the road to the reimbursement of the expense of its construction were not aflfected by the in- solvency of the N. company and the defeat of the plan for through trains; and that a trustee should be appointed to receive the net coNNEcxma lines. 131 Cars — Commi'jsioners : Award. earnings of the road from the respondents. Bartlette v. Norwich and Worcester R. R. Co., 33 Conn., 560. 1866. 14. Cars. The owner of a car which was placed upon a railway in pursuance of a license or clearance obtained from the com- pany by another in his own name, which other furnished the loading and paid the tolls, may recover damages in an action against the company for injuries sustained by the car while thus used, in consequence of the insuf- ficiency and bad condition of the road. Cum- herland Valley R. B. Go. v. Hughes, 11 Penn. St., 141. 1849. 15. — A railroad company which, for a reasonable compensation, receives into its ex- clusive custody and control and draws over its railroad the cars of another and connect- ing railroad company, with their passengers and freight, is, in the absence of any special contract to the contrary, liable as a common carrier for any injury to the cars so received, while the same are in transit over its road. Vermont and Maaaaekusetts R. R. Co. v. Fitch- burg R. R. Co., 14 Allen (Mass.), 463. 1867. 16. Commissioners. The legislature has the p«)wer to authorize the appointment of commissioners to determine judicially the rights and obligations of connecting roads. A statute which does not go beyond this is remedial only, and binding on existing cor- porations. .Portland and Oxford Central R. R. Co. ®. Grand Trunk R. R. Co., 46 Maine, 69. 1858. 17. — The St. of 1869, ch. 408, § 5, vesting in railroad commissioners the powers and duties of commissioners appointed by this court under the Gen. Sts., ch. 63, § 117, takes away the jurisdiction of this court, and of commissioners appointed by it, over proceed- ings pending before these commissioners at the time of its passage. New London North- ern R. R. Co. 11. Boston and Albany R. R. Co., 102 Masu., 386. 1869. 18. — award. An award of commission- ers under St. 1845, ch. 191, is not invalidated by declaring that one railroad company, in case of the cars of another not arriving within ten minutes after time at the junction of the two roads, shall provide and "be allowed for an independent train, to be taken as soon as it conveniently can be;" and that frequent unreasonable want of punctuality in the arrival of such cars at the junction shall be compensated for in damages. Lexington and West Cambridge R. R. Co. v. Fitchhurg R. R. Co., 14 Gray (Mass.), 266. 1859. 19. — Where, under a special act of the legislature, it was made the duty of the railroad commissioners to appraise the land of a railroad, in order to form a just connec- tion with another railroad, and the award of said commissioners was uncertain and ambig- uous, the court w^ill give it such a construc- tion as to reserve to the commissioners a full and fair legal exercise of the duties enjoined upon them, and only such, as was properly within their jurisdiction. Fastern R. R. Co. V. Concord R. R. Co., 47 N. H., 108. 1866. 20. — Under the laws of this state, the award of the commissioners is not deemed final and conclusive upon the parties, but is open to future examination and revision. Upon the complaint of an aggrieved party to such connection, the court will appoint a committee to review the same, and will sus- tain the proceedings of said committee when they conform to the law. Tb. 21. — It is no objection to an award of comtnissioners under St. 1845, ch. 191, that it declares that each corporation shall indem- nify the other against all loss happening through its own or its servants' fraud and gross negligence or want of skill. Lexington and West Camibridge R. R. Co. v. Fitchburg R. R. Co., 14 Gray (Mass.), 266. 1859. 22. — It is no objection to an award of commissioners under Sts. 1845, ch. 191, and 1857, ch. 391, establishing the compensation to be paid by each of two railroad companies to the other for drawing passengers and freight over its railroad, that the award gives to either corporation different amounts for carrying passengers and freight from the same station upon its road to the junction, where they are to be carried to different stations upon the other road. Boston and Worcester R. R. Co. v. Western R. R. Co., 14 Gray (Mass.), 253. 1859. 23. — An award of commissioners ap- pointed on petition, under the St. of 1864, ch. 339, § 39, to revise a previous award of com- missioners determining the compensation to be paid by one street railway corporation for entering and using the tracks of a;iother, takes effect only when returned to and ap- proved by the court, until which time the for- 132 CONNECTING LINES. Crossing Railroads — Statute. mer award remains in force. Metropolitan B. B. Oo.' V. Broadway B. M. Co., 99 Mass., 338. 1868. 24. — An award under Sts. 1845, ch. 191, and 1857, ch. 291, of coranaissioners appointed to determine the terms upon which connect- ing railroad companies shall transport each other's passengers and freight, and perform the business of each other, must be returned into court. Boston and Worcester R. B. Oo. v. Western B. B. Co., 14 Gray (Mass), 253. 1859. 25. — It is no objection to an award of commissioners appointed under St. 1845, ch. 191, to determine the rate of compensation to be paid by one company for the drawing of its cars, passengers and merchandise over the road of another, that it assumes the number of passengers each month holding different kinds of tickets to be in proportion to the number of the ordinary independent and con- nected trains ; or that it makes the compensa- tion to» depend upon the number of passen- gers and amount of merchandise, and upon the classes of tickets held by the passengers. Lexington and West Cambridge B. B. Oo. v. Fitcliburg B. B. Co., 14 Gray (Mass.),. 266. 1859. 26. Crossing railroads. The P. &K. and the 8. & K. railroads, being crossing and not con- necting lines, have ro duties imposed on them other than fall upon railroads situated in the vicinity of each other without crossing. State V. Noyes, 47 Me., 189. 1859. 27. Future connections. A passenger rail- road company, to whom, by its act of incor- poration, was granted the right " to connect with any passenger railway now constructed, or hereafter to be constructed, so as to give it a complete route from F. to E.," cannot, under that right, connect with another railway which was not made, nor the right of making granted at the time the claimant's act of in- corporation was passed. Tlie alleged right, at the time of its creation, had nothing to which it could attach, or on which it could rest, and was therefore no right at all. North Branch Passenger B. B. Co. «. City Passenger R. B. Co., 38 Penn. St., 861. 1860. 28. Gauge. An act of assembly authoriz- ing a company to construct a railroad " to connect with any railroad constructed or to be constructed at any point on the northern boundary of Erie or Warren county," granted powers to terminate the road at any point in the boundary named which the company might select, and did not limit the terminus to another railroad. Commonwealth v. Cross- cut B. B. Co., 53 Penn. St., 63. 1866. 29. — By a proviso, it was directed " that the gauge of said road shall not exceed four feet ten inches," etc. £eZ(i, that "said road" referred to the road of the company incorpo- rated, not to the road constructed or to be con- structed, lb. 30. — Where two railway companies have the right to elect as to their forming a con- nection, and such right of election has not been exercised, the legislature may authorize a change of gauge in one of the roads, and relieve the company from any obligation to connect. Androscoggin and Kennebec B. B. Co. r>. Androscoggin B. B. Co., 52 Me., 417. 1864. 31. Rates. The terminal freight stations of two railroads in an inland city were con- nected by a track a mile long, part of which belonged to the first road and tlie rest to the second. The first road gave nutice that its rate for transportation of coal from a seaport to the city would be f 1.75, and from the sea- port to stations on the second road $1.25, per ton. Held, that the lesser rate did not apply to coal which was ordered to be transported from the seaport to the city and delivered there at the terminal freight station of the second road, without being transferred for further transportation or delivery so as to give rise to successive charges or an appor- tionment of the gross freight charges between the two roads. Wellington v. Norwich and Worcester B. B. Co., 107 Mass., 582. 1871. 32. Right of connection. The sale of the B. R. R. Co., to the plaintiff, carried with it the right to connect with the A. and St. L. R. R. Co. Such right is not lost by the power in the charter of plaintiff to build its road across the latter company's road, until the road is actually constructed across and oper- ated. Portland and Oxford Central B. B. Co. V. Grand Trunk B. B. Co., 46 Me., 69. 1858. 33. Statute. The last paragraph of § 9, act of 1847, with reference to the liability of con- necting railroads, docs not apply to inter- mediate roads, but only to the road which first receives the goods. Boot v. Great Western B. B. Co., 45 N. Y., 524, 1871 ; see Magliee v. Camden and Amboy B. B. Co., ib., 514, 1871 ; CONSOLIDATION. 133 Bonds — Contract. also KiTifi V. Macon and Western B. B. Co., 63 Barbour (N. Y.), 160, 1873. 34. — Where a railroad company agrees to carrj- property beyond the terminus of its own road, and receives the goods under such an agreement, it is liable as a common carrier, for the default of the road running in connec- tion with it, on the route to the place of de- livery. The statute of 1847 is a mere legisla^ live authorization of such agreements. lb. 35. — But where the company merely receives goods marked for a place beyond the termination of its own route, in the absence of proof of an undertaking, express or implied, to carry the goods to their final des- tination, the company is bound only for the due delivery of the goods to the next car- rier, lb. 36. — In a proceeding, under ch. 93, acts of 1854, relating to connecting r^-iuoads, peaceable possession is sufficient evidence of title in the petitioners to entitle them to the relief afforded by the statute. Portland arid Oxford Central B. B. Co. v. Grand Trunk B. B. Co., 46 Maine, 69. 1858. 37. — Such suit is not analogous to a suit at common law, and where a company has leased its road to another company, both com- panies may be made respondents. lb. 38. — The statute (ch. 270 of 1847), making a company which owns a railroad connecting witli one or more otlier roads, and receives freight to be transported to a place on the line of a road thus connected, liable as a common carrier for the delivery thereof, applies as well where one of the connecting roads is wholly beyond this state as where all are within it. Burtis v. Buffalo and State Line B. B. Co., 24 N. Y., 269. 1862. 39. — Commissioners appointed under St., 1845, ch, 191, " to determine the amount of compensation to be paid " by one company entering upon the road of another, for draw- ing its cars, passengers and merchandise, may fix the times at which such trains shall be drawn, if not agreed upon by the parties; and may award to the first corporation the right to run a certain number of independent, special trains over the other's road, and fix the times at which they shall be run, provided such times are not within fifteen minutes of the time of any regular passenger -train thereon. Lexington and West Cambridge B. B. Co. «. Fitcliburg B. B. Co., 14 Gray (Mass.), 266. 1859. 40. Way-bill. A way-bill of iron rails, to be transported over several successive lines of transportation by railroad, made out by the^ agents of the first line in this form: "'Way- bill of merchandise transported by the F. B. R. from C. to B. Nov. 27, 1852. (bonsignees), Ogdensburgh E. R. (Description of articles), rails, part lot," is sufficient to show to the in- termediate carriers that the rails are to be car- ried and delivered to the Ogdensburg Rail- road at B., and to exonerate the first carrier from liability, although tlie rails are detained' and used by one of the intermediate railroad ' companies, which at the same time is receiv- ing ether similar rails over the same route for its own use. Northern B. B. Co. v. Fitchburg B. B. Co., 6 Allen (Mass.), 254. 1863. CONSOLIDATION. See Taxation. 1. Bonds. Whore B., having become enti- tled to have certain bonds converted into others at the time of the consolidation of certain rail- way companies, failed to do so, and having afterwards acquiesced and participated in the arrangement by which such conversion sub- sequently became impossible, it was lield, that he was bound by his election, and precluded from impeaching the arrangement which at the time it was made was satisfactory to him. Tagart d. Northern Central B. B. Co., 29 Md., 557. 1868. 2. Contract. The statute of Indiana, passed Feb. 23, 1853, authorizing the consolidation of two railway companies, causes a dissolu- lution of the old companies upon the comple- tion of the consolidation. Hence, where the declaration averred that the defendant had agreed that the stock of a particular railway company should, at a certain time, and place, be worth a certain price ; and the plea averred ■ that the stock of the" railway company had been merged and consolidated with the consent of file party suing, iMc\\ plea was held good, although it did not aver that the consolida- tion was made without the consent of defend- ants. Clearwater v. Meredith et al., 1 Wallace, 25. 1803. 13i CONSOLIDATION. Effect of Cousolidation — Estoppel — Record. 3. Eifect of consolidation. Where a con- solidation of corporations is made, the new company stands instead of the old companies and subject to their liabilities. Miller v. Lancaster, 5 Coldwell (Tenn.), 514, 1868; ColumJms, etc. S. B. Co. v. Powell, 40 Ind., 37, 1873. 4. — Where several railroad companies were, by virtue of the act of union, " merged in and constituted one body corporate," under the name of one of them, and all were con- tinued in existence, it was treated as a con- solidation. Powell V. North Missouri B. B. B. Co., 43 Mo., 63. 1867. 5. — An amalgamation implies such a con- solidation as to reduce the companies to a common interest. But wliere, by the very terms of the statute and the deed, the first cor- poration was extinguished, and the second only continued to exist, the case is not one of mere consolidation or amalgamation. lb. 6. — Although, by the old common law, the dissolution of a corporation extinguished its debts, yet courts of equity, in such case, will consider the property and effects as a trust fund for the payment of creditors and for the shareholders, into whosesoever hands they may come. Jb. 7. — A railroad company formed by the consolidation of two comjDanies succeeds to all the rights of each of the corporations of wiich it is composed, and may compromise and settle a claim against one of them, and sustain an action to enforce the settlement. Paine v. Lake Erie and Louisville B. B. Co., Blind., 383. 1869. 8. — Where two ex moi-e railroad compa- nies are consolidated, as far as creditors of one of the original companies are concerned, the consolidated company is successor of the old company, but in respect to the properties of the other companies, it is a new and inde- pendent company, and such creditors have no claim against it upon the original contracts but only by virtue of its assumptions of the obligations of the old companies. Prouty v. Lake Sliore and Michigan Southern B. B. Co., 53N. Y., 863. 1873. 9. Estoppel. Although a corporation can- not relieve itself from responsibility to those to whom it may be indebted, by becoming merged in a new corporatior, it may by the act of merger, become so situated, as to be estopped from claiming that it remains undis- solved. Carey v. Cincinnati and Chicago B. B. Co., 5 Iowa, 357. 1857. 10. Judgment against consolidated com- panies. The appellant recovered a judgment against the appellee. The appellee consisted of the Madison and Indianapolis, and the Peru and Indianapolis Railroad companies consolidated. After the rendition of the judg- ment, and before its collection, the union of said companies dissolved by judicial decision, and the companies respectively resumed their former separate existence. The appellant then moved the court for execution on his judgment, and served notice of his motion on each of said companies. Held, that said notice was properly served, and the appellant was entitled to execution, and that the pro- ceedings touching the union of said compa- nies, in no way affected their liability on said judgment. Ketcham u. Madison, Indianapo- lis and Peru B. B. Co., 20 Ind., 260. 1863. 11. Mortgage. The consolidation of the stock of a railroad company, created by the laws of Wisconsin, with that of one created by the laws of Illinois, does not constitute the corporations thus consolidating, one corpora- tion of both states, or of either, but the cor- poration of each state continues a corpora- tion of the state of its creation. Bacine and Mississippi B. B. Co. ■». Farmers' Loan and Trust Co., 49 111., 331. 1868. 12. — And where the name of the Illinois corporation is made the same as that of the Wisconsin corporation, and a mortgage is made in the corporate name by the officers of the company, as consolidated, upon the line in Illinois, such mortgage is the sole mort- gage of the Illinois corporation, and is legal and valid. lb. 13. — And in a suit to foreclose such mort- gage, the question as to the validity of such consolidation contract cannot be raised by the mortgagor. lb. , 14. Record. Piling, in the office of the secretary of the commonwealth, the certifi- cate of consolidation of certain railroad com- panies, under the act of March 34, 1865, con- stituted the one company thus created a legal corporation in Pennsylvania. Commonwealth ex rel. o. Atlantic and Great Western B. B Co., 53 Pfinn. St., 9. 1866. 15. — In a quo warranto against such com- CONSOLIDATION. 135 Special Cases — Pleading. pany, nul tiel record is well replied to a plea that the defendant became a corporation by contract of consolidation under said act. lb. 16. — It being proven that the certificate was deposited with the secretary of the com- monwealth in his office, the presumption is that he filed the same of record, and that it remains of record there. lb. 17. — Under a rejoinder that there is such a record, with proof thereof, upon inspection of the record and proof, judgment will be en- tered for the defendant. lb. 18. — A mandamus will issue, if necessary, to the secretary to add the date of filing and any other necessary act in the premises. Tb. 19. Special cases. The act of March 17, 1870, authorizing the consolidation of the United Railway and Canal Companies of New Jersey — construed. Slack v. Delamare, etc., Oanal Go., 7 C. E. Green's Ch. (N. J.), 130, 1871 ; Pennsylvania B. H. Co. v. New York and, Lmg Branch B. B. Oo., 8 ib., 157, 1873. 20. — The rights and duties of a new cor- poration organized through the consolidation of three separate corporations, determined under the law authorizing such consolidation. Shaw v. Norfolk County B. B. Go., 16 Gray (Mass.), 407. 1860. 21. — The New York and Boston R. R. Co., a corporation chartered by the legislature of Connecticut, became consolidated, under the same name, with a railroad corporation of the state of Rhode Island, the charter of the lat- ter corporation specially authorizing such union, and that of the former authorizing the company "to connect and make joint stock or common interest with any other railroad company." The charter of the Connecticut corporation was subject to amendment by the legislature, which afterwards passed a resolu- tion ratifying and confirming the consolida- tion. By the articles of union, the property of the original corporations was transferred to and vested in the new corporation, which was to pay the debts of the old corporations. B. was an original subscriber to the stock of the Connecticut corporation. A creditor of that corporation, whose claim accrued after the consolidation, factorized B. as the debtor of the Connecticut corporation. Upon a scire facias afterwards brought by him against B., it was held, I. That while it was very questionable whether the charter of the Connecticut cor- poration would have authorized such a con- solidation, yet that the transaction was valid- ated by the ratifying act of the legislature, which was to be considered as an amendment of the charter as much as if it had been ex- pressly so declared. II. That the consolidation being thus ef- fected by direct legislation, under the re- served power of amending the charter, it was not necessary that the assent of all the stock- holders should be obtained, nor that there should be any action of the stockholders or directors on the subject. III. That the consolidated company thus established was a legal and valid corpora- tion. IV. That the new corporation, being legally established, and having capacity to receive ah assignment of the property of the original corporations, and such assignment having been made on valuable consideration,'the in- debtedness of B. had been legally transferred to and become vested in the new corporation, and he was therefore no longer indebted to the original corporation. Bishop v. Brainerd, 28 Conn., 289. 1859. 22. Power to consolidate. Corporations can only consolidate with the consent of the legislature, and when a consolidation is thus effected, it amounts to a surrender of the old charters, and the formation of a new corpora- tion out of such portions of the old as enter into the new. State ex rel. v. Bailey, 16 Ind., 46. 1861. 23. — Those stockholders of the old com- pany who do not enter the new, are entitled to withdraw their shares, and may enjoin till they are secured, lb. 24. Pleading. Where two railroad corpo- rations have been consolidated, the consoli- dated company must, for the purpose of answering for the liabilities of the old corpo- rations, be deemed to be merely the same as each of its constituents, and liable for their debts, which may be enforced against the new corporation, in the same way as if no change had been made. Indianapolis, Gincinnati and Lafayette B. B. Go. v.Jmies, 29 Ind., 465. 1868. 25. — In a suit against the consolidated company, where the tort sued for was com- mitted by one of the old corporations, the fact should be so averred, to avoid a variance in 136 •CONSTABLE -CONSTITUTIONAL LAW. Aid to Ocean Steamship Lines — Commerce. the proof, but on appeal, such a variance ■will not be available. lb. 26. Suits pending. Where two railway companies were consolidated under a new name, under authority of the legislature, a party to a suit pending at the time against one of the old companies cannot take a judg- ment against the new company, without taking any steps to bring the new company into court. 8eVma, Rome and Dalton JR. B. Go. V. HarUn, 40 Ga., 706. 1870. 27. — An act of union or consolidation of a defendant corporation with three other cor- porations under a law, which continued all its liabilities, was not such a dissolution of the corporation as abated an action commenced before the consolidation was effected. Balti- more and BuaquelMnna B. B. Co. v. Mutsehnan, 2 Grant's Cases (Penn.), 348. 1856. CONSTABLE. 1. Bond. A person elected to the oflSce of constable may discharge its duties without having executed a bond to the town if it has not been required of him, or if its execution is delayed with the consent of the selectmen. Langdon v. Butland and WaMngton B. B. Co., aOVt., 312. 1857. 2. Service. The service of a writ by a constable, before he has given bail, is valid, if made before any other request for bail has been made of him by the selectmen than the inquiry " when he was going to give bail," and before any refusal on his part to give bail, or any interference on the part of the town with the discharge of his oflcial duties. JBamJc of Middlebury v. Butland and Waihing- Um B. B. Oo., 80 Vt, 159. 1858. CONSTITUTIONAL LAW. See Bonds; CnAKTBn; CAnniAoi! off MunonANDisi! ; EUINZNT DOHAIM ; HlOHWAT ; iNJUniEB TO DOMESTIO Anibaui ; SUBgcBiPTioJis bt Cities ; StiBeaiupTioNS BY Counties; SusscniPTioss bt Inditiddals ; SuBscniPTiosii BY States; Stock; Taxation. 1. Aid to ocean steamship lines. The city of Philadelphia has no power to invest its stocks, money or credit directly or indirectly in aid of a steamship line between that city and foreign ports, without special authority by legislative enactment. Pennsylvania B. B. Oo. V. Philadelphia, 47 Peni'.. St., 189. 1804. 2. — The appropriation of a part of the dividends due the city on railway stock held by it, for the purpose of aiding in the estab- lishment of an ocean steamship company, is in violation of the constitutional amendment of 1857, and void. Ih. 3. Amendments by implication. A statute which purports to add a new section to a prior statute may, by implication, amend other sec- tions of the original act, without violating Art. 4, § 25 of the constitution, requiring the sections amended to be reijnacted and pub- lished at length. Swartwout v. Michigan Air Line B. B. Co., 24 Mich., 389. 1872. 4. Bridges. A railway viaduct, constructed in such a manner, as near as may be, to ren- der it impossible for a man or beast to cross except in railway cars is not a " bridge " within the meaning of the act of 1700 of the New Jersey Legislature. Hence, the act of the Assembly of that state passed in 1860, authorizing the construction of a railway, and, the necessary viaduct does not impair the obli- gation of the contract made by the act of 1790. Bridge Proprietors v. Hoholcen Oo., 1 Wallace, 116. 1863. 5. Camden and Amboy R. R. Co. The several legislative acts giving to the Camden and Amboy R. R. Co. the exclusive franchise to carry passengers and goods between the cities of New York and Philadelphia, in part by means of a railroad across the state, exam- ined, and held to be constitutional and valid, as a contract between the state and the com- pany. Baritan. etc. B. B. Oo. i. Oamden and Amboy B. B. Co., 3 C. E. Green's Ch. (N. J.), 546. 1867. See CnABTEB, 89,40. 6. Commerce. The power to regulate com- merce crossing the states is vested in congress, but the judicial power cannot act until con- gress shall prescribe tlie rule in regard to commerce. United States v. Bock Island B. B. Bridge Oo., 6 McLean, 517. 18C5. 7. Construction. When there is a doubt, a law will not be held unconstitutional. State CONSTITUTIONAL LAW. 137 Contract — Injunction. V. Isforth Louisiana and Texas B. S. Co., 35 La. An., 65. 1873. 8. — A law will not be declared unconstitu- tional unless it is incapable of reconciliation with the constitution. Stockton and Visalia B. B. Co. V. Stockton, 41 Cal., 147. 1871. 9. — Nothing but a clear usurpation of a power prohibited will justify pronouncing an act of the legislature void. Pennsylvania B. B. Co. ■». Biblet, 06 Penn. St., 164. 1870. 10. The eflEect, not the purpose of an act, determines its validity. lb. 11. — When a statute may receive a con- struction which will make it consistent with the constitution, that construction should be adopted in preference to one which would ren- der it invalid. Iowa Homestead Co. o. Webster County, 31 Iowa, 231, 1866; Dubuque and Pacific B. B. Co. v. Same, ib., 235 ; Bigelow b. West Wisconsin B. B. Co., 37 Wis., 478. 1871. 12. — Thus where a charter provides that the company shall pay the value of land taken, this is construed to mean that the com- missioners shall award just compensation. Art. 1, § 13, constitution. Bigelow v. West Wisconsin B. B. Co., 37 Wis., 478. 1871. 13. — Just compensation includes the value of the land taken and the diminution of the value of that from which it is reserved. Ib. 14. — The uniform construction given to a provision of the constitution by the legisla- ture, with the silent acquiescence of the peo- ple, including the legal profession and the judiciary, and the injurious results that would ensue from a contrary interpretation, are proper elements to be considered in forming a legal judgment on the subject. Moers v. Beading, 31 Penn. St., 188. 1853. 15. — An unconstitutional provision em- braced in an act will vitiate the whole act, if it enter so entirely into the scope and design of the law that it would be impossible to maintain it without the obnoxious provision. Beed ». Omnibus B. B. Co., 33 Cal., 313. 1867. 16. Contract. A contract, valid at the time, having been entered into between par. ties, no decision of the courts of the state, subsequently made, can impair its obligation. Chicago «. Sheldon, 9 Wallace, 50. 1869. 17. — A law cannot be held unconstitu- tional as " impairing the obligation of a con- tract," if the law was in force when the con- tract was made. Bailroad Co. v. MeClure, 10 Wallace, 511. 1870. 18. Employes. The number of citizens affected by a law does not control its validity under the constitutional requirement that all laws shall be general in their operation, and that special immunities shall not be granted to any class of citizens. If the law operates upon every person within the relations or cir- cumstances provided for, it is sufficient as to uniformity. A law, therefore, holding rail- way companies liable for "any neglect of agents, or by any mismanagement Of the en- gineer or other employes," is constitutional. McAunich ■». Mississippi and Missouri B. B. Co., 30 Iowa, 338. 1866. 19. Federal courts. Where a state, by law, creates a contract, and enacts a subsequent statute impairing the same, and the state courts have declared said subsequent act valid, the supreme court may, under § 35 of judiciary act, review and reverse such decis- ion. Bridge Proprietors v. Soboken, Co., 1 Wallace, 116. 1863. 20. — The supreme court will follow the decisions of the state courts on questions arising under the constitutions of the several states. Amey «. Allegheny City, 24 Howard, 364. 1860. 21. Forfeiture. An action was brought by the creditors of a company against the commissioners appointed for the liquidation of its affairs, for the purpose of having its property sold for the payment of their claims. The state claimed to hold the property under an act of the legislature declaring the prop- erty forfeited. No notice was given to the state or its officials of the proceeding, but the court declared the act of the legislature un- constitutional, neld, that the j udgment must be reversed and remanded for new trial, and that the state be notified of the action. Perry «. Com'rs Clinton and Port Hudson B. B. Co., 1 1 Robinson (La.), 404. 1845. 22. — The attorney general having appeared for the state, and the question of forfeiture h.aving, by agreement, been presented on a re- hearing, the court held, that a forfeiture could not be declared by an act of the legislature without judicial investigation. Ib., 413. 23. Injunction. Upon a bill in equity, praying for an injunction and relief, an act of the legislature will not be held unconstitu- 188 CONSTITUTIONAL LAW; Mortgages — Stockholder's Liability. tional upon a mere preliminaiy hearing for an injunction. Deering v. York and Oimiber- land B. S. Co., 31 Me., 173. 1850. 24. — An application was made for an in- junction restraining a railway company from building its road on the plaintiff's land, on the ground that the charter is unconstitution- al. Held, that the injunction must be denied until the general merits of the bill have been examined. lb. 25. Mortgages. The act of April 11, 1862, giving the supreme court the powers of a court of chancery in corporation mortgages, does not violate the constitution of the United States, as to a mortgage dated before its pas- sage, in which the remedy provided for the payment of interest is permissive, not exclu- sive. The act of 1862 is merely remedial. McHlrathv. Pittsiburgh and Steubenville B. B. Co.. 55 Penn. St., 189. 1867. 26. Organization of companies— repeal of law. A special act passed prior to the adoption of the constitution of 1851, author- ized commissioners therein named to open books, receive subscriptions to capital stock, and thereupon to organize a corporation under it. No steps were taken by the com- mississioners toward such subscription and "organization until after the constitution took effect, but such subscriptions were made and organization effected, within the period lim- ited by said special act for that purpose. Seld, that the special act was not abrogated or repealed by the second section of article 13, of the constitution of 1851, nor by the act to "create and regulate railroad companies," passed May 1, 1853. State ex rel. «. Boosa, 11 Ohio St., 16. 1860. 27. Pleadings. On appeal to the supreme court, upon a question of the constitutionality of a law, it is not necessary that the party appealing should specify the clause of the constitution upon which he relies. It is suffi- cient if the pleadings make a case coming within its provisions. Bridge Proprietom ». Hobohen Co., 1 "Wallace, 116. 1863. 28. Police regulations. The legislature may require additional precautions of rail- way companies to prevent injuiy to individ- uals. Such requirements are in the nature of police regulations and do not conflict with the constitution. Louisville and Naehoille B. B. Oo. V. BwTce, 6 Coldwell (Tenn.), 45. 1868. 29. Public and private laws. The term " general law " in § 21, article 7, of the state constitution, (which provides that no such law shall be in force until it is published), includes all public laws which are such in their nature, but not such as are by their nature private, but by a provision therein, are declared to be public. Burhop v. Milwaukee, 31 Wis., 257. 1866. 30. — The Milwaukee and Superior K. R. Co. is a private corporation, and the act cre- ating it would seem, therefore, to be a private law. lb. 31. Quorum. The word "house" in sec- tion 2, article 12, of the constitution of 1835, means the members present doing business, there being a quorum, and not a majority of all the members elected; and an act of incor- poration passed by two-thirds of the members present, there being a quorum, is constitu- tional. BouthwortU «. Palmyra and Jackson B. B. Co., 2 Mich., 287. 1851. 32. Special cases. The act of March 7, 1861, authorizing the state treasurer to cancel $3,500,000 of the bonds of the Sunbury and Erie R. R. Co., and directing the satisfaction of the mortgage for |7,000,000, is not in vio- lation of § 4, article 2, of the state constitu- tion, relating to the sinking fund. Oratz v. Pennsyhania B. B. Co., 41 Penn. St., 447. 1861. 33. — The act of February 21, 1867, divid- ing the state into districts, and providing for sessions of the supreme court in each district, is unconstitutional. Mobile and Ohio B. B. Oo. D. Mattan, 41 Miss., 692. 1868. 34. — No court has authority to set aside a public law, on the ground that it was passed by the legislature in fraud of the rights of the people. Sunbury and Erie B. B. Oo. v. Oooper, 33 Penn. St., 278. 1859. 35. — The act of April 21, 1858, author- izing the sale of the state canals, is constitu- tional ; and the judiciary have no power to declare the sale void for inadequacy of price, or for any undue favor to local interests sup- posed to have influenced it. lb. 36. Stockholder's liability. A state law repealing a former statute, which made the stock or stockholders liable to the corpora- tion's debts, is as respects existing creditors, a law impairing the obligation of contracts, and therefore void. Eamtlwrne v. Oalef, 2 Wallace, 10, 1864. CONSTRUCTION OF EAILWAYS. 139 Arbitration : Engineer as Arbiter. 37. Subjects embraced. A law wliicli authorizes tlie construction of a railroad, with a branch or extension, the purchase of land, and the making of coal beds thereon, and the purchase or lease of a ferry franchise, em- braces but one subject. BeUeviUe and Illinois- town R. B. Co. V. Gregory, 15 111., aO. 1853. 38. Title of act. A title to an act is suflB- cient under the constitution, if it expresses the objects of the law. Swartwout i>. Michi- gan Air Line B. B. Go., 34 Mich., 389. 1873. 39. — It is no constitutional objection to a statute that its title is vague or unmeaning as to its purpose, if it be sufficiently distinct as to the matter to which it refers. People v. Lawrence, 36 Barbour (N. Y.), 1T7, 1863; see Litchfield v. MeOomb&r, 43 ib., 388. 1864. 40. — It is the duty of the courts, under the constitution, to determine, whenever the question arises, whether the subject of a statutory provision is properly included in the title of the act of which it is a part. In- diana Central B. B. Co. v. Potts, 1 Ind., 681. 1856. 41. — It is necessary, under § 19 of art. 4 of the constitution, that every statute shall have a title; that the title shall designate a single subject far the act; and that such sub- ject shall be reasonably particular and not too general. Ib. 42. — As a general rule, the titlii of an act should not express the end, object or purpose to be accomplished, but rather the means by which such ends, etc., is to be accomplished. Ib. 43. — Ch. 273, P. and L. Laws of 1870, en- titled " an act to revise and amend the act to incorporate the Sugar River Valley R. E. Co., approved March 39, 1855, and to authorize certain towns therein named to aid in the con- struction of said railroad," is not open to the constitutional objection that the act embraces more than one subject, or that the subject is not expressed in the title. Phillips v. Town of Albany, 38 "Wis., 840. 1871. 44. — The title of the act of the legisla- ture incorporating the Rock Island and Alton R. R. Co., is a sufficient compliance with § 33, art. 3 of the constitution. Supervisors of Schuyler County v. People ex rel., 35 111., 181. 1860. 45. — A law described in the title as a law in " relation to the duties of railway compa- nies," contained a section fixing certain pen- alties. Held, that a provision fixing penalties for the violation of duties was within the province of the act, and not within the con- stitutional prohibition requiring each act to embrace but one subject. McAunich v. Mis- sissippi and Missouri B. B. Co., 20 la., 838. 1866. 46. — A local act cannot, under the consti- tution, embrace but one subject, which must be expressed in the title, and therefore it was held, that the act of March 24, 1865, enabling the city of Rochester to subscribe for stock in the Rochester and Genesee Valley R. R. Co., was void. People ex rel v. Hills, 35 N. Y., 449, 1866 ; reversing Same v. Same, 46 Barbour (N. Y.), 340, 1866 ; see also, Same v. Same, 1 Lan- sing (N. Y.), 203. 1809. 47. — The repeal of a statute on a given subject is properly connected ' with the sub- ject matter of a new statute upon the same subject, and does not violate the constitu- tional requirement that " every act shall em- brace but one subject in the title," although the repeal of the former statute be not men- tioned in the title of the new enactment. Qabbert v. JeffersonvilleB. B. Co , 11 Ind., 365. 1858. 48. Veto. The validity of an enrolled statute, authenticated in the manner pointed out by law, by the certificate of the presiding officers of the two houses of assembly that it passed over the governor's veto by the consti- tutional majority, cannot be impeached by the journals showing a departure from the forms prescribed by the constitution in the reconsideration of the bill. Pacific B. B. Go. ■B. Governor, 33 Mo., 353. 1856. CONSTRUCTION OF EAILWAYS. See Abbitbatioh; Cohtbact; Damagis; Emikekt Domain; Ihjubibs to Domestic Ahimals; Injh- niBS TO Employes; Injcbies to Passenoees. 1. Arbitration: Engineer as arbiter. A contract for the construction of a railway, by the terms of which the company's engineer is to be the arbiter of all matters connected with the work, will, if fairly made, be enforced. Phelan v. Albany and Susquehanna B. B. Co., 1 140 CONSTRUCTION OF EAILWArS. Arbitration: Alteration. Lansing (N. Y.), 258, 1669 ; Kidwell v. Balti- more and Ohio B. B. Co., 11 Grattan (Va.), 676, 1854; Alton, Mt. Garmel and New Albany B. B. Co. V. Northeott, 15 III., 49, 1853 ; Condon v. South Side B. B. Co., 14 Grattan (Va.), 302, 1858; CBeilly v. Kerns, 52 Penn, St., 214, 1866; Howard v. Allegheny Valley B. B. Co., 69 ib., 489, 1871. 2. — If the contractor might have refused to abide by the final estimate of the engineer, yet having submitted his charges for the ■work done to the engineer, and not having objected to his proceeding to make up the flnal^stimate, the contractor is concluded by the action of the engineer. Kidwell v. Balti- more and Ohio B. B. Co., 11 Grattan (Va.), 676. 1854. 3. — The estimates and decisions of an en- gineer of a railway company, are conclusive in disputes with contractors, only where such ' is the jjositive stipulation in the contract. Memphis, Clarksville and Louisville B. B. Co. V. Wilcox, 48 Penn. St., 161. 1864. 4. — The provisions of a contract between a railway company and a contractor, for building a portion of its road, that the " en- gineer shall be the sole judge of the quality and quantity of all work herein specified, and from his decision there shall be no ap- peal," and that in case of alterat'ions, " such allowances and deductions shall be made therefor as the engineer may judge fair and eqitable to both parties," constitute the en- gineer sole umpire ; and, if the company fur- nish a suitable engineer, no recovery can be had, for work done under such contract, without, or beyond his estimate, without the most irrefragible proof of mistake in fact or corruption on the part of the engineer, or positive fraud In the opposite party in pro- curing the under estimate. Vanderwerker v. Vermont Central B. B. Co., 27 Vt,, 130, 1854; Herrich d. Same, ib., 673. 5. — Such stipulation does not require the estimates to be made or verified by the chief engineer, but has reference as well to the as- sistant engineer. Ib. 6. — A contract providing for monthly es- timates imports an accurate measurement and final estimate for each month, and not such a one as is merely approximate or conjec- tural. Ib. 7. — 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 fraud or mistake. Ib. 8. — The defendant contracted with B. to build its road, and B. sublet a portion of the work to H. Both contracts contained a pro- vision as to the conclusiveness of the en- gineer's estimates: held, that there was no privity of contract between the defendant and H., and that he could not recover against the defendant for work not estimated by the engineer, by reason only of a mistake which defendant had not connived at; and that the indebtedness of the company to B. did not constitute a fund against which the plaintiff had a claim. Ib. 9. — Had there been any connivance on the part of the company or its agents, in bringing about the under estimates, a differ- ent rule would prevail. Ib. 10. — In a contract for the construction of a railroad, it was provided, that the decision of a chief engineer should be final and con- clusive, in any dispute that might arise be- tween the parties to the agreement, relative to or touching the same: ?ield, that the individ- ual who filled the oiBce of chief engineer when the adjudication was called for, was the proper person to decide disputes between the parties; and that one who had held the office at the time the contract was made, but who had resigned, was not empowered to ad- judicate between them. North Lebanon B. B. Co. ■». McOrann, 33 Penn. St., 580. 1859. 11. — If the company failed to appoint a chief engineer, the parties would be at liberty to resort to the courts of law. Ib. 12. — Whether a stipulation in the original agreement to refer all matters of controversy that may arise, connected with the contract, to an engineer of one of the parties, would be binding, is doubted. Smith v. Boston, Concord and Montreal B. B. Co , 30 N. H., 458. 1858. 13. — alterations. The contract provided that alterations directed by the engineei should "be made as directed." Such alter.a- tions are within the jurisdiction of the engi neer. O'Beilly v. Kerns, 52 Penn. St., 214. 1866. 14. — Alterations directed did not abrogate the contract or substitute a new one; they were within the original contract, Ib. CONSTEUCTION OF RAILWAYS. lil Arbitration — Contract. 15. — But work done after the job had been taken off the contractor's hands by the company, was not done under the contract, and payment for it might be recovered in as- sumpsit, lb. 16. — authority cannot be deltegated. "Where parties agree that a third person shall measure certain work, and that his measure- ment shall be conclusive, such person cannot delegate his authority to some one else, and adopt the measurement as his own ; the par- ties will not be bound by such measurement. Wilson V York and Ma/ryland R. S. Go., 11 Gill and Johnson (Md.), 58. 1839. 17. — certificate of engineer. The plaint- iflF agreed to perform certain work and labor in moving the track of a railroad " under the direction " and " to the satisfaction " of L., the city surveyor, whose certificate that the work had been so performed, was to entitle the plaintifl" to payment. The plaintiff having completed the greater part of the work, was stopped at a certain point by L. Held, that L. had power, under the contract, to give tliat direction, and that the plaintiff bad a sufScient excuse for nonperformance of the remainder of the labor. And that, therefore, it was unnecessary to procure the certificate of L., that the contract had been entirely per- formed, as a prerequisite to his recovery. Devlin v. Second Avenue H. S. Co., 4A Barbour (N. Y.), 81. 1865. 18— engineer must be suitable. Where it is agreed that the work shall be done under the supervision of the other party's engineer, there is an implied agreement that a suitable engineer shall be employed. Smith b. Boston, Concord and Montreal B. B. Co., 36 N. H., 458. 1858. 19. — The party who neglects to furnish such engineer is liable to an action, and can take no advantage of his failure, lb. 20. — estimates. A contractor for the construction of a bridge on a railroad, hav- ing received the monthly estimates based upon a particular construction of his contract without objection, will be held to have acqui- esced in that construction, and to be bound by it. Kidwell v. Baltimore and Ohio B. B. Co., 11 Grattan (Va.), 676. 1854. 21. — fraud. But the parties are not bound by the fraudulent estimates of such engi- neer. Baltimore and Ohio B. B. Co. v. Polly, 14 ib., 447, 1858 ; Same ii. Laffertys, ib., 478, 1858. 22. — measurement; notice. Under a contract for the construction of a railroad, by which all measurements are to be made and the amount of labor determined by the company's engineer, whose decision is final, the contractor is entitled to notice and the opportunity to be present; he is not con- cluded by measurements made ex parte. McMahon v. New York and Erie B. B. Co., 20 N. Y., 463. 1859. 23. — A final estimate made by the en- gineer being a condition precedent tp pay- ment, and his employer having refused to have a measurement mads, or those already made received by him, the contractor is not bound to call upon the engineer to make such estimate, but may recover upon other evi- ■ dence of the amount of work. Ib. 24. — The defendant having neglected tc5 cause its engineer to make a final measure- ment and estimate of the work, when re- quested by the contractor, interest is allowa- ble from the time of such default, though the amount was not liquidated nor capable of being ascertained by calculation merely, or by reference to ordinary market rates. Ib. 25. — mistake. When, by the terms of the contract between a railroad company and a contractor, the estimates of the engineer aro to be binding upon the parties, a court of chancery has power to correct the mistakes of the engineer. Mansjield and Sandusky B. B. Co. ■». Veederd; Co., 17 Ohio, 385. 1848. 26. — In construing the contract, the court will use the terms employed by the parties according to their popular signification, if to apply them according to technical or sci- entific rules, would defeat the manifest inten- tion of the parties. Ib. 27. — stocliholder. A contract for the construction of a railway providing that the engineer of the railway company, should be arbiter of all disputes under the contract, will be disregarded in equity, when it appears that the engineer is a stockholder in the com- pany, which fact was unknown to the plaintifl when the contract was made, and the award of such engineer will be set aside. Milnor v. Georgia B. B. Co., 4 Ga., 385. 1848. 28. — Contract; abandonment. Where a contract has been partly performed and has 142 CONSTRtrCTION OF RAIL-WATS. Contract. been abandoned by mutual consent, the plaintiff may recover for what has been already done under tlio special contract. Baltimore and Ohio B. B. Co. v. Lafferty, 3 W. Va.,104. 1807. 29. — books of contractor. In an action for services in building a I'ailroad, entries in the contractor's books of prices paid to his ■workmen, are not evidence against him of tlie prices he was to receive. If the question was as to the reasonable value of his services, they are admissible, because tending to show the worth of one item of his claim, that is, of the muscular power employed. Ourrier «. Boa- ton and Maine B. B. Co., 31 K. H., 309. 18.55. 30. — construction. Where, during the progress of the work a new agreement was made, releasing tlie contractor from finishing his contract, and stipulating for what matters compensation should be made, but not pro- viding for any damages for the suspension of work during the existence of the original con- tract, it was not error, after affirming the point of the defendants, that no such damages could be claimed, to add, that the question was not material because of the supplemental agreement, which provided for no such com- pensation. Memphis, OlarJcsviUe and Louis- mile B. B. Co. V.Wilcox, 48 Penn. St., 161. 1864. 31. — Though the plaintiff had been dis- missed, and tlie work taken off his hands, the company was not released from paying for the work already done, as stipulated in the supplemental agreement, what it was fairly worth ; nor could this claim be restricted to what was coming to him under the final esti- mates of tlie engineer; nor after the agree- ment to pay, could the company set off the expense and loss incurred in completing the unfinished work. lb. 32. — Where, under a contract to build a railway at a certain price per mile, nothing is said about sidetracks and turnouts, and the contractor has received montlily pay- ments on monthly estimates, and has made no claim to payment for such sidetracks, etc., it would seem tliat such fact would be a practi- cal construction of the contract against the right of the contractors to claim pay for such work. Barker' v. Troy and Butland B. B. Oo., ■il Vt., 766. 1855. 33. — Where a contract is silent as to the time of payment, and the parties have put a construction upon it by their acts, such con- struction is binding upon the parties. Bood/y V. Butland and Burlington B. B. Co., 3 Blatch- ford (U. 8. C. C), 25. 1853. 34. — Where a contract for building an embankment was silent as to where the con- tractor was to get the earth, and the parties themselves gave a construction of it, they will be bound by it. Chicago and Great Eastern B. B. Co. V. VosTmrgJi, 45 Ill.,811. 1867. 35. — The plaintiff having contracted to procure the right of wny, and build defend- ant's road at an agreed price per mile, and not having paid the land owner's damages in all cases; it was 7ieW, that the defendant, being liable directly to the land owners, might re- tain the amount of that liability from the sum which by the contract would be due to the plaintiff. Ba/rker v. Troy and Butland B. B. Co., 37 Vt., 766. 1855. 36. — Where it was stipulated, in a con- tract for building a railroad, that if the aggre- gate amount of all material encountered in constructing it was increased by the definite location over the preliminary estimate, an allowance should be made, it was Iield, that an averment that the amount of material en- countered was increased, etc., was in effect the same, as the amount of all material, and that the stipulation did not apply to an in- crease of the aggregate of each kind of mate- rial but the aggregate of all kinds must be increased. Smith v. Boston, Concord and Mon- treal B. B. Co.. 36 N. H., 458. 18o8. 37. — Wliere the contract stipulates that one party shall do the work and tlie other shall find the materials, there is an implied contract that the materials shall be seasona- bly furnislied. Smith v. Boston, Concord and Montreal B. B. Co., 36 N. H., 458. 1858. 38. — defects. Plaintiffs contracted to build certain abutments, and tlie contract specified that a certain kind of stone might be used. The stone agreed upon was used, and after the completion of the work, a defect was discovered in it, but it did not appear whether the defect was owing to the quality of the stone or to the badness of tlie workman- ship. Held, that the plaintiffs were entitled to recover the contract price, unless it was shown that the defect was in the workman- ship. Vanderwerker v. Vermont Central 3. B. Co., 37 Vt, 130. 1854. CONSTRUCTION OP RAILWAYS. 143 Contractors. 39. — entire contract. If a contractor agrees with a railroad company to grade a section of its road, and do all work neces- sary to make the road ready for the crossties and iron, and to receive a fixed sum for the work, to he paid from time to time, aS the work progresses, at the prices fixed and esti- mates of work done, made by an engineer, the contract is entire, and the provision for payments from time to time as the work pro- gresses does not make it severable. Oox, v. Western Pacific B. R. Oo., 44 Cal., 18. 1873. 40. — The by-laws of the defendant pro- vided that interest should be allowed on all installments for work until the road was com- pleted and in running order. Meld, that the de- fendant could not recover of the plaintifis, who had contracted to construct and complete the road by a specified time, the interest which accrued upon the installments between that time and the time when the road was actually completed. Barker «. Troy and Rutland R. R. Co., 27 Vt., 766. 1855. 41. — modification. A writteh contract under seal may be so changed and modified by the parties as to reduce the whole to parol. McGrtmn v. NoHh Lebanon R. R. Co., 29 Penn. St., 83. 1857. 42. — A written contract fcr the grading and masonry of a railroad between designated termini, is not so altered and modified by a change of route between such termini, as to enable the contractors to recover for the work done upon a quantum meruit, irrespective of the prices designated in the agreement. lb. 4ii. — "Where payments were made in such a case upon monthly estimates, upon the prices specified in the contract, and were receipted for as under the contract, the parties were held to have waived the consequences of previous change. lb. 44. — Where there have been considerable changes and modifications, without any in- tention to abandon or rescind the written agreement, assumpsit may be siistained for the work performed, making the sealed agreement the basis of compensation. Jb. 45. — A. entered into a contract with de- fendants to do certain work in excavating for a railway, and, after commencing work, unex- pectedly encountered very difficult material, and gave notice to defendants that he could not do the work under the contract, and quit work, and afterwards, defendants agreed to pay him a reasonable compensation for his labor, it was ?ield, that defendants were liable under the new contract. JSart v. Lawman, 39 Barbour (N. Y.), 410. 1859. 46. — profile. Where a profile of a work was referred to by parties when making a contract for grading a railroad, a profile proved by a witness to be made from the same data and measurements, cannot be ad- mitted unless the absence of the original is first accounted for. Currier v. Boston and Maine R. R. Co., 31 N. H., 209. 1855. 47. — release. Where the contract pro- vides that upon receiving the. full amount of the final estimate, made out agreeably to the terms of the contract, the contractor shall give a release under seal from all claims or demands growing out of such contract, the giving of such a release is a condition prece- dent to a recovery if the final estimate is not fraudulent. Baltimore and Ohio R. R. Co. v. Laffertys, 14 Grattan (Va.), 478, 1858; Scmiev. Polly, ib., 447. 48. Contractors. The Reading R. R. Co. has the right to temporarily use a reasonable amount of land along the line of its road for shops, dwellings, stables, etc., while engaged in building the road, and the contractors have the same right. Lauderlirun v. Duffy, 3 Penn. St., 398. 1815. 49. — The custom of railroad companies to allow their contractors the fi-ee use of theil own roads, cannot be extended so as to bind a company to pay the expenses of its contrac- tors on a road belonging to a distant corpora- tion. Colcock ®. Louisville, Cincinnati, etc., R. R. Co., 1 Strobhart's Law (So. Car.), 339. 1841. 50. — delays. B. C. & Co., in September, 1850, made a written contract with a railroad company to construct its road according to certain specifications, the work to be com- pleted on or before October 1, 1851, and on failure to complete it within the time limited, to pay all damages sustained by the company. The road was not completed within the time, and the company sustained damage thereby to the amount of $3,800. In June, 1852, the company made a supplementary contract with B. C. & Co., by which it agreed to accept the road, and to release them from certain unfin- ished parts of the work, and B. 0. & Co. agreed that a certain sum, estimated as the 144 CONSTRUCTION OP RAILWAYS. Embankments — Extra Work. expense of the unflnishecl work, should he deducted from the amount which they were to receive under the original contract. Held, that this agreement was not, taken by itself, a waiver of the claim of the company for dam- ages ^or the failure to complete the road within the time 'limited by the contract. Cannon v. Wildman, 28 Conn., 473. 1859. 51. — The original contract provided that if B. C. & Co. did not, in the opinion of the engineer of the company, from time to time, fully comply with and perform all the stipu- lations of the contract, the engineer might dismiss them from the work, in which case the contract should determine, and all that was due them for work done should be for- feited, or the engineer might make such de- ductions from the monthly payments as he should deem reasonable for such breaches of the agreement. Held, that the remedy thus furnished had reference to defaults occurring from time to time, rather than to a final de- fault to complete the work in time, and that the company, by neglecting to avail itself of that remedy had not waived its claim for damages for failure to complete the road within the time limited. lb. 52. Embankments. A conveyance of land to a railroad company, " for the uses and pur- poses of said railroad, and for no other or different purpose," described two parcels; the description of the second commencing, " together with a piece for materials, of five hundred and thirty feet in length," etc. A map was annexed to the deed and referred to in the description, on which such second par- cel was laid down and designated "for mate- rials." Held, that these words did not exempt the company from liability to the grantor for damages caused by his negligently digging away a part of such secondly described lot, so as to cause his adjoining land to fall in, and seriously to impair its value. Ludlow ■». Hudson Bvoer B. S. Co., 6 Lansing (N. Y.), 128. 1872. 53. — The cause of action for damage did not accrue until the caving away of the land took place, from which the injuries resulted. lb. 54. Excavations. A railway company should make its excavations, using all reason- able and practical care and skill, so as to save adjoining proprietors from injury. Bau v. Minnesota Valley B. B. Co., 13 Minn., 443. 1868. 55. Extra work. B. contracted with de- fendant to build its road, and plaintiffs sub. contracted, in writing, with B. to build par ticular portions of it. By both contracts, the work was to be done to the satisfaction and acceptance of the company's engineer, and no claim was to be allowed for extra work, unless it was performed under written con- tracts, or orders signed by the engineer. Plaintiffs, in the execution of their contract with B., made an excavation for a bridge agj'eeably to the directions of the engineer, and had left it as finished; the engineer found it necessaiy to have the excavation en- larged and ordered it done. Plaintiffs made , the enlargement, but no contract was made between them and defendant with reference to it. Held, that there was no ground for im- plying or presuming a contract, and that plaintiffs could not recover of defendant therefor. Yanderwerker v. Vermont Central B. B. Co., 27 Vt., 125. 1854. 56. — There could be no claim for extra work, as the engineer had not ordered it in writing. lb; Same v. Same, ib., 130; Barker V. Troy and Butland B. B. Co., ib., 766. 57. — The fact that the company had paid similar claims to others, would not affect its liability, unless such fact was known to plaintiffs, and influenced them to perform the work. Vanderwerker v. Vermont Central B. R. Co., ib., 125, 130. 58. — The rule is not varied by the fact that, previous to doing the extra work, the contractors were assured by the local or as- sistant engineer, who communicated the or- der from his chief, that they should receive extra compensation therefor, — it appearing that the assistant had no authority to make the promise for the company. II. 59. — Certain detailed estimates of the cost of the work were annexed to a contract for the construction of a railway. Shortly before the contract was made, many persons, and among them B. C. & Co., were assembled to make proposals to the railroad company for the work. These estimates were exhibited to them by the engineer of the company, who stated that they were made according to his best judgment, but were only approximate estimates; that they were given them that CONSTRUCTION OF RAILWAYS. 145 Forfeiture — Liability. they might have the benefit of hi:? judgment, and that tliey could go over the ground and examine for themselves. B. C. & Co. went over the ground, and were experienced and and competent to judge for themselves, but did not make a thorough examination. The contract was made fairly, without fraud or mistake, and was an entire contract to do the whole work for the sum of $390,000. A por- tion of the work proved to be much more ex- pensive than was estimated, from a large excess of rock excavation above the quantity estimated. Meld, that B. C. & Co. understand- ingly took the risk of the work, and were not entitled to any allowance beyond the contract price. Gannon «. Wilclman, 28 Conn., 472. 1859. 60. — By the contract, certain depot build- ings were to be erected by the contractors " after such plans and of such dimensions as might be adopted by the engineer." The en- gineer required certain of them to be built of somewhat larger dimensions than he had stated at the time of the signing of the con- tract that he should require, and the ex- pense of their erection was thereby increased above the sum named in the estimates. Held, that the contractors were not entitled to an allowance beyond the contract price for the increased expense. lb. 61. — Where a contract for the excavation and preparation of a road bed provided that the contractor should be paid a certain price per yard for every cubic yard of earth, and extra compensation for rock excavations, it was held that he was not entitled to extra compensation for excavating hardpan. Where extra compensation is claimed in a quantum meruit, where there is a written contract, the party claiming the extra compensation must show that the work was more than was re- quired under the contract. Nesbitt «. Louis- ville, Cincinnati and Charleston R. JR. Co., 2 Spears (So. Car.), 697. 1844. 62. — A promise by the president of the company, conceding the company to be bound by it, to compensate a contractor for excavating hardpan, is not binding as a legal contract, where the contractor is bound by his written contract to excavate that substance. lb. 63. — Where a builder undertakes to con- struct a building according to a plan, which 10 is afterward changed by agreement of the par- ties, so as to require extra work and materials, and no agreement was made in reference to the price of extra work ; it would be inferred that the price agreed in the original contract would govern in determining the compensa- tion. Chicago and Great Eastern R R. Co. v. Vosburgh, 45 111., 311. , 1867. 64. Forfeiture. An agreement entered into between, the contractor for the construc- tion of a railroad and his subcontractor pro- vided, that, in case of tlie violation of the terms of the contract by the latter, the con- tractor might declare the contract forfeited, or should have the right to such other measures as the engineer of the road might deem nec- essary to insure the completion of the work by the time and in the manner stipulated, and to deduct from the current and final estimates such sum or sums as may be necessary to de- fray the expense of such measure. Held, that an express declaration of forfeiture was not necessary to entitle the contractor to take charge of the work in accordance with the di- rection of the engineer before the completion of the work. Maloney v. Malcolm, 31 Mo., 45. 1860. 65. EBghways. Where, through the neglect of a railroad corporation in removing barri- ers placed along the highway for the protec- tion of travelers, and failing to replace them at night, a traveler was injured, it was held, that the town was liable for double dam- ages to the party injured, under the statute of 1786. But the town could only recover single damages against tlie railway company. Lowell, Inhabitants of v. Boston and Lowell R. R. Co., 23 Pickering (Mass.), 24. 1839. 66. Laborers — injuries to. A railroad company is not liable for injuries sus- tained by laborers in the employ of a con- tractor who was working for said company, though it may have furnished implements and materials for the performance of such work. Central R. R. Co. v. Grant, 46 Ga., 417. 1872. 67. — liability of railway companies. The appellant sued the appellee for certain work done in the construction of its road ; but it was proved on the trial that the work was not done for the company, but for other parties. There was no evidence of any work done for the company. Judgment against the 146 CONSTRUCTION OF RAILWATa. Payments in Stock. plaintiff. Held, on appeal, that no ground for reversal appears. Floyd v. Indianapolis and Cincinnati B. B. Oo., 8 Ind., 409. 1S56. 68. — statutes. Justices ot the peace have jurisdiction of actions brought by laborers against railway corporations under § 12 of the railroad act. OrannaMn v. Hannibal and St. Joseph B. B. Co., 30 Mo., 646. 1800. 69. — Although a contractor under a rail- road company may sublet to another, and bind such subcontractor not to give out his contract to another, yet if such subcontractor should violate this agreement and give out the contract to another, a laborer under the lat- ter could maintain an action under § 13 of the general railroad act against the railroad company. lb. 70. — A statute providing that railway companies shall be liable for the wages of day laborers employed by contractors in con- structing their roads is not unconstitutional and impairing the obligation of a contract. COmp. St., ch. 26. Branin v. Connecticut and Pastwmpsia Bivers B. B. Co., 31 Vt., 214. 1858. 71. — The Hudson River R. R. Co., under its charter, and to the extent therein specified, is directly liable for all sums due to " labor- ers " upon its work, in all cases of nonpay- ment by the contractors. Warner v. Hudson Biver B. B. Co., 5 floward's Pr. (N. Y.), 454, 1851 ; but see contra, Millered v. Lake Ontario, Auburn and New York B. B. Co., 9 Howard's Pr. (N. Y.), 238, 1854. 72. — The term "laborers" includes not only those who personally perform labor, but all who do so by their servants and agents ; also all superintendents over others engaged in actual labor upon the road. lb. 73. — A railroad company is chargeable, under § 12 of the general railroad act (Laws of 1850, ch. 140), with services rendered to its contractors, when performed on a quantum meruit, as well as for a stipulated price. Chapman V. Black Biver B. B. Co., 4: Lansing (N.Y.), 96. 1871. 74. — The words, " laborer " and " labor," as used in the general railroad act of 1850, which gives a laborer a claim against the company for the indebtedness of a contractor in certain cases, and to a limited amount, are used in their ordinary and usual sense. Balch V. New York and Oswego B. B. Co., 46 N. Y., 521. 1871. 75. — A laborer employing his own teams and an assistant, under an agreement therefor with the contractors, cannot recover against the company for the services of the teams or the assistant, under the statute of 1850. Ateherson v. Troy and Boston B. B. Co., 6 Abbott's Pr., N. 8. (N. Y.), 829, 1856; Bame v. Same, 1 Abbott's Ct. of Ap. Dec. (N. Y.), 18, 1856. 76. — To charge a railroad company with liability for the indebtedness of a contractor to his laborers, under § 13 of the general rail- road act (Laws 1850, ch. 140), the indebtedness must arise from services personally performed by the laborers. Cummings v. New York and Oswego Midland B. B. Co., 1 Lansing (N. Y.), 68. 1869. 77. — A notice to a railroad, that aeon- tractor on its road is in arrears to his hands, which substantially complies with the statute (W. B., 302, g 10), so as to prevent any misap- prehension, is sufficient. Cosgrove o. Teho and Neosho B. B. Co., 54 Mo.. 495. 1874. 78. — The account of a laborer for work on a railroad under a contractor, signed by the contractor, is not evidence against the railroad company as its admission, unless the authority to make such admission is estab- lished, lb. 79. Payments in stock. When a contract is entered into for work at a certain price, with a stipulation that the same is to be paid for in specific articles at a certain rate or price, the debtor has an election to deliver the articles, or pay the specified amount of money, if such right of election is expressed or fairly to be implied. Cleveland and Pitts- burgh B.B. Co.v. Kelley, 5 Ohio St., 180. 1855. 80. — If such election is not expressed, and the subject matter of the contract or res gesta indicate that no such right of election was contemplated by the parties, then the general rules of law relating to executory sales are applicable, and the contract is a single and imperative promise to deliver the specific articles. lb. 81. — A railroad contractor agreed with the company to construct and equip its entire road for $1,000,000, of which $350,000 was to be paid in cash and cash assets, and the bal- ance in the bonds and stock of the company, the price named being more than twice the cash value of the work. The contract pro- CONBTKUCTION OF RAILWAYS. 147 Route — Subcontractors. vided that payments should he made on monthly estimates, and in such of the said descriptions of pajment as the contractor deemed would best subserve his purpose in doing the work; but the contract fixed no time for the completion of the work. It also provided that both the parties should aid in converting said assets, bonds and stock into means for carrying on the work, and that the contractor need not carry it on faster than sucA means would serve. The contractor per- formed work under the contract to the nomi- nal amount of $117,000, which, at his request, was mostly paid him in the cash assets, and then, the charter of the company having ex- pired by its own limitation, the work was suspended by mutual consent, and the road abandoned, its bonds and stock thus becoming worthless. Held, that the contractor is bound to account to the company for all actual profits realized from the work. Four Mile Valley R. JR. Co. V. Bailey, 18 Ohio St., 208. 1868. 82. — The plaintiffs, for constructing a rail- way, were to receive in payment a certain portion of defendant's stock. Upon finishing the work, they demanded their pay, but de- fendant disputed the performance of the con- tract, and refused to deliver the stock. At that time, the market price of the stock was 33 per cent, of its par value. It being deter- mined that plaintiffs were entitled to recover a sum less than the whole stipulated price, not upon a strict and literal performance of their contract, but on equitable grounds, it was held, that, upon similar grounds, the amount of their recovery upon that portion of their contract payable in stock, should be limited to the market value of the stock at, the time of their demand. Barker v. Troy and Bulland B. B. Co., 27 Vt., 766. 1855. 83. — A provision that the contractor should subscribe for and take an amount of the capital stock of the railroad corporation equal to one-fourth of the amount received for work under the contract, construed as an independent covenant, and as not requiring the contractor to receive payment in stock. McMahion v. New York and Erie B. B. Co., 20 N. Y., 463. 1859. 84. — Where a contract provided that a railway contractor should be paid for his work in monthly installments, twenty-fivo per cent, being payable in stock, and he was, by the wrongful act of the railway comj)any, prevented from completing his work, held, that the contract for stock was executory, and that the contractor was entitled to its value, he having no title to the stock. Myers v. Neio York and Cumberland B. B. Co., 3 Curtis (U S. C. C), 23. 1854. 85. — extra work. Where it was stipu- lated that payment should be made for build- ing a railroad, partly in money and partly in stock, the payment for extra work may be re- covered in money. Smith v. Boston, Concord and Montreal B. B. Go., 36 JM. H., 458. 1858. 86. Route. A railroad corporation is not liable t(j an action by a person through whose land it has located its road within the limits of its charter, because it has elsewhere devi- ated from those limits. Newton i>. Agricultu- ral Branch B. B. Co., 15 Gray (Mass.), 37. 1860. 87. Subcontractors. Where a person con- tracts with a railroad company to grade and construct a division of the road, the company to retain a certain percentage as a security for the completion of the entire work, and the contractor sublets a portion of the.divisi(>n to another, and it is agreed between them that the contractor shall retain a certain percent- age as a security for the completion of the subcontract, and the subcontractor completes his portion, and it is received, he may recover the sum agreed upon, including the percent- age, of the contractor, although the latter may have failed to entitle himself to his percent- , age as against the railroad company. Blair V. Ooriy, 29 Mo., 480. 1860. 88. — A subconti-actor cannot pass by his immediate einployer, and sue the principal or proprietor of the work. Lake .Erie, Wabash and 8t. Louis B. B. Co. v. Edder, 13 Ind., 67. 1859. 89. — Where a complaint charged that a railroad company promised to pay for goods which should be furnished to a subcontractor, an answer that the railroad company was not indebted to the subcontractor was held no defense on demurrer. Chicago, Cincinnati and Louisville B. B. Co. v. West, 37 Ind., 311. 1871. 90. — A railroad company is not liable to one employed by a subcontractor for work done in the construction of its road. Indian- apolis, Bloomington and Western B. B. Co. ». 148 CONSTRUCTION OF STATUTES — CONTINUANCE. Horses— Absence of Counsel. O'Beily, 38 Ind., 140. 1871 ; Maries v. Indian- apolis, Bloomington and Western M. R. Co., ib., 440. 91. — negligence. The N. and N. Y. R. R. Co., contracted withF. & Co., for grading its railway. With the consent of the company, F. & Co. sublet the contract for excavating rock to 8. Before the contract was made with F. & Co., it was understood that the blast- ing was to be done with nitroglycerine ; and a magazine for storing the nitroglycerine was erected on the land of the company under the direction of its engineer. 8.,' without the knowledge or consent of the railway com- panj', stored also the nitroglycerine of a third party in the magazine, where it was kept for sale. One of S.'s employes in taking out son^e of such nitroglycerine, belonging to said third person, negligently caused it to ex- plode, whereby one C. was killed. Held, that the railway company was not liable for the injury, it not being at fault. Guff v. Nma/rk and New Torle R. R. Co., 6 Vroom. (N. J.), 17 1870 ; Same v. Same, ib., 574. 1871. 92. — The defendant contracted with P. & E. to construct certain sections of its railway; and they subcontracted with C. to erect cer- tain abutments thereon. A servant of C, in drawing stone for such abutments, left one in the highway, by reason of which one P. was injured, and recovered of the plaintiff for the damage sustained by him. In an action by the town to recover of the defendant, the dam- ages to which the plaintiff was subjected, it was held, that the defendant had no control over the servant of C, and that no privity ex- isted between them, and that therefore the defendant was not liable. Pawlet, Town of v. Rutland and Washington R. R. (Jo., 38 Vt., 297. 1856. 93. — A railroad corporation made a con- tract with certain persons, that the latter should build a certain portion of the railroad. While the contractors were at work upon the road, in pursuance of the contract, some rocks were blasted and a stone was thrown upon the plaintiff, causing him serious injury. Held, that the plaintiff might maintain an action against the corporation to recover dam- ages for the injury he had sustained. Stone n. Cheshire R. R. Co., 19 N. H., 427. 1849. 94. — statute. The liability imposed upon railway companies In favor of laborers by § 12 of the general railroad act (laws of 1850, p 315), is not limited to such as are employed by parties holding contracts immediately with the corporation ; but it extends also to workmen hired by parties to whom the origi- nal contractor had sublet a portion of the work. Kent v. N. T. Central R. R. Co., 12 N.Y.,628. 185.5. 95. — Contractors for constructing a rail- road, are the servants of the company, and the tortious acts of the contractors, while about the business of the company, are prop- erly chargeable to it. Chicago, St. Paul and Fond du Lao R. R. Co. «. McCarthy, 20 111., 385. 1858. CONSTRUCTION OF STATUTES. See SlATDTEB. CONTAGIOUS DISEASES. 1, Horses. The ownei' of diseased horses; knowing their disorder to be contagious, is bound to exercise all the care that a prudent man would exercise, or a rightful regard for the interests of others requires, such as placing his diseased horses so remote from a partition between his stable and that of a neighbor, as to render contact with his neighbor's horses impossible. Mills v. New York and Ha/rlem R. B. Co., 3 Robertson (N. Y.j, 836. 1864. CONTEMPT. Bee iKjuNOTioK. CONTINUANCE. 1. Absence of connscl. The absence of counsel in attendance upon the district court, is not BufHoient ground for continuance in the supreme court. Richards n. Des Moines Valley R. R. Co., 18 la., 259. 1865. CONTRACTS. 149 Abandonmeut — Arbiters. 2. Ameadments. In a suit to recover the amount of an engineer's estimates for work done for a railroad company, the declaration left the amounts blank, and the court allowed the plaintiflf to supply the blanks by inserting the amounts. The defendant having applied for a continuance, without showing that he w&s prejudiced by the amendment, held, that the continuance was properly refused. Hush- mile and Shelbyville R. S. Oo. v. McMamts, 4 Ind.,375. 1853. 3. Suits long pending. The fact that a cause has been pending for four years, is no reason why a continuance should not be granted upon a proper showing. Hooper i). Memphis Branch B. H. Oo., 19 Ga., 85. 1855. 4. Surprise. An application for a contin- uance by the defendant upon the ground that he was taken by surprise by findinR certain depositions on file therein, was properly de- nied after the plaintiflf had withdrawn such depositions. Gongar t). Galena and Chicago Union H. R. Co., 17 Wis., 477. 1863. CONTRACTS. See BAesAGs; Cabbiasb of Lite Stock; Carbiaob OF Merchandise; Discrimination; Equity; In- JOKT TO DOU£STIC ANIMALS ; iNJUBT TO PASSEN- GERS. 1. Abandonment. A. contracted to construct and deliver to B. sixteen locomotives, to be paid for as delivered ; the fifth locomotive de- livered was not paid for: held, that A. could not, for this reason, abandon the contract and recover for loss of profits on the eleven to be delivered, unless the payment on delivery was' expressly made a condition precedent to the completion of the contract. Palm is. Ohio and Mississippi R. R. Co., 18 111., 217. 1856. 2. Acceptance. A railroad company or- dered from a firm of iron dealers a certain number of railway "frogs" of a specified quality. The firm sent a less number than that ordered, which was received without ob- jection by the company. Upon using the frogs, it was discovered that a portion of them were not of the quality ordered, but the com- pany did not notify the firm of the defect, or offer to return the frogs, but kept the whole and used them. Held, that the company could not claim a deduction for the defective quality of the frogs, but was liable for the price agreed to be paid. Chirney *. Atlantic and Great Western R. R. Co., 2 N. Y. Sup. Ct., 446. 1878. 3. — Where a contract for the delivery of railway iron provided that it should be de- livered at different dates, and the iron which was to have been first delivered was not de- livered at the time agreed upon, but was ac- cepted without objection to the delay, it was held, that this acceptance was a waiver of that portion of the contract which related to the delivery of that part of the iron. Bailey v. Western Vermont R. R. Co., 18 Barbour (N. Y.), 113. 1854. 4. Agency. C, president of .a railroad company, and A., agent of the company, bor- row money from H., and give their own bond for it. The money is borrowed.forthe use of the company, which is itself without credit, and it is immediately turned over to the com- pany. A., as agent, receives money of the company, out of which he is expected to pay the debt; but the bond having been'given for money in suit, he cannot pay it; and C. and A. became insolvent. Held, the money hav- ing been loaned to C. and A., individually, with the knowledge that it was for the use of the company, and H., having chosen to take the responsibility of C. and A., cannot after- wards make the company his debtor. Strider 1). Winchester and Potomac R. R. Go., 31 Grat- tan (Va.), 440. 1871. 5. Arbiters. If an agreement between two railroad companies provides that what is reasonable and necessary to be done by one of them, at the expense. of the other, pursuant to certain contracts between them, and what is a reasonable expense for doing it, shall be determined by the superintendent of the first corporation and another person named; and afterwards, before the time for making the determination, the office of such superintend- ent is abolished by the corporation, and the duties of superintendent assigned to its presi- dent; he is the proper person to join in the determination, and it is for the jury to deter- mine who is in fact discharging the duties of superintendent at the time of the determina- tion. Connecticnit River R. R. Oo. v. Williston, 16 Gray (Mass.), 64. 1860. 150 CONTRACTS. Assignment — Construction. 6. Assignment. Where a timber contract ■witli a railroad company -was assigned for a valuable consideration, it was held, that an in- creased allowance, made by the company after the assignment, passed to the assignee. Wintlow t. Elliott, 5 Jones' Law (N. C), 111. 1857. 7. — M. assigned to K. one-fifth interest in a railroad contract payable in stock and bonds, K. to pay one-fifth of the cash capital ($150,000), " as ma^ be required by M.," who was authorized to sell stock and bonds, if necessary to prosecute the work, the profits to be divided amongst the parties in proportion to the cash contributed. K. being called on by M. refusedto pay more than one-fifteenth, alleging that no more was required than M. had realized from stock and bonds ; M. com- pleted the contract. Meld, that " required " meant " called for,"* and that K. was only en- titled to one-fifteenth of the profits.. McBey- nold's Appeal, 66 Penn. St., 103. 1870. 8. Attachment The contract between a railroad company and one of the contractors on its line of improvement provides that the contractor shall not receive the amount of the final estimate of his work until he shall re- lease, under seal, all claims or demands upon the company arising out of the contract. The contractor cannot recover the amount of the final estimate until he has executed the re- lease ; and his attaching creditor at law has no greater rights against the company in respect to this final estimate than he has. Baltimore and Ohio S. M. Co. v. McGullough, 13 Grattan (Va.j, 595. 1855. 9. Breach. It is unnecessary for one party to do certain acts before suing for a breach of a contract where the other party declines com- plying with it. New Orleans and Nashville 11. a. Co. V. Qanalh & Go., 18 La., (0. 8.), 510. 1841. 10. — Where the defendants refuse compli- ance with their contract for reasons wholly unconnected with the conduct of the plaint- iffs, they are liable for the damages. lb. 12. — Though there have been repeated violations of a contract by both parties, yet if neither elects to consider it broken, and they proceed under it, neither can be considered as having been in default. McOord v. West Feli- ciana S. B. Co., BLa,. An... 285. 1848. 11. Canals. A contract between the com- monwealth and a private person is ordinarily to be construed in the same manner as a like contract between natural persons, notwith- standing the remedy for its breach is not the same. Commonwealth ex rel. «. Pennsylvania B. B. Co., 51 Penn. St., 351. 1865. 1 3. — The act of May 5, 1841, authorizing the lease of the surplus water of the canals, shows an interest to retain in the common- wealth absolute control of the canals and an unfettered right to deal with them at pleasure; and the lessees could claim no more for the loss of the water than suspension of rent. lb. 14. — The act of May 16, 1857, for the sale of the public works, imposed on the purchas- ers no other duties to the lessees than those resting on the commonwealth at the time of the sale. lb. 1 5. Charter. A corporation is not liable for services voluntarily rendered in procuring its charter, there being no subsequent promise to pay for such services. No previous prom- ise could be implied for the reason that the corporation was not in being at the time. Hall V. Vermont and Massachusetta B: B. Co., 38Vt.,401. 1856. 16. Construction. A contract is to be con- strued according to the law in force when it is made. Hathom v. Galef, 53 Maine, 471. 1866. 17. — Courts are bound to give legal effect to all contracts, according to the true intent of all the parties. C. C, 1940. Latimer et al. V. New Orleans, Jackson and Oreat NortJiem B. B. Go., 16 La. An., 79. 1861. 18. — The force and effect of a written in- strument should be determined by the court. Leviaton v. Junction B. B. Co., 7 Ind., 597. 1856. 19. — A contract for borrowing monev to aid in the construction of the Northern Rail- road — construed. Knapp v. New York and Harlem B. B.Co., 2 Bosworth (N. Y.), 397. 1857. 20. — The contract between the plaintiff and executive committee of the defendant cor- poration employing plaintiff as superintend- ent of defendant's railway — construed. Queen v. Second Avenue B. B. Co., 44 Howard's Pr. (N. Y.). 381. 1873 ; Same v. Same, 3 Jones & Spencer (N. Y.), 154. 1873. 21. — A contract for conveyance of right of way and depot grounds — construed. Chi- dester v. Springfield and Illinois S. E. B. B. Co., 59 111., 87. 1871. CONTKACTS. 151 Construction. 22. — The terms of a contract for rates of freight construed with reference to the cir- cumstances of this particular case. Thayer 0. Surchard, 99 Mass., 508. 1868. 23. — The conditions of a contract for the sale of land construed, under the facts of a particular case. Russell v. Eastern iJ. B. Co., 5 Allen (Mass.), 291, 1862 ; Same v. Same, ib., 396. 24. — The plaintiffs had contracted with defendants to build certain sections of a rail- road at agreed prices. Work was suspended for a lime by agreement of the parties, and it was agreed if the .work sliould not be re- sumed within two years, the defendants would pay the plaintiffs $750; if resumed within that time, the former contract was to apply to a residue part only of the sections; and upon resumption, the plaintiffs were to resume work upon such parts of the sections at the former prices. The defendants resumed the work within two years, but employed an- other company to do the work. Held, that as tlie work was resumed within two years, the plaintiffs were not entitled to recover the $750; but that plaintiffs were entitled to dojthe work when resumed, and to recover damages for not being called upon to do it. Fowler v. Kennebec and Portland R. R. Go., 31 Me., 197. 1850. 25. — Under an ordinance of the city of Detroit, tlie complainants contracted " to pave their railway track (on a certain street), and two feet and four inches on either side thereof at their own expense, if the city should pave said street contemporaneously with the con- struction of complainant's railway." The city did so, and having assessed the said complainants for the cost of the excavation, as well as the paving, of said portion of said street, it was held, that under said ordinance and contract, the complainants were only lia- ble to pay for their proportion of the paving. Fort Street and Elmwood R.R. Co. v. Schneider, 15 Midi., 74. 1866. 26. T— S. was employed by the defendant to procure donations, right of way, etc., under a contract embraced in the following resolution and acceptance : " Resolved, That S. shall be allowed two-flfths in value and kind of all donations to be obtained on account of any extension of the C. F. & M. E. B. Co., beyond "W., to be in full of his services in procuring said douationsand superintending tlie getting of the right of way, etc. : provided, that he shall be allowed actual cost expenses while in the employ of the company. But there is no understanding that he shall receive compen- sation for other services, unless the board shall, under the circumstances of any particu- lar case, see proper to make an allowance." The plaintiff accepted, as follows : " I will accept the above on condition that the road shall be completed as far as N. by the 1st day of January, 1868, and to C. within one year thereafter." Held, that the agreement was, in effect, an employment of plaintiff, indefinite as to time, that might be revoked or termi- nated at the pleasure of the company, and that plaintiff could not recover damages for compensation he miglit have received, if he had been permitted to continue under, the contract. Smith v. Cedax Falls and Minnesota R.R. Co., 30 la., 244. 1870. ' 27. -^ Where the defendant was the owner of a steamboat and one-lialf of the boat of the plaintiff, and it was agreed to stock the gross earnings of both boats, and to divide the proceeds equally at the end of the season, and the defendant received the entire earn- ings, held, that to entitle the plaintiff to re- cover in an action on an account annexed for their part of the earnings, they must show that defendant had some of the earnings of both boats, wliich of right belonged to tliem. Kennebec and Portland R. R. Co. v. White et al., 38 Me., 63. 1854. 28. Construction — of cars. The plaintiff agreed, for a specified price, to build and deliv- er certain cars to the defendant, who was to fur- nish iron boxes necessary to their completion. They were completed, except so far as prevent- ed by the default of the defendant in not fur- nishing the boxes, when they were destroyed by fire while in the possession of the plaintiff and without his fault. Held, that the property in the unfinished cars and "materials remain- ing in the plaintiff, he was not entitled to re- cover for his labor and materials. McOonihe v. N: r. and Erie R. R. Go., 20 N. Y., 495. 1850. 29. — of railways. A proposition for a contract, to be in writing, and executed by one party and accepted by the other, is bind- ing on the parties, and where such a contract with a railway company was to be engrossed by the engineer of the company and presented 152 CONTRACTS. Correspondence — Depot. to the contractors, and no particular time for completing the same was fixed, it was held, that the consent of the engineer to a delay of a month in the execution of the contract was ■within the authority of such engineer as agent. Pratt V. Hudson River B. B Co., 31 N. Y., 305. 1860. 30. Correspondence. Where the defendant offered by letter to receive from the i>laintiff and transport from New Yorlc to Chicago, railroad iron, not to exceed a certain number of tons, during certain specified months, at a specified rate per ton, and the plaintiff an- swered merely assenting to the proposal, but did not agree on his part to deliver any iron for transportation, it was held, that there was no valid contract binding on either party. Chi- cago and Great JEastern B. B. Co. v. Dane, 43 N. y., 240. 1870. 31. Custom. Before evidence of a particu- lar custom can be permitted to explain a con- tract, it must be shown that the custom is established, existing at the time and place of the transaction, and known to the parties; it must also be certain, unifoiun, reasonable and not contrary to law. Slmclcelford v. New Or- leans, Jackson and Great Northern B. B. Co., 87 Miss., 203. 1859. 32. — Customs and usages must be proven by witnesses who have frequent and actual experience of the custom or usage about which they testify. lb. 33. Damages. No action can be main- tained for work and labor, unless the work has been actually performed. Where a party has been employed under a contract and wrongfully discharged, his remedy is either by an action for damages for breach of con- tract, or for the contract price. In the former case, one recovery would be a bar to any further action. In the latter, it must appear that he was ready and willing to perform any further services that might be required under the contract. Wiseman i>. Panama B. B. Co., 1 Hilton (N. Y.), 300. 1857. 34. — A. agreed with B. to deliver him a quantity of goods to be paid for in stock of a corporation, and subsequently drew an order upon him to give seventy shares of that stock to C, which B. promised C. orally to pay. Held, in an action by C. against B., tliat he could recover damages upon the promise to the extent of the value of the goods actually delivered by A. to B., under the conti'act at the time the promise was made. Eastern B. B. Oo. V. Benedict, 15 Gray (Mass.), 289. 1860. 35. — In an action for breach of a contract to permit the plaintiff to construct a railroad and to pay him therefor, at certain rates, the profits, meaning thereby the difference be- tween the cost to him of doing the work, and the price to be paid for it, are a proper sub- ject of damages. Philadelphia, Wilmington and Baltimore B. B. Oo. v. Howard, 13 How- ard, 307. 1851. 36. — A contract provided that a part of the payment for constructing a railway should be made in stock of the company. After the work was performed, the stock was demanded and refused. Held, that the meas- ure of damage was the marketable value of the stock. Porter et al. v. Buekfield Branch B. B. Oo., 32 Me., 539. 1851. 37. Death of party. The death of one of the parties to a contract for the construction of a railway, will cancel the contract unless the other party consent that the work shall be continued by the heirs of the deceased. A refusal to give such consent will not subject the party refusing to damages. He is only bound to pay for the amount of work already done, and the materials furnished proportion- ably to the price agreed upon. Civil Code, art. 3738. McOord v. West Feliciana B. B. Oo., 3 La. An., 285. 1848. 38. Delivery of goods. Under a contract f»r the delivery of 9,000 tons of railroad iron, the contract is not complied with on the ship- ment of the iron. Thorrupson v. Oincinnati, Wilmington and Zanesville B. B. Co., 1 Bond (U. 8. C. C), 153. 1857. 39. Dependent. Bonds mutually entered into at the same time between two parties, each to the other, respecting the same subject matter, will be construed as dependent upon each other, and either party who seeks to en- force the stipulations entered into by the other must be ready to perform liis own. Smith V. Boston and Maine B. B. Oo., 6 Allen (Mass.), 362. 1863. 40. Depot. Under an agreement between H. and defendant, H. was to convey certain lots to defendant, and defendant agreed to erect a depot thereon, which would have been of advantage to other property of II. Held, that the conveyance of the lots was a condi- CONTRACTS. 153 Engineer — Executory Contracts. tion precedent, without which H. could not maintain an action for damages for the failure to erect such depot. Sayre ». New York and EarUm B. E. Co., 3 Duer (N. Y.), 54. 1854. 41. — Where a person agreed in writing to pay to a railway company a certain sum on condition that the company should build a depot and open its road to a point within one mile of the post office of a certain town, it was held, that the building of a side track, which was operated as such, and a depot at a point within the distance named, was a sub- stantial compliance with the condition, al- though the main track of the road was not, nor was the whole of the depot building, within the mile. Cedar Falls and Minnesota R. B. Co. 0. Bieli, 33 la., 113. 1871. 42. — An agreement made by a railroad company, with an adjacent land owner, to establish and maintain a permanent turnout track, and stopping place, at a particular point, in the neighborhood of his property, and to stop there with the freight trains and passenger cars of the company, is, in sub- stance, the grant of an easement, which is to be binding upon the property of the railroad company, for the benefit of the owner of such adjacent property, and of all those who shall succeed him, in his estate. And such an agreement, to be valid, must be in writing. Pitkin V. Long Island B. B. Co., 3 Barbour's Ch. (N. Y.), 321. 1847. 43. Engineer. The plaintiff, as a sub- contractor under B., contracted to build a sec- tion of defendant's road, and the engineers of the company had authority to direct the removal of the earth from one section to another when heeded, and by the contract between the company and B., he, B., was bound to move the earth from one section to another, but no engineer had power to bind the company by any contract for grading and removing earth, and if B. was required by the engineers to so move the earth, he could obtain compensation under his contract. The engi- neers required plaintiff to move earth from one section to another, assuring plaintiff that defendant would pay for the extra work. The work was beneficial to defendant, and plaintiff charged no more than it would have taken to, procure the earth elsewhere, but it did not appear that defendant ever consented to have plaintiff do the work on its credit, and the plaintiff had no general contract with defend- ant. Held, that plaintiff could not recover from the railroad company; that there was nothing in the duties of an engineer author- izing him to bind the company for such work under such circumstances. Thayer ii. Vermont Central B. B. Co., 24 Vt., 440. 1852. 44. Evidence. Where a contract was signed by the first party but was not signed by the second party, but was afterwards assigned hy second party to a third person, and where it appeared that the parties to the contract had treated it as binding, it was held that the contract was admissible in evidence in an action between the assignee and first party. Western Maryland B. B. Co. v. Oren- dorff, 37 Md., 338. 1873. 45. — In an action upon a contract for the delivery of a lot of railroad stringers, it was held that a witness, who only knew of the contract from hearsay, might be permitted to testify that in delivering the stringers, the par- ties acted on the contract. Southwestern B. B. Co. V. Bowan, 43 6a., 411. 1871. 46. — A contract for the delivery of 40,000 ties sustained under the evidence in a partib- ular case. Bryan v. Southwestern B. B. Co., 41 Ga., 71. 1870. 47. Excursion cars; damages. A con- tract for six cars for an excursion having been made, and the parties hiring the cars having afterwards requested only four, the railway company was not bound to furnish the smaller number. Illinois Central B. B. Co. v. Demars, 44111., 293. 1867. 48. — In an action against a railroad com- pany for a failure to furnish cars, as agreed upon, for an excursion, at a stipulated price, the measure of recovery would be the amount the plaintiff would have received as passage money, if the train had gone as proposed, less the amount agreed to be paid for the use of the cars. 76. 49. Executory contracts. The act of May 30, 1861, provides that no contract shall be binding unless it be in writing. Pixley v. Western Pacific B. B. Co., 83 Cal., 183. 1867. 50. — This only applies to executory con- tracts and not to those wliere one party has performed his contract. After one party has performed his contract, the other cannot be permitted to escape liability, on the ground that he had no authority to make it. J6, 154 CONTRACTS. Execution — Operation of Railway by Two Companies. 51. — Such contract is voidaWe only so long as unexecuted on both sides. lb. 62. Execution. When articles of agree- ment under seal purport to be between the defendants of the first jjart, and the plaintiff of tlie second part, the nonexecution of the instrument by the plaintiff will not prevent the defendants from being held liable. We- tumpka and Oooaa li. J{. Oo. t. Hill, 7 Ala. N. S., 773. 1845. 53. Express contracts. If there is an ex- press contract, the plaintiff cannot recover upon an implied one. JHfew Orleans, Jackson and Great Northern B. JR. Co. v. Pressley, 45 Miss., C6. 1871. 54. Franchises. The directors of a rail- road company were by its articles of incorpo- ration empowered, with the assent of the majority in interest of its stockholders, to sell and transfer the property and franchises of the company; provided that no such sale should be valid until the debts of the com- pany were paid or arranged. Held, that a transfer was not invalid on the grounds that the debts were not paid, when it appeared tliat the debts were inconsiderable and that the company to whom the franchises, etc., were conveyed was ready and willing to pay whatever debts might exist. Mahaska County B. B. Co. V. Dea Moines Valley B. B. Co., 28 la., 437. 1870. 55. Illegal in part. Where the contract is for the doing of two or more things which are entirely distinct, and one of them is pro- hibited by law and the others are legal, such illegality of the one stipulation cannot be set up as a bar to an action for a breach of one of the valid stipulations. JSrie B. B. Got v. Union Locomotive, etc., Co., 6 Vroom (N. J.) , 240. 1871. 56. Indemnity. The president and five directors of a railroad company agreed, by a m,emorandum in writing, each to advance certain specified sums to enable the company to pay the interest on its bonds, and that the president should advance the further sum of $3,000, "with the assurance from the other five that he should be indemnified at the next meeting." At the next meeting, the president (vas authorized to pledge and sell bonds to " meet present claims." He sold the bonds, but used the money to pay other and subse- quent debts of the company. Held, on an ac- tion againt the directors, that he liad had suf- ficient indemnity, and that he should have se- cured himself. Miller o. Morrill et al, 51 Me., 9. 1803. 57. Legal tender act. TIio modification of a contract to pay certain dividends ou rail- way stock in coin, construed. Portland, Saoo and Portsmouth B. B. Co. v. Boston and Maine B. B. Co., 101 Mass., 200. 1800. 58. Merger of contracts. Where the par- ties entered into a contract to build a railroad between two points, which contract was entire and indivisible, and afterwards entered into another contract for the same work either in whole or in part at a different price, the latter contract was held to have extinguished the first. The legal presumption of the merger of the former contract into the latter is not to be repelled by the silence of one party. How- ard V. Wilmington and Susquehanna B. B. Co., 1 Gill (Md.), 311. 1843. 59. Misrepresentation. Where a contract is made for work to be done at a stipulated price, and it is discovered, before the work is commenced, that a misrepresentation has been made in respect to. its value, the party engag- ing to do the work may repudiate the con- tract; if he does not do so, but goes on and performs it, he can demand no more than the contract price. Saratoga and Schenectady B. B. Co. V. Bow, 34 Wendell (N. Y.), 78. 1840. GO. Open account. A demand cannot be re- garded as an open account where there is aeon- tract which is the foundation of the claim. Bailroad Co. v. Lindsay, 4 Wallace, 050. 1806. 61. Operation of railway by two compa- nies. Where one company furnishes tlie roadbed and the other furnishes the rolling stock and motive power, and it is agreed that the uniform rates are to be fixed annually by agreement, and the latter company is to pay the former two-thirds of the receipts, but " ad- ditional charges by way of discrimination for short distances for motive power not to be in- cluded in the term receipts." Held, that the additional charges contemplated by the ex- ception were only such as shcmld be imposed by the company for short distances, and in addition to the discriminative charges con- tained in tlie table of uniform rates. Bloas- burg and Corning B. B. Co. v. Tioga B. B. Co., 1 Abbott's Ct. of Ap. Dec. (N. Y.), 140, 1884; 1 Keyes, 486. CONTRACTS. 155 Organization of New Company — Public Policy. 62. Organization of new company. — Wliere an agreement was made l)y the holders of chattel bonds of an insolvent railway comijany by their attorney, under which a new company was organized on the basis of a division of the stock among those interested in the old company, and among other things it was agreed that " the expenses of carrying out this agreement, printing new bonds, etc., were to be' sustained by the new company ;" in an action by certain of the bondholders against the new. company to recover the amount paid by plaintiffs to the said attorney for his ser- vices, lield, that the words " printing bonds, etc.," did not restrict the agreement to ex- penses of that character only, but covered all reasonable and necessary expenses in carrying out the arrangement; and that the action could be maintained by the plaintiffs alone without joining the other parties to the writ- ten agreement, they being the only persons by whom the expenses were paid. Oatawissa B. B. Oo. V. Titus, 49 Penn. St., 277. 1865. 63. Payable in goods. A contract to pay in anything but money must be specially de- clared upon. Ifew Orleans, Jackson and Great Northern B. B. Oo. v. Pressley, 45 Miss., 66. 1871. 64. Payable in property. An agreement by B. to pay A. certain prices for stone " to answer on a note " previously made by A. to B., imposes no obligation on A. to deliver the stone instead of paying the amount of the note in money; and if he elects to deliver stone, he must deliver it at B.'s residence or place of business. Nashua and Lowell B. B. Go. ■». Nutting, 15 Gray (Mass.), 25. 1860. 65. Performance. Where one party to a contract, in executing it, follows the direction of t);;e other, the latter cannot complain of the Sianner of the performance. Kansas Pacific B. B. Oo. V. McOoy, 8 Kans., 538. 1871. 66. — partial. Where a contractor was to.receive in payment for his entire work a certain sum of money, and also a certain amount of stock, and he abandoned the work without completing it, the company has a right to pay a 'pro rata amount for the work in stock. Harris v. Somerset and Kennebec B. B. Co., 47 Me., 298. 1859. 67. Preliminary contract. An agreement to enter into a contract is fulfilled when the contract has been entered into by the parties, pursuant to the terms of the agreement. The orginal agreement being Xh&n functus officio, it cannot be made the basis of an action, in con- nection with the final contract. Cheshrough «. New York and Erie B. B. Go., 26 Barbour' (N. Y.), 9. 1857; Same i). Same, 13 Howard's Pr. (N. Y.), 557. 18£7. 68. Privity. An action lies upon a prom- ise made by the defendant for a valid consid- eration to a third person for the plaintiil's benefit, although the plaintiff was not privy to the consideration. Van Shaick i). Third Avenue B.B. Go., 38 N. Y., 346, 18G8; see Same D. (Sffims, 49 Barbour (N. Y.), 409, 1867; Saine v.Same, 25 Howard's Pr. (N. Y.), 448, 1862 ; Saine «. Same, 8. Abbott's Pr. (N. Y.), 380. 1859. 69. Proposals. Where proposals to per- form certain work for a railway company were submitted to the board of directors and were by them referred to a committee and su- perintendent to make a contract with such of the persons making the proposals as they deemed proper, it was held, that such act was not an acceptance of any of the proposals. Soper V. Buffalo and Bochester B. B. Co., 19 Barbour (N. Y.), 310. 1855. 70. Public letting. A letting of a con- tract by a railway company, in pursuance of a notice published in a newspaper inviting proposals for bids, was a " public letting," within the meaning of the contract. Bppes v. Mississippi, Gainesville and Tuscaloosa B. B. Go., 35 Ala., N. S., 33. 1859. 71. Public policy. A contract by the owners of a railroad to be made under an act of in- corporation with the owners of a rival rail- road, not to continue such road beyond a cer- tain point, is void as contravening public pol- icy. Hartford and New Haven B. B. Go. v. New York and New Haven B. B. Go., 3 Rob- ertson (N. Y.), 411. 1865. 72. — Such a contract does not affect a prior agreement between the owners of such road, who also owned another railroad, and the ownei-s of another road adjoining the lat- ter, to divide the through fares of passengers on such continuous road in a certain propor- tion ; although the former contains a provis- ion to deduct an additional sum monthly from such through fares as a consideration for entering into such new illegal contract ; and such through fares must be divided as 156 C0NTBACT8. Release — Sale of Real Estate. though such second and illegal contract had never been made. lb. 73. — A contract made by a corporation in violation of the terms of its charter, is ultra vires, and void as against public policy. Union Bridge Co. v. Troy and LamingJnirgh B. n. Oo., 7 Lansing (N-. Y.), 240. 1872. 74. — All contracts for a contingent com- pensation for obtaining legislation, or to use personal, or secret influence on legislators, are void. Marshall v. Saltimoi'e and Ohio B. B. Co., 16 Howard, 314. 1853. 75. — Secrecy as to the character under which the agent acts, tends to deception, and is immoral and fraudulent; and where the agent or solicitor contracts to use such se- crecy, or voluntarily does use it, he cannot liave the aid of the courts to recover his com- pensation, n. 76. — The power to declare contracts void as against public policy, should only ber ex- ercised in cases that are free from doubt. Biehmond v. Dubuque and Sioux City B. B. Go., 26 la., 191. W68. 77. Ratification. The civil government of the city of New Orleans cannot be permitted to deny the rights derived by the relators in this case from their contract with said city, on the ground that it was under military au- thority at the time when, after the cessation of that military authority, those rights have been, in part, frequently recognized and rati- fied by its ordinances. That contract was an entirety. The city had no right to sever its obligations, so as to ratify one part of the con- tract and reject another. State ex rel. v. Cock- rem, 35 La. An., 336. 1873. 78. The city having for a number of years received, without objection, the consideration of the contract, should not be heard when disputing the contract itself. lb. 79. Release. Where a contractor is re- leased by a railway company from the com- pletion of the work under the contract, he can sue in assumpsit for the work done. Baltimore and Ohio B. B. Oo. v. Besley, 7 Md., 2i)7. 1854. 80. Rescission. Where an agreement has been partly performed by one party thereto, the other cannot rescind it without restor- ing, or offering to restore, the consideration received for such part performance. Burge v. Cedar Bapids and Minnesota B. B. Co., 32 la., 101. 1871. 81. — As a general rale, where the failure is only partial, a party cannot rescind, but must pursue his action on the contract for the part not performed. lb. 82. "Riprap." Where the plaintifi" con- tracted to build " rip rap " wall for the defend- ant at a certain price per cubic yard, there be- ing no general usage or uniform custom proved, which should control the mode of measurement, it was Jield, that the term used, implied pay by the cubic yard, for the " rip rap," after the stone is fitted and laid into wall. Wood V. Vermont Central B. B. Co., 24 Vt., 608. 1852. 83. Sale of personal property. A con- tract for wood -'now delivered and being hauled and piled, to be eight feet high, and delivered when called for," will be under- stood as identifying the wood, but not as then delivering it, so as to change the prop- erty and possession, without some further act. Illinois Central B. B. Co. v. Cassell, 17 111,, 389. 1855. 84. — Where wood is sold subject to in- spection and measurement by a railroad in- spector of wood, the purchaser is not bound by the mere guess, or loose estimate by the eye, of such inspector, as to the quantity. McAndrews t. Santee, 57 Barbour (N. Y.), 193. 1869. 85. — A written agreement for the sale and purchase of property, purporting in the body of it, to be between the vendor of the one part, and the purchasers, by their agent, of the other part, signed by the vendor, and by the agent in his own name merely, is not ex- ecuted in the name of the purchasers, and is, therefore, void. Blurman v. Nm York Central B. B. Co., 22 Barbour (N. Y.), 239. 1856. 86. — In an action for goods sold and de- livered, instructions which authorize the jury to return a verdict for the plaintiff even if they find that the goods were not all of the kind contracted for, and that the defendant did not accept them are erroneous. Brewer V. Houmtonie B. B. Co., 104, Mass., 593. 1870. 87. Sale of real estate. A written propo- sition to sell land, at a certain price, if taken within thirty days, is a continuing offer, which may be retracted at any time; but if, not being retracted, it is accepted within the time, such offer and acceptance constitute a valid contract, the specific performance of eONTBACTS. 157 Side Track — Stock. ■which may be enforced. Boston and Maine B. R. Co. B. BartUtt, 3 Gushing (Mass.), 234. 1849. 88. Side track. The D. and P. R. R. Co. used the surface of certain land owned by tlie plaintiffs, and in payment thereof was to build and perpetually maintain a side track in front of certain lots owned by plaintiffs, and executed a covenant to them to that effect. The defendant succeeded to the rights of the former company and assumed its indebted- ness. Held, that the defendant was liable for damages for a breach of such covenant, al- though the breach occurred after the transfer of the road; that such damages were em- braced in and formed a part of the indebted- ness of the D. and P. Co. Amsden ». Dubuque and Sioux Oity B. B. Go., 28 Iowa, 542. 1870. 89. — The measure of damage in such case is the difference between the value of the lots with the side track, and their value without it. lb. See Contract, 41, 42. 90. — Two railroad corporations, whose roads were constructed parallel and near to each other, by the side of the plaintiffs' ware- house, agreed to make and maintain a turn out or side track for the accommodation of the plaintiffs from either or both of said com- panies main tracks to said warehouse, and the plaintiffs claimed that the turn out from the track farthest from said warehouse should cross the track of the other road and a single side track be laid thence to their warehouse, while the defendants claimed that said turn out should be made on the outer sides of said roads respectively. On a bill in chancery for a specific performance of said contract, the committee to whom the cause was referred, found that a single side track laid as the plaintiffs required, would, unless managed and used with proper care and prudence, ex- pose the public travel along said railroad to serious danger from collisions and other causes, but if the same were under the super- vision of the railroad companies, and a rea- sonable degree of prudence and care were ex- ercised in its management and use, the dan- ger ai'ising therefrom would be very slight and scarcely appreciable, but did not find that it was indispensable or necessary that such turn out should be constructed in such mode, nor that some other mode would not answer as well as that. Held : I. That if the contract required said turn outs to be made as required by the plaintiffs, the court would not specifically enforce it, but leave the plaintiffs to their remedy at law. II. That a reasonable construction of said contract might require said turn outs to be made as claimed by the defendants, or in some other manner not proposed by either the plaintiffs or the defendants. III. That there should be further inquiry as to the best mode of doing this. Windham Cotton M'f'g Co. v. Hartford, Providence and Fishkill B. B. Co., 23 Conn., 373. 1854. 91. Specialty. Where a contract under seal is altered, eitlierby a written contract not under seal, or by an oral agreement, it be- comes merely a simple contract, and the rights of the parties are determined accord, ingly Briggs ». Vermont Central B. B. Co., 31Vt.,311. 1858. 92. Stock. Where plaintiffs contracted with defendant, in writing, to build certain bridges on defendant's road, at a certain sum per foot, to be paid, one-fourth in cash and three-fourths in stock of the road at par value, and the contract was silent as to the time and place of payment, it was held, that looking to that alone the plaintiffs could not call for pay- ment until a complete performance of the contract, or at least not oftener than a bridge was fully completed ; nor could they then sue and recover for the stock without proof of a demand. Boody v. Butland and Burlington B. B. Co., 34 Vt., 661. 1858. Cir. Ct. U. S. 93. — The defendant having, after suit commenced, mortgaged its road to third per- sons, it was held, that this did not render it liable for money in lieu of the stock on said contract. lb. 94. — Where it appeared that defendant had been in the habit of making monthly pay- ments to its contractors, including plaintiffs, this must be considered as the rule of pay- ment adopted by mutual consent. lb. 95. — A. and B. entered into a written con- tract, that A. should subscribe and pay for ten shares of stock, and B. should pay him the par value thereof, with six per cent, inter- est on tlie money paid by B., in three years from the time of the first installment. A. sub- scribed £ind paid for tlie stock. B. received 158 CONTRACTS. Street Bailway — Tender. one dividend of eiglit per cent, interest, paid ■ by tlie company on the first installment paid by A. Shortly before, and at the expiration of the three years, A. called on B. with his certificate of the stock, with a blank power of attorney thereto attached, for its transfer, but not signed, and offered to transfer it to B., and demanded payment. B. refused to accept and pay for the stock. In an action by A., stating in his petition said contract, his performance, and offers, and present readiness to transfer the stock, and asking judgment against B. for its par value and interest, there was verdict and judgment for plaintiff. Held, that it was not necessary for the plaintiff to prove an actual transfer of the stock, or an execution of the power of attorney ; that an offer with the abil- ity there and then to perform, was sufficient to entitle him to recover. Eager v. Heed, 11 Ohio St., 620. 1860. 96. — Under an agreement for the sale of railroad stock and bonds, under the circum- stances of this case, a demand should have been made for the stock and bonds and a sufficient time given for compliance with the demand. Boutwell «. VKeeJe, 33 Barbour (N. Y.),434. 1860. 97. — The measure of damages in a suit for the breach of an executory contract to purchase railroad stock, is the difference be- tween the value of the stock at the agreed price, and its market value at the date of the breach of the contract. Tiand u. White Mountains R. R. Co., 40 N. H., 79. 1860. 9S. Street railway. A city invited bids for making a street railway. Bids were made by an unincorporated company and accepted, but a contract was not signed. The city then gave permission to have the company incor- porated, " the incorporation not to change the conditions of the propositions heretofore made and accepted, * * * but to preserve the remedies of the parties against each other in case of any violation of a contract hereafter to be entered into." Held, that there was no perfected contract between the city and the incorporated company. People's Railroad v. Memphis Railroad, 10 Wallace, 38. 1869. 99. Supply of water; damages. The measure of damages is the value of the prop- erty, to the purchaser, and not the use or profit it was yielding to the former owner. Nor should its value to the purchaser be re- duced, because it would cost the owner any amount of money to keep or otherwise dis- pose of it. So held in a case where a coal company furnished water from its shaft foi the use of a railway. Chicago and Rock Island R. R. Co. V. Nortliern Illinois Coal and Iron Co., 36 111,, 60. 1804. 100. Telegram. The defendant tele- graphed to the plaintiff that it "wanted bal- lasting done from B. to M.," for which it would pay a certain price per cubic yard, and plaintiff telegraphed back, accepting the proposition. A written proposition to "do all the train work required by the company for grading of the depot, side track, etc., in the city of M.," at a certain price, was also accepted by the company. Held, that the contracts were unambiguous, and were for so much ballasting and grading respectively, as the company should wish to have done; and parol evidence offered by plaintiff, that a specific amount of such ballasting or grading was required at either place to complete the work or render the road serviceable, and that he was prevented by the company from doing such work to his damage, was properly re- jected. Wells v. Milwaukee and St. Paul R. R. Go., 30 Wis., 605. 1873. 101. — When and to what extent telegrams between parties are to be treated as written contracts, depends upon the circumstances under which they are sent, and the intent and object for which they are transmitted and received. Beach n. Raritan and Delaware Bay R. R. Co., 37 N. Y., 457. 1868. 102. — Where there has been a previous communication between the parlies, in respect to the subject matter of the contract, and the telegram is sent to fix some one of the details of the agreement between them, such telegram is evidence only for the purpose for which it was sent. Ih. 1 03. — Where the original propositions or agreement between the parties were oral, they are to be proved by oral evidence, as modi- fied or affected by the telegram. lb. 104. Tender. Where a controversy arose between M. and K. as to a contract for the sale and delivery of railway bonds, M. claim- ing that the sale was of 1,000 bonds, and K. claiming 14,000, and M. tendered the 1,000, but K. declined to receive them, claiming the 14,000, but made no tender of the contract CONTRACTORS. 159 Blasting. price until a ■week afterwards ; held, that the denial of the contract by M. did not amount to a waiver of the vendee's obligation to ten- del- payment. That the delay of a week in making such tender gave rise to a conclusive presumption that K. had assented to the rescission of the contract. Motiory v. Kirk, 19 Ohio St., 375. 1869. 105. Termination of contract. Under a power reserved to a party to declare a con- tract no longer binding, lield, this extended only to the work which remained to be done, and did not deprive the contractor of conpen- sation for the work already done. Philadel- phia, Wilmington and Baltimore S. B. Co. v. Eowa/rd, 13 Howard, 307. 1851. 106. Term of years. A railroad company agreed with K. and his associates, in consid- eration that they would build an iron furnace on the line of its road, to transport ore and metal to and from such furnace at a given rate for the term of ten years, " when by them required so to do." And K. and his associ- ates, in consideration of the promise and agreement of the railroad company, erected II furnace according to the stipulations of the agreement. Held, that the promise of the company to carry freight at the rates agreed upon is not void for want of a sufficient con- sideration, nor for want of mutuality of obli- gation between the parties ; and held, further, that the right thus secured under the contract by K. and his associates was transferable by assignment to a subsequent purchaser of the furnace property. Himrod Furnace Co. ®. Oleveland and Mahoning B. B. Co., 23 Ohio St., 451. 1872. 107. Time. Where B. contracted with a railroad company, in writing, to build certain bridges on its road, at a certain sum per foot, to be paid, one-fourth in cash, and three- fourths in the stock at par value, and the con- tract was entirely silent as to the time or place of payment: held, that, looking to the contract alone, B could not call for payment, either of the cash or stock, until a complete performance of the contract on his part, or, at any rate, before, or oftener than a bridge was fully completed. Boody i). Butland and Burlington B. B. Co., 3 Blatchford (U. S. C. C), 25. 1853. 108. — Where a railway company became unable to pay the contractor, and a person interested in the company agreed to give the contractor his individual promissory notes if he would finish the work by a day certain, the contractor cannot recover upon the notes tinless he finishes the work within the tims stipulated. Slater v. Bmerson, 19 Howard, 234. 1856. 109. — The contract was an original under, taking for a valid consideration and not within the statute of frauds. Emerson «. Sla- ter, 28 Howard, 38. 1859. 110. — It was therefore held competent to show by parol testimony that the time of per- formance had been, for a valuable considera- tion, extended. lb. 111. Ultra vires. Where the president of a railway company employed plaintiflfs to perform services for the company and after- wards had frequent interviews with them, and the directors were fully apprised of the fact, they were presumed to have ratified the act of the president, although there is no record of any vote ratifying such act. Pixley v. Western Pacific B. B. Co., 33 Cal., 188. 1867. 112. — The same presumptions apjDly to corporations as to private persons. Ih. 113. Unilateral. An agreement of an in- dividual to pay certain sums it a railway company would locate its line to a certain place, is not binding on the individual, unless the company also incure some obligation. Utica and Schenectady B. B. Go. v. Brineker- haff, 21 Wendell (N. Y.), 139. 1839. 114. Use of railway. In an action by the owner of a railway to recover for the use of it by persons who did not recognize his title, but used it under a lona fide claim of right, the plaintiff is entitled to recover only a rea- sonable and proper compensation therefor, although he had notified defendants in ad- vance that they must pay a specific sum there- for. Eittredge v. Peaslee, 3 Allen (Mass.), 235. 1861. CONTRACTORS. See Construction of Eail'wats; Contbacts; Eaii- INBNT Bosiain; Wiiabvbs. 1. Blasting. A railroad company agreed witli certain contractors for the construct i(m of a part of its road. Amongst other work 160 CONTRIBUTORY NEGLIGENCE — CONVEYANCE. Fires — Agency. provided for, was that of removing, at a stipu- lated price, solid rock, which, it was said in the contract, " must be removed by blasting." In removing such rock, without carlessness on the part of the contractors, a large quan- tity of fragments was thrown against the dwelling of an adjoining proprietor, causing an injury for which he .brought an action against the company. Held, that the con- tractors had done only what they were au- thorized by the company to do ; and as the company must be held to have assented to the unlawful act, by which the plaintiffs were in- jured, it was liable as a joint wrongdoer. Carman v. Steubenmlle and Indiana E. E. Co., 4 Oiiio St., 399. 1854. 2. Fires. A railway company engaged a contractor to construct a portion of its road " under the general supervision of the chief engineer of the company," across the timber land of the plaintifl ; the sub-contractor and his employes cut a tote road through the plaintifl's premises, outside of the location, and set flres, which, through negligence, spread and burnt the plaintiflF's timber. Held, that the company was not liable, as it had no control over the persons who occasioned the injuiy. Eaton v. Uuropeanand North Ameri- can E. E Co., 59 Me., 520. 1871. 3. Judgment. A sum due to a sub-con- tractor for labor performed in the construc- tion of a railroad, becomes the debt of the company when judgment is rendered against the company on its drafts drawn in payment for such labor, upon and accepted by its treasurer, and in determining the rights of such creditors under a decree providing for the payment of all debts for the construction of a certain part of the road, it is immaterial whether the basis of the judgment was a con- tract between the company and the original contractor, or with the plaintiff. Ney v. Du- bugue and Sioux City B. B. Co., 20 la., 347. 1806. 4. Negligence. A company contracted with a builder to do the work on a building " in a substantial and workmanlike manner," and " in accordance with the plans and speci- fications and instructions furnished by the company." Held, that the word, " instruc- tions " referred to the kind of structure and not to the mode of accomplishing the work. Hunt V. Pennsylvamia B. B. Co., 51 Penn. St., 475. 1866. 5. — A rigger, engaged in raising rafters, was killed by the falling of the rafters. Held, in an action by his wife against the company for negligence in causing his death, that it was material for the plaintiff to prove that he was employed by the company. lb. 6. — A contractor in such case is the prin- cipal of those he employs; the employer of the contractor is not a guarantor of his skill and care. fb. 7. Personal injuries. A railway company is not liable for an injury sustained while its road is being built and operated by contract- ors, who own the cars and engine by which the injury is committed, and of which the company had no control. Meyer v. Midland Pacifie E. E. Co., 2 Neb., 320. 1871. 8. Statute. An act of the general assembly of Louisiana provided that a company should not be liable for the debts of its contractors, " nor shall said company be liable for any in- jury to person or property caused by the act or omission of the persons so contracting with it." Held, that this was a convenient form of declaring the common law rights of the company, and conferred no exemption upon it. Bailroad Co. v. Hanning, 15 Wallace, 649. 1872. 9. — A railroad company is not liable un- der R. 8., 1857, ch. 51, § 25 (R. 8., § 22), for trespasses and injuries done by contractors and sub-contractors in tie vicinity of the road. Baton «. European and North American B. E. Co., 59 Me., 520. 1871. 10. Trespass. Ifthe company's engineer di- rect the sub-contractors to do an unauthorized act, such as grading outside the true limits of the location, the company is liable therefor. lb. CONTRIBUTORY NEGLIGENCE, See iNjuniEB to Buflotsb; Injubies to Douzsina Animals ; Injtiiiks to PASSENOEns ; Is jtmiBS to PEBSCHS ONTnETBACE; Neglioshce. CONVEYANCE. See Husband and Wins. 1. Agency. By ch. 91, § 14, R. 8., " all I deeds and contracts executed by an author- CONVEYANCE. 161 Conditions — Covenants. ized agent for an individual or corporation, eithier in the name of the principal, by such agent, or in the name of such agent, for the principal, shall be considered the deed or contract of such principal. Porter v. Andros- coggin and Kennebec H. iJ. Co., 37 Me., 349. 1853. 2. — Where a corporation makes a contract through an agent, who puts to it a seal, it be- comes by law the deed of the corporation, though it has not their common seal. As- sumpsit cannot be maintained on such con- tract. Ih. 3. Conditions. The right or possibility of reverter which belongs to a grantor of land on condition subsequent is extinguished by a conveyance thereof by deed to a third person before entry for breach of condition; even though such conveyance be to a son of the grantor, who, upon the grantor's death, be- comes his heir. Sice v. Boston and Worcester M. R. Co., 12 Allen (Mass.), 141. 1866. 4. — A conveyance of land to a company for the purpose of constructing a railroad upon it, " provided the same does not inter- fere with buildings on said land," will be so construed as to prevent the construction of the road so near to the buildings as to endan- ger their safety or destroy their usefulness. BatJibone v. Tioga Navigation Co., 3 Watts and Sergeant (Penn.), 74. 1841. 5. — Where, by a conveyance to a railroad company, land was granted upon the condi- tion that it should construct its road thereon within a limited time, it was held, that the condition was subsequent, and that title to the land vested in the corporation on the execu- tion of the deed. Nicoll v. New York and Erie B. B. Go., 13 N. Y., 131, 1854; Same v. Same, 12 Barbour (N. Y.), 460, 1852. 6. — A mere failure to perform such a con- dition does not divest the title. Ih. 7. — A. conveyed lands to the B. and S. K- B. Co., for depot grounds, and " also for the erection of a house for temporary reception (other than a public house), for the accommo- dation, victualling and lodging of passengers and others," with a proviso that if the grantee should use such building for any other pur- pose, or if it should use any other building within a mile of said premises for such pur- poses, or should use said premises for an inn, the estate of the grantee should be forfeited. 11 Meld, that the estate was not forfeited by a transfer of the property to another corpora- tion under legislative sanction ; and that the condition was not violated by the occasional selling of refreshments, and occasionally lodging persons in the depot buildings by a person in the employ of the company. Southard v. Central B. B. Co., 3 Dutcher (N. J.), 13. 1856. 8. — Where a power of sale of certain lands was given by will to the executors of the testator, upon certain contingencies, and a conveyance was made by the executors with- out reference to the power ; more than fifty years after the conveyance was made, the questicn was submitted to a jury as to whether or not the condition had been performed, and the verdict of the jury that it had not, was not disturbed, there being ho adverse posses- sion. South Carolina B. B. Co. «. Toomer, 9 Richardson's Eq. (So. Car.), 370. 1857. 9. Consideration. The consideration of a deed may always be inquired into. The only effect of the recitals in the deed is to estop the grantor from claiming that there was no consideration. For every other purpose, it may be shown by parol. Perry ». Central Southern B. B. Co., 5 Coldwell (Tenn.), 188. 1867. 10. Construction. A deed of conveyance construed, and the rights of the grantee deter- mined in this particular case. Long Island B. B. Co. ■». Conhlin, 39 N. Y., 573, 1864; Same V. Same, 33 Barbour (N. Y.), 381, 1860. 11. — Where the premises in a deed are so described that they cannot be identified, tbe conveyance is void. Purinton v. Northern Illinois B. B. Co., 46 111., 397. 1867. 12. — But where the grantee has gone into possession, and the parties have given a con- struction to their contract, by the manner in which they have executed it, the objection of uncertainty would be removed. Ih. 13. Covenants. A conveyance of land was made to a railway company upon agreement that it should erect and maintain certain im- provements, such as fences, etc., thereon. Held, that this agreement was a covenant run- ning with the land, and might be enforced against a subsequent grantee of the railway company. Dorsey v. St. Louis, Alton and Terre Haute B. B. Co., 58 111., 65. 1871. 14. _ If there are dependent covenants in 162 CONVEYANCE. Delivery — Form. an agreement, by which one party is to con- vey land, and the other to make fences, cattle- guards, passes, etc., if the conveyance has not been made, the party cannot recover for the omission to build the fences, cattle guards, etc. Mecum v. Peoria and OqiumcJca B. R. Oo., 21 111., 533. 1859. 1 5. Delivery. The delivery of deeds to the attorney or solicitor of the grantee, may be deemed an absolute delivery to the grantee. Price V. PittsbwgJi, Ft. Wayne and Chicago B. i?. Oo., 34 111., 18. 1864. 16. Description. A conti-act to pay for all land coiiveyed " lying on both sides of Cold river," at $100 per acre, does not bind the party to pay for the land of the river, although that passes by the deed. DanieU v. Cheshire B. B. Co., 20 N. H., 85. 1849. 17. — Where a lot is sold and conveyed, and the number or name of the lot is given in the deed, and also the name of the street, the latter description must give way to the former in case of discrepancy. Jfash v. Wil- mington and Weldon B. B. Co., 67 N. C, 413. 1872, 18. — Where a grant is bounded "by the side of a highway," these words are presumed to exclude the highway, especially if this construction be consistent with the circum- stances and subject matter of the grant; though ordinarily a grant bounded by a high- way extends to the centre of such highway. Eiighes v. Pronidence and Worcester B. B. Co., 2 R. I., 508. 1853. 19. Estoppel. If a person, having title to an estate, which is offered for sale, and know- ing his title, stand by, and encourage the sale, or do not forbid it, and thereby another is induced to purchase the estate, under the sup- position that the title is good, the person, so standing by, and being silent, shall be bound by the sale, and neither he, nor his privies, shall be allowed to dispute the purchase. Junction B. B. Co. V. Harpold, 19 Ind., 347. 1863. 20. — But this rule does not apply where the purchaser knows of such adverse claim, lb. 21. Evidence; stock subscription. Suit by a railroad company upon the covenant contained in a deed executed by the defend- ant to the company. The complairt alleged that the company had neglected to record the deed, and that the defendant had conveyed to another ; that by the laws of Ohio, where the lands were, the second grantee had a valid title, and had entered into possession, etc. Answer: I. That the deed was executed in payment of a subscriptio.i to the stock of the company; that it was agreed by parol, at the time of making the written subscription and deed, and as part of the consideration thereof that the company should not begin work until stock enough had been subscribed to com- plete the road, and that if the company should fail in this, within a reasonable time, defend- ant should be allowed to retract his subscrip- tion; that the company did fail to procure sufficient stock, and expended and wasted the stock subscribed, etc. II. That the defend- ant resold the premises by the license of the company. III. That the company promised and agreed to deliver to defendant the certifl. cate of his stock at a place named ; that it failed to so deliver the stock, though often demanded; that when it should have been delivered the stock was worth par, but had now become worthless, etc. Held, that the written subscription and the deed constituted an entire contract between the parties, and that their terms could not be varied by proof of any parol agreement or negotiations which preceded or accompanied the making of the written contract. Held, also, that the accept- ance of the writings bound the company to the written terms of the contract. Cincinnati, Union and Ft. Wayne B. B. Co. v. Pearce, 28 Ind., 503. 1867. 22. Fee simple. A conveyance of land to a grantee and his heirs creates a fee simple title, both at law and in equity. Mercier «. Missouri Biver, etc., B B. Co., 54 Mo., 508. 1874. 23. Form. A corporation may execute a deed in these words: " In testimony whereof, said party of the first part have caused these presents to be signed by their president, and their common seal to be hereto affixed. A. B., president," and seal. Haven v. Adams, 4 Allen (Mass.), 80. 1802. 24. — No precise technical words are re- ciuired to make a stipulation in a deed or contract, precedent or subsequent. The pre- cedency of conditions depends upon the order of time in which the intent of the transaction requires their performance. ParmeUe d. Os- wego and Syracuse B. B. Co., 6 N. Y., 74, 1851 ; Samev. Same, 7 Barbour (N. Y.), 599, 1850. CONVEYANCE. 163 Incumbrances — Specific Performance. 25. Incumbrances. One who receives a conveyance of lands with covenant against incumbrances, and gives back a mortgage for the purchase price, cannot^ in a suit to fore- close his mortgage, set off the amount of pior incumbrances whicli he has neither paid, nor sliows that he has been or is in danger of being damnified by. Qhriggi i>. Detroit and Milwaukee B. B. Co., 10 Mich., 117. 1863. 26. — And he does not show that he was damnified by setting up the foreclosure in chancery of an incumbrance, and the sale of the mortgaged premises, but without alleging that he was a party to the suit or in any way bound thereby. lb. 27. — But he may afterwards pay off the prior mortgages and then file his bill to have the sums so paid set off and deducted from the amount of the decree. The former suit was held not to bar such a proceeding. De- troit and Milwaulcee B. B. Co. v. Griggs, 12 Mich., 45. 18fi3. 28. — The purchaser in such case is not con- fined to his remedy upon the covenants. li. 29. — right of way. Section 8 of the act chartering Platte County Kailroad, notwith- standing the language therein employed, did not contemplate the investiture of a technical fee simple title in that road, of land con- demned. Nothing more than an easement passed to the company under that act. And the grantor of land, a portion of which had been vested in that road by virtue of statutory condemnation and decree had, prior to the date of the deed, would not be liable to the grantee on his covanant of seizin for the land so appropriated. Kellogg i>. Malin, 50 Mo., 496. 1872. 30. — The occupancy of land, under pro- ceedings for condemnation, by a railroad com- pany, constitutes merely an easement thereon, and not an ownership in fee simple. Ih. 31. — The occupancy of land by a railroad track is such an incumbrance thereon as would render the grantor liable on his cove- nant against incumbrances. And his liability is not discharged by the fact that the grantee, at the date of the deed, was aware of the ex- istence of the incumbrance. lb. 32. — If the owner of a tract of land sells it, giving a contract for a deed of general warranty, to be made on final payment, and between the sale and the making of the deed a portion of the premises is condemned for a railway track, the incumbrance thus created is not one for which damages can be recov- ered in an action on the covenants in the deed. Stevenson r>. Loehr, 57 111., 509. 1871. 33. — If the damages are paid in special benefits to the land, the vendee is regarded as having received, in that manner, the consid- eration for the condemned portion. lb. 34. Notice. The president of a corpora- tion executed to certain of its directors a mortgage of land, to which his wife had an equitable claim, by virtue of an unrecorded deed to her. Held, that having acted in the transaction not for the corporation, bvit solely for himself, his knowledge of his wife's equi- ties is not the knowledge of the company, and cannot affect its rights, unless shown to have been communicated to it. Winchester V. Baltimore and Siisqtiehanna B. B. Co., 4 Md., 331. 1853. 35. Reservation; right of way. Where one conveyed a farm, describing it by metes and bounds, with full covenants of warranty, but the deed contained the following reserva- tions or exceptions : " Eeserving to the pub- lic the use of the road through said farm ; also reserving to the White Mountains Kail- road the roadway for said road, as laid out by the railroad commissioners ; and also reserv- ing to myself the damages appraised for said railroad way by the commissioners and select men." Held, that the intention of the grantor must have been to convey to the grantee the lands over which the public highway and railroad had been laid out and established, subject only to the easement or right of way of the public in the highway, and of the rail- road corporation in the railroad way, as laid out by the railroad commissioners, reserving to himself the unpaid damages awarded by the commissioners and selectmen for the lay- ing out of the railroad way. Bichardson o. Palmer, 38 N. H., 213. 1859. 36. Specific performance. When a cove- nantee, in a joint covenant, for the convey- ance of real estate, is ready and willing to pay the purchase money at or within the time limited, and the agent of the covenantors to receive it cannot be found, or the heir of one of them, by reason of nonage, cannot execute a proper deed, a formal tender of the money is not necessary ; but a petition may be filed 164 CORPORATIONS- CORPO KATE POWERS. Domicil — Abuse or misuse — General Powers. for a con-veyanco, offering to bring the money into court. Ohio and Mwniesippi B. B. Co. v. Orary, 1 Disney (Oliio), 128. 1856. CORPORATIONS. [The Torlons matters pertaining to railway corpora- tions will tie foun(l distributed throughout this book under other headings. Only such matters are com- piled under the present title as could not be appropri- ately assigned elsewhere.] 1. Domicil. A corporation exists only by law, and has no legal existence beyond the Ijounds of the sovereignty by which it is cre- ated. It must dwell ill the place of its crea- tion. Ohio and Miesitsippi B. B. Oo. v. Wheeler, 1 Black, 286, 1861 ; Land Grant B. B. Co. v. Oomminsionen, 6 Kan., 245, 1870. 2. — Where a corporation is created by the laws of a state, the legal presumption is, that its members are citizens of the state in which the corporation exists. 76. 3. De facto. If a corporation de facto is in the actual possession of a public highway, under a grant of a franchise to improve and collect tolls on the same, a mere trespasser cannot justify his entry thereon on the ground that it was only a corporation de facto, and was not de jwe entitled to the franchise. Stockton, eta., Oo. v. Stockton and Ooppernpo- lis B. B. Co., 45 Cal., 680. 1873. 4. Name. A corporate name will be pro- tected like a trade mark. Newby v. Oregon Central B. B. Oo., 1 Deady (IT. 8. D. C), 600. 1869. 5. Corporate snccession. Under the legis- lation of Minnesota, the Milwaukee & St. Paul R. R. Co. is the lawful successor of the right of way obtained ty its predecessor, the Minn. Cent. R. R. Co. Secomle v. Milwaukee amdSt. Paul B. B. Co., 2 Dillon (TT. 8. C. C), 469. 1873. CORPORATE POWERS. See Baooaob; CnARTBn; CovvBcnsa Likes; Emi- KBUT DOMAIW; IlfrlUBIES TO ElIPI,0TB8 ; iNJUniBS TO Pasbbwoebs; Municipal Cobpobatioms ; Ekal ESTATB ; SUBBCniPTIOMS BY ClTIBS ; SUBSOnn-TIONS BT COUKTIKS; SUBSOBIPTIOSS BT ISMVIDHAI.i. 1. Abuse or misuse. There can be no abuse of corporate authority without a posi. tive act of malfeasance. And to furnish ground for a forfeiture, it must have been willful. Abuse also includes misuse. Balti- more 1). ConnellBville, etc., B. B. Co., 6 Philadel- phia Rep. (Penn.), 190, 1866. 2. Acts done without authority. Where a corporation has purchased property for a purpose, which perhaps was not authorized by its charter, but neither the state nor stock- holders have objected thereto, and afterwards sold the same property to the defendants, held, that if the plaintiff had exceeded its au- thority in the purchase of such property, that would not, in this case, constitute a defense to an action brought to recover the price of the property and for repairs the plaintiff had made on the property at the request of defend- ants after the sale. Butlcmd and Burlington B. U. Oo. V. Proctor, 29 Vt., 98. 1856. 3. Change of route. A corporation, ere- ated for the purpose of constructing a rail- road between certain termini, will be en- joined, at the instance of a stockholder who has not assented thereto, from using the funds of the corporation, or pledging its credit, for the purpose of extending the road beyond such termini. This role is not changed by the fact that the extension was authorized by the legislature and approved by a majority of the stockholders. (U. 8. Cir. Ct.) Stevent v. Butland and Burlington B. B. Co., 29 Vt., 54.5. 1851. 4. Collateral issues. The question whether an incorporated company has been regularly organized, so as to give it power to act, can- not be inquired into collaterally. It must be by a direct proceeding. Wight rs. BMhy B. B. Co., 16 B. Monroe (Ky.), 4. 1855. 6. Compromise. As an incident of the power of the corporation to conduct its busi- ness, it has power to compromise disputes and may release a part of a doubtful claim to secure the residue. Philadelphia and We»t Chester B. B. Co. v. Jlideman, 28 Penn. St., 818. 1857. 6. General powera. The powers and du- ties of corporations discussed. Sissell v. Michigan Southern and Northern Indiana B. B. Co., 22 N. Y., 258. 1860. 7. — A corporation possesses only the pow- crs expressly granted in its charter, and such CORPORATE POWERS. 165 Real Estate — Steamboats. as are necessary to carry into effect the powers expressly granted, and such as are necessary to the enjoyment of some specifically granted right, without which the right would fail. 2 Kent's Com., 298; 7 How. Miss., 330; 35 Miss., 680. Mobile and Ohio JR. S. Co. v. Franks, 41 Miss., 494, 1867 ; Camden and Amb<„ 11. R. Co. «. Bemer, 4 Barbour (N. Y.), 127, 1848. 8. — A railroad corporation is no exce;;tion to the rule requiring a strict construction of corporate powers. Gity of Baltimore v. Balti- more and Ohio B. B. Co., 21 Md., 50. 1863. 9. — Incorporated companies arc not part- nerships, but are to be treated with reference to the objects of their creation, and to the express powers with which the legislature may have invested them ; and to that extent, the general law of partnership is superseded by the charter. Purton v. New Orleans and CarrolUon B. B. Co., 3 La. An., 19. 1848. 10. Real estate. A coi-poration, although created but for a limited period, may acquire title in fee to lands for its use. Nicoll v. New York and Erie B. B. Co., 12 K. Y., 131, 1854; Same v. Same, 12 Barbour (N. Y.), 460, 1852. 11. — A deed to a railroad company which is incorporated for a term of fifty years, grant- ing lands to it and its successors, will convey an estate in fee. lb. 12. — A corporation chartered in another state has the right to hold lands in Vermont. State e. Boston, Concord and Montreal B. B. Co., 25 Vt., 438. 1853. 13. — The statutes of Indiana and the decisions of the courts of Indiana considered, and the conclusion reached that, so far as the question depends upon the laws of Indiana, a railway corporation is competent to take lands in that state, in payment of, or security for, debts due it there. Thompson ».' Waters, 25 Mich., 214. 1872. 14. — The question whether a railroad com- pany, organized under the laws of the state of Indiana, is competent to take the title to lands in the state of Michigan, is one which depends, first, upon the laws of Indiana, and second, upon the laws of Michigan, and the public policy indicated by its legislation. Tb. 15. — Depots, car and engine houses, tanks, repairing shops, houses for bridge and switch tenders, coal and wood yards, arc necessary appendages to the operations of a railroad and transportation company, and its power to hold land for these purposes will be implied without an express grant in its charter; but lands for dwellings for employes, for car or locomotive factories, coal mines and matters of that kind, are things of convenience and not of necessity. The State v. Commissioners of Mansfield, 3 Zabriskie (N. J.), 510. 1852. 16. Restrictions. The purchase of a lot of cotton by a railway company, chartered in Mississippi, from a person residing in Louis- iana, is not affected by the prohibitions of the act of 1855, which provides, that " no corpo- ration shall engage in mercantile or agricul- tural business, nor in commission, brokerage, stock jobbing, exchange, or banking business of any kind." This provision only refers to buying and selling merchandise as an em- ployment. Qraham, and Anderson r). Hen- dricks, 22 La. An., 523. 1870. 17. Right of way. A contract between individuals and a railway company to secure the right of way for such company over a line which it is not authorized to build upon, and to procure the necessary legislative authority to construct such line, is not an unlawful con- tract. New Haven and Northampton B. B. Go. V. Hayden, 107 Mass., 525. 1871. 18. Right to convey property and fran- chise. Whether or not a corporation, with a railway franchise attached to it, has power to convey away the railroad and the franchises attached to it, is a matter between the state and the corporation, with which third persons have nothing to do. Arthur ». Commercial and B. 3. Bank of Vicksburg, 9 Smedes & Marshall (Miss.), 394. 1848. 19. — A company authorized to build a railroad, and failing to obtain pieans, con- tracted with an individual to build a railroad solely for his own use, on a part of the route. Held, that the company had no power to make such contract, and the individual could not build such road. Stewart and Foltz's Appeal, 56 Penn. St., 413. 1867. 20. — A bill in equity will lie to restrain such person from operating the road, and to rera(>ve it; the company is not a necessary party. lb. 21. — A grant of corporate powers cannot be sold or assigned without express author- ity, lb. 22. — Steamboats. If a railway company be authorized by law to " contract for trans- 166 COSTS. Agreement — Demurrer. porttttion and delivery of, and to transport and deliver persons and properly conveyed over its road beyond its termini," the purchase of a steamboat by the company for the pur- pose of transporting freight and passengers from the terminus of its road to the lino of another, is not ultra vires, and a note given by the company in consideration of such pur- chase is valid. Shawmut Bank v. PlatUhurgh and Montreal B. R. Co., .31 Vt., 401. 1859. 23. — Where two separate corporations ■were created to build railways, they had no right to unite and conduct their business un- der one management; nor had they the right to establish a steamboat line, to run in connec- tion with railroads. Pear ce V. Madison R. B. Co., and Peru and Indianapolis R. R. Co., 21 Howard, 441. 1858. 24. — Notes given for the purchase money of the steamboat cannot be recovered upon. lb. COSTS. See Apphal; Eminent Domain; Masteb in Chan- OUET. 1. Agreement. Wliere the attorneys of the respective parties agree that the costs of a term or circuit, at which the cause is noticed, shall abide the final event of the action, the agree- ment should be enforced, without limit to three calendar fees. Emmons v. New York and Erie R. R. Co., 17 Howard's Pr. (N. Y.), 490. 1858. 2. Appeal. An order, made at a special term, refusing to dismiss a complaint on the grounds that the plaintiffs had not given se- curily for costs, is not appealable. Tyrone and Lock Haven R. R. Oo. v. Schenck, 18 How- ard's Pr. (N. Y.), 375. 1859. 3. — An appeal from an order of confirma- tion of tlie taxation of costs will not be heard in the supreme court. The appeal should be from the judgment. Minnesota Valley R. R. Oo. V. Flynn, 14 Minn., 552. 1869. 4. — On appeal from an order, the court may allow the successful party the disburse- ments for printing the papers and points. Erie R. B. Oo. v. Ramsey, 10 Abbott's Pr., N. S. (N. Y.), 109. 1870. 5. Arrest of Judgment. When judgment is arrested for a defect in the declaration, ap- parent upon the record, and one for which a plea in abatement or a demurrer would have been sustained, that fact may aflford a reason why the couit in its discretion should disal- low or limit costs on arrest of judgment. Bel- knap V. Boston and Maine R. R. Oo., 48 N. H., 888. 1869. 6. Assessment of damages — right of way. A land owner is entitled to the costs of an application, under the Gen. Sts., ch. 68, § 22, for a jury to assess damages for the tak- ing of his land by a railroad company, if the jury find in his favor for any amount, though they assess the damages at a less amount than tlie county commissioners have done. New Haven and Nortliampton Oo. v. Northampton, 102 Mass., 116. 1869. 7. — The costs of an application to county commissioners to estimate damages for the taking of land by a railroad corporation, un- der the Gen. Sts., ch. 68, § 21, are to be taxed by the commissioners, and not by the superior court or this court. lb. 8. — Where, under the charter in this case, the railway company appeals from an assess- ment of damages, and tlio amount of the as- sessment is reduced upon such appeal, the owner of the land must pay tlie costs of the proceedings on appeal. Leak v. Belma, Rome and Dalton B. R. Co., 47 Ga., 845. 1872. 9. Assignment. Where, when the action is pending, a cause of action becomes, by assignment, the property of a person not a party to the suit, the assignee is liable for costs under § 821 of the Code, if lie would have been liable if he had brought the action. Oonger v. Hudson River R. R. Oo., 7 Abbott's Pr. (N. Y.), 256. 1859. 10. Consolidation of causes. Where, on consolidation, some of the actions are discou- tinued, and only the consolidated action re- mains, the costs in the discontinued actions cannot be included in the consolidated action, even though it embrace the causes of action in those discontinued. Blake v. Michigan Southern and Nortliern Indiana R. R. Oo., 17 Howard's Pr. (N. Y.), 238. 1858. 11. Demurrer. Where a decision is made upon demurrer, allowing a plaintiff to amend or plead over, upon payment of costs, the costs are to be construed single costs. Sara- toga and Washington R. R. Oo. «. McCoy, 7 Howard's Pr. (N. Y.), 191. 1852. COSTS. 167 Execution — Reference. 12. Execution. If an execution is placed in tlie hands of a sheriff, and is afterwards settled by the parties, either by payment of the claim or otherwise, so that a sale is ren- dered unnecessary, the sheriff is entitled to one-half of the amount of percentage allowed in cases of sale. Sturges v. Lackawanna and Western B. R. Co., 3 Butcher (N. J.), 424. 1859. ] 3. Extra allowance. It is not necessary that an application for an extra allowance should be made at the trial of the cause. It niay be made subsequently ; but must be made before the same judge who tried the cause. Saratoga and Washington li. R. Co. v. McCoy, 9 Howard's Pr. (N. Y.), 339. 1853. 14. — An order for extra allowance may be appealed from. People «. New York Central R. R. Co., 80 Howard's Pr. (N. Y.), 148, 1865; People V. Nm Torh Central R. R. Co., 29 N. Y., 418, 1864. 1 ,5. — The facts authorizing an extra, allow- ance under § 309 of the code — considered. Woods ■». Illinois Central R. R. Co., 20 How- ard's Pr. (N. Y.), 285. 1861. 16. — Tlie value of the property to be di- rectly affected by the result affords the proper basis for computing the percentage of an extra allowance. People v Albany and Vermont R. R. Co., 16 Abbott's Pr. (N. Y.), 465. 1862. 17. Former suit. Where a town had a remedy against a railroad company for dam- ages paid by the town for a defect in a road built by the company in lieu of an old road taken by it for its track, it was lield, that the town might also recover of the company the costs and expenses incurred in defending the suit against it for such damages, the company having been notified ot the suit and having declined interfering. Duxbury o. Vermont Cen- tral R. R. Co., 26 Vt., 751. 1854. 18. Irrelevant testimony. The expense of taking irrelevant testimony should be taxed to the party causing it to be taken. Teague •». South Carolina R. R. Co., 8 Richardson's Law (So. Car.), 154. 1855. 19. More than one defendant. When an action is brought against more than one defendant, and the judgment is rendered against but one of them, the costs of suit, made by bringing in the winning defendant, should be taxed to the plaintiff. Union Pacific R. R. Co. V. Homey, 5 Kansas, 340, 1870; See also Albany and West Sloekbridge R. R. Co. v. Cady, 6 Hill (N. Y.), 265, 1843. 20. Mortgage. Where a decree has been entered, but the cause is retained in court for further probable action upon the report of the master in chancery, the costs may be taxed at a subsequent term. Northern Illinois R. R. Co. V. Racine and Mississippi R. R. Co., 49 111., 356. 1868. 21. New trial. What costs the party ob- taining a new trial will be liable for — consid- ered. McQuade v. New York and Erie R. R. Co., 11 Howard's Pr. (N. Y.), 434, 1855; Same «. Same, 5 Duer (N. Y.), 613, 1855. 22. — The costs on appeal, when a new trial is granted, are in the discretion of the court. Kennedy v. Harlem R. R. Co., 3 Duer (N. Y.), 659. 1854. 23. Offer of judgment. An offer made by a defendant under § 385 of the code (to take judgrhent), should be so distinctly and openly made that there should be no doubt or misun- derstanding about it. Post v. New York Cen- tral R. R. Co., 12 Howai-d's Pr. (N. Y.), 552. 1856. 24. Reference. A charge for a copy of the pleadings to be used by referees, is not taxable in suits commenced since the act of May 14, 1840. Barber «. West Stockbridge R. R. Co., 4 Hill (N. Y.), 547. 1843. 25. Security for. A suit commenced by a corporation, without first giving security for the costs, as required by § 2398 of the Code, will be dismissed on motion. Alabama and Tennessee Rivers R. R. Co. v. Harris, 25 Ala., N". S., 232. 1854. 26. — A rule was had on the plaintifi to furnish security for costs, the security was not given, but the cause was tried and judgment rendered in favor of the plaintiff. Held, that it was too late for tlie defendant to complain of the failure to give security after judgment was rendered. Grimball «. Mississippi and Alabama R. R. Co., 3 Smedes and Marshall (Miss.), 38. 1844. 27. — Upon an appeal from the decision of a single judge to the general term, no security whatever is required. Ten Broeck v. Hudson River R.R. Co., 7 Howard's Pr. (N. Y.), 137. 1852. 28. — A party at whose instance a rule for security for costs is granted, may lose his right to have it made absolute, by want of ao- 168 COTTON— CaUPONS. Railway Tickets. tion upon it, or by his own waiver of the right. Mississippi and Alabama B. B. Oo. «. Ballard, 5 Smedes and Marshall (Miss.), 606. 1846. 29. — And it is error to have the cause dis- missed for failure to give security after the party applying for that security has asked that the rule be dismissed. 76. 30. Settlement. Where the defendant in an action settles with the plaintiff, by pay- ment, without any agreement as to costs, the defendant is liable for costs, at least to the date of the settlement. JeffersonvilUB.B. Oo. V. Weinman, 39 Ind., 231. 1872. 31. Sheriff's commission. The sheriff is not entitled to his commission upon moneys paid by the defendant direct to the plaintiff, although it be paid after a levy is made upon sufflcieut property to pay the debt. Wynne v. Mississippi and Tennessee B. B. Co., 45 Miss., 569. 1871. 32. Statute. In an action brought origin- ally in the court of common pleas, on St. 1840, ch. 85, to recover damages of a railway company for injury done by fire from its engines to the plaintiff's land, the plaintiff, if he recovers less than $30 damages, is entitled for his costs, under Rev. Bts., ch. 121, § 3, to no more than a quarter part of the damages, unless the title to real estate is concerned. Blanclw/rd v. fitcliburg B. B. Oo., 8 Cushing (Mass.), 280. 1851. 33. Stay of proceedings. Where, after service of the summons and complaint, the defendant stays the plaintiff's proceedings until the costs of a former proceeding are paid, the defendant cannot move under § 374 of the Code, to dismiss the complaint, where the costs have not been paid and the stay is in force. U'?iger v. Forty-Second Street B. B. Oo., 30 Howard's Pr. (N. Y.), 443, 1866; see Same II. Same, 6 Robertson (N. Y.), 545. 1867. 34. — A stay of all proceedings on the part of the plaintiff in a second action, will be or- dered until all the costs of the first suit for the same cause are paid, and also the costs of the motion to stay; Udwards v. Ninth Avenue B. B. Oa., 23 Howard's Pr. (N. Y.), 444. 1860. 35. Tender. A tender of money to the owner of land, for the damages sustained for right of way, need not be brought into court, or pleaded, if not accepted ; and on trial, if the owner of the land recovers less than the amoimt tendered, he takes his damages with- out costs. Wineliddle v. PennayVoania B. B. Oo., 2 Grant's Cases (Penn.), ?2. 1852. 36. Witnesses. The successful party to a suit in the circuit court is not allowed to re- cover the fees of more than four witnesses, un- less the court shall certify that a gi-eater num- ber was really necessary. Peoria and Bureau Valley B. iJ, Oo. v. Bryant, 15 111., 438. 1854. 37. — Where a witness has been examined out of the district by commission, and he after- wards attends under a subpoena and is exam- ined on the stand, the costs of the commission cannot be taxed. OreerwUle and Oolumbia B. B. Oo. V. Ohoice, 7 Richardson's Law (So. Car.), 40. 1853. 38. — It is competent for the district court to adopt a rule limiting the right of witnesses, subpoenaed and attending court in several cases at the same time, to fees for mileage and attendance in one case only. Meff'ert v. Du- buque-, B. and M. B. B. Oo., 34 Iowa, 430. 1873. COTTON. See Cabbuqe of Mebchakdise. COUNTERFEITING. 1 . Railway tickets. The fraudulent coun- terfeiting of a railroad ticket is forgery at common law. Oommonwealth v. Bay, 3 Gray (Mass.), 441. 1855. 2. — In an indictment fur forging a railroad ticket, expressed on its face to be " good this day only," a description of the ticket as signi- fying to the holder that it must be used con- tinuously, and without stopping at intermedi- ate stations, after once entering the cars, is a fatal variance. lb. COUNTY. i SUBSCtllPTIONS BY COUNTIBBa COUPONS. See Hobtoase; Tiokkts. COURT — CUSTOM. 169 Adjournment — Duty of Railway Companies. COURT. 1. Adjournment. A court legally opened for all general purposes continues in session until it adjourns sine die, or expires by law, and when an adjournment is made from Sat- urday till Monday, and from unavoidable cause does not convene until Wednesday, the term not having then expired by law, the court is legally constituted, and its acts are valid and binding. Union Pacific R. B. Go. ■». JSawd, 7 Kans., 380. 1871. CREDITOR'S BILL. 1. Decree. The decree obtained upon a creditor's bill filed against a corporation, and founded upon the return of an execution unsatisfied, is a decree not only for the benefit of the complainant in such bill, but also for the benefit of all other creditors of the corpo- ration who may come in and establish their debts under such decree. Morgan v. New York and Albany M. S. Co., 10 Paige Ch. (N. Y.), 390. 1843. 2. Lien. Upon the commencement of a credit6r's suit, the plaintiflfe therein obtain a lien on all the choses in action of the judg- ment debtor. Boberts «. Albany and West Stockbridge B. B. Go., 25 Barbour (N. Y.), 662. 1857. 3. Stockholders. A bill in chancery in the form of a creditor's bill will lie against the stockholders of an incorporated company to subject unpaid subscriptions of stock. Henry V. Vermillion and Ashland B. B. Go., 17 Ohio, 187. 1848. 4. — The stockholders may be proceeded against in this way, though they omitted to pay at the time of subscription the five per cent, required by the charter. lb. 5. — An agreement attempting to sectwe any stockholder the privilege of paying up sub- scriptions in store goods or otherwise, except in money, wiU be treated as a fraud upon other stockholders, and payment in money enforced. lb. 6. Supplemental proceedings. Proceed- ings supplemental to the execution established by the code, are a substitute for an action by creditor's bill, and constitute the only manner of obtaining the relief formerly held under a creditor's bill. QraJiam v. La Grosse and Mil- waukee B. B. Go., 10 Wis., 459. 1860. CRIMINAL LAW. See Highways; Ihdictment; Ikjuries to Pass- ENGEBS. CROPS. See iKjuEiEs TO Ceops. CROSSINGS. See Eminent Domain; Hiqhwat; Injunction; Pbi- TATE Wats and Cbossingb; lK,njEiEs to Febsons ON THE TbACK. CULVERTS. See Bbidges. 1. Duty of railway companies. The en- trances of a culvert in this case were subject to the company's control as part of its road- bed. The right of the corporation to enjoy the use of its roadbed as an easement, carries with it an obligation to use reasonable dili- gence to keep the culvert unobstructed, so that detriment to the owners of the land might be avoided so far as practicable. West and Brother 11. Louisville, Gincinnati and Lexington B. B. Go., 8 Bush (Ky.), 404. 1871. CUSTOM. See Cabbiaqe o^ Mebchandise. 170 DAMAGES. Child — Draw-bridge. DAMAGES. Sec BAoaAois; Boats; CAnnrAois of Live Stock; Cabbiaoe Off Mebohandisb ; Contbacts ; Bminent Domain; Injubibb to Employes; Injubibs to Fabsemoers; Injdbieb to Febbons Cbossinq the TlUOK. [The various cases In which the measure of damages will be found discussed arc arranged under other titles through this book. It has been deemed best to sub- divide this title as far as convenient and to arrange the cases under the other titles.] 1. Child. Both principle and authority concur in maintaining that a jury would have the right, acting upon their own knowledge and without proof, to say that the services of a boy from eleven until twenty-one years of age were valuable to his father, and to esti- mate their value. Sheridan v. Brooklyn Oity R. B. Oo., 36 N. Y., 39, 1867; O'Mara v. Hud- son Biver B. B. Co., 38 ib., 44.5, 1808 ; Drm v. Sixth Avenue B. B. Co., 26 ib., 49, 1863 ; Mcln- tyre v. New Torh Central B. B. Co., 37 ib., 387, 1867. 2. Construction of railways. In an action against a railway company to recover dam- ages on account of its preventing the perform- ance by the plaintiflf of a contract for the construction of the road, the difference be- tween the amount of the principal contract and ot subcontracts, entered into by the plaintiff with other persons for the perform- ance of the work, does not constitute tlie proper measure of damages. Story u. New York and Harlem B. B. Co., 6 N. Y., 85. 1851. Reversing New York and Harlem B. B. Co. v. Story, 6 Barbour (N. Y.), 419, 1849, inasmuch as the judgment could not be aflSrmed in part and reversed in part. 3. Death. The question, "What did the deceased usually earn ?" is proper, as being an inquiry of importance in forming an esti- mate of the pecuniary loss sustained by the next of kin. Mclntyre v. New York Central B. B. Co., 37 N. Y., 387, 1867; Same v. Same, 47 Barbour (N. Y.), 515, 1867; Same v. Same, 85 Howard's Pr. (N. Y.), 36, 1867. 4. — minor. Under §§ 13 and 13, ch. 135, R. 8., the damages for injuries to the person of a minor resulting in his death, are only the actual pecuniary damages resulting to the parents from the injury. Potter v. Chicago and Northwestern B. B. Co., 31 Wis., 873. 1867. 5. — The pecuniary advantage of the life of the deceased after his majority, can only be considered after proof of the indigent or dependent condition of the parents. IT). 6. — A verdict against a railroad company for $8,775, for negligently causing the death of a girl ten years old, was set aside as excess- ive, the evidence showing no ground for extraordinary expectations of pecuniary ben- efit from continuance of life. Potter v. Chi- cago and Northwestern B. B. Co., 33 Wis., 616. 1868. 7. — A verdict for more than $3,000 in such case will be sot aside. Ib. 8. — The court will not in such a case allow a part of the damage to be remitted, and afSrm the judgment as to the remainder. Ib. 9. — wife. In an action brought by a hus- band for the death of bis wife by negligence, the court charged : " That damages sliould be given as a pecuniary compensation, the jury measuring the plaintiff's loss by a just estimate of the services and companionship of the wife, of which he was deprived by the accident; tliat is, of tlieir value in a pecuni- ary sense — nothing is allowable for the suf- fering of the deceased, nor for the wounded feelings of the plaintiff. Of course, the juiy will examine the testimony to aid them in ascertaining the damages. But if damages are to be given at all, there is no reason why they should be nominal merely ; they should be a just compensation for the value of the companionship and ser^-ices lost to him by reason of tliis unfortunate collision." Held, not to be error. Pennsylvania B. B. Co. v. Goodman, 63 Penn. St., 839. 1869. 10. Double damages. A statute giving double damages is penal and its repeal after a verdict but before judgment will defeat the right of the plaintiff to recover thereunder. Bay City and Hast Saginaw B. B. Co. v. Austin, 31 Mich., 390. 1870. 11. Draw-bridge. A child of nine years of age, who, in the daytime, jumps from a sidewalk, lawfully constructed by a railway company on the side of its railway bridge, upon the properly constructed draw, while the same is being lawfully closed, is so wanting in ordinary care and prudence as not to be entitled to maintain an action for the injury resulting therefrom. Brown v. European and North American B. B. Co., 58 Maine, 884. 1870. DAMAGES. 171 Duty of Injured Party — Excessive Damages; not excessive. 12. Duty of injured party. A party is liable for all the damages which are the proxi- mate result of his violation of his contract ; but- the other party is bound to use due dili- gence in preventing loss. Cincinnati and Ohi- cago B. B. Go. v. Badgers, 34 Ind., 103. 1865. 13. Excessive damaj^es. A verdict for damages occasioned by an accident on a rail- road, of more than double the amount which could, by law, have been awarded if the acci- dent had proved fatal to the plaintiif, presents a proper case for the interference of the court ; as where in a case of no peculiar aggrava- tion, or gross negligence on the part of the de- fendant $11,000 damages were allowed. Gol- Uns ■». Albany and Sclienectady B. B. Co., 12 Bai-bour (N. Y.), 493. 1853 ; see Same v. Same, 5 Howard's Pr. (N. Y.), 435. 1851. 14. — Where a party sustained actual dam- ages in the loss of time and injury to his team to tlie amount of about $600, and lost the toes ofif of his left foot, by a collision with a train at a crossing, the injury not being the re- sult of the willful act of the railway company, a verdict of $5,875 was held to be outi'ageously excessive. Chicago and Bock Island B. B. Co. V. MeKean, 40 111., 318. 1866. 15. — In the absence of any evidence show- ing willfulness or wantonness, a verdict of $35,000 for an injury rendering a person a cripple for life, was held excessive. Chicago and Northwestern B. B. Co. v. Fillmore, 57 111., 365. 1870. 16. — The plaintifiF, who was by trade a cooper, and by occupation a teamster, received persona] injuries, resulting in the loss of a hand. For these injuries he recovered a verdict for $8,000. There was very little evidence as to the plaint iflf s former or present capacity for labor, and none as to the amount of his ordinary wages or earnings, either before or since the acci- dent; or as to the extent of his bodily suffer- ing ; or to show that he was not now in good health. Nor did it appear how long he was laid up and absolutely incapacitated for labor ; nor what was tlie amount of his medical or other expenses ; but it did appear he had re- covered so far.as to be able to walk about. Held, that the verdict should be set aside for excessiveness of damages, unless the plaintiff would consent to'reduce such damages to the sum of $6,000. Murray «. Hudson Biver B. B. Co., 47 Barbour (N. Y.), 196. 1866. 17. — Where a brakeman, in attempting t> descend a ladder while the train was in mo- tion, in obedience to a signal ft'om the engi- neer, lost his hold by reason of a defect in the ladder, and fell to the ground, the wheels cf the cars passing over his legs and crushing them so tliat amputation became necessary, a verdict of $18,000 recovered by the brakeman was regarded as so excessive that it should be set aside. Chicago and Northwestern B. B. Co. v. Jackson, 55 111., 493. 1870. 18. — Where plaintiff's ankle was severely sprained, and he was confined and unable to attend to business for about two weeks, and could only get about on crutches for two or three weeks longer; and at the time of the trial, seven months after the accident, his lameness was hardly observable by persons seeing him on the train discharging his duties as a mall agent; and his surgeon thought he would entirely recover; his salary being $1,080 per annum and his medical attendance being $35 ; held, that a verdict of $3,500 was exces- sive. Spieer v. Chicago and NortJiwestern B. B. Co., 39 Wis., 580. 1873. 19. — The supreme court will not grant a new trial upon the ground of excessive dam- ages, unless it appears at first blush that the damages are flagrantly excessive, or that the jury have been influenced by passion, preju- dice or partiality. Kennedy v. North Missouri B. B. Co., 36 Mo., 351. 1865. 20. — not excessive. Where the evidence tended to prove a severe, and probably not per- manent, injury to the plaintiff^s hand and wrist, arising from the defendant's negligence; held, that a verdict for $3,500 ought not to be set aside on the ground that the damages were excessive. Malay s. New York Central B. B. Co., 58 Barbour (N. Y.), 183. 1870. 21. — Where a passenger was carried four hundred yards beyond his destination, and the conductor refused to back his train, but com- pelled the passenger to alight, with his bag- gage in the mud, and the jury found a verdict of $4,500 damages, the court refused to dis- turb the verdict. New Orleans, Jackson and Great Northern B. B. Co. v. Hurst, 36 Miss., 660. 1859. 22. — A verdict for $4,500 for an injury to, the plaintiff, caused by the negligence of the defendant's servants, resulting in the loss of an Mm, will not be deemed excessive. Menie v. 172 DAMAGES. Exemplary Damages — Horses. Second Avenue li. li. Co., 3 Robertson (N. Y.), 856. 1804. 23. — Where injuries sustained by tlio plaintiflf througli tlie negligence of the defend- ant — a carrier of passengers — were of an ex- ceedingly painful and permanent nature, some of the efiects of whicli would probably con- tinue dvu'ing his natural life, and might shorten his existence, and tlie plaintiff was in his early manhood, and engaged in an extensive and lucrative business as a lawyer, which was im- paired by his inability to give it the requisite attention, since his injury, and he was afflicted with bodily derangements that might measui-- ably unfit him for the duties of his profession, ?ield, that under these circumstances, the court had no data from whicli it could say that a verdict for tlie plaintiff for |20,000 was exces- sive. Walker v. Erie li. M. Co., 63 Barbour (N. Y.),260. 1872. 24. — The plaintiff having been confined to his bed for six weeks, suflfering great pain, and unable to attend to business for several months, in consequence of an injury, and loft perma- . nently lame, and obliged to pay from $1,200 to $1,500 for physician's fees and other expenses, it was Jield, that a verdict for $12,000 damages was not excessive, when the nature of the in- jury was considered. Boclcwell v. Third Ave- nue R. B. Co., 64 Barbour (N. Y.), 438. 1878. 25. Exemplary damages; agent. The principal is liable for the acts of his agent to the same extent as if the acts had been done by the principal, and in case of willful or gross negligence of the agent, punitive dam- ages may be allowed. JVeui Orleans, Jackson and Great Northern S. B. Oo. «. Bailey, 40 Miss., 805. 1866. 26. — Vindictive damages cannot be recov- ered for the tortious act of cmyloy6s unless it is shown that the company authorized it be- fore, or approved it after it was committed. Eagan v. Providence and Worcester B. B. Oo., 8R. I., 88. 1854. 27. — Railroad companies are responsible in exemplary damages for the negligent and Wrongful acts of their agents or employds. New Orleans, Jackson and Great Northern B. B. Oo. V. Bailey, 40 Miss., 895. 1866. 28. — To warrant a jury in finding exem- plary damages, either gross negligence, malice, violence, fraud or oppression must be shown to have mingled in the wrongful act. Same v. Statham, 42 Miss., 607, 1869 ; Kennedy v. North Missouri B. B. Co., 86 Mo., 851, 1865 ; Metn- phis and Oharleston B. B. Co. v. Whitfield, 44 Miss., 466, 1870 ; Chicago and Bock Island B. B. Co. V. McKean, 40 111.. 218, 1866. 29. — Exemplaiy damages may be awarded .igainst a railway company for an injury oc- curring Ihrough the gross negligence or drunk- enness of its servants. Beale «. BailroadCo ., 1 Dillon (U. S. Cir. Ct.), 568. 1871. 30. — In all actions of tort against common carriers, the jury are authorized to find oxem- pliu'y damages, when they consider the per- sonal wrong and injury of such a character as, in their judgment, to call for the imposition of such damages. Southern B. B. Co. v. Kendrick, 40 Miss.,' 874. 1866. 31.— pecuniary ability. The pecuniaiy ability of one defendant should not be con- sidered by the jury in determining the exem- plary damages which a codcfcndant shall have assessed against him. Toledo, Wabash and Western B. B. Co. ». Smith, 57 111., 617. 1871. 32. — It is not improper in such cases to allow proof of the pecuniary ability of the defendant. Louisville, Cincinnati and Lexing- ton B. B. Co. V. Mahony's, Adm% 7 Bush. (Ky.), 285. 1870. 33. — passengers. Such damages may be allowed on nccount of (lie conveyance of n passenger to a point four hundred yards be- yond his destination, and compelling him to alight there, and it is proper in allowing such damages to consider the pecuniary means of the defendant. New Orleans, Jackson and Great Northern B. B. Co. v. Hurst, 80 Miss,, 660. 1850. 34. — common carriers. It was held im proper to charge Uio jury that " in all actions against common carriers, the jury, in their dis- cretion, are to weigh all the circumstances of the case, and arc to find exemplary damages when they consider the personal wrong of such a character as, in their judgment, to call for the imposition of exemplary damages." Mem- phis and Charleston B.B. Co. «. WJUtfleld, 44 Miss., 466. 1870. 35. Horses. In an action to recover for in- juries to a horse, sustained in 'consequence of a defect in a highway, the plaintiff Is entitled to recover the diminution, occasioned by the injury, in the market value of the horse at the commencement of the action, and, in addi- DAMAGES. 173 Interest — Profits. tion, such sums as the plaintiff has paid out in reasonable attempts to cure him, with a rea- sonable compensation for his own services in attempting to cure him, and a reasonable sum as compensation for the loss of the use of the horse while under such treatment; provided, that the whole damages allowed do not ex- ceed the value of the horsfi. Gillett v. Western M. B. Co., 8 Allen (Mass.), 560. 18C4. 36. Insufficient. Damages for a very se- vere personal injury were only assessed at six cents by the juiy. 3eld, that the amount was insuflScient, and a new trial was awarded. Bobbins v. Hudson Simr B. B. Go., 7 Bosworth (N. Y.),l. 1860. 37. Interest. Interest may be considered as an element of damages, in order to arrive at what will be just compensation for the in- jury sustained, when it would not be proper to allow it eo nomine. Bidhmond «. Dubuque and Sioux City B. B. Co., 33 Iowa, 423. 1871. 38. — And when the jury are instructed, in an action for negligence, to award the dam- ages the plaintiff has sustained, the court may leave it to them to say whether, on such dam- ages, the plaintiff is entitled to interest; but it is erroneous to instruct them as matter of law, that the plaintiff is entitled to interest on the damages. Black is. Camden and Ariiboy B. B. Co., 45 Barbour (N. Y.), 40. 1865. 39. Labor. The damages for breach of a contract by which plaintiff was to receive a certain price for work is the difference be- tween the contract price and what it would have cost to do the work. Wallace v. Tumlin, 42 Ga., 4631 1871. 40. — contract. Where one contracts to employ another for a certain time at a speci- ffed compensation, and dischai-ges him with- out cause before the expiration of the time, he is in general bound to pay the full amount of wages for the whole time. So Jield, where the party was employed as superintendent of a railroad for one year at an agreed salary, and discharged without cause. Coatigan v. Mo- hawk and Hudson B. B. Co., 3 Denio (N. Y.), GOO. 1846. 41. — In an action for damages on a breach of contract for the employment of the plaint- iff at a monthly salary, the plaintiff is enti- tled to recover for services offered to be per- formed, which the defendant refused to re- ceive, the amount of wages that he was to receive by virtue of his contract. Hunting- ton V. Ogdensburg and Lake Champlain B. B. Co., 38 Howard's Pr. (N. Y.), 416. 1867. 42. Occupation of injured party. In an action brought by a traTjeler on a highway against a railroad company, to recover dam- ages for personal injmy occasioned by the engine of defendant, the plaintiff's occupa- tion and means of earning support are not ad- missible in evidence to, increase the damages, if not specially averred in the declaration. Baldwin v. Western B. B. Co., 4 Gray (Mass.), 883. 1855. 43. Personal iiyury. In an action to re- cover for personal injuries, evidence of the amount the plaintiff is earning at his trade, at the time of and immediately preceding the accident, is admissible upon the question of damages, Beisiegel v. New York Central B. B. Co., 40 N. Y., 9. 1869., 44. — The plaintiff was a peddler ; evi- dence of the annual amount of his sales and the profit he made, tended to show the amount he might have earned if he had been able to attend to his business, and was admissible. Hanover E. B. Co. •». Coyle, 55 Penn. St., 396. 1867. 45. — pain. In an action against a railroad company for damages resulting from a collis- ion caused by a negligence of the defendant's servants, the bodily pain and suffering of the plaintiff, from the injuries, are proper subjects for compensation. Bansom v. New York and Erie B. B. Co., 15 N. Y., 415. 1857. 46. — The damages recoverable for bodily pain and suffering, by a person injured by the negligence of another, are not limited to that incurred before the trial, but extend to such future suffering as the evidence renders it rea- sonably certain must necessarily result from the injury. Curtis v. Boeliester and Syracuse B. B. Co., 18 N. Y., 534, 1859; Same v. Same,- 30 Bai-bour (N. Y.), 383, 1855. 47. — For injuries to his person caused by defendant's negligence, plaintiff is entitled to recover not only his actual pecuniary loss (including the value of the time lost, expenses of medical service, etc.), but also for bodily suffering, lameness or other inconvenience, as, from the evidence, appears to be reasonably certain to result tlierefrom. Spicer v. Chicago and Northwestern B. B. Co., 29 Wis., 580. 1873. 48. Pi'oflts. When one contracts to per- 174 DEAF PERSONS -DEDICATION. Public Square, form work for another, at a stipulated price, and is prevented by liim from entering upon the performance, the measure of damages is the profits the party would have, made. George 13. Oalumba and Marion li. S. Co., 8 Ala., N. S., 284. 1845. 49. Statutory limitation. A right to re- cover damages for negligence having accrued, the amount of the recovery cannot afterwards be limited by act of the legislature. Kay v. Pennsylvwnia B. B. Co., 65 Penn. St., 200. 1870. 50. Stock subscriptions. Upon a breach of a contract by which defendant agreed to take stock in a railway company which plaint- iffs should subscribe for for that purpose and make certaiii payments upon, the damages are not limited to the difference between the price agreed and the actual value. Orr v. Bigelow, 14 N. Y., 556, 1850 ; Same «. Same, 30 Barbour (N. Y.), 21, 1854. 61. Time spent in search of property. In a suit for damages sustained in the loss of certain mules by the neglect of the defendant, and for expenses incurred in the search and recovery of a part of them, it was held, that it was proper first, to show what the 'expenses were, and afterwards to enquire if they were reasonable. North Missouri B. B. Co. v. Mers, 4 Kan., 453. 1868. 52. Torts. In actions for tort, the jury have the exclusive power to determine the amount of damages. SoutJiern B. B. Co. v. Xendricic, 40 Miss., 374. 1866. 53. — No precise rule of damages is fixed in case of personal torts, but the amount is left to the unbiased judgment of the jury. Wheaton v. North Beach and Mission B. B. Co., 36 Cal., 590. 1869. 54. — In such case, the verdict will not be set aside as excessive unless the amount is so large as to induce a reasonable person, upon hearing the circumstances, to declare it out- rageously excessive, or as to suggest at the first blush, passion, prejudice or corruption on the part of the jury. lb. 55. Water — damage by. In an action brought to recover damages for injuries done to the plaintiff's grounds, fruit trees, etc., by 'water alleged to have been turned upon the plaintiff's land by the defendant, in construct- ing a railroad, it is proper to charge the jury that the rule of damages in that class of cases is the difference between the value of the plaintiff's premises before the injury happened, and the value immediately after the injury, taking into account only tlio damages which have resulted from defendant's acts. Ofiase v. New York Central B. B. Co., 24 Barbour (N. Y.), 278. 1857. DEAP PERSONS. Soo iNJcniEs TO Pbbsons on the Tiuck. DEATH - INJURIES CAUSING. See CoDTBACTons ; Bamaokb; Fedebal Couht? ; Hus- band AND Wife; Injubibs to Emplotes; Injubies TO Pebrons ; Injubibs to Pebsons on the Tback ; Injuries to Pabsenoebs. DECREE. SeeMoBTQAOE. DEDICATION. See Depot; Hiohwats. 1. Public square. The facts upon which a claim of dedication of land by a city for a public square were held insufficient to support such Claim — considered. Pitcher i). New York and Erie B. B. Co., 5 Sandford (N. Y.), 587. 1851. 2. — To constitute a dedication, there should be a clear intention to devote the ground claimed to have been dedicated to the use of the public. Indianapolis and Bellefontaine B. B. Co. V. Indianapolis, 13 Ind., 620. 1859. 3. — Square 50 in the town of Indianapolis was dedicated to the public as a market space by the action of the commissioners appointed to lay off said town, pursuant to the act of 1871. (Acts of 1831, p. 44, § 4.) By an act of 1837, the south half of. said square was ex- changed for a part of the north half of square 48, and deeds in fee simple made. The deed DEED OP TRUST— DEFAULT. 175 Official Bonds — Dismissal — Statute. to the town of Indianapolis, though it recites that it was given in consideration of the south half of square 50, does not express the pur- pose of the grant. Held, that by the act of 1837, the part of square 40 was dedicated to the public in lieu of the half of square 50 ; and that act, being a public one, entered into and formed a part of the deed, and rendered a statement in the deed of the purpose of the grant unnecessary. Ih. 4. — Said part of square 48, having been so dedicated, it could not be sold on an execution against the corporation of Indianapolis. lb. DEED OF TRUST. See MoBTaAOE. DEFALCATIONS. See Agbnot. 1. Official bonds. The rules and regula- ' tions of the company required the president to keep the bonds of the secretary, and required the secretary to give bond in the sum of $5,000. Held, that the president was liable for any loss occasioned by the failure of the secretary to give bond. Pontchartrain B. R. Co. «. Paul- ding, 11 La. (0. S.), 41. 1837. DEFAULT. See Appeal. 1. DismissaL The dismissal of the com- plaint, at the trial of the action, by a justice of the court, upon the plaintiffs submitting to a default, after he has unsuccessfully applied for a postponement, is not conclusive upon him ; and he may apply to another justice of the same court for an order opening the default. Boutmay «. Erie B. B. C->., 9 Abbott's Pr. N. S. (N.Y.),243. 1870. 2, .Judgment. A judgment by default is a confession of the plaintiff's cause of action, but not of any fact necessary to be proved on assessment of damages. Where the amount is, not liquidated, it must be ascertained by the court, unless the party not in default demand a jury. Code, §§ 1838, 1830. Burlington and Missouri Biver B. B. Co. v. Shaw, 5 la., 463, 1857 ; Same v. Marchand, ib., 468. 3. — The clerk may assess the damages where they are a mere matter of computation. Ib. 4. — Where no issue is joined, or judgment by default taken, no judgment can be rendered ag.ainst the defendant. ]!feu> Orleans and Oar- rollton B. B. Go. v. Patton, 2 La. An., 352. 1847. 5. Opening default. An order to show cause is not to be regarded for any purpose as Indicating any opinion of the court on the merits of the application. Thompson v. Erie B. B. Co., 9 Abbott's tr., N. S. (N. Y.), 233. 1870. 6. — A default should be opened up where it was occasioned by an incorrect publication of the time the suit was commenced, in a sheet containing information of court proceed- ings on w^hich the business community gen- erally relied. Watson «. San Erancisco and Humboldt Bay B. B. Oo., 41 Cal., 17. 1871. 7. — Applications to open default are ad- dressed to the discretion of the court, and in case of doubt, the better rule is to decide in favor of the application. Ib. 8. — Where judgment is taken by default against a defendant duly served with process, a motion to set aside the default and permit the defendant to plead to the action, must be supported by affidavit in which the nature of the defense is stated. Toledo, Wabash and Western B. B. Co. v. Gates, 33 Ind., 238. 1869. 9. Pleading. It is not allowable to treat an insufficient answer as a nullity, and render judgment by default, as if no answer was on file. Burlington and Missouri Biver B. B. Co. V. Mareliand, 5 la., 468. 1857. 10. — A motion for a judgment by default, is not the proper mode of objecting to tlie sufficiency of an answer. Ib. 11. — A motion for a more specific state- ment is the proper remedy, where the answer fails to respond specifically to the affirmative allegations of the petition. Ib. 12. Statute. The defendant, by suffering' a default, under the R. S., 1853, admitted the truth and sufficiency of the complaint; but since the statute of 1855, the rule is otherwise. Marion and Logansport B. B. Co. v. Loviax, 7 176 DEFECTIVE MACHINERY — DEMUKBER TO EVIDENCE. Validity — Bill of Lading— Effect. Ind., 406, 1856; Same v. Same, 9 ib., 163, 1857. 13. — The plaintiflf cannot, under the Re- vised C6de, take judgment by default in au action ex delicto, without evidence. The fact that the suit is brought in assumpsit instead of trespass, does not change the rule. The pro- visious of the Code only apply to actions ex contractu. Missiuippi Central R. R. Co. v. i?'ort, 44 Miss., 433. 1870. 14. — It is error to take judgment, by default final, in an action at law, unless it be founded on an instrument of writing, ascertaining the sum due. Hutch., Code, 875. Arringtnn D. Mobile and Ohio R. R. Co., 30 Miss., 470. 1855. DEFECTIVE MACHINERY. See Injubt to IIhflotes ; Intdbies to Pasbsnseiib. DELAYS. See FABSEKaEBB; Cabbiaoe of Livb Stock; Cab- BIAOE 07 MZBOHANDISE. DELIVERY BOND. 1. Validity. An illegal order quashing a forthcoming bond after the return term thereof, being absolutely void, does not affect the va- lidity of the bond. Bell v. Tombighee R. R. Co., 4 Smedes and Marshall (Miss.), 549. 1845. DEMAND. See Bonds or Bailwat Cojipakibb ; Detinde. DEMURRAGE. 1. Bill of lading. A bill of lading was as follows : " Received of the Penn. Coal Co. on board schooner Goodspeed, of which I am master, 153 tons of coal, to be delivered to the N. & W. R. R. Co., or order, at N., they paying freight for the same at $1.40 per ton ; account J. P. 8., Fitchburgh." Held, that under it the railroad company was not a consignee of the coal, and was not liable for damages in the nature of a demurrage. Miner v. Nornjoich and Worcester R. R. Co., 33 Conn., 91. 1864. . 2. Lien. The inconvenience to a railroad company arising from goods being left in its cars for an unreasonable time, is a claim in the nature of demurrage, and no lien exists upon the goods for the same. Orommelin v. New York and Harlem B. R. Co., 1 Abbott's Ct. of Ap. Dec. (N. Y.), 473. 1868. .3. Orders of consignee. Where the con- signce of a cargo requires it to be taken to a particular place, he ought to be held liable for any delay caused at that place for which the vessel cannot be shown to be directly chargeable. Philadelphia and Reading R. R. Oo. V. Northam, 3 Benedict (IT. 8. D. C), 1. 1867. DEMURRER. See Plbadino. DEMURRER TO EVIDENCE. 1. Effect. A demurrer to evidence is an admission of all the facts which the evidence tends to prove, anl is analogous to a demur- rer upon the facts alleged in the pleading. Mohile and Ohio B. R. Oo. v. McAr'thur, 43 Miss., 180. 1870. 2. — When a demurrer to evidence is over- ruled, final judgment may be rendered in ac- tions ex contractu without a writ of enquiry — but in actions ex delicto the only safe practice is to have the damage assessed by a jury. Ib. 3. — In passing upon a demurrer to evi- dence, the court may indulge all the infer- ences of a jury from the facts proved, and in such case, the question for a revising court is very much like that presented when consider- ing the general verdict of a jury. Raiford ». Mississippi Central R. R. Co., 43 Miss., 333. 1870. 4. — Before a party can demur to evidence the facts must be ascertained, found and ad- mitted in the record ; and the demuixant not only admit every fact found, but every con- clusion in favor of the other party which tho evidence conduces to prove, or which the jury might have inferred from it in his favor. Without such admission, the other party is not bound to join in demurrer; neither can this DEPOSITIONS - DEPOT. 177 Affidavit — Objections — Agreement to pay for location. court render any judgment tliereon. Goates V. Oalena and Ohicago Union B. B. Co., 18 la., 277. 1865. 5. When demurrer will lie. When the plaintiflf'a testimony is wholly insufficient to prove the material allegations in his declara- tion, the defendant should demur to evidence. N'ew Orleans, Jackson and Great Northern B. B. Co. V. Enochs, 42 Miss., 603. 1869. DEPOSITIONS. 1 . Affidavit. A party to an action, as well as any other witness, may be compelled to make an affidavit, under subdivision 7 of § 401 of the Code of Procedure. Fisk v. Ohi- cago, Bock Island and Pacific B. R. Go., 3 Ab- bott's Pr., N. S. (N. Y.), 430, 1868; but see contra HodgMn v. Atlantic and Pacific B. B. <7o., 5 ib., 73. 1868. 2. Exhibits. A paper pinned to a deposi- tion, not referred to in it, and without evi- dence that it had been attached by the justice, was not an exhibit sufficiently identified to be admissible in evidence. 'Susqiiehanna and Wyoming Valley B. B. Go. ■». Quick, 61 Penn. St., 328. 1869. 3. — A release by a party to a witness of all claims, etc., against the witness under a warranty in a deed, appearing on its face to have been regularly executed and acknowl- edged before the taking of the deposition, made the witness competent, although not attached to his deposition so as to identify it. lb. 4. — ^uch release was a deed concerning lands, and was entitled to be recorded. lb. 5. Federal courts. The law and practice of the state having been adopted in regard to the taking of depositions, a subsequent modi- fication of the law, which was followed for a long time, will be considered as adopted by usage. Gnrtis ». Oentral B. B. Go., 6 McLean, 401. 1855. 6. — But the law of the state can make no change in the act of congress as to the cir- cumstances under which depositions may be taken under the act of congress. The person whose deposition is to be taken must reside more than one hundred miles from the place of holding court. lb. 12 7. Form. The sufficiency of the manner of taking certain depositions, determined. Western and Atlantic B. B. Co. ». Harris, 46 Ga.,602. 1872. 8. Mistake of officer. If a cross interroga- tory annexed to a commission for a deposition is so obscurely written that a date therein re- ferred to is uncertain, the deposition should not be rejected because the deponent and the magistrate mistook the date. BoMnson v. Bos- ton and Worcester B. B. Go., 7 Allen (Mass.), 393. 1863. 9. Notice. "Where the statute gives five days' notice, with one day added for every thirty miles travel, as the time for taking de- positions, and depositions are taken upon a shorter notice, they will be suppressed. Bioh- ardson & Go. «. Burlington and Missouri Biver B. B. Go., 8 Iowa, 260. 1859. 10. Objections. Where objection was made during the trial of a cause, to tiie reception of the deposition of a witness, which had been taken under a commission, it was properly overruled, because the rules of practice in tlie circuit court of New York give time and op- portunity to move for a suppression of the de- position. Winans v. New Torh and Erie B. B. Go., 21 Howard, 88. 1858. DEPOT See Bj&saAQE ; Cabbiage or Mbrohandisb ; Eminent Domain ; Injdeies to Passengees. 1. Agreement to pay for location. A, by his note, promised to pay to tlie Terre Haute and Richmond R. R. Co. $200, in considera^ tion that it would locate its depot in block 94 in Indianapolis, to be paid when the company should commence the construction of the depot. When the note was given, the line of road provided for by the charter of said com- pany extended from Terre Haute through In- dianapolis, to Richmond, a distance of 150 miles. The company afterw^axds procured from the legislature, and accepted, an altera- tion of its charter, by which its line of road was limited to the distance between Terre Haute and Indianapolis, being thus reduced in length one half, ' and the other part of the line was placed under a separate corporation de- 178 DEPOT. Contract — Rules and Regulations. nominated the Indiana Central R. R. Co., which constructed Its road and located its depot in another part of Indianapolis. The first named company constructed a freight depot alone on said block 94. A. was not a stockholder in the company nor a party to the charter. Held, that by the alteration of the charter of the Torre Haute and Richmond R. R. Co., and the acceptance thereof by the com- pany, the company became substantially a dilTercnt corporation, and was unable to per- fonn the condition upon which the note was to become payable. Held, also, that the circuni- stance that the depot located on block 94 was of some advantage to A. was of no importance. Oa/rliile v. Terre Hmite and Biehmond B. B. Co., 6 Ind., 816. 1855. 2. — A contract to pay a given sura of money to one who should present a petition or proposition to the directors of a railroad com- pany for the location of the depot on certain land, the money to be paid on location of the depot and completion of the road, is not void as against public policy, unless it appear that sinister, extraneous or corrupting influences were brought to bear on the company to su- perinduce the location. Wwhman v. Campbell, 46 Mo., 805. 1870. 3. — Labor performed or money spent to se- cure the location of such depot is a sufficient consideration to support a promise contained in a subscription to pay money for that object. Jb. 4. Contract. Where by the terms of a con- tract, granting certain franchises to a railway company, the company was not to build or allow "but one other depot" between certain points, it was held, that a station at a coal bank, where trains merely stopped to take or leave cars con- nected with this trade, was not a depot within the meaning of the contract. Maliatka County B. B. Oo. V. Bes Moines Valley B. B. Co., 28 Iowa, 437. 1870. 5. — The plaintiff conveyed the right of way through his land to a railway company on condition that it should make the village of Chillicothe a station. The company made the station about one-fourth of a mile from the tpwn plat. Held, that this was a substantial compliance with the condition. Jenkim «. Bv/rlington and MietouH Biver B. B. Co., 30 Iowa, 255. 1870. 6. Dedication. Where a husband and wife executed, acknowledged and put on record a plat of a town, laid out on the lands of the wife, exhibiting thereon a railroad track, and having inscribed upon a lot adjoining such track the words " Depot of Ohio and Pcnna. R. R.," this did not constitute a dedication of the lot to the railroad company nor to pub- lic use. Todd v. PitUburgh, Fort Wayne and Oliieigo B. B. Co., 19 Ohio St., 514. 1869. 7. — Nor will the acts of the wife during coverture, tending to show an agreement on her part to donate such lot to the railroad com- pany, on the faith of which the company has acted, estop her from asserting her rights of ownership therein. lb. 8. Expulsion from depot. The superin- tendent of a railroad depot has not a right to order a person to leave the depot, and not come there any more, and to remove him therefrom by force, if he does come, merely because such person, in the judgment of the superintendent, and without proof of the fact, had violated the regulations established by the railroad corporation, or bad conducted him self offensively towards the superintendent. Hall V. Power, 12 Metcalf (Mass.), 483. 1847. 9. — In the trial of an action for assault and battery brought against the superintendent of a railroad depot, for expelling the plaintiff from the depot, for a supposed violation of one of the regulations established by the railroad company, the defendant cannot give in evi- dence former violations, by the plaintiff, of other regvilations of the company. lb. 10. Leased lands. A railroad company leased a lot for making side tracks from its main road to a canal basin and for nnloading and piling lumber. The company had the right to use it as most convenient for moving its cars. Kay v. Penntylvania B. B. Co., 65 Penn. St., 269. 1870. 11. Rules and reflations. A superin- tendent of a railroad depot has authority to exclude therefrom persons who persist in vio- lating the reasonable regulations prescribed for their conduct, and thereby annoy passengers or interrupt the officers and servants of the corporation in the discharge of their duties. Commormealth v. Power, 7 Metcalf (Mass.), 596. 1844. 12. — If an innkeeper who has frequently entered a railroad depot, and annoyed passen- gers by soliciting them to go to his inn, re- DEPOT GROUNDS— DIRECTOKS. 179 Demand — Arbitration — Compensation. ceives notice from the superintendent of the depot that he must do so no more, and he nev- ertheless continues to enter the depot for the same pm-pose, and afterwards obtains a ticket for a passage in the cars, with the iona fide intention of entering the cars as a passenger, and goes into the depot on his way to the cars, and the superintendent, believing that he had entered the depot to solicit passengers, orders him to go out, and he does not exhibit his ticket, nor give notice of his real intention, but presses forward towards the cars, and the superintendent and his assistants thereupon forcibly remove him from the depot, using no more force than is necessary for that purpose, such removal is justifiable, and not an indict- able assault and battery. /6. 1 3. What constitutes a depot. The place where a carrier is accustomed to receive, de- posit and keep ready for transportation or delivery, merchandise, is a depot, within the general signification of the word. Magliee v. Camden, and Aniboy R. R. Co., 45 K. Y. 514. 1871. DEPOT GROUNDS. See Ehinsnt Domain; Injubies to Dohsstic Ahi- UAXS. DETINUE. 1. Demand. A demand upon the director of a railroad company, acting as its agent, for the return of property taken by his direction as such agent, is sufficient to authorize the party claiming the property to bring an action against the company for its recoveiy. Dunham V. Troy Union R. R. Co., 3 Keyes (N. Y.;, 543. 1867. DIRECTORS. See Attokneys ; In jory to Employes. 1. Arbitration. The directors of a railroad company have the right to decide, but not to submit to arbitration, the question of the pro- priety of tlieir former action in declaring a dividend. Gratz v. Redd, 4 B. Monroe (Ky.), 178. 1843. 2. Charter. Where the charter required that the directors should be named in the arti- cles of association, it was held, a compliance with the requirement to adopt the aiticles at the time of electing the directors. But, held, also, that the requirement was only directory. EahrigU v. Logansport and Northern Indiana R. R. Co., 13 Ind.,404. 1859. 3. Compensation. As a general rule, directs ors are not entitled to compensation for their personal sei'vices unless rendered under some express conti-act. Hall v. Vermont and Massa- chMetts R. R. Co., 38 Vt., 401, 1856 ; American Central R. R. Co. v. Miles, 53 111., 174, 1869. 4. — In an action brought by a director, for services rendered the company, upon a prom- ise by the president to pay him for going to New York on business for the company, it was held, that the by-laws of the company, to the eflEect that directors should receive no compen- sation for their services, were admissible in evidence. Ba/rstow v. City R. R. Co., 43 Cal., 465. 1871. 5. — By a vote of the directors of a railroad corporation, general services rendered by the directors of the company were to be performed without pay ; but for all special services re- quired of them which should call them from home, they were to be allowed $3.00 per day and expenses. Held, that this was a limitation upon their compensation for such services only as could not have been performed by persons who were not directors, and which were not rendered by them in any other than their official capacity. Henry v. RvMand and Bur- lington R. R. Co., 37 Vt., 435. 1855. 6. — Where a director is empowered to transact any particular business for the com- pany, there is an implied contract that he shall have a reasonable compensation for his services. SMckelford ». New Orleans, Jackson and Great Northern R. R. Co., 37 Miss., 203. 1859. 7. — The services of plaintiff, who was one of the directors of the defendant's company, and a member of the executive committee of that board, were held to be such services as could be performed only by a director, and that the compensation to be allowed for them was therefore regulated by the vote prescrib- 180 DIEECTOBS. Contract with Company — Election. ing tbe pay of tlie directors. Hodges v. But- land and Burlington R. R. Go., 39 Vt., 320. 1857. 8. — Wliere the board of directors have, by resolution, established their compensation, the president of the company cannot bind the company to pay a larger sum to some of them without the concurrence of the other mem- bers of the board. lb. 9. — free pass for life. A director of a railroad corporation had rendered special ser- vices in procuring subscriptions to the stock of the company and in its organization, which services were rendered on his part in the ex- pectation of compensation. After the com- pany was organized, the stockholders, in view of these services, voted to grant him a free pass over the road for himself and family during his life, which grant was inadequate as a compensation for the services, but was accepted by him as such. Some years after, the stockholders rescinded the vote. Held, in an action brought by the company for rail- road fares accruing after that time, that if the vote was intended as a contract founded upon the indebtedness of the company for the ser- vices rendered as a consideration, and not as a mere gfatuity, about which there was room for question, yet that the services rendered created no indebtedness, and could not con- stitute a consideration for the contract. Held, also, that it would have made no difference if the services had been rendered, not only with an expectation of compensation on his part, but upon an express understanding with his associates that he was to be paid by the com- pany after its organization. Aside from the technical difficulty of binding a corporation before its existence, the policy of the law wholly discountenances such arrangements. New Yorh and New Haven R. R. Co. v. Ketch- urn, 37 Conn., 170. 1858. 10. Contract with company. If a director of a railway company enter into a contract for the construction of the road of his corpo- ratibn, he cannot then, nor subsequently, per- sonally derive any benefit from such contract. European and North American R. R. Go. v. Poor, 59 Me., 211. 1871. 11. Contractors — compromise. Persons who are directors of a railroad company can- not acquire such an interest in the profits of a contract for the construction of the road as to give them a standing in a court of equity to interpose an objection to the consumma- tion of a compromise between the railroad company and its contractor. Paine v. Lake Erie and Louisville R. R. Go., 31 Ind., 288. 1869. 12. Declarations. The declarations of a director of a railway company will not bind the company, when not made within either the scope of his ordinary powers, or some special agency relative to the subject matter. Soper V. Buffalo and Rochester R. R. Go., 19 Barbour (N.T.),310. 185.5. 13. De facto officers. The doings of a board of directors de facto, whose acts have been ratified, cannot be objected to. Penob- scot and Kennebec R. R. Go. v. Dunn, 39 Me., 587. 1855. 14. Election. The title of directors of a corporation, who are in under color of an election, cannot be inquired into in a suit in equity, instituted to restrain them from exer- cising their functions of directors, vipon the ground of an irregularity in their election. Huglies v. Parker, 20 N. H., 58. 1849. 15. — A charter was granted to certain persons, " their associates, successors and as- signs." Held, that the grantees could legally elect directors without having made any as- sociates, successors or assigns. Hughes v. Pa/rker, 19 N. H., 181, 1848; Same v. Same, 20 ib., 58, 1849. 16. — The fourth section of a charter pro- vided that the directors should be chosen by the members of the corporation, at their an- nual meeting, and the tenth section enacted that the annual meeting of the corporation for the choice of directors should be holden at such time and place as might be provided by the by-laws. The grantees met, and, after voting to accept the charter, and after electing directors, adopted a code of by-laws. Held, that the election of the directors was valid, although it was before the adoption of the by- laws. Hughes v. Pa/rker, 19 N. H., 181. 1848. 17. — The requirement as to the election of directors at the annual meetings of the cor- poration is directory only. Ib. 18. — After the requisite amount of stock has been subscribed to authorize the stock- holders to elect directors, it is not indispensa^ ble to an election that the notice for it should be given by the persons named in the certifi- DIRECTORS. 181 Fraud — Powers. cate of incorporation. The validity of the acts of the directors cannot be questioned, col- laterally, on the grounds of irregularity in giving the notice. Chamberlain v. Paineamlle and Hudson R. B. Co., 15 Ohio St., 225. 1864. 19. Evidence — Resolutions. The acts, resolutions and proceedings of a corporation, through its directory, are competent evidence against the company, and especially against a director vrho was present. Grats v. Redd, 4 B. Monroe (Ky.), 178. 1843. 20. Fraud. Directors of corporations are trustees of the corporate funds, and are pei^ sonally responsible for the fraudulent misap- plication of such funds. Orats v. Sedd, 4 B. Monroe (Ky.), 178. 1843. 21. — An arrangement made by persons who are directors of a railroad company, with a contractor, by which, such persons are to share in the profits of the contract for the con- struction of the road, can only be confirmed by the stockholders, and not by the directors of whom the guilty persona form a part. Paine V. Lake Erie and Louismlle R. R. Go., 31 Ind., 283. 1869. 22. Meetings. The directors are the agenta of the corporation, not the corporation itself; although they meet without the limits of the state creating the corporation, yet their pro- ceedings will be valid and binding upon the company. Where a charter granted by the state of Illinois, declared certain persons to be a corporation, and named the directors thereof, such directors could meet and act in the state of Missouri. Ohio and Mississippi R. R- Oo. V. McPherson, 35 Mo., 13. 1864. 23. — Where, the corporators met without the limits of the state granting the charter, and elected a board of directors, and such board made a call for payment upon the sub- scription to the stock of the corporation, a subscriber to the stock cannot, when sued for the call thus made, object to the legality of such election. The parties thus elected are directors de facto, and the legality of their elec- tion cannot be inquired into collaterally, with- out showing a judgment of ouster against them in a direct proceeding for that purpose, by the government creating the corporation. lb. 24. MisappUcation of funds. An execu- tion creditor of a corporation, with a return of nulla bona, may subject to the satisfaction of his demand, money paid to a director of the company for dividends illegally declared, and which might be recovered back by the com- pany as paid through mistake. Grate v. Redd, 4 B. Monroe (Ky.), 178. 1843. 25. — And the same rules as to mistakes which apply to individuals, apply also to cor- porations, lb. 26. — The statute of limitations will apply in such cases. Lexington and Ohio R. R. Go. «. Bridges, 7 B. Monroe (Ky.), 556. 1847. 27. Msconduct of. Nothing but fraud or misconduct in the directors can create an equity, to allow any other person interested to seek the aid of a court, to reach what they have fraudulently and in his wrong, refused to prosecute without reasonable cause for their refusal. La Grange v. State Treasurer, 34 Mich., 468. 1872. 28. — The directors are not required to bring a suit where a suit would be vmavailing. lb. 29. — Stockholders or creditors cannot sue in behalf of the corporation. lb. 30. Personal liability. Where a railroad company, created under the provisions of the general railroad act of 1848, contracted a debt, for cars, in 1858, it was held, that the directors of the company could not be made personally liable for the debt, under act of May 13, 1845, on the ground that the same was contracted by their agency or consent, when the company had not available means for its payment. Rochester v. Barnes, 26 Barbour (N. Y.), 657. 1858. .SI. Powers. The directors of a railroad company may, when authorized by the lan- guage of its articles of incorporation, and in the manner therein pointed out, sell and trans- fer a part of its uncompleted road bed, estate and franchises connected therewith to another company. Mahaska County R. R. Go. v. Bes Moines Valley R. R. Co., 28 la., 437. 1870. 32. — Although the action of the directors in conveying a road bed, etc., has been irregu- lar, yet where the grantee has made valuable improvements thereon, with the knowledge of the company making the conveyance, the lat- ter company will be estopped from asserting any claim of title, or that the transfer was irregular. lb. 33. — It is not necessary that authority from a corporation to its agents to contract in its behalf should be made at a meeting of the 182 DISCRIMINATION. Rates and Facilities. board, unless tliat has been their usual prac- tice. If the directors have adopted the prac- tice of giving their separate assent to the exe- cution of conti'acts in the name of their agents, it is of the same force as if done by a vote at a regular meeting of the board. Bank of Middlebury v. Butland and Washington B. R. Oo., 80 Vt., 159, 1858; see also Mahaska County B. B. Co. v. Des Moines Valley B. B. Co., 28 la.; 437, 1870. 34. — Where the charter of a corporation contains no special provision upon the subject, less than a majority of the board of directors have no power to transact business. Their acts are absolutely void, and the corporation cannot ratify them. Price v. Grand Bapids and Indi- ana B. B. Co., 13 Ind., 58, 1859; Cmley «. Same, ib., 61 ; Hamilton v. Same, ib., 347. 35. — The law under which the company organized, and orders purporting to have been made by the boai-d of directors, being in evi- dence, parol evidence may be admitted to show that a majority of the directors was not pres- ent when the orders were made. Ib. 36. Proceedings. A creditor of a corpora- tion may maintain his bill against any mem- ber who is a director holding funds of the company, and it is not neoessaiy to bring in all the members of the company before the court, G-ratz v. Bedd, 4 B. Monroe (Ky.), 178. 1843. 37. Suspension. No authority is conferred by the statutes (3 R. 8., 5 ed., 763, §§ 40-43 ; 3 ib., 1st ed., 463, § 33, § 36), upon a stockholder of a corporation, to maintain an action for the removal or suspension of a director. Bamsey o. Erie B. B.Co., 38 Howard's Pr. (N.Y.), 193. 1869. 38. Warrant against. Where, under a proceeding, given by ch. 17, § 7 of the Rev. Code, the warrant recited an injury by a rail- road company, and commands that the body of a director named should be taken; after judgment against the company, and an appeal taken by it, it was held too late to say that the suit was against the director, and not against the corporation. Aycock ». W. and W. B. B. Co., 6 Jones' Law (N. C), 331. 1858. DISCRIMINATION. See Bates. 1. Bates and facilities. An action lies in New Hampshire for damage caused by an un- reasonable discrimination practiced in Maine in violation of the law of that state. McDuf- fee XI. Portland and Bochester B. B. Co., N. H., 430. 1873. 2. — If by reason of bribes or other im- proper motives, railway employes give prefer- ence to one person over another, the company may be held liable for damage thereby sus- tained. Oaleaa and Chicago Union B. B. Co., «. Bae. 18 111., 488. 1857. 3. — Charges for ft-eights and passengers must be uniform. Chicago, Burlington and Quincy B. B. Co. i). Parks, 18 111., 460. 1857. 4. — Transportation by a common carrier is open to the public upon equal and reason- able terms. An exclusive right granted to a common carrier only is inconsistent with the rights of all others. Avdenried v. Philadel- phia and Beading B. B. Co., 68 Penn. St., 870. 1871. 6. — A railroad company is not obliged as a common carrier, to transport goods and merchandise for all persons at the same rates. Fitchhurg B. B. Co. v. Gage, 13 Gray (Mass.), 893. 1859. 6. — An honest effort to aid the public in the prosecution of business, by furnishing such facilities as are best calculated for that purpose, is required of railroad companies; but if they shall in good faith, from a press- ing cause, take grain fl-om wagons or boats, while grain remained for shipment in private warehouses, they will not thereby incur lia- bility. Galena and Chicago Union B. B. Co. V. Bae, 18 111., 488. 1857. 7. — The Pennsylvania R. R. Co. has power under the " Tonnage Commutation Act " of March 7, 1861, to discriminate between the rates charged for "local freight" and those charged for other freight. The constitution of the United States does not prohibit a discrim- ination between local freight and that which is exti-a territorial when it commences its transit; the distinction is not personal, and therefore not within the prohibition. Shipper V. Pennsylvania B. B. Co., 47 Penn. St., b88. 1864. 7. — Where a railroad company has fixed its rates for the transportation of grain, ft'om any given station on the line of its road, to Chi- cago, it will not be permitted to charge one rate for delivery at the warehouse of one per- DISMISSAL OF ACTIONS — DISSOLUTION. 183 Rule of Court — How Effected — Proceedings. son, and a different rate for delivery at that of another, both houses being upon its lino or side tracks. Vincent ». Chicago and Alton B. R.Go.,^9 111,83,1868; see People ex rel. v. Chicago and Alton B. 2i. Co., 55 ib., 95, 1870. 9. — The defendants, owning a short railway, from New Orleans to Lake Pontcharti-ain, and one Morgan, owning a line of steamers plying ft-om the lake terminus to Mobile, and the plaintiffs and other parties owning two other steamers in the same trade, an arrangement was made by defendant with Morgan, and temporarily, with the proprietors of the other steamers, respectively, to share pro rata the through freight from New Orleans to Mobile. It appeared that this ai'rangement was unprof- itable to the defendant, for the lines of steam- ers, by competing and lowering the rates of freight, greatly reduced the share coming to the railway. The defendant therefore entered into an agreement with Morgan by which the latter loaned it $250,000, and the former agreed to prorate with him the through freight from New Orleans to Mobile, and to charge all other steamers the rates paid by the public generally. The plaintiffs immediately laid up their steamer and sued for damages, on the ground that this prorating with Morgan and refusing to further pror.ate with plaintiffs was an illegal combination with Morgan to confer on him an unlawful monopoly and preference. Held, that the acts of defendant were not in con- travention of any statute of Louisiana or of any principle of her jurisprudence; that they might agree or refuse to prorate through freight with anybody. Edipae Towboat Co. v. Pontaiarirain, E. B. Co., 24 La. An., 1. 1872. DISraSSAL OP ACTION. 1. Rule of court. A suit was brought to recover certain land which the plaintiff had been induced to subscribe to the stock of a railway company through fraud. The coui-t ordered the plaintiff to permit defendant to Inspect the certificates of stock. The plaintiff failed to comply with this order and the court dismissed the action without prejudice. Held, that the action w^as properly dismissed. 2 R. S., § 863, p. 120. Silv&ra «. Junction B. B. Co., 17Ind.,143. 1861. DISSOLUTION. 1. How effected. A corporation may dis- solve itself, except so far as its public duties as conservators of a highway may limit this power, and the legislature may release it from this limitation, and allow a transfer of its duties to other hands. Lawman v. Lebanon Valley R. B. Co., 80 Penn. St., 42. 1858. 2. — The dissolution of the corporation is not a corporate act, but an act of the members of the corporation ; and its officers in effecting such arrangement act as trustees of the mem- bers and not as coi'porate functionaries. Ib. 3. Effect of dissolution. The dissolution of a corporation does not have the effect to dis- solve its conti'acts, and creditors may enforce their claims against any property of the cor^ poration which may not have passed to bona fide assignees. Dudicy v. Price's Adm^r, 10 B. Monroe (Ky.), 84. 1849. 4. — The capital stock of the Lexington and Ohio R. R. Co. is a trust fund in the hands of the company, and liable to the payment of its debts. Ib. 5. -^ But to subject such fund, it must be first shown that the legal remedies have been used ineffectually. Ib. 6. — Where a corporation has by its acts ceased to exist, or where it has suffered acts which destroy its existence, it is as fully and entirely dissolved, as if declared so to be by the sentence of a competent court. Carey v. Cincinnati and Chicago B. B. Co., 5 Iowa, 857. 1857. 7. Proceedings after dissolution. In pro- ceedings or actions against defunct corpora- tions, service of process upon the members of its last acting board of directors is sufficient, under the statute, to give the court jurisdiction. Warner o. Callmder, 20 Ohio St., 190. 1870. 8. — ,By the statutes of New Hampshire, a suit may be maintained by or against any cor- poration for three years after the expiration of its corporate powers. Blake v. Portsmouth and Concord B. B. Co., 89 N. H., 485. 1859. 9. — No repeal of tlie chai-ter of a corpora- tion can take away or impair the remedy of a creditor against it for previously incurred lia- bility, or affect a pending suit against it. 76. 10. Sale. A railroad corporation is not dissolved by the sale of its road. State «. Bivci, 5 Iredell's Law (N. C), 297. 1844 184 DITCHES — DOMICIL. Miscellaneous. , 11. — Where a statute provides that a corpo- ration shall he dissolved hy a mortgage sale of its franchises and property, an illegal and fraudulent sale does not work a dissolution. Wfiite Mountains S. B. Oo. v. White Mountains (N. H.) B. JR. Co., 50 N. H., 50. 1870. 12. — It is no ohjection to the maintenance of a hill in equity to compel a corporation to restore property acquired hy fraud, that such restoration will cause a dissolution of the cor- poration, lb. 13. — A corporation may he dissolved hy a surrender of its franchises, and if a corpora- tion suffers acts to he done which have the effect of destroying the end and ohject for which it is created, it is equivalent to a sur- render of its rights. Moore v. WMteomb, 48 Mo., 543. 1871. 14. — The seizure and sale of the Cairo and Fulton Railroad under the state lien extin- guished the Cairo and Fulton Railroad Com- pany, such seizure and sale destroying the oh- jects for whicli the corporation was instituted. (Answers to questions, etc., 37 Mo., 135, cited and affirmed.) Jb. DITCHES. 1. Damages. If a railroad company, in constructing its road, make a ditch along the side thereof so as to carry off the water trom the adjoining land to a railroad channel, it is not hound to keep such ditch open, if the flow of the water is not changed injuriously to the owner of the land hy the huilding of the road. Louisville, New Albany and Chicago B. B. Co. V. McAfee, 80 Ind., 291. 1868. DIVIDENDS. See Stock. DIVISION LINES. 1. Agreement. Where parlies agree, though by parol only, upon a division line between their adjoining lands, and afterwards hold possession conformably to such line, the possession of one is adverse to the claim of the other and amounts to a disseizin ; so that a deed hy one, purporting to convey the land thus in possession of the other, passes nothing to the grantee. Boston and Worcester B. B. Co. V. BparhmoJc, 5 Melcalf (Mass.), 469. 1843. 2. Mistake. Where, without fraud or gross negligence, adjoining land owners have acted under a mistake as to the true division line between their premises, neither will he estop- ped to claim the true line when it is ascer- tained. Brewer v. Boston and Worcester B. B. Co., 5Metcalf(Mass.),478. 1848. DOGS. 1. Carried in baggage car. The owner having a dog on a railroad train, being in- formed by abrakeman and the baggagemaster that the animal was not allowed in the passen- ger car, placed him in charge of the baggage- master, and paid the latter for his transporta- tion. By th« regulations which were posted and printed at the various stations, " live ani- mals " were " allowed as baggagemen's per- quisites." No special notice of this rule was brought home to the owner. The company was held liable for loss of the dog hy the bag- gageman. Cantling v. Hannibal and St. Jo- seph B. B. Co., 54 Mo., 885. 1873. 2. Street railways. A horse railroad com- pany may be held liable for double the amount of damages sustained in consequence of the bite of a dog kept by its servants or agents. G. S., ch. 88. Barrett v. Maiden amd Melrose B. B. Co., 3 Allen (Mass.), 101. 1861. DOMICIL. 1. Change. A corporation, created with a special charter, by the legisl tare of Indiana, in which the corporation is made to consist of certain directors and their successors, with power to construct a railroad in said state, and with authority, in connection therewith, to own and manage certain property in the state of Ohio, cannot, by reason of the latter authority, change its domicil to the latter state. Aspinwall v. Ohio and Mississippi B. B. Co., 20 Ind., 402, 1863; MeCord v. Aspinwall, ib., 498 ; Aspirvwall v. Somes, ib., 498. DONATIO CArSA MORTIS— EJECTMENT. 185 Miscellaneous. 2. — Nor could it remove its domicil to the state of Ohio, merely because that state had given it authority to act therein, unless it had been also granted power so to do by the legis- lature of Indiana. lb. 3. — And where such corporation receives subscriptions to its capital stock in Indiana, payable in such installments, and at such times as the corporation may determine, and then migrates to Ohio, and there establishes its office and performs all its corporate acts, and determines in what installments and at what times said subscriptions shall be paid, and requires them to be paid at its office in Ohio, such subscriptions cannot be collected, because such corporate acts are inoperative and void. DONATIO CAUSA MORTIS. 1. Stock and bonds. Certificates of stock, and coupon government bonds will pass by delivery mortis causa, without any writing. Walsh «. Sexton, 55 Barbom- (N. Y.), 251. 1869. DOTJBLE TRACK. See Chabtbb. DRAINAGE. 1 . Springs. If, without necessity, the water from springs opened by a railroad company in building its road is collected and conducted by it in an artificial trench to a point from which it is discharged upon land of another, outside of its location, it is liable in tort there- for. Curtis v. East&m S. B. Co., 98 Mass., 428. 1868. DRAWBACKS. 1. Agent. A shipper of cattle made a con- tract with a railroad company, by which he was to have certain drawbacks upon shipments over its road, it being agreed that the shipper should be allowed the same drawbacks which other companies were paying him. The con- tract was construed not to relate to shipments made prior to the time it was entered into. Pittsburgh, Ft Wayne amd Chicago B. B. Co. ■». F.awsett, 56 111., 513. 1870. 2. — As to such prior shipments, there would be no consideration to support a promise to pay drawbacks. lb. 3. — contract. Where a party acted as the agent of a company for the purpose of pro- curing cattle shipments only, and according to the routine of business the money for draw- backs would come through him, which the shipper knew when the contract was made; luHd, that the agent was also agent of the ship- per for the purpose of receiving the draw- backs, lb. DRAW BRIDGE. See Dauase. DRUNKENNESS. See Injubies to Emflotes. EJECTMENT. 1. Commencement of action. An action of ejectment cannot be commenced against a corporation by declaration, but only by sum- mons. Brown v. Syracuse and, TTtica B. B. Co., 5 Hill (N. Y.), 554. 1843. 2. Costs. Where a defendant in an eject- ment suit disclaims all interest in the premi- ses, judgment should be rendered in favor of the plaintiff, but, ordinarily, defendant will re- cover his costs. Kansas Pacific B. B. Co. v. McBratney, 10 Kans., 415. 1873. 3. Easement. The mere right to an ease- ment over land which another party is enti- tled to retain in possession, will not be affected by the execution of a writ of possession for the premises, in an action of ejectment. Cam- den, and Amboy B. B. Co. «. Steiwwrt, 3 C. E. Green's Ch. (N. J.), 489. 1867. 186 ELECTIONS — ELECTIONS OF CORPORATE OFFICERS. Cashier — Fraud. 4. Failure to pay damages by railway company. Where a railroad company had lands condemned for right of way, and the damages were assessed, hut not paid, and the owner sued and recovered judgment for the damages, but execution was returned, no prop- erty found ; hut the company entered into pos- session, constructed its road with the consent of the owner, and then leased it to another company, which was occupying and using this right of way when the suit was brought to recover the land; lield, that the suit could not be maintained without notice to quit. Chicago, Burlington and Q;ainey S. B. Go. v. Knox College, 34 111., 195. 1864. 5. Highway. Ejectment is a proper rem- edy where land owned in fee by an individual, subject to the public easement of a highway, is appropriated by a railroad company for the use of its road. Lazier v. New York Central B. B. Co., 42 Barbour (N. Y.), 466. 1864. 6. Pleading. In an action of ejectment, the defendant, by § 51 of the practice act of 1855 (Nix. Dig., 671), may give in evidence under the statutory plea, which amounts to the general issue, any title which confers a present right of possession. Under that plea,- the defendant may avail himself of any de- fense that could be made under the general issue, by the former proceedings in ejectment. Stewart v. Camden and Awboy B. B. Co., 4 Vroom (N. J.), 115. 1868. 7. Possession. There is no distinction be- tween a trespasser without and one with a title on the record. Susquehanna and Wyoming Val- ley B. B. Co. v. Quick, 68 Penn. St., 189. 1871. 8. — Actual possession may be either by residence or cultivation; it need not be by both. n. 9. — There must be that in the appearance of the premises themselves to show the world that there is still a person in possession. lb. 10. Statute. The statute regulating the commencement of the action of ejectment does not apply to corporations. JBaker v. Long Island B. B. Co., 1 Howard's Pr. (N. Y.), 314. 1845. 11. Title. A railroad company, owning one undivided moiety of land in fee, and the life estate of A. in the other moiety thereof, being in the exclusive possession, duly located its railroad thereon, a^d appropriated the whole thereof for the ordinary, necessary and legitimate purposes of the road, and continued to thus use and possess the same after the ter- mination of said life estate, to the exclusion of the remaindermen, and without the ap- praisal or payment of land damages under the statute, or otherwise, to the remaindermen. Held, that on account of the peculiar and ex- traordinary character of the subject matter of the case, the remaindermen could not main- tain ejectment against said company to recover joint possession of said premises. Austin v. Butland B. B. Co., 45 Vt., 315. 1872. ELECTIONS. See Elections or Cohtosatb Oi'fiobrs; Suesobip. tions bt coohtuts ; subscbiptioks by cities and Towns. ELECTIONS OF CORPORATE OFFL CERS. 1. Cashier. Where shares are on the trans- fer books in name of A., cashier, they cannot be voted on by B., cashier, although B. is the successor of A. Mohawk and Hudson Biver B. B. Co., In the matter of, 19 Wendell (N. Y.), 135. 1838. 2. Challenge. Since the amendment, in 1854, to the general railroad law, which pro- vides (§ 5), " that at every election of directors, the books and papers of such company shall be exhibited to the meeting, if a majority of the stockholders present shall require it," a party challenging votes is not entitled to a pro- duction of the books, although a prior by-law of the company authorizes him to demand it. People V. Albany and Susquehanna B. B. Co., 1 Lansing (N. Y.), 308. 1869. 3. Fraud. Sm-prise and fraud upon a part of the electors is ground for avoiding an elec- tion, and all acts done by portions of the cor- porators, which bear the appearance of trick, secrecy or fraud, will be held invalid. lb. 4. — All acta done by a portion of the stock- holders in a corporation, at an election of officers, which bear the appearance of trick, secrecy or fraud, will be held invalid. People V. Albany and Susquehanna B. B. Co., 65 Bar- hour (N. Y.), 844, 1869 ; Same v. Same, 88 How- ELEVATED RAILWAY. 187 Miscellaneous. ard's Pr. (N. Y.), 238, 1869; 7 Abbott's Pr. (N. Y.), 365, 1869. 5. Injunction. An injunction by which inspectors of election in a corporation are commanded to desist from holding any elec- tion of directors, or from receiving and count- ing and canvassing any votes, is entirely void. So as to an injuction forbidding an individual to act as president of a corporation. 76. 6. Opening the polls. It being provided by the by-laws, and stated in the notice of the annual meeting for the election of directors, that the polls would be opened at twelve, and continue open until one o'clock, the fact that the poll was not open until after twelve o'clock, and continued open until after one o'clock, does not invalidate the election. Peo- pie V. Albany and Susquehanna R. JR. Co., 1 Lansing (N. Y.), 308. 1869. 7. — Where the notice of the time of hold- ing an election of directors was for 13 o'clock, M., held, that a meeting called to order, under such notice, and organized about 15 minutes before 13 o'clock, was a surprise and fraud upon many of the stockholders, and as against such of them as did not participate in the meeting, was irregular and void. People v. Albany and Susquehanna B. B. Co., 55 Barbour (N. Y.), 344, 1869 ; Same v. Same, 38 Howard's Pr. (N. Y.), 338, 1869; 7 Abbott's Pr. N. S. (N. Y.), 365, 1869. 8. — It is not improper for the ihspectors to keep the polls open as long, within a reasona- ble discretion, as is necessary to receive the votes of all the stockholders present, ready and offering to vote. lb. 9. President. Where the president of a corporation requests an individual to call to order a meeting of stockholders for electing directors, and to act for him, in his absence, ■ such request is a sufficient authority for such person to act in the place of the president. lb. 10. Proxy. A person who is not a stock- holder, is sufficiently authorized to call a meet- ing of stockholders to order when he holds a proxy, and is requested by the president to call the meeting to order, and act for him, and such call is recognized by the stockholders present. People «. Albany and Susquehanna B. B. Co., 1 Lansing (N. Y.), 308. 1869. 11. Setting aside elections. On an appli- cation under 1 Rev. Stat., 603, § 5,— giving the supreme court power to review elec- tions in private corporations, — notice to the persons who claim to have been elected, and to the corporation is sufficient. It is not necessary that all the stockholders shall have notice of the application. Scoha/rie Valley B. B. V. Case, 13 Abbott's Pr., N. S. (N. Y.), 394. 1873. 12. — The election of directors of an- incor- porated company will not be set aside on a summary application to the supreme court for that purpose, on the ground that the inspectors were not sworn in the form prescribed by the statute. They are inspectors de facto. Mohawk and Hudson B. B. Oo'., In matter of, 19 Wen- dell (N. Y.), 135. 1838. 13. — No one but a party named as ag- grieved, in the notice of application to set aside the election, is entitled to be heard; a notice given by one as attorney for A. B. and others, entitles no one but A. B. to be heard. lb. 14. — Where votes, rejected by inspectors at an election of directors, if received, would have elected a certain ticket, are adjudged to have been erroneously rejected, the only reme- dy is to set aside the election. Long Island B. B. Co., In matter of, 19 Wendell (N. Y.), 37. 1837. 1 5. Stock held by a state and city. The city of New Orleans and the state, having stock in the N. 0., J. & Q. N. R. R. Co., have the right to one vote for each share of their stock in any election of directors of the com- pany. The failure to count such votes renders the election void. The state has the right to present to the courts the question of the le- gality of such an election. State v. New Or- leans, Jackson and Great North&mB. B. Co., 30 La. An., 489. 1868. 16. Transfer books. At an election of di- rectors, the right of an individual to vote must be determined by the transfer book of the company; the inspectors cannot look be- yond it. Long Island B. B. Co., In matter of, 19 Wendell (N. Y.), 87. 1837. ELEVATED RAILWAY. See IirjcKciiOK. 188 ELEVATORS. Contract for Monopoly — Lease. ELEVATORS. 1. Contract for monopoly. Where a rail- road company set up as a defense, in a pro- ceeding by mandamus, to compel it to deliver to the elevator or grain warehouse of the re- lator, whatever grain in bulk might be con- signed to it upon the line of its road, that it had entered into contracts with the owners of certain other elevators at the same point for exclusive delivery to the latter to the extent of their capacity, it was held, such contracts could have no effect as to third parties. Chi- cago arid Northwettern B. B. Co. n. People &x r«Z., 56 111., 365. 1870. 2. — An agreement was made between the D. & S. C. R. R. Co. and an elevator company, Btipulating that the elevator company should erect a building suitable " for receiving, stor- ing, delivering and handling all gi-ain that shall be received by the cars of said company, not otherwise consigned." Subsequently, a supplemental contract was made, stipulating that the elevator company " should receive and discharge for the B. & 8. C. R. R. Co., all through grain at one cent a bushel," etc., and that the elevator company should have the handling of all through grain at one cent a bushel. The railroad company refused to give the elevator company the handling of the grain in accordance with this contract. Held, that the two agreements formed one contract. The contract was not limited to grain shipped in the cars owned by the railroad company, but extended to grain shipped by it in the cars of other companies. That the words " all through grain " did not apply to grain shipped to Dubuque only, but also to grain shipped through Dubuque. Bichmand v. Dubuque and Sioux City B. B. Co., 26 la., 191. 1868. 3. — The D. & S. C. R. R. Co. and an elevator company at Dubuque entered into an agree- ment that the elevator company should erect an elevator for " receiving, storing, delivering and handling all grain that shall be received by the cars of said railroad company, not other- wise consigned." In a supplement, it was provided that the elevator company should " receive and discharge all through grain at one cent per bushel," and that the elevator company should have the handling of all through grain at that price. The contract, by its terms, extended for a period of fifteen years, and, at the option of the railroad com- pany, it was to be extended fifteen years more, but no times of payment were provided there- in. In an action against the railroad compa- ny, to recover damages for its refusal to give the elevator company the handling of grain according to the contract, it was argued that the contract and the consideration which the plaintiffs were to receive thereunder for hand- ling the grain, was entire and indivisible, and that no recovery could be had against defend- ant until the expiration of the contract; but the court held otherwise. Biehtnond v. Du- buque and Sioux City B. B. Co., 33 la., 423. 1871. 4. — A judgment in such action would constitute no bar to an action for future breaches of the contract. lb. 5. — The contract was not an unlawful re- straint upon the duty of defendant, as a com- mon carrier, in the delivery of the grain shipped to the different consignees thereof. lb. 6. — The fact that defendant was directed by shippers not to pass the grain through plaintiff's elevator is no excuse. lb. 7. — The contract in question is not against public policy. lb. 8. — The contract does not conflict with the act of congress of June 15, 1856, authorizing railroads to " connect with roads of other states, so as to form continuous lines " of transportation from one state to another, and the laws of congress allowing the erection of certain railroad bridges over the Mississippi river. Jb. 9. Delivery of goods for shipment. Where a railway company had agreed to carry grain at a fixed rate for A. during a given time, and from the freight house of the company to C.'s elevator where A.'s grain was stored from time to time awaiting transportation, to which elevator a railway track extended, it was held, that the delivery of A.'s grain at such ele- vator with notice to the company that it was ready for shipment was equivalent to a de- livery to the company at the freight house. Thayer ■». Burchard, 99 Mass., 506. 1868. 10. Lease. The owner of a lot in the city of Chicago, having erected a grain elevator thereon, was permitted, by contract with a railroad company, to connect a side track from his elevator to the company's line, with its EMBANKMENTS — EMBEZZLEMENT. 189 Miscellaneous. track. So far as appeared, tlie contract was purely personal, and in no way attached to the realty. Held, a subsequent lessee of the ele- vator did not succeed to any of the rights of his lessor, in respect to such contract. Peo- ple ex rel. v. GlUoago and Northwestern B. S. (7tf., 57 111., 436. 1870. 11. Mandamus. Mandamus is the proper remedy to compel a railroad company to de- liver to a particular elevator whatever grain in bulk may be consigned to it upon the line of its road. OMeago and Northwestern B. B. Co. V. The People ex rel. 56 111 , 365. 1870. 12. Railway connection. Where a rail- way was composed of three different divis- ions, operated under a common name, enter- ing the city of Cliicago upon diflerent tracks, dnd an elevator situated upon one of such tracks could only be approached from the others by a very indirect route, causing much expense and delay to the company, it was Jield, that the elevator was not upon the track of each of the divisions so as to render it ob- ligatory upon the company to deliver grain at such elevator from each of such divisions. lb. 13. — In order to compel a railroad com- pany to deliver grain, shipped on its road in bulk, at a particular elevator, to which it may be consigned, it is indispensable that such ele- vator must be connected by some track with the railroad line of the company, and be, in fact, a portion thereof, or such as would be re- garded a portion thereof, for the purposes of such delivery, under the act of 1867. People ex rel. v. Ghieago and Alton B. B. Co., 55 111., 95. 1870. 14. — Where the city had, by ordinance, granted to the lessor the privilege of laying down a track along one of its sti'eets, in order that he might connect his elevator witli the line of a railroad, such grant being made specially to the lessor, the mere leasing of his elevator to a third person would not operate to pass to the lessee any of the rights secured to the lessor under the ordinance. People ex rel. V. Chicago and Northwestern B. B. Co., 57 111., 436. 1870. 15. Usage. Where a railroad company sought to evade receiving and delivery of grain in bulk to a particular elevator, to which it was consigned, claiming that it had estab- lished a usage that it might itself choose the consignee, it was held, the company could make no such arbitrary discrimination between individuals in its dealings with the public. Chicago and Northwestern B. B. Co. ■B. The People ex rel, 56 111., 365. 1870. EMBANKMENTS. See CONSTKUCTION OP Eailwats. 1. Double damages. No action lies under St. 1841, ch. 125, to recover double the damages sustained by reason of the neglect of a rail- road company to comply with an order of the county commissioners, requiring it to construct aad maintain embankments, etc., for the bene- fit of the owner of land through which its road is laid out, unless the time within which such structures aj-e to be made is prescribed in th3 order. Keith v. Clieshire B. B. Co., 1 Gray (Mass.), 614. 1854. EMBEZZLEMENT. See Agbnct. 1 . Arrest. A complaint by a corporation, which shows that the defendant was employed as its officer or agent; that in that fiduciary capacity, he abstracted from the possession of plaintifi', certificates of shares in the stock of plaintiff company, which shares were owned by plaintiff; and that he sold tlie same and embez- zled the proceeds; states a cause of action upon which defendant may be arrested. Nor- thern B. B. Co. of France v. Oarpentier, 4 Ab- bott's Pr. (N. Y.), 47. 1856. 2. Confessions — surety. Confessions of a defaulting agent of a railroad company after his discharge from the service of the company are not admissible in evidence against the surety of such agent in an action on his bond for the faithful performance of his duties as agent. Pollard v. Louisville, Cincinnati and Lexington B. B. Co., 7 Bush (Ky.), 597. 1870. 3. — If one becomes surety on a bond con- ditioned for the faithful conduct of another as a clerk or collector, it is Tield, that in an action on the bond against the surety, confessions of embezzlement made by. the principal after his 190' EMINENT DOMAIN. Miscellaueous. dismissal are not admissible in evidence; though with regard to entries made in the course of his duty, it is otherwise. lb. 4. Demand. It is not necessary, in order to constitute embezzlement, that there should be a demand of the money alleged to have been embezzled. Commonwealth v. Tuekei-mam, 10 Gray (Mass.), 173. 1857. 5. Evidence. In an indictment for embez- zlement by a railroad employfe, it is not neces- sary that the prosecution should prove by di- rect and positive evidence that the conversion charged is without the consent of a railroad corporation, the alleged master or employer. State V. Porter, 26 Mo., 301. 1858. 6. — In an indictment founded on § 37 of the " act to authorize the formation of railroad as- sociations, and to regulate the same " (R. C. 1855, p. 430), it is not necessary to allege a neglect or refusal on the part of the defend- ant to pay over on demand the moneys, etc., alleged to have been converted. lb. 7. — In the case of an indictment against a ticket agent for embezzling funds belong- ing to a railroad company, it is competent tor the prosecution to show the course of busi- ness pursued by the defendant and required by the rules of the company, by introducing in evidence duplicate blank returns used by ticket agents of the company ; the prosecu- tion is not bound in such case to resort to the blank returns actually filled up and transmit- ted by the defendant as ticket agent to the treasurer of the company. lb. 7. — previous acts. Upon the trial of an in- dictment for embezzlement, other previous acts of a similar character, enumerated with the one charged in the indictment in a paper drawn up by the defendant as a statement of all sums taken by him, are admissible in evi- dence to show the intent tvith which the act charged was committed. Commonwealth v. Tuelcerman, 10 Gray (Mass.), 173. 1857. 9. Treasurer. The treasurer of a railway company is an " officer, agent, clerk or ser- vant of an incorporated company," within the Revised Statutes, ch. 136, § 39, relating to embezzlements by such persons. lb. 10. — If money of a railway company is received by its treasurer, and by him deposited to his credit as such treasurer, and afterwards drawn out by him c^ither in bills or coin, such bills or coin are the property of the corporation and, while in the hands of the treasurer, are sub- jects of embezzlement by him ; and if he after- wards, while still treasurer of the corporation, fraudulently converts such money to his own use, witliout its consent or knowledge, and without claim of right, it is embezzlement; although the guilty intent does not exist at the moment of drawing the money out of the bank, but is formed afterwards ; and although at the time of the fraudulent conversion he intends to restore the amount, and has prop- erty suflScient to secure its restoration. lb. EMINENT DOMAIN. See Appeal; Iibidoes; Canals; Contetance; Ejectment; Estoppel; Evidence; Hioiiwat; In- junctions; Limitation; Pleadinqb; Eihht op Wat; Tbespass; Water Courses. I. General principles. II. Proceedings generally. 1. Proceedings under charter. 8. Commencement of proceedings. 3. Jurisdiction. 4. Pleadings, practice and general re- quirements. 5. Report, judgment and subsequent III. IV. VI. VII. VIII. IX. X. XI. XII. XIII. XIV. XV. XVI. XVII. 6. Appeals and writs of error. 7. Costs. 8. General matters. Jury, viewers and commissioners. Compensation and various ele- ments OP DAMAGE. Particular kinds op property TAKEN OR damaged. Benefits. Streets, parks and highways. 1. Streets. 3., Highways. 3. Parks. Taking lands fob depots and oth- er BUILDINGS. Condemnation op corporate prop- erty. Public lands. Evidence. Statutory remedy exclusive. Title op land oavner. Title acquired by the company. Negligence and unlawful acts. Constitutional law. License. EMINENT DOMAIN. 191 ' General Principles — Proceedings Generally. SVIII. Contract. XIX. SUKVEYS. XX. Injunctions. XXI. Tkespass. I. General peinciples. 1. Compensation. Before a railroad com- pany can take land for its roadbed without the consent of the owner, it must make com- pensation. JEvansville, Henderson and Nash- ville S. R. Co. V. Grady, 6 Bush. (Ky.), 144. 1869. 2. — It is requisite that enactments, in order to justify tlie taking of private property for public use, should designate the means to be pursued for obtaining compensation. Gush- man v. Smith, 34 Me., 247. 1853. 3. — It would seem that there is no distinc- tion between public and private corporations, as to the right of taking and holding private property without just compensation being pre- viously made. lb. 4. Constitutional law. The taking of pri- vate property for public use without just com- pensation, is forbidden by the constitution. The taking referred to includes any right or easement in land. Ih.; NielioU «. Somerset and Kennebec B. B. Co., 43 Me., 356. 1857. 5. — But this provision does not dislodge the paramount domain which the sovereignty has over the property rights of the individual. lb. 6. — It does not prevent the legislative power from authorizing, without compensa- tion, acts injurious to the property of the in- dividual, which do not however amount to the taking of any portion of such property. lb. 7. — Nor does it preclude the temporary taking without compensation, where such taking is a proceeding incipient to the acqui- sition of the title for public use. lb. 8. Mt. Washington Railroad. If a road is of a public character, it rests with the discre- tion of the legislature to determine whether power shall be given to take land for it with- out the owner's consent. Mt. WasJiington B. B. Co., Petition of, 85 N. II., 134. 1857. 9. — A road to the summit of Mt. Wash- ington and thence to the foot of the moun- tain on the other side, open to all ti-avelers on payment of a uniform and fixed toll, is of such public character. lb. 10. Principles discussed. The general principles with relation to the taking of pri- vate property for railway purposes — dis- cussed. Mims V. Macon and Western Jt. B. Co., 3 Ga., 333. 1847. 11. — The principles governing the emi- nent domain, correspond to those controlling the police power, rather than to those apply- ing to the power of taxation, and its exercise has rather regard to the public need than to the public character of its object. People v. Salem, 20 Mich., 452. 1870. 12. Time. After the time fixed by the charter for building the road has expired, the company has no right to take additional lands for the extension of its road, without the con- sent of the owner. Peavey v. Calais B. B. Co., 30 Me., 498. 1849. 1 3. Statute. The general railroad laws of New York are to be construed harmoniously, as respects their various provisions, and strictly, as to the rights of the parties. New York and Boston B. B. Co., In matter of, 63 Barbour (N. Y.), 85. 1871. 14. — But corporations must conform to iho provisions of the statute before they can acquire any title or rights to lands against the consent of tlie owner. lb. 15. Strict construction. The right of con- demning lands granted by the state to a rail- road company will be strictly construed. Doughty i>. Someroille and Bast. Mississippi Cen- tral and Tennessee B. B. Co., 3 Head (Tenn.), 634. 1859. 46. Location. Where a railroad company is about to build a road, and it proceeds to condemn land under its charter for the use of the road, it should define with precision the location and quantity required, so that the owner of the land may know the extent of the claim tliat is made. Strang v. Beloit and Madison B. B. Oo., 16 Wis., 685, 1863; Vail v. Morris and JSssex B. B. Co., 1 Zabriskie (N. J.), 189, 1847. 47. — A railroad company, in determining upon its route, acts arbitrarily. No one is entitled to any notice on the subject until the route has been actually designated and the map and profile filed. Then the company is in a condition to notify the property holders, whose lands are to be taken. Norton v. Wall- kill Valley B. B. Oo., 43 Howard's Pr. (N. Y.), 228. 1871. 48. — Companies organized under the law of 1840, providing for a general system of railroad corporations, cannot proceed to con- demn lands until after such companies shall have obtained from the legislature a law ap- proving of the route and terminations of the roads proposed to be constructed. Oillinwiater V. Mississippi and Atlantic B. B. Co., 13 HI., 1. 1851. 49. — The right of the owners to take pro- ceedings to assess damages is perfected by the location of the road, without any other act of appropriation on the part of the com- pany. Marion and Mississinewa B. B. Oo. v. Ward, lad., 12'd. 1857. 50. — A plan or map, filed by a railroad company, together with the location of its road, and expressly made " a part of the de- scription of said location," may be referred to to explain, but not to modify or control the written location. Hazen v. Boston and Maine B. B. Oo., 2 Gray (Mass.), 574. 1854. 51. — The map, profile and notice required by §§ 48 and 49 of ch. 23, G. B., need not be filed prior to the commencement of proceed- ings for condemning the right of way under art. 9 of said chapter. Missouri Biter, Fort Scott and Gulf B. B. Oo. v. Shepard, Kan., 647. 1872. 52. Notice. Where an application for an assessment of damages is made, the proceed- ings will be illegal unless notice is given to the adverse party. Atlantic and Bt. Lawrence B. B. Oo. V. Oounty Commissioners, 51 Me., 30, 1863; Omger v. Hudson Biver B. B. Co., 13 N. Y., 190, 1854; Lohman n. Bt. Paul, Btillwat^, etc.,B. B. Co., 18 Minn., 174, 1873; WallkiU Valley B. B. Oo. t. Norton, 13 Abbott's Pr., N. S. (N. Y.), 317, ISM. 53. — Notice to the occupant must be served before applying for the appointment of commissioners of appraisal. New York and Boston B. B. Co., In matter of, 83 Barbour (N. Y.),85. 1871. 54. — Where land owners are not notified, they may object to the preliminary proceed- ings after the report of the viewers is returned. O'Ean-ax. Pennsylvania B. B. Co., 35 Penn. St., 445. 1855. 55. — Whore the appraisers gave notice in writing of the time and place of appraisal, to the party interested, who resided within eighty rods of the place, and received the no- tice on the day previous to the time appointed, and instead of requesting delay, returned a written answer to the appraisers, protesting against their authority to act, and declaring that he would not appear ; it was held, that EMINENT DOMAIN. 195 ' Proceedings Generally. such notice was sufficient in point of time. Williams v. Hartford and New Haven R. B. Co., 13 Conn., 397. 1840. 56. — 'Where the published notice notifies the land owner that the petitioner will make application to the judge of the circuit court at a certain time and place, and the object sought to be accomplished is precisely and plainly stated, and the land, which is the sub- ject of the proceeding, is described, the no- tice is sufficient. Quiney and Palmyra R. R. Co. V. Taylor, 43 Mo., 35. 1868. 57. — Where the subject of appraisal was described in the notice, as land owned by the plaintiff, and of which the state of Connecti- cut was mortgagee, when in fact the state was not mortgagee of all, but of a part of the land appraised ; but the notice also referred, for further description, to a petition and pro- ceedings thereon, to which the plaintiff was a party, in which the boundaries of all the land to be appraised were defined with pre- cision ; it was held, that such notice was suffi- cient in point of form. Williams v. Hartford ani New Haven. R. B. Co., 13 Conn., 397. 1840. 58. — The owner of land filed in the office of the clerk of the court of common plesis, in vacation, his application, addressed to the judge of said court, for the appointment of appraisers to assess the damages which he had sustained by the construction of a railroad through his land. The railroad company was not notified of the pendency of the proceed- ings, until the damages had been assessed. The court, at the next term, ordered that the petitioner should have execution against the company for the damages assessed, etc., and also for costs. Held, that the proceedings were properly instituted under the R. S. 1852. But, held, that the order for execution, etc., both as to damages and costs, was erroneous. Columbus and SheXby R. B. Go. v. Biehardson, 7Ind., 543. 1856. 59. — Where a notice of proceedings to condemn the right of way was given to a widow, but not to her children, and the lands belonged to the widow and children, it was proper to restrain, by injunction, the taking of the land. The charter of the railway in question required notice of such proceedings to be given to all parties in interest Neio Or- leans, Mobile and Chattanooga B. R. Co. ■». Frederic, 46 Miss., 1. 1871. 60. — The taking of lands for right of way is a proceeding in rem, and in proceedings of this character, the seizure of the properly gives the court jurisdiction over the persons of those interested, and is considered as notice lo them. The charter of the N. O., etc., E. R. Co., makes no provision for notice in such cases. The assembling of the jury on the premises is considered as. constructive notice. Niw Orleans, Jackson and Great NoHliem R. B. Co. V. Hemphill, 35 Miss., 17. 1858. 61. — Where the M. & W. R. R. Co. had procured an appraisement of damages and the defendant appealed therefrom to the circuit court, but before the trial in that court took place the rights of the company became vested in another company, and the latter company was substituted for the former; and the notice of sub.stitution was served by letter sent by mail to S. and P. without anything to show that either of them was the attorney of the company ; lield, that such notice gave no jurisdiction of the latter company. Sturte- vant «. Milwaukee, Watertown, etc, R. R. Co., 11 Wis., 61. 1860. 62. — In the absence of statutory directions, the tribunal to whom application is made for the appointment must judge of the sufficiency of the notice of making such application; and if it appear by the record that the notice was satisfactory to the tribunal, this court will not assume that the notice was invalid or insufficient. Coster v. New Jersey R. R. Co. 3 Zabriskie (N. J.), 237. 1853. 63. — Where due sei-vice of the petition and notice required by the general railroad act, is made upon the owner of land to be taken for a railroad, the court acquires juris- diction to make the appointment of commis- sioners to appraise damages. New York and Oswego Midland R. R. Co., In matter of, 40 Howard's Pr. (N. Y.), 385. 1870. 64. — In a jDroceeding to appropriate land for the use of the L. and O. R. R. Co., the return of the sheriff must show that all the requirements of the law have been complied with. Harper v. Lexington and Ohio B. B. Co., 2 Dana (Ky.), 237. 1884. 65. — It is not indispensable that the notice to the land owner should be by personal ser- vice. And a return of the writ, " executed," Implies a legal notice to the owner of the land. lb. 196 EMINENT DOMAIN. Proceedings Generally. 66. Time of commencing proceedings. The fact that a railway company has possessed Itself of a strip of land through the planta- tion of the defendants, and has constructed its road through it, does not preclude it from instituting proceedings afterwards to have the land condemned for railway purposes. Gar- rollton B. B. Co. o. Amrt, 9 La. (0. S.), 205. 1835. 67. — Under the acts incorporating railroad companies, the damages may be assessed either before or after the land has been taken. Comp- ton v. Susquehanna B. B. Co., 3 Bland's Ch. (Md.), 386. 1831. 68. — The proviso of act of April 14, 1834, relative to ihe removal of suits brought by and against railway companies to the com- mon pleas of any adjacent county, through which the road does not pass, does not apply to an appeal from the report of viewers ap- pointed to assess the damages occasioned by the location and construction of the road, when it assumes the form of a suit or action against the railroad company. Pinneo v. Lack- atoanna and Bloomaburg B. B. Co., 43 Penn. St., 361. 1863. 69. Warrant. A warrant, upon a petition to assess damages, made returnable to the county commissioners instead of to the supreme judicial court, is invalid. CatMy ». Kennebec and Portland B. B. Co., 45 Me., 363. 1858. 70. Waiver. A party having accepted the damages assessed in his favor, cannot plead that the assessment was irregular, after having made no objections for two years, and having had full knowledge of the irregularity at the time that ho received the sum assessed as his damages. Mitchcocit v. Banhury and Nm-walk B. B. Co., 35 Conn., 516. 1857. 3. Jurisdiction. 71. County court. Under the act, ch. 174, § 1, Code of 1860, the case of a railroad com- pany asking the county court to ascertain the compensation to a land owner for the land proposed to be taken for its purposes, which has remained in the court for more than one year without being determined, may be re- moved to the circuit court. Virginia and Tennessee B. B. Co. v. Campbell, 32 Grattan (Va.),437. 1872, 72. — In such a case, if the circuit court sets aside the report of the commissioners that court should not send the case back to the county court, but should take jurisdiction of the case, and proceed in it with the same powers that are vested in the county court by the statute. lb. 73. — The circuit court and court of com- mon pleas have concurrent jurisdiction in ac- tions for the assessment of damages for lands taken by railroad companies, and where pro- ceedings for such purpose have been com- menced in one of said courts, and appraisers appointed thereby, and an award made and returned by them, tiie other court cannot then deprive it of jurisdiction. Huglies «. Lake Erie and Paeifie B. B. Co., 31 Ind., 175. 1863. 74. — The court of common pleas has a su- pervisory power, to see that the proceedings of the viewers are regular. Pennsylvania B. B. Co. V. Lutheran Congregation of Pittsburgh, 53 Penn. St., 445. 1866. 75. — It may set aside the report for grosa errors or misconduct in the viewers, or for gross inadequacy or excessive damages. lb. 76. — No appeal is given to the supreme court; the judgment of the lower court is final, except for errors manifest on the record. lb. 77. — The common pleas may permit amendments to the petition for the appoint- ment of viewers. lb. 4. Pleadings, practice and general re- quire^nents. 78. Amendment. Where proceedings are commenced under the act of 1852, and the case is appealed to the circuit court, the pro- ceedings cannot, by amendment, be changed to a proceeding under the act of 1845. Peoria, Pekin and Jacksonville B. B. Co. v. Black, 58 111., 33. 1871. 79. Bond. A bond filed by a railroad com- pany when locating its road is a security for all damages that may occur from the construc- tion also ; both are but one injury, and a bond filed for one is therefore security for all. Wadhams v. Lackawanna and Bloomsburgh B. B. Co., 42 Penn. St., 303. 1863. 80. — The offer of a bond by a railway company is an assertion by one of the par- ties that they cannot agi-ee upon the damages ; EMINENT DOMAIN. 197 Proceedings Generally. and the action of the court approving the bond and ordering it filed, involves an adjudi- cation that everj thing had been done to enti- tle the company to have the bond filed. lb. 81. Certiorari. Under the act incorporat- ing the Penn. R. R. Co. an assessment of damages may be set aside aa excessive by the court, or this court on eertiorari has the same power. Pennsylvania R. R. Co. b. Heister, 8 Penn. St., 445. 1848. 82. — A proceeding to appropriate the right of way over lands alleged to have be- longed to an unknown nonresident, which was regular upon its face, will not be set aside or interfered with upon the allegations of a peti- tion in a certiorari proceeding that the owner was known and not notified, when such alle- gations were not supported by the return to the writ nor by any proof contained in the record. Sverett n. Cedar Rapids and Minneso- ta B. R. Co., 38 la., 417. 1869. 83. — This court will set aside, the proceed- ing of such commissioners, if they have adopted and acted upon illegal principles in making their valuation of land, and assess- ment of damages. To ascertain the fact, affi- davits may be taken and read before the court, on a certiorari, although the merits of the case may not be inquired into. Ifew Jer- sey/ R. B. Co. ®. Suydam, 2 Harrison (N. J.), 25. 1839. 84. — A e&rtiorari lies in all cases unless taken away by express words of a statute; and not only where there is no other remedy, but even where an appeal is given upon the merits. lb. 85. Change of courts. Where the pro- ceedings for appraisal were commenced be- fore the first judge of a court of common pleas, whose office was abrogated by a change of the organic law, and a county judge was elected in his place, under the new constitu- tion, it was held, that such proceedings might be continued and completed before such county judge. Polly v. Saratoga and Wash- ington B. B. Co., 9 Barbour (N. Y.), 449. 1850. 86. — The judge has the power to continue the proceedings by adjournment from day to day, although such power is not expressly given by the charter of the company. lb. 87. Disability of owner. The right of taking land for railway purposes is not af- fected by the disability of the owner, as where the owner is a feme covert. Bast Tennessee and Virginia B. R. Co. s. Love, 3 Head (Tenn.), 63, 1859. 88. Dismissal. Where, under the act of April 30, 1852, " to provide for compensation to owners of private property appropriated to the use of corporations," a railroad corpora- tion regularly instituted proceedings in the proper probate court for the appropriation of a right of way over lands of a party made a defendant in such proceedings, and carried the same foiward until a verdict was rendered and confirmed by the probate court fixing the amount to be paid by the corporation for the right of way sought to be appropriated ; and the corporation immediately thereupon, hav- ing neither paid nor secured to be paid the amount of the verdict, caused notice to be en- tered on the journals of said court of its abandonment of such intended appropriation, lield, I. That the probate court had no juris- diction to proceed, on motion of the landown- er, to thereupon render a judgment or order for the payment, by the corporation, of the amount of the verdict. II. In case there had not been entered on the journal of the pro- bate court any such express abandonment, bj the corporation, of its proposed appropriation but where the railroad corporation afterward, failing either to pay or to secure to be paid the amount of the verdict, actually construct- ed its road on another line, not touching the lands of the defendant to the proceeding, the like results in law would follow. State ex rel V. Cincinnati and Indiana B. B. Co., 17 Ohic St., 103, 1866 ; Hayes v. Same, ib., 110. 89. — The North Mo., R. R. Co. instituted proceedings under its charter to obtain a con demnation of land upon which its railroad was located. Held, that the company might at any time before final judgment in sucl proceedings, change its route and dismiss the proceeding. North Missouri B. B. Co. «. Lack- land, 25 Mo., 515. 1857. 90. — When a railroad company, after hav- ing commenced proceedings for the condem- nation of land, upon which its railroad is lo cated, exercises its right of dismissing the proceedings before the judgment of the courl upon the report of the viewers or commission- ers is rendered, the company should pay the costs and expenses growing out of the suit Same v. Reynal, ib., 534. 198 EMINENT DOMAIN. Proceedings Generally. 91. In a proceeding under the act of 30tL April, 18153, to ascertain the amount of com- pensation to' be paid to the owner of property sought to be appropriated to the use of a cor- poration, such corporation is the actor, and may discontinue the proceedings, at any time, at least, before the submission of the matter to the jury. Dayton and Western B. B. Co. v. Marshall, 11 Ohio St., 497. 1860. 98. Exceptions. Where proceedings of commissioners appointed to assess damages for taking of railroad lauds are regular, and there is nothing to show that they erred in the principles upon which their valuation was made, exceptions to the proceedings should be overruled. Hannibal and 8t. Joseph B. B. ■ Go. D. Muder, 49 Mo., 165. 1871. 93, — Where several exceptions were filed by the owner of lands taken by a railroad, to the assessment of damages, each containing some valid objection to the assessment, though all might have been included in one general exception, that the damages assessed were too small, it was held that demurrers to the excep- tions were rightly overruled. White Water Valley B. B. Co. v. McOlure, 39 Ind., 536. 1868. 94. Forfeiture. The question of forfeiture cannot be tried in a proceeding to condemn land. Oregon Cascade B. B. Co. v. Bailey, 3 Or., 164. 1869. 95. Judges — interest. Where two of t'.e judges of the court of common pleas are in- terested in the event of a proceeding, to ap- propriate land to the use of a railroad, and that fact appears on the record, and there is no evidence that the landholder waived his objection to the court, the order of such court appointing appraisers and directing a war- rant to issue, will be reversed. Gregory v. Cleveland, Columbus and Cincinnati B. B. Co., 4 Ohio St., 675. 1855. 96. Organization. In a proceeding for the appropriation of land by a railroad cor- poration, and the estimating of the compen- sation to be paid to the owner, it is essential that the company give evidence of a certifi- cate or public record of its organization in ac- cordance with the provisions of the statute. Atlantie and Ohio B. B. Co. v. SuUivant, 5 Ohio St., 376. 1855. 97. Pleadings — amendment. County commissioners have power to allow an amendment of a petition for the assessment of damages by the construction of a railroad, after heai'iug the parties, and before issuing a warrant for a jury. Grand Junction B. B. Co. V. County Com'rs of Middlesex, 14 Gray (Mass.), 553. 1860. 98.— Where the petition fails to state that the owner is absent from the state, or the ina- bility of the owner and the company to agree upon the damages, the defect may be obviated by an amended petition, filed before the view is had. Pennsylvania B. B. Co. «. Porter, 39 Penn. St., 165. 1857. 99. The land must be so described, either in the petition or the report, that its identity cannot be questioned — and where the pro- ceedings are defective in this respect, they will be reversed. lb. 100. — increase of damages. In cases where a hearing is had on a petition for an in- crease of damages for the location of a rail- road or highway before a jury, in order, to present tire question of law involved, the stat- ute (R. S., ch. 18, § 13), requires a written mo- tion setting out the objection to tlio verdict, whether of law or fact, and exceptions filed to the ruling of the court in adjudicating thereon. If these requirements be not complied with, the court will decline to consider any objec- tions to the verdict. Bryant v. Knox and Lin- coln B. B. Co., 61 Me., 300. 1873. 101. — map. The general railroad law, as amended in laws of 1859, p, 659, requires that a petitioner for appraisal of damages should allege that the railway company has made a map and survey thereof, and filed a certificate thereof The map required must be full and accurate and complete in every respect. Con- vers V. Grand Bapids and Indiana B. B. Co., 18 Mich., 459. 1869. 102. — quantity of land. The company is not bound to take and pay for the land de- scribed in the petition, if less is needed for its purposes. Peoria and Bock Island B. B. Co. V. Bryant, 57 111., 473. 1870. 103. — second petition. A petition to the mayor and aldermen of Boston for the assess- ment of damages was filed by two owners of land over which a railroad had been located, and an order of notice Issued thereon. Some years afterwards, a new petition was filed by the administrator of one of the petitioners and the other petitioner, stating that the pro- ceedings upon the first petition had been re- EMINENT DOMAIN. 199 Proceedings Generally. strained by a suit in equity, since dismissed, and praying that such proceedings be had in the premises as were prayed for in the first pe- tition. Held, that an adjudication by the mayor and aldermen upon the last petition was, in effect, an adjudication upon the first, and authorized the petitioner to apply to the superior court for a jury. WMtman v. Boston and Maine R. B. Co., 16 Gray (Mass.), 530. 1860. 104. — sufficiency. The sufficiency of the pleadings in a particular case — determined. Fwrrant «. St Paul and Pacifia B. B. Oo., 13 Minn., 311. 1868. 105. — It is not necessary that the petition should show an intention to build the entire road, if a division of fifteen miles has been lawfully designated. Chicago and Michigan Lake Shore B. B. Go. v. Sanford, 23 Mich., 418. 1871. 106. — Each parcel sought to be appropri- ated should be distinctly described, and the reasons why it is necessary to proceed under the statute should be given. lb. 107. — The fact of inability to agree to the damages is jurisdictional, and may be conti'o- verted like any other fact. lb. 108. — In a claim for damages, under the R. 8. 1833, for injuries to land occasioned by the construction of a public work, the same strictness is not required in the averments as in pleadings in a court of record. Martins- ville and Franklin B. B. Co. o. Bridges, 6 Ind., 400. 1835. 109. — The written statement of the claim should show, however, whether the injury was occasioned by the passing through and appropriation of the claimant's land, or the taking of timber and other materials for which the statute provides. lb. 110. — In a petition in behalf of the N. M. R. R. Co., for the condemnation of the land on which it was located, it was alleged that the road passed hills and valleys, and that a strip of 150 feet in width was necessary for the construction of the road : held, that this allegation was not traversable. Worth Missouri B. B. Co. v. Gott, 25 Mo., 540. 1857. 111. — A petition for a jury to assess dam- ages, signed by the attorney of the company, it seems, is sufficient. Tucker v. Erie and Northeast B. B. Co., 27 Penn. St., 381. 1856. 112, — The affidavit of the agent of the company that he was unable to agree with the land owners, necessarily implies that he has made the attempt. li. 113. ^ In a proceeding by a railroad com- pany under the railroad act of 1848, authoriz- ing an appropriation of lands on which to construct a railroad, the company described the land to be appropriated as' "fifty feet wide on each side of said railroad, as last surveyed, through subdivision lots Nos. 1, 2, 3 and 4, fractional section No. 1, of township 10 south, of range 7 east, commencing on the north bounds thereof, thence westerly and southerly on and near the boundaries thereof to a point in the west line of said No. 4, near the north- west corner ; also, lots Nos. 11, 13, 13, 14 and 15, of the subdivision of river tract No. 87, in said county." The application was filed, Feb- ruary 28, 1851 ; and notice given, March, 4. View made and report filed, April 31, and pos- session taken by the company, April 23, 1851. In an action by a subsequent purchaser of the lands of the former owner, with notice, to recover the same from the company; on proof that said road was surveyed and staked out previous to the 1st of April, and found staked out by the viewers ; held, that said description was sufficiently certain in the appropriation proceedings. Cleveland and Toledo B. B. Co. V. Prentice, 13 Ohio St., 373. 1862. 114. — The petition should be verified, and should set out the names of the owners, the fact that they cannot agree upon the com- pensation, or that the owner is absent or legally incapacitated to contract. (ActPeb. 19, 1849.) BeiteriboMgh v. Chester Valley B. B. Co., 31 Penn. St., 100. 1853. 115. — Though the statute does not require the court to have the owners summoned, it would be good practice to have them notified before viewers are appointed. Where the parties are incapacitated to contract, or be- yond the reach of process, the court should appoint guardians and should make such de- cree or order as will be necessary to protect the interests aflfected. Ih. 116. —trust. The trustee, and not the cestui que trust, is the proper person to petition for a jury to assess damages caused by taking the trust estate for a railway ; and if the suit be brought by the cestui que trust, the re- spondents may d«ny the petitioner's title at the hearing before the jury. Dacia v. Charles 200 EMINENT DOMAIN. Proceedings Generally. Miver Branch B.B.Oo.,li Gushing (Mass.), 506. 1858. 117. — width of right of way. Where the plaintiff sues to condemn sixty feet in width, he will not be allowed to give evidence of the value of, and ask a verdict for the condemnation of forty-flvc feet in width. Oregon Cascade B. B. Co. ■». Batly, 8 Or., 184, 1869. 118. Practice. Points of practice de- cided. New Jersey B. B. Oo., Matter of, 1 Har- rison (N. J.), 808. 1888. 119. — Proceedings for the condemnation of lands for the use of railways — discussed. Wallter v. Boston and Maine B. B. Co., 8 Gush- ing (Mass.), 1. 1840. 120. Record. B. 8., ch. 18, § 12, makes it the duty of the person presiding at the view and hearing by the jury, to certify any decis- ion or instruction by him given, when any party shall request it. Where a party does not request that such ruling be certified, he waives all right to the exception, and cannot call the person who presided as a witness to prove the rulings. Allen v. Androscoggin B. i?. Co., 60 Me., 494. 1872. 121. Right to open and close. On the hearing before a jury summoned to reas- sess damages for taking land for a rail- road, the party claiming damages has the right to open and close. Connecticut Biter B. B. Co. ■». Clapp, 1 Gushing (Mass.), 550. 1848. 122. — In an action to condemn lands to the use of a railroad company, when the issue is formed by a statement in the complaint that the defendant's damages did not exceed the sum of $200, and a state- ment in the answer that the land sought to be appropriated is of the value of $234, and that the additional damages to defendant resulting from such appropriation will amount to $3,516, the defendant was per- mitted to open and close the case. Oregon and California B. B. Co. v. Ba/rlow, 8 Or., 811. 1871. 123. — Upon a hearing before commission- ers of appraisal, appointed pursuant to § 15 of the general railroad act of 1850, the com- missioners have the right to decide which party shall open and close the argument. Al- bany Northern B. B. Co. v. Lansing, 16 Barbour (N. Y.), 68. 1853. 5. Report, judgment and subsequent pro- ceedinga, 124. Collateral proceedings, ThoTalidlty of the condemnation of lands for railway pur- poses cannot be questioned In a collateral proceeding. Evans v. Jlafner, 20 Mo,, 141. 1859. 125. — The decision and award of com- missioners appointed to assess damages sus- tained by a landowner from the location of a railroad, is a judicial act; and, unless up- pealed from, becomes res adjudicate, and can- not be collaterally impeached. Butman «. Vermont Central B. B. Co., 27 Vt., 500. 18.'i4. 126. — And after such award, whicli is not appealed from or vacated, the landowner can- not bring an action to recover damages which were not appraised and awarded, in conse- quence of the false representations of the agents of the company in regard to the man- ner in which the railroad was to be construct- ed, lb. 127. Judgment. All questions relating to the. damage done are terminated by the in- quest. Baltimore and Susqwharma B. B. Oo. V. Oompton, 3 Gill (Md.), 20. 1844. 128. — conditional. In rendering judg- ment for damages, such judgment wiust be unconditional; a judgment cannot be ren- dered for a certain sum if the railway com- pany shall permit the passage of water at a certain point, and for an additional sura upon the refusal to permit such passage of water. Winchester and Potomac B. B. Co. «. Washing- ton, 1 Robinson (Va.), 67. 1843. 129. — form. It is error to render an or- dinary judgment against the corporation for the damages, without a decree for the con- veyance of the land in quostion to the corpo- ration upim tlio payment of the money. JSvansville and CrawfordsviUe B. B. Oo. v. MU- ;er,80Ind., 200. 1868. 1 30. — Where an action is brought for damages against a railway company for tak- ing land for its roadway, the judgment should identify the land, and, after awarding dam- ages to the plaintiff, should vest the title to the land in the company. Central B. B. Oo. V. Merlcd, 83 Tex., 728. 1870. 131. — execution. When a railroad com- pany has located its road through a person's land, and had the damages assessed by view- EMINENT DOMAIN. 201 Proceedings Generally. ers and confirmed by the court, this is a judg- ment in favor of the owner of the land tor the amount, and he is entitled to execution, even although the company has not taken possession and they desire to change the route. Neal v. Pittsburgh and Connellsville B. R. Co., 31 Penn, St., 19. 1854. 132. — An award of viewers, when con- firmed by the court, is a judgment upon which an execution may be issued. Davis v. Worth Penmylvania R. R. Co., 3 Philadelphia Rep. (Penn.), 146. 1856. 133. — notice. The plaintiif is entitled to notice of the award of the commissioners in order that he may appeal if desired. In such ease, where judgment has been rendered upon the award, without notice to the plaintiff, it will be reversed on appeal, and the cause re- nanded. New Ch-leans, Mobile and Chattanoo- ga R. R. Co. V. Bougere, 23 La. An., 803. 1871. 1 34. — payment. The proceedings, under the statute for the condemnation of lands, simply fix the price at which, upon payment, the company may take the right of way. The judgment assessing the damages passes no title to the company before payment, and does not bind it to accept the lands and pay the amount assessed. Gear v. Dubuque and Sioux City R. R. Co., 20 la., 533. 1866. 135. — A judgment, instead of being en- tered in the form provided for by the statute, having been entered in the form of an ordi- nary judgment, will not be construed to have any greater efiect for that reason. lb. 136. — sale of road. The plaintiflf's land was appropriated by a railway company for its roadway, and a judgment for the amount of damages rendered in the plaintiff's favor on appeal to the circuit court. Before the judgment was paid, the railroad was sold un- der a mortgage (which covered the company's right of way), to persons who organized a new company pursuant to the statute, and contin- ued to operate the road, using the track as laid across plaintiff's land. Held, that the plaintiff had a right of action on the judg- ment against the new company. Pfeifer ii. Sheboygan and Fond du Lao R. R. Co., 18 Wis., 155. 1864. 137. Payment. Where a railway company had seasonably filed a petition in the nature of an appeal, which was dismissed at the Oc- tober term, 1870, and the plaintiffs applied for the security for the payment of damages required by R. S., § 6, and no security was given, but, in the following December, the damages awarded and costs were paid. Held, that in the absence of evidence to the con- trary, this payment would be presumed to be in satisfaction of the damages awarded by the commissioners for the land taken to which the assessment refers. Eaton v. Euro- pean and North American R. R. Co., 59 Me., 520. 1871. 138. — The payment of the compensation awarded by the commissioners, into court, pending an appeal, was held to be suflicient to entitle the Chester R. R. Co., under its char- ter, to take possession of the land and con- struct its railway. Cooper v. OJiester R. R. Co., 4 C. E. Green's Ch. (N. J.), 199. 1868. 139. — Where a statute provided that in case any railroad company should not, within twelve months after the acceptance of its route by the commissioners, procure and pay for the right of way over all land covered by the location, such acceptance by the commis- sioners should be void, it was held, that such failure to procure and pay for the right of way was not in the nature of a forfeiture, to be taken advantage of only by the state in a direct proceeding against the company, but thatthe whole proceeding becanie of no effect upon the expiration of the twelve months. New York, Eousatonie and Northern R. R. Co. V. Boston, Hartford and Erie R. R. Co., 36 Conn., 196. 1869. 140. — Where a location of a road had been accepted by the commissioners before the passage of the above statute, and the stat- ute was prospective only in its terms, it was held, that the case came within the spirit of the statute, and that on the failure of the company to secure and pay for the land coit- ered by its route within twelve months after the passage of the act, its right to the land was gone. lb. 141. — The provision in the act of Decem- ber 35, 1844, requiring that damages assessed in favor of land owners for land taken for railroad corporations, shall be paid into the treasury by the corporations, and tendered by the commissioners, before any entry to con- struct the railroad, was designed for the pro- tection of the land owner, and may be waived by him. And a railroad corporation that has 202 EMINENT DOMAIN, Proceedings Generally. adopted that act, and entered uj^on land taken under its provisions, is liable in debt for the damages awarded, at the suit of the land owner. Smart v. Portsmouth and Ooncord B. a. Co., 20 N. I-I., 233. 1850. 142. — A right of action having attached under the act of 1844, prior to the act of July 3, 1847, is not divested by a change of the lo- cation of the road, and an assessment of the actual damage to the land owner, under the provisions of the latter act. lb. 143. Report — amendment. Wliere the charter of a railroad company required that in assessing damages for right (if way, the benefits and damages should be specified sep- arately in the report; an omission (o set out said particulars may be corrected by amend- ment to their return. Qreervoille and Colum- bia B. B. Go. v. Nunnamaker, 4 Eichardson's Law (So. Car.), 107. 1850. 144. — conflrmation. Where it appears that the commissioners have been regular in their proceedings, and due notice of the mo- tion for contirmation has been given, it is a matter of course under the statutes to confirm the report. New York and Erie B. B. Oo. v. Corey, 5 Howard's Pr, (N. Y.), 177. 1850. 145. — diagram. Where land has already been taken for the track of a railroad, and the road has already been located and built, and is being operated, a report of commissioners thereafter made, appraising the value of the land taken, and assessing damages for taking it, in which is a diagram showing the slope of the land and the course the road takes' across it, stating upon which subdivision of a particular section the land is located, con- tains a sufBcient description of the land taken, although no survey is made. Strang V. Beloit and Madison B. B. Co., 18 Wis., 035. 1863. 146. — evidence annexed. The testimony annexed to the report of commissioners ap- pointed to appraise property taken for rail- road purposes, pursuant to statute, is to be considered a part of the report, for the pur- pose of a review of the commissioners' pro- ceedings. Bondout and Oswego B. B. Oo. v. Dei/o, 5 Lansing (N. Y.), 298. 1871. 147. — filing. The act of the legislature (sess. acts of 1850-51, § 4, p. 443), autliorizing assessments of damages to the owners of land through which the Louisville and Nashville railroad might pass, required these assess- ments to be filed in the county court, and un- til so filed they were only private papers, and not binding upon the party for whose benefit they were made, and not pleadable in bar of such party in a claim for damages. Louisville and Nashville B. B. Co. v. Thompson, 18 B. Monroe (Ky.), 785. 1857. 148. — form. Where the commissioners in their report use numerals only, where it is evident from the report that the commission- ers intended that such numerals should rep- resent dollars and cents, the report is not void because the commissioners omitted to use either the dollar mark, or the words " dollars " and " cents," or some abreviation of the name. Sunt V. Smith, 9 Kan., 137. 1872. 149. — It is not necessary for the jury to state in their report how the damages accrued. Tucker v. Erie and Northeast B. B. Co., 27 Penn. St., 281. 1850. 150. — A report embracing awards to dif- ferent owners, signed by the viewers, is sufll- cient. It is not necessary that such award should be separately signed. lb. 151. — Each owner has a right, under the statute, to have a finding as to the value of his land and the necessity for taking it; and a general finding, giving a single sum for the taking of the land of several owners, is in- valid. Chicago and Michigan Lake Shore B. B. Co. V. Sanfvrd, 23 Mich., 418. 1871. 152. — The report of the railroad commis- sioners in the laying out of a road should contain a description of such fixed, substan- tial and visible monuments from point to point, that a jury, in going upon the ground, can readily discover where the laying out is. Northern B. B. Oo. v. Concord and Olaremont B. B. Co., 27 N. H., 183. 1853. 153. — gross sum. Where the law re- quired the viewers in assessing the damages to find and report separately the damages and the benefit, and the difference between the benefits and advantages, and instead the jury found a gross sum due the owner, the report was held insufiScient. OJiio and Pennsylvania B. B. Oo. V. Wallace, 14 Penn, St., 245. 1850. 154,— motion. The railroad act of 1850 does not give the court power to set aside the report of commissioners of appraisement upon motion. Albamj/ Northern M. B. Oo. v. Cramer, 7 Howard's Pr. (N. Y.), 104. 1852. EMINENT DOMAIN. 203 Proceedings Generally. 155. — new trial. The provisions of the practice act in relation to new trials have no application to a motion to set aside the report of commissioners appointed to assess dam- ages. Central Pacific B. R. Co. «. Pearson, 35 Cal., 347 ; Western Pacific B. B. Co. v. Seed, ib., 631, 1868. 156. — review. The report of the commis- sioners must show a strict compliance on their part with the provisions of the statute. Central Pacific B. B. Co. v. Pearson, ib., 347. 157. — Their report is to be reviewed upon all matters which should be therein stated, upon the report itself, and not upon bills of exceptions. Ib. 158. — The court can compel the commis- sioners to amend their report. Ib. 159. — Fraud, or misconduct on the part of the commissioners, may be shown by affi- davits or other competent evidence. Ib. 160. — Statements made by way of a bill of exceptions after the report is made should be considered as an amendment to the report. Ib. 161.— The proceedings being regularly conducted, the opinion of the commission- ers on the facts, and also the propriety of the instructions or declarations of law asked on a motion to set aside the report of the commissioners, cannot be reviewed in the supreme court. Lee v. Tebo and Neosho B. B. Co., 53 Mo., 178. 1873. 162. — set aside. Where the report of the viewers is set aside, the judge, in ordering a review, must appoint a new set of viewers. Acts of 1857, p. 350, § 9. Eannibal and St. Joseph B. B. Co. v. Rowland, 39 Mo., 337. 1860. 163. — But where the judge, upon the making of the report of the viewers, sets the same aside on the ground that the dam- ages had not been estimated in the mode required by law, the award of damages being conditional, and sends back the same viewers with instructions as to the rule in assessing damages, this would not be a review. Ib. 164. — signature. The general railroad act of 1850 requires the report to be signed by a majority of the commissioners, but does not require them all to be together at the sign- ing; nor is there any rule of law or principle of public policy requiring it. Bochester and Genesee Valley B. B. Co. v. Beckwith, 10 How- ai-d's Pr. (N. Y.), 168. 1854. 165. — Any commissioner, on application for confirmation of a report, which he has properly signed, should not be permitted to stultify himself by alleging that he signed the 'report without reading or hearing it read. His affidavit should not be received in proof of such facts. Ib. 166. — under charter. Under the act of assembly to authorize the governor to. incor- porate the Philadelphia and Delaware county and Southwark railroad companies, passed the 2d day of April, 1831, the court of com- mon pleas by which the jurors may be ap- pointed to assess the damages sustained by the owner of land taken for the railroad, has no power to examine into the merits of the report and set it aside on the mere ground of inade- quacy or excessiveness of damages. Willing 11. Baltimore B. B. Co., 5 Wharton (Penn.), 460. 1840. 6. Appeals and writs of error. 167. Appeal. An appeal will lie from the assessment of commissioners, appointed under the act of March 3, 1845. Austin v. Belleville and Illinoistown B. B., Co., 19 111., 310. 1857. 168. — The necessity or propriety of taking lands by a railway company, cannot be deter- mined on an appeal from the award of the commissioners fixing the value of the lands. In that appeal the only question is the value of the land taken. Burns v. Milwaukee and Mississippi B. B. Co., 9 Wis., 450. 1859. 169. — On appeal, the damages may be either increased or diminished. St. Paul and Sioux City B. B. Co. v. Murphy, 19 Minn., 500. 1873. 170. — Where the conditions and restric- tions on which the C. & S. K. E. Co., proposed to take land of B. for right of way, had been signed by the attorneys for the company and by B., it was held, that B. was not thereby pre- cluded from recovering, on appeal, the dam- ages sustained over and above the value of the land taken by the company. Charleston and Samannah B. B. Co. v Blake, 13 Richard- son's Law (So. Car.), 634. 1860. 171. — acceptance of compensation. — Where a party to a proceeding to assess dani- ages has accepted the amount assessed, he is not afterwards entitled to appeal. Mississippi and Missouri B. B. Co. v Byington, 14 la., 573. 1863. 204 EMINENT DOMAIN. Proceedinge Generally. 172. — agreement. Where a judgment by consent was entered for damages in the county court, for the purpose of having the cause removed by appeal to the circuit court, and it afterwards appeared that such right of appeal did not exist, held, that although the damages were excessive, a court of equity would not interfere and grant relief. Richmond and Petersbwrg R. B. Oo. v. Bhippen, 2 Patton and Heath (Va.), 327. 1856. 173. — bond. The county clerk is the proper officer to approve the appeal bond given by the land owner who appeals from the decision of the county commissioners as to the appraisement and assessment of dam- ages tp land appropriated by a railroad com- Ijany for right of way. Missouri River, Fort Scott and Gulf R. R. Go. v. Owen, 8 Kan., 409. 1871. 1 74. — The filing of an appeal bond by the corporation, in a pi-oceeding for the assess- ment of damages, will be regarded as secur- ing the compensation. Weir v. St. Paul, Still- water, etc., R. R. Co., 18 Minn., 155. 1872. 175. — Camden and "Woodbury R. R. Co. Under the charter of the Camden and Wood- bury R. R. Co. the company cannot, pending an appeal, obtain the right to enter upon the land and construct its road, by tendering the amount awarded by the commissioners. Browning v. Oamden and Woodbury B. R. Co., 3 Green's Ch. (N. J.), 47. 1837. 176. — description of land. An appeal under the act of December 25, 1844, § 5, by one whose land has been taken for the use of a railroad, need not describe the land so taken. Ch/iee v. Sullimn B. R. Oo., 20 N. H. 195. 1849. 177. — discretion. A scrupulous regard must be observed in ascertaining the value of private property taken for railway purposes. Therefore, where one set of commissioners had assessed the value of the property, and, at the request of the company, the report was set aside and another assessment made, re- ducing the value below one-half the first as- sessment, which was approved by the judge, the supreme court, in the exercise of its dis- cretionary powers, will remand the cause, with instructions that a new commission be appointed. Ifew Orleans, Mobile and Ohatta- nooga B. B. Oo. v. Zeringue, 23 La. An., 521. 1871. 178. — effect of appeal. Where land has been entered upon by the company, valued under the judge's warrant, and an appeal from the valuation has been taken and carried to the common pleas, it is error in that court to order the warrant and proceedings under it to be quashed. Little Miami R. R. Oo. «. Perrin, 16 Ohio, 479. 1847. 1 79. — evidence — report. On an appeal from their determination, the report of the commissioners in the condemnation proceed- ings, is legal evidence for the appellant. Mis- souri River, Fort Scott and Chxlf R. R. Oo. v. Owen, 8 Kan., 409, 1871 ; St. Joseph and Den- ver R. R. Oo. V. Orr, ib., 419. 180. — exce8,sive damages. The remedy of a railway company in case of an excessive assessment of damages, is by an appeal, and not by exceptions. Roberts v. Oeniral Passen- ger R. R. Oo., 1 Brewster's Eq. (Penn,), 538. 1868. 181. — hearing on appeal. The party deeming himself aggrieved by the decision of the commissioners, must bring the matter before the court on appeal, under the statute. And upon such appeal, the court can look only at the matters contained in the report of the commissioners, as the foundation of any or- der to be made upon the appeal. Bx parts aflidavits and papers cannot be received. 2fmo York and Erie R. B. Oo. v. Corey, 5 Howard's Pr. (N. Y,), 177, 1850; Same v. Cohum, 6 ib., 223, 1851. 1 8 2. — how taken. In the absence of any statutory direction as to the manner of taking an appeal from the assessment of damages, it seems that any act of the party usually required in cases of appeal from one tribunal to another, is sufficient. Robertson v. JEldora R. R and Coal Co., 27 la., 245. 1869. 1 83. — It was accordingly held, that notice of appeal to the the opposite party is suffi- cient. And it seems that no bond is neces- sary, but if it is, an omission to file it would not operate to dismiss the appeal, as the court could require one to be filed. Ib. 184. — It seems that service of notice of such appeal upon a director of the company is sufficient, but if not, it is waived by the ap- pearance of the company. Rev. of 1880, § 2825. Ib. 185. — The statute of January 18, 1853, provides for an appeal from the assessment EMINENT DOMAIN. 205 Proceedings Generally. of the commissioners, but does not say liow it shall be taken ; held, that the filing of an appeal bond with the clerk of the district court and a claim of appeal, ■within the re- quired time, was sufficient. It is not essential that notice of the appeal should be given within the required time. Dubuque and Pa- eijie B. S. Co. v. Crittenden, 5 la., 514. 1857. 186. — Where such bond was filed with the sheriiff, it was held sufficient. Dubuque and Paeifia JR. B. Go. v. 8Mnn,_ ib., 516. 1857. 187. — Henderson and Nashville R. R. Co. No appeal is authorized in controversies be- tween the Henderson and Nashville R. R. Co. and individuals, unless the appeal be prayed at the time of rendering the judgment, and an appeal bond entered into within the time allowed by the court for that purpose. (Acts of 1850-1, p. 281.) Henderson and Naslmille R. B. Oo. V. Dickerson, 16 B. Monroe (Ky.), 297. 1855. 188. — immaterial errors. In the exercise of the discretion vested in the court, upon appeal from an award of commissioners, it will not interfere with their proceedings, unless satisfied that some substantial error has been committed. Troy and Boston B. B. Co. «. Northern, Turnpike Co., 16 Barbour (N. Y.),100. 1852. 189. — increase of amount. Where an assessment of damages was made by commis- sioners and the railway company deposited the amount assessed and took possession of the land, and the land owner appealed, and the chancellor reversed the appraisement and ordered the company to pay a larger amount, which it refuses to do, the land owner may maintain ejectment, although the act incorpo- rating the company provides that on deposit- ing the amount awarded by the commission- ers, and giving notice thereof, the title to the land should vest in the corporation in fee simple. Dater v. Troy Turnpike and B. B. Co., 2 Hill (N. T.), 629. 1842. 190. — On appeal, the juryjs not limited in the assessment of damages to the amount fixed by the commissioners. North Eastern B. B. Oo. V. Sineath, 8 Richardson's Law (So. Car.), 185. 1855. 191. — irregnlarity. Where it appears from the report of commissioners for the appraisal of damages for taking property, that there was no irregularity committed by the commissioners, and no error existed which would authorize the court to set aside the proceedings, this court on appeal must affirm the order confirming the report, although affi- davits were used on the motion for confirma- tion of the report to show error. Bondout and Oswego B. B. Co. v. Field, 38 Howard's I'r. (N.Y.), 187. 1869. i 92. — Irregularities in the initial proceed- ings to assess damages must be brought up by certiorari. An appeal waives the irregulari- ties. Delaware, Lackawanna and Western B. B. Co. V. Burson, 61 Penn. St., 369. 1869. 193. — joint owners. Where damages for right of way are assessed jointly to two per- sons as owners of the land, an appeal cannot be taken and prosecuted by one of them with- out uniting the other therein, or making him a pai'ty thereto, by notice or otherwise. Chi- cago, Bock Island and Pacific B. B. Co. v. Hurst, 30 la., 73. 1870. 194. — jurisdiction. The district court has concurrent jurisdiction with the circuit court of appeals in right of way proceedings. Davey «. Burlington, Oeda/r Bapids amd Minne- sota B. B. Co., 31 la., 558. 1871. 195. — jury trial. On appeal from the assessment of damages, either party has the right to a jury trial under the constitution. Isom V. Mississippi dntral B. B. Co., 36 Miss., 300. 1858. 196. — land owner as plaintiff. Upon an appeal by the owner of the land, he assumes the position of plaintifi. Minnesota Valley B. B. Co. «. Doran, 17 Minn., 188. 1871. 197. — Lawrenceburg, etc., R. R. Co. The 15th section of the charter of the Law- renceburg and Upper Mississippi R. R. Co. does not preclude the company from prosecut- ing a writ of error to the supreme court from an award of damages for land taken by the company in the construction of its road, although that section states that the judgment of the circuit court shall be final. Lawrence- burg and Upper Mississippi B. B. Co. v. Smith, 3Ind., 253. 1851. 198. — limitation. The statute of 1836, prescribing the mode by which damages shall be obtained for injuries done by chartered companies running their roads through the aggrieved party's land, makes the award of the appraisers final, unless an appeal is taken within 30 days after the award is made; and 206 EMINENT DOMAIN. Proceedings Generally. such appeal must be governed by the same rules and regulations as appeals from judg- ments from justices of tlie peace, except that no bond is required of the state when a party, PruM «. Slielbyville Lateral Branch R. Ji- Co., 2 Carter (Ind.), 530. 1851. 199. — The plaintifi's apjliedto the Shelby- ville Railroad Company for damages occa- sioned by the road of the company running through their land. Appraisers were ap- pointed, who awarded the plaintiffs $100. The plaintiffs moved the circuit court to grant them an appeal, on affidavit filed, stating that the applicants were not notified of the award until about six months after it was made, and had they been notified, they would have taken an appeal within 30 days. Held, that these facts did not authorize the circuit court to grant the appeal. lb. 200. — notice. Wliere two separate awards liave been made to the same owner on two separate parcels of land in different towns, one notice of appeal from both awards is suffi- cient. Neff' 1). Chicago and Northwestern B. B. Co., 14 Wis., 370. 1861. 201. — Where a notice of appeal to the circuit court from an appraisal of lands taken for railroad purposes (which notice was re- quired to be served on the company and also upon the clerk of the court) was served upon said company, and afterwards filed with the clerk, and he was made acquainted with its contents: held, that although the notice to the clerk wag informal, it was not error for the court to refuse to dismiss the appeal on that ground. Black v. Chicago and Northwestern B. B. Co., 18 Wis., 208, 1864; Ford v. Same, ib. 202. — Where a party appeals to the dis- trict court, from the assessment of damages of a jury appointed by the sheriff, he is in court for all substantial purposes; and if he does not appear and urge his right to a new assessment, and the verdict of the jury is affirmed, he cannot object to the proceedings in the appellate court, on the ground of a want of notice. Borland v. Mississippi and Missouri B. B. Co., 8 la., 148. 1859. 203. — When the report of commissioners assessing damages was taken to the district court on appeal, fourteen months after the fil- ing of the appeal bond, it was held, that the court erred in hearing the cause, and render- ing a judgment therein, before notice of ap- peal was served on the appellee. Burlington and Missouri Biver B. B. Co. «. Sinnamon, 9 la., 298. 1859. 204. — order. No appeal lies from an in- terlocutory order in such proceedings. Back V. Chesapeake and Ohio B. B. Co., 5 W. Va., 118. 1873. 205. — new trial. An appeal lies from an order granting or refusing a new trial in a proceeding to condemn lands. San Francisco and San Jose B. B. Co. v. MaJhoney, 39 Cal., 112. 1865. 206. — owner not made a party. Where a railroad company proceeded to condemn land for its road, and the proceedings were not against the real owner, who, however, joined in an appeal from the appraisal, it was not error for the court, on motion, to dismiss the proceedings and set aside tlie award, with costs in favor of the appellants, as in case of a nonsuit. Wright v, Wisconsin Central B. B. Co., 39 Wis., 341. 1873. 207. — Whether a judgment would have been binding on the appellant is not decided, but the company had the right to dismiss its proceedings upon equitable terms, in order to commence them against the true owner. Ib. 208. — Penn, R, R. Co, The court of com- mon pleas has supervisory power over the proceedings of viewers to assess damages against the Pennsylvania K. R. Co.; no appeal is given to the supreme court, and the judg- ment of the court below is conclusive except for errors apparent in the record. Heise and Mifflin V. Pennsylvania B. B. Co., 63 Penn. St., 67. 1869. 209. — Depositions and documentary evi- dence in such cases are not a part of tlie rec- ord, and cannot be read in the supreme court. Ib. 210. — pleadings. In an appeal from proceedings to assess damages occasioned by the construction of a railway, it is unneces- sary for the plaintifl to file a declaration. Le- high Valley B. B. Co. 'o. Lazarus, 28 Penn. St., 208. 1857. 2,11. — presumptions. The presumptions are in favor of the correctness of the finding in the court below. Mississippi and Missouri B. B. Co. V. Byington, 14 la., 572. 1863. 2 1 2. — record. Objections to the proceed- ings before a sheriff's jury, that the respond- ent had no notice of the application to the EMINENT DOMAIN. 20T Proceedings Generally. commissioners for a jury, or that three disin- terested commissioners were not present, as required by the Rev. Sts., ch. 14, § 37, or that there were other cases of the same kind, which ought to have gone to the same jury, cannot be taken advantage of on appeal, un- less the grounds of such objections appear on the record. Walker v. Boston and Maine B. B. Co., 3 Gushing (Mass.), 1. 1849. 213. — refusal to gtant right of way. Upon appeal, where it appears from the rec- ord, that the jury were selected and required "to assess the damages done to each and every piece or tract of land in the county, in all cases not agreed upon with the owners of the land," that the landowner was notified of the day when the assessment would be made ; that on the day of the assessment, he gave no- tice of appeal and filed his bond ; and that afterward she filed with the sheriff his excep. tions to the report of the jury; it is suffici- ently shown that the owner of the land had refused to grant the right of way through his premises, and that the sheriff had power to have the damages assessed by a jury, Missis- sippi and Missouri B. B. Co. v. Bosseau, 8 la., 373. 1859. 214. — review. The quantity and quality of the lands or materials, with their value, should appear upon the face of the report; and it should be stated that there has been a comparison of the advantages and disadvan- tages; and the amount of damages and to whom payable should be reported. Beiten- baugh v. Chester Valley B. B. Co., 21 Penn. St., 100. 1853. 215. — The review will be confined to er- rors appearing upon the face of the report; as the law makes no provision for bringing up the evidence, the question of amount of damages will not be considered. lb. 216. — right of appeal. A railroad com- pany having obtained the appointment of commissioners to appraise damages for the taking of land under § 3 of the railroad act of 1851, has the right to appeal from their award. JVoy and Boston B. B. Co. v. Northern Turnpike Co., 16 Barbour (N. T.), 100. 1853. 217. — right to enter pending appeal. After the report of viewers, and during the pendency of the appeal, the company have a qualified right to enter upon and use the land in the meanwhile and until the final result; but, unless they pay the amount found by the verdict and judgment, the owner may recover the land in ejectment. Levering v. Philadel- phia, Oermantown, etc. B. B. Co., 8 Watts & Sergeant (Penn.), 459. 1844. 218. — right to open and close. In case of an appeal from the assessment of damages by the commissioners, the court may direct which party shall have the opening and clos- ing of the evidence and argument. But if the court makes no such order, the owner of the land shall have the right to open and reply.' CJiarleston and Savannah B. B. Co. v. Blake, 13 Richardson's Law (So. Car.), 634. 1860. 219. — statute. The statute of Minnesota in relation to appeals, construed. McNama^a V. Minnesota Central B. B. Co., 13 Minn., 388 1867. 220. — Upon appeal from an assessment of damages by a sheriff's jury, under act of January 18, 1853, the cause is to be heard on its meirits, and not upon exceptions taken to the action of the sheriff or jury, or to the competency of either of them to act in the premises. Mississippi and Missouri B. B. Co. ■D. Bosseau, 8 la., 373. 1859. 221. — The appeal is from the assessment of the jury, and the question is whether the owner is entitled to, or shall be adjudged, a greater amount of damages than was awarded him by the sheriff's jury. lb. 222. — The right of appeal is purely a stat- utory right, and unless given by the statute, it does not exist Westenn. Union B.B. Co. v. Dick- son, 30 Wi8„ 389. 1873. 223. — Where no provision is made for an appeal from ah order of the county judge ap- pointing commissioners, his refusal to appoint could be remedied by a mandamus, and an appointment without authority hy a, certiorari, lb. 224. — The party who objects to the ap- pointment of commissioners by the county judge, on the ground of lack of authority, may have that question determined on an ap- peal from their award. lb. 225. — to supreme .court. An appeal to the supreme court, from the confirmation of a report of an assessment of damages by a jury, empanelled under laws of 1864, p. 13, brings up the case as it stood before the court that confirmed the report. Peninsular B. B Co. V. Howard, 30 Mich., 18. 1870. 208 EMINENT DOMAIN. Proceedings Generally. 226. — The supreme corn-twill not review the evidence upon which the viewers of a right of way, taken by a railroad company, assess damages. Winebiddle v. Pennsylvania B. B. Oo., 3 Grant's Cases (Penn.), 32. 1853. 227. — The plaintiff obtained an appropri- atjoa of the defendant's land by proceedings before the probate court, and paid in the amount of the assessment, $1,435. The plaint- iff then, by eertiorari of the court of common pleas, obtained a reversal of the proceedings of the probate court, and a second assessment was made at $1,613, in the court of common pleas. Without paying the excess or obtain- ing final judgment for title, the plaintiff filed a petition in error in this court. Held, that the petition in error was prematurely prose- cuted, the court of common pleas not having finally disposed of the case. Steubemille and IndianaB.B.Oo. v. Patrick,! Ohio St., 170. 1857. 228. — A proceeding instituted in a circuit court in behalf of the North Mo. R. R. Co., under its charter, to obtain a condemnation of land for its right of way, is a proceeding in which the court acts in its judicial capacity; an appeal will lie to the supreme court from the final judgment of the circuit court, in such proceeding. North Missouri B. B. Oo. v. Laclelamd, 35 Mo., 515. 1857. 229. — The statute providing for bringing cases before the supreme court upon excep- tions, extends only to cases in which the pro- ceedings in the court below arc according to the course of the common law ; therefore road cases, and proceedings to assess land damages, where land is taken for a railroad, cannot bo brought uj} on exceptions. Oourser v. Vermont Central B. B. Oo-, 35 Vt., 476. 1853. 229. — In a doubtful case, after the circuit court has passed upon the question, the High Court of Errors and Appeals will not set aside the inquest of a jury assessing damages. Neu) Orleans, Jackson and Great Northern B. B. Oo. v. McBride, 38 Miss., 33. 1859. 230. — suspends payment. Where dam- ages have been assessed by a sheriff's jury, and the amount so assessed has been deposited with the sheriff and the company has ap- pealed, the right of the land iowner to receive the amount so assessed and deposited is sus- pended until the appeal is heard. Peterson «. Ferreby, 80 Iowa, 837. 1870. 231. — tender. The party on whose be- half an assessment of damages is made, must tender the amount assessed before the right of entry can arise; and if it should be important that the entry should be made before an ap. peal from the assessment can be disposed of, the party entering will not be precluded from further litigating the amount of damages by making such tender as would, under the con- stitutional provision, authorize him to enter- The tender should be the full amount of the assessment. The fact that it is accepted, will not change the rights of the parties. Indian- apolis and Cincinnati B. B. Oo. v. Brower, 13 Ind., 374. 1859. 232. — time. Appeals from such assess- ments must be entered within thirty days from the filing, not from the confirmation of the re- port. The act of April 27, 1855, is repealed by the act of April 9, 1856. Owinner v. Lehigh and Belama/re Gap B. B. Co., 55 Penn. St., 136. 1867. 233. — verdict. On the trial of an appeal, under the charter in this cause, it is not suffl. cient that the verdict should be given for a gross sum in damages. Peoria and BorJi Island B. B. Oo. v. Bryant, 57 111., 478. 1870. 235. — view. On appeal, the jury will try the question of damages as in other cases, and not upon a view of the premises as made by the appraisers ; so held under the charter of the N. & C. It. R. Co. Eord v. Nashville and Chattanooga B. B. Co., 2 Swan (Tenn.), 497. 1852. 236. — Wilmington, etc. R. R. Co. The jurisdiction of the county courts to review, confirm or set aside inquisitions under the law authorizing the W. & S. R. R. Co. to con- demn land, is special and limited, and no ap- peal lies from its decisions to any other court. Wilmington and Susquehanna B. B. Co. v. Con- don, 8 Gill and Johnson (Md.), 443. 1837. 237. Writ of error. A petition in error may be entertained in the supreme court to revise the judgment of the probate court in a proceeding for the appropriation of land by a railroad corporation for its right of way. Atlantic and Ohio B. B. Oo. v. Sullivant, 5 Ohio St., 276. 1855. 238. — The limitation of fifteen days, fixed for the commencement of proceedings in error, by § 9 of the act of April 80, 1853, " to provide for the compensation of owners of EMINENT DOMAIN. 209 Proceedings Generally, property appropriated to the use of corpora^ tions," is not, by implication, repealed nor superseded by the provisions of § 523 of the Code of Civil^Procedure. Buckingham v. Steu. tenmlle and Indiana B. B. Go., 10 Ohio St., 25, 1859 ; see Little Miami B. B. Co. v. Hopkins, 19 ib., 379, 1869. 239. — An order that all proceedings on a judgment shall be stayed, and that no writ of habere facias posessionum shall Issue thereon, until the final determination of a pending proceeding, to assess damages for taking the land recovered, " subject to such further order of the court as the justice of the case may re- quire," is not a final judgment, and is not re- movable by writ of error. O'Sara v. Penn- syhania B. B. Go., 2 Grant's Cases (Penn.), 341. 1858. 7. CosU. 240. Appeal. A railroad act provided for an appeal from the judgment of a justice of the peace, on an assessment of damages for land taken, etc., " as in other cases." Held, that by reducing plaintiflf s judgment five dol- lars or more on the appeal, the appellant was entitled to costs. Indiana Gentral B. B. Co. ii. Atkinson, 6 Ind., 149. 1855. 241 — Where the estimate of a petition- er's damages, as made by the county commis- sioners, is revised by a jury, on the applica- tion of either party, and the amount reduced, and the verdict of the jury is accepted by the court of common pleas, neither party is enti- tled to recover the costs of the hearing before the jury. Cfray v. Lowell and Lawrence B. B. Go., 4 Gushing (Mass.), 609, 1849; Harvard Branch B. B. Go. v. Band, 8 Gushing (Mass.), 218. 1851. 242. — charter. On an appeal, under the charter of the G. & C. R. R. Co., from the commissioners appointed to assess damages, the landowner may have judgment and exe- cution against the company for the amount as- sessed by the jury, but neither party is enti- tled to costs. Cheenville and Oolumbia B. B. Go. V. Pa/rtlow, 6 Richardson's Law (So. Car.), 386. 1853. 243, — There is no provision of law, by which the A. & St. L. R. R. Co. can be com- pelled to pay for the services and expenses of 14 • the commissioners employed in assessing the damages sustained by the owners of the lands through which the road was built. Atlantic and St. Lawrence B. B. Go. ■». Gumlerland Gownty Gommissioners, 38 Me., 113. 1848. 244. — losing party. R. S., ch. 51, § 8, provides that when an appeal is taken from the county commissioners' assessment of dam- ages, the losing party is to pay the cost thereon. Where the commissioners had estimated the damages at $650, and, on appeal by the corpo- ration, the jury estimated the damages at $435, it was held, that the company was the losing party, and liable for costs. Bangor and Pis- cataquis B. B. Go. V. GhaniberlaCn, 60 Me., 285. 1872. 245. — must be paid by company. Ex- penses attending an assessment of damages in acquiring right of way include costs; both costs and damages are to be paiifl before the land condemned can be taken. Ghicago and Milwaukee B. B. Go. v. Bull, 20 111., 218. 1858. 246. — not recoverable unless provided by law. In a proceeding against a railroad company to recover damages for injury done to the lands of an individual, costs are not re- coverable unless given by the statute which provides the remedy. Herbein v. Bailroad Go., 9 Watts (Penn.), 273. 1840. 247. — A judgment in a proceeding to as- sess damages for land taken by a railroad company, which requires that not only the amount assessed by the jury, but also the costs of suit shall be paid before the land shall vest in the company, is erroneous. Evansville, In. dianapolis and Cleveland B. B. Go. v. Pitzpat- rick, 10 Ind., 130, 1858; Same v. Stringer, ib., 551. 248. — Under the act of the 8th of Febru- ary, 1884, supplementary to the act to incor- porate the Philadelphia, Germantown and Norristown R. R. Co., one who obtains an award for damages is not entitled to the costs of his witnesses examined before the juiy ap- pointed to assess the damages. Philadelphia, etc., B. B. Go. ■». Johnson, 3 Wharton (Penn.), 375. 1836. 249. — what fees are costs. The term costs includes officer's fees as well as the par- ty's own charges for witnesses, where witnesses can legally be called and examined. Pennsyl mnia B. B. Go. v. Zeifer, 23 Penn. St., 356 1853. 210 EMIIfENT DOMAIN. Proceedings Generally. 8. General matters. 250. Abandonment. In contemplation of law, the right of way for a railway, acquired under the right of way act, is tal^en by the state for public use ; it is therefore competent for the legislature to provide for its transfer to another company, upon the failure of the company, for whom it was first condemned, to construct its road for a prescribed period, and upon compensation being made to the latter. Noll v. Dubuque, B. and M. B. B. Co., 33 la., 66. 1871. 251. — Where the right of way is conveyed to a railway company upon condition that the road shall be built within three years, and kept up and operated, the grantor cannot in- quire into the legality of the conveyance of such right of way by the company to another company, so long as the road is operated as a railroad. Louismlle and Nashville B. B. Co. V. Omington, 2 Bush (Ky,), 526. 1866. 252. — An easement acquired by express grant, instead of by prescription, is not lost by mere nonuser, where the owner of the ser- vient estate does no act which prevents the use. Noll v. Dubuque, B. and M. B. B. Co., 32 la., 66. 181. 253. Action at law. Where no remedy is given for the taking of private property for railway purposes, a suit may be brought at common law. Indiana Central B. B. Co. v. Boden, 10 Ind., 96, 1858; Lafayette Planleroad Co. v. New Albany and Salem B B. Co., 13 ib., 90, 1859. 254. Additional lands. Additional lands should not be taken for railway purposes un- less in a case of actual necessity, and it must clearly appear that the company has not already a sufficient quantity. On such ap- plication it is not necessary for the owner to raise the objection in his pleadings that the company has land enough; the court will act upon the ascertained facts. Jefferson and Pontahartrain B. B. Co. v. Miiaeur, 7 La. An., 182. 1853. 255. — The 8. & E. R. R. Co. was author- ized to take a strip of land for its road not exceeding 66 feet wide. The C. R. R. Co. was authorized to purchase the road of the former company. The latter company had the right to a roadway 100 feet in width. Held, that under the legislation in this case, the C. R. R. Co. had the right to widen the road purchased to a width not exceeding 100 feet. Childs «. Central B. B. Co., 4 Vroom (N. J.), 823. 1869. 256. — The fact that a railway company has constructed its road in accordance with the maps and surveys originally filed, does not prevent it from condemning other land which may be necessary for its purposes. Virginia and Truckee B. B. Co. v. Lov^oy, 8 Nev., 100. 1873. 257. Alteration of line. The 8. C. R. R. Co. may, under its charter, acquire lands by purchase or otherwise, as well for the imrpose of varying, altering and repairing the road, as for the original purpose of locating and constructing it. South Carolina B. B. Go. v. Blake, 9 Richardson's Law (So. Car.), 228. 1856. 258. — But the land owner may have the preliminary question of the necessity for taking such land, first tried. Ib. 259. — The company is liot confined to its first location, but may alter the same. Sovfh Carolina B. B. Co.. ex paHe, 3 Richardson's Law (8o. Car.), 434. 1846. 260. — Where a railroad company changes the line of its road, the change operates as an abandonment by it of the land upon the line deviated from, so that it can no longer claim any right or interest in such land, or in any easement growing out of it. Staeey v. Ver- mont Central B. B. Co., 27 Vt., 89. 1854. 261. —The defendant surveyed and located its road over plaintiflfs land, and had the damages appraised and the award of the com- missioners recorded, but did not pay or de- posit the sum awarded, and subsequently al- tered the location of its road and abandoned the route over plaintiflf 's land. Held, that an action of debt could not be maintained on the award. Ib. 262. — Where there is no detriment to the public, and there is a manifest necessity for the change, a railway company may relocate and change its line, and in so doing, it has the power to take lands in invitum for the pur- pose of such relocation. Mississippi and Tennessee B. B. Co. v. Devaney, 43 Miss., 555. 1869. 263. — This is a right incidental to the. power to repair and maintain a railway. Ib. 264. Arbitration. Where the officers of a railway company were intrusted with the power of making purchases^ and, without ex- EMINENT DOMAIN. 211 Proceedings Generally. press authority from the company, were in the habit of agreeing upon a price by a sub- mission to arbitrators, and the awards in such cases were paid by the company's financial oflScers, under a general resolution to pay the amount they directed, held., that the officers had power to submit the question of price to arbitrators, and their award was binding on the company. Wood e. Auburn and Rochester R. R. Co., 8 N. Y., 160. 1853. 265. — Under the act incorporating the Auburn and Kochester E. R C6., the corpo- ration was authorized, after determining upon the line of its road, but before it had filed its certificate of location, to acquire lands for the construction of the road by purchase, or by an agreement to purchase at a price to be fixed by arbitrators. Ih. 266. — Although a charter provides for a compulsory arbitration of the value of prop- erty, it is competent for the parties to mutu- ally agree upon a greater or less number of persons than is provided by law. La Crosse and Milwaukee R. R. Co. v. Seeger, 4 Wis., 268. 1855. 267. — The assessment of damages against railroad companies for the appropriation of lands may legally be made by arbitrators ap- pointed by the court, or by jurors selected in the manner prescribed by the statute ; but no person owning land within one mile of the contemplated railroad is competent to act either as an arbitrator or juror. MeMahon v. Cincinnati and Chicago Short Line R. R. Co., 5 Ind., 413. 1854. 268. — On an appeal in the supreme court from a judgment of the court of common pleas, accepting the verdict of a sherift''s jury impaneled to revise the estimate of county commissioners, on an application for dam- ages, it cannot be objected that the commis- sioners had no jurisdiction, by reason of the parties having agreed to refer the damages to arbitration; but such objection, if relied upon, must be taken before the commissioners as a ground for not ordering a jury. Field b. Ver- mont and Massachusetts R. R. Co., 4 Gushing (Mass.), 150. 1849. 269. — Where the question of damages is submitted to arbitration, and the time of pay- ment is not agreed upon, the damages must be paid before the right of way can vest in the company. Stewart v. Raymond R. B. Co., 7 Smedes & Marshall (Miss.), 568. 1846. 270. — Where it is submitted to arbitrators to determine the value of land to be taken for a railroad, by reason of the road running across it, an award of damages need not speci- fy separately the sum fixed for the value of the land, and for the damages. All that is necessary is that the whole shall be consid- ered. Wood V. Auburn and Rochester R. R. Co., 8 N. Y., 160. 1853. 271. — A railroad company took possession of land required for its track under an agree- ment to pay the value, to be appraised by ar- bitrators, in ten days after notice of their award, and upon the tender of a deed convey- ing an unincumbered title. Held, that after a tender of a deed and a failure to specify the objection, to an incumbrance upon the title — which was removed eight days afterwards — the corporation continuing in the possession of the land, could not resist a specific per- formance on the ground that the plaintiff had not strictly performed the condition precedent on his part. Viele v. Troij and, Boston R. R.. Co., 20 N. Y., 184, 1859. Same v. Same,21 Barbour (N. Y.), 381. 1855. 272. Coal mining companies. A mining company has no right under its charter to condemn land for use in the construction of a railway from its mine to another railway, unless such right is clearly granted to it. A provision that " in respect to such railroad, it shall be governed by the acts in relation to railroads, so far as applicable thereto," is not sufficient to confer the power to condemn land for its railway track. Miami Coal Co. v. Wigton, 19 Ohio St., 560. 1869. 273. Competing lines. The acquisition ot lands to prevent interference of competing lines, or for purposes of speculation, cannot be consummated under the statutes authorizing the taking of private property for public use. Rensselaer and Saratoga R. R. Co. v. Davis, 48 N. Y., 137. 1870. 274. Such statutes are to be strictly con- strued, lb. 275. Coroner. Where proceedings for the assessment, by a jury, of damages for land taken by a railroad company, are conducted in part by a coroner, under the Revised Stat- utes, ch. 24, § 23, and in part by the sheriff, it is the duty of each of those officers to certify the proceedings which take place before him, and, in such case, where the coroner presides, 212 EMINENT DOMAIN. Proceedings Generally. it is no objection to the verdict, that tlie jury- are not attended by a deputy sheriff. Pittsfield and North Adam» B. B. Co. v. Foster, 1 Cusli- ing (Mass.), 480. 1848. 276. Corporate antliority. Corporate ex- istence, and the right to exercise the power of eminent domain, can only be derived from legislative enactment; and before a company can demand a judgment of condemnation, it must show that both have been conferred upon it by a valid law, and that it has substantially complied with the conditions which the law has annexed to the exercise of the power. Atkinson t>. Marietta and Cincinnati B. B. Co., 15 Ohio St., 31. 1864. 277; Estoppel. The owner of lands hav- ing received compensation for the right, of way, is estopped from afterwards claiming any right to the lands while they are in the posses- sion of the company. Dodge v. Burns, 6 Wis., 514, 1859 ; Barns v. Mihoau/cee and Mississippi B. B. Co., 9 Wis., 450. 1859. 278. — The acceptance of the value is also an acquiescence in the taking of the land as to the amount taken. lb. 279. — Though equity might estop a land owner permitting a railway company by lay- ing a track upon land for the use of its road, from regaining possession, it would not estop him from recovering damages. The company would not be permitted to hold land and money both. Western Pennsylvania B. B. Co. V. Johmton, 59 Penn, St., 390. 1868. 280. — The company having taken and appropriated lands, and having, by an agree- ment with the parties, had the damages as- sessed, is estopped from disputing the title of its vendor without showing a paramount title in itself. La Crosse and Milwaukee B. B. Co. v. Seeger, 4 Wis., 368. 1855. 281. Heirs. Where a bill in equity alleged that the plaintiff and his brothers and sisters, as the heirs-at-law of their mother, were the owners of certain land taken for railroad pur- poses, and that the company had never made them any compensation for his interest there- in ; and it was alleged, in the answer of the company, that all the damages arising from the taking of the same, except thirty-five cents, were paid over to the heirs of plaint- iff's mother; and the committee to whom the cause was referred, found that D., one of the heirs, for the purpose of making an equitable distribution, divided the sum received by him among his co-heirs; Md, that such finding was consistent with the allegations of the pleadings. Whittlesey v. Hartford, .Providence and Fishkill B. B. Co., 33 Conn., 431. 1855. 282. Joint liability of two companies. Two railway companies authorized by statute jointly or severally to locate, construct and maintain a railroad, if they file a joint loca- tion, are jointly liable for damages. Grand Junction B. B. Co. v. County Commissioners of Middlesex, 14 Gray (Mass.), 553. 1860. 283. Limitations. Tlie statute of limita- tions as to actions for damages caused by tak- ing lands for railway purposes, may be changed by the legislature. Oowen v. Penobscot B. B. Co., 44 Me., 140. 1857. 284. — The filing, with the clerk of the county commissionfirs, within three years after the filing of the'.ocation of the railroad, of a petition for the assessment of damages for land taken for such road, is not a suffi- cient application to the commissioners, under the Rev. 8ts., ch. 39, § 58 ; and if the commis- sioners tirst take action thereon after the expi- ration of the three years, their proceedings will be quashed on certiorari. Charles Biver Branch B. B. Co. v. County Commissioners of Norfolk, 7 Gray (Mass.), 389. 1856. 285. — A right of way, acquired by deed, will not be forfeited by a mere nonuser. Bar- low V. Chicago, Bock Island and Pacific B. B, Co., 39 Iowa., 376. 1870. 286. Lunatic. Where the land of a lunatic had been occupied for several years by a rail- road, it was held proper, in assessing the dam- ages, to allow interest thereon from the time of the entry to the time of tlie assessment. Bailroad v. Gesner,, 30 Penn. St., 340. 1853. 287. Minors. Where one of the owners of land taken was an infant, it was lield, that it was indispensable that some proper person should be appointed to appear for such infant before the jury of appraisers, and to attend to her interests, on the appraisement. Motchkina V Auburn and Bochetter B. B. Co , 36 Barbour (N. Y.), 600. 1863. 288. — Held, alto, that although an attor- ney was appointed to appear before the jury and protect the interests of the infant, on the appraisement, yet if he failed to attend before the jury, or to represent her interests there, his appointment was nugatory. lb. EMINENT DOMAIN. 213 Jury, Viewers aacl Commissioners. 289. Monopoly. The plaintiff was not per- mitted to go into a general exhibit of the de- fendant's corporate transactions and rates of charge, to show that the defendant was claim- ing the land solely for the purpose of monop- oly or to prevent competition. Oregon Cascades R. B. Co. V, Baily, 3 Or., 164. 1869. 290. Necessity of taking land. The courts cannot enquire into the necessity of taking land for railway purposes. South Carolina a. S. Co. ex parte, 2 Richardson's Law (So. Car.), 434. 1846. 291. — Upon the application of a railroad company to appropriate lands, it is for the court to decide as to the necessity and extent of such appropriation, and the determination of the board of directors of such company is not conclusive upon that question. Rensselaer and Saratoga R. R. Co. v. Dams, 43 N. Y., 137. 1870. 292. Offer to donate not accepted. Evi- dence is inadmissible to show that the owner of the land had oflfered to permit the construc- tion of the I'oad upon a certain route without compensation, which offer was not accepted at the time. East Pemisylmnia R. R. Co. ». Heister, 40 Penn. St., 53. 1861. 293. Side tracks. Under the general cor- poration act of 1853, a railroad company has power to condemn land for new side tracks leading from the main road to its depot buildings, whenever they become necessary in the proper management and operation of the road. Toledo and Wabash R. R. Co. v. Daniels, 16 Ohio St., 390. 1865. 294. — Eailroad companies have implied powers under their charters to make such side tracks and continuations at the termini of their roads as may be reasonable and neces- sary for the transaction of their business and the accommodation of the public; and they may take private property for that purpose. Protzman «. Indianapolis and Cincinnati R. JJ. Co., 9Ind.,467. 1857. 295. — A continuation of the track of the Indianapolis and Cincinnati Bailroad 200 rods beyond the depot at Lawrenceburgh was not an unreasonable exercise of such power. Tb. 296. Statute. The legislature cannot take land from the owner and give it to a corpora- tion, even for a public purpose; it must pro- ceed in conformity to the law, and the com- pensation must be j^udicially ascertained, and cannot be fixed by statute. United States i). Illinois Central R. R. Co., 2 Bissell (U. 8. C. C), 174. 1869. 297. — If a statute which gives a remedy to recover damages be repealed, and afterwards the repealing statute be repealed, it revives the remedy under the original statute. Direct- ors of the Poor v.Railrod Co., 7 Watts and Ser- geant (Penn.), 236. 1844. 298. Substantial compliance. "When the law concerning the condemnation of lands for railroads (W. S., 326, Art. 5), is substan- tially complied with, and a sufficient cer- tainty is used to prevent surprise, or so much as not to mislead, it is all that the law re- quires. Quincy, etc., R. R Co. v. Kellogg, 54 Mo., 334. 1878. III. Jury, viewers and commis- sioners. 299. Jury — appeal. The provision in the charter of the Vermont Central R. R. Co. which authorizes a person, whose land has been taken for the use of the company, and who feels aggrieved by the appraisal of dam- ages by the commissioners appointed in pur- suance of the charter, to appeal to the county court, and which provides that the decision of the county court shall be final in the matter, does not entitle the person thus appealing to have his damages assessed by a jury; as, in analogous cases, damages are assessed by the court or commissioners appointed by it, and no dift'erent rule is prescribed in the charter. Gold V. Vermont Central R. R. Co., 19 Vt., 478. 1847. 300. — by whom applied for. County commissioners' appraisement of the damage done to an individual by the location of a railroad across his land, may be revised by a jury, as well upon the application of the cor- poration as upon that of the land owner. Kimball i). Kennebec and Portland R. R. Co., 35 Me., 255. 1853. 301. — challenge. No peremptory chal- lenge lies to any member of a jury summoned to assess damages for the right of way, unless such right is given by statute. Confers v. Orand Rapids and Indiana R. R. Co., 18 Mich., 459. 1869. 302. — The statute— 2 Comp. Laws, § 4400 — allowing two peremptory challenges 214 EMINENT DOMAIN. Jury, Viewers and Commissioners. in " civil cases," does not apply to siDecial pro- ceedings, lb.; Peninsular R. B. Co. v. How- ard, 'iO Mich., \i. 1870. 303. — constitutional law. The apprais- ers are a jury within the meaning of the con- stitution of New Tork. Cruger v. Hudson Biter B. B. Co., 13 N. Y., 190. 1854. 304. — A citizen has no right to a juiy trial in proceedings by the state under her powers of eminent domain. Pennsylvania B. B. Go. «. Lutherrn Congregation of PittsburgTi, 53 Penn. St., 445. 1866. 305. — A law providing for the assessment of damages is not unconstitutional because it provides that the assessment shall be made by commissioners instead of a jury. Buffalo Bayou, Brazos, etc., B. B. Co. v. Ferris, 36 Tex., 588, 1863 ; Houston Tap, etc. B. B. Co. n. Milburn, 34 ib., 334, 1870. 306. — The assessment need not be made by a jury of twelve freeholders, it not being a controversy respecting property within the meaning of § 14 of the Bill of Rights. Nor is it such a " trial by jury as that section re- quires to remain 'sacred and inviolable.'" Baleigh and Oaston B. B. Co. v. Davis, 3 Dev- ereux and Battle's Law (N. C), 451, 1837; Mc- Intire «. Western North Carolina B. B. Co., 67 N. C, 378. 1873. 307. — In order to take land for railway purposes, compensation must be made, but it is not necessary that the law should give the right to try the question of damages by a j uiy. Mt. Washington B. B. Co., Petition of, 35 N. H., 134. 1857. 308. — Upon an appeal to the circuit court from a proceedirg belore a justice of the peace to assess damages sustained by the owner of land taken for public use under § 9 of the act to incorporate the Evansville and Illinois K. R. Co. (Local Laws, 1849), the cir- cuit court, sitting as a court of chancery, may take the opinion of a jury upon a single ques- tion of fact, but in such cases trial by jury is not a constitutional right. Evansville and Craw fordsville B. B. Co.v. Miller, 30 Ind., 309. 1868. 309. — drawing. Under the statute. Laws of 1864, p. 14, the jury must be drawn under the order of the court and in the presence of the court, and if not made thus, it is illegal. Conoers v. Grand Bap^fis and Indiana B. B. Co., 18 Mich., 459. 1869. 310. — empaneling. In empaneling a sheriff"'s jury, summoned to assess damages for land taken for railway purposes, the par- ties are not entitled to have the names of the jury placed separately in a box and drawn in accordance with R. S., ch. 83, § 66. Nor have they the right to two peremptory challenges. Davis V. Bangor and Piscataquis B. B. Co., 60 Me., 303. 1873. 311. — fees. In an action to expropriate land for a railway, the plaintiflFs are not bound to pay jurors for their attendance. Act, 1855. Vicksburg, Shreveport and Texas B. B. Co. v. Hart, 15 La. An., 507. 1860. 312. — instructions to sheriff's jury. On a trial before a sheriff's jury, the sheriff can- not be called upon to instruct the jury as to the weight, effect, or sufficiency of the evi- dence. Commonwealth v. Boiiton and Maine B. B. Co., 3 Cushing (Mass.), 35. 1849. 313. — notice. Where the charter of a railroad company directed that in case of a disagreement between the company and the owner of any land taken for the constitiction of the road, as to the value of the land, upon the presenting of a petition to a judge, the latter should direct the sheriff to give public notice in at least one newspaper printed in the county, that on a specified day he would, together with the county clerk, at the clerk's office, proceed to draw a jury, to appraise the damages. Held, that this was all the notice of the drawing of the jury which the owner was entitled to. Polly v. Saratoga and Wash- ington B. B. Co., 9 Barbour (N. Y.),449. 1850. 314. — parties. The want of proper par- ties, to a proceeding before a sheriff's jury, for the assessment of damages for land taken for a railroad, must be urged before the commis- sioners, upon the application for such jury. Meacham v. Fitchburg B. B. Co., 4 Cushing (Mass.), 391. 1849. 315. — qualifications. Under the charter of the N. O., etc., R. R. Co., it is not necessary that a juror should be a freeholder in the county in which the damages are to be as- sessed. It is sufficient if he is a freeholder in the state. New Orleans, Jackson and Great Northern B.B.Co. v.Hemphill, 35 Miss., 17. 1858. 316. —And if the juror holds the title to lands under a bond conditioned that the obligor shall convey a fee title to the pur- chaser, upon the payment of the purchase money, this co.astitutes hyn a freeholder. Ib. EMINENT DOMAIN. 215 Juiy, Viewers and Commissioners. 317. — Wlien several applications are made, at the same time, by owners of lands in different towns for a jury to assess damages caused liy the laying out of a railroad, the jurors are to be taken from three towns near- est to the town in which the laad of either of the applicants is situated. And when a single application, for such purpose, is made by one who owns lands in difl'erent towns, the jurors are to be taken from three towns nearest to either of the towns in which his lands are situated. This is all that is practicable under E. S., ch. 24, § 15, and ch. 39, § 57. Wyman V. Lexington and West Cambridge R. B. Co., 13 Metcalf (Mass.), 316. 1847. 318. — In summoning a jury under the Gen. Sts., ch. 43, § 38, to assess damages for the taking of land for a public use, the direc- tion of the statute that the jurors shall be returned from the " three nearest towns " refers to the neighborhood of these towns to the town in which the land lies, without regard to the situation of flie land within that town. Seed v. Hanover Branch R. R. Co., 105 Mass., 803. 1870. 319. — The "three nearest towns not in- terested," from which jurors are to be taken to estimate the damages caused by the laying out of a highway or railroad, are the three towns nearest to and exclusive of the town in which the land lies, over which the highway is laid. Meaeham v. FitcMmrg R. R. Co., 4 Gushing (Mass.), 391. 1849. 320. — Where the claimant w^as present and did not make any challenges, the objec- tion to the report of the jury that it does not appear that they were freeholders, in the ab- sence of any showing to the contrary, is not well taken. Mansfield, Cold Water and Lake Michigan R. R. Co., v. Clark, 23 Mich., 519. 1871. 321. — The first appraisers appointed under § 15 of the railroad act (1 G. & H., 509, 510), must be freeholders; and if the court, upon exceptions, order a new appraisement, the appraisers must possess the same qualifi- cation ; but if cither of the parties excepting to the first appraisement insists upon a jury trial, the jurors need only be reputable house- holders. It is otherwise, if the proceedings are under the act relating to the writ for the assessment of damages. Louisville, New Al- laruy, etc., B. R. Co. v. Dry den, 39 Ind., 393. 1873. 322. — selection of jurors. Under an act directing that a precept be issued to the sheriff to summon a jury, it is irregular for the sher- iS to select a jury from a list of names pre- pared by his deputy. Pennsylvania R. R. Co. V. Beisteir, 8 Penn. St., 445. 1848. 323. — stockholder. A stockholder of a railway corporation is not a comijetent juror to assess damages for taking lands for right of way for such corporation. Peninsular R. R. Co. v. Reward, 20 Mich., 18. 1870. 324. — When such juror is known to the railway company to be a stockholder, it must disclose the fact. lb. 325. — The assessment of a jury, a mem- ber whereof is thus disqualified, is void. lb. 326. — Such jurors must be freeli«lders. J6. 327. — struck jury. Where a jury is formed under the statute, by each party strik- ing out certain names, furnished by the shei- iff,'the sheriff cannot, in filling up the panel, take as a juror a person whose name has been stricken out. In re Detroit and Pontiac R. R. Co., 3 Douglass (Mich.), 367. 1845. 328. — swearing the jury. The return of Uie sherifl;" that the jury "were duly empan- elled and sworn according to law, to discharge their duties," will be construed to be a state- ment that the jury were properly sworn, and not a recital of the substance of the oath ad- ministered. New Orleans, Jackson and Great Northern R. R. Co. ■». Semphill, 35 Miss., 17. 1858. 329. — time of applying for a jury. — Though an original petition for ajury to as- sess damages is not seasonably filed, if it be after the regular rneeting of the county com- missioners next following that at which they completed and retui-ned their estimate, yet if such petition be filed at the same meeting at which they complete and return such esti- mate, and they thereupon, without notice to the railroad corporation, pass an order and issue a warrant for the summoning of a jury, and the warrant is not served, they are author- ized, and ought, upon motion of the land owner, though the motion be not made until after their next regular meeting, to issue an order of notice to the railroad corpo- ration to show cause why a jury should not be summoned on the original petition; the first order for a jury being void, for want of such notice, and the original petition being 216 EMINENT DOMAIN. Jury, Viewers and Oommissioners. still pending. Porter v. County Oommissioners of Norfolk, 13 Metoalf (Mass.), 479. 1847. 330. — Under the Kev. Sts., ch. 39, § 57, ■which provides that a party, who is dissatis- fied with the estimate made by county com- missioners, of the damages caused by taking land for a railroad, "may apply for a jury to assess the damages, either at the same meeting at which such estimate shall be completed and returned, or at the next regular meeting thereafter, if a party applies for a jury at the same meeting at which the estimate is com- pleted and recorded, and a jury is then ordered, and a warrant therefor issued, he cannot, by merely omitting or refusing to proceed under that order and warrant, entitle himself to a jury on applying therefor at the next regular meeting of the commissioners. Taylor v. County CommissioTiers of Plymouth, 13 Met- calf (Mass.), 449. 1847. 331. — when to be applied for. Under the statute of January 13, 1837, " providing for the assessment of damages for land taken for railroad corporations," an application for a jury is seasonable if made at the term next after the acceptance of the report of the com- mittee. Concord B, R. Co. ii. Qreely, 30 N. H., 157. 1849. 332. — verdict — amount of land taken. Where commissioners to determine compensa- tion for land taken for a railroad, awarded such compensation for a strip one hundred feet wide, it was not necessary, on appeal to the circuit court, to determine by verdict the amount of the land taken. Bigelow v. West Wisconsin S. R. Co., 27 Wis., 478. 1871. 333. — If the judge has' directed the jury to return a verdict determining that question, he may receive a verdict which fails to deter- mine it. lb. 334. — damages. Where the court of common pleas was authorized to set aside the verdict of a jury empanelled to assess dam- ages and refused to do so, the supreme court will not interfere on the ground that it differs from the jury as to the amount of damages. Railroad v. Oesner, 30 Penn. St., 340. 1853. 335. — Nor will the supreme court exam- ine the evidence given before the viewers. Ohio and Pennsylvania R. R. Co. v. Bradford's heirs, 19 Penn. St., 863. 1853. 336. — impeaching verdict. The verdict of the juiy will not be set aside on the cer- tificate of one of the jury that their verdict is too high, when there is no evidence of mis- ctmduct upon the part of the jury. Carrollton B. R. Go. v. AmH, 11 La. (O. S.), 190. 1837. 337. — Whether the evidence of jurors summoned to assess damages will be received to impeach their vei-dict, quxre^ New Orleans, Jackson and Great Northern B. B. Co. v. Me. Bride, 38 Miss., 33. 1859. 338. — necessity of the taking, A find- ing in the verdict that " it is necessaiy that said real estate and property should be taken for the purposes of the company," is not such a finding of the necessity for taking property for public use, as is required by art. 18, § 3 of the state constitution. Mansfield, Cold Water and Lake Michigan B. R. Co. v. Clark, 33 Mich., 519, 1871 ; Grand Rapids, Newaygo and Lake Bliore R. R. Co. ■». Tan Driele, 24 ib., 409, 1873. 339. — The jury must be satisfied, not only that the taking is necessary for the construc- tion of the work, but that the work itself is one of public impbrtance. Ib. 340. — special findings. The court in an- swer to a point that the jury should be in- structed to specify the damages, charged that they ought to consider each item separately and the sum total would be tlieir verdict, and their verdict might be returned, with or with- out the specification of the items. Held, not to be error. Western Pennsylvania R. B. Co. i>. Hill, 56 Penn. St., 460. 1867. 341. — It is not error to direct the jmy that if they find for the plaintiff, they should specify in their verdict the items or subjects for which they allowed damages, stating the sum for each item, adding them together, and returning in one general sum the items, with the addition. Harvey v. Lackawanna and Bloomsburg B. R. Co., 47 Penn. St., 438. 1864. 342. — A jury is not bound to state the items of the damage in their verdict, and should they do so, a court of error will not look at the items. Delaware, Lackawanna and Western R. R. Co. v. Burson, 61 Penn. St., 369. 1869. 343. — A sheriff's jury, in making up their verdict, may, if they think proper, consider each item or charge of damage separately, and state in their verdict what items they allow, and the amounts thereof, severally, and what they reject, and where the verdict is re- turned in this form, any item of damage. EMINEJKT DOMAIN. 217 Jury, Viewers and Commissioners. which, in point of law, is objectionable, may be remitted or deducted, without setting aside the verdict. Fitehburg It. B. Go. v. Boston and Maine B. B. Go., 3 Gushing (Mass.), 58. 1849. 344. — unanimous. A verdict must be unanimous under the general railroad law, or it is a nullity. GMcago and Michigan Lake Shore B. B. Go. v. Sanford, 23 Mich., 418. 1871. 345. — when set aside. A verdict of a jury empanelled to assess damages, unless it is manifestly against the evidence, will not be disturbed. Illinois and Wisconsin B. B. Go. v. Van Horn, 18 111., 257. 1857. 446. — The superior court has authority, under Gen. Sts., ch. 43, § 40, to set aside the verdict of a sheriff's jury, upon the ground that the verdict is against the weight of the evidence. Fitcliburg B. B. Go. ^. Eastern B. B. Go., 6 Allen (Mass.), 98. 1863. 347. — Where the question of damages for a right of way is fairly submitted to a jury, no benefit being likely to result to the owner of the land, the superior court will not dis- turb the verdict on account of the amount. Toniea and Petersburg B. B. Go. v. Unsiclcer, 22 111., 221, 1859; Same v.Boberts, ib., 234. 348. — view. The propriety of sending the jury to view the premises, rests in the sound discretion of the court. King v. Iowa Midland B. B. Go., 34 la., 458. 1872. 349. — Where the jury was sent to examine the premises, and the record contained noth- ing in relation to the impression produced upon the minds of the jury by the examina- tion, held, that the evidence was not all in the record, though the bill of exceptions stated that it contained it all. Evansmlle, Indianapo- lis, and Cleveland B. B. Go. v. Cochran, 10 Ind., 560,1858; overruled, see Jefersonville etc., B. B. Go. V. Bowen, 40 ib. 545, 1873. 350. — When a view has been had, and counsel have accompanied the jury, and knowing the facts, consent to conclude the trial, it is too late, after verdict, to raise the IJoLnt that the jury did not have a full view of the premises. Oregon Cascades B. B. Go. v. Ore- gon Steam Nam. Go. 8 Or., 178. 1869. 351. — Where the jury had viewed the premises, it was held proper to refuse to per- mit the plaintifi to ask a witness whether the roads crossing and recrossing the railroad rendered it more or less dangerous for horses, cattle and teams. The question was immate- rial. Pinneo v. Lackawanna and Bloomsburg B, B. Co., 43 Penn. St., 361. 1863. 352 — waiver of objections. Any objec- tion to the competency of a sheriff's jury will be deemed waived, unless taken at the trial. Jameson i>. Androscoggin B. B. Co., 53 Me., 413, 1804; Merrill v. Same, ib.; White v. Same, ib. 353. — Their verdict will not be set asido because the officer presiding at the hearing, instructed the jury that they should first view the several lots of the several respective peti- tioners, and the.hearings thereon Should be at one time, and in their order. Ib. 354. — warrant for a jury. Where the damages, occasioned by the construction of a railway, are estimated by county commis- sioners, and both parties being dissatisfied with the estimate, apply to the commissioners for a warrant for a jury to revise the damages, it is only necessary that one warrant should be issued ; but if separate warrants are issued on both petitions, the sheriff should execute and return them as one. Davidson i>. Boston and Maine B. B. Co., 3 Gushing (Mass.), 91. 1849. 355. — appeal. The propriety of the order appointing the commissioners which con- tained their instructions, is subject to examin- ation by the supreme court. Lee v. Tebo and Neosha B. B. Co., 53 Mo., 178. 1873. 356. Viewers and commissioners — ap- pointment. If a railroad company fails to comply with the necessary prerequisite for obtaining the appointment of commissioners of appraisal, it does not secure the right to have the property 'condemned, against the op- position of its owners. New York and Boston B. B. Co., In matter of, 63 Barbour (N. Y.), 85. 1871. 357. — by whom appointed. There is no reason why commissioners shotild not be ap- pointed to assess damages by the courts, in- stead of by the executive department of the government, as the constitution does not point out the way in which private property shall be taken. Virginia and Tnickee B. B. Co. ■». Mlliott, 5 Nev., 358. 1870. 358. — An act which provides for a con- demnation of land by an application to the senior county commissioner, in the absence of the circuit judge, may be executed by the judge of the county court, these latter officers 218 EMINENT DOMAIN. Jury, Viewers and Commissioners. having taken tlie place of the county commis- sioner. Shute 1). Chicago and Milwaukee S. B. Co., 26 111., 436. 1861. 359. — how appointed. Under the rail- road act of 1850, the land owner may name six persons as commissioners, hut each owner is not entitled to name six persons. Troy and Rutland R. B. Oo. e. Cleveland, 6 Howard's Pr. (N. Y.), 338. 1851. 360. — Before commissioners of appraisal can he appointed under the general railroad act, the preliminary provisions of the act must be strictly complied with. Ifew York and Boston B. B. Co. v. Godwin, 12 Ahbott's Pr., N. S. (N. Y.), 21. 1871. 361. — Appraisers for the condemnation of land for the use. of the Galena and Chicago Union E. R. Co., receive hut one appointment, and when once sworn under it, their proceed- ings will be valid, although they may be di- rected to make a reappraisal. Low v. Oalena and Chicago Union B. B. Co., 18 111., 324. 1857. 362. — oath of viewers. Where, in pro- ceedings instituted in behalf of the Hannibal and St. Joseph R. R. Co., under its charter, to obtain the condemnation and appropriation of land upon which said railroad had been lo- cated, it was stated in the report of the view- ers appointed to assess the damages, that be- fore proceeding to examine the damages, they took the oath prescribed by the statute, but the oath itself wag not set forth : Jield, it not appearing that any objection was made to the report on this ground, that the recital in the report was sufficient to show that the required oath had been taken. Hannibal and St. Joseph B. B. Co. v. Morton, 27 Mo., 817. 1858. 363. — qualifications. The supreme court will not quash the proceedings to assess dam- ages for the reason that the record thereof does not show affirmatively that the viewers were citizens of the county. lb. 364. — Nor for the reason that the damages are inadequate. lb. 365. — The commissioners are quasi jurors, and should he, like them, free from all illegal disability. Bock Island and Alton B. B. Co. v. Lynch, 28 111., 645. 1860. 366. — It seems, that the relation of cousin existing between the wife of one of the com- missioners, and a stockholder in the company, is not such an affinity as to vitiate the report — no unfairness or injustice being complained of. Albany, Northern B. R. Co. i>. Cramer, 7 Howard's Pr. (N. Y.), 164. 1852. 367. — interested parties. It is no cause for setting aside the report of commissioners appointed to assess damages, that when they were appointed and made their report they were stockholders in the company, where the objection is urged by the company itself. Strang v. Beloit and Madison B. B. Co., IC Wis., 635. 1863. 368. — report of reviewers. The decision of the Court of Common Pleas, on an excep- tion to a report of viewers for the improper interference of a party with a jury, is the exercise of a discretion, which, like the grant- ing or refusing of a new trial, will not be reviewed by the Supreme Court. North Penn- sylvania B. B. Co. u. Bams, 26 Penn. St., 338. 1856. 369. — A report of viewers, appointed under the act of March 37, 1848, § 4, is fatally defective if it omits to state the value and quality of the land taken. Zaek v. Pennsylva- nia B. B. Co., 35 Penn. St , 394. 1855. 370. — It is not necessary that the owner of the land should have notice of the presen- tation of the petition and the appointment of viewers. lb. 371. — The report must also state the advan- tages and disadvantages to the owners, and also what part of the land is necessary for the use of the company. CHara v. Pennsylvania B. B. Co., 35 Penn. St.. 445. 1855. 372. — It is unnecessaiy for the report to set forth affirmatively that the parties were present at the time of the view, or that the witnesses were regularly called and sworn; the presumption is in favor of the regularity of the action of the viewers. Pennsylvania R. B. Co. V. Porter, 29 Penn. St., 165. 1857. 373. — The remedy for any actual illegal- ity of this kind is confined exclusively to thtj Common Pleas, where the facts maybe shown by evidence in pais. lb. 374. — In a proceeding to assess damages, under the act of March 29, 1848, for land taken by the Pennsylvania R. R. Co., a report, setting out the adjoiners and boundaries, with a draft showing the length, breadth, courses and dis- tances of the ground taken, without calculo; tion of the contents, sufficiently sets forth the quantity of land taken. Pennsylvania B. B. Oo. V. Bruner, 55 Penn. St., 818. 1867. EMINENT DOMAIN. 219 Compensation ; Various Elements of Damage. 375. — Tlie quality is sufficiently describe^ where it appears from the report that the land was in the town of C, and that it was used as a lumber yard, etc. lb. 376. — view. The commissioners cannot hear evidence. They are to judge from their examination of the premises. Yanwinckle v. Camden and Amboy S. S. Co., 3 Green's Law (N. J.), 163,1833; Coster v. New Jersey R. B. Co., 4 Zabriskie (N. J.), 730, 1853. 377. — The commissioners need not be controlled by the evidence taken before tliem as to the value of the property,, but must decide according to their own judgment; and an award made without testimony would be regular. Bondout and Oswego B. B. Co. n. Deyo, 5 Lansing (N. Y.), 398. 1871. lY. Compensation ; various ele- ments OF DAMAGE. 378. General principles; damages. In estimating the damages the correct rule is to ascertain the value of the whole tract of the owner without the railroad, and also what will be the value of the part not taken after the road is constructed, and the difference in value is the true compensation to be awarded. Ban Francisco, Alameda and Stockton B. B. Co. V. Caldwell, 31 Cal., 367; 1866; Mast Penn- sylvania B. B. Co. v. Sottenstine, 47 Penn. St., 38, 1864; BocJiester and Syracuse B. B. Co. v. Budlong,& Howard's Pr. (N. Y.), 467, 1851; Eornstein v. Atlantic and Great Western B. B. Co., 51 Penn. St., 87, 1865 ; Delaware, Lacka- wanna and Western B. B. Co. ■». Burson, 61 ib., 369, 1869 ; Canandaigua and Niagara Falls B. B. Co. V. Payne, 16 Barbour (N. Y.), 378, 1853; Albany and Susquelianna B. B. Co. v. Dayton, 10 Abbott's Pr. (N. Y.), N. S., 182, 1865; Troy and Boston B. B. Co. v. Lee, 13 Barbour (N. Y.), 169, 1853 ; Virginia and Truckee B. B. Co. v. Henry, % Nev., 165, 1873; Winona and St. Pe- ter B. B. Co. t>. Denrnan, 10 Minn., 267, 1865 ; Missouri Biver, Ft. Scott and Q-ulf B. B. Co. v. aM!«re,8K:an.,409,1871. 379. — In estimating the damages, the owner is entitled to recover: 1. The actual value of the land taken without any deduction for benefits. 3. Such damages as he actually sustains, resulting immediately and directly from the proper construction of the road, but not remote and speculative damages. 3. Nec- essary fencing caused by the construction of the road should be considered. 4. Damages to the entire tract caused by the construction of the road. In estimating the benefits, those only are to be considered which are peculiar to the owner, and not enjoyed in common with the community. Bobbins v. Milwaukee and Horicon B. B. Co., 6 Wis., 636, 1859 ; Mis- abethtown and Paducah B. B. Co. ■». Helm's Heirs, 8 Bush. (Ky.), 681, 1871. 380. — In estimating the damages for tak- ing a strip of land across a lot for the loca- tion of a railroad, the award must be restricted to direct injuries to the lot in question. Ban- gor and Piscataquis B. B. Co. v. McComb, 60 Me., 390. 1873. 381. — The jury should consider the value of the land taken; the diminution in value of tlie remainder of the lot; and in estimating the diminution in value, they may consider the use for which the strip is taken, the char- acter, situation, present and probable use of the remainder of the lot, the distance of the owner's buildings from the railway, and any facts which from the testimony and view the jury shall find injure the value of the premises by a proper and legal use of the road. Ib. 382. — The ringing of bells, the sounding of whistles, the rattling of the trains, the jar- ring of the ground and the smoke should be considered. Ib. 383. — The "value " — in the sense of § 9, of the act incorporating the Pacific K. K. Co. — of the land taken, is its value independent of the location of the railroad ; and the " disad- vantages," that may be taken into considera- tion, are the injuries resulting to the land- owner, in respect to the residue ' of the ti:act unappropriated, from the particular mode in which part thereof is taken, or the use to which it is applied. Pacific B. B. Co. v. Chrys- tal, 35 Mo., 544, 1857 ; Snyder v. Western Union B. B. Co., 25 Wis., 60, 1869. 384. — The actual damages resulting di- rectly from an invasion of the rights of property by the railroad company, is the true measure of damages. Selma, Borne and Dalton B.' B. Co. v. Gamp, 45 Ga., 180. 1872. 385. — In assessing the damages caused by the construction of a railway through a farm, a proper standard is the market value of the 220 EMINENT DOMAIN. Compensation ; Various Elements of Damage. lanfl taken ; tlie jury may also allow for the disaclvantages resulting from the manner in which it is cut. East Pennsylvania JH. R. Oo. V. MoUenstine, 47 Penn. St., 28. 1884. 386. — In assessing damages the jury should consider the value of the land appropriated, together with any injury to the residue of the land, naturally resulting from the appropria- tion, such as the cutting of fields into incon- venient shapes, the interruption of convenient access to stock water, the necessity of addi- tional fencing, etc. White Water Valley R. R. Oo. V. McOlure, 29 Ind., 536. 1868. ' 387. — ^The me.. Oilson, 8 Watts (Penn,), 343. 1839. 422. — Where no part of the property of an existing company, or of an individual, is taken, unless the statute plainly authorizes a proceeding to assess damages for consequen- tial injuries, such damages may be recovered in an ordinary action at law. Lafayette Plank Boad Co. V. New Albany and Salem B. B. Co-, 13 Ind., 90. 1859. 423. — Consequential damages are not to be estimated unless provided for in the act of incorporation, and the failure to provide com pensation for such damages will not render an act unconstitutional. Beitenbaugh v. Chester Valley B. B. Co., 21 Penn. St., 100. 1853. 424. — Damages should be given for all in- jury done by the laying out of the road, to the tract of land through which it passes, includ- ing not only the value of the land actually taken, but all damage from inconvenient di- vision of the tract, and the necessity for addi- tional fencing. Mt. Washington B. B. Co., Petition for, 85 N. H., 134. 1857. 425. — But damages should not be given for the probable injury which the business of a landowner may suffer from competition, in troduced by the building of the new road. 76 426. — A railroad company, claiming to ac( under legislative authority, removed a natural barrier situatednorthofE.'s land, which there tofore had completely protected E.'s meadow from the effects of the floods of a neighboring river. In consequence of this removal, the EMINENT DOMAIN. 223 Compensation ; Various Elements of Damage. waters of the stream at times overflowed and injured E.'s land. Held, that this was a taking of E.'s property within the meaning of the constitutional prohibition, and that such in- jury could not be inflicted without compensa- tion. Eaton V. Boston, Concord, and Montreal B. B. Go., 51 N. H., 504. 1873. 427. — An action on the case would lie for the injury sustained. lb. 428. — If the owner of land, with buildings standing thereon, situated near the track of a railroad, but not crossed thereby, sustain any actual damage, capable of being pointed out, described and appreciated in such estate, in consequence of and as incident to the con- struction of the railroad, he will be entitled to recover compensation therefor, against the pro- prietors of the railroad, in the mode provided by the revised statutes. Parker v. Boston and Maine B. B. Co., 3 Gushing (Mass.), 107. 1849. 429. — If, in consequence of the excavation made for a railroad, the water of a well on an estate adjoining but not, crossed by the rail- road, is drawn off and the well thereby ren- dered dry and useless, the owner of such estate will be entitled to recover damages therefor, in the same manner as for land taken for the rail- road, lb. 430. — All incidental loss, inconvenience and damages, present and prospective, which may reasonably be expected to result from the construction and operation of the road in a legal manner, should be considered by the jury. Missouri, Kansas and Texas B. B. Co. V. Haines, 10 Kan., 439. 1872. 431. — The deposit of stones and earth be- yond the sixty feet appropriated for the road, is, in some sense, a taking of the land, and is a proper subject of compensation. East Penn- sylvania B. B. Co. V. Sehollenberger, 54 Penn. St., 144. 1867. 432. — In assessing, under the Gen. Sts,, ch. 68, § 21, the damages occasioned to a vacant tract of land by the location of a railroad which cuts off a corner of it, the depreciation of the land in value by reason of the prox- imity of the railroad, such as by "frightening horses and the like causes," does not constitute, of itself, a ground for recovery. Presbrey v. Old Colony and Nmport B. B. Co., 103 Mass., 1. 1869. 433. — The jury cannot consider, as an element of damages, that by the taking of Ela land for a railway, the plaintiff is deprived of the advantage of keeping others from his neighborhood, and thus saving himself from the annoyance and risk of their proximity. Patten v. Northern Central B. B. Co., 33 Penn. St., 426. 1859. 434. — Nor that he will suffer inconveni- ence and delay by having to convey his manu- factures across the railroad, and by reason of the obstruction of trains passing along it. lb. 435. — Individual property is exclusive as against individuals, but not as against society. Individual rights must yield to social ones. lb. 436. Consolidation of companies. A peti- tion against a railroad company to recover damages for the taking of land, alleged a loca- tion over part of the land by a former railroad company; a consolidation of such company into the respondent corporation ; a subsequent location by the respondents " in place of that previously made," whereby it " adopted and confirmed as its own " the former location and taking; and "that by the location of said road and taking aforesaid," the petitioner sustained damage. Held, that the petitioner could re- cover not only for the land taken by the former location, but also for additional land included in the new location. Pinkerton v. Boston and Albany B. B. Co., 109 Mass., 537. 1872. 437. Crossings. The jury may allow the actual damages incident to the taking of the land, arising from inconvenience in crossing the railway, and interfering with crossings al- ready established, also, from the failure or neglect of the company to construct the cross- ings required by law, but not for making the crossings themselves ; they are to be made by the company. East Pennsylvania B. B. Co. v. Hiester, 40 Penn. St., 53. 1861. 438. — Where crossings are made by the company, the jury, in estimating the damages, should not allow the expense of making the crossings to the landowner. March v. Ports- mouth and Concord B. B. Co., 19 N. H. 372. 1849. 439. — Whether it is Ihe duty of the com- pany or of its engineer to see to and keep in safe condition a crossing, or other unsafe point on a railroad, is a question of fact for the jury. Indianapolis and Cincinnati B. B. Co. V. Love, 10 Ind., 554. 1858. 440. — At the lime of the appraisal of the lands of plaintiff no location of the farm 224 EMINENT DOMAIN. Compensation; Various Elements of Damage. crossing was indicated on the profile bo- fore the commissioners, and there had been no agreement with reference to it, except that the plaintiff had in the presence of tlie defend- ants' agents, and before the commissioners, pointed out the place where he wanted the crossing made. Seld, that the plaintiff was entitled to an injunction to restrain the railway- company from locating the road through his land until a suitable crossing was provided or compensation for the damages sustained by making an unsuitable one. Wheeler v. JJoc/t- ester and Syracuse B. B. Co., 12 Barbour (N. y.), 337. 1851. 441. — The land owner may select the place for the crossing, and if it is not built tliere, the company is liable to make compen- sation for the selection at a more inconveni- ent place. lb. 442. — Where the plat required by the statute to be annexed to the petition of a rail- road company shows that the road is to be constructed with a viaduct at a particular point, for the convenient passage of the owner of lands which are severed by the construc- tion of the railroad, the jury should assess the damages with reference to such plan of con- struction. And if the corporation afterwards attempts to deprive the land owner of the ben- efit of such contemplated viaduct, the court of chancery will interfere for his relief Kyle «. Auburn and Bochetter B. B. Co., 3 Barbour's Ch. (N. Y.), 489. 1847. 443. — The owner of land over which a railroad is constructed has no right of action against the railroad company for damages resulting from the want of necessary farm crossings and cattle passes, unless it appears that the company has agreed to provide them, or that the land owner has made application to three justices of the peace and obtained their report, determining where and within what time such crossings and passes shall be made, agreeably to the provisions of § 5, ch. 598, Statutes of 1850. Home v. Atlantic and 8t. Lawrence B. B. Co., 86 N. H., 440. 1858. 444. — Neither the railway company nor the land owner has the right to determine sep- arately, and without the consent of the other party, the number and location of the farm crossings. Ch. 26, § 43, Comp. St. Connecti- cut and Paaavmpsie Bivers B. B. Co. v. HoUon, 32Vt.,43. 1859. 445. — The land owner lias no right to build a farm crossing at any other point than the one fixed by the commissioners, or agreed upon with the company, nor to cross the track at any other point than the established cross- ing, lb. 446. — Where a railway has been built through a town lot, cutting off a small portion of such lot of little value the court will not enforce a specific performance against the railway company of its statutory obligation to construct a crossing, but will leave the land owner to his remedy for damages. Clarke v. Boc?ie8ter, Lockport and Niagara Falls B. B. Co., 18 Barbour (N. Y.), 850. 1854. 447. Ditching. Where ditching the adja- cent land becomes necessary by reason of embankments thrown up for the road, the expense thereof should be considered in assessing the damages. St. Louis, Vandalia and T&rre EoAite B. B. Co. v. Mollet, 69 111., 235. 1871. 448. — Where a suit was instituted for damages alleged to have been sustained by plaintiff in consequence of the closing of the ditches on his plantation by the building of the road, and no evidence was given on tho trial from which the estimation of damages could be formed, and the jury found a verdict for the plaintiff, the court remanded tlie cause for a new trial. Trudeau v. Hfew Orleans, Jackson and Great Nortliern B. B. Co., 15 La. An,, 717. 1860. 449. Embankment. In estimating the damages done in the construction of a rail- way through lands, the erection of an embank- ment, whereby communication between difler- ent parts of the land is destroyed, should be included. Mason «. Kennebec and Portland B. B. Co., 81 Me., 315. 1850. 450. — The injury fVom location in relation to the peculiar features of the premises, prox- imity to buildings, interruption of their ordi- nary use and of the avenues of passage, incon- venience by embankments, deep cuts and the like, are proper subjects for consideration in estimating the depreciation in the value of the property as a whole. The legislature intended to provide for compensation for every injury usually recognized as such by tho common law, if committed by a private individual. Wilmington and Beading B. B. Co. V. StoMffer, 60 Penn. St., 874. 1869. EMINENT DOMAIN. 225 Compensation; Various Elements of Damage. 451. Excavations. In an action for dam- ages for the construction of defendant's road over plaintiffs lot, wliere it appeared that the •lot needed for its protection along the line of the excavation for the road, a retaining wall, which would cost $100, it was not error to reject defendant's offer to show that such wall was necessary also for the security of its road bed, and that its engineer had been directed to construct the same, and had got the stone ready, and was about to do the work ; although defendant offered, in connection with this proof, to file a stipulation that it would build this wall, and that in case it failed to do so, the verdict in this action should not impair plaintiff's right to recover in another action the expense of building it. Thompson v. Mil- waukee and St. Paul B. S.Co., 27 Wis., 93, 1870 ; Priae v. Same, ib., 98. 462. — A railway company is not liable for consequential damages resulting from the caving in of the plaintiff's land in an excava- tion, where the company has been without fault or negligence. Bootlihy v. Androicoggin and Kennehee R. B. Co., 51 Me., 318. 1862. 453. — Where defendant, in constructing a railway, made an excavation upon its own land, but so near the line of plaintifl^s land ac^joining, that the soil of plaintiffs, without any artificial weight being placed thereon, slid into the excavation, it was held, that de- fendant was liable for the injury. Richardson «. Vermont Central R. R. Co., 25 Vt., 465. 1853. 454. — But where the compan}', in con- structing its road, raised a high embankment near to and in front of plaintiff 's house, so that plaintiff could not pass and repass to and from the same, this was held to be a conse- quential damage only, and the company was, therefore, not liable for the injury. Ib. 455. Fences. If by the construction of a railroad through the enclosure of a farmer, it becomes necessary to construct fences on eitlier side of the road to protect his crops, the cost of the fences must be included in the compensation to be paid by the railroad com- pany. Sacramento Valley R. R. Co. o. Moffatt, 6 Cal., 74, 1856 ; St. Louis, Jacksonville and Chicago R. R. Co. v. MitcheU,il 111., 165, 1868; Winona and St. Peters R. R. Co. v. fValdron, 11 Minn, 515, 1866 ; Same v. Denman, 10 ib., 267, 1865 ; Grand Rapids and Indiana R. R. Co. V. Horn, 41 lad., 479, 1878. 15 456. — In assessing damages, the fencing along the line of the road where it passes through fields should be considered. Also the depreciation in price occasioned by the road passing through the land should be considered. The sale of a portion of the land at an enhanced price, where such sale was not owing to the construction of the road, is not chargeable to the owner as a benefit. But speculative benefits, as the increase in value of the lands by the proximity of the road, should be considered. Oreenmlle and Columbia B. R. Co. v. Partlow, 5 Richardson's Law (So. Car.), 428. .1852. 457. — The cost of fencing may be consid- ered by the jury in estimating the damages; but they cannot in their return impose any condition as to making fences upon the rail- way company. Vandegrift v. Delaware R. R. Co., 2 Houston (Del.), 287. 1860. 458. — Where a charter makes no provis- ion for consequential damages, a railroad com- pany is responsible for all injuries which .are tlie direct and immediate consequence of the construction of the road, to the whole tract of land through which it passes. Watson v. Pittsburgh and Connellsville B. R. Co., 37 Penn. St., 469. 1860. 459. — The exclusive appropriation of a part, the inconvenience arising from a division of tlie property, or from increased difficulty of access, and the cost of additional necessary fencing are alike the direct and immediate re- suit of such construction. Ib. 460. — The measure of damages is the difference between what the whole property would have sold for, unaffected by the road, and what it would have sold for as affected by it. Ib. 461. — The fact that a landholder is obliged, by the construction of a railroad through his farm, to make additional fences, may be considered in estimating the damages. Bvansville, Indianapolis and Cleveland R.R.Co. V. Fitzpatrick, 10 Ind., 120, 1858; Mt.WasUng- tonR. R. Co., Petition for, 35 N. H., 184, 1857. 462. — When the damages so assessed have been paid by the railroad company, it may maintain an action against the land owner, if he neglects to fence, and tliis obligation be- comes a covenant running with the land. St. Louis, Jacksonville and Chicago R. R. Co. v. Mitchell, 47 111., 165. 1868. 226 EMINENT DOMAIN. Compensation ; Various Elements of Damage. 463. — After the assessment and payment of damages, the company is not bound to make fences on either side of the road. Alton and Sangamon JR. H. Co. v. Baugh, 14 111., 211. 1853. 464. — The Vermont and Canada K. K. Co. is required to have its road fenced at least as soon as it is put in operation. ClMrk ®. Ver- mont and Canada R. li. Co., 28 Vt., 103. 1855. 465. — In estimating the damages for tak- ing the right of way, such damages are based TipoD the consideration that the road •will be constructed properly and in a prudent man- ner, lb. 466. — But the land owner cannot recover as against the railway company for the wrong- ful acts of the servants of a conti'actor in leav- ing open his fences and bars while building the road. lb. 467. — In estimating the damages which the owner of lands taken for the use of a rail- road will sustain by the running of the road through his lands, he should be allowed for the expense of making and maintaining only one half of the partition fences, as the other half, the railroad company is liable to make and maintain. Rensselaer and Saratoga R. R. Co., I II the matter of, 4= Paige Ch. (N. Y.), 553. 1834. 468.— As no reciprocal obligation exists between the owner of the right of way over, and that of the fee, in the land, whereby either may compel the other to fence, the building of fence is not necessarily an element to be taken into consideration by the commissioners. Henry v. Dubuque and Pacific R. R. Co., 2 la, 288, 1855; Kennedy v. Same, ib., 521, 1856; Rielmrds v. Des Moines Valley R. R. Co., 18 ib., 259, 1865. 469. — In case the land was fenced, and by taking the right of way, it is thrown open, and left in a manner unfenced, this fact will be taken into consideration in arriving at the de- preciated value of the remaining premises. Ib. 470. — In the absence of a statute requiring it, a railway company is under no obligation to fence its road. Ib. 471. — The cost of fencing cannot be esti- mated in the damages, but how much the burthen of fencing may detract from the value of the land may be considered. Delaware, .Lackawanna and Western R. R. Co. v. Burson, 61 Penn. St., 869. 1869. 472, — The jury cannot take into consider- ation the possible damages that may arise from the killing of stock by the cars on a rail- road, or the possible necessity of an increase in the quantity of fencing on said land. Ala- bama and Florida B. R. Co. v. Burkett, 46 Ala., N. S., 669. 1871. 473. — agreement. If, on a hearing before a jury it is agrccid between the parties, that the company shall erect and maintain fences along the line of the road, such agreement, if valid, can only be enforced against the com- pany in an action by the party with whom it is made, and not by any subsequent purchaser of the estate to which it relates. Morse e. Bos- ton and Maine R. R. Co., 2 Gushing (Mass.), 536. 1848. 474. — The fact, that the company has erected fences along the line of its road, against the land of a particular individual, is not of itself any evidence of any obligation on its part, to make or maintain fences for the benefit of such person. Ib. 475. — award. Where county commis- sioners, in assessing damages before the act of 1841, ch. 125, was passed, awarded a sum of money to be paid to the complainant, and also provided that the company should make and maintain certain fences for his benefit, and such complainant appealed from the award of the commissioners to a jury, who assessed damages in his favor, but made no order in their verdict as to the fences, it was helil, tliat the company was under no legal obligation to make and maintain fences, agreeably to the award of the commission- ers. Ib. 476. — record. An assessment of damages for fencing against a railroad company, must be made a matter of record. Rock Island and Alton R. R. Co. ». Lynoli, 23 111., 645. 1860. 477. — statute. As the statutes of Massa- chusetts confer upon railroad corporations no right to enclose laud taken for their road with high fences,.so as to prevent the passage of the adjoining land owner to and from the different portions of his estate, the land owner cannot rely upon such anticipated obstruction as a ground of damage against the company for taking his land. Boston and Worcester R. R. Co. V. Old Colony R. B. Co., 12 Cushing (Mass.), 605. 1853. 478. — unenclosed land. Damages can EMINENT DOMAIN. 227 Compensation ; Various Elements of Damage. not be assessed for fencing along the road through unenclosed land used for grazing. .North Eagtem B. R, Oo. v. Sineath, 8 Rich- ardson's Law (So. Car.), 185. 1855. 479. Fire. The land owner cannot be com- pensated for the risk of fire to his barn and contents, but if from the proximity of the road to the building, the danger of the fire is neces- sarily So imminent that no man of common prudence would use il for the purposes of a barn, then the owner is injured in this respect, and the jury must consider it in estimating the efi'ect of the road on the property. Wil- mington and Beading B. B. Oo. b Stauffer, 60 Penn. St., 374. 1869 480. — The depreciation of the value of property arising from tlie road and not an an- ticipated injury to the premises by Are is the subject of compensation. lb. 481. — The increase of risk by fire f;om locomotives, is properly includerl in the esti- mate of damages. Utiea, Chenango and 8us- qehanna B. B. Oo., In matter of, 56 Barbour (N. Y.), 456. 1868. 482. — Increased exposure to fire of build- ings already constructed, may be properly considered in estimating the damages. Ool- vill V. St. Paul and Chicago B. B. Co., 19 Minn., 283. . 1872. 483. — In estimating the damages the jury may consider any diminution in value occa- sioned to the remainder of the land by ex- posure to fire from the engines of the com- pany, though they should also consider that by statute the company is absolutely liable for such loss. Bangor and Piscataquis B. B. Co. V. McOorrib, 60 Me., 390. 1872. 484. — If a railroad is to be constructed so near to the defendant's barns as to improp- erly expose them to danger from fire from passing trains, that is a proper subject to be considered by the jury in estimating damages. If the danger is such as to render it advisable to remove the barns, the cost of removal is a proper subject to be considered by the jury in estimating damages. Oregon and California B. B. Co. v. Barlow, 3 Or., 811. 1871. 485. — The apijraisal of land damages is a bar to claims for injuries by fire from engines, obstructing access to buildings, exposing per- sons or cattle to injury, cutting off the flowage of water, etc., even though such damages were unknown to the appraisers at the time of the assessment. Lafayette Planhroad Co. V. New Albany and Salem B. B. Co., 13 Ind., 90. 1859. 486. — should not be considered. The consequential damages apprehended by in- creased danger of fire, and depreciation in value of a flax mill occasioned thereby, are not proper elements to be considered in esti- mating the damages. Union Tillage and Johnsonville B. B. Co., In matter of, 58 Bar- bour (N. Y.), 457, 1868; 35 Howard's Pr. (N. Y.), 430, 1868. 487. — The risk of fires from locomotives, to buildings erected or to be erected on the land over which the railroad passes, is not the subject of compensation. Sunbury and Brie B. B. Co. V. Summell, 27 Penn. St., 99, 1856 ; Lehigh Valley B. B. Co. v. Lazarus, 38 ib., 203, 1857. 488. — Railway companies are responsible for the damage done by fire occasioned through the negligent management of their locomotive engines. Ib. 489. — The increased rate of insurance occasioned by the proximity of a railway is not a proper matter to be considered in esti- mating the damages. Patten «. Nortlwm Qen- tral B. B. Co., 38 Penn. St., 436. 1859. 490. Gates. Mere inconvenience in open- ing, gates and putting up and letting down bars, are not proper subjects to be considered in estimating the damages. Minnesota Valley B. B. Co. i>. Doran, 17 Minn., 188. 1871. 491. Interest. The owner of land taken for the location of a railway is entitled to in- terest on the amount of the damages from the time of the taking to the time of assessment. Bangor and Piscataquis B. B. Co. o. McOomb, 60 Me., 390, 1873 ; Delaware, Lackawanna and Western B. B. Co. v. Burson, 61 Penn. St., 309, 1869 ; Whitman o. Boston and Maine B. B. Co., 7 Allen (Mass.), 313, 1863. 492. — The statute makes no provision for interest, in cases of lands taken for railroads, but where the amount has been fixed by the award of the commissioners, the court has al- lowed interest for the detention, from the time of the award, unless the corporation make a tender, in cases arising under the act of 1837, or deposit the money, in cases arising since the act of 1844. Concord B. B. Oo. «. Greeley, S Foster (N. H.), 337. 1851. 493. — Where a railroad company, in pro- 228 EMINENT DOMAIN. Compensation ; Various Elements of Damage. ceedings under tlio statute for condemnation of private property, pays into court tlie dam- ages assessed, and tulies possession of tlie property, and upon petition in error tlio as- sessment is set aside, and a new assessment awarded, it is competent for tlie jury, in malt- ing the latter assessment, to allow and include in their verdict interest fi'om and after the time when possession was taken, and while the money was retained by the court. Ailantie and Great Western B. R. Co. v. Koblentz, 31 Ohio St., 334. 1871. 494. — The report of the viewers bears in- terest from the time it is filed, although final confirmation may be delayed by exceptions. Penntyhania B. R. Co. v. Cooper, 58 Penn. St., 408. 1808. 495. — Where the land owner has appealed from the assessment of damages by the com- missioners, and his damages have been ten- dered, he is not entitled to interest unless his damages have been increased on appeal. March v. Portsmouth and Concord R. B. Co., 19N. H., 373. 1849. 496. — On an appeal from the report of railroad commissioners, awarding damages to a land owner, if the railroad company has given security under the statute for the dam- ages that may be adjudged on appeal, interest should be added to the whole amount of dam- age sustained by the land owner: but when the sum awarded by the commissioners has been paid into the treasury, and the verdict on appeal exceeds the award, interest should be given on the excess of the damage found by the jury, above the awai'd, but not on the amount of the award. Shattuok v. Wilton B, B. Co., 3 Poster (N. H.), 269. 1851. 497. New damages. A railroad company had the land of R. condemned for its road, and the commissioners assessed the damages, and their report was confirmed, and the com- pany paid the amount of damages assessed to K. R. sold the land to D. Held, that D, may maintain an action against the company for injury to his land done since the purcliase, which could not be foreseen and estimated for by the commissioners. In such cases, the as- sessment of damages is only a bar to an ac- tion for such injuries as could properly have been included in such assessment. Bcutlitide B. B. Co. V. Daniel, 30 Grattan (Va.), 844. 1871. 498. Relaying a track. Merely relaying the track of a railroad is not a taking of prop. crfy, within the intent of the constitutional provision requiring corapepsation to be made. Jlentz v. Long Island B. R. Co., I'd Barbour (N. Y.), 040. 1853. 499. Removal of personal property. The cost of removing the land owner's personal property from the premises cannot be consid- ered in estimating the damages. CentHl Pa- cific R. R. Co. 1). Pearson, 85 Cal., 247. 1868. 500. Unit of land. It is for the jury to say, under the evidence, how much of the land owner's premises should be considered as a unit. The damages should be assessed regard- ing all or a proper portion of the land as a unit. St. Paul and Sioux City R. R. Co. v. Murphy, 19 Minn., 500. 1873. 501. Water. Where a part of appellant's land was liable to be washed and to cave off where there was a bank, and the sand drifted from the road to the injury of his adjoining land, and the court instructed the jury that if these cflfeots resulted unavoidably from the building of the railroad in a suitable and prop- er manner, then damage was to be allowed, but if caused by building the road improperly, it was not to be allowed in this proceeding. Held, that the evidence was admissible and the instructions correct. Dearborn ii. Boston, Con- cord and Montreal R. R. Co., 34 N. H., 179. 1851. 502. — On a trial by a jury for damages to be awarded to a land owner for land taken by a railroad corporation in making its road, evi- dence to prove that before the railroad was constructed a river, at high water, deposited large quantities of sediment upon the peti- tioner's meadow, which greatly enriched it, and that an embankment made by the railroad in its construction, had materially diminished the deposits in quantity and fertilizing prop- erties, and that the loss had been the effect of the entire embankment, and not merely of that part which was upon the petitioner's land, was held admissible. Concord R. R. Co. 11. Greeley, 3 Foster (N. H.), 237. 1851. 603. — surface water. The turning of surface water upon land by a railroad em- bankment is a proper element of damages. Wallcer v. Old Colony and Newport B. B. Co., 103 Mass., 10. 1869. 504. — In the absence of any negligence, unskillfulness or mismanagement in the con- struction of an embankment for the bed of a EMINENT DOMAIN. 229 Particular Kinds of Property taken or damaged. railroad over land through which there was no natural channel for the passage of water, the injury done by such embankment in causing the water to overflow the land of the adjoining proprietors must be considered as the natural consequence of what the corpora- tion had acquiredthe lawful right to do by a condemnation of the land and the assessment of damages therefor, and such damage must be taken to have been included in the compen- sation assessed. Clarh v. Hannibal and, St. Joseph B. B. Co., 36 Mo., 202. 1865. 505. — If, by an improper construction of the railroad now built, the road bed acts as a dam causing ponds of water, and causes it to overflow the defendants' lands their remedy is by a proceeding to prevent or remove the obstruction, and it is uot a ground for addi- tional damages in this proceeding. The dam- ages to be assessed are such as will result from a proper construction of the road. Oregon and California B. B. Co. v. Barlow, 3 Oregon, 311. 1871. 506. — If a proper construction of the road will cause ponds of water upon the defend- ants' adjacent land, the overflow is a proper subject to be considered in estimating dam- ages, lb. v. Particular kinds of property TAKEN OR DAMAGED. 507. Canals and canal lands. All grants made by the state, whether to the canal trus- tees or others, are subject to that right of emi- nent domain, unless the right is expressly re- linquished. Illinois and Michigan Canal ». Chicago and Bock Island B. B Co., 14 111., 314. 1853. 508. — The grant of a charter by the legis- lature, authorizing a condemnation of the right of way over the lands held by the canal trus- tees does not violate the grant made by the state to those trustees. lb. 509. — Where a railway company takes the property and rights of a canal company and constructs its railway on the land of such canal company, the railway company will hold said land subject to any easement that may have e.tisted thereon'as against the- canal company. Cincinnati and Indiana B. B. Co. V. Zinn, 18 Ohio St., 417. 1868. 510. — Proof of a deed of land, with a privilege in an adjacent canal to the grantee and his heirs and assigns forever is prima facie evidence of his title, and will authorize him and his assigns to recover damages for the destruction of a permanent easement therein. Whitman v. Boston and Maine B. B. Co., 3 Allen (Mass.), 183. 1861. 51 1. — Whether, under § 13 of the act of May 1, 1853, to provide for the erection and regulation of incorporated companies, etc. (3 Curwen's L., 18C0), a railroad company may, in the exercise of the delegated power of emi- nent domain, a])propriate to its use, for the purposes of a railroad, the lauds constituting the body of a canal acquired by the exercise of like delegated power by a canal company for the purposes of such canal, against the consent of the latter— quare? But be this as it may — lield : I. Where such companies re- sort to tlie form of appropriation merely for tlie purpose of consummating what is in re- ality an amicable purchase by the railroad company, from the canal company, of its ease- ment in the lands appropriated, and a railroad is thereupon constructed on the line, and in the place of the canal, this is not such an abandonment of the easement of the canal company as will work its reversion to the owner of the land in fee simple. Hateli ■». Cin- cinnati and Indiana B. B. Co., 18 Ohio St., 93. 1868. 512. — Where, in such case, the owner of the fee simple title to the lands covered by the 'easement, though denying the right to have made it, yet recognizing the appropria- tion by the railroad company as an accom- plished fact, brings his action against the railroad company to recover damages as for a permanent appropriation, he is entitled to re- cover the full value of lands, if any, taken by the railroad company, and not covered by the former appropriation by the canal com- pany; and also, a full and fair compensation for such additional burdens and inconve- niences, not common to the general public, as accrue to him and his entire tract on which the easement is imposed, by reason of tlie change of uses to which the lands appropri- ated have been subjected. lb. 513. — Where an entire ti-act of land is cut asunder by an appropriation of an easement upon it by a canal company, for the purpose of a canal ; and this easement is afterward 230 EMINENT DOMAIN. Particular Kinds of Property taken or damaged. transferred by tlie canal company to a rail- road company, for the purpose of a railroad ; and the latter, in the construction of its rail- road, throws up embankments or excavates cuts across a common public highway, skirt- ing the tract, and constituting the only conve- nient medium of access between the parcels into which the tract has been thus severed, the increased inconvenience and danger of access thus occasioned between the two parts of the tract are peculiar to the owner of the tract in the use of his projjerty, not common to the public at large, and for this increase of incon- venience and danger, he is entitled to com- pensation, lb. 514. — A railroad company having pur- chased a majority of the shares of stock in a canal company, elected for the latter a board of directors who were in the interest of the railroad company, and then, with the assent of said board, appropriated the entire canal and prciperty of the canal company as a rail- road track, paying therefor a price or compen- sation which was agreed upon by the direct- ors of the two companies, but which was far below the actual value of the property, held, that although the stockholders and creditors of the canal company cannot, after the road has been completed, reclaim the property, or enjoin its use, yet they are not concluded by such agreement, so far as regards the price of the property, but may, by action compel the railroad company to account for its additional value. Ooodinv.Oineinnntii and Whitewater Canal Co., 18 Ohio St., 169. 1868. 516. — Wherever the commonwealth, in the construction of her public works, acquired the fee simple in land taken therefor, either by purchase or through the exercise of her right of eminent domain, and the land was devoted to public use as a highway, a cessation of that use would not revest the title thereto in the former owner. Haldeman v. Pennsylvania CentralR. B. Co., 50 Penn. St., 435. 1865. 516. — The title to land permanently taken and used for the construction of the Pennsyl- vania canal under the acts of 1836 and 1837, became, upon payment of the damages award- ed by the viewers, absolute in the common- wealth, and passed to her grantee, the Penn- sylvania R. R. Co., under the act of 1857, pro- viding for the sale of the main line of the public works; and did not revert to the origi- nal owner, on a change in the course of the canal made by the canal commissioners before the sale. lb. 517. — A license or permission by the board of canal commissioners to the plaintiff's ancestors, to construct a wharf on the berme side of the canal by excavating twelve feet back into his lot from the water line, and subsequent erection of the wharf and use for many years, could not divest the title of the commonwealth to the land thereby occupied, if it was in the line of survey reported by the viewers. lb. 518. Churches. Where a lot is common, both to a church building and its parsonage, the parsonage is within the acts of April 23 and August 13, 1864, allowing the Pennsylvania R. R. Co. to " tunnel under places of public worship," and providing for assessing dam- ages. Pennsylvania P. B. Co. v. Lutlieran Con- gregation of Pittsburgh, 53 Penn. St., 445. 1866. 519. Commons. Only commoners have a beneficial estate in the Allegheny common, and they cannot be deprived of it without a compensation which will fully pay them for all the injury which they must sufter. Bell V. Ohio and Pennsyhania B. B. Co., 1 Grant's Cases (Penn.), 105. 1854. 520. — The corporate authorities of the city of Allegheny have no authority to confer, upon respondents the private interests of the commoners in the Allegheny commons. lb. 521. — Where the state surveyed a town and reserved one hundred acres without the town for a common pasture, it was lield, that the common was a common appurtenant, as distinguished from a common appendant. And if one of the purchasers of the lots who has a right to a common appurtenant, purchase part of the land subject to Ihe easement, all his right of common is extinguished. So if he be a disseizor of a part of the common. Where a commoner's right has been extinguished, he has no interest in the common to entitle him to ask for an injunction to restrain a tres- passer on the common rights of others. The annoyance arising from the necessary use of a railway, is not a nuisance per se. The fact of the nuisance in such case must be determined by the jury, /i., 25 Penn. St., 161. 1855. 622. — By the act of Sept. 11, 1787, laying out the town of Allegheny, the title to one hundred acres, reserved for a common pas- JiMINENT DOMAIN. 231 Particular Kinds of Property taken or damaged. ture, remained in the state, the lot holders being entitled to the pasturage. These titles were both legal ones, and the state was not a trustee for them. Subsequently, the common ■was granted to tJie city, subject to the ease- ment of the lot owners. Held, that the select and common councils of the city could grant a portion of the land for a right of way to a railway company, such being a public use within the meaning of the authority confer- red upon the councils. Mayor of Allegheny ■». Ohio and Pmnsylvania M. S. Oo., 36 Penn. St., 355. 1856. 523. — Such grant to a railway company is to be taken most strongly against the grantee. A right of way fifty feet wide, through a city, will not carry by implication the right to erect within such line, depots, car houses and other structures. lb. 624. — Such grant does not authorize the company to permit its cars and engines to re- main on the tracks within the fifty feet for a longer time than necessary to discharge its freight and passengers. lb. 625. — The company must provide suitable accommodations within the fifty feet for re- ceiving passengers and freight, and if it does not do this, and the common is thereby tres- passed upon, the company becomes a party to the intrusion. lb. 526. Dwellings. The act. Code, ch. 56, § 4, p. 293, does not apply to a case in which a railroad company is not entering upon the land of an owner of a dwelling house. BicJi- mond and York Biver B. B. Co. v. Wicker, 13 Grattan (Va.), 375. 1856. 527. — The O. and P. R. R. Co. has the right, under its charter, to remove a dwelling house in constructing its road. Brocket v. Ohio and Pennsylvania R. B. Co., 14 Penn. St., 241. 1850. 528. — A statute which providesj that in taking land without the consent of the owner, for railway purposes, no dwelling house shall be taken, does not prevent the taking of the garden, orchard or curtilage. Wells v. Somer- set and Kennebec B. B. Co., 47 Me., 345. 1860. 529. — In estimating the damages occa^ sioned to the owner of a messuage, by taking part of his land, depreciation in value of his estate, arising from the proximity of the road and running of the trains, is to be considered only so far as it is due to proximity caused by and would not have resulted but for such tak- ing. Walker «. Old Colony and Newport B. B. Co., 103 Mass., 10. 1869. 530. Ferries. In an action against a rail- road company, for damage occasioned to the plaintiffs by the erection of the road, where a general verdict was returned for the plaintiflFj, the facts, that the railroad company had em- ployed competent engineers, and had done no willful or unnecessary damage, would not entitle the defendant to a judgment, non ob- stante veredicto, because the road may have been located, and the work performed, with the utmost care, and yet damage may have resulted to the plaintifis. New Albany and Salem B. B. Go. v. Huff, 19 Ind., 315. 1863. 531. Fruit trees. If fruit trees, which are upon the land taken, were not included in the damages for the land itself, they may be the subject of a separate assessment. St. Louis, Vandalia and Terre Haute B. B. Co. v. Mollet, 59 111., 235. 1871. 532. Materials. Where the application for the assessment of damages was made after the road had been constructed, and in such con- struction, a large amount of earth had been taken outside of the right of way asked, it was held that it was not error for the jury to consider the damages for taking earth as the claim of appropriation asked to have the dam- ages occasioned by the " construction " of the road assessed, and evidence of such damage was given without objection. WJiitewater Valley B. B. Co. v. McClure, 29 Ind., 536. 1868. 533. — The Vermont Central R. R. Co. has power under its charter, when necessary for the construction of its road, to take stone from land contiguous to the line of their survey, and to use land for the purpose of cutting and hewing stone thereon. Vermont Central B.B. Go. v. Baxter, 23 Vt., 365. 1860. 534. — This power, to be exercised in a proper manner, is necessarily delegated from the corporation to the contractor, and for thi3 purpose the contractor is the agent of the cor- poration, lb. 535. — The liability of the corporation is not aflfected by any stipulation between the corporation and the contractor. lb. 536. — The commissioners, who are called to assess damages in such case may award costs to the land owner. lb. 232 EMINENT DOMAIN. Particular Kinds of Property taken or damaged. 537. Mills and mill powei". The conse- quential injury -wliich a mill, situated on a portion of land not taken, may be likely to sustain, from the consti'uction and operation of a railroad, is a matter with which the com- missioners have nothing to do. Canandaigua and Niagara Falls B. B. Go. «. Payne, 10 Bar- bour (1^. Y.), 373. 1853. 538. — The legislature may authorize the construction of railroads without requiring compensation to be made to persons whose property has not actually been taken, or appro- priated, for the use thereof, but who may, nev- er lieless, suffer indirect or consequential dam- ages thereby. Arnold v. Hudson Biver B. B. Co., 49 Barbour (N. Y.), 108. 1867. 539. — The case of a railroad company acquiring its roadway subject to an easement or servitude appurtenant to mill property, con- sisting of the right to carry water across the land of another, to the mill, is within the above principle. Ih. 540. — Whore a corporation was empow- ered by the legislature, in general terms, to locate and construct a railroad between cer- tain termini, and between these termini lay an extensive tract of land already appropriated, under the authority of the legislature, to pub- lic use, for mill ponds, by another corporation, and this tract jnight be crossed by the rail- road, with some diminution of the mill power, and wliich might be compensated in damages, but without essential injury, it was held, that there was nothing in the nature of such public use, and in the extent to which it would be impaired or diminished, from which the power of constructing the railroad over it might bo presumed to have been restrained by the legislature. Boston Water Power Co. v. Boston and Worcester B. B. Co., 33 Pickering (Mass.), 360. 1839. 541. — A railway company is responsible for the damages occasioned by constructing its road through and across a mill pond, authorized by the legislature to be raised in a navigable river ; although in erecting the dam for raising such pond, the conditions of the act are not complied with. White v. South Shore B. B. Co., 6 Gushing (Mass.), 412. 1850. 542. — In an issue, under act of February 19, 1849, to assess the damages done to the plaintiffs' water power by the construction of the defendants' railroad, it is error to reject evidence that the cause of mischief com- plained of could be removed for $140. Bar- clay B. B. and Coal Co. v. Inglmm, 36 Penn. St., 194. 1860. 543. — A water power on one of the smaller streams of the state, is such a property as a railroad company is liable to make compen- sation for, if damaged by the construction of the road, although the stream might have been declared a public highway by act of assem- bly, lb. 544. — In respect to the great rivers of the state, which are navigable by nature and therefore public highways at common law, tie Mill Dam Act of March 23, 1803, is but a license to the riparian owner, subject to be revoked whenever the public interests require it. lb. 54'5. — Such right of property is subject to the public easement of their use for purposes of navigation, so far as they are capable of it. And it is not necessary, in order to confer such easement on the public, that they should be declared public highways by the statute. lb. 546. — The only effect of declaring such a stream a public highway by act of assembly, is, to bring it within the remedial provisions of the act of March 23, 1803. It does not affect the vested rights of the riparian owner. lb. 547. — The act is a fuller remedy for the infringement of the public right but it does not confer a license on the riparian owner; when such riparian owner improves his water power, he does it, not under a revocable license, but as owner of the soil. lb. 548. — A railway company is not liable for consequential damages occasioned by the location and construction of its road, unless made so expressly by act of assembly. Nmo York and Brie B. B. Co. v. Young, 83 Penn. St., 175. 1859. 549. — The right to erect a mill dam is only a license, subject to be revoked, when- ever the paramount interests of the public shall require it. lb. 550. — An injury to such right, occasioned by the construction of a railroad, under authority of law, is not one for which the rail- road company is liable to make compensation in damages. lb. 351. — It would be en-or to leave it as a EMINENT DOMAIN. 233 Particular Kinds of Property taken or damaged. question of fact for the jury to say whether the company could ■without, unreasonable expense, or undue injury to the road, have so changed the site of it as to avoid having caused the damage complained of. lb. 552. — The company alone is intrusted with the location of its road, subject to the liability imposed by law for tha damage sus- tained, lb. 553. — In a question of damages for the consti-uction of a railroad, evidence was proper that the construction of the road tended to decrease the business of a mill, by making it unsafe to drive horses near it, and dangerous alid inconvenient for persons going to and from it. Western, Pennsylvania B. B. Co. v. Hill, 56 Penn. St., 460. 1867. ■ 554. — Such damage was not consequential and prospective. lb. 555. — The right of using the land of oth- ers in basins for the purpose of creating a water power is a franchise or easement, and the interference with such rights by an illegal filling up of a portion of such basins is a nuisance, and it is within the jurisdiction of a court of equity to give redress. Boston Water Power Oo. ■». Boston and, Worcester B. B. Oo., 16 Pickering (Mass.), 512. 1835, 556. — In an action against a railroad company for damages done to a mill property by the construction of the road, the injury to the unused and surplus water power of the plaintiff is a legal ground of claim, and the measure of damages is its actual market value for any useful purpose, the mill property remaining as it was when the road was con- structed; hence, evidence as to the power that could be gained by erecting a new dam further down the stream, making a shorter race and other alterations, was irrelevant and inadmis- sible. Dorian «. East Brandywine and Wynes- burg B. B. Co., 46 Penn. St., 520. 1864. 657. — The admission of evidence that the company had offered to repair the damages and remove the inconvenience caused by the construction of the road, is immaterial, where the jury were instructed in the charge, that, as the work was never done, the injuries com- plained of were the proper subject of compen- sation, lb. 558. — release. The plaintififs being the owners of a tide mill, authorized the defend- ant to maintain a bridge, resting on piles, across their mill pond, and to modify the structure and supports in any way that might be deemed proper, to secure and preserve them, and released all damages on account of the bridge, and of any future modification of it; with a proviso, that if it should be so altered as to Increase the damages to the mill pond by diminishing the quantity of water, or othei-wise impairing its eflSciency, the plaintifia should not be prejudiced in their claim for further damages. The plaintifi's subsequently released to the P. and C. R. R. Co. that part of the pond on which the bridge stood, bounding the land, released by the northerly side line of the bridge, saving and excepting all righf, title, interest and privilege before conveyed to the defendant. The P. and C. R. R. Co. sub- sequently conveyed the land under the bridge to defendant with, the privilege of filling up the space under and to slope the northern enj- bankment by a wall or otherwise into the mill pond. The defendant, in filling up around the piles under the bridge, allowed the earth to run out to its natural slope into the mill pond, beyond the side of the bridge. Eeld, that this was such a modification of the bridge as was contemplated by the parties to the agreement, but that a promise to pay the dam- ages was implied, and assumpsit might be maintained therefor ; but that under the release to the P. and C. R. R. Co., the plaintiffs could only recover the damages occasioned by the running out of the embankment beyond the northerly side of the bridge. Goodrich v. Eastern B. B. Co., 37 N. H., 149. 1858. 559. — tide mill. The grantor of a tide mill and mill pond, who had reserved the right of boating and rafting through the pond, and of using the same as a depot for lumber, it seems, has no such interest in the premises, by virtue of such reservation, as to entitle him to become, or to render it necessary that he should be made, a party to a proceeding under the Rev. Sts., ch. 34, §§ 48, 49, 50. Davidson '0. Boston and Maine B. B. Co., 3 Cushing (Mass.), 91. 1849. 560. — Where the petitioners rested their claim for damages on the ground, that a creek crossed by the railroad was a part of a tide mill pond belonging to the petitioners, and introduced in evidence the deed under which they held the premises, together with a plan and survey thereof, the correctness of which 234 EMINENT DOMAIN. Particular Kinds of Property talien or damaged. was testified to by the surveyor by wliom tlicy were made, it was held, that whether the creek in question was a part of the mill pond or not, was a question of fact for the jury. lb. 661. — The owner of a right of fiowage, which is injured by the construction of a rail- road, is entitled to damages therefor. lb. 562. Mines. The legislature in virtue of the right of eminent domain, may authorize the condemnation of private property by a mining company for the construction of a railroad to be used for the transportation of coal from its mines — such use being of a public nature. New Central Coal do. v. George's Or. Goal Oo., 87 Md., 587. 1873. 663. — "Where compensation is claimed for the location and construction of • a railroad between coal mines and a navigable river on the land owner's premises, whereby the con- veniences of the river transportation for the coal to market were injured or cut off, it is competent for the railroad company to show that the river transportation, in connection with the coal banks, hiid ceased to be valua- ble, or become of less value by means of the facilities for coal transportation aflForded by the railroad, for the purpose of reducing the damages. Cleveland and Pittsbvrgh B. JR. Co., «.5(iZZ, SOhioSt., DOS. 1856. 664. — In estimating the damages that will be sustained by the construction of a railway through the property of a land owner, the jury may allow the party the rdarket value of the land taken, and all actual damages arising from the manner in which the road passes through the property and aflfects the improve- ments ; but they are not at liberty to estimate the value of unopened mines beneath the sur- face. Searle v. Laclcomanna and Bhomtburg B. B. Co., 83 Penn. St., 57. 1850. 665. — Although contingent future disad- vantages may be set off against the advantages to be derived from the construction of the road, they cannot be taken into consideration as a substantive claim for damages. lb. 666. — In making roads over unopened mines, it is not a subject of damage that the owner will be thereby put to expense and in- convenience when he begins to work his mines. lb. 667. Private way and private railroad. The obstruction of a private way by a rail- road is a proper subject for damages, within the Rev. Sts., ch. 89, § 56. Pa/rker v. Boston and Maine B. B. Co., 8 Cushing (Mass), 107, 1849. 568. — One who has a right of way across a street not a public way, by grant from the owner of the fee, cannot recover damages un- der Rev. 8ts., ch. 89, § 56, of a railroad com- pany duly locating its road over and along said street, and over said right of way. Bob- ton and Worcester B. B. Co. «. Old Colony B. R. Co., 13 Cushing (Mass.), 605. 1858. 669. — Where a railroad in the course of its construction was cut through an individu- al's land, dividing a road wlilcli he hiul made on his own land, for his private use, to pass from one part of his farm to another, and also dividing his pasture, — McZ, that these wore matters that were not the subject of action by virtue of the act of July 8, 1847, but were such as must be understood to have been taken intb consideration by the commissioners in making their award. Cla/rh v. Boston, Concord and Montreal B. B. Co., 34 N. II., 114. 1851. 670. — The act incorporating the defendant as a railroad company, provided that if the road should be so constructed as to cross any private way, and should obstruct the safe and convenient use of it, the party aggrieved should be entitled to his action on the case against the company, and should recover rea- sonable damages for such injury; but that no such action should be commenced after the expiration of two years from the obstruction. Jleld, that to maintain this action it was not necessary that the railroad should be con- structed 01' managed in an improper and ille- gal manner. Oreenwood v. Wilton B. B. Co., 8 Foster, (N. H.), 261. 1851. 571, — That, it appearing on an agreed case, that the road of the defendant was con- structed and maintained across a private way of the plaintiff, in a proper manner, and that a passage was provided for the private way over the track of the railroad, the court could not decide, as a matter of law, whether the safe and convenient use of the private way was obstructed ; but this was a question of fact to be settled by a jury. lb. 5 7 2. — private railway. Where a railway company took a part of a railway belonging to P., and used by him in connection with his ore bed, It was held that in estimating P.'s damages, if his ore bed and the remaining KMINENT DOMAIN. 235 Particular Kinds of Property taken or damaged. section of his road were depreciated in value by reason of such taking, these facts should be considered. Poughkeepsie and Eastern R. S. Co., In matter of, 63 Barbour (N. Y.), 151. 1873. 573. — The laying of tramways by the plaintiff aci'oss a public road running through his lantl, for the use of his coal cars, is illegal and a nuisance ; and the company is not liable for removing them, especially where crossings were constructed for plaintiffs use. Harvey V. Lackawanna an& Bloomaburg R. R. Co., 47 Penn. St., 428. 1864. 574. Springs. Where the owner of the land claims that he will lose the beneficial enjoyment of a spring on the land, that is a proper subject for compensation. Peoria and Rock lelvud R. R. Co. v. Bryant, 57 111., 473. 1870. 575. — The plaintiff's buildings were sup- plied with water from a permanent spring. After an excavation had been made on his land for the purposes of a railroad, water appeared in the excavation, about fifteen feet below the surface of the ground, and the spring disap- peared. Damages were assessed to him be- fore the excavation was made. Held, that the injury to the spring must be presumed to have been considered by the commissioners, and that an action to recover damages therefor could not be sustained. Aid/rich v. Cheshire B. R. Co., 1 Foster (N. H.), 359. 1850. 576. Riparian owners. The owner of land adjoining a navigable river owns the soil to low water mark, subject to the public right of navigation to high water mark as it exists naturally. Lehigh Valley B. R. Co. v. Trone, 28 Penn. St., 206. 1857. 677. — Where a spring of water on the land of such owner, situated below high wa- ter mark, has been cut off or injured by the constiuction of a railway over his land, he is entitled to compensation therefor. lb. 578. Timber. The estimate should not include the value of timber on the defendant's adjacent lands, cut down and destroyed by the plaintiff. Oregon and California R. R. Co. v. Barlow, Z Or., 311. 1871. 579. — The timber situated on the land taken for the right of way remains the prop- erty of the land owner, and the company only has the right to take and remove so much of it as may be necessary for the construction and repair of the road and its appurtenances. Cli. 31, Laws of 1853. Preston «. Dubuque and Pacific R. R. Co., 11 la., 15. 1860. 580. — The word "construction" in the "right of way act" implies not only the making of the road bed, but also its prepara- tion and readiness for use in a safe and con- venient manner. lb. 581. Turnpike. The use and occupation of a turnpike for a horse railway is not an ad- ditional easement entitling the owner of the fee to compensation. Peddicord v. Baltimore, etc., R. R. Co^ 34 Md., 463. 1871. 582. — Where a railway company is author- ized by its charter to erect an embankment upon a turnpike, it will nevertheless be com- pelled to pay to adjoining property owners the damages resulting from such erection. Mahon V. JJtica and Sckeneetady R. R. Co., La- lor (N. Y.), 156. 1843. 583. — Under Rev. Stat., ch. 39, § 67, pro- viding that every railroad company "may raise or lower any turnpike or way for the pur- pose of having its railroad pass over or under the same," a railroad company may raise a turnpike road for the purpose of constructing the railroad across it upon the same level. Newburyport T. Co. v. Eastern R. R. Co., 23 Pickering (Mass.;, 326. 1839. 584. — The Vermont Central R. R. Co. has power under its charter to enter upon and cross a turniDike road, as well as any other highway, making compensation to the turn- pike company for the injury. White River Turnpike Co. v. Vermont Central R. R. Co., 21 Vt., 590. 1849. 685. — Where there has been a legislative grant to a corporation to erect a bridge, turn- pike or other public convenience, which is not in its terms exclusive, there is no constitu- tional obligation on the legislature not to grant to a second corporation the right to erect an- other bridge or turnpike for a similar purpose, to be constructed so near the former as greatly to impair or even destroy the former, and this without making any compensation for the consequential injury. lb. 686. — In assessing damages sustained by a turnpike company by reason of a railway being constructed across it, it will be assumed that the railway company will comply with the law and leave the turnpike in such a con- dition as will not unnecessarily impair it& 236 EMINENT DOMAIN. Particular Kinds of Property taken or damaged. usefulness. Troy and Boston R. M. Oo. v. Nortliem Turnpike Co., 10 Barbour (N. Y.), 100. 1853. 687. — The fact that railway competition will diminish the husiness of the turnpike company should not be considered. lb. 588. — A turnpike was constructed in 1825, over the lands of individuals, and damages therefor were paid. In 1849, the turnpike company transferred its road, under an act of the legislature, to a railway company. Held, that the land owners were not estopped fi'om claiming the additional damages occasioned by the railway, although no more ground was taken than was occupied by the turnpike. M'^in V. Railroad Co., 16 Penn. St., 183. 1851. 589. Water courses. A railroad was con- structed across a water course without making a culvert, thereby setting back the water and injuring land some distance from the railroad. Seld, that the damages could not be recovered by petition under Rev. Stats., oh. 80, § 56. Pro- iprietors of Locks and Canals «. Nashua and Lowell B. R. Co., 10 Gushing (Mass.), 885. 1853. 690, — Railway companies are liable for diverting a stream of water from its natural course to the injury of a neighboring proprie- tor. Hatch V. Vermont Central R. R, Co., 25 Vt., 49. 1S52. 591. — The defendant was the owner and occupant of a certain messuage, to which wa- ter was conducted for use, by an aqueduct, from a spring upon another portion of his land, and the Vermont Cent. R. R. Co. having located its road across the same, the commis- sioners were called to assess the damages. At the hearing, the defendant stated that he should use the water for the purpose of sup- plying a now house, which he contemplated erecting, and that the commissioners need not take the water into account in assessing the damages. The president and engineer of the company were present and heard this state- ment, and made no claim to the use of the water ; and the water was not considered in assessing the damages. Tlie defendant re- ceived the amount of the damages assessed, and executed an absolute deed to the premises, without condition or reservation. Held, that the right to use the water passed by the deed. Vermont Central R. R. Oo. v. Estate of Hills, 23Vt., 681. 1851. 592. — navigable streams. The owner of land adjoining a navigable river in which the tide ebbs and flows, has no private right or property in the river or in the shore be- tween high and low water mark, and cannot obtain compensation for the construction of a railway along such river between high and low water mark. Qould v. Hudson River R. R. Co., 6 N. Y., 522, 1852; Same v. Same, 12 Barbour (N. Y.), 616, 1852; Getty v. Hudson River B. B. Co., 21 ib., 017, 1856. 59.1. — The defendant constructed its road across a deep bay upon the Hudson river, about nineteen hundred feet distant from and in front of the plaintiff's wharf, placing in its structure a suflicient draw as required by § 15 of its act of Incorporation. Held, that the plaintiff's wharf was not "cut off" by the railroad within the meaning of that section ; and that an action would not lie to compel the defendant to extend the wharf across the line of the road, or to otherwise improve the same. Tillotson V. Hudson Biver B. B. Co., 9 N. Y., 575, 1854; Same v. Same, 15 Barbour (N. Y.), 406, 1853. 694. Wliarves. Where the value of the wharf is impaired by the construction of a railroad across the flats below it, the owner is entitled to recover of the railroad company the damages thus sustained by him. As?i,iyv, Eastern B. R. Co., 5 Metcalf (Mass.), 868. 1842. 695. — Where the owner of a wharf and others have a joint interest in the profits of the business of such wharf, they may jointly recover the damages occasioned to the wharf by the construction of a railway. J6. 690. — Where the proprietor of a wharf in the harbor of Boston was authorized by the legislature to extend the same into the chan- nel to the line of the harbor ; and, before such extension, the legislature incor))orated a rail- road company, with authority to locate and construct a railroad over the flats between such wharf and the line of the harbor; it was lield, that the act authorizing such extension operated as a grant to the proprietor of the wharf, and was not a mere license revocable at the pleasure of the legislature, and revoked by the act incorporating the railroad com- pany. Fitchburff R. R. Oo. v. Boston and Maine B. B. Co., 8 Cushing (Mass.), 58. 1849. 597. — In a petition for the assessment of damages caused to a wharf used for the wood and lumber business, and the land connected eminjent domain. 237 Benefits. tlierewith, one wbo has been engaged in the lumber business for several years on a wharf in the vicinity, and who has also been con- nected for many years with railroads, but who has not had any peculiar means of knowl- edge as to the effect of constructing railroads over whaiTes similar to that of the petitioners, is not thereby qualified as an expert to testify as to the efiiect of the location on the value of the petitioners' wharf for that business. Boston and Worcester R. R Co. 11. Old Colony and Fall River R. B. Co., 3 Allen (Mass.), U2. 1861. 598. — Tiie F. R. R. Co. having claimed damages of the B. and M. R. R. Co. for land and wharves, and certain flats (over which it was authorized to extend its wharves), taken by the latter for its road; and the sheriffs jury having returned a verdict assessing the greater part thereof " for the land over which the company had a right to build a pier wharf," between the sea wall and the line of the har- bor, " and for the injury to other land on which the said F. R. R. Co. had a right to build a pier wharf;" and it was objected, that the verdict was erroneous, in giving the dam- ages only for land over which the petitioners had a right to build a pier wharf; it was held, that though there might be some inaccuracy in the verdict, there was nothing to warrant the conclusion that it did not include land owned by the petitioners and taken by the re- spondents. Fitehhurg R. R. Co. v. Boston and Maine R. R. Co., 3 Cushing (Mass.), 58. 1849. 599. — An act of the legislature having authorized a railroad corporation to make certain erections for its road between the channels of Charles and Miller's rivers, in a manner particularly specified in the act; and such erections having been made accordingly, in the manner specified, whereby the course of the currents of these rivers was changed, and directed towards and upon certain wharves and flats, rendering additional sea wall and filling necessary to secure the same; it was 7i«M, that the damage thereby occasioned to the proprietor was damnum absque injuria, for which he was not entitled to recover against the railroad corporation. Ih. VI. Benefits. 600. Benefits — constitutional law. Tlie 13tli section of the railroad act, providing that an allowance shall be made for benefits, is not unconstitutional. San Francisco, Alameda and Stockton R. R. Co. v. Caldwell, 81 Cal., 367. 1866. 601. — may not be considered. Benefits to other lands of the owner over which the road does not run should not be considered. St. Louis, Vandalia and Terre Saute R. R. Co. V. Brown, 58 111., 61, 1871 ; Hunt v. Smith, 9 Kans., 137, 1873; Newcastle and Richmond R. R. Co. V Brumback, 5 Ind., 543, 1854 ; Louisville and Nashville R. R. Co v. Glazebrook, 1 Bush (Ky.), 835, 1866 ; Isom v. Mississippi Central R. R. Co., 36 Miss., 300, 1858; Whitewater Valley R. R. Co. v. McClure, 39 Ind., 536, 1868 ; St. Joseph and Denver R. R. Co. v. Orr, 8 Kans., 419, 1871; Giesy v. Cincinnati, Wil- mington, etc. R. R. Co., 4 Ohio St., 808. 1854. 602. — value. It was held proper to re- fuse to charge the jury " that they were to consider the particular value which the land may possess in relation to the rest of the estate from which it is dismembered ; " and also it was hold proper to refuse to charge the jury " that the augmentation of value, if allowed at all, is not to be allowed in compensation for damages, until the expropriation is legally efiected. New Orleans, Opelousas and Oreat Western R. R. Co. v. Lagarde, 10 La. An., 150. 1855. 603. — The value of the land at the time that it is taken must bfe determined irrespec- tive of any general benefits arising from the . construction of the proposed road. Carli v. Stillwater and St. Paul R. R. Co., 16 Minn., 260, 1871 ; Schermeely v. Same, ib., 507. 604. — The rule recognized by the su- preme court in Brown v. Beatty, 34 Miss., 337 ; Isom V. Mississippi Central R. R. Co., 36 Miss., 300; and Penrice v. Wallis, 37 Miss., 173, that in estimating the damages the ad- vantages to the owner of the land, caused by the construction of the road, are not to be considered, is approved and confirmed; and the rule also declared to apply to cases where the incidental benefits arising from the public work are sought to be set off against the inci- dental damages accruing to property from its construction. New Orleans, Jackson and Ch-eat North&rn R. R. Go. v. Moye, 39 Miss., 874. 1860. 605. — The jury, in determining the amount of damages, are to exclude from their 238 EMINENT DOMAIN. Benefits. consideration all future benefits that may accrue to the owner of the land, ft-om the con- struction or operation of the road. Emns- mile, Indianapolis and Cleveland S. B. Co. v. Fiizpatrick, 10 lud., 120, 1858 ; Same v. String- er, ib., 551. 606. — may bo considered.. The benefits acoruinja; from the construction of a railway may be set off against the damages occasioned thereby. Oregon Central M. li. Co. v. Wait, 8 Or., 428. ISeO. 607. — The jury ai-o not at liberty to con- sider that the defendant's railroad will be of no benefit to the plaintiff, in his business there, because he has already tlie use of other railroads, if his property will be thereby in- creased in value. Patten v. Northern Central B. B. Co., 38 Penn. St., 426. 1859. 608. — In proceedings for the appropria- tion of private property to public uses, aris- ing under the constitution of 1802, the con- struction put upon that instrument by the supreme court, that it allowed the benefits conferred to be deducted from the value of the property appropriated, and that it did not require the assessment to be made in a court, or by a jury, will be adhered to by this court. Kramer i>. Cleveland and Pittsburgh B. B. Co., 5 Ohio St., 140. 1855. 609. — Tliree disinterested freeholders of the county where the property is situated, ap- pointed by a judge of a court of record, was a competent tribunal to make the assess- ment. Ib. 610. — In an appropriation of a right of way, by a railroad company, over the lands of an individual, under the act of February 11, 1848, ani where the award by appraisers, act- ing under § of said act, found the aggregate amount of damages sustained by the owner of the lands, irrespective of benefits to him accruing from the road, and also the amount of such benefits in a separate item of their report, it is error to adjudge to the owner the aggregate sum, without deducting for benefits. Columbus, Piqua and Indiana R. B. Co. ■». Stimpson, 5 Ohio St., 251. 1855. 611.— If the commissioners assess the cost of fencing separately from tlio estimate of damages to land not taken, there is no sub- stantial error, and the court may enter judg- ment for the value of the land and the cost of fencing, and the excess of damages over ben. efits to land not taken, if there bo any. Cali- fornia Pacifie li. B. Co. v. Frishie, 41 Cal., 856. 1871. 012. — If such commissioners assess the value of the laud taken- and then Uio gross amount of the damages to land not taken over the benefits to land not taken, it is a sub- stantial compliance with the statute. Ib. 618. — Under Uio act of 1852, the jury are not confined to the consideration of the state of facts as tliey existed at the time the land was taken, but may consider the subject of damages and benefits in the light of the facts as they exist at the time of the trial. Hayes V. Ottawa, Oswego and Fox Biver Valley B. B. Co., 54 111., 878. 1870. 614. — general advantages. In making allowance for benefits, only such benifits should be considered as the owner derives, over and above all the benefits received by his neighbors whose lands iiro not taken. Lee J). Tebo and Neosha B. B. Co., 68 Mo., 178, 1878 ; Hornstein v. Atlantic and Great Western B. B. Co., 51 Penn. Bt„ 87, 1805 ; Whitman v. Boston and Maine B. B. Co., 8 Allen (Mass.), 188, 1861 ; Same v. Same, 7 ib.,818, 1868 ; Little Miami B. B. Co. ■» Collett, 6 Ohio St,, 182, 1856; Meacham v. Fitchburg B. B. Co., 4 Gushing (Mass.), 201, 1849; Davis v. Charles Him- Branch B. B. Co., 11 ib,, 506, 1858; Freedle v. North Carolina B. B. Co., 4 Jones' Law (N. C), 89, 1856 ; Pacific B. B. Co. v. Crystal, 25 Mo., 544, 1857 ; St. Louis and St. Joseph R. U. Co. V. Biohardson, 45 Mo., 466, 1870; Same v. Bobinson, ib,, 488 ; Winona and St. Peter B. B. Co. V. Waldron, U Minn., 515, 1886; Minne- sota Central B. B. Co. v. MeNamara, 18 ib., 508, 1868. 615. — Under llio constitution of the state and under the charter of tlio Baltimore and Potomac B. 11. Co., incidental benefits are to be set off against incidental damages only, the value of tho land taken is to be paid for iu any event. Shipley V.Baltimore and Poto- mac B. B. Co., 84 Md,, 886. 1871. 616. — When private property is taken for public use, "just compensation," within tho meaning of the constitution, must be made tlierefor In money, and any increased value of the lands of tho owner arising from the pub- lic works, for which the lands arc taken, can- not bo considered in assessing the amount of compensation to bo paid for the portion taken. EMINENT DOMAIN. 239 Benefits. Alabama and Florida R. B. Co., «. Burkett, 43 Ala., 83. 1868. 617. — The intention of the legislature was, by the railroad act of 1850, to confine the commissioners to an estimate of the price to lie paid by the railroad company, to the owner of land proposed to be taken, regardless of the benefits or injuries which might result to him as the owner of adjoining land, in conse- quence of the contemplated improvement. Albany Northern B. B. Co. v. Lansing, 16 Bar- bour (N. Y.), 68. 1853. 618. — It is a proper rule for tlie commis- sioners to adopt, that they will allow full com- pensation for the land taken, including therein the damages to the adjacent land by reason of such taking, but that they will not allow con- sequential and prospective damages. lb. 619.-- The act of 1855 provides, "that in estimating the value of the property expro- priated, the basis of assessment shall be the ti'ue value which the land possessed before the contemplated improvement was proposed, and without deducting therefrom any amount for the benefit derived by the owner from the contemplated improvement," Held, that the land owner has no right to claim, in addition to the value of the land taken, any damages to the rest of his land, when such damages are more than compensated by the advantages de- rived from the project. Vidcaburg, Shreve- port and Texas B. B. Co. v. Oalderwood, 15 La. An., 481. 1860. 620. — It is not error to refuse to charge the jury that "damages to adjoining lands may be offset by benefits to the same lands," when the court has already instructed that the fair way of determining the injury is to de- termine the fair market value of the premises before the right of way is set apart, and then again after, the difference being the true measure of damages. Atchison, Topeka and Santa Fe B. B. Co. v. Blaakshire, 10 Kan., 477. 1873. 621. — In case of a railroad appropriation for a right of way through a tract of land, causing incidental and local injury to the residue of the tract, although general result- ing benefits from the railroad to the value of such residue of the land cannot be taken into account in estimating the amount of com- pensation to be paid the owner ; yet where a local, incidental benefit to the residue of the land is blended or connected, either in local- ity or subject matter, with a local, incidental injury to such residue of the land, the benefit may be considered in fixing the compensation to be paid the owner, not by way of deduction from the compensation, but of showing the extent of the injury done the value of the residue of the land. Cleveland and Pittsburgh B. B. Co. ■». Ball, 5 Ohio St., 568. 1856. 622. — land not taken. The land owner is entitled to payment in money for the land taken. Benefits to the remaining land may be offset against disadvantages thereto. Jones V. Wills Valley B. B. Co., 30 Ga., 43, 1860; Buffalo Bayou, Brazos, etc., B. B. Co. v. Ferris, 26 Tex., 588, 1863; Henderson and ITashmlle B. B. Co. v. Bickerson, 17 B. Monroe (Ky.), 173, 1856; Woodfolk v. Nashville and Chatta- nooga B. B. Co., 3 Swan (Tenn.), 433, 1852; Oregon Central B. B. Co. v. Wait. 3 Or., 91, 1869 ; Wilson v. Bockford, Bock Island and St. Louis B.B. Co., 59 111., 373, 1871; Neto Or- leans, Opelousas and Cheat Western B. B. Co. v. Lagarde, 10 La. An., 150, 1855 ; Hayes v. Ottawa, Oswego and Fox Biver Valley B. B. Co., 54 111., 373,1870; see under a different statute, Alton and Sangamon B. B. Co. v. Carpenter, 14 ib., 190, 1853. 623. — pleadings. An exception, among others, to the award of the arbitrators was, that they took into consideration the benefits which would result to the owner's land by the construction of the railroad. The answer filed contained no answer to this exception. A demurrer to the answer was overruled; held, thaf it should have been sustained. McMahon v. Cincinnati and CJiicago Short Line B. B. Co., 5 Ind., 413. 1854. 624. — station. On the assessment of dam- ages occasioned by the taking of land for a railroad, evidence that the remaining land of the petitioner would be benefited by the loca- tion of a station at that place is not admis- sible in reduction of damages, if no act has been done by the proprietors of the railroad toward establishing such a station. Brown v. Providence, Warren and Bristol B. B. Co., 5 Gray (Mass.), 35. 1855. 625. — time of taking. In a suit against a railroad company for injury to land, the, de- fendant will not be permitted to prove the value of the land at the time of trial. The , value of the land, if referred to at all, to de- 2i0 EMINENT DOMAIN. Streets, Parks and Highways. termine the benefits conferred upon the owner by the construction of the work, should be es- timated at the time of such construction. Indiana Central B. B. Oo. v. Hunter, 8 Ind., 74. 1858. 626. — In the present case, the defendant asked the following instruction, which the court refused, " in ascertaining the extent of the injury to the plaintiffs, an estimate of the value of the property taken, at the time of the taking, is a necessary step ; but, if the bene- fits resulting to the plaintiflFs, by the construc- tion of the railroad, equal in pecuniary value the value of the property taken by the de- fendant, it is a just and legal compensation for the property so taken." Held, that the in- struction should have been given. lb. VII. Streets, parks and highways. 1. Streets. 687. Abandonment. The Columbus and Shelby R. R. Co. procured a right of way to run from the track of the Madison and Indian- apolis R. R. Co. through the streets of the city of Columbus, toward Shelbyville, and subsequently, under a running arrangement with said Madison and Indianapolis R. R. Co., gave the control of its road to that company, and, by that company, and with the consent of the Columbus and Shelby Co. (the track through the streets still remaining), the road superstructure of the Columbus and Shelby Co., adjoining the city, was removed for the distance of a mile beyond the city, and the re- maining track to Shelbyville was connected with the road of the Madison and Indianapo- lis R. R. Co. around said city, through lands, with the owner of which the latter company contracted to procure a release for him from the Columbus and Shelby Co. of the right of way over the land where the superstructure was removed. Held, that this did not consti- tute an abandonment of the right of the Colum- bus and Shelby R. R. Co. to maintain a track through the streets of Columbus. OityofColvm- hus V. OolurribuB and Shelby B, B. Co., 37 Ind., 294. 1871. 628. Assignment of claim. A claim for damages for taking a street, brought by an assignee, is a separate cause of action from a claim arising by injury to the same property, after its purchase by such as- signee; and a demurrer will lie, if not sepa- rately stated and numbered. Hall v. Cincin- nati, Hamilton, etc. B.B. Co., 1 Disney (Ohio), 58. 1855. 629. Authority to use streets. The pur- chase of the fee of lands in a public street, does not authorize a railroad company to construct its road upon it without express au- thority of law, or as against individuals who have the right of easement of passing over it. Attorney General i>. Morris and Essex B. B. Co., 4 C. E. Green's Ch. (N. J.), 386. 1869; ib., 575. 630. — Under a charter requiring that, be- fore a railway should be constructed in the streets of a city, the consent of a majority of the property owners along the proposed route and of the city, should be first obtained, the consent of a majority of the property owners is not a condition precedent to the consent of the city. The consents are independent, and it is immaterial which is first obtained. Pat- erson and Passaic B. B. Oo. v. Paterson, 9 C. E. Green's Ch. (N. J.), 158. 1873. 631. — A railroad company may use a street or highway when authorized by it! cliarter, expressly or imperatively. Cleveland and Pittsburg B. B. Co. ■». Bpeer, 56 Penn. St., 325. 1867. 632. — " Land " in railroad charters has its common law signification, comprehending all structures upon it. Ib. 633. Benefits. In an action for damage to the property of plaintiff by obstructing the public highway by the construction and use of a railroad, the defendant may show, in mit- igation of damages, that the work done by him in grading, etc, enhanced the value of plaintifl's property. Porter v. North Missouri B. B. Co., 33 Mo., 129. 1862. 634. Carrollton R. R. Co. The right of the C. R. R. Co., of making a turn-out to com- municate with the depot on Nayades street, was a necessary incident to the use of the railroad. 1 La. An., 128. Knight v. Carroll- ton B. B. Co., 9 La. An., 284. 1854. 686. ChanRC of grade. A railroad com- pany, which proceeds under Rev. Sts., ch. 39, § 67, after notice to the mayor and aldermen of a city, and on terms agreed upon between the corporation and the mayor and aldermen, to raise a street, that its railroad may pass under the same, acts by virtue of its inde- EMINENT DOMAIN. 241 Streets, Parks and Highways. pendent corporate powers, and not as the agent or servant of the city ; and such corpo- ration is primarily liable, to third parties, for damages thereby caused to their estates. Gardiner e. Boston and Worcester B. B. Oo., 9 Gushing (Mass.), 1. 1851. 636. — A bond of indemnity taken by the city, and the appointment of a superintendent to take care of the public interests in the exe- cution of this work during its progress, do not change the character of the work, or the general liability of the company. Ih. 637. — By a section of an ordinance of the city of Des Moines, the right of way was granted to a railway company over and across certain streets, " on the grade of the city, or such grade as may be agreed upon." Held, that the company was limited to the grade established by the city unless it were shown that some other grade had been agreed upon. Slatlen, v. Des Moines Valley B. B. Co., 29 la., 148. 1870. 638. — By another section of the ordinance, It was ordained, " that the right to build and operate a railroad bridge on M. St., over and across the D. M. river, is hereby granted to the D. V. R. R. Co., provided said company build, or cause to be built, a railroad bridge across said river withib five years." Held, that the limitation in the first section as to the construction of the road in accordance with the grade of the streets did not apply to the bridge, and that by the ordinance, no require- ment attached thereto, except the implied one that it should be built in a proper manner, with ordinary care and skill. lb. 639. — The company had also the right to build approaches to the bridge. lb. 640. — The company, having the right to build the bridge and approaches, is not liable for consequential damages resulting to a lot owner, in front of whose property an embank- ment had been thrown up in the proper con- struction of the bridge and approaches. lb. 641. Change of line of road. The P. R. R. Co., removed its track in a public street, nearer to a laud owner's lot, but within the limits of the street. This was not a taking of his land within the meaning of the constitu- tion, although his line may have been in the middle of the street. Snyder v. Pennsylvania B. B. Co., 55 Penn. St., 340. 1867. 642. — The street belonged to the public IS for purposes of travel, and it had the right, for its own convenience, to remove to another part of the street, rails which had been law- fully laid, lb. 643. — The railroad company, acting by public authority, had the right to do the same. lb. 644. — This was not an entry that would have been a trespass at common law, and the acts of assembly cannot embrace it, as their design was to provide for nothing that was not remedial at common law. lb. 645. — To entitle an owner of the soil to damages for a change by public authority of a highway across his land, from one kind of a passage to another, he must ground his claim on an act of assembly. lb. 646. Charter. The grant in a charter of the right to construct a railroad on a specified route, without express words, gives the right, as against the public, to cross all public high- ways which said route may intersect. But a grant will not be implied to construct a rail- road upon or along a public highway, unless this is necessary for the route as authorized. Attorney General v. Morris and Bssex B. R. Co., 4 C. E. Green's Ch. (N. J.), 386, 1869 ; ib., 575. 647. Conflicting rights of companies. Where two railway companies both have the right to extend their ti-acks into and through a street to its terminus, as between such com- panies, the first which takes possession of the middle of the street by constructing and locating an extension of its track thereon acquires the right to complete and operate such line, to the exclusion of the right of the other company to interfere in any way with the extension and operation of such road. Waterbury «. Dry Dock, etc., B. B. Co., 54 Bar- bour (N. Y.), 888, 1866; see Dry Dock, etc., B. B. Co. V. New York and Harlem B. B. Co., 30 Howard's Pr. (N. Y.), 39, 1865; 33 ib., 193, 1866. 648. Constitutional law. The legislature has the constitutional power to take possession of, and appropriate the sti-eets of an incor- porated city to the use of a railroad, either directly or through a company created for the purpose. Philadelphia v. Empire Pass- enger B. B. Co., 3 Brewster's Eq. (Penn.), 547. 1869. 649. — The provision in the constitution, 242 EMINENT DOMAIN. Streets, Parks and Highways. that private property shall not be taken fdr public use without compensation, does not prohibit the legislature granting to a railroad company the privilege of laying rails on the streets of a city or town, and of using the railroad so made. Philadelphia and Trenton B. B. Co., Case of, 6 Wharton (Penn.), 25, 1840 ; Faust V. Passenger B. B. Co., 3 Philadelphia Rep. (Penn.), 164, 1858. 650. Dedication. A street laid out by the property owner thirty years ago, dedicated by him to the use of the public and accepted by the public, is a highway; and purchasers from the original proprietor have no other rights in it than have adjoining owners in any other street, whether opened according to law, or dedicated to public use by the owner of the soil. Mereer v. Pittsburgh, Ft. Wayne and Chicago B. B. Co., 36 Penn. St., 9D, 1859 ; Com- monwealth v. Same, ib. 061. — The power of the legislature to authorize the building of a railroad in a street, or other public highway, is indubi- table; and the exercise of that power may be devolved, at discretion, upon the local authorities. Ib. 652. Ejectment. Where a railroad com- pany constructs its railway through the streets of a city, and uses the same in the ordinary way, by running its cars and locomotives thereon, without any claim of title to, or in- terest in the street, beyond the actual enjoy- ment thereof for the purposes mentioned, the public using and enjoying the street, as such, without disturbance, the premises cannot be said to be " oempied " by the company, within the provisions of the statute requiring eject- ment to be brpught against the " actual occu- pant." (2 R. 8., 304, §4.) Bedfield v. Utica and Syraeme B. B. Co., 35 Barbour (N. Y.), 54. 1851. 653. — Nor, in such case, will the action lie in favor of one claiming to be the owner of the freehold of the street subject to the easement of the public therein. Ib. 654. — The owner of land dedicated for a public street may maintain ejectment against a railroad company permanently occupying any part of the same for its roadway. Weis- brod V. Chicago and Northwestern B. B. Co., 21 Wis., 603. 1867. 655. Embankments. Where an injury was done to real estate by reason of a change in the grade of a street, occasioned by the erection of an embankment by a railway com- pany, it was held, that although the embanlc ment of the company did not of itself cause the injury, yet the change of grade in the street was the proximate result of such en*. bankment, and the company was therefore liable. Louisville and Nashville It. B. Co., w /fff(?^«, 6 Bush (Ky.), 141. 1860. 656. Injunction. If the right of way over a street of the owner of a lot fronting thereon is so unlawfully obstructed as to sub- ject, him to special injury, not common to, but distinct and different from that suffered by the public, and for which he cannot obtain adequate compensation at law, he is entitled to the summary interference of a court of equity by injunction. Baltimore and Ohio B. B. Co. v.Btra/uss, 31 mi, 2S7. 1873. 657. — The owners of lots abutting upon a reservation dedicated to public use, have such an interest in such reservation, having pur- chased the lots with reference thereto, that they may have the aid of a ccmrt of equity to enjoin the conveyance of such reservation to a rail- way company for its exclusive and private use. Cook i>. City of Burlington, 30 Iowa, 94. 1870. 658. — It seems, however, that a right of way over such reservation might be conveyed to such railway company. Ib. 659. — Where a railway company, under authority of law, and with the consent of the city authorities, had commenced to lay a track through certain streets in the city of New York, it was held, that an injunction would not be issued to restrain such use of the streets. Drake n. Hudson Biver B. B. Co., 7 Barbour (N. Y.), 508. 1849. 660. — If the company neglects or refuses to make compensation to lot owners, or to provide means to make it, an injunction will be granted, to prevent such an appropriation, until compensation is provided. People v. Law, Si Barbour (N. Y.), 494, 1860 ; 23 How^ ard's Pr. (N. Y.), 109; Ford v. Chicago and Nortlmestem B. B. Co., 14 Wis., 609, 1861. 661. Leg slative power. The legislative power may authorize the building of a rail- road on a street or other public highway, but such power must be given by the legislature. Commonwealth v. Erie and Northeast B. B. Co., 27 Penn. St., 389. 1850. EMINENT DOMAIN. 243 Streets, Parks and Highways. 662. License. In an action against an incorporated company for building and con- tinuing a railroad on a street in front of the plaintiff's house, so as to obstruct his right of egress and ingress, it was held, that the com- pany might give evidence of a parol license from the plaintiff to build the road, and thus defeat' his claim for all damages sustained while the license remained unrevoked. Mil- ler V. Auburn, and Syracuse JR. S. Co., 6 Hill (N. Y.), 61. 1843. 663. — The courts will not presume, in a cause in which it is alleged that a railway company is acting illegally and wrongfully in destroying a street, that it is acting under a license from proper authority, when the same is not alleged in the pleading. Selieckner v. Mil. and Pr. du Oh. B. B. Co., 31 la, 515. 1866. 664. Lot owners can recover. Adjoin- ing lot owners are entitled to damages arising from the construction of a railroad through the streets. South Carolina B. B. Co. v. Stei- ner, 44 Ga., 546, 1871 ; Central B. B. Co. v.Het- field, 5 Dutcher (N. J.), 206, 1861 ; Hmchman V. Paterson B. B. Co., 2 C. E. Green's Oh. (N. J.), 75, 1864; People v. Law, 34 Barbour (N. Y.;, 404, 1860; Same v. Same, 23 Howard's Pr. (N. Y.), 109, 1860. 665. — Adjoining lot owners own the fee of the street to its centre, and in case a rail- way is located through such street, they are entitled to compensation for the additional servitude. Harrington v. St. Paul and Sioux City B. B. Co., 17 Minn., 315. 1871 ; see also Gray v. St. Paul and Pacific B. B. Co., 13 ib., 315, 1868; Molitor v. Same, 14 ib., 285,1869; Adams v. Hastings and Dakota B. B. Co., 18 ib., 360, 1872; Sehurmeier v. St. Paul and Pa- eific B. B. Co., 10 ib., 83, 1865. 666. — Tlie owner of lands bounding on a street or highway is presumed to own the fee to the centre of the street. Highee v. Camden and Amboy B. B. Co., 4 C. E. Green's Ch. (N. J.), 276, 1868; Perrin v. New York. Central B. B. Co., 36 N. Y., 120, 1867; reversing Same v. Same, 40 Barbour (N. Y.), 65, 1863. 667. — It is settled in Wisconsin that a lot owner takes title to the centre of the street, subject only to the public easement. Milwau- kee V. Milwaukee and Beloit B. B. Co., 7 Wis., 85, 1859 ; Ford v. Chicago and Northwestern B. B. Co., 14 ib., 609, 1861 ; Hegar v. Chicago^ and Northwestern B. B. Co., 36 ib., 624, 1870. ' 668. — Where a railroad company occu- pied the street in front of plaintiff's lot with its roadbed and ditches, so as to destroy the ordinary use of the street on plaintiff's side to the middle thereof, it must be regarded as' having taken possession of the whole of said half street, although some five feet thereof were not actually occupied by the roadbed and ditches; and plaintiff may recover the whole, or damages for the taking thereof. Segar v. Chicago and Northwestern B. B. Co., 26 Wis., 624. 1870. 669. — The measure of damages would be the value of ths use of the land in question by the plaintiff as a street. Ib. 670. — The right which the owner of a lot fronting on a street has to have carriages and vehicles of all kinds stop in front of his lot and stand there for the time necessary for the letting out and taking of in persons and goods, is a right in that part of the street different from the right of the public at large, and any incroachment or appropriation of tlie street opposite his premises which abridges or takes away that right, is an injury peculiar to him, for which he may have redress by suit in his own name. Attorney General v. Morris and Essex B. B. Co., 4 C. E. Green's Ch. (N. J.), 386,1869; ib., 575. 671. — The legislature have no power to authorize the construction of a railroad along or across a highway or street without provid- ing for a compensation to the owner of the land over which it passes. Trustees of Pres- byterian Society v. Auburn etc., B. B. Co., 3 Hill (N. Y.), 567, 1842; Williams v. Nm York Central B B. Go., 16 N. Y., 97, 1857; re- versing Same v. Same, 18 Barbour (N. Y.), 323, 1864; Carpenter V. Oswego and Syracuse B. B. Co., 34 N. Y., 655, 1861 ; Wager v. Troy Union B. B. Co., 25 ib., 536, 1863 ; Craig «. Boch- ester and Brighton B. B. Co., 39 ib., 404, 1868; Same «. Same, 39 Barbour (N. Y.), 494, 1862. 672. — The establishing and running a street railway in the public streets of the city of Kochester is an imposition of an additional burden upon the land of an adjoining proprie- tor covered by such street. Craig i>. Bocliester City and Brighton B. B. Co., 89 N. Y., 404. 1868. 673. — The common council of a city can- not give a railroad company the right to take 244 EMINENT DOMAIN. Streets, Parks and Highways, and use the street of the city for the track of its road, without making compensation to the adjoining lot owners. Pomm-oy v. Milwaukee and Chicago B. R. Co., 10 Wis., 640. 1863. 674. — If the authorities of a city grant to a railway company the right to lay its track along a public street, this grant does not pre- clude the owners of lots along the line of the street from recovering such damage as they sustain thereby. Southern Pacijic B. B. Co. v. Seed, 41 Cal., 256. 1871. 675. — Such lot owners are entitled to damages if the value of their lots is dimin- ished thereby. Jb. 676. — A railroad company cannot mo- nopolize a street in derogation of public and private uses to which it is applied. Janemille v. Mihawukee and Mi$»i»sippi B. B. Co., 7 Wis., 484. 1859. 677. — An action lies by the owner of land against a railroad company, if in the con- struction of its road upon or across a public highway it raises an embankment by which the owner of the land is obstructed in passing to and from the road, and his property is oth- erwise rendered less valuable, notwithstand- ing the charter of the company authorizes the entry upon and use of such public highway; the license relates only to the road, and leaves the company liable to consequential damages sustained by individuals. Fletcher ts. Aubwm and Syracuse B. B. Co., 25 Wendell (N. Y.), 462. 1841. 678. — Where a railroad company, under the authority of its charter and an ordinance of a city, " constructs a railroad through a street of a city, thereby making embankments of earth, gravel, wood and iron above the level of the street, so as to obstruct free and safe passage to and from a lot and dwelling house thereon, adjoining on said street; and where such company, under the authority aforesaid, runs steam engines, locomotives and cars along such street and railroad, there- by making noises, and shaking, disjointing and disturbing such dwelling house; and where such company, under the authority aforesaid, and for the purpose of propelling such engines, locomotives and cars, keeps up dangerous fires, thereby generating noxious vapors, smoke and filth, near to, and diflfusing the same in and about, such lot and dwelling house, as to render the air unwholesome and to discommode the occupant and owner of such lot and dwelling house." Held, that such owner and occupant is entitled to damages for any obstruction to the street by earth, gravel, timber or rail, substantially affecting his use of such street as an appurtenance to his prem- ises. That in respect to the noises, smoke, vapor or other discomforts arising from the ordinary use of the railroad by the company, the occupant and owner of such lot and dwelling house has no more right to recover damages of the company than any citizen who resides, or may have occasion to pass, so near the street and railroad as to be subjected to like discomforts. That a railroad author- ized by law, and lawfully operated, cannot be deemed a private nuisance. Parrott u. Cin- cinnati, Hamilton and JDayUm B. B. Co., 10 Ohio St., 624. 1858. 679. — The right to use and enjoy the street is an appurtenance to a lot abutting upon a street, and an injury to an appurte- nance is an injury to the whole property. Proteman v. IndianapoUt and Cincinnati B. B. Co., 9 Ind., 467, 1857; Mew Albany and Salem B. B. Co. ■» CDaily, 13 ib., 35S, 1859. 680. — Where a street is taken by a rail- road company, a party entitled to use and en- joy such street cannot pursue the statutory remedy, but must sue for damages for a con- sequential injury. Ih. 681. — The defendant has no right, undei its charter, to appropriate any part of a street to its exclusive use, nor in tliis case it does not seem to have done so. It was, therefore, error in estimating damages to instruct the jury that they might estimate the damages upon the theory that the company had appro- priated the whole of the east side of the street. Farrrand n. Chicago and Northwestern B. B. Co., 21 Wis., 435. 1867. 682. — Besides the right of way which the public have in a street, there is a priv.ite right which passes to a purchaser of a lot upon the street, as appurtenant to it, which he holds by an implied covenant that the street in front of his lot shall forever be kept open for his en- joyment; and for any obstruction thereof to the owner's injury, he may maintain an action Tate V. Ohio and Misaisgippi B. B. Co., 7 Ind., 479. 1856. 683. — The right which the owner of a lot has to the enjoyment of an adjoining street, EMINENT DOMAIN. 245 Streets, Parks and Highways. is part of his property, and can only be taken for public use, on just compensation being made, pursuant to the constitution. lb. 684. — The grant to a railroad ccimpany of a right of way merely over a public sti-eet in a city of town, will not authorize the plac- ing of any obstructions in the street such as will render It useless as a street ; for the pur- pose of establishing depots, depot yards or other structures for the convenience or business of the railroad company, ground must be pro- cured not already dedicated to uses inconsist- ent with such purpose. LacMand e. North Missouri R. B. Co., 31 Mo., 180, 1860; Same v. Same, 34 lb., 259, 1863. 685. — The grant to a city of a power to "open, alter, abolish, widen, extend, establish, grade or otherwise improve and keep in re- pair streets," would not authorize an appro- priation of a street to such uses as would be entirely inconsistent with its use as a street. Ih. 686. — The right of the owner of a lot, in a town or city, to the use of the adjoining street, is as much property as the lot itself; the owner of the lot cannot be deprived of this right by the obstruction of the street without compensation. It is immaterial in such case whether tlie owner of the lot owns to the middle of the street or not. lb. 687. — The streets of a city or town are es- tablished, not only for the public, but for the special convenience of those who may pur- chase the adjacent lots ; and such proprietors have certain rights of use, facilities and ease- ments, constituting franchises in the nature of hereditaments incorporeal, incident to their titles, which neither the general nor local public can claim, and which are as inviolable as the rights of property in the lots. Lexing- ton and Ohio JR. B. Go. v. Applegate, 8 Dana (Ky.), 289. 1839. 688. — B., owning land with buildings there- on lying upon each side of a street that had been raised by a railway company by a bridge and embankments so as to pass over the railroad, brought his action against the company for the damages occasioned by the erection of the embankments, no damages having been assessed therefor. Held, that the power to alter a highway might properly be delegated by the legislature subject to the liability of making compensation for the property taken and the iryury occasioned. That although the plaintiff might recover on a count in tres- pass, for any appreciable incidental damages, occasioned by the acts complained of, the de- fendant was not liable therefor of course, and as prima facie trespassers, and that the ques- tion as to whether plaintiff had sustained damages was for the jury to determine. NicJi^ Olson 1). New York and Neu> Hmen, B. B. Co., 33 Conn., 74. 1852. 689. Lot owners cannot recover. Depre- ciation in the value of real estate not abutting on a railroad, caused by laying a railroad across the street leading thereto, cannot be recovered under revised statutes, ch. 39, § 56. Proprietors of Locks and Canals v. Nashua and and Lowell B. B. Co., 10 Cush. (Mass.), 385, 1852 ; Gorey «. Bvffalo, Coming and New York B. B. Co., 33 Barbour (N. Y.), 483. 1856. 690. — Conceding that the lot owner has an Interest in the streets, under the peculiar state of legislation with relation to the town of Columbia, if the terms imposed by the charter have not been violated by the com- pany, so as to authorize the interference of the state, no legal wrong has been done to the lot owner. If there is no ground for interference on the part of the state, there can be no action on the part of the lot owner. McLauchlin «. Charlotte and South Ca/roUna B. B. Co., 5 Richardson's Law (So. Car.), 583. 1850. 691. — The plaintiff canhave no action for ti-espass on another's land. fb. 692. — Where property is taken for public uses under the right of eminent domain, the remedy by assessment of compensation is necessarily exclusive. lb. 693. — The mere leveling of the street, pre- paratory to putting down the track, is no ob- struction, lb. 694. — The use by a railroad company, under authority of its charter, of a portion of a street in its ordinary use as a means ot travel and transportation, is not a perversion of the highway from its original purposes. Any damage to the property abutting on the street, resulting from such obstruction, is damnum absque injuria. Porter v. North Mis- souri B. B. Co., 33 Mo., 138. 1863. 695. — Where the city authorities lawfully grant permission to locate railway tracks along a street, the owners or occupants of property fronting on such street, cannot enjoin the laying of such ti-acks, nor receive any 246 EMINENT DOMAIN. Sti-eets, Parks and Highways. damage or compensation for such use of a street. Moses v. PiUshurgh, Fort Wayne and OMcago JR. B. Co./ 21 III., 510. 1859. 696. — An action cannot be maintained by a citizen for injury to his.property from noise, smoke and stench of locomotives and trains, arising from the location of railroad switches and side tracks near his house. Cleveland and Pittsburg?!. Ji. JR. Co. v. Bpeer, 58 Penn. St., 885, 1867. 697. — The municipal authorities of the city of Frankfort had full power to admit the Louisville and Lexington Railroad to pass through Broadway street, and to permit such grading as was proper to secure the passage of the cars through that street, and no right of action for any partial injury to the owners of property on said street accrued therefrom. Louisville and Frankfort B. B. Oo. v. Brown, 17 B. Monroe (Ky.), 763. 1356. 698. — Purchaisers of lots in cities and towns take them subject to the discreet exer- cise by the town authorities of all the power which the law gives them over the streets and alleys. Ih. 699. — To allow a street in a city to be used for a railroad track, eitlier upon its nat- ural surface, or by tunneling, is not a misap- plication of it; provided such use does not interfere with the free and unobstructed use of it by the public, as a highway for passage and ropassage. Plant v. Long Island B. B. Oo., 10 Barbour (N. Y.), 26, 1850; Chapman V. Albany and Schenectady B. B. Co., ib., 360. 1851. 700. — The temporary inconvenience to which the adjoining proprietors are subjected, while the work of excavation and tunneling is going on, is damrmm absque injuria. Ib. 701. —Where the land of an individual is taken for a street in a city, and compensation is made for it, the city has the right to appro- priate the land so taken to all such legitimate uses and servitudes as custom and the public good require in respect to a street. Ib. 702. — The footway of a street is no more private property than a cartway. Clark v. Second am4 Third Street B. S. Co., 8 Philadel- phia Rep. (Penn.), 359. 1858. 703. — The fee of streets acquired by the city of New York under § 118 of the act of 1818, is held by it in trust for the public use of all the people of the state, and not as mu- nicipal property. People v. Kerr, 37 N. T., 188, 1803 ; ir. r. and Harlem B. B. Co. v. Forty. Second St. B. B. Co., 50 Barbour (N. Y.), 809, 1867; see People u. Kerr, 20 Howard's Pr, (N. Y.), 180, 1861 ; People v. Mayor of N. T., ib., 144; see Kelsey e. King, 88 ib.. 89, 1868; Same «. Same, 11 Abbott's Pr. (N. Y.), 180, 1860. 704. — The construction of a city railroad upon the surface of the street, without change of grade, is an appropriation to public use, but it is not such a taking of private property for public use as to entitle the city to com- pensation. Ib. 703. — The possibility of reverter to the owners of land abutting upon the street, after its public uses have ceased, is not a property constitutionally exempt from unremunerated appropriation at the will of the government. Its value, if any, is inappreciable. Ib. 706. — Under the laws of Kansas, the fee of streets and other grounds dedicated to pub- lic use, is in the county in which they are sit- uated, and not in abutting lot owners. The counties may therefore grant the privilege of using said streets for railway purposes with- out compensation; but railway companies will be liable to any person who may receive actual injury from the illegal or unnecessary blocking up or obstructing of such streets or grounds. Atchison and Nebraska B. B. Co. v. Ga/rside, 10 Kan., 552. 1873. 707. Measure of damages. In an action by the owner of land, bordering on a public street, the measure of damage is the loss and inconvenience sustained by such owner, in view of the use to which such land has been put during the existence of such nuisance. Hatfteld v. Central B. B. Co., 4 Vroom (N. J.), 351. 1889. 708. — In an action on the case against a railroad company for injury done to a house and lot, in a town, by the construction of a railroad cut in the street opposite, it is com- petent to show that the value of the rent of the property was thereby diminished ; but it is not competent to show that the rent or other property, similarly situated, belonging to third persons, was diminished by the same cause. Selma and Meridian B. B.Oo.v.Knapp, 42 Ala., N. S., 480. 1868. 709. Municipal corporation. The city authorities of Savannah had no right to authorize the taking of an entire street for •EMINENT DOMAIN. 24:7. Streets, Parks and Highways. railway purposes. Savannah, Albany and Gulf B. B. Co., V. ShieU, 33 Ga., 601. 1864. 710. — A city may grant a right of way along one of its streets to a railway company, without the consent of adjacent lot owners. Ingraham i>. Chicago, D. and M. B. B. Co., 34 la., 349. 1872. 711. — Towns have a qualified interest in the roadways and bridges they have erected, and may maintain an action upon the case for the destruction or obstruction of the road, or the conversion of the materials. Troy, Town of V. Gheshire B. B. Go., 8 Poster (N. H.), 83. 1851. 712. — Where land is gratuitously dedi- cated to the public by the proprietor, for the purpose of a street or highway, in a city or village, and the public authorities accept it as such, the character of the street, and the power and authority of the municipal corpo- ration over it, are the same as if such street had been laid out originally and opened as a public street, by the order and direction of the corporation. Williams v. New York Gen- tralB. iJ. Co., 18 Barbour (N. Y.), 222, 1854; see Soma v. Same, 16 N. T., 97, 1857. 713. — A city ordinance authorized the construction of a railroad on either of two streets through the corporate limits, under suitable restrictions as to grade, etc., to be regulated thereafter. Held, that the ordinance authorized the railroad company (so far as the city had the power to do so), to run the road along the ■street, but not to obstruct the street to the injury of adjoining proprietors. Seld, also, that the road was to be constructed on the grade of the street substantially as it then existed, unless an alteration was made, (if the city had the power to make it), by a proper municipal regulation. Tate v. Ohio and Mississippi B. B. Go., 7 Ind., 479. 1856. 714. — Under the laws of Kansas, a railway company is forbidden to construct or operate its road through the streets of an incorporated city without the consent of the corporate au- thorities. Pacific B. B. Go. v. Leavenworth Gity, 1 Dillon (8 U. S. Cir. Ct.), 393. 1871. 715. — The city authorities may not only grant or refuse the right of way, but may im- pose proper conditions upon which they will give their assent, and if the company accept the right of way, it will be bound by the con- ditions, lb. . 716. — If the company fail to comply with the conditi(ms of such grant, sucli as the con- struction of a depot at a certain place, and grading and paving the street used, the grant will be forfeited. lb. in. — Where the title to the streets of a city has been vested, in fee, in the city, the legislature may authorize their use by a rail- road company without the consent of the city, and without compensation to said city. The streets of a city are not the private prop- erty of the corporation so as to entitle it to compensation for an additional public use. Clinton Gity v. Geda/r Bapids and Missouri Biver B. B. Go., 24 la., 455. 1868. 718. — It was therefore held that the act of March 26, 1860, requiring the building of a railway by said company from the city of Lyons to a point of intersection with a cer- tain railway in the city of Clinton, conferred upon the company the right to use so much of the streets of the city of Clinton as were necessary for that purpose. lb. 719. — The city of Milwaukee has no such an interest or property in the public squares and streets along and across which the M. & B. R. R. Co. is building its road, as to enable the city to maintain an action to enjoin or re- strain said company from such construction of its road. Milwaukee v. Milwaukee and Be- loit B. B. Go., 7 Wis., 85. 1859. 720. — The public do not own the fee of lands dedicated to public use. lb. 721. — Where the B. & A. R. R. Co. had, at great expense, graded a street in the city of Albany wide enough to lay two tracks, on the assurance of the city surveyor that if the S. W. R. R. Co. should desire to use the street, it would be compelled to pay for half the grad- ing, etc. ; and afterwards the city granted the right to the S. W. R. R. Co. upon such condi- tion. Held, that the city would not be per- mitted to revoke the conditions and direct the S. W. R. R. Co. to pay the money to the city. Southwestern B. B. Go. v. Screven, 45 Ga., 613. 1872. 722. — The city government of Louisville had a right to permit the Lexington and Ohio R. R. Co. to locate, construct and use the road in a street of the city, and having done so, no writ of ad quod damnum was necessary, unless the road, or some use made of it, was a pur- presture or nuisance, injurious to private prop- 248 EMINENT DOMAIN. Streets, Parks and Highways. erty or private riglits ; and it could not be so considered, unless the road itself, or some use made of it, was inconsistent with the objects to which the street was originally dedicated. Lexington and Ohio B. B. Co. v. Applegate, 8 Dana (Ky.), 289, 1839; Wolfe v. Covington and Lexington B. B. Co., 15 B. Monroe (Ky.), 404. 1854. 723. — The railroads used in the streets of Louisville could be no breach of the compact with Virginia, nor of any contract with the purchasers of lots, unless private rights were injuriously aflected by it. But, if it was a purpresture or nuisance injurious to individu- als, the chancellor might protect ihem by stop- ping the use of the road by his injunction. But where the road and the manner of using it were authorized by both the legislature and city authorities, that power of the chancellor should not be exercised for such a purpose, without strong grounds, clearly established. 16. 724. — As to the claim for private damages sustained by an individual in such case, where the jury find the plaintiff, as a member of the city council, advocated and voted for the loca- tion of the road as now complained of, and it is proved that he had other property on the same street, etc., and said that its location there would be worth $1,000, that it in fact in- creased the value of his property on that street, and of this particular lot as a place of busi- ness, though not as a residence. Seld, that he could not recover, and the circuit court was right in so instructing the jury. Wolfe v. Cov- ington and Lexington B. B. Co., 15 B. Monroe (Ky.),404. 1854. 72.5. Negligence. The right of a railroad company to lay its track in a street or public highway carries with it the obligation to lay the same in a proper manner and to keep it in repair; and if an injury occurs by reason of a neglect in either of these respects, it is liable. Worster v. Forty-second Street B. B. Co., 50 N. Y., 303. 1872. 726. — Notice to the company of a patent defect is necessary ; but when it appears that the defect existed and an injury was caused thereby, the presumption of negligence is complete. lb. 727. New York City. The corporation of the city of New York has the exclusive right to control and regulate the use of the streets in the city. In this respect it is en- dowed with legislative sovereignty. Milhau 1). Sharp, 27 N. Y., Oil, 1863 ; Same v. Same, 15 Barbour (N. Y.), 103, 1853; Same v. Same, 17 ib., 435,1854; see Same v. Same, 9 How- ard's Pr.-(N. Y.), 103. 1853. 728. — An ordiiaance regulating a street is a legislative act, entirely beyond the control of the judicial power of the state. Ib. 729. — But a resolution declaring that cer- tain individuals shall, upon certain conditions and stipulations, have the authority and con- sent of the common council to lay a double track for a railway, in Broadway street, and to establish a railway therein, and conferring privileges exclusive in their nature, and de- signed to be perpetual, is not a legislative act, regulating the use of the street, but is a grant of the use itself, to the extent specified. Ib. 730. — Such a resolution is not within the powers conferred upon the common council, and is therefore void. Ib. 731.— The Hudson Biver R. R. Co. has no authority, either with or without the consent of the city, to extend railway tracks through College place and Warren street, in the city of New York. People v. Eudton Biver B. B. Co., 32 Howard's Pr. (N. Y.), 394; Same v. Same, 3 Abbott's Pr., N. 8. (N. Y.), 349, 1860. 732. Nuisance. Railways in streets of cities are not nuisances per se. Hamilton v. New York and Harlem B. B. Co., 9 Paige Cli. 171, 1841 ; Drake v. Hudeon Biver B. B. Co., 7 Barbour (N. Y.), 508, 1849; Plant v. Long Island B. B. Co., 10 ib., 26, 1850 ; Hentz v. Long Island B. B. Co., 13 ib., 646, 1852; Milhau v. SJio/rp, 15 ib., 193, 1853; Williams v. New York Central B. B. Co., 16 N. Y., 97, 1857; Davis v. Mayor, ete. of N. T., 14 N. Y., 506, 1856; Wet- more V. Story, 33 Barbour (N. Y), 414, 1850. 733. —A railroad running through the streets of a city, which does not materially in- terfere with the use of the streets for ordinary purposes, or injure the value of the adjacent property, is not a nuis.ance. Hamilton v. New York and Harlem B. B. Co., Paige Ch (N Y.),171. 1841. 734. — A purpresture is an enclosure, or appropriation, for private use, of that which belongs to the public. The Lexington and Ohio Railroad, within the city of Louisville, being so constructed, according to the proof in this case, as not to occupy the street in EMINENT DOMAIN. 249 Streets, Parks and Highways. which it is placed, or any portion of it, ex- clusively; every part, as well as that in which the rails are placed as the rest, being generally open and free for the ordinary purposes ; it cannot be deemed either a purpresture or nuisance. Lexington and Ohio B. B. Co. v. Applegate, 8 Dana (Ky.), 289. 1839. 735. — That the company may hereafter ar- rogate exclusive rights in the street, does not prove, or tend to prove, that it is now a nui- sance or purpresture. Ih. 736. — Laying a railway track, through the streets of a city is not such an obstruction as necessarily to amount to a nuisance ; and the city authorities may grant permission to a railway company to lay such a track. Sargent v. Ohio and Mississippi B. B. Co., 1 Handy (Ohio), 52. 1854. 737. — Where a railroad track is on a pub- lic street, owners of property in this vicinity, to sustain a complaint for constructing and maintaining it, must establish' that it is a public nuisance, and that they have sustained special damage. Black v. Philadelphia and Beading B. B. Go., 58 Penn. St., 249. 1868. 738. — The fee in the streets of towns and cities laid out and platted under the act of January 25, 1839, and the code of 1851, vests in the corporation in trust for the public, and not in the owners of the lots fronting thereon. The only interest such owners have in such streets is the right of way over the same. Milbum ». Cedar Bapids, 12 Iowa, 246, 1861 ; EugliM V. Mississippi and Missouri B. B. Co., ib., 261. 739. — The legislature has conferred upon railway companies the right to consti-uct their roads over and upon the streets of the towns and cities, the consent of the council of the town or city being first obtained ; and rail- ways constructed upon such streets cannot be considered public nuisances. Ib. 740. — Where a railroad company, under a general grant of power, lays out and con- structs its road over and along a public high- way, the town within which such highway is situated, may proceed in equity against such corporation in the supreme court, under its general jurisdiction in matters of nuisance, in order to ascertain whether such construc- tion is or is not within the power granted to the corporation ; and it is immaterial in this respect, whether the way in question be a highway properly so called, or t\. town way. Springfield, InJiabiiants of, v. Connecticut Biver B. B. Co., 4 Gushing (Mass.), 63. 1849. 741 . Partial taking. A railway company may be authorized to use a public street or highway for the purposes of a railroad, retain- ing the use of the street or highway for the ordinary purposes of travel, and the owners of adjoining property will have no right to compensation, although they technically own the fee of the street or highway. But if the highway is to be taken entirely for the use of the railroad company, then compensation must be made. Morris and Essex B. B. Co. ®. Newark, % Stockton's Ch. (N. J.), 352, 1855; see conti'a, Starr v. Camden etc., B. B. Co., 4 Zabriskie (N. J.), 592, 1854; also Central B. B. Co. V. JSetfield, 5 Dutcher (N. J.), 206, 1861. 742. Particular case. Held, under the facts of a particular case, that the Atlantic and Gulf R. R. Co. had the right to run its road through a street in the city of Bainbridge. Atlantic and Qulf B. B. Co. i). Mann, 48 Ga., 200. 1871. 743. Proceedings. A petition to acquire title for railway purposes, to lands used as a street, which does not disclose whether said lands are designed to be appropriated as the property of the respondent, or whether they were included in the petition to have his damages assessed by reason of his ownership of premises fronting on the street, is fatally defective. Mansfield, Coldwater and Lake Michigan B. B. Co. v. Clark, 23 Mich., 519. 1871. 744. — An award, in such case, on account of the respondent " claiming " to own certain land used as a street, without determining whether in fact he did own it, and from which it does not appear whether the damages awarded were the estimated value of the land, or only of some doubtful claim that they sup- posed him to be setting up, cannot be sus- tained. Ib. 745. — The petition must allege that the taking is necessary for the public use. Qrand Bapids, Neuoago and Lake Shore B. B. Go. v. Van Driele, 24 Mich., 409. 1872. 746. Second track. The condemnation of land in a street gives no right to the company except a mere easement in common with the general public. Southern Pacifi/i B. B. Oo. o iSeerf, 41 Cal., 256. 1871. 250 EMINENT DOMAIN. Streets, Parks and Highways. 747. — And where such right is condemned for one track, and the company afterwards seeks to build another, further damages will be awarded, /ft. 748. Street railways. The legislature has, as against a city, the right to grant the right of way to a street railway company through its streets and squares. Savannah and Thun- derbolt It. R. Oo. i>. Mayor of Savannah, 45 Ga., 602. 1872. 749. — The owners bf property adjoining a street in the city of New York, laid out un- der the act of 1813, have an easement in the street, in common with the whole people, to pass and repass, and also to have free access to their premises ; but the mere inconvenience of such access occasioned by the lawful use of the street by a railroad, is not the subject of an action. EelUnger v. Forty-Second Street S. B. Co., 50 N. Y., 206. 1873. 750. Surface water. Where a railway company, without the consent of an adjoin- ing lot owner, and without compensation, constructed its road through a public street, held, that the lot owner could recover damages for injuries to his property caused by surface *ater being caused to stand upon his land ; although the injury miglit not accrue until some time after the construction of the road. Adams v. Hastings and Dakota B. B. Co., 18 Minn., 360. 1872. 751. Switches and turn outs. Kail way companies are not liable for consequential damages in the exercise of the power of emi- nent domain from the state. Cleveland and Pittsburgh B. B. Co. ■». Speer, 56 Penn. St., 325., 1867. 752. — The power to construct a road, in- cludes the authority to make switches, al- though not expressed; and side tracks are' essential to the use of the road. lb. 753. — The point of the location of the switches is in the absolute control of the com- pany, and cannot be adjudged by a private citizen. lb. \ 754. — The company having located its' switches at one place, may, when necessity requires, locate them elsewhere, lb. 755. — Where the charter of a company authorizes it to establish a railway along a public street to a particular point, and to run a locomotive on the road, the company will be entitled to make a turnout from the main track to communicate with the depot erected by it near the terminus of the road, contain- ing the necessary machinery for turning the engine, etc., where no objection exists to the construction of the turnout at that particular point. The right is necessarily incidental to the right to maintain the road, but the com- munication with the main track must be sub- ject to the police power of the city, and must be so constructed as to interfere as little as possible with the free use of the street. New Orleans and Carrollton B. B. Co. v. Second Mu- nieipality of New Orleans, 1 La. An., 138. 1846. 756. West Roxbury R. R. Co. The au- thority conferred on the West Roxbury R. R. Co. by St. 1856, ch. 201, to construct and main- tain a railway over certain streets in West Roxbury, was not revoked or repealed by St. 1858, ch. 38, § 10. Bedham and WestBoxbury B. B. Co. 11. Metropolitan B. B. Co., 8 Allen (Mass.), 379. 1864. 2. Highways. 757. — alteration of liighway. A grant of power, in laying out and constructing a railroad, to change the location of any public road, if the company shall find it necessary, and to occupy such portion of the road as it may deem necessary or expedient, the com- pany, in such case, to cause the changed por- tion of such road to be reconstructed at its own expense, in as perfect a manner as the original road — does not authorize- the diver- sion of an ancient highway, because the com- pany finds it to its pecuniary advantage or con- venience to make such diversion. The altera- tion or diversion must be a necessary one. Oreenwich, Inhabitants of, «. Baston andAmboy B. B. Co., 9 C. E. Green's Ch. (N. J.), 317. 1873. 758. — change of grade. In order to en- title the abutters on a highway, which has been raised or lowered by a railioad company under the provisions of the Rev. Stats., ch. 39, §§ 67, 68, to recover the damages therefor, to which they may be entitled, if any, it is not necessary that the selectmen of the town should have either authorized or directed such alteration to be made. ParJcer «. Boston and Maine B. B. Co., 3 Gushing (Mass.), 107. 1849. 759. — The remedy, for an injury occa- sioned by the alteration of a highway, for the EMINENT DOMAIN. 251 Streets, Parks and Highways. purpose of raising or lowering tlie same, by a railroad company, is not by an- action against tlie town under the Rev. Stats., ch. 35, § 3, but by a proceeding against the corpora^ tion for damages. Ih. 760. — crossing. The crossing of a high- way, by a railway, at grade, is not unlawful, nor does such crossing require the highway commissioners' consent. Baxter v. Spuyten Duyvil and Port Morris R. S. Go., 61 Barbour (N. Y.),428, 1871. 761. — If a railroad company unreasona- bly neglect to comply with the order of county commissioners allowing the company, upon its petition under Stat. 1846, ch. 271, to cross a highway upon a level, the only remedy is for the penalty given by § 4 of that statute, or by a proceeding in equity under Stat. 1849, ch. 222, § 5. The commissioners cannot assess damages, or issue a warrant for a jury, in such a case. Vermorvt and Massachusetts B. B. Co. «. County ConCrs of franklin, 10 Gushing (Mass.), 12. 1852. 762. — The bill in equity, provided by Stat. 1849, ch. 222, § 5, for enforcing the orders of county commissioners, respecting the manner of constructing a railroad where it crosses a public highway, can be maintained only by the mayor and aldermen of the city, or the se- lectmen of the town, within which the way is situated, and not by any Individual inhabitant of such city or town, although he is owner in fee simple of the land over which the way is located. Brainard v. Connecticut Sioer B. B. Co., 7 Gushing (Mass.), 506. 1851. 763. — A bill in equity, under Stat. 1849, ch. 222, § 5, to compel a railroad company to raise or lower a highway, in compliance with an order of county commissioners, may be brought by the town or city within which such highway is situated. Boxbury «. Boston amd Providence B. B. Co., 6 Gushing (Mass.), 424. 1850. 764. — Where it becomes necessary, in crossing a highway, thalt a bridge should be built over the railroad to restore the highway to its usefulness, the railroad company is bound to build the bridge and continue it in repair, so long as the highway exists, and the corporation is allowed to enjoy the lawful ex- ercise of its franchise. People ex rel. v. Troy and Boston B. B. Co., 37 Howard's Pr., (N. T.), 427. 1869. 76.5. — The mere abandonment of the rail- road and the removal of its track, and its en- tire disuse is not enough to deprive the rail- road company of the privileges of its franchise or to absolve it from maintaining and keeping in repair such bridge. lb. 706. — grant of legislature. An act of the legislature, which authorizes the construc- tion of a railroad between certain termini, without prescribing its precise course and di- rection, does not prima facie confer power to lay out the road on and along an existing public highway ; but it is competent to the legislature to grant such authority. Spring- field, Inhabitants of, v. Connecticut Biver B. B. Co., 4 Gushing (Mass.), 63. 1849. 767. — owners of fee entitled to damages. The location of a railroad upon a public high- way is the imposition of a new servitude upon the land, in addition to and distinct from that to which it was originally subjected when taken for a highway, and the owner of the fee is entitled to compensation for the damage caused tliereby. Imlay v. Union Branch B. B. Co., 26 Gonn., 249. 1857. 768. — Under the general statute in regard to railroads, which provides that railroad companies shall pay all damages caused by laying out and making their roads, the inci- ilental injury to land adjacent to that taken and belonging to the same proprietor, is to be considered in assessing damages. lb. 769. — Whether damages are to be paid for such injury to adjacent land not belonging to the same proprietor, qucere ? lb. 770. — The act incorporating the Gamden and Atlantic R. R. Go. gives no power to lay. its road across a public highway, without first making compensation to the owner of the soil. Starr v. Camden etc., B. B. Co., 4. Zabriskie (N. J.), 592, 1854; see contra, J[f or- ris and Essex B. B. Co. v. Newwrh, 3 Stock- ton's Ch. (N. J.), 352, 1855. 771. — owners of fee not entitled to dam- ages. If the land of the plaintiff over which there is an established highway, is taken by a railway company under its charter, no ac- tion at law is maintainable for such taking. Whittier v. Portland and Kennebec B. B. Co., 38 Me., 26. 1854. 772. — Nor can the owners of adjoining lands recover the damages occasioned by ex- cavations made in such highway by the rail- 252 EMINENT DOMMN. Taking Land for Depots and other buildings. ■way company, or by the officers of the town grading down the highway in consequence of the construction of the railway. lb. 773. — turnpike. Where land has been taken for a turnpike and afterwards trans- ferred by legislative authority to a railroad company, without compensation by the latter to the owner of the fee, he may maintain suc- cessive action for damages resulting from such occupation, as a coBtinual nuisance. Mahon v. New Yorh Central B. B. Oo., 24 N. Y., 658. 1860 8. Paries. 7 74. — Cannot be taken. The power given by the general railroad act of 1850 to railroad corporations to acquire title to " any real es- tate required for the purposes of the incorpora- tion," does not extend to the property already dedicated to and held for another public use by authority of law, except in the cases -where it is expressly given by that act. Boston and Albany B. B. Oo. In matter of, 53 N. Y., 574. 1878. VIII. Taking land foe depots and OTHER BUILDINGS, 775. Amount of land to be taken. The statute of 1865, providing that lands of the state not exceeding two acres in extent might be taken for railway depot grounds, does not limit the amount that may be taken from in- dividuals. Virginia and Truckee B. B. Oo. v. Mlioit, 5 Nev., 858. 1870. 776. Damages. Where a railroad com- pany has, -without the consent of the owner, and without color of title, entered upon land and occupied the same, building a depot and hotel thereon, and afterwards seeks to appro- priate the land under the authority of law, the value of the land at the time of the legal appropriation, with the improvements thereon, constitutes the amount for which the company is liable to the owner of the land. Oralum i>. Oonnersville and New Cattle Junction B. B. Co., 36 Ind., 463. 1871. 777. — A statute authorizing the taking of private property for the use of a railway com- pany " for the purpose of running and ope- rating ', its road, will authorize the taking of the necessary depot grounds required for the use of the company. In re New York and Harlem B. B. Co. v. Kip, 46 N. Y,, 546. 1871. 778. — The Hannibal and St, Joseph B. R. Co. is authorized under the statute (Wagn. Stat., 298, § 2, subd. 7) and charter (§ 6) to condemn land for purposes of depots, engine houses and repair shops. Such use is a pub- lie use, for which property may be taken against the owner's consent. Hannibal and St. Joseph B. B. Oo. ii. Muder, 49 Mo., 165 1871. 779. — The general assembly possesses the constitutional power to confer upon a corpo. ration authorized to construct a railroad, the right to appropriate grounds necessary for its use for a depot. Oiesy v. Cincinnati, Wilmington, etc., U. B. Co., 4 Ohio St., 308 1854. 780. Passenger house. A railroad com pany erected on a part of the land which be- longed to the complainant (Hamilton), and which the company had caused to bo con- demned for a railroad, a house for the accom- modation of passengers waiting the arrival of cars. This gives the complainant no title to relief in chancery. A building at the place of junction of two railroads, for the accom- modation of passengers while detained thei-e, is to be regarded not only as a convenience, but as indispensably necessary. Hamilton v. Annapolis and Elle Bidge B. B. Co., 1 Md., 558 1852. 781. — streets. Where the injury com- plained of is the building of a railroad sta- tion in the street, in front of complainant's property, and he owns the soil in the street upon which it is built, the injury is to his in- dividual rights, and not as part of the public, and the suit must be brought in his own name. Higbee v. Camden and Amboy B. B. Co., 4 C. E. Green's Ch. (N. J.), 276, 1808. 782. Workshops. The grant to a railroad company to construct a road, with such ap- pendages as may be deemed necessary for the convenient use of the same, will authorize it to acquire laud by condemnation for work- shops, etc.— these being necessary append- ages. Chicago, Burlington and Quincy B. B. Co., V. Wilson, 17 111., 128, 1855; Low v.Ga. Una and Chicago Union B. B. Co., 18 111 824 1857. > . . EMINENT DOMAIN. 253 Condemnation of Corporate Property. IX. Condemnation of corpoeate PROPERTY. 783. Crossing. To authorize tlie Central R. R. Co. to cross the Morris and Essex Rail- way with its track, it is not essential that any express power should he given in the charter. Morris and Essex B. B. Co. v. Central B. B. Co., 3 Vroom (N. J.), 205. 1865. 784. — The crossing of the track of a rail- road company by the rails and cars of another railroad company, is not an appropriation of the property of the former for the use of the latter. Brooklyn Central B. B. Co. v. Brooklyn City B. B.Co., 33 Barbour (N. Y.), 420. 1861. 785. — A railway company is entitled to damages for the construction of another rail- road across its track, although such track is laid upon piles over tidewater. Gfrand Junc- tion B.B. Co. v. County Com'rs of Middlesex, 14 Gray (Mass.), 553. 1860. 786. Damages. In an application hy one railroad company against another company for damages caused by taking the petitioners' land under revised statutes, ch. 39, § 56, it is not a proper consideration for enhancing the damages, that the petitioner owns a railroad extending far into the interior, and is doing a large and profitable business, which would be incommoded by the track and conveniences of the respondents. But the fact that the land taken by the respondents is near a rail- road communication with the tide waters and the harbor of Boston, and the increased value of the property, for any and all useful pur- poses, are proper considerations in estimating the damages. Boston and Worcester B. B. Co. V. Old Colony B. B. Co., 13 Cushing (Mass.), 605. 1853. 787. Franchise may be taken. The legis- lature, under the power of eminent domain, can take the franchises of a corporation, for public uses, upon making due compensation. Kerr, Inmatter of, 43 Barbour (N.Y.), 119. 1864. 788. Proceedings. In a petition and war- rant for the assessment of damages, occasioned by the crossing of one railroad by another, the place injured is sufficiently described as a " part of the land and bridge heretofore held and occupied by the petitioners for railroad purposes, measuring about five rods in length and forty feet in width, and lying a little west of the draw in their bridge from Charlestown to Somerville, and nearly contiguous thereto," with a reference to the filed location and ac- tual construction of its road. Grand Junc- tion B. B. Oo. v. County Com'rs of Middlesex, 14 Gray (Mass.), 553. 1860. 789. — A commission appointed to ascer- tain and determine the points and manner of crossing by one railroad of another, has no power to locate the crossing at any place other than that stated in the petition and or- der, nor to review any fact on which the order was based, nor to question the right of the pe- titioner to a crossing; nor has such commis- sion power to regulate the rate of speed at which trains on the intersecting roads shall pass the crossing. Central B. B. Co. on Long Island, In matter of, 1 N. Y. Sup. Ct., 419. 1873. 790. — There is no privilege or right di- rectly granted to the N. Y. and Harlem R. R. Co. of the sole and exclusive use of the 4th avenue in New York for a railroad track. As to the crossing of its track, by another rail- road, that is not such an infraction of private property as to call for a preliminary injunc- tion. New York and Harlem B. B. Co. v. Forty-Second Street B. B. Co., 50 Barbour (N. Y.), 309, 1867 ; see Same v. Same, 26 Howard's Pr. (N. Y.), 68, 1863 ; ib., 481. 1867. 791. Taking right of way of another company. One railway company cannot cause a condemnation of any portions of a railway except where it may be necessary to cross it. Land once located by a company which is pro- ceeding with reasonable diligence in the con- sti'uction of a road cannot be taken from it and appropriated by another company. Contra Costa B. B. Co. v. Moss, 33 Cal., 334. 1863. 792. — In the exercise of the power of emi- nent domain, the track and property of one railroad may be taken for the use of another, provided the public good and interests de- mand it. Northei-n B. B. Co. v. Concord and Claremont B. B. Co., 37 N. H., 183, 1853; New York and Housatonic B.B. Co. v. Boston, Hart- ford and Erie B. B. Co., 36 Conn., 196, 1869. 793. — There is properly no such thing as an extinction of the right of eminent do- main. All kinds of property are subject to it, as well that which is already held under it as that which .is not. New York, Housatonic- and Northern B. B. Co. ■». Boston, Hartford and Erie B. B. Co., 36 Conn., 196. 1869. 254 EMINENT DOMAIN. Public Lands. 794. — In the location of such second road, no unnecessary damage should be done to the first road nor to the public, and where the location is to be approved by commissioners, the question is oue that addresses itself to their judgment, and the whole matter is within their jurisdiction. lb. 795. — In 1846 a railroad company was , authorized by its charter to locate its road within one portion of the location of another railroad north of a certain point, and to enter upon and use a certain further portion of that railroad north of that point; and it was pro- vided that the new corporation should pay to the older one " a reasonable compensation for such use of its road as is granted by this act, the amount to be paid in one sum, and not as annual rent, and to be determined, in case of disagreement, by three referees." Seld, that " such use of the road as is granted by this act," within the meaning of the charter, and of a submission and award made pursuant to it, was the use of a portion of a location of tlie old road for the construction of the new one, and not the use of the residue of the northerly portion of the old road — that being regulated by St. 1845. ch. 191. Lowell and Lawrence B. R. Co. v. Boston and Lowell B. B. Co., 7 Gray (Mass.), 27. 1856. 796. — Section 16 of the charter of the Peru and Indianapolis R. R. Co., which enacts that when said company shall have procured the right of way through land, either by the voluntary release of the owner or by con- demning the same, it shall be seized in fee simple of the right to such land, and shall have tlie sole use and occupancy thereof, does not vest in said company the right to the ex- clusive possession of the land occupied by the road, but vests the fee simple subject to the right of the state to take the same, upon compensation being made, for the public use. Newcattle and Biehmond B. B. Co. v. Peru and Indianapolis B. B. Co., 3 Ind., 464. 1853. 797. — The Newcastle and Richmond R. R. Co. has a right, under its charter, to have a sufficient quantity of land over which the Peru and Indianapolis Railroad passes, con- 'lemned for the purposes of its own road, and .he fee simple vested in itself; but this will be subject to the right of way of the Peru and Indianapolis R. R. Co. lb. X. Public lands. 798. State lands. Where a company is authorized by an act of the legislature to construct a railroad between two designated points, it has a right to occupy, in the con- struction of the road, any land of the state between those points, on the general route authorized, which may be necessary for the ■purpose. Indiana Central B. B. Co. v. The State, 3 Ind., 431. 1853. 799. — The act of March 30, 1869, author- izing tlie New York and Long Branch R. R. Co. to extend its road across the Raritan river, and to cross the river by a bridge, gave that company an absolute, unconditional authority to enter upon and appropriate the lands of the state under water, without compensation. Pennsylvania B. B. Co. v. New York and Long Branch B. B. Co., 8 C. E. Green's Ch. (N. J.), 157. 1873. 800. — Where the right of way is granted by the state through its public lands, any per son subsequently entering the lands, takes them subject to the easement of the railroad company. Davis v. East Tennessee and Geor- gia B. B. Co., 1 Sneed (Tenn.), 94. 1858. 801. — The legislature may take public property for any particular public use, or del egate to a company the authority to do so. without making any provision for compensa tion. Indiana Central B. B. Co. v. The State. 3 Ind., 431. 1853. 802. —asylum. Where the general assem- bly authorized a railway company to entei upon, take possession of, and use any lands, etc., for the location of the road, depots, etc.. and provided that " all such lands, materials and privileges belonging to the state, are here- by granted to said corporation for said pur poses;" Jield, that the grant did not include the ground used by the state for the education of the blind, although adjoining the road and convenient for its use. St. Louis, Alton and Terre Eaute R. B. Co. v. Trustees of Blind Asylum, 43 111., 303. 1887. 803. — The fact that the Indiana Central Railway has been located on some pan of the tract of the 80 acres of land purchased for the use of the institution for educating the deaf and dumb, does not alone authorize the conclusion that the uses and purposes for which the institution was located on such EMINENT DOMAIN. 255 Evidence. tract would be so materially interfered -with as to justify the enjoining of the company from crossing it. Indiana Central B. B. Co. v. T7teSto«e, Bind., 421. 1853. 804. United States lands. Mere occu- pants of mineral lands have no title -wliicli they can maintain against the United States or its grantee. Nor can the state grant a license to occupy the same. A mere posses- sor without title cannot recover damages caused by the construction of a railway through such lands. Doran v. Central Pacific B. B. 00,24: Cal., 245. 1864. 805. — The right of way of two hundred feet in width, granted to the C. P. R. R. Co., by act of congress July 1, 1862, extends to mineral lands. The reservation of mineral lands applies to the alternate sections. Doran e. Central Pacific B. B. Co., 24 Cal., 245. 1864. 806. — In all the western states, within which have been public lands, it has been the uniform practice to make public roads through the lands of the United States. This every state may do, under its power of emi- nent domain. This right is subject to no power vested in the federal government. United States v. Bock Island B. B. Bridge Co., 6 McLean, 517. 1855. 807. — Within a state, the jurisdiction of the state is exclusive in such cases. li. 808. — The act of ccmgress of Aug., 1853, granting the right of way to railways through public lands, does not confer the right to enter upon premises in the actual occupancy, of a settler, without payment of damages. Cali- fornia Northern B. B. Co. v. Oould, 21 Cal., 355. 1862. 809. — The act of congress of Aug, 4, 1852, which grants to railroad companies the right of way over the public lands in the states where such lands lie, ceases to operate on said lands after they have been entered by a citizen ; unless the railroad company claiming right of way has located its roadway and filed a plat of the location of the same with the com- missioner of the general land office of the United States at Washington, in the manner required by said act of congress, before said entry was made. Alabama and Morida B. B. Co. V. Burkett, 46 Ala., N. S., 569. 3 871. 8 10. — A preemptioner who had not proved up and made payment for his land, was held to have no rights in the land, recognized by the laws of the United States. The grant of the right of way to the Central Pacific R. R. Co., was perfect as against such preemption- ers, upon the filing of the plat of the location in the proper land office. Western Pacific R. B. Co. V. Tevis, 41 Cal., 489. 1871. XL Evidence. 811. Assessor. One who has been an asses- sor for eighteen years may testify to the value of land and an easement connected therewith, taken for a railroad in the first year that he was assessor, although he had no personal knowledge thereof prior to such taking. Whitman v. Boston and Maine B. B. Co., 7 Allen (Mass.), 313. 1863. 812. Assessor's valuation. Parol evidence of a written statement of the value furnished the assessor is not admissible. Oregon Cas- cades B. B. Co. V. Bailey, 3 Or., 164. 1869. 813. — Though the sworn valuation of the land owner may be admissible in evidence to contradict his statements, it is incompetent as independent evidence in determining the value of property in condemning it for rail- road purposes. Virginia and Ti-uckee B. B. Co. V. Henry, 8 Nov., 165. 1873. 814. — A printed transcript of a copy of the assessor's valuation is not admissible in evidence of the value of land, in assessing damages. Brown •». Providence, Warren and Bristol B. B. Co., 5 Gray (Mass.), 35. 1855. 815. Award and report. The award of the county commissioners, assessing damages for land taken for a railroad, is not admissible on the hearing before a sheriflf's jury, to prove the amount of land taken, lb. 816. — A duly attested copy of the report and estimate of county commissioners, on an application for damages occasioned by taking the petitioner's land for a railroad, estimating the petitioner's damages, and also directing the respondents to make and maintain a way therein described for the benefit of the peti- tioner, is admissible in evidence for the re- spondents, on a hearing before a sheriflf's ju- ry, to estimate the petitioner's damages. White 1). Boston and Providence B. B. Co., 6 Gushing (Ma:3S.), 420. 1850. 817. Engineer — location and plans. On a claim for damages, the claimant may prove, by the testimony of the engineer who made 256 EMINENT DOMAIN. Evidence. the preliminary surveys and plans for such road, that the same might have been located pursuant to the charter, in various modes ■which would not have required the taking of the land of such claimant. Oommonwealth v. Boston and Maine R. JR. Oo., 3 Gushing (Mass.), 25. 1849. 8 1 8. — The evidence of the principal engi- neer of a railroad as to the plan upon which it is to he finished, is admissible to aflf'ect the amount of damages for the land taken by the road. March v. Portsmouth and Concord Ji B. Co., 19 N. H., 372. 1849. 819. Farmers. Where there is a conflict of evidence as to the amount of damage to a farm, the jury may give greater weight to the testimony of farmers than lo that of other persons. JacJcsonvUle, Alton and 8t, Louis B. B. Co. «. Caldwell, 21 111., 75. 1859. 820. Fire. A witness, who had been for ten years secretary of an insurance company, and as such had been in the practice of exam- ining buildings, with reference to insurance thereof, and who had also, as county commis- sioner, frequently estimated damages caused to estates by the laying out of highways and railroads, was held to have been rightly per- mitted, on a hearing before a jury empaneled to appraise damages sustained by a party by the laying out of a railroad over his lands and near to his buildings, to give his opinion that the passage of locomotive engines within one hundred feet of a building would dimin- ish the rent and increase the rate of insurance thereof against Are. Held, also, that he was rightly permitted to testify that the directors of the insurance company, of which he was secretary, upon his consulting them as to an application for insurance on a building in the vicinity of the buildings of the party then before the jury, had declined to take the risk at any rate. Welier v. Bastern B. B. Co., 2 Metcalf (Mass.), 147. 1840. 821. General principles. The commis- sioners should have evidence upon the ques- tion of damages, and in so doing, the ordinary rules of evidence apply. Central Pacific B. B. Co. V. Pearson, 85 Cal., 247. 1868. 822. — On their direct examination in such matters, witnesses cannot state the particular transactions upon which they base their judg- ment as to the value of the land. lb. 823. — The commissioners are not bound by the evidence, but they are required to view the premises, and may found their award upon their own judgment. Western Pacific B. B. Co. V. Beed, 85 Cal., 621. 1868. 824. — Their award will not be set aside where there is a conflict of evidence. lb. 826. — Though the viewers are required to view the premises, they are not prohibited from examining witnesses during their inves- tigation. (Act March 27, 1848.) Pennsylvania B. B. Co. V. Keiffer, 22 Penn. Bt., 856. 1858. 826. — On a question of railroad damages, a witness cannot be ponnittod to testify, as to inconveniences which he has suiTered on his farm by the ordinary running of railroad cars, for the purpose of showing the incon- veniences suflEered by one owning a farm in that vicinity, as such evidence would raise an issue collateral to that on trial. Concord B. B. Co. V. Greeley, 8 Foster (N. H.), 287. 1851. . 827. — The statements of a witness touch- ing the value per acre of the lands appropri- ated, are admissible, Hvansville, Indianapolis and Cleveland B. B. Co. v. Cochran, 10 Ind., 560. 1858. 828. — Tlie inquiry as to the value of the land and the damages thereto, was in this case properly directed to the time when the com- missioners filed their report. It was also proper to show that the damage to the land was increased by reason of the diagonal course of the railroad across the same; and it was proper to show, too, the exact condition of ditches and embankments made on the land appropriated in constructing the road- way, and the injuries resulting therefrom to appellant's land. St. Joseph and Dmeer B. B. Co. V. Orr, 8 Kan., 419. 1871. 829. — In proceedings of this character, the rules of law are to govern in the admis- sion and rejection of evidence. Bochetter and Syracuse B. B. Co. v. Budlong, 6 Howard's Pr. (N. Y.), 467, 1851 ; Troy and Boston B. B. Co. 10. Northern Turnpike Co., 16 Barbour (N. Y.), 100, 1852. 830. — Where a railroad company, being unable to agree with the owner of the land, makes application to the court by petition, for the appointment of commissioners under the general railroad act of 1850, and the facts al- leged in the petition are denied, and an issue is formed, the proof required to be produced by the owner to disprove the facts alleged, EMINENT DOMAIN. 251 Evidence. must be legal evidence; the party's own affida- vit or any other aiBd ivit, will not answer. Buffalo and State Line B. B. Go. v. Beyrwlds, 6 Howard's Pr. (N. Y.), 96. 1831. 831. Interrogatories. It is proper to ask a witness " W^hat was the value of the farm when the company took possession?" and then, " What was it worth when the company entered upon it, deducting the strip taken from it by the company for its purposes?" Simmons ■». St. Pa/ul and Ohicago B. B. Oo., 18 Minn., 184, 1873; Colvill v. Same, 19 ib., 283, 1873; Si. Paul and Sioux City B. B. Co. v. Murphy, ib., 500, 1873. 832. Olers to buy or sell. Evidence of an offer made for land is inadmissible to prove its value. Such testimony is easily manufac- tured. It is warranted neither on principle nor on authority, and is too dangerous to be tolerated. St. Joseph and Dermear B. B. Oo. ». Orr, 8 Kan., 419. 1871. 833. — To prove the value of laud, evidence of what a witness had oflfered for other land on the opposite side of the street, is not com- petent. Davis V. Charles Biver Branch B. B. Co., 11 Gushing (Mass.), 506. 1853. 834. — Evidence is not admissible to show what other property in the vicinity has been offered at. Zehmieke v. St. Paul, Stillwater, etc. B. B. Co., 19 Minn., 464. 1873. 835. Opinions of witnesses will be re- ceived. When the value of property is in controversy, persons acquainted with the property may give their opinion of its value. Ih. \ Simmons v. St. Paul and Chicago B. B. Co., 18 Minn., 184, 1873; Grannis v. Same, ib., 194; Shattuck v. StoneJiam Srandi B. B. Co., 6 Allen (Mass.), 115, 1863. 836. — In estimating the damages, proof of particular instances of sales of land in the neighborhood, is inadmissible ;the only proper test is the opinion of witnesses, based upon its location, productiveness, its market value, or the general selling price of land in the neigh- borhood. Bast Pennsylvania B. B. Go. v. Hie- ster, 40 Penn. St., 53. 1861. 837. — The value of the land may be proved by the testimony of witnesses personally ac- quainted with the subject and sufficiently familiar with it to giye an opinion, although they have never bought or sold land in the vicinity, or known or heard of such sales from the buyer or seller. Whitman v. Boston 17 and Maine B. B. Go., 7 Allen (Mass.), 813. 1863. 838. — It seems, that at the trial of a peti- tion for the assessment of damages occasioned to land by the construction ot a railroad, the petitioner may ask a neiglibor who has made sales of land in the vicinity, and knows the value of land there, whether the building of the railroad would diminish the value of the land, and if so, how much ? Brainard » B s- ton and New York Central B. B. Co., 13 Gray (Mass.), 407. 1859. 839. — Where the questions put to the wit- ness, preceded by a full statement in regard to his competency to give an opinion, and of all the facts upon which that opinion was founded, were as follows: 1. Will you state what, in your opinion, will be the iryury to the residue of B.'s farm, occasioned by the construction of the proposed railroad through it? 3. State, if you can, what would be the diminution in value of the two fields north and south of the proposed railroad, by the construction thereof? Held, that they were proper. Boehester and Syracuse B. B. Co. v. Budlong, 10 Howard's Pr. (N. Y.), 389. 1854. 840. — Witnesses, who are farmers, owning land in the vicinity, may be asked how much, in their opinion, the land has been depre- ciated. Snyder v. Western Union B. B. Go:, 35 Wis., 60. 1869. 841. — To render the opinions of witnesses admissible as to the damage done to land, they must be experts. It is not enough that they merely reside in the vicinity of the land. Bufwm V. New York and Boston B. B. Go., 4 E. I., 331. 1856. 842. — Land and city lots have no standard value; and to arrive at their proper valuation, it is right to take the opinion of witnesses, and to hear the facts upon which such opin- ions are based. Illinois and Wisconsin B. B. Co. V. Von Horn, 18 111., 257. 1857. 843. — One residing and owning land within half a mile of land taken for a rail- road, and who testifies that he has known the land for six years, and has heard of sales of land in the vicinity, may testify to his opinion of the value of the land taken. Bussell v. Horn Pond Branch B. B Co., 4 Gray (Mass.), 607. 1855. 844. — On appeal, witnesses will be per- mitted to give their opinion of the value of 258 ■EMINENT DOMAIN. Evidence. the premises before and after tlie taking of the right of way, leaving the opposite party, by his right of cross examination, to learn the ability of the -witness and what he considers in making up his judgment. Henry v. Du- buque and Pacific B E. Co., 3 Iowa, 288. 1855. 845. — But in such cases the opinions of the witnesses must be confined to the premises over which the right of way is taken. Jb. 846. Opinions will not be received. Wit- nesses will not be permitted to give their opin- ions as to the amount of damages sustained by reason of the location of the road. Brum- wick and Albany B. B. Co. v. McLaren, 47 Ga., 546, 1873; Ala. and Fla. E. B. Co. v. Bv/rkett, 42 Ala., 83, N. 8. 1868 ; Montgomery and Went Pt. B. E. Co. V. Va/rner, 19 Ala., N. 8., 185, 1851 ; EvanBville, Indianapolis and Cleveland B. B. Co. V. Fitzpatriek, 10 Ind., 130, 1858 ; Bcrnie v. Stringer, ib., 551 ; Atlantic and Great Western E. B. Co. V. Campbell, 4 Ohio St., 583, 1855; Cleveland and Pittsburgh B. E. Co. v. Ball, 5 ib.,569, 1856. 847. — The opinion of witnesses as to the damages done to the land, based upon the evi- dence of witnesses whose testimony they have heard is inadmissible. O-rinnell v. Mississippi and Missouri E. E. Co., 18 Iowa., 570. 1865. 848. — When the damages are assessed be- fore the completion of the road, the opinion of witnesses as to what will be the value of the land after the road is completed, is inad- missible. Watson v. Pittsburgh and Gonnells- ville B. B. Co., 37 Penn. St., 4«9. 1860. 849. — When the damages are assessed after the completion of the road, the difference in the value of the land may be shown by the opinion of witnesses, confining them to the consideration of the direct and necessary con- sequences of the construction of the road. Ib. 850. Plans and estimates. The plans and estimates of the company, for the portion of the road in question should be admitted in evidence. JaclcsoTVoille and Savanna E. E. Co. V.Kidder, 31 111., 181. 1859. 851. Reversion. Tlieopinionof an expert is competent as to the value of the reversion of the land ovor which a railroad has been lo- cated. Boston and Worcester B. B. Co. v. Old Colony and Fall Biver E. E. Co., 3 Allen, (Mass.), 143. 1861. 852. Sale of other land. At a hearing by a sheriff's juiy to assess the damages caused to a vacant tract of land, evidence is not ad- missible to show the sum paid by the corpo- ration to the owners of an adjoining estate, when it appears that it was paid as a gross sum, for damages to the entire estate, on which was a dwelling house near the railroad, and a well within the location of the railroad. Presbrey v. Old Colony and Newport B. E. Co., 103 Mass., 1, 1869, 863. — On the trial of a petition before a sheriff's jury, evidence is not admisf(ible to show the price paid by the respondents, for land adjoining the land in question, under an award of arbitrators mutually agreed upon to estimate the same. White v, FiteJibwrg B. B. Co., 4 Gushing (Mass.), 440. 1849, 854, — To show the value of the land taken, evidence is admissible of the price obtained at an administrator's sale of an undivided part of the land. March v. Portsmouth and Concord E. B. Co., 19 N. H., 372. 1849. 855, — On the hearing, before a jury sum- moned to assess damages, the owner may give evidence of the price paid by the railroad company for the adjoining land of another. But an owner of adjoining land cannot legally be permitted to state to the jury what, in his judgment, is the value of that land, though he be a farmer who has occasionally bought and sold land; and if he be permitted to make such statement, the verdict of the jury will be set aside, although they were instructed, that opinions, except of experts, were not evi- dence. Wym/m v. Lexington and West Cam- bridge E. B. Co., 18 Metcalf (Mass.), 316. 1847. 856, — In proving the value of the land, a witness cannot properly be asked to state at what price the right of way was purchased through adjoining tracts, unless it be first shown that there is a uniformity in the char- acter of the lands thus brought in question. King v. Iowa Midland E. B. Co., 34 Iowa, 458. 1873. 867. Sale of residue. The petitioner may be asked on cross examination, for what price he sold the residue of the lot, seventeen years after the taking. Whitman n. Boston and Maine E. B. Co., 7 Allen (Mass.), 313. 1863, 858. View. Where the principal evidence of the value of the land was derived from a view of the premi.scs, the court will not set aside the verdict as excessive. Bangor and EMINENT DOMAIN. 259 Statutory Remedy Exclusive — Title of Land Owner. Piacataquis R. B. Co. v. MeCorrib, 69 Me., 290. 1873. 859. Viewer. It is not a valid objection to a witness that he had been viewer, especially ■when he had been instructed by the court that he must speak from his own knowledge, and not give any opinion founded on evidence heard as a viewer. Dorian v. Bast Brandy- wine and Waynesburg B. B. Co., 46 Penn. St., 530. 1864. XII, Statutory remedy exclusive. 860. Exclusive remedy. Where a remedy is given by the statute for taking private prop- erty, that remedy is not cumulative, but is exclusive. Indiana Central B. B. Co. ii. Oahes, 20 Ind., 9, 1863; McCormack v. Terre Havie and Bichmond B. B. Co., 9 ib., 383, 1857; La- fayette and Indianapolis B. B. Co. v. Smith, 6 ib., 249, 1855 ; Golamgh v. Nashville and Northwest- em B. B. Co., 3 Head (Tenn.), 171, 1858; Al- d/rich V. Cheshire B. B. Co., 1 Foster (N. H.), 359, 1850 ; Knorr v. O&nnantown, etc. B. B. Co., 5 Wharton (Penn.), 256, 1839; Cumberland Valley B. B. Co. «. McLanalum, 59 Penn. St., 23, 1868; Pettibone i>. La Crosse and Milwaukee B. B. Co., 14 Wis., 443, 1861; Baher v. Hanni- bal and St. Joseph B. B. Co., 36 Mo., 543, 1865 ; Lea/ry t>. Same, 38 ib., 485, 1866 ; Mason «. Ken- nebec and Portland B. B. Co., 31 Me., 315, 1850 ; Little Mia/mi B. B. Co. i> Whitaere, 8 Ohio St., 590, 1858 ; Hueston v. Eaton and ffarniilton B. B. Co., 4 ib., 685, 1855. 861. — In such case, the bar is equally as effectual, although the owner may have re- fused to submit to such proceedings, or to receive the amount awarded to him and de- posited for his use. Htieston e. Eaton and, Hamilton B. B. Co., 4 Ohio St., 685. 1855. 862. — Where the owner of land seeks to recover damages for the injury resulting from the location of a railroad on his land, he must pursue the remedy prescribed by the charter of the railroad company, as this statutory pro- vision takes away, by implication, the com- mon law remedy by action of trespass on the case. Mclntire v. Western North Ca/roUna B. B. Co., 67 N. C, 278. 1873. 863.— The C. V. R. R. Co. had, in process of its construction, the legal right to pass over and destroy a portion of a certain highway in the town of H., and a general statute of the state provided a specific remedy for the injury so done ; Jield, that where the acts were done in accordance with law, the party injured is confined to the statute remedy for such damages. HenniTcer v. Contooeooh Valley B. B Co., 29 N. H., 146. 1854. 864. — Action against the Junction R. R. Co. for damages occasioned by the construc- tion of the road through the plaintiff's land, Held, that the iJlaintiflT's remedy was by claim for damages, etc., to be enforced in the mode prescribed in the defendant's charter. Levis- ton D. Junction B. B. Co., 7 Ind., 597. 1856. 865. — The legislature cannot authorize either a direct or consequential injury to property, without compensation to the owner. EvansviUe and Crawfordsville B. B. Co. i>. Dick, 9 Ind., 433. 1857. 866. — If a private corporation, voluntarily, for its own benefit, so construct a work as necessarily to injure the property of an indi- vidual, and its charter gives no remedy for such injury, it is liable in an action for dam- ages for the injury, though the work be con- structed in a proper manner and place. Ib. 867. Not exclusive. The statutory provis- ion for the assessment of damages in a sum- mary way, is in derogation of a common law right, and should be strictly construed. The summary remedy is only cumulative, and does not take away the common law action for dam- ages. Doe ex drnn v. Georgia B. B. Co., 1 Ga., 534. 1846. XIII. Title of lakd owner. 868. Bond for deed. The owner of an estate in fee and a person to whom he has given a bond for a deed on the fulfillment of certain conditions, may both join in a peti- tion, under Rev. Sts., ch. 34, § 48, for damages to such estate caused by taking it for a rail- road, although the condition of the bond is not then performed. Proprietors of Locks and Canals v. Nashua and Lowell B. B. Co., 10 Cushing (Mass.), 385. 1853. 869. Conilicting claimants ; deposit. The Vermont Central R. R. Co. took certain land under its charter, and there being conflicting claims to the land, the damages were paid into bank, subject to the future order of the chancellor, and on a petition subsequently prefereed by one who claimed the money so de- 260 EMINENT DOMAIN. Title of Land Owner. posited, the chancellor, upon notice given to the company, no adverse claimants appearing, ordered the money so deposited to be paid to the petitioner. Held, that under Comp. Bt, 196, the proceedings before the chancellor were final, and the company had no interest in the question and could not a{)peal from the order of the chancellor. Baiweli v. Vermont Central R. B. Co., 33 Vt., 228, 1851. Same v. Fwrmen' and Mechanics' Bank, 26 ib., 100, 1853. 870. Death of claimant. Unless the real estate, which was of an intestate, be taken for public uses prior to his decease, his adminis- trator has no right to petition for increase of damages; since, in such case, it would be the land of the intestate's heirs that was taken. Neal V. Knox and Lincoln B. B. Co., 61 Me., 298. Ibis. 871. Decedent's land. Wheie the land of one deceased is taken for a railroad, the heir, and not the administrator, is entitled to the damages for such taking, and to prosecute for the recovery thereof, although the adminis- trator had previously represented the estate to be insolvent, and afterwards obtained a license to soil the intestate's real estate for the pay- meat of debts. Boynton v. Peterborough and Shirley B. B. Co., 4 Gushing (Mass.), 467. 1849. 872. Estoppel. A railway company is not estopped from disputing the title of one of the land owners named in its report of locati6n, especially if such owner's name is not there given in full. Allyn v. Providence, Warren and Bristol B. B. Co., 4 R. I., 457. 1857. 873. Evidence. Whore a railway com- pany commences proceedings to condemn the land of an individual, for its right of way, the land owner is not required to establish his title by proof; the petition of the corporation is suflBcient evidence of his title. Peoria and Sock Island B. B. Co. v. Bryant, 57 111., 473. 1870. 874. Incumbered land ; judgments. Third persons, holding liens by virtue of judgments recovered, ought to have notice, unless the statute, by its terms, clearly only requires no- tice to be given to the owners. Watson v. New ToTlc Central B. B. Co., 6 Abbott's Pr., N. S. (N.Y.), 91. 1868. 8 7 5. — mortgages. Neithei- the fact that the property is under mortgage, nor the fact tl>at it belongs to a corporation chartered by a state law, exempts it from the operation of the right of eminent domain. Alabama and Flat ida B. B. Co. v. Kenney, 39 Ala., N. 8., 307. 1864. 876, — Mortgagees are necessary parties to an action for compensation for taking land for right of way. Da/ois «. La Crosse and MiU wauleee B. B. Co., 12 Wis., 16. 1860. 877. — The mortgager of land taken by a railroad company for the purpose of its road, may recover the full amount of damages, without regard to the mortgages. Breed v. Eastm-n B. B. Co., 5 Gray (Mass.), 470. 1840. 878. — It seems, that at the trial of a i>eti- tion for the assessment of damages occasioned to land by the construction of a railroad across land adjoining, the railroad company is not entitled to show that the mortgagee of the land, who has waived all claim to dam- ages, has conveyed to it by deed of warranty the land over which the road passes; and to have the damages assessed applied in payment of the mortgage, and judgment rendered for the residue only. Brainard v. Boston and Nrno Torle Central B. B. Co., 13 Gray (Mass.), 407. 1859. 879. — The existence of a mortgage which is a lien upon land taken and used by a rail- road company, is one of the defects in the title to such land, contemplated in § 21 of the general railroad act of 1850, so as to author- ize such company to proceed to acquire a valid title. New Tm-h Central B. B. Co., In matter of, 20 Barbour (N. Y.), 419. 1854. 880. — The company is not obliged to wait until the mortgaged premises are sold under a decree of foreclosure; but on discovering the existence of the incumbrance, it may pro- ceed immediately to have the lien extin- guished, as to the land occupied by it. Ib. 881. — Where land is taken for the right of way and there is a mortgage lien upon it, the railroad company has a right to redeem such lands from the lien of the mortgage on the payment of a ratable proportion of the mort- gage debt, which it must do to the full value of the property (at the time of its appropria- tion), with interest, if need te, irrespective of the improvements put thereon by the com- pany. Bows V. Congdon, 16 Howard's Pr. (N. Y.), 571. 1858. 882. — A purchaser of land who, at the time of the purchase, executed a deed of trust to secure the purchase money, cannot convey EMINENT DOMAIN. 261 Title of Land Owner. tlio right of way over the land to a railway company, except subject to the payment of the purchase money. Stewart «. Raymond S. S. Oo., 7 Smedes and Marshall (Miss.), 568. 1846. 883. — "Where a railroad company in tak- ing land for its road, paid the owner an agreed price for it, if, on foreclosure of a prior moil;- gage, a sale of the remainder of the premises does not satisfy the mortgage, the company is entitled to relieve its land from the lien by paying its value at the time it was taken, with interest. Kennedy c. Milwaukee and St. Paul S. B. Oo., 32 Wis., 581. 1868. 884. — The assessment of damages occa- sioned to a tract of land, on the petition of several joint owners, is properly made in a gross sum. It Is not necessary for the jury to apportion the damages among the claimants. Pittsburgh and Steubemille B. B. Co. ii. Hall, 25Penn. St.,.336. 1855. 885. Landlord and tenant. The owner of a ground rent is not affected by proceed- ings of a railroad company against his tenants, to take and occupy the ground for the pur- poses of its road, the landlord and tenant hav- ing distinct estates. Voegtly v. Pittsburgh and Port Wayne B. B. Go., 2 Grant's Cases (Penn.), 243. 1858. 886. Lease. Damages by the Pennsylvania R. R Co. depend on the appropriation of the property to railway purposes. This differs from the use of property under a lease for a terra of years. Seise and Mifflin v. Pennsyl- mnia B. B. Co., 63 Penn. St., 67. 1869. 887. — A railway company having title to use and occupy land under a lease may lay rails upon it and use them as a track, if not forbidden in the lease, or if no waste be com- mitted, lb. 888. — In such case the rails must be removed before the end of the lease. In case of anappropriation, a perpetual easement takes place. lb. 889. — The act of limitation of railroad suits has no application to cases where rails are laid, etc., on land held by lease. lb. 890. — If the company appropriate the whole under its charter, the owners would be entitled to damages, the effect of the lease only being to reduce the damages. lb. 891. — A railroad company may acquire title under the statute, to lands of which it already holds an unexpired lease. New York and Ha/rlem B. B. Co., In matter of, 11 Abbott's Pr., N. S. (N. Y.), 91. 1871. 892. — "Where a lease for years contains a provision that nothing in the instrument should prejudice the right of the lesSor to demand and recover any damage resulting to the property from the construction of rail- roads, to the same extent as if he were in pos- session; held, that the lessee cannot recover damages for an injury to his term, resulting from such construction. Bv/rbridge v. New Albany and Salem B. B. Co., 9 Ind., 546. 1857. 893. — But in the absence of such a pro- vision, a tenant for years might recover the damage to his term ; and it seems that a tenant for life in the same lands might recover the damage to his estate, and that the remainder- man might recover the damage to the rever- sion, lb, 894. — The premises, in such case, were leased subject to the right of way of such railroads as might be constructed through them, and tlie lessor reserved the right of recovering all damages to the realty resulting from such construction. If the lessor should waive his right to recover such damages, the waiver would go to the benefit of the railroad company, and not to .that of the lessee. lb. 89.5. — A lessee of premises, who puts a dwelling house thereon by permission of the owner of the fee, and with the right to move off the house at the expiration of the lease, if the lessee complies with the terms of the lease, has such an interest in the realty as he or she may convey by mortgage. It is an interest in real estate, and tlie house and underpinning stones became attached to and a part of that interest. Haga/r v. Brainerd, 44 "V"t., 294. 1872. 896. — The mortgagee of such an interest has rights in the premises that cannot be invaded or destroyed by proceedings in inm- tum against the owner of the fee and the lessee. His interest must be condemned and appraised and paid for or he will be entitled to his ac- tion, lb. 897. Life estate. A tenant for life may have his damages assessed alone, or he may join with those entitled to the remainder, and have the entire damages assessed. Beading B. B. Co. V. Boyer, 13 Penn. St., 497. 1850. 898. Owners; who are included. The 262 EMINENT DOMAIN. Title of Land Owner. charter of a railway company providing for compensation for taking the right of way, the land owner may have a view to assess the dam- ages whenever his right is directly injured by entry upon the land. Philadelphia, Wilming- ton and Baltimore B. R. Co. v. Williams, 54 Penn. St., 103. 1867. 899. — The term " owners " includes all owners of titles in or growing out of the land, whose rights are capable of actual privation by taking. lb. 900. Partnership. If land is purchased by partners with partnership funds, for part- nership purposes, and is not needed for the payment of debts, the title vests in the mem- bers of the firm as tenants in common ; and after the death of one of them, a petition for damages sustained by reason of the location of a railroad upon it is properly brought in the joint names of his administrator and the surviving partner. Whitman v. Boston and Maine R. R. Go., 3 Allen (Mass.), 133. 1861. 901. — Partners may recover damages jointly for the taking for a railroad of land of which one of them holds the legal title in trust for the firm. Reed v. Hanoter Branch R. R. Co., 105 Mass., 303. 1870. 902. Possession. Possession of land is pritna facie evidence of title thereto: and an exclusive possession and occupancy for ten years under a claim of absolute title, and where there is no adverse showing, is sufficient evidence for a jury to infer a title in fee sim- ple in the occupant, on an appeal from the appraisement and assessment of county com- missioners, of land taken for a railroad. Mis- smwi River, Ft. Scott and Chdf R. R. Co. ■». Owen, 8 Km., 409. 1871. 903. — Title in fee is not to be presumed from possession. The claimant must show some degree of title, and he can only recover according to the degree of interest that he has. Bobbins v. Milwaukee and Horicon B. B. Co., 6 Wis., 686. 1859. 904. — The damages must be paid to the true owner if he recovers possession before the damages are paid, although a trespasser may have been in possession when the dam- ages were assessed. Booney v. SacramenU) Valley B. B. Go., 6 Cal., 638. 1856. 905. — The damages when paid will be paid to the parties in possession although other parties may have given notice of their ownership before payment. Bacramento Val- ley B. B. Go. V. Mqffatt, 7 Cal., 577. 1857. 906. — The question of title cannot be investigated in such proceeding. Ban Fran- cisco and Ban Jose B. B. Co. v. Mahoney, 29 Cal,, 113. 1865. 907. — Where the title is in dispute, the money should be paid into court and remain there until the title is settled. lb. 908. Proceedings. Under act of February 19, 1849, an objection to the quaniwm of the title in the petitioner, or that it was errone- ously set forth in the petition, must be made at the time of the application for viewei's, or upon appeal from their report. Ohwrch v. Northern Central B. B. Co., 45 Penn. St., 389. 1868. 909. Record. The Court of Common Pleas may reach the question of title by prescribing rules which will bring the act of the com- pany evidencing the appropriation in the record, and enable the court to send before the viewers the true and only question which they ought to decide. Heise and Mifiin v. Permsyhania R. B. Co., 63 Penn. St., 67. 1869. 910. Sale after assessment. The right to compensation from the W. & M. K. B. Co. for land taken for its track belongs to the owner of the tract at the time the road was finished through it, and not to a subsequent vendee. Lewis V. 11 ■ inington and Manchester R. B, Go., 11 Richardson's Law (So. Car.), 91. 1857. 911. — A person who has acquired real es- tate subsequent to the time when it was dam- aged by a railway company, cannot maintain an action for such injury. Central B. B. Co. v. MerJcel, 33 Tex., 733. 1870. 912. Sale before assessment. Where a claim has accrued for damages to an entire tract of land, by reason of the actual construc- tion of a railroad over part of it, and, before the damages have been assessed or paid, the land is sold, without any provision in respect to them, the right to such damage remains in the vendor. Pomeroy «. Chicago and Milwau- kee B. B. Co., 25 Wis., 641. 1870. 913. — For land sold before any steps were taken to condemn the right of way through the same, the vendor is not entitled to recover damages, unless the right to claim such dam- ages was reserved in making the sale of the land. JEJlizabethtown a/nd Paducah B. R. Co. v. Helm's Heirs, 8 Bush (Ky.), 681. 1871. EMINENT DOMAIN. 263 Title Acquired by Company. 914. St. Paul and Sioux City R. R. Co. Under the charter of the St. Paul and Sioux City R. R. Co. the question of the title to the land actually appropriated is to be determined by the court at the time of appointing the com- missioners to assess the damages. 8t. Pmil and Sioux City B. B. Co. 1>. Matthms, 16 Minn.j 3il. 1871. 915. Tenants for years. Tenants for years are such owners of lauds as are entitled to damages for the taking, for railroad purposes, of the lands in which they hold an interest. North Pennsylvania B. B. Co. v. Davis, 26 Penn. St., 238. 1856. 916. — The interest of the tenant upon a covenant for the renewal of the lease is a proper subject for compensation. lb. 917. — Nor will the fact that the viewers in their report designate it as " damages for the non-renewal of the lease," vitiate the award, it being in substance compensation for the land, and not damages for the breach of con- tract, lb. 918. Tenants in common. An authority by one to another tenant in common to pro- ceed to an assessment of the damages which had been suffered by the location and construc- tion of a railroad through their farm, will not authorize the latter to proceed in his own name, treating the farm as his own. Bailroad Co. V. Buaher, 7 Watts (Penn.), 33, 1838. 919. — A grant by one of several tenants in common of the right of way as to his in- terest, while it passes no fee and confers no rights against the other tenants, operates as a release of his damages. Draper ■». Williams, i Mich., 536. 1853. 920. Viewers. Viewers of damages for the right of way, may pass upon the title to land taken, so far as to determine who are en- titled to the damages. Winebiddle v. Pennsyl- vania B. B. Co., 3 Grant's Cases (Penn.), 33. 1852. XIV. Title acquired by company. 921. Ditches to drain the road. The con- demnation of 100 feet in width as a right of way for a railroad, gives the railroad company no right to enter upon and dig ditches through the adjacent lands through which the right of way has been so condemned, even though such ditch is necessary to the proper drainage and protection of the railroad. State v. Armell, 8 Kan., 288. 1871. 622. — The rights and easements acquired by a railroad company, by the condemnation of lands belonging to another for the pur- poses of its road, must be definitely and precisely shown in the proceedings. The con- demnation proceedings must show what is taken, and what the land owner parts with. Nothing is taken by implication or intend- ment, lb. 923. Erection of buildings on right of way. The exercise of the right of eminent domain is in derogation of private right, and must be strictly construed. Lance's Appeal, 55 Penn. St., 16. 1867. 924. — A railway company cannot erect buildings, etc., not necessarily connected with the use of its franchises, within the limits of its right of way. lb. 925. Fee simple title is acquired. The title obtained by a railway company by con- demnation of lands is in fee simple. Burnett V. Nashville and Chattanooga B. B. Co., 4 Sneed (Tenn.), 538. 1857. 926. Pee simple not acquired. By con- demnation of lands for railway purposes, rail- way companies do not acquire a fee simple title, but only an easement in the lands, and this fact should be considered in the assess- ment of damages. Alabama and Florida B. B. Co. V. Burkett, 42 Ala., N. S., 83. 1868. 927. — The fee of the land remains in the owner subject to the casement for which it is taken. Henry v. Dubuque and Pacifia B. B. Co., 2 la., 28S. 1855. 928. — Such easement is not limited to the life of the charter, but is intended to be per- petual, if the company or its grantees, or as- signs continue to occupy the land for the pur- pose for which it was taken. lb. 929. — The fee of the land taken for a rail- way track remains in the owner from whom the land is taken. The exclusive right of property in the land, in the trees and herb- age upon its surface, and the minerals below it, remains unchanged, subject, always to the right of the corporation to construct and oper- ate a railroad over and through it, as author- ized by law. Blake v. Bich. 34 N. H., 283. 1856. 930. — A corporation cannot claim the ex- clusive use of a right of way that is not neces- sary and useful in its corporate business. 264 EMINENT DOMAIN. Title Acquired by Company. Oregon Cascades B. R. Co. v. Baily, 3 Or., 104. 1869. 931. Herbage. An agreement, in taking a right of way by location and survey, that the land owner might have the herbage grown there from year to year, is not valid as against the lessees of the company, who took posses- sion without any knowledge of such arrange- ment, there being nothing to indicate its ex- istence so as to put them on inquiry, the com- pany being in full possession at the time the lease was made. Troy and Boston B. B. Co. v. Potter, 42 Vt., 265. 1869. 932. — The land owner has no right to en- ter upon such land to remove the herbage in the absence of any agreement authorizing him to do so. lb. 933. — The right of a railway company to land taken for its road is exclusive, and those from whom the land is taken, retain no right to its use, or occupation, for pasturage or oth- erwise. Surd V. Butland and Burlington B. B. Co., 25 Vt., 116. 1852. 934. Interest that may be acquired. The entire interest of the individual may be taken if, in the opinion of the legislature, the public exigency requires it. Baleigh and Gaston B. B. Co. v. Davis, 2 Devereaux and Battle's Law (N. C), 451. 1837. 935. — In the condemnation of lands for railway purposes, the assessment made em- braces damages of every kind naturally con- sequent to the use for which the land is taken. Fwrniss v. Hudson Biver Valley B. B. Co., 5 Sandford (N. Y.), 551. 1852. 936. Minerals. It seems, that where land is condemned for the right of way, the de- cree vests in the company the title to the earth and minerals found above the grade of the road, and the excavation of whicli is necessary for the construction of the road. Evans v. Rmfner, 29 Mo., 141. 1859. 937. Misappropriation. The leasing of a freight house built upon the land taken under the statute by a railway company, to private individuals for the private use of such indi- viduals for their trade or manufactures is a misappropriation of the land which entitles the owner of the fee to maintain a writ of en- try to establish his right therein, and recover damages or mesne profits. Proprietors of Locks and Canals v. Nashua and Lowell B. B. Co., 104 Mass., 1, 1870. 938. Only same rights acquired as by purchases. A corporation has no higher right to property condemned by the judgment of a court, than to that acquired by purchase with- out condemnation. Oregon Cascades B. B. Co. V. Baily, 3 Or., 164 1869. 939. Payment. Actual payment of dam- ages is essential to the vesting of the title in the company, where land is taken for railway purposes under the right of eminent domain. No entry upon said land prior to such pay- ment for the purpose of constructing the road, can be justified. Waltlier v. Warner, 25 Mo., 277. 1857. 940. — It seems competent for the legisla- ture to authorize entries for the purpose of making preliminary sui-veys. lb. 941. — Although payment of damages is a condition precedent to the taking of land for railway purposes, this condition may be waived by the land owner, even by parol. Ma- Aulay V. Western Vt. B. B. Co., 33 Vt., 311 j 1860; Knappv-McAulay, 39 ib. 275, 1867. 942. — Where the land owner has acqui- esced in the occupation of his land without prepayment of the damages, with the under- standing that the damages shall be paid in fu- ture, and the road is constructed and put in operation, he cannot maintain trespass or ejectment for the land. Jb. 943. — The mere prosecution of a contro- versy by the land owner with the company in the county court, as to the amount of the dam- ages, is not such a prohibition of the taking of the land by the company without prepayment of damages, as is necessary to enable him to maintain trespass or ejectment after the road is put in operation. Ib. 944. — Notice given by the land owner to the laborers on the railroad employed by the contractors in its construction, requiring them to desist from working on his land until he shall have received his damages, is not suffi- cient notice or prohibition to the company to preserve his right to maintain trespass or ejectment after the road is put in operation. Ib. 945. — The owner retains no lien for his damages in such case. Knapp v. McAvla/y, 39 Vt., 275. 1867. 946. — Where lands were condemned for railway purposes and the court has ordered the damages to be deposited with the clerk of EMINENT DOMAIN. 265 Negligence and Unlawful Acts. the court, wljicli has been done, and the clerk has tendered the money to the land owner, the company is justified in entering upon the land. Emns v. Soefner, 39 Mo., 141. 1839. 947. — Where a railroad company, upon an award of commissioners, has recorded the order and deposited the money as required by the general railroad act of 1850, the title to the premises taken becomes wholly vested in the company. Orowner «. Watertown and Some R. R. Co., 9 Howard's Pr. (N. Y.), 457. 1854. 948. — Where in such case, on a second appraisal, the compensation to the owners of the land is increased by the award of the com- missioners, tlie company cannot, by changing its route, avoid the payment of such increased compensation. lb. 949. — There is no vested right on either side growing out of such proceedings, until an order of the court is made confirming, the report and directing payment. Hvdson River R. R. Co. V. Cutwater, 3 Sandford (N. Y.), 689. 1850. 950. State lands. Certain lands were, in 1838, taken by the state for the M. S. R. B., which was completed over said lands in 1844, and in 1846, the state conveyed the road to the M. S. R. R. Co. Held, that under the laws in force in 1838, the lands vested in the state, whether the claim for compensation for dam- ages was extinguislied or not, and the transfer of the road created no obligation upon the part of the company to pay the damages ; that the company took the lands clear of any claim for such damages. People v. Michigan Southern R. R. Co., 3 Mich., 496. 1855. 951. — The railway company has the right to fence its right of way through such lands. Bmith V. McAdam, 8 Mich., 506. 1855. 952. Lake Superior and Mississippi R. K. Co. The Lake Superior and Miss. R. R. Co., in condemning land under its charter, acquires the exclusive use of the whole thereof at any and all times thereafter for railway purposes. Lake Superior and Mississippi R. R. Co. «. Chew, 17 Minn., 332. 1871. 953. — temporary use. Railway compa- nies cannot, under the right of eminent do- main, condemn a right of way for the term of three years, to be used until the construc- tion of the main line is completed over anoth- er route. Currier v. Marietta and Cincinnati R. B. Co., 11 Ohio St., 328. 1860. 954. Turf. The owner of land, subject the right of way of a railway company, where the land has been taken and paid for for such purpose, has no right to enter upon and use the land for any purpose which will in the least degree endanger or embarrass its use by the company ; as in this case, for instance, to enter upon the land with teams to remove the turf therefrom, the effect of such entry and removal being to enhance the danger of cat- tle getting upon the track and to increase the dust at the time of the passage of the cars. Connecticut and Passumpsic Rivers R. R. Co. v. Eolton, 83 Vt., 43. 1859. 955. When title passes. When a railroad company has pursued the course prescribed by the statute, the right of the company is perfect to the road, though the proprietor of the land refuses to accept the money awairded by the jury. Montgom&ry and West Point R. R. Co. V. Walton, 14 Ala., N. S., 207. 1848. 956. "Writ of possession. Upon the con- summation of the proceedings prescribed by tlie railroad act, the company is entitled to enter upon and take possession of the land. Niagara Falls and Lake Ontario R. R. Co. v. HotchUss, 16 Barbour (N. Y.), 370; 1853. 957. — The owners have no longer a legal right to keep the company out of possession. But this will not authorize the issuing of a writ of possession, or assistance upon the ap- plication of the railroad company. J6. 958. — A writ of that nature can only be awarded in execution of a decree or judg- ment of the court ; not to enforce a right con- ferred by statute. lb, XV. Negligence and unlawful ACTS. 959. Cattle guards. Tfie failure of the company to erect cattle guards will not be considered in the assessment of damages. King v. Iowa Midland R. R. Co., 34 la., 458. 1872. 960. Culvert. A railway company is not estopped from proving the necessity of a cul- vert through an embankment by the fact that no such culvert is shown on the location plat of the road. Nason v. Woonsocket Union B. iJ. Co., 4 R. I., 377. 1856. 961. Intoxicating liquors. Even after the petitioner has given evidence that the land 26t} EMINENT DOMAIN. Constitutional Law. was peculiarly valuable as a place of enter- tainment, and leased as such, evidence that intoxicating liquor was sold on the land by the tenant, is not admissible to reduce the value of the estate. Brown v. Providence, War- ren and Bristol B. B. Co., 5 Gray (Mass.), 35. 1855. 962. Unlawful acts. Injuries that may result from the unauthorized or unlawful acts for which the company is liable in an action, are not to be considered. JFleming v. Ghicago, J), and M. B. B. Co., 34 la., 353. 1873. 963. Unnecessary damages: remedy. Where provision is made in the charter of a railway company for the assessment of the necessary damages occasioned in its construc- tion, and other damages are occasioned by the want of care, skill and prudence of the parties building the road, an action for damages as at common law will lie for such unnecessary injuries. Terre Haute and Indianapolis B. B. Co. V. MeKinUy, 83 Ind., 374. 1870. 964. Want of Skill. An injury arising from the unshillful construction of ita work by a railway company will not be considered by the viewers, such claims must be left for future remedy. Pittsburgh, Fort Wayne and Chicago B. B. Co. v. Qilleland, 56 Penn. St., 445. 1867. 965. — A railway company in construct- ing its road and works, is bound to bring to their execution the engineering knowledge and skill ordinarily known and practiced in such works. lb. 966. — There is no liability for not con- structing a culvert so as to pass extraordinary floods. li. 967. — This rule as to extraordinary floods would not be changed by the fact that three such extraordinary floods happened in quick succession and occasioned damage by the in- sufficiency of the culvert. lb. 968. — In a proceeding to appropriate land for right of way of a railroad already con- structed, evidence of damages resulting from defective construction, or the like, is not ad- missible. Such damages may be the sub- ject of an action, but are not to be considered In assessing the compensation to be allowed the owner for the right of way appropriated. King v. Iowa Midland B. B. Co., 84 la., 458. 1872. 969. — In the constniction of the work for which the property of another is taken, rea- sonable care and skill must be exercised, or the party will be liable to an action for the tort, as at common law. Lafayette Plankroad Co. V. New Albany and Salem B. B. Co., 13 Ind., 90. 1859. 970. Water. Where the land of the plaintiff was taken by a railroad company for railway purposes, and his damages, by reason of the location of the railway on his premises were duly appraised and awarded to him by commissioners appointed for that purpose, it was held, that the damages awarded did not constitute a bar to an action for damages to the plaintiff' occasioned by a neglect of prudent and reasonable care in the management of the road. Waterman v. Connecticut and Passump- sic Bivers B. B. Co., 30 Vt., 610. 1858. 971. — And a railway company may be re- quired to exercise care to prevent damage to the land owner by the accumulation of surface water, as well as by a running stream, where the circumstances show that such precautione are necessary. lb. XVL Constitutional l-^w. 972. Compensation. The constitution, § 18 of art. 1, which provides that private property shall not be taken for public use without just compensation, means that the person whose property is taken shall have a fair equivalent in money for the injury done him by such taking. Henry n. Diibugue and Pacific B. B. C?o., a la., 388. 1855. 973. — The word " damages " in the act of January 18, 1853, § 4, is precisely synonymous with the phrase "just compensation" used in the constitution. lb. 974. — The right of way of a railroad con- ferred by the statute, contemplates all which is necessary and proper for the construction and maintenance of the road over the prem- ises, lb. 975. — It is the right (within the prescribed limits), to all freedom in locating, construct- ing, conveniently using and repairing the road and its appurtenances ; and for such pur- pose only, of taking, removing and using any earth, gravel, stone, timber, or other mate- rials, on or from the land so taken. lb. 976. — It includes the right to make em- bankments and deep cuts. lb. EMINENT DOMAIN. 267 Constitutional Law. 977. — Tile proper mode of ascertaining tlie damages is to determine tlie fair market value of the premises before tlie right is set apart, and then again after; the difference will be the true measure of damages. lb, 978. — The present values, taking into con- sideration the extent of the rights conferred, are those which are to be arrived at; and the immediate and necessary consequence of parting with the right conferred, must neces- sarily enter into the consideration of the com- missioners, lb. 979. — The premises as left in the cendi- tion they will be after the right of way is taken, together with the damages assessed, should be equal in value to the premises im- mediately before the taking. lb. 980. — How the road may affect the value of the land, if completed, or any other con- sideration of future benefit; or of any abuse of the privilege, or probability of abuse, by the company; or any unwillingness by the owner to allow the road to go over the land, is not to be considered in estimating the dam- ages, lb. 981. — where to be made. The legisla- ture has no power, under the constitution of 1857, to authorize the taking of property for the use of a railway comjDany, before compen- sation is made to the owner, or secured to be made when the amount thereof shall be de- termined by a jury. Reni'y v. Dubuque and Pacific B. JR. Co., 10 la., 540. 1860. 982. — Under ch. 31, Acts of 1853, (Rev. 1860, ch. 55, art. 8), the payment of damages is a condition precedent to entering upon the lands taken. lb. 983. — Therefore, where the company caused an assessment to be made by a sheriffs jury, and the owner of the land appealed, it was lield, that an appropriation of the land by the company, before the payment of the com- pensation as assessed, rendered it liable as a trespasser, and that the owner was not bound to rely on the judgment, or upon an injunction as his only remedy. lb. 984. — Although private property may not be taken for public use without compensa- tion, yet the payment may follow the taking; it is not necessarily to be made before the tak- ing. Saleigh and Oaston R. R. Go. ii. Davis, 2 Devereux & Battle's Law (N. C), 451. 1837. 985. — The act of 1861, giving railway companies the right to enter on and proceed with the construction of their roads on pri- vate lands while the proceedings for condem- nation are pending and before compensation is paid, upon giving security for the damages when ascertained, is not unconstitutional. Fox V. Western Pacific R. R. Co., 31 Cal., 538. 1867. 986. — The land is not "taken for public use," in the sense of the word "taken" as used in the constitution, until the last act' is done which is required to transfer the title or subject it to servitude. lb. 987. — The legislature possesses the con- stitutional power to prescribe the proceedings by which such taking shall be effected, and the time when the taking shall be deemed complete. lb. 988. — A railroad company has no right whatever, without the consent of the owner, to enter upon and use and occupy the land of an individual for the purpose of constructing its road, before having made the compensa- tion to which the owner is entitled, under the constitution. And no provision of the gen- eral railroad act can be construed as purport- ing to give such right. Blodgett v. ZFtica and Black River R. B. Co., 64 Barbour (N. Y.), 580. 1873. 989. — The act of 1857, providing for the taking of private property for public use without iiroviding means by which compen- sation can be obtained, is unconstitutional. Shepardson v. Milwaukee and Beloit B. B. Co., 6 Wis., 605. 1859. 990. — The owner of land taken for public use ought not to be subjected to a lawsuit to ascertain the value of the land taken. lb. 991. Assessment of damagjes. Private property may be taken for public uses with- out the damages being assessed by jury or commissioners mutually selected by the par- ties, and without stipulation between the ijro- prietor and the legislature. It is suflScient if the damages are ascertained by an impartial tribunal, although the proprietor has no voice in constituting the tribunal. People v. Michigin Southern B. B. Co., 8 Mich., 496. 1855. 992. Federal constitntion. The constitu- tion of the United States, which forbids the taking of private property for public use without just compensation, does not restrain 268 EMINENT DOMAIN. Constitutional Law. the legislation of a state. Concord JR. B. Co. ■ V. Qreely, 17 N. H., 47. 1845. 993. Form of assessment. An assessment of damages in the " sum of $150, with a wagon way and stop for cattle," as the dam- ages sustained by the owner of the land taken, is not in conformity with the provisions of the act of 1848, nor with the provisions of the constitution of this state, requiring compensa- tion to he made to the owner for the property so appropriated to public use. Central Ohio R. B. Co. V. Holler, 7 Ohio St., 220. 1857. 994. Grand Gulf R, R. Co. The provision in the charter of the G. G. K. R. Co. that, on the assessment of damages being made, the court shall convey the land to the company, and render judgment against it for the dam- ages, is unconstitutional. Payment must first be made. The rendition of such judgment is not compensation. Thompson ti. Grand QulfB. B. md Bank'g Co., 3 Howard (Miss.), 240. 1839. 995. — The court will not render a diflfer- ent judgment from that provided by the stat- ute. If the remedy provided is not sufficient the court will not undertake to give one. li. 996. Lexington and Ohio R.R. Co. The provisions of the act incorporating the Lex- ington and Ohio R. R. Co , which authorize the taking of the lands of individuals for the use of the road, the damages being first paid, are constitutional. O^Ha/ra t>. Lexington and Ohio B. B. Co., 1 Dana (Ky.), 232. 1833. 997. New Albany and Salem R. R. Co. The charter of the New Albany and Salem R. R. Co. provides, substantially, that the propri- etor of land proposed to be taken by the com- pany for tlie construction of its road, shall, if he claims damages for such appropriation, file with the company his claim therefor, etc.; that the company shall appoint disinterested men to ascertain and award such damages; and that if either party shall be dissatisfied, etc., such party may appeal to the proper court, where the question may be determined by a juiy. Held, that as to persons resident in the state and not under disabilities, the pro- vision in question is not inconsistent with § 21 of art. 1 of the constitution. New Albcm/y and Salem B. B. Co. v. Connelly, 7 Ind., 82. 1855. 998. No mode of ascertaining damages provided. A law which directs the taking private property for public use, is not void be- cause it contains no provision for compensa- tion, or the mode of ascertaining it; the law is valid if this is done by a subsequent law. Bonaparte v. Camden and Amboy B. B. Co., 1 Baldwin (U. 8. C. C), 205. 1830. 999. Ordinance of 1787, An act author- izing the taking of private property without the consent of the owner, compensation being made, is not in conflict with the ordinance of 1787, or the constitution of the United States. Swan v. Williams, 3 Mich., 427. 1852. 1000. Proceedings. Though the constitu. tion secures the right of the citizen to a just compensation for his property before it shall be taken for public use, yet the legislalure has the right to pi-escribe the mode in whicli that compensation shall be ascertained and determined. Henderson and Naslwille B. B, Co. v. Diclcerson, 17 B. Monroe (Ky.), 173. 1856. 1001. Railways are a public use. A rail- road is in general such a public use as affords just ground for the taking of private property and appropriating it to that use. Concord B. B. Co. V. Oreely, 17 N. H., 47, 1845; Ban Francisco, Alameda and Btocldon B. B. Co. v. Caldwell,dl Cal., 367, 1806; Contra, Gotta B. B. Co. V. Moss, 23 Cal,, 324, 1863; Louisville, Cin- cinnati and Charleston B. B. Go. v. Chappell, Rice (So. Car.), 383, 1838; Baltimore and Ohio B. B. Co. v. Van Ness, 4 Cranch (IJ. S. C. C), 595, 1835; Ald/ridge v. TmairrMa, Courtland and Decatur B. B. Go., 2 Stewart and Porter (Ala.), 199, 1832; Davis v. Same, 4 ib., 431, 1833; Beelcman v. Saratoga and Schenectady B. B. Co., 3 Paige's Ch. (N. Y.), 45, 1831 ; Blood- good v. Mohawk and Hudson B. B. Co., 14 Wendell (N. Y.), 52, 1835; Same v. Same, Vi ib., 9, 1837 ; Buffalo and New York B. B. Co. v. Brainard, 9 N. Y., 100, 1853; Weir ■». St. Paul, Stillwater, etc., B. B. Go., 18 Minn., 155, 1872 ; Buffalo Bwyou, Brazos, etc., R. B. Co. v. Ferris, 26 Tex., 588, 1863; Whiteman v. Wil- mington and Susquehanna B. B. Co., 2 Har- rington (Del.), 514, 1839; Bradley v. New York and New Ha/ven B. B. Co., 21 Conn., 294, 1851 ; Bonaparte v. Camden and Amboy B. B. Co., 1 Baldwin (TJ. S. C. C), 205, 1830; Swan V. Williams, 2 Mich., 427, 1853. 1002. Somerville and Easton R. R. Co, The act incorporating the Somerville and Easton R. R. Co. does not provide for taking property of private individuals without com- pensation. Doughty v. Somerville and Easton B. B. Co., 3 Halstead's Ch. (N. J.), 51. 1848. EMINENT DOMAIN. 269 License. 1003. Statute. The statutes of Kansas au- thorizing real estate to be appropriated to the use of a railroad company for a right of way, so far as they apply to this case, do not con- travene the provisions of § 4, article 13 of the constitution, and are not unconstitutional or void. Hunt v. Smith, 9 Kan., 137. 1873. 1004.— Ch. 175, laws of 1801, declares that " any person owning or interested in any land upon which the track of any railroad shall have been constructed, or which shall have been appropriated by any railroad com- panj' without compensation having been made therefor, shall have the right to have commis- sioners ajipointed," etc. ; and that " no injunc- tion shall be granted by any court to prevent the use and occupancy of such land by any railway company," until the amount of dam- ages " shall have first been liquidated or final judgment rendered thercfcr. Seld, that this statute must be regarded as intended to apply only to cases where land has actually been oc- cupied by the company with its track con- structed, or with depots or other structures erected thereon and used by the company, and where this has been done with either the ex- press or implied consent of the owner. That if such law was intended to apply where the company entered upon land by force it would be invalid. Bohhnan v. Green Bay and Lake Pepin B. R. Co., 30 Wis., 105. 1873. 1005. — The mere survey and location of a road, without objection by the land owner, does not give the company the right to enter upon said land and permanently occupy it un- der said act. lb. 1006. Statute unconstitutional in part. A provision in a statute that when an ap- praisement is had of land previously taken by a railroad company, it shall determine the value at the time of taking is valid, although connected with a provision allowing the com- pany to hold possession of the land against the owner's will, before making compensa- tion — which is void. Kennedy ». Milwaukee and St. Paul B. B. Co., 33 Wis., 581. 1868. XVIL LiCJENSE. 1007. Compensation. The owner of the land is not deprived of his right to compensa- tion by permitting the railroad company to enter under a promise that compensation should thereafter be assessed and paid. Evans- ville, Henderson and Naahmlle R. B. Co. ii. Orady, 6 Bush (Ky.), 144. 1869. 1 008. Parol license. A railroad company claimed the right to construct its road, with- out first making compensation or giving se- curity to the land owner, alleging that he had given license to do so, "provided the road would go on the west side of his house — against the hillside, and high enough to save his water power." The height of the grade is a condition of the right to enter, and con- struct. Unangsfs Appeal, 55 Penn. 8t., 138. 1867. 1009. — The fact that the company had located its route as designated, was not a waiver of the right of compensation, paid or secured before entry, unless the condition as to grade was complied with. lb. 1010. — The company forfeits its license when it violates the condition on which it was given, and will be restrained until it does equity. lb. 101 1. — The company, relying on a waiver, must come into court with full, distinct and unequivocal proof of such waiver. lb. 1012. — A parol license under which a railway company lias constructed its road is revocable, and cannot be pleaded as defense in an action by the owner to recover the land. Egglegton v. New York and Harlem B. B. Co., 85 Barbour (N. Y,), 163. 1859. 1013. — A parol license from the owner of lands, given to a railway company permitting it to enter upon his lands and construct its road, is not within the statute of frauds, and is a good defense to an action of trespass against the railway company for an entry upon the land. Weio Orleans, Jackson and Great Nortliern B. B. Co. v. Moye, 39 Miss., 374. 1860. 1014. — Such license is revocable at pleas- ure of the owner, unless its revocation would operate as a fraud upon the rights of the party to whom it was granted. Ih. Hetfield v. Cen- tral B. B. Co., 5 Butcher (N. J.), 571. 1863. 1015. — License to build a railway upon one's land would excuse any acts properly done under the license while the same was in force, but such license might be revoked at pleasure, as to everything in the future. Blaisdell v. Portsmouth, Great Falls and Con- way B. B. Co., 51 N. H., 483. 1871. 270 EMINENT DOMAIN. Contract — Surveys — InjuDCtions. 1016. — The decease of either party to such license, or the conveyance by eitlier of tlie rights aftected by the license, operates as a revocation. lb. 1017. — Possession held under a license cannot be adverse. lb. 1018. Stone. Stone excavated in construct- ing a branch railroad through the land of A., un- der a permissive license from him to construct and use the track thereon, and to hold the same so long as it shall be used for railroad purposes, remains the property of the land owner, and, if not used in the construction of the branch track, cannot be removed and de- voted to other purposes without his permis- sion. Ohapin v. Sullivan M. It. Co., 39 N. H., 564. 1859. XVIII. CONTBACT. 1019. Fence. — In proceedings to appro- priate land for right of way, an agreement was entered upon the record that the company, in consideration of the withdrawal of certain claims for damages, agreed to erect and main- tain certain fences and crossings. The damages were assessed upon the basis of this agree- ment. In an action against the assignee of the company by the assignee of the land owner for damages on account of the failure of the company to erect said fences and crossings ; Tield, that the agreement was a legitimate part of the record, and not within the statute of frauds; that such agreement runs with the land HO as to be binding on assignees and grantees ; that the measure of damages for the breach of such contract is the amount of in- iury to the use and enjoyment of the adjoining land occasioned by the want of such fences and crossings during the time the right of way was owned by the defendant. Huston ■e. Cincinnati and Zanesville B. M. Co., 21 Ohio St., 235. 1871. 1020. River banks. Where a right of way to the Mississippi river was granted to a rail- way company, with a lease of one acre on the bank for a depot, and the bank subsequently caved in, destroying a part of the depot grounds, it was held that the contract was made with reference to such contingency, and the company was still entitled to one acre. C. C, 1950, 1952. SmiihD. BuMer, 11 La. An., 98. 1856. , 1021. Several contract. The instrument sued upon was as follows: The railroad com- pany acknowledged itself bound unto certain persons named, nine in number, " according to their relative and respective, several interests, in the penal sum of three thousand dollars, on this express condition, that the said railroad company shall, on the assessment of damages to be made to secure the right of way for said railroad, pay to the obligees, relatively and re- spectively, damages which may be assessed as aforesaid, then this bond to be void," etc. The instrument was held to be a several one, upon which each one of the obligees might sue. St. Louis, Alton and Bock Island B. B. Co. v. Coultas, 33 111., 188. 1864. 1022, — No one of the parties has a right to recover upon it more than his relative and respective share of the penalty. lb. XIX. Surveys. 1023, Entry to make surveys. It is competent for the legislature to authorize a railway compa^y to enter upon private lands for the purpose of making surveys without pay- ment of compensation. Bloodgood is. Mohawk and Hudson B. B. Co., 14 Wendell (N. Y.),52, 1835 ; see Sam^ v. Same, 18 ib., 9, 1837 ; Sotm- parte u. Camden and Amhoy B. B. Co., 1 Bald- win (U. 8. C. C), 205; 1830. 1024, Record of survey. Where a land owner agrees with a railroad company upon compensation for land taken in locating the road, and permits the company to take pos- session of the land and construct the road thereon, he cannot afterwards take advantage of the omission of the company to have a cer- tificate of the survey recorded in the town clerk's office in the town where the land lies, as required by the charter; and especially when the land owner was president of the company. Troy arid Boston B. B. Co. v. Potter, 42 Vt., 265. 1969. XX. Inju^'ctions. 1025. Alteration of line. Where a rail- road company altered the location of its road, and placed the track upon the land of the plaintiff at his request, and upon his promise to give the right of way, he cannot, after the road is built, have an injunction to restrain the EMINENT DOMAIN, 271 Injunctions. company from using the track across his land until compensation is made, although the facts might not be suflBcient to justify a decree against him for a specific performance of his promise. PetUbone v. La Grosse and MVmam,- kee B. R. Co., U "Wis., 443. 1861. 1 026. — The granting or refusing of injunc tions rests in the sound discretion of the court. lb. 1027. Assessment enjoined till question of right is determined. Where a railway company, claiming the right of way over lands, applies to the circuit judge for the im- paneling of a jury to assess the damages, and • the answer to the petition denies the right of the company to take the lands, and the circuit judge is proceeding to have the damages as- sessed, without first determining the question of the right, prohibition will not lie fsova. the supreme court to restrain him from so doing. State «. Oolumbia and Augusta B. B. Co., 1 So. Car. (N. S.), 46. 1868. 1028. — Where the inferior court has juris- diction of the subject matter of the proceeding, it cannot be enjoined from acting. lb. 1029. Compensation not made. Where land is taken and appropriated for right of way for six months without compensation, an injunction will be issued under the act of May 10, 1858, to restrain the use of the land until compensation is made. Davis v. La Grosse and Milwaukee B. B. Go., 12 Wis., 16. 1860. 1030. — A railway company can be en- joined from using the right of way until compensation is first made. Stewart v. Bay- mond B. B. Go., 7 Smedes & Marshall (Miss.), 568, 1846 ; Biehai'ds v. Des Moines Valley B. B. Go., 18 la., 259, 1865. 1031. — If provision is not made by the act for paying the compensation allowed for the land, the party, may be resti-ained from occupying by injunction, until payment is made, but the condemnation will not be in- valid. Shute V. Ghicago and Milwaukee B. B. Co., 26 111., 436. 1861. 1032. — Where land was condemned for the use of a railway company and possession ■was taken by the company, and the road con- structed over the land, the complainant having forborne commencing proceedings until after the improvements were erected, it was held, that an injunction would not issue to restrain the company from running over ^he land; but a decree was entered directing compensation to be paid out of the revenues of the road. Hamilton v. Annapolis and Elk Bidge B. B. Co., 1 Johnson's Ch. (Md.), 107. 1847. 1033. — Under B. 8., ch. 51, § 9, the as- signee of a judgment for damages for right of way, cannot maintain a suit for injunction against the use and occupation of the land, he having no interest in the land. Illsleyv, Portland and Bochester B. B. Co., 56 Me., 531. 1869. 1034. Damages. In estimating the dam- ages sustained by a complainant for the de- struction of a lane on his land by the embank- ment of a railroad company, in a case where relief is sought in the premises by injunctioii against the company on the ground of estop, pel, or because compensation has not been made to the complainant in the award under the company's charter, no damages are to be assessed except such as necessarily flow from the particular injury. Ga/rpenter v. JSaston and Amboy B. B. Co., 9 C. E. Green's Ch. (N. J.), 408. 1874. 1035. Irregularity. Where a railroad company has irregularly taken lands, but has the capacity to acquire title, this court will not, where the advantage to the complainants would be small, and the injury to the com- pany incalculably great, interpose and stop the running of the cars on such road until the statutory method of acquiring title can be executed. Srie B. B. Co. v. Delaware, Lacka- wanna, etc., B. B. Co., 6 C. E. Green's Ch. (N. J.), 283. 1871. 1036. Judgment. Where the plaintiff re- covered judgmert against a railway company for damages for taking his land, and after- wards brought an action to restrain the com- pany from the further use of the land until the judgment was paid, and in this suit the defendant was defaulted and the injunction issued: Jteld, on an appeal that this order would not be reversed, merely for the reason that the judgment on which it was founded was afterwards reversed for want of jurisdic- tion. Sturtevant v. Milwaukee, Watertown, etc. B. B. Co.; 11 Wis., 63. 1860. 1037. — Where the complaint charged the existence of a judgment, and judgment is thereon entered by default, such judgment is as much an estoppel upon the defendant to deny the existence of the previous judgmentj 272 EMINENT DOMAIN. Trespass. as if he had confessed by plea that such judg- ment existed. lb. 1038. License. Where a land owner, with a correct understanding of the matter, has given permission, verbally, that a road may be constructed upon his land, or some speci- fied part of it, a court of equity should not interpose to restrain the grantee from using the privilege so conceded, merely because the grantor, having changed his mind, wishes to revoke this gi'ant. The trespass could be jus- tified under a license. Lexington and Ohio JR. B. Co. «. Ormaby, 7 Dana (Ky.), 376. 1838. 1039. Consent of land owner. Ap injunc- tion to restrain the use of a right of way un- til compensation has been made, will not issue under ch. 80, Laws of 1858, where the lands had been taken with tlie consent of the owner upon a promise to pay for the same, wliicli promise has not been fulfilled. Vilas v. Mil- wanilcee and Mississixypi M. li. Oo., 15 Wis., 233. 1803. 1040. — Where a party owning lands en- tered into an agreement with a railway com- pany by which the company was permitted to enter on his lands and build its track, and it was agreed that the damages should be as- sessed by certain persons within sixty days, and it was stipulated that if payment was not made within a certain time the land and fix- tures should become the property of the party the same as if this agreement had not been made, and "said company had without au- thority, and in its own wrong, entered upon such land and made said road through the same." The estimate was made, but the pay- ment was not made within the time, and an in- junction was asked restraining the company from using the land. Held, that an injunc- tion was properly refused and that the party should be left to his remedy at law. Ooe ■». CoVumbm, Piqua and Indiana M. B. Co., 10 Ohio St., 373. 1859. 1041. Pleadings. Bill was filed by the owner of land against the New Albany and Sa- lem R. R. Co., to enjoin the company from con- structing its road through his land, on the ground that it had not assessed or tendered to him his damages, etc. The bill did not aver that the plaintifl was not called upon by an agent of the company for a release of the right of way, before the commencement of operations by the company upon the line of the road. Seld, that it must therefore be presumed that the complainant was thus called upon, pursuant to the requu'cment of the charter. Neui Al- bany and Salem R. JR. Oo. v, Connelly, 7 Ind., 32. 1855. 1042. To prevent damages not included in assessment. Where at the time of making an award for damages for lands taken by a railroad company, the representatives of the company stated to the commissioners that they would cross certain low lands by an iron bridge resting upon posts, and would protect and keep clear a lane — the only convenient means of communication between different parts of a farm — but subsequently the com- pany determined to construct a high embank- ment, and commenced it, intending to fill in and cut off the lane entirely, it clearly ap- pearing that the commissioners did not con- sider the embankment in the estimate of dam. ages, equity will restrain the company from filling up the lane, until c»mpensation is made to the owner of the lands. Carpenter v. Maaton and Amboy B. B. Co., 9 C. E. Green's Ch. (N. J.), 249. 1878. 1043. Trespass. An injunction should not be granted to restrain a railway company from a trespass by entering ujjon land, where it appears that the complainant has an ade- quate remedy at law by an action for damages. Clieaapealee and Ohio B. B. Oo. v. Pattern, 5 W. Va., 234. 1872. XXI. Teespass. 1044. Administrator. The right to re- cover damages for a trespass committed on realty in the lifetime of the intestate survives to his administrator. New Orleans, Jackson an^ Great Nortlim-n B. R. Co. v. Moye, 39 Miss., 374. 1860. 1045. Ejectment. If a railroad company enter upon land unlawfully, without a legal appropriation and assessment of damages, ejectment is the proper remedy, and the ques- tion is title, not charge or encumbrance for the damages. McClinton v. Pittsburgh, Fort Wayne and Chicago B. B. Co., 66 Penn. St., 404. 1870. 1046. — When the commonwealth exer- cises the power of eminent domain, it must provide for the means of payment before tak- EMINEKT DOMAIJ^. 273 Trespass. ing the property; a corporation or individual must pay or secure its price. lb. 1047. — Where a railway company takes possession without lawful appropriation, it is not in possession of an easement, but of the land itself. Ih. 1048. — The owner may proceed under the statute, if he desire to have the 'damages as- sessed, lb. 1049. — Compensation being made, the title of the owner will be vested in the com- pany, leaving it liable for the prior tres- pass. Tb. 1050. — The owner's right to damages for the trespass is a vested right of which lie can- not be deprived. lb. 1051. — The petition is not to recover past damages, but compensation for a right to be vested in the company. Tb. 1052. — The court may stay execution for possession until the other proceedings are fin- ished and compensation paid. lb. 1053. — The statute of limitations does not apply to a petition under sucli circumstances. lb. 1054. Entry before payment. Any entry before payment or tender of payment of dam- ages, after the assessment, is a trespass for which the company may be sued at law. Memphis and Charleston B. B. Co. o, Payne, 37 Miss., 700, 1859; Graham v. Columbus and In- dianapolis Central S. B. Co., 27 Ind., 360, 1860 ; Doe ex dem. v. Georgia B. B. Co., 1 Ga., 534, 1846. 1055. — In Wisconsin, a railway company or person acting under it, entering upon land and permanently occupying it as a railroad, without making compensation therefor, or having the amount of damages ascertained and tendering the amount when so ascer- tained, is liable for trespass for the actual damages, and not merely for nominal dam- ages. Loop ■». Chamberlain, 20 Wis., 135. 1865. 1056. — The charter not permitting the land owner to take the' initiative to have his damages assessed, the company was bound to do so. lb. 1057. — An omission, on the part of the owner of the land, to call on the county com- missioners to assess his compensation, will not preclude him from maintaining an action of trespass quare dausum against the company, after it has taken hia land, without mak- 18 ing compensation. Rail v. Pickering, 40 Me.. 548. 1855. 1058. Judgment. Where a suit is brought to recover compensation for the damages done in taking the right of way, a judgment ren- dered in such action tor damages as a trespass is erroneous. Dams v. La Crosse and Milwau- kee B. B. Co., 12 Wis., 16. 1860. 1059. Payment. If the condemnation price is paid, when demanded, the parties en- tering upon the right of way will not be tres- passers ab initio. Johnson v. Joliet and Chicago B. B. Co., 23 111., 202. 1859. 1060. Pleading. Suit was brought against a railroad company for entering upon and con- structing its road through the plaintifiF's land. The complaint alleged the nature and locality of the injury to be, the running diagonally through the land, occupying about seven acres of it, and excavating and heajDing up dirt upon it. On the trial, the plaintiffs were permitted to prove the cost of fencing the road through their land, and the amount of injury done to a crop of wheat growing thereon, by the con- struction of the road. Held, that this evidence should have been excluded, because the dam- ages proved did not result from the injuries specified in the complaint, nor from anything necessarily incident to them. Indiana Central B. B. Co. v. Hunter, 8 Ind., 74, 1856; Graham V. Evansville, Indianapolis and Cleveland B. B. Co., ib., 276. 1061. — Where a petition states only that a railroad company, in locating and construct- ing its road on and through the plainliflfs land, appropriated about two acres of the land to its own use, and located its road through the land in a diagonal manner so a^ to greatly in- jure the same, and committed other acts and ti'espasses upon the land to the plaintiff's dam-, age, held the petition does not state facts sufii- cient to constitute a cause of action. The de- fect being not merely a want of facts necessary to constitute a perfect statement of the cause of action, but a want of facts necessary to constitute a cause of action, such defect is not cured by verdict. Cleveland and Pittsburgh B. B. Co. V. Stacklwuse, 10 Ohio St., 567. I860. 1062. — Acomplaint in an action of tres- pass against a railroad company, which alleges that the company entered on the lands of plaintiff and constructed a road over the same, and ever since has used the land occupied by 274 EMPLOYES — EQUITY. Adequate Law Remedy — Commonwealth. the road, is a good cause for action in trespass. Pomeroy v. Milwaukee and Chicago B. B. Co., 16 Wis., 640. 1863. 1063. — It is not necessary to aver tliat the entry was made without his consent. lb. 1064. Statute. Where a railroad company has had the right of way condemned and the damages assessed under the statute, it has power to construct its road through the land thus condemned, and to do all things that may be necessary and proper for that purpose ; and, to the extent of the powers and rights thus ac- quired, neither the company nor the contract- ors can be held liable as trespassers. Clark v. Hannibal and St. Joseph B. B. Co., 36 Mo., 203. 1865. 1065. Temporary taking. Where private property is temporarily taken for public use, without compensation as an incipient pro- ceeding to acquire title an action of quare clausum will lie unless compensation is ten- dered within a reasonable time. Cushman ■». Smith, 84 Maine, 347. 1833. EMPLOYES. See CoHSTTTOTioitAL Law; Dauaoeb; Isjitbt toEh- PL0Yi:8; Ikjcbiss Causins Death; Mabteb asd Sebtaht. ENGINEER. See Cohtbact. '1. Agent. An engineer of a railway com- pany, as such, has no authority to pledge the company to pay the indebtedness of a con- tractor to one of the employes of such con- tractor. Pwjorie v. Kansas Pacific B. B. Co., 1 Col., 539. 1873. EQUITY. See VisiTOBiAL Powebs. 1. Adequate law remedy. A bill in equity will be dismissed on demurrer if it appears that the complainant has an adequate remedy at law. Atlanta and West Pt. B. B. Co. v. Hop- son, 33 Ga., 116, 1861; MempJiis and Little Bock B. B. Co. V. Woodruff, 36 Ark., 649, 1871. 2. Arbitration — mistake. Where the question of assessment of damages for the con- struction of a railway through a farm was sub- mitted to arbitration, and the damages awarded were awarded without reference to the right of the land Owner to have a crossing made by the company, and the land owner made a deed for the right of way so as to cany out the award, and nothing was said in the deed about the crossing, the company's agent as- suring the grantor that it was not necessary ; h£ld, that equity would reform such deed, the mistake being mutual, and reserve to the land owner in the deed his legal rights in relation to such crossing. Oreen t. Morris and Essex B. B. Co., 1 Beasley's Ch. (N. J.), 165. 1858. 3. Cancellation of instrument. Where any kind of an instrument binding the makers for the payment of money, bas been discharged, and evidence of such discharge has been lost, a court of equity will order the instrument canceled. Oarrett v. Mississippi and Alabama B. B. Co., 1 Freeman's Ch.(Mis8.), 70. 1843. 4. Committee — interest. The defendant being a railroad corporation, remonstrated against the acceptance of the report of H. as a committee in a bill in chancery, because while H. was acting as such committee his wife was a shareholder in an incorporated bank, which bank had stock in said railroad as security for a loan of money. Held, that H. was not disqualified from acting as such committee, on the ground that he was a party to such bill, but was disqualified, as being in- terested in the event of the suit, if the objec- tion had been taken at the proper time. Wind- ham Cotton Manufacturing Co. v. Hartford, Providence and Fishkill B. B. Co., 28 Conn., 373. 1854. 5. Commonwealth. The commonwealth cannot be made a defendant in a suit in equity. Williamsport and Elmira B. B. Co. D. The Commonwealth, 83 Penn. St., 288. 1859. 6. Federal courts. The act of Feb. 28, 1839 (5 Stat, at Large, 331), does not enable a circuit court to proceed in equity, in the ab- sence of a party whose interests must necessa- rily be aflfected by any decree in favor of the complainants. Northern Indiana B. B. Co. «. Michigan Central B. B. Co., 15 Howard, 233. 1853. ESCROW — ESTOPPEL. 275 Miscellaneous. 7. Forfeiture. Equity will not interfere to enforce a forfeiture, but, where such relief is sought, will leave the party complaining to his remedy elsewhere. White ®. Port Huron and Milwaukee R. B. Co., 13 Mich., 356. 1865. 8. Jurisdiction. The equity powers of this court are limited to those conferred and enumerated by the statute. York and Cumber- land B. B. Co. c. Myers, 41 Me., 109. 1856, 9. Law ease brought in equity by mis- take. Where a law case has been brought in equity, and tried as such, the supreme court will, on appeal, try it according to the rules of practice applicable to chancery causes. Bichmond v. Dubuque and Sioux City B. B, Co., 33 la., 423. 187L 10. Motion to dismiss. On a motion to dismiss a bill for want of equity, the allega- tions, whether in the bill, or of tlie exhibits, must be taken as absolutely true, unless they contradict each other, or are so made as to impair their own force. Cox v. Mobile and Girard R. B. Co., 44 Ala., N. S., 611. 1870. 11. Practice. A complainant cannot dis- miss his own bill, as to part of the relief prayed, and proceed with the residue; he must apply to amend. Camden and Amboy B. B. Co. V. Stewart, 4 C. E. Green's Ch. (N. J.), 69. 1868. 12. — The practice in the courts of equity of the United States, does not require that an order be made, limiting the time within which the decree rendered in the cause shall be per- formed, before a party may be proceeded against for nonperformance of its directions. Souter V. La Crosse B. B. Co., 1 Woolworth (U. S. C. C), 80. 1865. 13. — Where the parties in interest to a de- cree in chancery remain unchanged, and no new rights have arisen, a defendant interested in having the decree executed, should proceed by petition for that purpose. But when a third person has acquired . an interest in the decree, a bill is necessary to bring him before the court, that his rights may be passed upon by the court as in other cases. Ghriggs v. De- troit and Milwaukee B. B. Co., 10 Mich., 117. 1862. 14. Rehearing. There can be no rehear- ing upon a question raised in a cross bill and answer, which was raised and controverted in the original bill and adjudicated under the decree in the same. Barker v. Belknap's Estate and Vermont Central B. B. Co., 39 Vt., 168. 1866. 15. Reformation of contract. A court of equity will not reform a contract by the addi- tion of new provisions, which, it is claimed, were embraced in the understanding between the parties .when such contract was made, where there is no allegation of fraud or mis- take in drafting it. Wliite «. Port Huron and Milwaukee B. B. Co., 13 Mich., 350. 1865. 16. Sale — consideration. Although as a general rule a sale will not be set aside on tho ground of inadequacy of price, it will never- theless, where the transaction discloses such an unconscionableness as shocks the moral sense and outrages conscience. Hannibal and St. Joseph B. B. Co. v. Brown, 43 Mo., 294. 1809. ESCROW, See UoBTQAaE. ESTATES OF DECEDENTS. See iNfUBiBS TO Employes; Injdkies to Passeit- GEns; Ihjuhies to Pebsoits Cbossikg the Tback. 1. Action by executor. An executor or administi-ator has no right to bring an action to remove a cloud from the real estate of a decedent unless he has first obtained a license from the probate court to sell. Paine v. 8t. Paul and Pacific B. B. Co., 14 Minn., 65. 1869. ESTOPPEL. See Convbtancb; Eminent DoaiATif. 1. Agency. Evidence of frequent sales by one person of the property of another, which were known and not objected to, is competent as tending to show thiit they were made by his permission; and his knowledge of such sales may, in the absence of direct evidence, be inferred from their frequency and amount, coupled with proof of ample means of knowl- 276 ESTOPPEL.. By Judgment — Pleading. edge. Bragg v. Boston and Worcester B. B. Co., 9 Allen (Mass.), 54. 1864. 2. By judgment. A judgment is conclu- sive as an esloijpel only between the same par- ties, as to the same subject matter, and where the parties are mutually bound. Myers v. Johnson County, 14 la., 47. 1862.. .S. Contract. Where parties hare mutually recognized a contract as in force, each will thereby be estopped from denying its binding obligation dh both. Bichmond n. Dubuque and Sioux City B. B. Co., 33 la., 422. 1871. 4. — After a company has organized and acted as a corporation, and entered into a con- tract on which it is sued as a corporation, the company and its members are estopped to deny their corporate existence. CaUender «. Painesmlle and Hudson B. B. Co., 11 Ohio St., 516. 1860. 5. Corporate existence. If in an action of assumpsit against a corporation, the de- fendant insist that the writing, on which the action is founded, bears the corporate seal, and defeats the action upon the ground that it should have been an action of covenant, the defendant is estopped from denying, on the trial of an action of covenant, that the paper is the deed of the corporation. Philadelphia, Wilmington and Baltimore B. B. Co. v. Howard, 13 Howard, 307. 1851. 6. Equitable. One who bought land at a judgment sale in favor of A., afterwards took an assignment of a judgment against the same debtor in favor of B., which included the amount of A.'s judgment; and, having suc- cessfully resisted an application to the court, by a receiver of said debtor's property, to be allowed to discharge the B. judgment by pay- ing the amount thereof, less that of the A. judgment, he was paid the B. judgment in full. Held, that he was equitably estopped from claiming the land under the A. judgment. Ma/riner v. Milwaukee and St. Paul B. B. Co., 36 Wis., 84. 1870. 7. Former adjudication. Where the plaint- iff had, in a former action, recovered damages of the defendant for injuries to his land caused by flooding the same, the same causes contin- uing, and the same damages accruing to the plaintiff as a result; in a subsequent action to recover for subsequent damages, the defendant will be estopped from denying damages as a result from the continuing cause of such dam- age. Plate V. Nem York Central B. R. Co., 37 N. Y.,472. 1868. 8. — An agreement was entered into be- tween the parties, by which the plaintiff was to work for the defendant for a year, com- mencing January 1, at $75 per month. A few months after, the plaintiff was paid in full to the day of payment, and was, at his own re- quest, and with the consent of the defendant, discharged. Afterwards he tendered his ser- vices to the defendant, and repeatedly did so, until the end of the year. In November he sued the defendant for two month's wages, viz, for September and October. The defendant putting in no answer, judgment was taken against it by default. The present action was brought, upon the same contract, to re- cover wages for the months of November and December. Held, that the defendant was not estopped by the record of the recovery in the former action, from showing that the agree- ment between the parties had been vacated by mutual consent. Van Alstyne «. Indiana, Pittsburgh and Cleveland B. R. Co., 34 Barbour (N. Y.), 28, 1861; see Same v. Same, 21 How- ard's Pr. (N. Y.), 175, 1861. 9. Pleading. If a party have not oppor- tunity to show an estoppel by pleading, he may exhibit the matter thereof in evidence, and the court and jury are bound thereby. PhiladeVphia, Wilmington and Baltimore B. B. Co. v. Howard, 13 Howard, 307. 1851. 10. — judicial sale. Suit by A. against the T. R. R. Co., for the assessment of damages on account of the taking by the company for the use of its road, of a lot in B., belonging to A. The sixth paragraph of the answer alleged that in the year 1852, one C. being in posses- sion of the lot, and claiming the ownership thereof, with the full knowledge of A., died, leaving a widow and minor heirs; that one D. was appointed by the proper court guardian of said heirs, who filed his petition in the court of common pleas for the sale of the in- terest of said heirs in the lot in question, pro- cured an order of sale, sold the lot to defend- ant at its full appraised value, reported the sale to the court, which was approved; that the defendant paid the purchase money in full ; that a deed was ordered, executed and ap- proved by the court ; that D. afterwards made a final settlement of his said trust, and ob- tained a discharge therefrom. That afterwards EVIDENCE. 277 Acceptance of Goods — Banking ; Account Books. A. (who was the grandfather of said minor children), having knowledge of the facts, and for the purpose of receiving the full proceeds of said sale for said children, made a volun- tary application for their guardianship, and on the day of his appointment brought suit, as such guardian, against D., on his bond, set- ting out the sale and receipt by D. of the purchase money, alleging the failure to pay over the full amount so received, and asking a judgment for $1,500, which the company in- sisted was an affirmation of the judicial sale, and estopped A. from maintaining his suit. Held, that the said paragraph was not good as a plea in estoppel, beccause it did not show that the T. K. E. Co. purchased the lot, or paid the consideration therefor, on the faith of some act or statement of A., or of his silence under circumstances that required him to speak and disclose his title, or any act of said A. subsequent to such purchase, which amounted to a ratification of the sale made by D. Terre Ha/ute, Alton and St. Louis R. S. Oo. V. Norman, 32 Ind., 63. 1864. 11. Stockholder — assessment. A stock- holder who has paid his first assessment is not thereby estopped from setting up his defense to the second. Somerset and Kennebec B. R. Co. V. CuaMng, 45 Me., 524. 1858. EVIDENCE. See Baggage ; Bt-Laws ; C abbiagg of Live Stock ; Caekiage Of Mebohakdisb ; Conveyance ; Ehbez- zlement; Eminent Domain; Ebaud; Husband AND Wipe; Indictment; Injukies to Domestic Animals; Injuries to Emplotes; Injuries to PiSSENGEKS; INJDBIES TO PERSONS CROSSING TBIS Track; Patents; Statutes; Statutes of Frauds; Subscriptions by Cities and Towns; Subscrip- TioNS BY Counties; Subscriptions by Individ- uals; Taxation. [Matters of evidence will be found distributed throngli this Digest generally, under the various other titles.] 1. Acceptance of goods. In an action for the sale and delivery (if goods, it is proper, upon the question of acceptance, to show what was done and what was not done, but the agent by whom the acceptance was alleged to have been made could not be asked by the defendant whether he had accepted them or not. Brewer v. Housatonie B. B. Go., 107 Mass., 277. 1871. 2. Account; statute. The provisions of the act of 1819, ch. 35, § 1, authorizing a sum- mary mode of proving and recovering ac- counts and claims from another state or county, only embrace cajses where the de- mand arises out of dealings between the par- ties which are properly matters of account. The remedy is not extended by said, act to matters of tort. Western and Atlantic B. B. Oo. V. Mead, 4 Sneed (Tcnn.), 107. 1856. 3. Agency. A person in the employ of a railway company as station agent, in a suit for extra services, testified, under objection, as to what one Christie, another agent of the com- pany, had told him would be done in case he performed certain duties. At this stage of the case there was no evidence that the agency of said Oiristie extended to the said subject mat- ter. Seld, that the testimony was incompe- tent. Grand Trunk B. R. Oo. v. Niclwl, 18 Mich., 170. 1869. 4. — A contract, oral or written, made with the superintendent of a railway company, can- not be put in evidence against the company, without showing that the party executing it was superintendent, and as such had authority to enter into the contract. Oliapman v. Ohi- cago and Northwestern B. B. Oo., 26 Wis., 295. 1870. 5. Alteration of instrument. Where a material alteration clearly appears to have been made upon a negotiable instrument, it is presumed to have been made after execution ; but this rule does not apply where it is merely probable that an alteration has been made. Whether the same rule applies to instruments not negotiable, qucere? BlUson v. Moiile and Ohio B. B. Co., 36 Miss., 573. 1858. 6. Banking; account books. A banking company is not concluded by an entry upon its books of a credit to the principal debtor. It may be shown that the entry was erroneous. Boston and Maine B. B. Oo. v. Oliver, 33 N. H., 173. 1855. 7. — Where an account rendered by a bank is oflered in evidence against it, it is compe- tent to prove it by showing that it has been correctly copied, or by proving the hand- writing to be that of an officer of the bank. Womiquet s. West Feliciana B. B.Go., 6 How- ard (Miss.), 116. 1842. 278 EVIDENCE. Books and Documents — Conflicting Evidence, 8. Bills of exceptions. The bill of excep- tions must show the reason for objections to the admission of evidence. We»ton and Platts- burg JR. R. Co. ■». Oox, 33 Mo., 456. 1803. 9. Books and docnments — abstracts. When books and documents introduced in evi- dence at a trial are multifarious and volumi- nous, and of such a character to render it diffi- cult for the jury to comprehend material facts, without schedules containing abstracts thereof, it is within the discretion of the presiding judge to admit such schedules, verified by the testimony of the person by whom they were prepared, allowing the adverse party an oppor- tunity to examine them before the case is com- mitted to the jury. JBogtan and Worcester R. R. Co. V. Dana, 1 Gray (Mass.), 83. 1854. 10. — practice. After plaintiff has served his complaint, he cannot properly make appli- cation for a discovery of books and papers, until after the answer has been served. Thompson v. Mrie R. R. Co., 9 Abbott's Pr., N. S. (N. Y.), 330. 1870. 11. — subscriptions for stock. In a suit on a conditional subscription for stock the written subscription is admissible in evidence. Evansville, Indianapolig and Cleeeland R. R. Co. v. Tressler, 10 Ind., 548. 1858. 12. — To authorize the admission of a copy of a railroad subscription book in evidence for the purpose of charging a stockholder, it is not sufficient to show a loss of the original and diligent search therefor; the genuineness of the signature to the original must also be es- tablished. Corse Brothers v. Banford, 14 Iowa, 385. 1862. 13. — time accounts. A party who has performed labor for another, cannot, in an action to recover for such work, produce in evidence check rolls or accounts of the num- ber of days' work performed by those in his employment, for the purpose of fixing the amount of labor done, without verifying the same by the oath of the agent who made the entries, or kept the accounts, if such agent be living. Merrill v. Ithica and Oswego R. R. Co., 16 Wendell (N. T.), 586. 1837. 14. — Charges for services done or property delivered under the supposed existence of a special contract, but which afterwards became matter of account by operation of law in con- sequence of a rescission of the contract, cannot be proved by the party's book ; there must be a right to charge when the service is done or the goods delivered. lb. 15. Branch road. Where evidence is offered, showing that a corporation, under the direction of its president, is building a brancli road, the company will be held to sanction the same, unless it be otherwise shown. Ban- gor, Oldtown aTid Milford R. R. Co v. Smith, 47 Me., 35. 1859. 16. Certificate of secretary. The certifi- cate of tlie secretary of a corporation under its seal, is prima facie evidence of the facts therein stated. Such certificate is evidence that legal notice was given to the stockhold- ers, of a meeting of which they were entitled to be notified. New Orleans, Jackson and O-reat Northern R. B. Co. v. Lea, 13 La. An., 388. 1857. 17. Comparison by witness; fences. The qualities of an object in dispute may be shown by a comparison thereof with the known qualities of some object not in dis- pute; and evidence directed to such a com- parison is not inadmissible as irrelevant or as tending to raise collateral issues. Isbell v. New York and New Haten R. R. Co., 35 Conn., 556. 1857. 18. — A witness having testified as to the condition at a former time of a certain fence, its condition at such former time being the sabj(ct of controversy, was asked on cross- examination as to the present condition of a certain neighboring fence, for the purpose of instituting a comparison between the present condition of the one and the former condition of the other. Held, that such inquiry was within the foregoing rule and proper. lb. 19. Conflicting evidence. In a case where the evidence was conflicting, the defendant asked the court to instruct the jury that the law of the case, on the evidence, was in favor of the defendant, and that the jury should so find ; also, that if the jury believed the testi- mony of A. and B. (whose evidence did not agree with that of other witnesses), they must find for the defendant. Held, that the instruc- tions were properly refused. Lamreneeburgh and Upper Mississippi R. R. Co. v. Montgomery, 7 Ind., 474. 1856. 20. — When the evidence conflicts, it is error in the court to decide the point in con- flict and take it from the jury. Brooke v. Grand Trunk R. R. Co., 15 Mich., 333. 1867. EVIDENOK. 279 Contract — Declarations and Ailmissions. 21. — The supreme court will not reverse a decree, on a question of the amount of dam- ages, upon a mere doubt created by conflicting evidence. Philadelphia, Wilmington and Bal- timore B. S. Go. V. Philadelphia and Havre de Grace Steam Towhoat Co., 23 Howard, 209. 1859. 22. Contract. Where the evidence shows that a written contract does not contain the whole of the agreement between the parties, but that another insti-ument contains the terms and conditions limiting the former contract, the plaintiff cannot recover without producing both instruments. Alabama and Tennessee Rivers S.S. Go. v. JS'abors, 37 Ala., N. 8., 489. 1861. 23. — In an action for labor done for a rail- road company, the defendant answered that the work was performed for a contractor and not for the company, it was held, that there was no error in admitting in evidence the con- tract between the company and the general contractor. Downs v. Union Pacific B. B. Go., 4 Kan., 201. 1867. 24. Corporate existence. The execution of a note to a corporation by its corporate name, is an admission of the fact, and prima facie evidence of the existence of the charter of the company, and user under it, under the plea of nul tiel corporation. Mont- gomvry B. B. Go. v. Hurst, 9 Ala., N. S., 513. 1846. 25. — In an action against a subscriber for the payment of an installment of stock, it was held, that the existence of a president and an engineer, acting and purporting to act for the corporation, and a charter authorizing the ap- pointment of such ofilcers, were sufficient to establish its organization. Wilmington, Cha/r- iotte and Butherford B. B. Go. v. Thompson, 7 Jones' Law (N. C), 387. 1860. 26. — The acceptance of a charter and the organization of a corporate body under such charter, may be proved by a witness who saw the alleged corporators in the use and exercise of such franchises. Wilmington and Manches- ter B. B. Go. V. Saunders, 8 Jones' Law (N. C), 126. 1855. 27. Custom. Where, in attempting to show in explanation of a contract of sale, a local commercial usage that cash sales were not made for cash in hand, but that payment might be made afterwards and the transaction still be regarded as a sale for cash, the evi- dence was uncertain as to the number of days given, and whether the time given was com- puted from the date of the sale or the date of delivery, and showed that the usage of giving time ceased soon after the transaction in ques- tion. Held, that tlie evidence was insufiScient to prove the custom. Union B. B. and T. Go. V. Teager, 34 Ind., 1. 1870. 28. Declarations and admissions. It seems that since parties have been made by the stat- ute competent witnesses in their own behalf, there is no longer the necessity for giving the declarations of living parties in evidence. Beed v. New Torh Gentral B. B. Go., 45 N. Y., 574. 1871. 29. — agent. The admissions of the agent with reference to matters connected with his agency, are competent evidence against the principal. Mississippi Gentral B. B. Cv. v. Whitehead, 41 Miss., 333. 1866. 30. — The admissions of an agent to be ad- missible in evidence against his principal, must have been a part of the res gestae. OM- cago, Burlington and QuincyB. B. Go. v. Biddle, 60 111., 534, 1871 ; Gri'ffin v. Montgomery and West Point B. B. Go., 36 Ga., Ill, 1858; At- lanta and La Orange B. B. Go. v. Hodnett, 39 ib., 461, 1859 ; Wright o. Georgia B. B. Co., 84 ib., 330, 1866 ; Govington and Lexington B. B. Co. V. Ingles, 15 B. Monroe (Ky.), 637, 1855. 31. — The declarations of an agent respect- ing a transaction, made after it is past, are in- admissible as evidence against his principsil. Giles V. Western B. B. Co., 8 Metcalf (Mass.), 44, 1844 ; Anderson v. Borne, etc., B. B. Co., 54 N. Y., 834, 1873 ; Milwaukee and Mississippi B. B. Co. V. Finney, 10 Wis., 388, 1860 ; Lafay- ette and Indianapolis B. B. Go. v. Ehman, 30 Ind., 83, 1868; Pennsylvania B. B. Co. v. Boohs, 57 Penn. St., 339, 1868. 32. — The power to make admissions in behalf of a company as to events or defaults that have occurred and are past, cannot be in- ferred as incidental to the duties of a general agent to superintend the current dealings and business of the company. Smith v. North Carolina B. B. Co., 68 N. C, 107. 1873. 33. — car driver. The declaration of the driver of a car after an accident had occurred and the car had been stopped, but before he had left it, that he could not stop the car be- cause the brakes were out of order, is mere hearsay, and not admissible in evidence against 280 EVIDENCE. Declarations and Admissions. his employer. Luby v. Mudnon Biver B. B. Co., XI N. Y., 131. 1858. 34. — In an action against a city railroad company, to recover damages for a personal injury, occasioned by tlie improper conduct of the driver of the defendant's car, any ex- pression of such driver, either before, durin'g or immediately after, and in the heat of the occurrence, showing his then design to do an injury, and not being a declaration predicated upon an after-thought, is admissible in evi- dence. Whittaker v. Eighth Avenue B. B. Co., 5 Bobertson (N. T.), 650. 1867. 35. — conductor. The declarations of a con- ductor, made after an accident has happened, are not admissible against the railway com- pany. Chicago and Northwestern B. B. Co. v. Fillmore, 57 111., 265. 1870. 36. — The statements made by a conductor in reference to the engine drawing the train of which he is in charge, are admissible against the railway company for the purpose of explaining the cause of the delay of the train. Though the company is not absolutely bound by such statements, they are admissible on the general principle of agency. Bissonv. Cleveland and Toledo B. B. Co., 14 Mich., 489. 1866. 37. — director. The plaintiff, in an action against a railroad company, for services per- formed, claimed that S., having made a con- tract with the defendant to build its extension railroad, made another contract with the plaintiff to build a certain portion of that road ; that the plaintiff built the road accord- ing to his contract, but the embankments across two coves on the route settled so as to require additional .work ; and that the defend- ant, by its agents, employed the plaintiff to do that work, which was the subject of the action. In support of this claim, the plaintiff, among other evidence, called 8., as a witness, to prove what D., one of the directors of the railroad company, and one of the committee for build- ing the road, had said and done, as the agent of the company, in relation to that work. From the testimony of S., it appeared that when the additional work became necessary, D. inquired of S. what was to be done in con- sequence of the settling of the embankments; that 8. asked him, if the company expected him, 8., to do the work at the coves, where it had settled ; that D. replied, that the company did not expect him to pay the expense, — they only wanted to know his opinion as to. the best mode of doing it. Seld, that as this was said by D. while inquiring as to the best mode of making the necessary repairs, and while acting within the scope of his authority, the declarations so made by him were binding upon the defendant to the same extent as if they had been made by the defendant itself, and consequently were admissible in evi- dence. Norwich and Worcester B. B. Co. v. CaUll, 18 Conn., 484. 1847. 38. — dying declarations. Dying declara- tions of the person killed are not admissible in evidence to charge the defendant in any civil case. Ma/rshall v. Chicago and Great Hastem B. B. Co., 48 111., 475, 19,m; Daily v. New York and New Saven B. B. Co., 32 Conn., 356. 1865. 39. — The doctrine permitting dying decla- rations to be given in evidence, only applies to criminal cases, and has no reference to civil cases. But a dying declaration, made immediately after the happening of the fatal event, and in relation to the cause of the injury, would be given as a part of the res gestce. Brownell v. Pacific B. B. Co., 47 Mo., 240, 1871 ; Friedman t. Bailroad Co., 7 Phil- adelphia Rep. (Penn.), 203, 1870. 40. — engine driver. In an action against a railrbad company for the killing of cattle by its engine, it wasMd, that the declarations of the engineer in charge of the engine, made subsequent to the happening of the ac- cident, at a place distant therefrom, and at a time when the engineer was not transacting or doing any business of the company in rela- tion thereto, were inadmissible as evidence. Michigan Central R. B. Co., t. Cougar, 55 111., 503. 1870. 41. — In an action against a railroad com- pany for injuring plaintiff, it was held proper to admit the declarations of the engineer, by whose negligence the plaintiff was injured, made at the time of the injury as a part of the res gestcB. Hanover B. B. Co. v. Coyle, 55 Penn. 8t., 396. 1867. 42. — engineer. That on the trial of an action for injuries to a passenger caused by an accident, the declarations of the engineer of the railroad company, made while actually engaged upon the work, and in respect to its proper construction, were in substance a part of the res gestm, and admissible in evidence. EVIDENCE. 281 Declarations and Admissions. Brehm e. Qreat WeaUrn Ji. S. Co., 34 Barbour (N. Y.;, 256. 1861. 43. — fireman. In sn action against A railroad company by an administrator, to re- cover damages for the death of liis decedent occasioned by the collision of a locomotive and train of cars and a wagor. in which said decedent was crossing the track of the defend- ant upon a public highway, it was A«W, that the declarations of a fireman employed on the locomotive at the time of the collision, made upon the arrival of said train, bearing the body of the deceased, at a station one mile from the place of the accident, the train having been stopped at the scene of the accident, and the body having been placed upon it and car- ried thereon to said station, "that the train was running between forty and sixty miles an hour; that he could not tell any difference between the signal and the collision ; that the deceased was sitting with his back toward the train; that he did not think the deceased saw or heard the train or knew there was any train in reach of him; that the deceased never moved out of his position till he was struck ; that there was no signal ;" were not admissible in evidence as part of the res gestts. Bellefon- twine B. B. Co. v. Hunter, 33 Ind., 335. 1870: 44. — husband and wife. In an action by the husband for injury by negligence, the declaration of his wife that the defendant was free from negligence does not bind him. Still- well V. N. Y. Central B. B. Co., 34 N.Y., 29. 1865. 45. — of person injured. In an action for damages for personal injuries, where the in- juries are claimed to have resulted in a per- manent disability of the plaintiff to perform mental or physical labor, the defendant proved that, several months after the injury, the plaintiff had performed such labor. The evidence of the plaintiff in his own behalf, that, at the time this labor was being per- formed, he declared to a person casually pres- ent, and with whom he had no business rela- tion, that he then felt ill, was inadmissible, either to controvert the defendant's proof or to show statements of his own out of court consistent with his testimony. Beed «. Neix York Central B. B. Co., 45 N. Y., 574. 1871. 46. — The declarations of a person injured, made to his physician, as to the cause of such injury, are inadmissible in evidence. Illinois Central B. B. Co. v. Sutton, 43 111., 438. 1867. 47. — In an action by a husband for dam- ages sustained from injuries inflicted upon his wife, expressions of pain and suffering, made by the wife to the physicians, when they were examining her for the purpose of learn- ing her physical condition, are admissible as evidence. Matteson v. New York Central B. B. Co., 85 N. Y., 487, 1866; see Same v. Same, 62 Barbour (N. Y.), 364, 1802. 48. — So, likewise, declarations as to her health, made by her to a neighbor, shortly after the injury, are admissible, especially when called out by the defendant on cross- examination, lb. 49. — partnership — declarations. In an action by two to recover the value of a lot of goods, where the question arises whether the ownership is in the plaintiffs jointly or whether they belong to one of them, individually, if the plaintiffs are allowed to prove their own declarations as to their partnership, it is com- petent for the defendant to give in evidence the record of a suit in which one of the plaint- iffs had sued for the recovery of the same goods. Chicago and Alton B. B. Co. v. MaMn, 43111., 158. 1866. 50. — party. The admissions of a defend- ant, made upon the hypothesis that informa- tion given him by plaintiff was true, are admissible in evidence against him, in con- nection' with proof of the truth of such infor- mation." Where such admissions are not evidence against other defendants, they should ask a special instruction to that effect. Chap- man V. Chicago and Northwestern B. B. Co., 36 Wis., 295. 1870. 51. — interested party. The admissions of the father of the person alleged to be injured and bringing suit for it, made before her death, are not admissible against her adminis- trator, unless it be shown that the father is the real party in interest for whose benefit the suit is prosecuted. Taylor v. Grand Trunk B. B. Co., 48 N. H., 304. 1869. 52. — If this be shown, the admissions would be competent, although when they were made, the father had no interest. lb. 53. — But the mere fact that the estate of the daughter would descend to the father, sub- ject to the claims upon it, would not make him the party to it so as to render his admis- sions competent. lb. 54. — In a suit on a bond, statements of 282 EVIDENCE. Deed — Employes. the principal at the date of its execution, in the absence of the plaintiff or his agent are inadmissible. Noiih Missouri B. B. Co. v. Wheatley, 49 Mo., 138. 1871. 55. — president. The admissions of a party may always be given in evidence against him. Tho president of a railway company may make admissions which will be evidence against the company. Charleston and Savannah B. R. Co. «. Blake, 12 Richard- son's Law (So. Car.), 634, 1860; Chicago, Bur- lington and Quincy B. B. Co. v. Coleman, 18 111., 397, 1857. 56. — statements of sick person. The ad- mission of the representations of a sick per- son should be confined to such expressions as furnish evidence of the present condition of the patient, excluding carefully everything in the nature of a narrative of what is past. Tay- lor V. Grand Trunk B. B. Co., 48 N. H., 304. 1869. 57. — The representations made by a sick person of the true nature, symptoms and ef- fects of the malady under which he is labor- ing at the time, are received as original evi- dence. If made to a medical attendant, they are of greater weight, but are not rejected when made to another. Perkins v. Concord B. B. Co., 44 N. H., 233. 1863. 58. — .superintendent. The superintend- ent's admissions, as to the conduct of ah en- gineer, are not admissible in evidence. The board of directors alone have power to make admissions which will bind the company. Hill V. New Orleans, Opelousas and Great West- em B. B. Co., 11 La. An., 292, 1856; The Same Co. «. Williams 16 La. An., 315, 1861. 59. — third persons. The admission of a letter as evidence against objection in a suit against a corporation, which contains the mere statement of a third person, and not the declaration of an officer or agent of the cor- poration, made in the discharge of the duties of his office or agency, is illegal. Alabama and Mississippi Bivers B. B. Co. -b. Johnson, 42 Ala., 242. 1868. 60. Deed. The description of the grantor in a deed as residing out of the common- wealth, and proof of that fact, is not of itself sufficient evidence that the deed was in fact executed abroad, so as to admit secondary evi- dence of its execution, without accounting for the absence of the subscribing witnesses. Tyng v. Boston and Maine B. B. Co., 13 Gush- ing (Mass.), 277. 1853. 61. — recitals. The acceptance of a deed by a grantee makes its recitals evidence against him ; but not as against iona fide purchasers from him, without notice. Schuylkill and Dau- phin B. B. Co. V. McCreary, 58 Penn. St., 304. 1868. 62. Depositions. A copy of a bill of la- ding was annexed to the deposition of a wit- ness, and no objection was made to the copy, either at the examination or by motion to sup- press afterwards ; it was accordingly held, that the objection that the original was not pro duced, or its loss shown, came too late at the trial. Formal objection must be raised on the examination or by notice to suppress the de- position. Tork Co. v. Illinois Central B. B Co., y, Wallace, 107. 1865. 63. — To read the deposition of a deceased witness, taken in a former cause, it is not necessary that the parties should be identical. Philadelphia, Wilmington and Baltimore B. B. Co. V. Uma/rd, 13 Howard, 307. 1851. 64. — The separate certificate of the gov- ernor that the justice of the peace before whom certain testimony was taken on com- mission, was an officer at the time, is insuffi- cient to authenticate the evidence. Edmon- son V. Mississippi and Alabama B. B. Co., 13 La. (O. B.), 283. 1838. 65. Diagram. Where a diagram of a local- ity is offered in evidence and rejected, it must be set out in a bill of exceptions, in order to reserve the question on the ruling. Indianap- olis, etc. B. B. Co. v. Irish, 40 Ind., 277. 1873. 66. Employes — qnaliflcations. It is com- petent, in an action for damages caused by the careless running of a train, to show that the general character of the engineer was that of a reckless, intemperate and untrustworthy agent. Vicksburg and Jackson B. B. Co. v. Patton, 31 Miss., 156. 1856. 67. — The general reputation of an em- ploy6 for habits of intoxication may be proven for the purpose of showing that such habit might have become known to the company upon proper inquiry. GiVman v. Eastern B. B. Co., 13 Allen (Mass.), 433. 1866. 68. — The plaintiff having attempted to prove that the flagman employed by the com- pany was a careless and intemperate person, the defendant has a right to show to the con- EVIDENCE. 283 Error without Prejudice — Experts. trary by persons wlio have seen his conduct, and such facts need not be proved by experts. Oalmganv. Boston and Lowell B. B. Co., 1 Allen (Mass.), 187. 1861. 69, — The defendant having introduced evi- dence tending to show that an engineer was of average sliill, plaintiff was properly allowed to prove that, on some occasions, he had run liis train beyond the station. Detroit and Mil- waukee B. B. Co. v. Van Steinburg, 17 Mich., 99. 1868. 70. Error without prejudice. A cause will not be reversed because improper evidence was admitted, when the record shows affirmatively that such evidence was not considered by the court. Amaden v. Dubuque and Sioux City B. B. Co., 13 Iowa, 182, 1862. 71. Examination of witnesses. The re- calling of a witness for the purpose of correct- ing his testimony, is a matter within the dis- cretion of the court, and will not be reviewed on error. Michigan Central B. B. Co. v. An- derson. 20 Mich., 24-1, 1870. 72. A party has no right to cross examine a witness except as to facts and circumstances connected with the matters stated in, his direct examination. Philadelphia and Trenton B. B. Co. V. Stimpson. 14 Peters, 457, 1840; Jra- dianapolia, Bloomington, etc., B. B. Co. v. Fer- guson, 42 Ind., 243, 1878. • 73. — TUequestion being as to the condition of a railroad track at the time of an accident, and the plaintiff having shown by a witness its condition both before and after the accident, it became material for the defendant to con- tradict the testimony of said witness, and the defendant introduced one witness who testified only to the condition of the track qfter the ac- cident. Held, that it was competent for plaint- iff to show upon cross examination of one of defendant's witnesses that there was a person within the knowledge and reach of defendant, who was with the plaintiff's witness on both occasions when he saw the track, and by whom the defendant could contradict the testimony of the plaintiff's witness, if it were false, and to argue from the neglect of defendant to call said person as a witness, that said testimony was true. Beattie v. Q-rand Trunk B. B. Co., 41 Vt-, 375, 1868. 74. Expectancy of life — experts. Six months' experience as a life insurance agent will not qualify a witness to testify as to an ex- pectation of life at a certain age. Donaldson v. Mississippi and Missouri B. B. Co., 18 Iowa, 280, 1865. 75. — Carlyle tables. The Carlyle tables are admissible to show the expectancy of human life. McDonald «. Chicago and Northwestmn B.B. Co., 26 Iowa, 124, 1868; Donaldson v. Mississippi and Missouri B. B. Co., 18 Iowa, 280, 1863. 76. — tables. It is competent to prove the probable period of the natural life of the de- ceased by reference to a recognized American life table. Louisville, Cincinnati and Lexington B. B. Co. V. Mahony's Adm'x, 7 Bush. (Ky.), 235, 1870. 77. Experts. When the experience of ? witness is of such a nature that it may be pre sumed to be within that of all men of common education moving within the ordinary walks of life, the evidence of opinion is improper. Gavisk v. Pacific B. B. Co., 49 Mo., 274, 1872. 78. — defect in railway. It is no objec- tion to a witness, offered to prove the defect- ive construction of a railway, that he is not a professional engineer. His testimony should •be left to the jury for what it is worth. Lang- fitt e. Clinton and Port Sudson B. B. Co., 2 Robinson (La.), 217. 1843. 79. — locomotive. No one but an expert will be permitted to testify as to the capacity of a locomotive from its appearance. Sisson «. Cleveland and Toledo B. B. Co., 14 Mich., 489. 1866. 80. — medical experts. A person not a physician may testify, whether it was neces- sary for a party to receive medical assistance, and the length of time such assistance was ne- cessary. Chicago, Burlington and Quincy B. B. Co. V. George, 19 111., 510, 1858. 81. A physician may testify as a medical expert, although he is not a graduate inhis pro- fession. JS'ew Orleans, Jackson and Great NoHhern B. B. Co.v. Allbritton, 38 Miss., 243. 1859. 82. — A medical expert may give his opin- ion upon a supposititious statement made to him, as illustrative of the case on trial. Per- kins «. Concord B. B. Co., 44 N. H., 223. 1862. 83. — The extent to which the opinion of medical experts may be introduced in evi- dence, considered. Beckwith v. New York Cerv- tralB. B. Co., 64 Barbour (N. Y.), 299, 1865. 84. — patents. In a suit for violation of a 284 EVIDENCE. Failure to Explain — Interest of Employg. patent right, the court may call for the opin- ion of experts as to how the patent should be construed, but it cannot be compelled to re- ceive such evidence. Winans v. New York and Erie B. B. Co., 21 Howard, 88. 1858. 85. — speed. Testimony concerning the speed of a passing train of cars may be given by any one having a knowledge of time and distance. It is not a question of science, but of observation. Detroit and Milwaukee R. B. Co. ID. Van ateinJmrg, 17 Mich., 99. 1868. 86. Failure to explain. It is proper for the court to charge the jury, where the evi- dence is circumstantial ; and some of the cir- cumstances might be explained by the defend- ant and he does not avail himself of his right to testify, that his failure to take the stand and exculpate himself, shall be considered against him. 0-reenville and Oolurnbia B. B. Co. v. Pa/rtlow, 14 Richardson's Law (So. Car.), 337. 1867. 87. Family record. To render an entry of births and deaths in a family bible or record admissible in evidence, the entry must have been made by a deceased parent. Oreenleaf v. Bubuqiis and Siottx City B. B. Co., 30 la., 801. 1870. 88. — Where such record is admissible, a copy will not be sufficient unless the absence of the original is accounted for. lb. 89. General issue; carriages. In an ac- tion for damages done to plaintiffs carriage by the omnibus of defendant, the latter may, under the general issue, prove that the omni- bus had been leased to a third person at the time of the accident. Hart v. New Orleans and Carrolton B. B. Co., 4 La. An., 361. 1849. 90. Impeaching evidence. Where deposi- tions are taken under the statute in the ab- sence of the adverse party, it is competent for such party to prove contradictory statements made by the witness without previously inter- rogating him as to such statements. Hazard «. New York, Boston arid Providence B. B. Co., 2R. I., 63. 1851. 9 1 . Incompetent evidence. It is generally true, that if incompetent evidence be received without objection, it must go to the jury; but two things must occur: 1. That the party against whom the testimony is offered, might, when offered, have objected to it; and 3, that when received, it makes a case on which the jury may legally find for the plaintiff. Nes- hitt i>. Louisville, Cincinnati and Charleston B. B. Co., 3 Spears (So. Car,), 697. 1844. 92. — Where a plaintiff, claiming compen- sation for extra services, rested his claim alto- gether on a gtiantum meruit, and undertook to show, by parol evidence, that he was entitled to recover; but as his last piece of evidence presented a written contract between himself and the defendant, the latter had the right to read the contract and say that the evidence offered is inconsistent with it and therefore incompetent And to the granting of a non- suit under such cii'cumstances, it is no objec- tion that parol proof to explain, vary or con- tradict the written contract, was received with- out objection. lb. • 93. Injured limbs may be exhibited. In an action to recover damages for a personal injury, there is no valid objection to the exhi- bition of the injured limb, by the plaintiff, to the surgeon called to describe the injury. Mul- Tiado V. Brooklyn City B. B. Co., 30 N. T., 370. 1864. 94. Interest of witness. One who, if the plaintiff succeeds, may be liable to the de- fendants for negligence, is a competent wit- ness for the plaintiff. Cincinnati, Hamilton and Dayton B. B. Co. ii.Spratt, SDuvall (Ky.), 4. 1865. 95. — The preliminary question, whether a witness is interested or not, is usually decided* by the court But the court may, in their dis- cretion, submit the question to the jury. Dear- bom V. Boston, Concord and Montreal B. B. Co., 24 N. H., 179. 1851. 96. — assignor of chose in action. By § 399 of the Code, the right to examine the assignor of a thing in action, as a witness, is made to depend on the power of the party against whom he is offered, to procure the testimony of the other party to the contract Benham v. New York Central B. B. Co., 13 Howard's Pr. (N. Y.), 198. 1854. 97. —creditor of party. It is no objec- tion to a witness, offered by an insolvent com- pany in support of a money claim, that he is a creditor of the company, and that a recovery would increase the fund out of which he is to be paid. Delaware and Atlantic B. B. Co. v. Trick, 3 Zabriskie (N. J.), 331. 1853. 98. — employ^ The engineer in charge of a colliding train is not a competent witness for the company in an action against it for dam- EVIDENCE. 285 Interested Parties. ages, unless he has a release from the company. Oatawissa S. B. Go., v. Armstrong, 49 Penn. St., 186. 1865. 99. — An engineer is not a competent wit- neas in behalf of the company, where he is liable to the company for any judgment that may be obtained against it in an action for damages for injuries to domestic animals. Chicago and JRocIc Island B. B. Oo. v. Sutehins, 34 111., 108. 1864. 100. — In an action against a railroad com- pany to recover damages for the death of a person caused by the alleged negligence of an employ^ of the company, such employ^ is a competent witness for the company, under the act of 1867. Illinois Central B. B. Co. v. Wel- don, 52 111., 390. 1869. 101. — In an action against a railroad com- pany for damages resulting from the washing away of a culvert, the engineer who planned and superintended its erection is not a com- petent witness for the comjDany until he has been released. Galena and Chicago Union B. B. Co. V, Welch, 24 111., 31. 1860. 1 02. — husband and wife. A married woman is a competent witness in a suit in favor of an estate in which she is interested as one of the heirs, where her husband has given lands in behalf of the estate for its prosecu- tion, if she is offered on the part of the estate, and there is nothing showing that her testi- mony would violate any confidence between her and her husband. Butland and Burling- ton B. B. Oo. v. Lincoln's Estate, 39 Vt., 306. 1857. 103. — In a suit, by husband and wife, for the loss of merchandise of the wife before marriage, she is not a competent witness for the plaintiff, nor is her competency affected by the statute which removes the objection of interest. Smith v. Boston and Maine B. B. Co., 4A N. H., 325. 1863. 104. — After the entry of a suit by a minor by her next friend, she died, and her adminis- trator was admitted as t'le party to prosecute the suit ; it was Jield, that the wife of such next friend was a competent witness for the plaintiff. Taylor v. Grand Trunk B. B. Co., 48 N. H., 304. 1865. 105. — officers of company. The secretary of the company, although a stockholder, is a competent witness to identify the books of or- ganization and records of the company ; but for general purposes stockholders cannot be called as witnesses for the corporation. Peake v. Wabash B. B. Co., 18 111., 88. 1856. 106. — parties. A party to the suit who has no interest in its event may be examined as a witness. Central B. B. Go. v. Mines, 19 Ga., 203. 1856. 107. — In a suit against a railroad com- pany, the plaintiff is a competent witness for himself under the act of Feb. 14, 1867. Alon bama and Florida B. B. Co. v.Watson, 43 Ala., 74. 1868. 108. — Where, in a suit for the foreclosure of a mortgage, a vendee of the property sub- ject to the mortgage is made a party, he is not a competent witness for the mortgagor, to establish a defense involving the liability of the property in his hands to the mortgage debt. Indianapolis and Cincinnati B. B. Go. V. Waggoner, 16 Ind., 367. 1861. 109. — The fact that the defendant is a corporation, and therefore cannot be exam- ined as a witness in his own behalf, will not prevent the plaintiff from being examined as a witness. Field v. New York Central B. B. Go., 39 Barbour (JSI. Y.), 176. 1859. 110. — A party to an action may be exam- ined as a witness in its own behalf without notice to the adverse party, although the latter is a corporation. Ch. 176, Laws of 1868. Dela- matyr v. Milwaukee and Prairie du Ghien B. B. Co., 24 Wis., 578. 1869. 111. — In a proceeding to appropriate land for tlie use of a railroad company, the owner of the land proposed to be appropriated, is a competent witness to testify in his own be- half, provided the proceedings ha,ve been in- stituted since the case took effect. Atlantic and Great Western B. B. Co. v. Campbell, 4 Ohio St., 583. 1855. 112. — Under the provisions of the act ap- proved February 14, 1867 (session acts, 1866-67, p. 435), the plaintiff is competent to testify for himself, although the action is against a cor- poration ; and although it was commenced be- fore the passage of that act. Montgomery and West Pt. B. B. Co. V. Edmonds, 41 Ala., N. S., 667. 1868. 113. — In appeal cases from a justice's court, where the amount in controversy ex- ceeds $20, the statute authorizing either party to be a witness in his own behalf (Code, § 27'79) has no application to suit-s by or against cor 286 EVIDENCE. Interested Pan ies. porations aggregate. Alabama and Tennessee Rivers li. B. Co. v. Oaks, 37 Ala., N. 8., 694. 1861. 114. — The statute authorizing the plaintiff to establish the correctness of his demand by his own oath, where the amount in contro- versy does not exceed $300, does not apply to actions against corporations aggregate. Tonge ■D. Mobile and Ohio R. R. Oo., 31 Ala., N. 8., 422. 1858. 115. —By § 675 of the civil code, ofBcers or inhabitants of counties, cities or towns, of- ficers, members or trustees of corporations or religious societies, although parties to the ac- tions, are made competent to testify as wit- nesses in behalf of such county, town, city, corporation or religious society. Railroad corporations are embraced. Cmington and Lexington R. R. Co. n. Ingles, 15 B. Monroe (Ky.), 637. 1855. 116. — release. Where a witness is inter- ested and a release will make him competent such release must be given, and a bond of in- demnity from a third party will not answer the purpose. Josey t. Wilmington and Man- chester R. R. Go., 11 Richardson's Law (So. Car.), 399. 1858. 117. — A release, not under seal, is suflS- cient to make a witness competent who was liable over to the defendant, in case the plaint- iff should recover. Roland v. Cheenville and Columbia R. R. Co., 12 Richardson's Law (So. Car.), 368. 1859. 118. — remainderman. The owner of a life estate is capable of taking by relea.se from a remainderman, so as to qualify the latter as a witness in his behalf in a suit for injury to the property. Clarh v. Southern Pacific R R. Co. , 27 Tex., 100. 1868. 119. — Stockholders. The stockholders of a corporation are not competent witnesses in its favor, but if they are called by the oppo- site party they maybe permitted to testify in behalf of the corporation. Hart v. New Orleans and CaroUUm R. R. Co., 1 Robinson (La.), 178. 1841. 120. — In a suit by the Maryland and Dela- ware R. B. Co., a corporation created by the act of 1854, ch. 274, amended by the act of 1856, cli. 50, against an execntpr to recover the amount of an alleged subscription by his testator, to the capital stock of the company, it was held, that stockholders in the company were not parties to the contract, or to the suit within the letter or spirit of § 2 of the act of 1868, ch. 116, and were therefore competent witnesses for the plaintiff. Downes ■b. Ma/ry- land and DelewareR. R. Co., 37 Md!, 100. 1872. 121. — It is no sufficient ground for exclud- ing a witness from testifying for a corporation that he may be liable for the debts of the cor- poration, on account of his having been a stockholder therein, under the statute giving a remedy to the creditors of the corporation in certain specified cases against the stock- holders personally. White Mountain R. R. Oo. V. Eastman, 34 N. H., 124. 1856. 122. — Section 12, ch. 188, of the Revised Statutes, provides that members of public cor- porations shall be competent witnesses in cases affecting the interests of such corpora- tions ; and the act of December 25, 1844, § 3, provides that all railroad coi-porations which shall be unable to purchase the lands for their roads of the owners on the respective routes, at rates to be agreed upon, shall be public cor- porations. Held, that railroad corporations were not such public corporations, within the meaning of the Revised Statutes, that the stock, holders could be witnesses for the corpora- tions. Dea/rbom s. Boston, Concord and Mon- treal R. R. Co., 24 N. H., 179. 1851. 123. — In a suit against a railroad company by its corporate name, a stockholder, as such, is not, within the meaning of § 238, p. 80, 2 R. 8., 1852, a party to the action. Newcastle and Richmond R. R. Co. v. Brumback, 5 Ind., 543. 1854. 124. — A stockholder is, tinder the statutes, a competent witness for the corporation in which he holds stock. New York and Erie R. R. Co. v. Cook, 2 Sandford, (N. T.), 732. 1850. 125. — A stockholder in a corporation has no such interest as to prevent him from testi- fying to his official acts in such company. York and Cumberland R. R. Co. n. Pratt, 40 Maine, 447, 1855 ; New Albany and Salem, R. R. Co. v. Qillespy, 7 Ind., 245, 1855. 126.— A stockholder is not competent to testify in behalf of the corporation. Phila- deVphia and West Chester R. R. Co. v. Hickman, 28 Penn. St., 318, 1857 ; Alabama and Missis- sippi R. R. Co. V. Sanford, 36 Ala. N. 8., 703. 1860. 127. — Stockholders should assign their EVIDENCE. 287 Issues — Newspaper Accounts. stock, in order to become witnesses in behalf of a corporation. Thrasher v. Pike County B. R. Co., 35 111., 393. 1861. 128. Issues. In an action of assumpsit by a bank upon a promissory note payable to itself, it is not competent for the court, at the instance of the defendant, to inquire into the organization of the bank. Smith v. Miasia- eippi and Alabama B. B:Co., 6 Smedes & Mar- shal (Miss.), 179. 1846. 129. Judicial notice. This court cannot take judicial notice of the existence of rail- roads. Logansport, Peoria and Burlington B. B. Co., 1). Caldwell, 38 111., 380. 1865. 130. —The courts of the United States will take judicial notice of the i>ublio laws of the several states ; and in Indiana, of the private statutes also. Junction B. B. Co. ®. Bank of Ashland, 13 Wallace, 326. 1870. 131. Land office certiflcates. A certificate by the register of the land office in Wisconsin, that a certain tract of land was " entered at Gr. in the name of H., as appears from the books of records hereof, and that the same has been patented ;'' and that the register had " exam- ined and compared the foregoing " with the records in his office and found the same to be a correct transcript therefrom, is not such a certificate as is described in § 103 or § 104, ch. 137, R. S., and not entitled 1o be admitted in evidence. JFarrand i). Chicago and Jforth- western B. B. Co., 31 Wis., 435. 1867. 132. Leading questions. A witness for defendant, upon cross examination, was asked whether a subscription in controversy was not first made " for the purpose of securing the location on the Brodhead survey." Held, that the question was not leading. Vaict&r v. Ohio and Mississippi B. B. Co., 14 Ind., 174. 1860. 133. Letters. A letter written by the land owner in reply to a demand on him by the railway company for a right of way, is com- petent evidence as res gestae for the land owner when the question of the value of the land is submitted to the jury. Charleston and Savan- nah B. B. Co. 0. Blake, 13 Richardson's Law (So. Car.), 634. 1860. 134. — A contract of lease was shown by a letter from the lessor and an indorsement thereon by one of the lessees. The lessor then offered to prave the terms of the lease by parol evidence. The agreement appearing to be in writing, parol testimony was held inad- missible to vary or modify its terms. Mallory !). Tioga B. B. Co., 3 Keyes (N. Y.), 354, 1867; Same v. Same, 36 Howard's Pr. (N. Y.), 203, 1867; Same v. Same, 5 Abbott's Pr., N. S. (N. Y.), 430, 1867. 135. — The contents of a letter from the plaintiff to the defendant, is only evidence to prove a demand, or to show the pertinency, or explain the meaning of any reply which the defendant may have made to it. Miggins v. North Carolina B. B. Co., 7 Jones' Law (N. C.),470. 1860. 136. — A letter, addressed to a railroad company, claiming damages of it, and read at a meeting of its stockholders, who thereupon voted to lay it on the table, is inadmissible in evidence against the corporation. Bobinson ®. Fitchburg and Worcester B. B. Co., 7 Gray (Mass.), 93. 1856. 137. Map of town plat. The map of a town plat is evidence to show the intent of the land owner to dedicate property to the public, in an action for killing stock by a railway train. Chicago, Burlington and Qaincy B. B. Co. V. Banker, 44 111., 36. 1867. 138. Market price; newspaper reports. Evidence of the state of the markets, as de- rived from the market reports in the newspa- pers is competent. Such reports are more reliable and satisfactory than the evidence of individual sales. Sisson v. Cleveland and To- ledo B. B. Co., 14 Mich., 489. 1866. 139. Memorandum. To corroborate the conductor on a railroad in respect to the time of the arrival of his train at a station, evi- dence is admissible that he made a contempo- raneous memorandum, in compliance with a regulation requiring it; and the time table regulating the running, stoppage, etc., of such train may also be proved. Ba/rker ■». New York Central B. B. Co., 34 N. Y., 599. 1863. 140. Negotiations for a settlement. Evi- dence of negotiations with the defendant for a settlement are competent in explanation of delay in bringing suit. Downs v. New York Central B. B. Co., 47 N. Y., 83. 1871. 141. Newspaper accounts of an accident. Defendant's counsel offered, in evidence, a newspaper account of the transaction, pre- pared from accounts received on the day and at the place of the accident. The author was exaniined as a witness, and testified that he talked with plaintiff and others about it, and 288 EVIDENCE. Notes of Counsel — Ordinances. supposed he learned from them, but had no distinct recollection of what was said, and could not tell from whom, principally, he received his information. Held, that the arti- cle was not admissible in evidence. Downs v. New Torh Central S. R. Co., 47 N. Y., 83. 1871. 142. Notes of counsel. The notes of counsel on a former trial of the cause, between the same parties, may be read in evidence where he testifies that " they contain the whole of the substance of the examination in chief, but that the cross examination was not so full," and that " he took down all that was material of the cross examination." Phila- delphia and Beading B. B. Go. v. Bpearen, 47 Penn. 8L, 300. 1864. 143. Objections to evidence. Objections to the admission of testimony are not avail- able in error, unless the grounds thereof were pointed out to the court below. Jeffersonville B. B. Co. V. Butler, 9 Ind., 205. 1857. 144. — An objection to evidence must be specific : hence an objection to the introduc- tion of a deed made by a Chickasaw Indian, " that it was not made and certified according to the requirements of the treaty with the Chickasaw Indians," is bad: the objection should point out wherein tlie deed is not in accordance with the treaty. New Orleans, Jackson and Great Northern B. B. Co. v. Moye, 39Mi3s.,S74. 1860. 145. — Where parol testimony is received without objection, proving that the plaintiffs had been appointed engineers of the company by a written resolution of the board of direct- ors, it was held, that the evidence would not subsequently be ruled out on motion. Lang- jUt 11. Clinton and Port Hudson B. B. Co., 3 Robinson (La.), 217. 1842. 146. — Where the record shows that an ob- jection to evidence was sustained in the court below, but does not show the ground of the objection, it will be presumed that the ruling of the court was proper. Soben v. Burlington and Missouri Biver B. B. Co., 20 Iowa, 562. 1866. 147. Oifers to compromise. Confidential overtures of pacification, or offers, or propo- sitions between litigating parties, expressly stated to be made confidentially, or without prejudice, are excluded as evidence, on the ground of public policy. But the admission of any independent fact is received, though made during a treaty of compromise. Perkins ■0. Concord B. B. Co., 4A N. H., 323. 1862. 148. Opinions of witness. In questions relative to distances, and the dimensions and quantities of things, a witness cannot testify without an implied expression of opinion, and no objection can be sustained on that account. Eaehett v. B. 0. and M. B. B. Co., 35 N. H., 390. 1857. 149. — The testimony of a witness that, from his knowledge of the country, a railroad could have been built cheaper upon one route than upon another, is too vague to influence a jury. Andrews v. Ohio and Mississippi B. B. Co., 14 Ind., 169. 1860. 150. — In an action to recover damages for personal injuries, a question put to the attend- ant of the plaintiff, as to how far the plaintiff was able to help herself, and at what point she required assistance to do what was necessary to be done, called for facts, and not mere opinion, and was not objectionable. Sloan ti. New York Central B. B. Co., 45 N. T., 125. 1871. 151. — A witness will not be permitted to give his opinion and conclusions from the facts proved. He will not be permitted to state that the practice of running street cars without drivers induced children to get upon the platform. Largan v. Central B. B. Co., 40 Cal., 273. 1870. 152. Order during trial. The order of in- troducing evidence is in the discretion of the circuit court. Philadelphia and Trenton B. B. Co. V. Simpson, 14 Peters., 457, 1840; see also Chicago and Iowa B. B. Co. b. Duggan, 60 111., 137. 1871. 153. — The supreme court will not reverse a cause on account of the order in which tes- timony has been introduced, unless there is a manifest abuse of discretion by the court be- low. Donaldson v. Mississippi and Missouri B. B. Co., 18 Iowa, 280. 1865. 154. Ordinances. In an action against & railroad company, for an injury caused by negligence in running its cars, a copy of a city ordinance limiting the speed of trains need not be filed with the complaint, to authorize its introduction in evidence; an averment of its existence is sufficient. Madi- son and Indiaruipolis B. B. Co. v. Taffe, 37 Ind., 361. 1871. EYIDENCB. 289 Parol Evidence — Railroad Ties. 155. Ownership of railroad. The posses- bIgh and use of a railroad raises a presump- tion of ownership against the occupant. Illi- nois Central B. B. Co. v. Mills, 43 111, 407. 1866. 156. — In this case, the jury were held to have the right, under the circumstances, to in- fer that the defendant was operating the rail- road upon which certain stock was killed. Toledo, Peoria and Warsaw B. B. Go. v. Ar- nold, 49 111., 178. 1868. 157. Parol evidence. Parol evidence bear- ing on written papers should not be permitted to be introduced without the production of those papers to see if it will touch on the rule as to contradicting or varying written evi- dence. Philadelphia and Trenton B. B. Co. v. Simpson, 14 Peters., 448. 1840. 1 58. — Evidence of a contemporaneous parol agreement is not admissible to vaiy the terms of a written conti-act. Cedar Bapids and Missouri BiverB. B. Co. v. Boone County, 34 la., 45. 1871. 159. — Where twenty- one out of thirty- seven stockholders of a railroad company signed and delivered a bond for the payment of $35,000 to three of their own number, and it appeared upon its face that the bond was to bind those who should sign it, it was h^ld, that parol proof could not be admitted to show that it was not to be binding on any until all the stockholders had signed it. Black v. Shrew, 2 Beasley's Ch. (N. J.), 455. 1860. 160. — The plaintifls contracted, in writ- ing, with the Taunton Locomotive Manufac- turing Company, for twelve locomotives, to be delivered at certain specified times. On the same day the defendant, president of said locomotive company, subscribed for seventy shares in the plaintiff's company, " payable in cash on the delivery of the last engine of twelve," from the locomotive company. Held, that parol evidence was admissible to prove that these two contracts were parts of the same transaction ; and if so, that the subscrip- tion was not payable until the last engine mentioned in the contract had been delivered. Deliveiy of any other twelve engines would, not be sufficient. (U. S. Cir. Ct.) Butland and Burlington B. B. Co. «. Crocker, 29 Vt., 540. 1857. 161. — Parol evidence is admissible to give eflfect to a written instrument, by apply- 19 ing it tci the subject matter, by proving the circumstances under which it was made, when- ever, without the aid of such evidence, the application could not be made in the particu lar case. Evansville, Indianapolis and Cleve- land B. B. Co. V. Shearer, 10 Ind., 244. 1858. 162. — Parol evidence, which does not con- tradict anything in the written proceedings of a corporation, is admissible to explain omis sions in its proceedings. Vieksburg, Shreve port and Texas B. B. Co. v. Ouachita Parish 11 La. An., 649. 1856. 163. — Oral testimony is admissible tc show two mutually dependent contracts: one verbal and one written. Williams v. Sagar 50 Me., 9. 1861. 1 64, — A patent ambiguity in a written contract cannot be explained by parol evi dence. Blossburg and Corning B. B. Co. b, Tioga B. B. Co., 1 Keyes (N. Y.), 486. 1864. 165. Party may contradict his witness. The plaintiff, in an action to recover the value of personal property, may testify that he was the owner of it, although one of his witnesses has testified to facts tending to show owner- ship in another person. Whitney v. Eastern B. B. Co., 9 Allen (Mass.), 364. 1864. 166. Payment. Evidence to explain un- der what circumstances a draft on one officer of a railroad company was accepted by an- other officer of the same company, and deliv- ered to the plaintiff having an account agaifist the company, is admissible, there being an averment in the complaint that the draft was not delivered or received as payment. Such evidence does not contradict the tenor of the draft. Chicago, Cincinnati and Louisville B. B. Co. V. West, 37 Ind., 311. 1871. 167, Railroad ties. On the trial of an action for the price of cross ties furnished to a railroad company, the defense being that the ties were not of good quality, one witness called by the plaintiff to prove the quality of the ties, stated that he had been road master of another railroad, and as such it had been his duty to inspect and receive ties, and an- other witness, called for the same purpose, stated that he had made and sold cross ties to the defendant. Held, that the witnesses had sufficient knowledge of the subject to make them competent witnesses as to the qualities of the ties. Jeff'ersonville B. B. Co. v. Lanham, 27 Ind., 171. 1866. 290 EVIDENCE. Receipts. 168. Receipt. Where a receipt is given for goods and afterwards lost, not only can the contents of the receipt be proved, but the delivery of the goods can be proved by any Other competent evidence. Smith v. Missis- sippi and Manama R. B. Co., 6 Smedes & Marshall (Miss.), 179. 1846. 169. — The signing of a receipt by a third party vpithout examination, describing the packages shipped as in good order on their reshipment, furnishes no evidence of the con- dition of the goods at that time. Hunt v. Michigan Souiliem and Nortliern Indiana JR. S. Co., 37 N. Y., 162, 1867; Same v. Same, 35 Howard's Pr. (N. T.), 287. 1867. 170. — Where a party seeks to recover as against his own receipt, he should make out his case clearly. Chapman v. Railroad Co., 7 Philadelphia Kep. (Penn.), 204. 1870. 171. Records. The books of a corporation are evidence between its members, but not against strangers. CMse v. Sycamore and Gourtland R. R. Co., 38 111., 215. 1 365. 172. — Corporation books, although not generally evidence against a stranger, are so against a corporation, present and assenting to the entries made in them. Graff v.Pittslurg and Steubenville R. R. Co., 31 Penn. St.. 489. 1858. 173. — It is not error to pronounce upon the effect of evidence, where it is such that it would be the duty of the judge to set aside the verdict, if rendered against it. lb. 1 74. — The books of a corporation are ad- missible for the purpose of showing the regu- larity of its proceedings. Ryder v. Alton and Sangamon R. R. Co., 13 111., 516. 1851. 175. — Corporation books are evidence of the acts and proceedings of the corporation, when it appears that they are kept as such by the proper officer, or some person authorized to make entries in his necessary absence. St. Louis and Cedar Rapids R. R. Co. v. Eakins, 30 Iowa, 279. 1870. 176. — The records or minutes of the cor- poration, when regularly kept, are evidence, though not conclusive, of the corporate pro- ceedings. Woonsocket Union R. R. Co. v. Sherman, 8 R. I., 564. 1867. 177. — The circumstances considered under which the president of the corporation will be attached for refusal to produce the books and papers of the corporation. Erie R. R. Co. v. Heath, 8 Blatchford (U. S. C. C), 413. 1871. 178. — Where the book of a corporation is produced as evidence in response to a notice requiring it, and portions read from it upon the trial, the corporation may read any other portions of it which relate to the same subject matter. Vischer v Talbotton Branch R. R. Co., 34 Ga., 536, 1866. 179. — The record book of a corporation recited that a meeting of the stockholders for the purpose of organization was held, pursu- ant to notice given by the persons who by the charter were authorized to call such a meeting when ^00,000 of the capital st»ck had been subscribed: h^ld, that the record was evi- dence of the fact recited, and also presumptive evidence of the fact that the requisite amount of capital had been previously subscribed, and was, unless rebutted by other evidence, sufficient proof Laiie v. Brainerd, 30 Conn., 565. 1862. 180. — criminal cases. Entries in the course of business, upon the books of a rail- road company by one, at the time an agent of the company, and still living, but absent from the state, are not competent evidence of the facts therein set forth, upon the trial of a third person for crime. State w. Thomas, 64 N. C, 74. 1870. 181. — how introduced. Upon the intro- duction of a record in evidence, it is usually read to the jury by the witness having it in charge, or by an attorney in the cause. It need not be handed to each juror, unless inspection for a particular purpose is necessary. Tlwrn- burgh v. Danville and Newcastle R. R. Co., 14 Ind., 499. 1860. 1S2. —judgment and decree. A. judgment in a case to which the defendants were not parties or privies is not admissible in evidence. Mestier v. New Orleans, Opelousas and O. W. R. R. Co., 16 La. An., 354. 1861. 183. — The introduction of another suit in evidence does not, in general, make the testi- mony on which the judgment was rendered, evidence in the new suit. lb. 184. — Where the decree of the High Court of Appeals was properly copied in the records of a county court, as a part of the record in a cause, and a copy of the whole proceedings in the county court is ofiered in evidence, it cannot be objected that it is a copy of a copy. It becomes an original for the purpose of making out a transcript of the EXECUTIONS. 291 Application of Payments — Caveat Emptor. cause. West Feliciana, B. B. Go. v. Tliornton, 12 La. An., 736. 1857. 185. — An exemijlification of a record of a judgment and a sheriff's sale under it, not containing tlie^./a., and the levy and inquisi- tion was certified to be as full and entire as it remained upon the records. Held., to be ad- missible in evidence. Schuylkill and Dauphin B. B. Go. V. McGreary, 68 Penn. St., 304 1868. 186. — Parol evidence is inadmissible to vary or alter the language of a decree which is plain and unambiguous. Wey v. Dubuque and Siowx Gity B. B. Go., 20 la., 847. 1866. 187. — parol evidence. Where the court Las ordered the production of certain minutes of the board of directors, and the party in whose behalf the order was made has, in ad- dition, given written notice to the company t3 produce, and has demanded of the secretary, a sworn copy, if they are not produced, or the sworn copy furnished, oral evidence may be given of their contents. Indianapolis and_ Gincinnati B. B. Go. v. Jewett, 16 Ind., 273. 1861. 188. Eegulations of company. Evidence is admissible of the regulations of the corpo- ration, and of the custom of its agents, in re- spect to giving notice to passsngers of the ne- cessity of changing cars in order to reach a given station. Barker v. New York Central B. B. Co., 24 N. Y., 599. 1862. 189. Res gestae. Evidence of the arrest, by a policeman, of the driver of a car which had run against and injured a woman, is not admissible in an action against the driver's employer for negligence in causing the injury. Luiyo. Hudson Biver B. B. Co., 17 N. Y., 131. 1858. 190. Seal. Evidence that a corporation, through its counsel, treated a paper as its deed through the course of a trial, is admissi- ble, against the corporation, to prove that the seal attached to the paper is the seal of the corporation. Philadelphia, Wilmington and Baltimore B. B. Go. v. Howard, 13 Howard, 307. 1851. 191. — Proof of signatures of the officers of a corporation to a release purporting to have been executed by the corporation, is prima facie evidence of the execution and seal. Josey v. Wilmington and Manchester B. B. Co., 12 Richardson's Law (So. Car.), 134. 1859. 192, Statute. Where a statute of another state constitutes a part of the organization of a coi-poration suing in Indiana, it is not neces- sary to its introduction in evidence by the plaintiff that it should have been pleaded. Paine v. Lake Erie and Louisville B. B. Co., 31 Ind., 283. 1869. 193. Striking out evidence. If improper evidence tending to inflame damages has been given, and it has not been struck out at or be- fore the close of the testimony, so that counsel shall not be allowed to refer to it in their ad- dress to the jury, it is too late to cure it by di- recting the jury in the charge to disregard it. Pennsylvania B. B. Co. v. Butler, 57 Penn. St., 335. 1868. 104. Stock subscription. Parol evidence of a subscription to stock cannot be admitted until there is a sufficient excuse for the ab- sence of the original. Cincinnati, Peru and Chicago B. B. Co. v. Cochran, 17 Ind., 516, 1861 ; Same V. Emrick, 19 ib., 289, 1862. 195. — A verbal promise to give time on a subscription to stock, upon the faith of which promise the subscription is made, cannot be introduced in evidence. A contemporaneous parol agreement cannot be shown to vary the terms of a written contract. Thigpen «. Mis- sissippi Central B. B. Co., 32 Miss., 347. 1856. EXECUTIONS. See MOBTQAGE. 1. Application of payments. The enroll- ment act of 1844, § 9, which directs the sher- iff to apply the proceeds of sales upon the oldest enrolled judgment, does not apply to voluntary payments made by the debtor. Mis- sissippi Central B. B. Co. i). Harkness, 33 Miss., 203. 1856. 2. Bonds. Railroad trust or mortgage bonds held by the company, or its agents, for the use of the company, before delivery, are not subject to execution as property of the company, nor can they be subjected to sale by proceedings in aid of execution. Means v. Giricinnati amd Chicago B. B. Co., 2 Disney (Ohio), 465. 1859. 3. Caveat emptor. The maxim of caveat emptor applies to purchases at sheriff^s sales. Delaware and Lackawanna- B. B. Co. v. Blair, 4DuU;her(N. J.), 139. 1859. 292 EXECUTIONS. Claim by Third Person — Justice's Judgment. 4. Claim by third person. Where a sheriff in St. Louis county levies an execution upon personal property, a third person claiming the same, may maintain an action against the sher- iff for its possession, without making claim thereto in accordance with § 3 of the local act of March 3, 1855. (Sess. Acts 1855, p. 464.) St. Louis, Alton and Chicago B. B. Co. ■o. (7as- tello, 28 Mo., 379. 1859. 5. Exemption. Lands purchased by a rail- way company beyond what are actually dedi- cated to corporate purposes, are bound by the lien of judgments against the corporation, and are liable to be levied in execution and sold as the lands of any other debtor; but the purdiaser at such sale takes only that which is not necessary for the full enjoyment and exer- cise of the corporate franchise, no matter how acquired by the corporation. Plymmitli B. B. Co. V. Colwell, 39 Penn. St., 337. 1861. 6. — A canal basin is not a legitimate inci- dent to a railroad having no authorized canal connection, and is not protected from levy and sale on execution against the company. lb. 7. Franchise. A railway company's inter- est in the land may be sold under an execu- tion against it, although the corporate fran- chise itself cannot be sold under an execution. State v. Bives, 5 Iredell's Law (K. C), 297. 1844. 8. — The right of transporting persons or things over the land of another for toll, is but an easement united with a franchise, and is not distinguishable from other franchises. lb. 9. — The franchises and property of a cor- poration may be seized and sold out on a fieri facias. Act of April 7, 1870. Philadel- phia and Baltimore Central B. B. Co.'s Appeal, 70 Penn., St. 355. 1870. 10. Fraud. Where a railway company, on settlement with a contractor, agreed to pay him a certain number of shares, or bonds of the road, at his election, the amount, however, to be retained by the company as indemnity against certain liabilities to which the road was subject, and a certificate was accordingly delivered to the contractor for so many shares, with an agreement indorsed to exchange them for bonds at the election of the con- tractor, and these certificates were then re- turned to the company as such indemnity; Jield, that the corporation was bound to deliver the bonds according to ihe agreement, not- withstanding the treasurer o/ the road had entered the shares on the records as the prop- erty of the contractor, and they had in conse- quence been sold on execution as his prop- erty. Jones V. Portsmouth and Concord B. B. Co., 32 N. H., 544. 1856. 11. Inadequate price. To retain property sold for an inadequate price, at a sale in some respects irregular, the vendee should be guilty of no misconduct, and should act with most exact good faith. Pa/rker v. Hannibal and St. Joseph B. B. Co., 44 Mo., 415, 1869; Bubyo. Same, ib., 443. 12. Indemnifying bond. A sheriff hold- ing three executions levied upon property under all of them, and a claim to the prop- erty having been asserted by a third person, he required an indemnifying bond. The plaintiff in the third execution alone executed a bond, but the oflScer proceeded under all the writs. Held, that the priority of the execu- tions was not affected by the bond. Girard Bank «. Philadelphia and Norriatown B. B. Co., 2 Miles (Penn.), 447. 1841. 1 3. — The exemption from liability guar- antied to an ofl5cer levying an execution by § 5 of the act of March 3, 1855, where an in- demnification bond has been given as re- quired by that act, extends to an action of replevin brought against said officer. St. Louis, Alton and Chicago B. B. Co. e. Costello, 80 M(.., 124. 1860. 14. Insolvent corporations. Where there are sundry executions against an insolvent railway company, threatening to seize and sell its road in parcels, the road extending through six different counties, equity will in- terfere and direct tlie sale of the entire prop- erty for the benefit of all concerned, and dis- tribute the proceeds equitably. Macmi and Western B. B. Co. v. Parker, Ga., 377. 1851. 15. Jurisdiction. Where the supreme court of a state has by its decree and oflScers taken judicial control of the property and franchises of a corporation, they cannot be taken in exe- cution by process from any other jurisdiction. Fox V. Hempfield B. B. Co., 3 Abbott (TJ. P. C. C), 151. 1870. 16. Justice's judgment. A copy from a docket of a justice of the peace, certifying that an execution issued to the constable of the township in which defendant resided, and setting out the return of the constable of nulla bona, is prima facie evidence to authorize the EXECUTIONS. 293 Levy — Sale of Railway. clerk of the circuit court to issue an execu- tion upon the transcript of the justice's judg- ment filed- in h is office. Ruby v. Hannibal and St. Joseph B. B. Co., 39 Mo., 480. 1867. 17. Levy. A seizure under an execution must be accompanied by actual possession by the ofiBcer. A levy on the proceeds of prop- erty to bo sold at a future day is invalid. Gou- beau B. New Orleans and Nashville B. B. Oo., 6 Eobinson (La.), 345. 1844 18. Municipal corporations. In authori- zing the mayor and city council to sell prop- erty on perpetual ground rent, the legislature established a legal detination of the rents, as a portion of the permanent revenue of the city, to enable the city to exercise its power of police and government. These rents there- fore cannot be sold on execution against tlie municipality. JVew Orleans and Oa/rrolton, B. B. Oo. V. Municipality/ No. One, 7 La. An., 148. 1853. Itt. Proceedings supplemental to execu- tion. The provision of the Code {§ 393), in regard to proceedings supplementary to exe- cution, are not applicable to judgments against coi'porations. Hinds v. OanandaigvM and Niag- ara FalU B. B. Co., 10 Howard's Pr. (N. Y.), 487. 1855. 20. — The provisions of the code, in rela- tion to " proceedings supplementary to execu- tion," are not applicable to judgments against corporations. Sherwood v. Buffalo and New York City B. B. Co., 13 Howard's Pr. (N. Y.), 136, 1855 ; but see Oourtois t\ Harrison, ib., 359. 1856. 21. Sale of railway. A railroad is liable to be sold on execution unless the sale be for- bidden by statute ; not the franchise, but the land itself constituting the road. State v. Bives, 5 Iredell's Law (K. C), 397. 1844. 22. — The Columbus, Piqua and Indiana E. R. Co., under its charter, had no power to alienate its franchise. But after the road was constructed and prepared for use, its cars, en- gines and other property, not fixed to the land, were liable for its debts and subject to execution. Coe v. Oohimbus, Piqua and Indi- ana B. B. Co., 10 Ohio St., 373. 1859. 23. — Old or new rails and chairs kept along the track for repairs are not liable to levy and sale under an execution. Covey v. Pittsburgh, Fort Wayne and Chicago B. B. Co., 3 Philadelphia Rep. (Penn.), 173. 1858. 24. — The W. V. R. R. Co., before its road was surveyed, contracted with B., to sell it such lands, owned by him, as should be re- quired for the use of the road. The charter of the company provided that the directors might fix the line of the road, and that the company might enter upon and take posses- sion of such lands as were necessary for the construction of the road and necessary accom- modations. The survey designated certain land belonging to B. as depot grounds, and the company paid him therefor, but took no con- veyance of the land. The plaintifi', having a judgment against the company, levied 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 was never necessary to the purpose of the company, and would not become so prospect- ively. Held, that B.'s contract did not compel him to convey a greater quantity of land than was required for depot accommodations ; that the company could not by its charter acquire more land than was necessary; that the estate acquired was only an easement, and could not be levied on and sold; that so long as the directors did not act rashly or in bad faith, their decision as to the quantity of land re- quired would be conclusive. Hill v. Western Vermont B. B. Co., 33 Vt., 68. 1859. 25. — A railroad company having aban- doned the use of a portion of its road for any purpose of public service and tor use as a road bed, and using it only in the exercise of means and measures fo get rid of its character as a railroad, viz.: to take up and carry away the rails and to get terms with the town as to ob- ligations touching street bridges, but without any intention of ever using it for the purpose of a public road, it was held, that the fee being in the company, the portion so abandoned was subject to levy of execution, so far as the questioi^ of discontinuance and abandonment was concerned. Benedict «. Heineberg, 43 Vt., 331. 1870. 26. — Land, which has been vested in a railroad company for the use of the road, if sold by execution, belongs to the purchaser until the franchise of the company would, by the limitation of its charter, have expired. State v.Bives, 5 Iredell's Law (N..C.), 397. ISM. 294- EXECUTORS DE SON TORT— EXPRESS COMPANIES. Miscellaneous. 27. — An injunction will issue to prevent the sale of a railway in parcels upon separate executions. Noble v. The State, 43 Ga,466. 1871. 28. Sheriffi A sheriff has no authority to levy upon and sell land lying out of his dis- trict. Finley v. South Carolina R. R. Co., 2 Richardson's Law (So. Car.), 567. 1846. 29. Stock. Where a debtor holds stock standing in his own name upon the books of a corporation, a judgment creditor may pro- ceed by fi. fa. and sale under the act of March 29, 1819, or by attachment execution tinder the act of June IG, 1836. But where stock held by the defendant in his own name is subject to a charge or lien upon the title, a proceeding by attachment is. preferable. Weaver v. Sunt ingdrni, etc. R. R. Co., 50 Penn. St., 814. 1865. 30. Title. R. issued execution and levied on land as belonging to a railway company; hM, that he thereby affirmed the company's title. Robinson v. Atlantic and Great Western R. R. Co., 66 Penn. St., 160. 1870. 31. What property is realty. Freight cars on the road, side tracks, or turntables of the company are realty. The plaintiff or officer cannot dissever them, and thus change their character. Titus ■». Mabee, 25 111., 257. 1861. (See MoBTOAGB.) EXECUTORS DE SON TORT. 1. Estoppel. Defendant was sued as an executor. He pleaded non assumpsit and the statute of limitations. He contended on the trial that he was an executor de son tort. Held, that by pleading, he was estopped from deny- ing that he was the rightful executor. Oreen- viUe and Columbia R. R. Co. d. Joyce, 8 Rich- ardson's Law (So. Car.), 117. 1854. EXEMPLARY DAMAGES. See Damaobs ; iNJimrEs to Domestic Animals ; Ik- jnBiES TO Emplotes; Ihjiteies to Fassengebs; Ikjckies to Febsons on the Tbace. EXPLOSIONS. See iHJDBiES TO Employes. EXPERTS. See Evidence ; Injubies to Domestic Animals. EXPRESS COMPANIES. 1. Coimecting lines. A. delivered to the United States Express Company a package of money, to be transported to a point not on the route of that company. The package was transported by the company to the point on its line nearest to the place of destination, and there delivered, as was customary, to the pro- prietors of a line of stages, known as " Win- slow's Express," to be carried to its destination. The receipt given by the United States Express Company stipulated that the company under- took to forward the package to the point nearest to its destination reached by that com- pany, and that the company should be held liable as a forwarder only. The package was lost while in the custody of Winslow's Express. Suit was brought by the consignees against the United States Express Company to recover the value of the package. Held, that an ex- press company may become liable as a com- mon carrier, though it has not complied w^ith the requirements of section 2, of the " act declaring express companies to be common carriers. (1 G. & H., 327). EeU, also, that the United States Express Company was only bound to transport the package safely to the point on its line nearest to the place of desti- nation, and there deliver it to the proper car- rier, to be forwarded to its destination, and having done this, that company was not re- sponsible for its subsequent loss. United States Express Co. v. Rush, 24 Ind., 403. 1865. 2. Contract. The contract between a rail- way company and an express company con- strued. Bllis V. Boston, Hartford and Erie R. R. Co., 107 Mass., 1. 1871. 3. Deliyery to company. V., owner of certain goods about to arrive at the depot of a railroad in Charlotte, N. C, wished them to be carried from thence to Richmond, Va., and an express company, by its agent at Charlotte, undertook to remove and deposit said goods in its warehouse as soon as possible on the arrival of the goods at the depot in Charlotte, and to carry them from Charlotte to Rich- mond, within a reasonable time, for a reward EXPRESS MESSENGERS — FEDERAL COURTS. 295 Miscellaneous. paid. The goods arrived at the depot, and the express company had notice of their arrival. Held, to be a delivery to the express company as a carrier. Southern Express Oo. ■». Mc VeigTi, 20 Grattan (Va.), 264. 1871. 4. Injunction. Where It was alleged that a railway company had been guilty of over- charging an express company upon its freights, and a preliminary injunction was prayed to restrain the railway company from making such overcharges, it was held, that the rights of the express company would not be enforced until the flual hearing, and the injunction was refused. (U. S. Cir. Ct.) CamUos «. Philadel- phia and Beading R. B. Co., 4 Brewster (Penn.), 563. 1873. 5. Limiting liability as a carrier. The legal presumption is that stipulations limiting the common law liability, contained in a re- ceipt given by an express company for freight, were known and assented to by the party re: ceiving it. Belger v. Dinsmore, 51 N. Y., 166. 1872. 6. — An express company is to be regarded as a common carrier, and its common law lia- bility may be limited by express contract. Bel- ger V. Dinsmore, 51 N. Y., 166. 1872. 7. — monopoly. A railroad company by its charter was required to transport in the order in which it shall be requested, " all goods, wares, minerals and merchandise, and other articles which shall have been deposited at the company's depots, etc., so that equal jus- tice shall be done to all owners of property who shall pay or tender " the tolls thereon. Held, that express companies had as good a right to the benefits of the road as the owners of the packages personally had ; that a con- tract giving to one company the exclusive right of transportation in the passenger trains was illegal and void. Bandfm-d v. R. B. Co., 24 Penn. St., §78. 1855. 8. — Under ch. 193, Public Laws of 1868, a railway company is not permitted to let to an express company the exclusive right to carry express matter upon its trains. And it seems that the same is the rule at common law. Ifeic England Express Oo. v. Maine Central R. R. Co., 57 Maine, 188. 1869. EXPULSION OP PASSENGERS. Soe Ihjdeibs to Passbnosbs ; Passbngebs ; Tickets. FAMILY RECORD. See Evidence. FARM CROSSING. See Ikjubies to Domestic AiriMAi.9 ; Pkivate Cuoss- EXPRESS MESSENGER. See iNJITBIES TO EUPLOTES ; iNJTnilES TO Fassekoebs. . FEDERAL COURTS. SeeBBisoEs; ConstitutiohalLaw; Habeas CoBPns; Injunction; Jueisdiction ; Mobtgage. 1 . Corporation. A corporation is not a cit- izen within the meaning of the Constitution of the United States, and cannot maintain a suit in a court of the United States against the citi- zen of a different state from that by which it was chartered, unless the persons who com- pose the corporation are all citizens of that state. Ohio and Mississippi R. R. Go. ii. Wheel- er, 1 Black, 286. 1861. 2. — In such cases it may sue by its cor- porate name, averring the citizenship of all the members, and the suit will be regarded as the joint suit of the individuals. lb. 3. — A suit by or against a corporation must be presumed to be a suit by or against citizens of the state which created the corporate body. Ih. 4. — Although a corporation is not a citizen within the meaning of the Constitution in many respects, it is, so far as rights of action are concerned, a citizen of the state where it was created, whatever its status may be else- where by the legislation of other states. Rail- road Co. •». Whitton, 13 "Wallace, 270. 1871. 5. — A statute of Wisconsin provides that in case of the death of a person through the neglect, etc., of another, an action may be brought for the same, " provided, that such ac- tion shall be brought for a death caused in this state, and in some court established by the con- stitution and laws of the same." Held, that this proviso does not prevent a nonresident plaintiff from removing the action, under Act of Congress of March 2, 1867, to a Federal Court, and maintaining it there. lb. 296 FEDERAL COURTS. Municipal Bonds — Removal of Causes. 6. — Jurisdiction. This Court has, under § 11 of the Judiciary Act of 1789, no jurisdic- tion of a civil suit against a corporation cre- ated by the laws of another state, where the suit is commenced by the service of process within this district, upon an officer of the cor- poration. Pomeroyij. New York and New Ha- ven B. R Co., 4 Blatchford (U. S. C. C), 120, 1857. 7. — The federal courts are not required to discourage suitors from commencing suits in their courts, and parties have the right to be- come owners of property for the express pur- pose of maintaining suits therein. Newby v. Oregon Central R. B. Co., 1 Sawyer, (9 U. 8. Cir. Ct.) 63. 1870. 8. — A corporation chartered under the laws of Illinois, and operating a railway in Iowa may have a cause removed from the courts of the latter state to the federal courts under the Judiciary Act of 1789. Treadway v. Chicago and Northwestern B. B. Co., 31 la, 351. 1866. 9. — For jurisdictional purposes as respects the federal courts, this defendant should be re- garded as a citizen of Illinois. lb. 10. — Though, under the laws of Iowa, do- ing business in that state will render it liable there, it still may elect to proceed or be pro- ceeded against in the United States Courts. lb. 11. — A case will fall within the 35th sec- tion of the Judiciary Act, where tlie record shows that in a suit on a contract, the defend- ants setup that the contract had been rendered void by the provisions of certain acts of con- gress, and the Constitution of the United States, and shows also that the decision of the highest court in the state was against the right, title, privilege or exemption thus specially set up. ' Bailroad Co. v. Bichmond, 15 Wallace, 3. 1873. 12. — The circuit court of the United States is not the court of another, sovereign to one of the states. Commonwealth ex rel. v. Pittsburgh and Gonnellsville B.B.Co., 58 Penn. St., 26. 1868. 13. Municipal bonds. When by the laws of Michigan, municipal bonds deposited with the state treasurer are void, a suit to have them given up to be canceled will not be affected by proceedings commenced in a federal court by a stockholder, to obtain them for the cor- poration, when the corporation itself could not lawfully sue the makers or the depositors in any but a state court, and would not there be permitted to recover such bonds. La Orange v. State Treasurer, 24 Mich., 468. 1873. 14. Pleading and practice. The circuit court may adopt, in a particular case, a rule of practice under a state law ; and where the cir- cuit court is possessed of a case from another circuit, it may adopt the practice of the state in which the circuit court from which it is transferred sits. Supervisors d. Sogers, 7 Wal- lace, 175. 1868. 15. — A state law prescribing rules of prac- tice has no efficacy in the federal courts unless these courts adopt it. Mayor v. Lord, 9 Wal- lace, 409. 1869. 16. Precedence of causes — Supreme court. Although a suit be nominally by a state as plaintiff, yet where the real plaintiffs are individuals — as ex gr. in a quo warranto, where the state is plaintiff ex relatione — this court will not give precedence to the case un- der the act of June 80, 1870, even by consent of counsel on both sides. Miller el al. c. The State, 13 Wallace, 159. 1870. 1 7." Removal of causes. Whenever a gen- eral rule as to personal rights or property is established by state legislation, its enforce- ment between proper parties by the federal courts follows as a matter of course, and the jurisdiction of the court is not subject to the state limitation. Bailroad Co. v. Whitton, 13 Wallace, 370. 1871. 18. — The act of March 2, 1867, providing for the removal of a cause from a state court to the federal courts in certain cases, upon the petition of a nonresident party, whether plaintiff or defendant, upon filing " an affida- vit stating that he has reason to and does be- lieve that, from prejudice or local influence, he will not be able to obtain justice in such state court," is constitutional. lb. 19. — The filing of the affidavit prescribed by the act of April 14, 1834, by a railroad com- pany for the removal of a cause into the court of an adjacent county, operates as a superse- deas ; and any further proceedings in the court in which the suit was originally brought are void. Hughes v. Mine Hill and Schuylkill Ha- ven B. B. Co., 30 Penn. St., 517. 1858. 20. — So much of the act of congress of March 2, 1867, constituting ch. 196, acts of the second session of the thirty-ninth congress (14 U. S. Stats, at Large, 558), as provides that a citizen of one state, who has commenced an FEDERAL COURTS. 297 Removal of Causes. action in a court of another state against a citizen thereof, may remove it to a federal court, is invalid. Wliiton e. Chicago and Northwettem B. B. Co., 25 Wis., 424. 1870. 21. — Under the act of congress of July 37, 1868, providing for the removal by corjiora^ tions, etc., of suits brought against them, ft om state courts to United States circuit or district courts, upon verified petition, stating a defense, arising under the United States constitution, etc., the truth of the defendants' averment that they have such a defense, must be settled at the trial, and cannot be tried on aflSdavits. Viik V. Union Pacific B. B. Go., 10 Abbott's Pr., N. S. (N. T.), 457, 1871. 22. — The plaintiff and defendant corpora- tion being corporations of Virginia, the own- ers of the stock, though non-residents, are not entitled to have the cause removed to the United Slates court to have the question of the validity of the corporation decided. Washington, Alexandria, etc. B. B.Co. ■». Alexan- dria, etc., B. B. Co., 19 Grattan (Va.), 592. 1870. 23. — An answer to the jurisdiction of a state court setting up a removal of a cause to the United States Circuit Court, by filing the petition and bond with the clerk of the state court, is sufficient in form and not demurrn^ ble, although omitting to allege that such filing was at the time of entering the defend- ant's appearance in the state court. Ayres v. Western B. B. Co., 45 N. Y., 200. 1871. 24. — To authorize the removal of a cause to the federal courts, all the plaintiffs must be citizens of the state in which the suit is brought, and all of' the defendants must be citizens of some other state or states. Hub- bard V. Nortliem B. B. Co., 3 Blatchford (U. S. C. C), 84. 1853. 25. — The object of the statutes of New York, passed in 1853 and 1855, requiring cor- porations created by other states, and doing business in Kew York, to appoint an agent there, to receive service of process against such corporations, were not intended in any way to cut off the right of such companies to remove litigation to the courts of the United States. Fish «. Chicago, Bock Island and Pa- cific B. B. Co., 53 Barbour (N. Y.), 472, 1868; see ib., 513 ; 3ame v. Same, 36 Howard's Pr. (N. Y.), 20, 1868; 4 Abbott's Pr., N. S. (N. Y.), 378, 1868; 3 ib., 453, 1863. 26. — A railroad company dwells in the place of its creation, and if not chartered in New York, it is citizen of another state, and its citizenship cannot be questioned, for the purpose of defeating the jurisdiction of the United States courts over an action brought against it. Ib. 27. — Where a plaintiff showed that he had a domicil in Boston for several years; that the last year, he purchased a house there, and there his family resided, he coming to the city of New York for the purpose of his busi- ness, and returning to his liome, in Boston, at intervals, as his occupation permitted, held, that he was deemed to be a citizen of Massa- chusetts. Ib. 28. — In ascertaining the residence of a party, the place where he has regularly voted may be properly inquired into and considered. Ib. 29. — The various acts of congress provid- ing for the removal of causes from the state courts to the federal courts, construed. Fisk V. Union Pacific B. B. Co., 6 Blatchford (U. S. C. C), 363, 1869 ; Same v. Same, 8 ib., 243, 1871 ; Same v. Same, ib., 299, 1871. 30. — It is too late for the plaintiff, after the removal of a cause, to have it remanded upon motion, after having pleaded anew in the federal court. Carrington v. Florida B. B. Co., 9 Blatchford (U. S. C. C), 467. 1872. 31. — act of 1789. A suit brought in a state court of New York, by a citizen of New York, against a corporation created by a state other than New York, and against other de- fendants who are citizens of New York, can- not be removed into a circuit court of the ■ United States in New York, under the 12th section of the Judiciary act of September 24, 1789, unless the defendants who are citizens of New York, are merely nominal parties to the suit. Hatch v. Chicago, Bock Island and Pacific B. B. Co., 6 Blatchford (U. 8. C. C), 105. 1868. 32. — Unless all the plaintiffs be citizens of the state in whose court the action is brought, and all the defendants citizens of a state other than that, the action cannot be removed to a federal court, under the judiciary act of 1789. Fisk V. Chicago, Bock Island amd Pacific B. B. Co., 53 Barbour (N. Y.), 473, 1868; see ib., 518; Same «. Same, 36 Howard's Pr. (N. Y.), 20, 1868; 4 Abbott's Pr. N. S. (N. Y.), 878, 1868; 3ib., 453, 1868. 298 FENCES. Common Law Rule. 33. — It has been held, under the act of 1789, that only those suits can be removed from the state courts •which could originally be brought in the United States courts, and the same language upon which Judge Story based that decision is used in all the subse- quent acts. The citizenship of all the plaint- iffs must be taken together. Act of July 27, 1866. Eazwrd v. Union Pacific B. B. Co., 9 R. I., 603. 1868. 34. — Where a suit is brought in a state court, and is duly removed into this court, by the defendant, under § 13 of the act of Sep- tember 24, 1789, the question of the jurisdic- tion of this court is not dependent upon any of the provisions of § 11 of that act, Winans ■B. McKean R. B. Co., 6 Blatchford (U. S. C. C), 315. 1868. 35. — Where the governing officers of a corporation are citizens of the state which created the corporation, and the other party is a citizen of another state, the federal courts have jurisdiction, and the cause may be re- moved under the act of 1789. Wheeden v. Camden and Amboy B. B. Co., 3 Philadelphia Rep. (Penn.), 23. 1856. 36. — A corporation is not, per »e, a citizen within the meaning of the third article of the constitution of the United States. Wheeden t>. Camden and Ambcy B. B. Co., 1 Grant's Cases (Penn.), 420. l'<56. 37. — When a corporation sues or issued, the governing officers, by whatever name called, are the substantial party ; and if they are citizens of the state which created the cor- poration, and the other party is a citizen of another state, the federal courts have jurisdic- tion, and the cause is removable under the judiciary act of 1789. lb. 38. — An action commenced in the su- preme court of New York by one foreign cor- poration against another, cannot be removed for trial, into the circuit court of the United States, under the act of congress of 1789. Ayres v. Western B. B. Co., 48 Barbour (N. T.), 132, 1866; Same s. Same, 33 Howard's Pr. (N. Y.), 3S1, 1866. 3S*. — But where the assignee of a foreign corporation, suing another foreign corpora- tion, is a citizen of New York, the action may be removed, provided the claim is of such a nature that the United States court can take cognizance of it. lb. 40. Transfer from one circuit to another. • The act of Feb. 28, 1839, (§ 8, 5 Stat, at Lar., 322), providing in certain cases for the trans- fer of a case from one circuit court to another, is not repealed by the act of March 3, 1863 (13 Stat, at Lar., 768), providing that circuit judges may hold courts for each other. Su- pervisors V. Bogers, 7 Wallace, 175. 1868. FENCES. See Eminekt Domain : lK.nJBii:s to Domestic Ani- mals ; Bight of Way. 1. Common law mle. In the absence of a statute requiring it, it is generally well settled that railway companies are not required to fence between themselves and adjoining land- holders. Stueke v. Milwaukee and Mississippi B. B. Co., 9 Wis., 202. 1859. 2. Contract. The defendant, a railway company, agreed with plaintiflf to pay him four shillings per rod to construct a fence on both sides of the railway through plaintiflfs land according to a specified plan. Subse- quently, plaintiff appealed from the decision of the commissioners assessing damages for the crossing of his land by the road, and in the county court, plaintiff was allowed certain damages, and one dollar per rod for building and keeping fences in repair, unless such fences were built by defendant. Plaintiff took judgment for the full amount of dam- ages including the allowance for fences, which was i)aid by the railway company. Held, that the judgment was a merger of the former contract. Curtis n. Vermont Central B. B. Co., 23 Vt., 613. 1851. 3. — Plaintiff having subsequently erected the fences according to the contract, it was Tield, that he could not recover, although it ap- peared that the fence erected under the con- tract was not such a fence as he would other- wise have built, and that the fence which he otherwise would have built would have cost no more, and been worth thirty cents per rod more, than the one erected by him under the contract. lb. 4. — Under a breach of covenant to erect and maintain fences, etc., on each side of a railroad, it is proper to show how much the FEKCES. 299 Defects — Statutes. land would yield each season, and tlie mar- ket value of the crops at harvest season, from which should be deducted the cost of tillage, harvesting and marlieting, to ascertain the true measure of damage. Chi- cago and Sock Island S. JR. Co. v. Ward, 16 111,533. 1855. 5. — A written contract between a railroad company and the owner of a farm througli which its road is constructed obliged the com- pany to construct and maintain good and suf- ficient fences on each side of the track, and also two crossings for teams. Seld, that tlie omission, in the contract, of any pro- visions as to gates or bars at the cross- ings, did not relieve the company from its statutory obligation to maintain them. Poler V. New Tork Central B. JR. Co., 16 N. Y., 476. 1857. 6. Defects. While it is the primary duty of a railroad company to discover and repair de- fects in fences, gates, etc., which it is bound to maintain, it is the duty of an adjoining proprietor interested in their security, to give notice to the company when a defect has come to his knowledge. lb. 7. — A railway company is liable for the damages resulting from the insufficiency or want of repair of its fences, in the absence of any proof showing an extraordinary cause for such condition. Bay City and East Saginaw B. B. Co. v. Austin, 21 Mich., 390. 1870. 8. Fires. A railway company is not bound to make fences along its track unless required by its charter. Pennsylvania B. B. Co. v. Biblet, 66 Penn. St., 164. 1870. 9. — An act requiring a railway company to rebuild fences destroyed by fire from its trains in Erie county, is within the police power of the stale and constitutional. Act of April 13, 1868. lb. 10. Partition fences. Adjoining land- owners cannot compel a railroad company to put up a fence along such road, nor require it to contribute thereto. Cattle guards, at each end, are all that can be required. Long Island B. B. Go. V. McConoehie, 8 Edward's Ch. (N. Y.),487. 1841. 11. — A railroad company is interested in the keeping up of the partition fences which separate the lands taken for the use of its rail- way from the adjoining lands. Bensselaer and Saratoga B. B. Co., In matter of, 4 Paige Ch. (N. Y.), 553. 1834. 1 2. Statute — California. "Where the law requires a railway company to erect and main- tain sufficient fences along its road, and does not specify what a sufficient fence shall be, it must be considered as referring to the general law fixing the standard of fences. Enright v. San Francisco and San Jose B. B. Co., 33 Cal., 230. 1867. 13. — Such a law is for the benefit of ad- joinin 1 nd owners, and its provisions may be waived by them. lb. 14. — Experts will not be permitted to tes- tify as to the sufficiency of fences. lb. 15. — Massachusetts. A railroad company is not bound to erect and maintain fences, if the location of the road was filed with the county commissioners and its construction began before the St. of 1846, ch. 271, § 8. Bax- ter V. Boston and Worcester B. B. Co., 103 Mass., 383. 1869. 16. — The " suitable " fences which a rail- road corporation is required by the Gen. Sts., ch. 68, § 48, to erect and maintain on both sides of its road, need not of necessity be such fences as are required to be maintained by owners of adjoining improved lands. Eames V. Salem and Lowell B. B. Co., 98 Mass., 560. 1868. 17. — Where it appeared that the railroad company built its roadbed, but did not lay the rails, before the passage of the statute, and filed the location of the road after ifs passage ; and it did not appear that the corporation took any other title from the land owner, it was Jield, that the company was bound to erect and maintain fences under St. 1846, ch. 371. Sawyer v. Vermont and Massachusetts B. B. Co., 105 Mass. 196. 1870. 1 8. — Michigan. Under Comp. Laws, § 1987, where one railway corporation operates the road of another company under a contract, the former corporation is held to be the agent of the latter. The neglect of such agent to erect or maintain fences along the line of the road will render the corporation owning the road liable for the consequent damages. Under Laws of 1867, p. 331, the injured party has the right to elect against which corporation ho will proceed. Bay City and East Saginaw B- B. Co, e. Austin, 31 Mich., 390. 1870. 19. — Missouri. A railroad company is 300 FERKIES. Charter. liable to an adjoining proprietor for dam- age caused by the failure of the company to fence in his land along its track. The provision of the statute requiring such fenc- ing is not unconstitutional. Trice v. Han- nibal and St. Joseph B. B. Co., 49 Mo., 438. .1872. 20. — In a suit against a railroad company for damages to crops, caused by failure of de- fendant to fence its line of road through plaintiff's premises, where it appeared from the petition that the company had constructed its " road-bed," but no allegation showed that the road was completed, lield, that though the petition was not good as a pleading framed on the statute (Wagn. Stat. 310, § 43), it set forth a good cause of action at common law, and should be proceeded with. And as a common law action, it was not demurrable because it asked for a judgment for double damages. The character of a petition is not always de- termined by the relief it prays for. Tlie court may grant any relief consistent with the case and embraced in the issues. Comings ■». Han- nibal and Central Missouri B. B. Co., 48 Mo., 512. 1871. 21. — Under the act touching railroad com- panies (Wag. Stat. 310, § 43), a railroad corpora- tion is liable to an adjoining owner for fences erected by him in pursuance of that section, notwithstanding the fact that such fences were erected nearer the track than the outer bound- ary of the land belonging to the road. Such an erection without other acts amounting to a claim of ownership would not constitute an appropriation of the company's land outside the fence. Marshall v. Bt. Louis and Iron Mt. B. B. Co., 51 Mo., 138. 1873. 22. — New Hampshire. Railroad compa^ nies are required by statute to maintain fences en the sides of their roads. Dean v. Sullivan B. B. Co., 2 Foster (N. H.), 316, 1851 ; Horn v. Atlantic and St. Lawrence B. B. Co., 35 N. H., 169, 1857; Smith «. Eastern B. B. Co., lb. 356. 23. — New York. The statute requiring railroad corporations to maintain cattle guards at road crossings applies as well to streets which are crossed by railroads in villages as to country highways. Brace v. New York Central B. B. Co., 37 N. Y., 269. 1863. 24. Trespassers. Railway companies are not liable to the owners of lands adjoining their roads for damages committed on those lands by cattle wrongfully permitted by their owners to run at large in the highway, and thence escaping upon the railroad track, and from thence, through defects of the fences of the railroad, upon the lands of such adjoining owners. Chapin v. Sullivan B. B. Co., 39 N. H., 53, 1859; Same v. Same, lb., 564. 25. — It is the settled law in Vermont, that the obligation upon railway companies to build a fence along the line of their roads only extends to the owner or rightful occupier of the adjoining fields, and not to mere trespassers therein. Bemis «. Connecticut and Passumpsic Bivers B. B. Co., 43 Vt., 375. 1869. 26. Willow trees. A railway corporation which was bound by its charter to fence its road, commenced to set out willow trees near the line of its right cf way, with the expecta, tion of nailing boards to them when they should grow to a sufficient size. It having been proved that these trees, by spreading their roots into, and their branches over, plaintiff's land, would seriously injure the same, and that there was no controlling neces- sity for erecting the fence in that particular manner; held, that the corporation might be properly enjoined from planting such trees. Brock V. Connecticut and Passumpsic Bivers B. B. Co., 35 Vt., 373. 1862. 27. " Worm " fence. In erecting a fence along the side of a railway, the crooked or " worm" fence may be used, and the construc- tion of half of it on the land of the adjoining proprietor is no trespass. Ferris v. Van Bus- kirk, 18 Barbour (N. Y.), 397. 1854. FERRIES, Bee Bbidges; Chabteb. 1. Charter. The legislature chartered a railroad company with power to constnict a railroad from New Haven to Stonington, cross- ing New London harbor by a ferry at New London ; the provision as to the ferry being as follows: "To establish a ferry from the FIREMAN — FIKES. 301 Miscellaneous. termination of the railroad on the east side of New London liarbor, to some convenient point on the west side as a part of its railroad or route, to connect the same witli said railroad on the west side," Meld, that a general ferry was not granted, and the railroad company was enjoined against the use of the ferry for any other purpose than the transportation of the passengers and freight of the railroad. Fitch v. New Ba/oen, New London and Stoning- ton Ji. B. Co., 30 Conn., 38. 1861. 2. — The right of a ferryman to his toll, is by the common law, and every subtraction from his profits, by carrying his customers over the stream, whether for pay or not, is an in- jury for which he can recover damages. Tay- lor V. Wilmington and MancJiester R. B. Co., 4 Jones' Law (N. C), 277. 1857. 3. — But not so as to the carrying of persons other than his customers. lb. 4. Collisions. Persons running steam ferry boats are bound to exercise such reasonable care and prudence to prevent collisions as or- dinary prudence would suggest. Philadel- phia, Wilmington, etc., B. B. Go. v. Kerr, 25 Md.,521. 1866. 5. Employes. What acts of the captain of a ferry boat may be considered as not in the course of his employment — considered. Ay- crigg v. New York and Erie B. B. Co., 1 Vroom (N. J.), 460. 1864. 6. Indictment. An indictment charging a railroad company, as the owner of a public ferry, for not keeping up the same, must set forth how the duty of keeping up the ferry and transporting passengers became imposed by its charter. State v. Wilmington and Man- Chester B. B. Co., Busbce's Law (N. C), 334. 1853. 7. License. The mere fact, that parties, claiming and using a ferry right, had not reg- ularly paid the license therefor, would not be available, as a defense, to one who should dis- turb those who possessed the right, or who should destroy or injure the same, but might, perhaps, be a ground for proceed, ings to declare the same forfeited. New Al- bany and Salem B. B. Co. v. Huff, 19 Ind., 815. 1862. 8. Penalty. The Raleigh and Gaston R. R. Co. did not incur the penalties imposed by the Rev. Code, c. 101, g 30, by transporting its pas- sengers and freight in boats across the Roan- oke, at Gaston, during the time that there was no bridge at that point, in consequence of its having been burned by the military, in 1865. Pugh V. Baleigh and Gaston B. B. Co., Phillips' Law (N. C), 859. 1867. 9. Rates of toll. The St. of 1864, ch. 229, § 26, limiting the rates of toll to be charged by ferry companies for passengers transported on the cars of street railway companies, is consti- tutional, and binds a ferry company, incorpo- rated before its passage, whose charter is liable to alteration or repeal under the Rev. Sts., ch. 44, § 23. Parker v. Metropolitan B. B. Co., 109 Mass., 506. 1872. 10. Western R. R. Co. The grant by the legislature to the Western R. R. Co., of power to connect the terminus of its road on the east side of the Hudson, with a depot on the west bank, though it may, by implication, give the right to establish a ferry, docs not constitute such ferry a part of the railroad, so that per- sons merely crossing the river may be regarded as passengers carried under the general rail- road franchise. Aikin v. Western B. B. Co., 20 N. Y., 370, 1859 ; reversing, 8ame v. Same, 30 Barbour (N. Y.), 305. 1857. FIREMAN. Sue Injukies to Emplotbs. FIRES. See Baogags; Cabbiagb on* Mbbchahsise ; Con- TBACwoiis; CoNsTKcroTioisr OP Railways; Ejuneht Dohaih; FiHciis; Insurakce; Sunday Laws. I. Companies not liable except fob NEGLIGENCE. II. Negligence. 1. Presumptions. 2. Dry grass and weeds. 3. Management of engines. 4. Negligence of property owner. III. Statutory liability. IV. Evidence. V. Damages. VI. Lessees and contkactoks. VII. General matters. 302 FIRES. Companies not Liable except for Negligence — Negligence. L COHPAJf lES NOT LIABLE EXCEPT FOE NEGLIGEXCE. 1. Accident. The ignition of combustible substances lying along the track of a railroad, by sparks dropped by a passing engine, is not an unavoidable accident. Flynn v. San Francisco and Ban Jose B. S. Co., 40 Cal., 14. 1870. 2. Negligence. A railway company is only responsible for damages occasioned by fires set out through negligence. Jefferies v. Philadelphia, Wilmington and Baltimore B. R. Co., 3 Houston, Pel.), 417. 1866. 3. — To rendnr a railway company liable for the burning of a house, it must appear that such fire originated through the neg- lect of the company or its employes. Such company has the right to pile up wood at its stations for its use. Macon and Western B. B. Co. v. McConndl, 31 Ga., 133. 1860. 4. — The care which a railroad company must exercise, in the running of its trains so as not to injure property situated near its track, is not contingent upon such circumstances as the force and direction of the wind, the dryness of the weather or the combustible nature of the property liable to be afiected. The company not being in fault as to the quality or character of its equipments, the special risks incident to proximity to railroads must be borne by those who es- tablish themselves in such localities. Mi(M- gan Central B. B. Co., u. Anderson, 28 Mich., 244. 1870. 5. — Where a corporation was incorporated by the legislature with power to construct a railroad, and to hold lands, engines, cars and other things necessary for its use; and while a locomotive belonging to this company, draw- ing a train of cars, was passing on the rail- road, some sparks from the smokepipe passed directly therefrom to the roof of a building of the plaintifi standing 18 inches from the side and 26 feet from the middle, of the road, whereby the building, without any negligence on the part of the company, was set on fire and consumed; in an action on the case against the company for this injury, it was held, that the defendant was not liable. Bur- rouglii D. Housatonie B. B. Co., 15 Oonn., 124. 1842. IL Negligence. 1. Presumption. 6. Negligence. The burden of proving that the engine was properly guarded in re- spect to fire is upon the company, it having been shown that a fire was set out by 'such en- gine. Bt. Louis, Alton and Terre Havte B. B. Co., B. MorUgmrnm-y, 39 111., 335, 1866 ; Case v. Nortliem Central B. B. Co., 59 Barbour, (N. Y.), 644. 1871. 7. — The escape of fire from a locomotive raises a presumption of negligence against the railway company. Illinois Central B. B. Co. v. Mills, 42 111, 407, 1866; Chicago and Al- ton B. B. Co. v. Quaintance, 58 111., 389, 1871 ; Clemens v. Hannibal and Bt. Joseph B. B. Co., 53 Mo., 366, 1873; Ullis v. Portsmouth and Boanoake B. B. Co., 2 Iredell's Law, (N. C.) 138, 1841; Clevelands v. Grand Trunk B. B. Co., 42 Vt, 449, 1869; Bedford v. Hannibal and St. Joseph B. B. Co., 46 Mo., 456, 1870; BpaiO- ding v. Chicago and Northwestern B. B. Co., 30 Wis, 110. 1872. 8. — The highest and clearest evidence is not required to rebut the presumption of neg- ligence raised by the escape of fire. Spaul- ding o. Chicago and Northwestern B. B. Co., 30 Wis., 110. 1872. 9. — The mere fact that a fire has been oc- casioned by sparks from its engine does not make a prima, facie case against a railway com- pany. The negligence of the company must either be shown directly or by circumstances. Gandy «. Chicago and Northwestern B. B. Co., 30 Iowa, 420, 1870; MeCummons v. Same, 33 ib., 187. 1871. 10. — In an action for damages against a. railroad company for negligently managing •its engines, so that fire was communicated to the standing grass and crops of the plaintiff, the burden of proof is upon the plaintiff, to show that the fire was caused by tlie negli- gence or want of care of the defendant. There is no legal presumption of negligence in such cases ; it must be shown as a matter of fact Bmithn. Hannibal and St. Joseph B. B. Co.. 37 Mo., 287. 1866. 11. — If fire is communicated from an en- gine to property near the track by reason of a failure to use proper preventives, or by the carelessness of employes, the company is lia- FIRES. 303 Negligence. ble for the consequences ; but .negligence in either respect should not be inferred without proof, the burdeu of which rests on tlie party alleging it. Indicmapolis and Cincinnati E. B. Co. V. Pa/ramore, 31 Ind., 143, 1869 ; Same V. Bta/rh, ib., 149. 2. Dry grass and vjeeds, 12. On railway lands. For a railway company to allow dry grass, weeds and other combustible matter, which are the natural ac- cumulations of the soil, to remain in its right of way, is not negligence ^erse; and the com- pany would not be guilty of negligence and liable for losses resulting from fire occasioned by sparks, emitted from its engine, igniting such accumulations, unless such accumula- tions were such as would not have been per- mitted by a cautious or ordinarily prudent man on his own premises, if exposed to the fiame hazard. Kesee v. Chicago and 2forth- westem R. E. Co , 30 Iowa,' 78. 1870. 13. — While the owner of land has the right to stack his grain or liay on premises adjacent to a railway, and thereby only takes the risk of accident by fire not occasioned by the company's negligence, yet if he is guilty of negligence himself in not plowing around the stacks, or in omitting to do such acts as would have protected the property and pre- vented the loss, this would be a case of con- tributory negligence, and he would not be permitted to recover against the company al- though it were also guilty of negligence in permitting an accumulation of dry grass and weeds along its track, in which tlie fire was ignited by sparks from the engine of a passing train. Ib. 14. — Persons occupying farms along rail- roads are entitled to cultivate and use them in the manner customary among farmers, and may recover for damages by fire caused by the negligence of the railway company, al- though they have not ploughed up the stubble or taken any other unusual means to guard against such negligence. Kellogg «. Chicago and Northwestern E. E. Co., 36 Wis., 233. 1870. 15. — In the exercise of his lawful rights, every person has the right to presume that every other will perform bis duty and obey the law, and it is not negligence for him to assume that he is not exposed to danger which can only come to him through a disregard of law on the part of some other person. Ib. 16. — Where sparks from defendant's en- gine set fire to dry grass, weeds-and bushes, suflTered to remain and accumulate on land used for the railway, and the fire, spi'eading upon plaintiff's lands, destroyed his property, the question whether defendant was negligent in leaving its land in that condition, was properly left to the jury. Kellogg o. Chicago and Northwestern E. E. Co., 20 Wis., 223. 1870. 17. — It was not error, as against defendant, to submit to the jury the question whether plaintiff was also negligent in not ploughing a strip to prevent the spread of fire. Ib. 18. — The. fact that the fire passed through intervening fields and destroyed plaintiff's property does not render the damages remote. Ib. 19. — The fact that the fire would not have spread but for the dry weather and strong wind does not affect defendant's liability. Ib. 20. — The drouth and high wind are ordi- nary and not extraordinary circumstances. Ib. 21. — It is negligence in a railroad com- pany, to permit vegetation to grow upon its right of way, to such an extent that cattle may be concealed from view. Bass v. Chicago, Burlington and Quincy E. B. Co., 28 111., 9, 1862; see Illinois Central B. E. Co. «. Frdzi&r, 47 ib., 505. 1868. 22. It is not negligence ^er se for a railway company to permit standing grass and weeds to remain on its right of way. Kansas Pa- cijic E. B. Go. v. Butts, 7 Kans. 308. 1871. 23. — At a time of continued and extreme drouth, while a strong wind was blowing from the land of tlie defendant toward the adjoining wood land of the plaintiff, coals were negli- gently dropped from one of the defendant's engines, which set fire to a tie ; the fire was communicated to an accumulation of weeds and grass and rubbish which defendant had suffered to gather by the side of its track; thence it spread to the fence and on plaint- iff's woodland, burning and destroying his forest trees, etc : 7ield, that these facts were sufficient to sustain a verdict in favor of the plaintiff for damages. Webb v. Borne, Water- town and Ogdensburgh B. E. Co., 49 N. Y., 420. 1873. 304 FIRES. Negligence. 24. — In an action for damages caused by a fire which spread from the grass and weeds on the right of way of a railway company, where the evidence shows that there had been no suitable time to remove the grass and other combustible materia] by burning, it being con- ceded that there was no other way to remove it, it was held that the court ought not to have refused an instruction "that the defendant was not bound to bum the dry vegetation on any portion of its way, where, by i-eason of the directicm and force of the wind, or other attendant circumstances, doing so would en- danger its own property or that of others." Spaulding v. Ghicago and Northweatern B. B. Co., 30 Wis., 110. 1872. 25. On adjoining lands. It is not negli- gence, in a legal sense, for a farmer to leave grass and stubble standing on his pasture and grain field, along side of which, and separ- ated therefrom by a fence, a railroad passes. Flynn D. San Francisco and San Joii B. B. Co., 40 Cal., 14. 1870. 26. — Negligence of the plaintiff to release the defendant from liability must be the prox- imate cause of the injury; and the negligence of a railway company in leaving dry grass and weeds upon its right of way, whereby a fire was communicated to the field of the plaintiff, was the proximate cause of the in- jury. Jb. 27. — Wliere the conduct of defendant's agents was the immediate and proximate cause of the injury, it is no defense that the plaintiff was guilty of remote negligence in leaving grass in the fence corners adjacent to the road, whereby the fire was kindled. Fitch v. Pa- cific B. B. Co., 45 Mo., 322. 1870. 28. — The damages are not too remote where the property consumed was separated from the track by a strip of ground forty or fifty yards wide, where the plat was covered witli dry grass and other combustible matter. Clem- ens V. Hannibal and St. Joseph B. B. Co., 53 Mo., 366. 1873. 29. — In case of fire communicate! because of dry grass and weeds accumulating upon the right of way, the question of comparative negligence on the part of the plaintiff and the company, in respect to the accumulation of such combustible material, is a question of fact properly left to the jury. Illinois Central B. B. Co. V. Nunn, 51 111., 78. 1869. 3. Management of engines. 30. Acts of negligence. The use of wood in a coal burning engine, in a dry time, with a high wind prevailing is negligence. Chi- cago and Alton B. B. Go. n. Quaintance, 58 111., 389. 1871. 31. — Negligence, either in running a train through a city at an unlawful rate of speed, or in opening grates and flues about the boiler in a careless manner, thereby allowing cin- ders to be thrown upon plaintiff's premises in said city, would be a sufficient ground of re- covery for injuries to property by fire thus caused. Martin v. Western Union B. B. Co., 23 Wis., 437. 1868. 32. — Proof of negligence in one of these particulars was held sufficient where both were alleged. lb. 33. Defective locomotives. The grant of a franchise to operate a railroad does not con- fer the right to use upon it locomotives so constructed as to throw out burning coals that may set fire to buildings along the line. But the road must be operated with engines so constructed as to cause the least danger. King v. Morris and Essex B. B. Co., 3 C. E. Green's Ch. (N. J.), 397. 1867. 34. — The use of ordinary fuel to make steam in engines is legal; the limit on its uue is that the latest improvements in its man- agement in practical use should be applied to it. Lackawanna and Bloomsburg B. B. Co. v. Doak, 52 Penn. St., 379. 1866. 35. — It is the duty of thecompany to use such precaution as might reasonably prevent damages to othsis, and a failure to do so is negligence. lb. 36. — A building near a railway was found to be on fire, whilst a train, drawn by an en- gine without a " spark catcher," was passing; there was no direct evidence that sparks had come from the engine. Seld, that it was proper for the court to submit the question of negligence to the jury. lb. 37. — The fact of the use of a locomotive without a screen over the smoke stack is suf- ficient evidence of negligence to go to the jury in an action for damages caused by a fire originating from such engine. Seddl v. Long Island B. B. Co., 44 N. Y., 367. 1871. 38. Degree of care required. The emis- sion of sparks from the slack of a locomotive FIRES. 305 Negligence. is not in itself illegal, and the loss of property adjacent to the road from the sparks, apart from misuse, is damnum absque injuria. FranJeford and Bristol Turnpike Co. v. PMla- delphia and Trenton B. R. Co., 54 Penn. St., 345. 1867. 39. — It is the duly of railroad companies, running their engines close to buildings, to use the utmost vigilance and foresight to avoid injuiy. Jb. 40. — Every known safeguard should ho adopted, and every approved invention from time to time should be used, to lessen the danger. lb. 41. — The best precautions in use should be adopted. lb. 42. — It was held not to be error to charge, that " if the defendants used ordinary skill in procuring a good and safe sparkcatcher, such as are most in use in the country, and ap- proved by experienced railroad operators and mechanics, they would not be required to use any other or greater care or skill in respect to the spark catcher used by them." lb. 43. — The evidence of the practice and common use of a stack by many others in the same business, is admissible on the question of the safety of the stack. lb. 44. — The duty of the company was per- formed, if the construction of the stack was that which was best adapted to the purposes in known practical use. lb. 45. — A railroad company running an en- gine through a village where wooden build- ings are so near the track as to be exposed to fire from the sparks, is bound to a higher de- gree of care than when running in the open country. Fero v. Bufalo and State Line B. B. Go., 23 N. Y., 309. 1860. 46. — Under such circumstances, and after the law had been stated in effect as above, an instruction to the jury that the plaintiff could not recover if the engine was in good order, of proper construction, and used with ordi- nary care, was properly refused. lb. 47. — When the exposure of the buildings is increased by reason of a wind blowing to- wards them from the engine, which is standing at rest upon the track, the corporation is re- sponsible for the utmost vigilance and care. lb. 48. — By reanonable care and diligence is meant, having engines properly constructed, in gpod order, with suitable fixtures for pre- 20 venting injuries by fire; the sparkcatchers, such as are known to the company to have been used and approved of, and best calcu- lated to prevent the emission of sparks, while allowing snfBciont draft to create steam enough to propel the engine at proper speed ; and such care and diligence in using the loco- motive upon the road, as would be exercised by skillful, prudent, and discreet persons, having control of the engine, regarding their duty to the company, and having a proper de- sire to avoid injuring property along the road. Baltimore and Susquehanna B. B. Co. v. Wood- ruff, 4 Md., 243. 1853. 49. — A railway company is responsible for fires caused by the careless emission of sparks in the running of its engines. Huyett v. Philadelphia and Beading B. B. Co., 23 Penn. St., 373. 1854. hO. — It is the settled law of America that railway companies are responsible for flres caused by the negligent construction or management of their engines. Spa/ulding v. Chicago and Northwestern B. B. Co., 30 Wis., 110. 1873. 51. — A railway company is liable for dam- ages resulting from fire communicated from 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 contrivances in use for the preven- tion of the spread of fire. Jadcsmi v. Chicago and Northwestern B. B. Co., 31 Iowa, 176, 1870 ; Spaulding v. Chicago and Northwestern B. B. Co., 30 Wis., 110, 1873; Kansas Pacific B. B. Co. V. Butts, 7 Kans., 308, 1871 ; St. Louis, Alton and Terre Haute B. B. Co. ■». Gilhdm, 39 III., 455, 1866 ; Bood v. New York and Erie B. B. Co., 18 Barbour (K. Y.), 80, 1854. 52. — An engine, which throws sparks into a meadow one hundred feet from the track, is not provided with proper appliances for arrest- ing its sparks. Lllinois Central B. B. Co. v. McClelland, 42 111., 355. 1866. 53. Evidence. If in au action against a railroad company to recover damages for the destruction of property by fire communicated by a locomotive, it is relied upon as a ground of defense that no burning sparks could reach so far as to set fire to the property, evidence is competent to show that the same engine using similar fuel, has emitted burning spairks which have fallen at as great a distance ; and 306 FIRES. Negligence. if evidence has been introduced in defense to show that other similar engines upon other roads did not emit sparks that would set Are to buildings, evidence is competent in reply to show that such engines upon one of said roads have emitted sparks which set fire to objects. Ross i. Boston and Worcester B. B. Co., 6 Allen (Mass.), 87. 1863. 54. — The jury may infer negligence from the fact that fire has been scattered along by an engine, where there is no other explanation of the cause. To rebut that inference, the rail- way company should show the use of the best machineiy and contrivances to prevent fire in that particular case, and that competent servants were employed. Fitch v. Pacific B. ij. Co., 45 Mo., 322. 1870. 55. — The fact that fire vras communicated from the defendant's engine to the plaintiff's grain, with proof that this result was not probable, from the ordinary working of the engine, is prima facie proof of negligence sufficent to go to the jury. In such case, the finding of the jury will not be reviewed. .SuU V. Sacramento Valley B. B. Co., 14 Cal., 388. 1859. 56. — Where a house was set on flre by sparks from an engine on a dry and windy day, and it appears from the evidence that sparks flew to a great distance from defendant's engines and also set fire to several fields and fences near the same time and place, it was for the jury to say whether this was sufiicient evidence of carelessness. Huyett v. Philadel- phia and Beading B. B. Co., 23 Penn., St., 373. 1854. 57. — The plaintiffs claimed, and their evidence tended to prove, that the fire by which their property was destroyed, originat- ed by flre communicated by the engines of the defendant. The defendant gave evidence to show that its engines were not permitted to i-un when not in good condition, or when defective in the fire pans, dampers, screen, or smoke stack, which are the only places where flre can escape. The plaintiflTs then gave evidence, without objection, tending to show that engines in suitable repair and of proper construction would not scatter fire so as to endanger property. Held, that it was proper for plaintiffs to show that, at or about that time, defendant's engines generally and habit- ually scattered fire in the vicinity of said property. Clewcelands v. Grand Trunk B. B. Co., 43 Vt., 449. 1869. 58. Negligence a qnestion of law. When the facts are agreed, what constitutes negli- gence is a question of law, and this court can determine what is shown in the facts as readily and as fully as the district court. Kansas Pacific B. B. Co., v. Butts, 7 Kans., 309. 1871. 59. Excessive nse of steam. If it appears that there was employed a greater amount of steam than was necessary on the engine, by reason of which an undue quantity of sparks was emitted, that will constitute negligence on the part of the company, if such unneces- sary employment of the steam caused the destruction of property. Great Western B. B. Co., V. Haworth, 39 111., 346. 1866. 60. Inspection of locomotives. It seems that proof that the engines in use on the rail- road were properly inspected as often as once in two days, and found to be in proper order, would seem to be sufficient, although it does not come down to the very moment that the fire escaped which caused the injury, and show that at that time there was no defect in the engine. Spaulding v. Chicago and North- western B. B. Co., 30 Wis., 110. 1872. 4. Negligence of property mjimer. 61. Comparative negligence. Landown- ers are as much bound, in law, to keep their lands free from an accumulation of dry grass and weeds as railroad companies are; so where a fire is ignited on the company's right of way, and is communicated to fields adjoin- ing, the negligence of such owner will be held to have contributed to the loss. Ohio and, Mississippi B. B. Co., v. SJiantfelt. 47 111., 497. 1868; Illinois Central B. B. Co., v. Frmier, ib., 505 ; Chicago and Northwestern B. B. Co., V. Simonson, 54 ib., 504. 1870. 62. — Unless it appears that the negligence of the company is greater than that of such land owner, the latter cannot recover for injuries thus arising. Ib. 63. — When the owner cf a building ex- poses it to such a degree of danger that it will most probably be destroyed, as when he permits the windows of a warehouse to remain open and unglazed, and other openings in the build- ing to remain unrepaired, so that the flre emit- ted from a passing engine is liable to be blown FIRES. 307 Statutory Liability. into it, lie is guilty of negligence ; and if injury happen, he cannot recover, unless greater negli- gence is shown on the part of the company. Great Western B. JR. Go. t. Haworth, 39 111., 346. 1866. 64. Contributory negligence. The fact that part of a pane of glass was out of the window of plaintiffs house, adjoining defend- ant's road, and tliat the damage was caused by sparks blown through the window from defendant's engine (which was being driven at an unlawful speed), liMd not to be such con- tributory negligence as would prevent a recov- ery. Martin v. Western Union JR. R. Co., 33 Wis., 437. 1868. 65. — In an action against a railroad com- pany 1o recover damages for the destruction of property by Are communicated by a locomo- tive, if the question of the plaintiff's negli- gence involves a consideration of the dryness of the season, the strength and direction of the wind, and the condition of the plaintift's buildings, it is proper to submit it to the jury, under general instructions, to determine whether the plaintiff exercised due care or not; and where 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 railroad and strong, and the plaintiff knew those facts, and left a door of a shed open towards the railroad, and shavings within the shed, or old and dry shingles upon the roof known to him to be such, and either of those things contributed to the fire, it is evidence of negligence on his part, which should pre- clude his recovery." Ross i). Boston and Wo7'- eester R. R. Go., 6 Allen (Mass.), 87. 1863. 66, — Whether the leaving of a door partly open, through which sparks flew — such door being in a part of the house then in course of construction and under the hands of the build- ers — was culpable negligence on the part of the owner or his servants, is a question which may properly be referred to the jury as one of fact. Fero v. Buffalo and State Line R. R. Go., 22 N. Y., 309. 1860. III. Statutory liability. 67. Maine. In an action under R. S., ch. 61, § 31, it was held, that where the plaintiff has an absolute title to the property destroyed, he may recover, although he holds such absolute conveyance as security for a debt. Bean v. Atlantic and St. Lawrence R. R. Go., 58 Me., 83. 1870. 68. — A law providing that railway compa- nies shall be responsible for damages from Are in certain cases will be enforced, and an action may be maintained thereunder, although no form of action has been provided in the statute. (Ch. 9, § 5, acts of 1843.) Stearns v. Atlantic and St. Lawrence R. R. Go., 46 Me., 95. 1858. 69. — Suit may be brought under the statute without demand or notice. lb. 70. — The defendant corporation is liable, al- though it may have leased its road to another company which controlled and managed the same. lb: 71. — It is necessary to allege that the engine causing the fire was in the use of the defend- ant or its lessees. Frye v. Atlantic and St. Lawrence R. R. Go., 47 Me, 538. 1860. 72. — Under ch. 9, § 5, acts of 1842, a rail- way company is not liable for damages done by fire from its engines to cedar posts deposit- ed a few rods from the track, and intended for use in a short time at some other place. Pratt V. Atlantic and St. Lawrence R. R. Go., 43, Me., 579. 1856. 73. — It is liable, however, for damages to growing timber. lb. 74. — The language " along the route," used in the statute, applies to buildings near enough to be exposed to danger from fires from the engines. lb. 75. — The said statute is remedial, and ap- plies to corporations in existence before its passage. lb. 76. — By § 5, ch. 9, Laws of 1843, railway companies are liable for injuries by fire com- municated by their locomotives, and may effect insurance in their own behalf on the property exposed to such danger. Said stat ute applies only to permanent property. Ghap- man v. Atlantic and St. Lawrence B. R. Go., 37 Me., 93. 1853. 77. — For injuries thus occasioned to other property, they are only responsible in case of negligence, unskillfulness or imprudence on their part. Lb. 78. Maryland. Under the act of 1838, the burden of proof is upon the railway company to show that it was not negligent in permit- ting fire to escape. Baltimore and Susquehamna R. R. Go., V. Woodruff, 4 Md., 343. 1853. 808 FIRES. Evidence. 79. — The statute rendermg railway com- panies responsible for fires in certain cases, applies where the fire was occasioned by coals and cinders being thrown from the engine by the servants of the company. The burden of proof in snch case is npon the company. Baltimore and Ohio R. R. Go. v. Dorsey, 37 Md., 19. 1872. 80. Massachusetts. The statute of 1840, ch. 85, making the proprietors of railroads responsible for injuries by fire communicated from their locomotive engines, applies to rail- roads established before as well as since its passage ; and extends as well to estates, a part of which is conveyed by the owner, as to those of which a part is taken by authority of law, for the purpose of a railroad. Lyman v. Bos- ton and Worcenter B.R. Co., 4 Gushing, (Mass.), 288. 1849. 81. — The statutes of 1840, ch. 85, holding railway companies liable for injuries occa- sioned by fires escaping from their engines, applies to personal property. Boss v. Boston and Worcester B. B. Co., 5 Allen (Mass.), 87. 1863. 82. — A shop, adjoining a railroad track, was destroyed by fire communicated by a locomotive engine of a railroad company; and while the shop was burning, the wind wafted sparks from It, across a street, sixty feet, upon a house, and set it on fire, whereby it was injured : Held, that the owner of the house was entitled to recover of the railroad corporation the damages caused by the fire, under St. 1840, ch. 85, § 1, which provides that when any injury is done to a building of any person " by fire communicated " by a locomo- tive engine of a railroad corporation, the said corporation shall be responsible, in damages, to the person so injured. Hart v. Western B. B. Co., 18 Metcalf (Mass.), 99. 1847. 83. — Under the St. of 1840, ch. 85, a rail- road corporation is liable for injuries by fire communicated from one of its locomotive en- gines to machinery, tools, patterns and lum- ber in a building near its road, or to a fence by the side of its track. Trask v. Hartford and New Haven B. B. Co., 16 Gray, (Mass.), 71. 1860. 84. — Under the Gen. Sts., ch. 63, § 101, if a spark from a locomotive engine sets fire to grass near the track, and the fire spreads in a direct line, without any break, across land of several different proprietors, and a highway, to woodland half a mile distant from the rail- road, the railroad company is responsible in damages to the owner of the wood. Perleyv. Eastern B. B. Co., 98 Mass., 414. 1867. 85. — Afire, set by sparks from a locomo- tive engine to wood piled against a freight house at the railroad station in a village, con- sumed the freight house and spread to and in- jured the station house, which was thirty feet distant from the freight house. A dwelling house, about sixteen hundred feet distant from the station house, and seven hundred and forty feet from the track, caught fire from sparks wafted from this conflagration, and was in- jured. Held, that the railroad company was liable for the injury, under the Gen. Sts., ch. 63, § 101. Safford v. Boston and Maine B. B. Co., 103 Mass., 583. 1870. IV. EviDEJSrCE. 86. Memorandum. It is proper to permit the plaintiff, in giving his testimony, to re- fresh his recollection from a memorandum he had made of the articles destroyed by the fire. Chicago and Northwestern B. B. Co. v. McCa- MM, 56 111., 28. 1870. 87. Proof of negligence may come from either side. It is immaterial whether the eni- dence of negligence comes from the plaintiff or defendant. McCready v. South Carolina B. B. Co., 2 Strobhart's Law, (So. Car.), 356. 1847. 88. — Where the fact of damages from the fire of a railroad was established by the party injured, and the manner inwhichthe fire was communicated also appeared, it was held im- material whether the evidence came from the plaintiff or from the defendant, and that it went properly to the jury whose province it was to judge of the fact of negligence. Mc- Cready V. South Carolina B. B. Co., 2 Stro!>- hart's Law, (So. Car.), 356. 1847. 89. Proof of other acts of negligence. In an action for damages resulting from negli- gence in setting out fire, it is not admissible for the plaintiff to prove that fire had !>efore been communicated to the property of other persons on the road by defendant's engine. Baltimore and Susquehanna B. B. Go. v Wood- ruff, 4:'iS.A.,%4S,. 1853. 90. — In an action to recover the value of a building which was burnt, and which is al- FIKES. 309 Damages. leged to have been set on fire by sparks from one of the defendant's engines -which passed shortly before the Are was discovered, and is claimed to have been carelessly managed and unskillftilly constructed, evidence that engines of the company, passing near that place on other occasions, emitted sparks and coals, which fell further from the track than the building in question, is competent Sheldon, V Hudson Bimr B. B. Co., 14 N. Y., 318, 1856 ; reversing Same v. Same, 29 Barbour, 336. 1859. 91. — Upon the question whether fire was communicated to a building by sparks or coals from particular engines upon a specified occa- sion, evidence that sparks, and even coals, were emitted from other engines running on the same road upon other occasions, is incom- petent, unless it be conceded that those other engines were of the same construction, used in the same manner and in the same state of repair. Boyce ». Cheshire B. B. Go., 43 K. H., 97. 1860. 92. — Such evidence will be competent if it be conceded that the other engines arc of the same construction, used in the same man- ner and in the same state of repair. SaoTve v. Same, 43ib.,637. 1863. 93. — A party is not answerable for the reasonable exercise of a right. He is liable for negligence, unskillfulness, or malice. The firing of woods several times by sparks from the engine of a cpmpany is not in itself evi- dence from which negligence in managing the fires can be inferred. Bailroad Go. v. Yei- ger, 8 Penn. St., 366. 1848. 94. Unusual quantity of sparks. Proof of the fact that the engine threw out an unusual quantity of fire was held sufficient to overcome any direct evidence given that it was in good order, or, if in good order, that it was skill- fully managed by the engineer. ' Ghicago and Northwestern B. B. Go. «. McGahill, 56 111., 38. 1870. 95. Wind. In an action on the Gen. Sts., ch. 63, §101, for the injury of the plaintiff's buildings by fire communicated by the loco- motive engine of a railway company, the in- troduction by the plaintiflF of evidence of the direction of the wind at a place five miles dis- tant from the fire does not afibrd the defendant good ground of exception, unless it appears to have misled the jury as to its direction at the time and place of the fire. Pierce v. Worcester and Nashua B. B. Co., 105 Mass., 199. 1870. V. Damages. 96. Interest. Interest from the commence- ment of the action may be allowed on the value of the property destroyed. Ghapman v. Ghicago and Northwestern B. B. Go., 26 Wis., 395. 1870. 97. Owner of property must use due ef- fort to save it. Where the son and servant of the plaintiflf were in a position to have pre- vented any damage from a fire, and made no efforts to do so, the plaintiff cannot recover damages from the company, whose engines were the cause of the fire. Illinois Central B. B. Go. V. McClelland, 43 111., 855. 1866. 98. — Where fire is communicated to a building through the negligence of a railroad company, the owner cannot recover for the loss of such portion of the property as he could, easily and without danger, have saved from destruction. Toledo, Peoria and Warsmo B. B. «. Pindar, 53 111., 447. 1870. 99. Remote damages. Where it appeared that by the escape of sparks from a passing- engine, a building belonging to the railway company was set on fire, and while burning, by means of a high wind, fire was blown across the street and there communicated to the house of the plaintiflf; upon the question whether the injury complained of was nottoo remote to entitle the plaintiff to recover, it was held, to be a question of fact for the jury, under the instructions of the court. lb. 100. — A railway company through negli- gence set fire to a quantity of wood in one of its sheds. The fire consumed the woodshed, and spread to and consumed the house of the plaintiff, situate about one hundred and thirty feet distant from the shed. Held, that no cause of action existed in favor of the plaintiff against the railroad company, by reason of such loss, the damages being too remote. Byan «. Neui York Central B. B. Co., 35 N. Y., 210, 1866; see Field v. Same, 33 ib., 339, 1865; WM JB. Borne, etc., B. B. Co., 3 Lansing (N. Y.), 453. 1870. 101. — An engine set fire to a house by rea- son of the negligence of the employes, the fire from the house communicated to another at some distance from it, "which was consumed with all its contents. Held, that the railroad 310 FIRES. Lessees and Contractors — General Matters. company was not liable for damages done to the last building and its contents. The person committing the first act of negligence is liable for the immediate, not the remote conse- quences. PenntyVeania R. B. Co. v. Kerr, 63 Penn. St., 353. 1869. 102. — If fire is communicated from a lo- comotive to the house of A, and thence to the house of B, it is not a conclusion of law that the fire sent forth by the locomotive is to be regarded as the remote, and not the proximate, cause of the injury to B, but that is a question of fact, to be determined by the jury, under the instructions of the court; but if a high wind should arise, spreading the fire to a great distance, the damage might properly be con- sidered too remote for compensation. Fent v. Toledo, Peoria and Warsaw B. B. Co., 59 111., 349. 1871. 103. — He who by his negligence or mis- conduct creates or suflFers a fire upon his own premises, which, burning his own propertj', spreads thence to the immediately adjacent premises and destroys the property of another, is liable for the damages sustained by him. WM v. Borne, Waterrtown and Ogdensburgli B. B. Co., 49 N. T., 430. 1873. 104. — A fire arising from negligence is not a fire "accidentally begun," within the meaning of the act of Anne (6 Anne, ch. 31, §67), as amended by the act of George III (14 George III, ch. 78, § 76), providing for ex- emption of liability for fires accidentally be- gun. Ih. VI. Lessees a^-d cojstteactoes. 105. Contractors. The maxim respondeai superior is limited by this principle: the re- sponsibility of the master grows out of, is measured by, begins and ends with his control of his servant. CalUlian v. Burlington and Missouri Miner B. B. Co., 23 Iowa, 563. 1867. 106. — In an action against a railway com- pany for damages growing out of the wrong, ful acts of an employ^, the petition alleged that the defendant contracted with W. & Co. for the grading of its road, reserving the right to give directions as to the manner of the per- formance of this work ; W. & Co. sublet the work to F. ; the contract between the defend- ant and W. & Co. required the removal or burning of perishable materials, as the "en- gineer of the company might direct; " that an engineer of the defendant directed F. to burn some rubbish that was on the line of the grad- ing, which F. did, but in so negligent a man- ner that the fire was permitted to escape, and damage was done thereby. Held, that these averments in the petition were Insufficient to justify a recovery against the defendant, as the loss appeared to have been occasioned, not by the burning ordered by the engineer, but by the negligent manner in which it was done. lb. 107. Section 1337, Rcv. 1860, does not ex- tend the liability of railroad companies to the acts of those not their servants. lb. 108. Lessees. Where one railroad corpo- ration operates and controls the railroad of an- other corporation under a lease or a contract which is equivalent to a lease, the lessee cor- poration becomes the proprietor of the leased railroad, by virtue of General Statutes, ch. 145, § 1, and is liable under General Statutes, ch. 148, § 8, for damage accruing by fire or steam from a locomotive by said lessee corporation upon the track of the leased railroad. Pierce V. Concord B. B. Co., 51 N. H., 590. 1873. VIL General matters. 109. Assignment of cause of action. A right of action for negligently setting fire to and burning up grass and fences, and hay stacked, upon a farm, is assignable. Fried v. New York Central R. B. Co., 35 Howard's Pr. (N. T.),385. 1858. HO. Common Law. The statute, 6 Anne, ch.3, § 6, which declares that "no action shall be maintained against any person in whose house or chamber any fire shall accidentally begin," with the construction which makes it include fires caused by negligence, became and is a part of the common law of this coun- try. Spaulding v. Chicago and Northwestern iZ. iJ. Co., 30 Wis., 110. 1873. 111. — But the statute of Geo. Ill, ch. 78, § 86, (enacted in 1774), which declares that " no action shall be maintained against any person in whose house, chamber, stable, barn, or other building, or on whose estate any fire shall accidentally begin," if understood to include fires caused by negligence, has never been received as part of the common law of this country. lb. 112. —Even if the said act were received FIRES. 811 General Matters. as a part of the common law, wliethcr it would apply to flres caused by locomotives, quare ? lb. ] 13. Contract for right of way. Where the owner of land conveyed a strip thereof to a railroad company, for its track, the value of which did not exceed f 60, and received there- for |1,600; it was held, that it might fairly he presumed that in making such conveyance, the grantor must have contemplated the risk of injury to his remaining lands by fire, from engines running on the road. Rood v. New York and Erie B. B. Co., 18 Barbour (N. Y.), 80. 1854. 114. Cord wood piled near railway. Where the owner of a quantity of cord wood deposits the same at a certain place near a railroad track, in accordance with the direc- tion, of an agent of the railroad company, and under an agreement with such agent by which it is to become the property of the railroad company when measured and paid for by the company, but until so measured and paid for, to remain the property of such owner, and while so remaining his propei'ty is consumed by fire originating from a locomotive engine in the use of the company and caused by the negligence of the employes of the company, and these facts are averred in the complaint in a suit by such owner against the company to recover the value of the wood; it is not neces- sary to allege also the destruction of the wood without the fa.ult or negligence of the plaint- ifl'. Indianapolis and Cincinnati B. B. Co. v. Paramore, 31 Ind., 143, 1869 ; Same v. Stark, ib., 149. 115. — The railroad company is not bound to provide a watchman to protect property so placed by the owner, at his own instance, without any contract with the company, in danger of taking flre by unavoidable accident from the engines used by the company. Ib. 116. Cutting off hose. Where a hose was necessarily laid across a railway to obtain water to extinguish a flre, and the railway company knowingly run a train over it and cut it off; the railway crossed another railway at grade a few hundred feet from such hose but the train did not stop at the crossing as required by the statute, it was held, that the severing of the hose was the proximate cause of the destruction of the building, and the railway company was liable. Metallic Casting Company v. FitcJibv/rg B. B. Co., 109 Mass., 377. 1873. 117. — Damages caused by the spreading of a fire in consequence of defendant's negli- gently injuring a hose actually in use in ex- tinguishing it, whereby the supply of water was cut off, are too remote to sustain an ac- tion. Mott ■». Hudson Biver B. B. Co., 1 Rob- ertson (N. Y.), 585, 1863 ; see Sam^ v. Same, 8 Bosworth (N. Y.), 345, 1861. 118. Damages from flre included in esti- mate of damages for right of way. If a jury, in estimating damages for right of way, include compensation for the exposure of the buildings of the. land owner to fire in conse- quence of the neighborhood of the railroad, such compensation will be presumed to be estimated with due allowance for the indem- nity provided by the Gen. Sts., ch. 63, § 101, in event of their injury by flre communicated by locomotive engines of the railroad corpo- ration. Pierce ». Worcester and Nashua B. B. Co., 105 Mass., 199. 1870. 119. — By the charter of the Philadelphia and Beading R. R. Co., the assessment of damages for the right of way included the probable consequences of fire caused by the necessary emission of sparks from the engines of the company. Bailroad Co. v. Teiser, 8 Penn. St., 866. 1848. 120. — The venue and proceedings there- on, with proof of payment of damages, is evidence in an action for damages occasioned by flre to ascertain whether the danger and in- convenience of sparks were considered in estimating the damages. Ib. 121. Failure to extinguish the flre. Where the engine of the defendant's gravel train, on which were a large number of its workmen, set flre to combustibles on the track, which was known to defendant's ser- vants in charge of the train, and the fire spread to plaintiff's property, a failure to stop the train and leave the men to extinguish the flames was negligence, which renders the company liable. Bolke v. Chicago and North- western B. B. Co., 36 Wis., 537. 1870. 122. — It seems that in case of a passenger train a different rule might apply. Ib. 123. Fruit trees. In an action to recover damages for the destruction by fire, of fruit trees, through the negligence of the defend- ant, it is proper for the judge to instruct the 312 FICTITIOUS SUIT— FOBCIBLE ENTRY AND DETAINER. Miscellaneous. jury that the plaintiff is entitled to recover the value of the trees, as they stood upon his land at the time of the fire, if he is entitled to recover at all ; and to refuse to charge that the plaintiff can only recover the diminished value of the land since the destruction of the trees. Whitbeck v. New York Central R. R. Co., 36 Barbour (N. T.), 644. 1862. 124. — The tiTie rule of damages is, the value of the thing destroyed, although it is part of the realty if it has a value which can be accurately measured and ascertained, with- out reference to the value of the soil. li. 125. Joint action. Where two or more persons have a joint interest in the damage caused by the destruction of buildings by fire, through such fault of another as would make him answerable therefor, they may maintain a joint action for the loss, without having jointly the legal title to the buildings de- stroyed. Clecmelands v. Orand Trunk R. R. Co., 43 Vt., 449. 1869. 126. — And it was thus held, where one of the plaintiffs held the legal title to certain realty and the buildings thereon, and had executed to another a bond for a deed for the undivided one-half thereof, lb. 127. Jadgment in bar. A judgment against a railroad company, for damages for the destruction of a building by fire commu- nicated from a locomotive, is a bar to a subse- quent action by the same plaintiff against the same company for damages for the destruction of other buildings by fire communicated from the building first destroyed, although the sub- sequent action is brought and prosecuted for the benefit of an insurance company which has paid to the plaintiff the amoimt of a policy of insurance upon such other buildings. Trask v. HaHford and New Haven R. R. Co., 3 Allen (Mass.), 331. 1861. 128. Nuisance. That a building was erected after a railroad was laid out and con- structed, is no impediment to relief against any nuisance arising from operating the road. King v. Morris and Essex R. R. Co., 3 C. E. Green's Ch. (N. J.), 397. 1867. 129. Warehonses. The owner of a ware- house adjoining a railway track and of goods stored therein, is bound, as against the railway company, only to use what would be ordinary care and prudence to avoid injury to such warehouse and goods by fire from locomotives on the road. Ward and Butt&rfield d. Miheau. kee and St. Paul R. R. Co., 29 Wis., 144. 1871. 130. — In an action for such injury it was error to instruct the jury that plaintiffs could not recover unless their "warehouse was in such condition as very prudent and cautions men would generally keep their property in under like circumstances." lb. 131. — The true question was what care would usually be exercised by men of ordi- nary prudence, in respect to property of the same kind, and similarly situated. lb. 132. Wood yard. When a railroad com- pany has used a piece of ground as a wood yard, for a long time, all persons building contiguous thereto, are bound to know the fact, and of the right of the company to pilo up wood upon any part of the premises, when it suits their interest or convenience to do so. Macon and Western R. R. Co. v, McConnell, 27 6a., 481. 1859. FICTITIOUS SUIT. 1. Such proceeding is a contempt. A court will not take cognizance of a suit which appears to be fictitious. Smith t. Junction R. R. Co., 39 Ind., 546. 1868. 2. — Such a proceeding is a punishable contempt of court, and will be dismissed at the costs of the real party to the action. lb. FLOODS. See Cabriage of Meechahdise. FLYING SWITCH. See Ihjubies to Persons oh the Track. FORCIBLE ENTRY AND DETAINER. 1. Presumption — trespass. In this case, it was presumed that the act of a railway superintendent and employes in taking pos- FOBECLOSURE — FORFEITUEE. 313 Franchise — Misappropriation of Right of Way. session of lands was not a -willful trespass, hut an official act. People ex rel. ■». Nmo YorJc Central B. B. Go., 51 N. Y., 633. 1872. FORECLOSURE. See MoBTQAGE. FOREIGN CORPORATIONS. See Attachmbnt; Fbdesal Cotikts ; Gabnishmbkt; jubisdictiok. 1. New Jersey. A foreign corporation carrying on business in New Jersey, under legislative sanction, is liable for injuries oc- casioned by its acts, upon the same principles and to the same extent that a company incor- porated by the laws of that state would be. Austin V. New York and Erie B. B. Co., 1 But- cher, (N. J.), 381. 1856. 2. New York. A foreign corporation, do- ing business in New Yorls, cannot exempt it- self from liability under the laws of New York by pleading a different rule of law in force in the state in which it Is organized. Milnor ■». New York and New Hmen B. B. Co., 53 N. Y., 363. 1873. 3. Ohio. Under the laws of Ohio, foreign railroad corporations, whose roads lie partly in this state, are accorded the right to own, operate and maintain their roads in Ohio, in the same manner as domestic railroad companies. State ex rel. v. BJierman, 33 Ohio St., 411. 1873. FOREIGN STATUTE. See FLEAsnte. , FORFEITURE. See Chakteb; Constbuotion of Hail ways; Sub- scbiptions bt individuals. 1. Franchise. A railroad company which has built a branch road under authority from the legislature, maintains it in good condition for use, uses it regularly and sufSciently for the transportation of freight, and is ready at all times to transport passengers and draw passenger cars over it whenever any shall be offered to be transported or drawn for a rea- sonable toll or compensation, does not forfeit its franchise by discontinuing, after public notice, the running of regular passenger trains over the branch railroad, when there is not sufficient passenger business at any rate of toll or fare to pay the expense of running them, by reason of tlie establishment, under authority of the legislature, of a competing line for the transportation of passengers over a horse railroad. Commonwealth i>. Fitchburg B. B. Co., 13 Gray, (Mass.), 180. 1858. 2. — Abandonment of route. A railroad company which has completed its road be- tween the termini named in its charter or ar- ticles, forfeits its franchise by abandoning or ceasing to operate a part of its route. Peo- ple V. Albany and Vermont B. B. Co., 34 N. Y., 361, 1863 ; see 8a/me v. Same, 37 Barbour (N. Y.), 316, 1861 ; see Same v. Same, 19 Howard's Pr. (N. Y.), 533, 1860; 30 ib., 353, 1860; 11 Ab- bott's Pr. (N. Y.), 136, 1860; 13 ib., 171. 1860. 3. — Collateral proceeding. In a proceed- ing in chancery against a corporation to set aside conveyances of real estate, alleged to have been obtained by fraud of the company, the fact whether the company ever had a cor- porate existence may be inquired into. Ca- rey V. Cincinnati and Chicago B. B. Co., 5 Iowa, 357. 1857. 4. — But in such collateral proceeding, where the corporation has done no act which per se works a forfeiture or dissolution, or has not surrendered its franchises, the courts of another state cannot inquire whether there have been such irregularities or failure to com- ply with the terms of its charter, or the laws under which it was organized as to work a ' forfeiture of its existence. Ib. 5. — In such case, the forfeiture must be first declared in the state where it was incor- porated. 76. 6. Misappropriation of right of way. The misappropriation by a railroad corporation,, of land taken by right of eminent domain ■ for the location of the railroad, cannot be set up as working a forfeiture of the franchise on a writ of entry brought by the owner of the 314 FORMER ADJUDICATION — FRAUD. Miscellaneous. fee ; but the defendant may maintain the writ to establish his right in the land and recover damages or mesne profits for the unauthorized use of it. Proprietors of Lochs and Canals v. Nashua and, Lowell M. R. Co., 104 Mass., 1. 1870. 7. Waiver of forfeiture. By an act of the legislature recognizing the existence of a cor- poration, all previous acts of forfeiture are waived. State v. Mississippi, Ouachita and Bed Biver B. B. Go., 20 Ark., 495. 1859. FORMER ADJUDICATION. SES iNniBIES TO DOKESTIC AhIHALS. 1. Contract. Upon a plea of former ad- judication, the identity of the present with the former cause of action is a question of fact for the jury, to be determined upon the evidence. Amsden «. Dubuque and Sioux Gity iJ. iJ. Co., 32 la. 1871. 2. — "Where a railway company agreed to put in and maintain a side track and switch, and to regularly run its cars thereon to any warehouse that might be built by plaintiff, for the purpose of receiving and discharging grain, it was held, that the adjudication of an action to recover damages for a refusal by the company to receive a car load of freight, would aot be a bar to an action to recover damages for a subsequent total abandonment of the side track, unless such refusal to receive was intended as a final abandonment, and that the plaintiff knew it when he commenced his 'ormer action. lb. 3. Employes — dismissal. If a servant or igent wrongfully dismissed from service elect o sue for the breach, before the termination )f the period for which he was hired, and re lovers, such recovery will be a bar to any sub- lequent action upon the same contract. Booge I. Pacific B. B. Co., 33 Mo., 212. 1862. 4. Equity. Where it appears that all ma- erial matters in equity between tho same par- ies have been settled and adjudicated in an- ther state, the bill of the complainant will le dismissed. Brown v. Lexington and Ban- ilU B. B. Co., 2 Beasley's Ch. (N. J.), 191. 860. 5. Errors of law in former trial. Where a former suit is set up as a bar to a cause of action, the fact that upon the trial of the prior action evidence was given not wholly irrelevant to the issue therein, and also relat- ing to the transaction upon which the cause of action in suit arose, is not suflScient to bar the claim where it was not within the issues and was not submitted or passed upon in such prior action. Mast New York and Jamaica B. B. Co. V. Elmore, 58 N. Y., 624. 1873. FRANCHISES. See Chabteb; Constitution al Law; Eminent Do- main; Executions; FoKPziTmsB. 1. Special franchise. The fact that a party is a corporation in the exercise of its corpo- rate powers does not tend to establish its right to a special franchise. Sehierhold v. North Beach and Mission B. B. Co., 40 Cal., 447. 1871. 2. Use of track. The use of its track by a railroad company is a franchise, granted by law to such company, in the nature of a con, tract, and as such, inviolable, except under the general power reserved to the state, to alter or repeal the company's chai-ter. Commissioners of Central Pa/rk, In matter of, 63 Barbour (N. Y.), 282. 1872. FRAUD. See Election of Coepobate Officees ; Mostqaoe. 1. Act of legislature. An act of the legis- lature cannot be attacked on the ground of fraud. Oroville and Virginia B. B. Co. v. Plu- mas Co., ST Cal., 354:. 1869. 2. Assignment of executory contract. The defendant, being the president of a rail- way company, together with the secretary of the company, let the contract for the construc- tion of the road to certain contractors, and then immediately became the assignee of a part of the contract. The contract was after- wards approved by the board of directors, but there was no evidence that they knew of the assignment. The contractors were to be paid. FRAUD. 315 Conveyances — Possession. in the bonds of the company, and the bonds were placed in the defendant's hands for that purpose. He refused to surrender them. Held, that had the assignment been valid as to the contractor, yet being wholly unperformed at the time, and made without the knowledge of the company, the defendant had no right to interfere aa between the company and the contractor. That the assignee must look to his assignor and not to the company. That the whdle transaction between the president and secretary and the contractor was fraud- ulent and void as to the company. That it was immaterial whether there was fraud in fact or injury to the company; that the agents of the corporation could not be permitted to place themselves in a situation where it was to their interest to let the contract to the highest bidder. Flint and Fere Marquette S. a. Co. V. Demey, 14 Mich., 478. 1866. 3. Conveyances. A conveyance made with intent to defraud the creditors of the grantor is void as to third parties, if without consid- eration to an innocent grantee. New York and Hmlem R. B. Go. v. Kyle, 5 Bosworth (N. Y.), 587. 1859. 4. — A conveyance , of real estate obtained by fraud will, in equity, be treated as if it had never been made. Carey v. Cincinnati and ChieagoS. JR. Co., 5 la., 351. 1857. 5. — The fraudulent vendee is merely the trustee of the vendor. lb. 6. — A sale, though fraudulent and void as to the creditors of the vendor, is good as to other persons. La Crosse and Milwaukee B. B. Co. 1). Seeger, 4 Wis., 268. 1855. 7. — A judgment creditor cannot treat a conveyance of the debtor as a nullity and seize the property so conveyed in the hands of a third person. His remedy is by an action to annul the conveyance. Brummond v. Com'rs of Clinton and Port Hudson B. B. Co., 7 Kob- inson (La.), 334. 1844. 8. Equity. Although there must be some- thing special in a case of fraud, and in a case of combination or confederacy, to make either an independent ground. of chancery jurisdiction, yet a combination to defraud, will, in general, be relieved against in equity. Story V. Norwich and Worcester B. B. Co., 24 Conn., 94. 1855. 9. Evidence. In an action to recover the price of timber and lumber sold and delivered by the plaintiff to the defendant, and which the plaintiff had previously purchased of S. & W., the defendant offered to show that the sale to the plaintiff, by S. & W., was made for the purpose of defrauding the creditors of S. & W. ; that H. & F. were their creditors, at the time of such sstle ; and that they had duly attached, in the hands of the defendant, the money due for such timber and lumber, in an action brought against S. & W., and had re- covered judgment and issued an execution against them, to the sheriff, who in virtue thereof and of said attachment and levy, had demanded of the defendant the money so due for the timber and lumber, and the defendant had paid it over to the sheriff, in satisfaction of the judgment and execution. Held, that this evidence was properly excluded, as being immaterial, and constituting no valid defense to the action ; the defendant having no stand- ing in court which would enable it to litigate the question of fraud in the sale from S. & W- to the plaintiff. Cam,pbell d. Erie B. B. Co., 46 Barbour (N. Y.), 540. 1866. 10. Invoice. The facts in a particular case with relation to the delivery of goods and the payment to an unauthorized person upon a pretended invoice — considered. McGtoldirick V. Willits, 52 N. Y., 612. 1873. 11. OiBcers of corporation. Where a bill in chancery alleges that a corporation made false representations, it will not be presumed that those through whom the corporation acted, exceeded their authority. Carey v. Cin- cinnati and Chicago B. B. Co., 5 la., 357 1857. 12. Possession: evidence. Where it has been proven that the defendant obtained and had possession of certain slaves illegally, and was the last person seen in possession of them, they will be presumed , to be still in his pos- session, and, the burden of proof is on him to show that he has parted with the possession Brummond v. Com'rs. of Clinton and Port Hud- son B. B. Co., 7 Bobinson (La.), 284. 1844. 13. — By the law of Virginia the retention of the possession of personal property by the -ven- AoT, is prima facie evidence of fraud. Balti- more and Ohio B. B. Co., i). Hoge, 34 Penn. St., 214. 1859. 14. — Circumstantial evidence may be given ' in case of alleged fraud, to show that a receipt, purporting to be given for one purpose, was 316 FRAUDS, STATUTE OF — GARNISHMENT. Miscellaneous. merely intended as a cover to a conditional aale. lb. 15. — Where a, prima facie case of fraud is made out, the sufficiency of evidence to rebut it is exclusively the province of the jury. lb. 16. Railroad stock. The question of fraud discussed with reference to the sale of certain railway stock. Tates v. Alden, 41 Barbour (N. T.), 172. 1863. 17. Receiver. In equity, upon a hearing on the merits, the court were equally divided on the question whether the bill should be dismissed. Seld, that no judgment could be entered, that the cause remained pending, and that receivers who had been appointed to hold the property during the pendency of the suit, would remain in possession. Northern S. B. Co. D. Concord R. R. Co., 50 N. H., 166. 1870. 18. Sale of personal property. When the defendants having bought certain railroad cars, paid for them and received them in their possession, and the seller afterwards induces the plaintiflfs to pay him for the same cars, upon the fraudulent representation that he has delivered them to their agent, the plaint- iffs must bear the loss. Ohio and Mississippi R. B. Co., v. Kasson, 37 N. Y., 218. 1867. 19. Transfer of a railway. The Northern R. R. Co., brought a bill in equity against the Concord R. R. Co., to enforce a contract made by a former board of directors of the Concord R. R. Co., substantially transferring the man- agement of the Concord railroad to the Northern R. R. Co., for the term of five years. Upon the evidence, a majority of the court found that the controlling purpose of the directors of the Concord R. R. Co., in making the contract, was to prevent the management of the road from passing into the hands of a new board of directors, whose election at the next annual meeting was generally anticipa- ted ; and that this purpose was known to the Northern R. R. Co. On this stale of facts, a majority of the court Jield, that the contract was invalid because of the purpose for which it was made. Northern B. R. Co., v. Concord R. R. Co., 50 N. H., 166. 1870. FRAUDS, STATUTE OF. See Statutz of Fbacss. FREE PASSES. Sec Baggace. Innrsr to Fassescebs. FREEZING OF FRUITS. See Cabbiags ot M£BcsAin>isK. FREIGHTS See Casbiage or Lite Stock: Carbiage of M^d. CHAXSISE. FREIGHT TRAINS. See Cabbiage of Live Stock; Cabblage op Mbb- chakdise; Isjubtes to Fassekgbbs. FRIGHTENED TEAMS. See IsjDBiBs to Febsoss os the Teaok. FUND IN COURT. 1. Distribntion. Where there is a fund in court to be distributed among different claim- ants, a decree of distribution will not pre- clude a claimant, not embraced in its provis- ions; but, having rights similar to those of other claimants, who are thus embraced, from asserting by bill, previous to the distribution, his right to the share in the fund. Moward, In the matter of, 9 Wallace, 175. 1869. GARNISHMENT. See' UCBTOAGE. 1. Answer of garnishee. When a corpo- ration is proceeded against as garnishee, its answer is to be received in the only mode in which a corporation can answer, under its GARNISHMENT. 817 Appeal — Books of Corporation. corporate seal. Baltimore and, Ohio B. B. Oo., c. Gallahue, 13 Grattan (Va.), 655. 1855. 2. — If a corporation is made a garnishee, it may answer by its proper officer, but the answer must be sworn to. Oliver v. Chicago and Aurora B. B. Co., 17 111., 587. 1856. 3. — The answer of a garnishee must stand, whether it be a denial or an affirmation of new matter, until evidence is produced tend- ing to overthrow it, Bolton v. South Pacific B. B. Co., 50 Mo., 151. 1873. 4. — A garnishee answering that he has the property of the defendant in his hands may be permitted afterwards to show that a prior attachment had been levied thereon, Eustis, J. dissenting. Bobeson v. Mississippi and Alabama B. B. Co., 13 La. (O. S.), 465. 1838. 3. — "Where a commissioner is appointed by the court to take the disclosure of a trustee, the course iDursued should conform, as near as may be, to that adopted by the court. The trustee may liave counsel to aid him in mak- ing his disclosure. His answers to the inter- rogatories may be drawn by the commissioner if the trustee desires it, or they may be drawn by himself, or by some one whom he may re- quest to do it for him. They may be drawn in the presence of the commissioner, or in some near and convenient place, at the option of the trustee; and they should be made as soon as may be. The trustee should person- ally appear before the commissioner at the time and place specified in the notice served upon him. Boston and Maine B. B. Go. v. Salmon Fails Bank, 27 N. H., 455. 1853. 6. Appeal. Plaintiff obtained a judgment in solido against A., B. and C. A. appealed, and the judgment was reversed. But pending the appeal, plaintiff issued an execution against B., and garnished A., who answered that he had funds of B., but if the judgment already rendered against him in the suit should be maintained on appeal, then he would owe B. a balance, which would depend on the amount of the interest and costs due on such judgment. Seld, that the garnishee was liable upon the answers. That the sus- pension appeal did not prevent the plaintiff from exercising his right of garnishment against A., who had taken it. Baker v. Nevo Orleans, Opelousas and Great Western B.B. Co., 10 La. An., 110. 1855. 7. — On appeal from an order making a rule absolute, requiring garnishees to pay money and effects over to the sheriff: held, that no answer to the rule is required. The liability of the garnishees is to be tested from their answers. Oakey v. Mississippi and Ala- bama B. B. Co., 18 La. (O. S.), 567. 1888. 8. Assignment. In an execution attach- ment, the defendant having admitted the debt and suggested an assignment of it, the assign- ees were summoned, who asserted their claim against the attachment. Held, that the case was in fact an interpleader, the issue of which the defendant was bound to await before pay^ ing the money ; and that he had not been in fault in not paying the money into court, where he had been ruled to do so by the as- signee. Irwin V. Pittsburgh and Gonnellsville B. B. Co., 43 Penn. St., 488. 1863. 9. — An assignment by the party to his attorneys of the report of referees, to secure advances and counsel fees, leaves the assignor the owner of the residue, and , his interest is liable to attachment. Mthian v. Mew York and Erie B. B. Co., 81 Penn. St., 114. 1857. 10. Attachment. Property under attach- ment by garnishee process at the suit of one creditor, cannot be attached specially by an- other creditor. Kendrriek r. B. and New York Central B. B. Co., 3 K. I., 335. 1855. 11. Bills and notes. A person indebted by a note not negotiable, or not assignable by the law merchant, may be made liable as a garnishee, after the note has become due and before it is assigned, but not, as a general rule, before it becomes due, nor after lie has had notice of its assignment, if he rely upon such notice in his answer. Junction B. B. Go. V. CUneay, 13 Ind., 161. 1850. 12. — The judgment rendered against him as a garnishee, will bar a subsequent action by an assignee who had not given notice of the assignment prior to such judgment. lb. 13. — In the case of commercial paper, before a judgment can be rendered against a garnishee defendant, the plaintiff must show that the paper has matured, and that at the time o.f maturity it was held by the attach- ment defendant, or that it was not in the hands of a bona fi^ds holder. Cleneay v. Junc- tion B. B. Co., 36 Ind., 375. 1860. 14. Books of corporation. A railway cor- poration, in making a disclosure by its agent under a trustee process, is not contluded by 318 GARNISHMENT. Burden of Proof — Costs. the entries upon its books. Such entries may be explained. Bigelow v. York and Cumber- land S.B.Co., 37 Me., 320, 1858; Jojm «. Same. lb. 1 5. Burden of proof. The burden of proof is on the party seeking to subject a railroad company to liabilily as garnishee in a suit against a contractor, to show facts which would have enabled the contractor himself to maintain a suit against the company. Beagan «•. Pacific B. B. Co., 31 Mo., 30. 1855. 16. Connecting railways. The consignee of goods transported over two connecting rail- roads is not liable as trustee in foreign attach- ment of the railroad company from which he receives the goods, for freight upon the first road, although it is the custom of the two com- panies for the one first receiving the goods to charge freight to the other upon delivery to it, and of the latter to collect the whole freight from the consignee. QoyM v. Newbwyport B. B. Co., 14 Gray (Mass.), 472. 1860. 17. Contingent liability. A party sum- moned as a trustee, while it is contingent whether he will be indebted to the principal defendant, will be discharged. WiUiam.t v. Androscoggin and Kennebec B. B. Co., 36 Me., 201. 1853. 18. — The changing of such contingency into an absolute indebtedness ofiler the service upon the trustee, though btfore the judgment, will have no eflFect to render the trustee charge- able, lb. 19. Contract. Garnishment cannot have the effect of changing the nature of a contract between the garnishee and the defendant, or of preventing the garnishee from performing a contract with a third person: any other doc- trine would lead to mischievous results. BaU tiTnore and Ohio B. B. Co. v. Wheeler, 18 Md., 372. 1862. 20. — A contract anterior to an attachment, horiafide, and for good consideration, betiveen two railroad companies,whose roads connected and a system of through fare and freight estab- lished, that each should receive and advance for the other, the balances between them to be settled monthly, controls the attachment, and such contract may be implied or inferred, by or from a course of mutual dealing. lb. 21. — A corporation was summoned as a trustee in a suit against A. The company had contracted to pay A. a certain sum for con- struction of a road, and |29,000of the sum was to be used in payment of land damages. The whole $29,000 had been charged up to A. on the coinpany's books. Held, that the company could only take credit for so much thereof as had been actually paid. Harris u. Somerset and Kennebec B. B. Co., 47 Me., 298. 1850. 22. — Where a railway company was gar- nished as the debtor of one of its contractors, by service on its chief engineer, made July 7, 1854, who answered for the company, setting up the contract between the company and the contractor, which contained the following provisions: "It is further agreed, that as the work progresses, monthly estimates shall be made by the chief engineer, of the work done, and on the presentation of such estimates, cer- tified by such engineer, the company will pay the amount of such estimates, less such sum, not exceeding twenty-five per cent, as said en- gineer may recommend to be retained as se- curity for the faithful completion of this con- tract,' • etc. '-And lastly, it is mutually agreed, that the contractors shall at any time, when required, furnish the engineer with satisfac- tory evidence that the men employed on the above work have been paid, and that if they shall fail to furnish evidence within twenty days, after the first of the month, that all labor on this contract for the preceding month has been paid, then the engineer may, at his dis- cretion, claim and receive from the company any money due or becoming due to the con- tractors;" and the contract further provided that in no event should the company be held for the debt of the contractors ; and where the answer further stated that all moneys due the contractors at the time of the garnishment had been subsequently paid out to the laborers by the company, the contractor having ab- sconded a few days previous to the garnish- ment. Held, that the contractors could not sue the company until they had furnished satis- factory evidence of the payment of the labor- ers, and that the engineer held the money for the laborers, and that the plaintiff could not recover against the garnishee. Taylor v. Bur- lington and Missouri B. B. Co., 5 la., 114. 1857. 23. Corporations. Corporations are liable to the process of garnishment. lb; Baltimore and Ohio B. B. Co. v. Gallahue, 13 Grattan (Va.), 655. 1855. 24. Costs. Under Rev. Sts., ch. 109, § 50, a GARNISHMENT. 819 Demand — Interest. person, adjudged a trustee, can retain out of the goods in his hands for his costs and charges, only such sum as may be allowed by the court in which he is charged. If that taxation is erroneous, itmay be appealed from, but the question caniiot be raised in a suit against such trustee by the principal debtor for the balance in his hands. McLoMghlin v. Western B. iJ. Co., 12 Gushing (Mass.), 131. 1853. 25. Demand. In the case of an execution against a debtor and against his effects in the hands of a railroad company as his trustee, a demand on the president of the corporation to satisfy the execution was held to have been made upon a proper officer of the corporation. Biekford v. Boston and Lowell B. B. Oo., 31 Pickering (Mass.), 109. 1838. 26. Evidence. A railroad company having been summoned as a garnishee, and a jury having been impaneled to try whether it has made a full disclosure of its indebtedness to the defendant in the action, the statements of a division engineer to a third person in rela- tion to the indebtedness of the company to the defendant, was not competent evidence ; it not appearing that said engineer was the agent of the company having any authority on this subject, or that at the time of making the statement he was engaged as agent about the business referred to, so as to make his state- ments part of the transaction, and explaining the nature thereof. Baltimore and Ohio B. B. Co. V. GaUahue, 12 Grattan (Va.), 655. 1855. 27. Execution. Process of garnishment will not lie against the debtor of a garnishee against whom an execution has been returned nulla bona. Illinois Central B. B.Co. v. Weaver, 54111., 319. 1870. 28. Exemption. Ch. 79, B. S., § 40 (which exempts employ fe, etc., of railway companies, from garnishment in certain cases), was, in effect, repealed by the passage of ch. 148, Laws of 1858. The subsequent amendment of said ch. 148, limiting the exemption to married persons, etc., applies, therefore, to railroad employes as well as others. Bur- lander V. Milwaukee and 8t. Paul B. B. Co., 26 Wis., 76. 1870. 29. — A garnishee may set up as a defense that the property, money, effects or indebted- ness is exempt from seizure. R. S., ch. 120, § 118 ; ch. 161, Laws of 1861. Winterfleld v. Milwaukee and St. Paul B. B. Co., 29 Wis., 589. 1872. 30. — Whether if he knows of such ex- emption, and especially when requested by the principal debtor, whether he is not bound to do so to protect himself, qucere ? lb. 31. Foreign corporation. A judgment debt due by a foreign corporation doing busi- ness in Pennsylvania is subject to garnish- ment in Pennsylvania. Fithian v. New York and Erie B. B. Co., 2 Philadelphia Rep. (Penn.), 318, 1856; Jones v. New York and Erie B. B. Co., 1 Grant's Oases (Penn.), 457. 1857. 32. — A railroad company, incorporated by the laws of another state, cannot be charged by the trustee process, although in possession of railroads in Massachusetts under lea-ses from the proprietors thereof Gold v. Sous, atonic B. B. Co., 1 Gray (Mass.), 434. 1854. 33. — A railroad company, which, under an agreement between itself and other rail- road corporations, whose roads form a con- necting line, settles and pays accounts month- ly with that corporation only whose road ad- joins its own, including therein the amounts due to the corporations whose roads lie be- yond, is not liable as trustee in foreign attach- ment of that corporation for a sum so found due to it, and for which it is in turii liable to the other corporations under the agreement. Oho/pin ®. Connecticut Biver B. B. Co., 16 Gray (Mass.), 69. 1860. 34. — A foreign railway company that has accepted the privilege of extending its works into this state, upon condition that they keep at least one resident manager or officer on whom process against the company may be served, may be garnished in an attachment proceeding, in respect to a debt owing by the company to a nonresident. Fithian v. New York and Erie B. B. Co., 81 Penn. St., 114. 1857. 35. — A judgment recovered against the company in the court of another state, may be attached under such process. lb. 36. Interest. A garnishee in an attach- ment execution is not liable for interest on the money in his hands while the action is pending, and in all attachment cases the gar- nishee without fault recovers costs. Irwin «. Pittsburgh amd Connellsville B. B. Co., 48 Penn. St., 488. 1863. 37. — The party injured has his remedy 320 GARNISHMENT. Judgment — Setoff. against the wrongful litigants for the loss of his interest. lb. 38. Judgment. Until interrogatories are filed, and an opportunity offered to answer them, a final judgment cannot be entered against a garnishee. Michigan Central JR. B. Co. V. Keohane, 31 111., 144. 1863. 39. — A judgment in the trustee process, in Massachusetts, against an inhabitant of the state who owes a debt to a corporation estab- lished in another state, will protect the trustee against a suit brought in that state Ly such corporation, to recover such debt. Ocean In- surance Go. v. Portsmouth Marine R. B. Co., 3 Metcalf (Mass.), 420. 1841. 40. Lien of factor. Although a factor may have a lien on goods for storage, and may have the goods in his possession, he may nev- ertheless maintain an action of debt or as- sumpsit against the owner for the amount of storage; consequently, if the owner of the goods is summoned, by process of garnish- ment, as the debtor of the factor, and his ans- wer admits the claim for storage, the plaint- iff may have judgment against him on the answer, although he also states that the goods are still in the possession of the factor. Mo- tile and Ohio B. B. Co. v. Whitney, 39 Ala., N. S., 468. 1864. 41. Payment. A payment, made by the garnishee, after service, under an order of court in a foreign jurisdiction, is no protec- tion to him, as against the plaintiff, unless he affirmatively shows that the latter was a party or privy to the foreign suit. lb. 42. Proceedings. The proceedings in a certain garnishment of a railway company — reviewed. Baltimore and Ohio B. B. Co. v. Wilson, 3 W. Va., 528. 1868. 43. Property in transit. A railroad com- pany cannot be held liable to judgment on the process of garnishment, when, at the time of issuing and serving the writ, the property had left the county, and was in transitu on its route, consigned to the debtor. Illinois Cen- tral B. B. Co. 7). Cobb, 48 111., 402. 1868. 44. Railway bonds. The bonds of the Minneapolis and Cedar Valley R. R. Co. are " property " within the meaning of the Gar- nishee Act, and the garnishee process was in- tended to reach this species of property. Ban- ning V. Sibley, 3 Minn., 389. 1859. 45. Service of process. It is too late to ob- ject to defective service of process, after the corporation has appeared and submitted to the jurisdiction of the court. Harris v. Som- erset and Kennebec B. B. Co., 47 Me., 298. 1859. 46. — The foundation for the process in for- eign attachment is that the defendant is be- yond the reach of process, and the property within it. But if the property be without the reach of process there is an end of the attacli- ment writ. Pennsylvania B B. Co. v. Pen- nock, 51 Penn St., 344. 1865. 47. — In a foreign.attachment, the first thing is to serve the property; the next, the person in whose hands it is found ; but such attach- ment may be well executed when the officer is prevented by fraud or force from getting at the property. lb. 48. — In such cases, the return should show the facts, and that the officer has attached as nearly according to the requirements of the statute as possible. lb. 49. — There must be an actual seizure of goods intended to be attached; but a seizure of part of a certain thing would bind the whole when it came to hand. lb. 50. — Distinct parcels of goods coming into the hands of the garnishee after the serv- ice of the attachment are not bound by it. lb. 51. — The Central R. R. Co. cannot be served with process of garnishment by service on one of its agents. The service must be upon the president of the company. The statute providing for service of other process upon the agent of a corporation does not ap- ply to garnishment. Clark v. Chapman, 45 Ga., 486. 1873. 52. — The service of a garnishment re- turned, " Executed by leaving a copy of the within with L. O., president of the M. & E. R. R. Co., this 4th day of May, 1868," was held insufficient to sustain a judgment on failure to answer, without proof that L. O. was such president, at the date of service. Montgomery and Eufaula B. B. Co. «. Bartwell, 43 Ala., 508. 1869. 53. — Where a trustee process appears by the return to have been served on a certain day at a stated hour, a payment made by the trustee to his principal on the same day will, in the absence of proof, be regarded as subse- quent to the service. Harris v. Somerset and Kennebec B. B. Co., 47 Me., 298. 1859. 54. Setoff. A., having obtained possession GAUGE — GIFT. S21 Miscellaneous. of chattels under a judgment against B., and used them until the judgment was reversed, and the property awarded to B., the claim of the latter for such use would be a good setoff against any liability on his part to, A., which might subject him to garnishment. Keyes v. Mibjxmkee and 8t. Paul B. B. Co., 25 "Wis., 691. 1870. 55. — A trustee is entitled to set off or re- tain any money due him at the time of the disclosure upon a contract existing prior to the action, however contingent or uncertain might have been the liability upon which the money has since become due, at the time the trustee suit was brought. Boston and Maine B. B. Go. V. Oliver, 33 N. H., 173. 1855. 56. Sheriif. Moneys in the hands of a sheriff, collected by him on an execution, can- not be seized or garnished under an attach- ment in favor of a creditor of the execution plaintiff. And it was so held in a case where such moneys were garnished under an attach- ment in favor of the sheriff himself. Sill v. La Grosse and MiVwoMkee B. B. Go., 14 Wis., 291. 1861. 57. Station agent. Money in the hands of a station agent, received for tickets and freight, cannot be attached in his hands by trustee process against the company. Feitin- gill V. Androscoggin B. B. Go., 51 Me., 370. 1863. 58. — An attachment execution against a railroad company cannot be levied on money in the hands of its ticket agents, arising from the sale by them of tickets to passengers. An attachment is intended to reach the effects of the defendant in the hands of third persons, and ticket agents are not to be regarded as third persons in this case. Fowler v. Pitts- burgh, Fort Wayne and GMaago B. B. Go., 85 Penn. St., 22. 1859. 69. Superintendent. The superintendent of the Western and Atlantic R. R. Co. is not subject to garnishment process. Dobbins v. Orange and Alexandria B. B. Go., 37 Ga., 240. 1867. 60. What payment will release garnishee. Suit was brought for work and labor. The answer alleged that defendant had been ad- judged to pay a part of the amount of the plaintiff^s claim, as garnishee, at the suit of a third person, before a justice of the peace of another state named, the defendant offering to 21 confess judgment for the residue of the plaint- iff's claim. The transcript of the proceeding before said justice and certain statutes of said state were filed with the answer, from which it did not appear that there was any notice to the defendant in the principal action before said justice; but it appeared that the money was paid voluntarily, before judgment against the principal defendant, and upon an insuf- ficient aflSdavit against the garnishee. Seld, that the answer was bad on demurrer. To- ledo, Wabash and Western B. B. Go. v. McNulty, 84Ind., 531. 1870. 61. Unliquidated damages. A matter of unliquidated damages, growing out of a con- tract for the purchase of railway stock, is not the subject of an attachment in trustee pro- cess. Band v. White Mountains B. B. Go., 40 K. H., 79. 1860. GAUGE. See CoNNECTiiro Lines. 1. Connecting Unes. A contract between railroad companies, using the same gauge, to transport passengers and freight continuously over both lines, does not imply a contract on the part of either company that it will not change the gauge of its road. Sussex B. B. Go. V. Morris and Essex B. B. Co., 4 C. E. Green's Ch. (N. J.), 13. 1868. GIFT. 1. Voluntary conveyance. Where the in- testate and his wife, in his lifetime, by in- denture with his two sons, by which they as- sumed upon themselves certain obligations, among which were the support of the intestate and his wife, and also the payment of $3,500, to wit: $500 to missionary societies, and $3,000 in equal shares to six children of the intestate, and at the same time and as a part of Uie same transaction, the intestate con- veyed by deed about 300 acres of land to the said two sons, and they mortgaged back the same as security for the performance of their obligations in said indenture, and for the pay- 822 GRANTS — HEADLIGHT. Miscellaneous. ment of said $2,500; and about two years after the above transaction, the intestate sub- scribed for certain shares in a railway com- pany, but did not in his lifetime pay anything on his subscription, and the subscription was subsequently allowed as a claim against the estate. The plaintiffs claimed that said |3,500 should be considered as assets in the hands of the administrator. Held, that the contract was not revocable by the decedent in his life- time, and that neither the |3,500 nor the land could be inventoried as a part of said estate. Rutland and Burlington B. JR. Co. v. Power's ^dwV., 25 Vt., 15. 1853. GRANTS. See Emikent Domain ; Land Grants. 1. State grants. The amendment to the state constitution, limiting the state debt to $25,000,000, does not affect a grant previously made to a railway company. State ex rel. v. Graham, 23 La. An., 623. 1871. 2. — Aid granted by the state to a railway company to construct its road through the state, cannot be considered as a private dona- tion, but is an act of public policy. lb. 3. — By an Act of Assembly, a railroad company was to receive from the state treas- urer certain tolls, which were to cease when " the net proceeds of the road, after paying necessary expenses of motive power and su- perintendence, exceeded six per cent, per an- num." The receipts, after paying expenses, were less than six per cent, on the capital stock and funded debt, but exceeded six per cent, on the capital stock. ^ Held, that the grant had ceased. West Branch Oanal Go. ■». Blmira and Williamgport S. R. Co., 55 Penn. St., 180. 1867. GRATUITOUS PASSENGER. See Baggage ; iNJumzs to Fasbengebs. GENERAL TERM. See Affeals. GUARDIAN AND WARD. 1 . Dividends. If a guardian sue a railway company for dividends belonging to his ward, the company cannot set up by an equitable plea that it had paid the dividends to a person not authorized to receive them, but that the money had been applied to the support of the ward by the person receiving it. Southwestern R. R. Co. -D. Chapman, 46 Ga.', 538. 1872. 2. — But it was held that in equity, the suit might be enjoined until thqj-e was a proper accounting between the ward and the person who had received the money. Sam£ v. Same, lb., 557. 1872. HABEAS CORPUS. 1. Federal Conrts. A person who is held in custody under an order issued by a court of the United States, in the regular course of pro- cedure, is not entitled to be released on a writ of habeas corpus issued hj a state court. Ex parte HolTnan, 28 la., 88. 1869. 2. — Therefore, where a federal court was proceeding by an attachment for contempt to compel the levy of a tax to pay a judgment rendered in such court on bonds issued by a county in aid of a railway company, and a member of the board of supervisors of the county had been arrested, it was held, that the state court could not release him on a writ of habeas corpus, although the state courts had declared said bonds void before the judgment had been rendered upon them in the United States court. Tb. HARBOR, See Eminent Domain; Eight or Wat. HEADLIGHT. See Injuries to Domestic Akiuals* HIGHWAY. Establishment and Alteration of Highways. HIGHWAY. See Cbhtiobahi; Construction ov Railtvats; Eject- ment; Eminent Domain; Injuries to Domestic Animals ; Injubibs to Employes ; Injukies to Fee- sons ON the tsack ; Mandamus ; Municipal Oob- pjEiTioN; Nuisance. I. Establishment and alteeation of HIGHWAYS. 1. Taking of railway lands for high- way purposes. 2. Change of location. 3. Dedication. 4. Contract. 5. Proceedings. II. Crossings. III. Obstruction op highways. IV. Construction of railways. V. Taking highway pok railway puk- rosES. VI. Adverse enjoyment. VII. Injuries to persons by defects in highways. VIII. Repairs. I. Establishment and Alteration OF Highways. 1. Taking of railway land for highway purposes. 1. Powers of municipal corporations. Pub- lic and municipal corporations, under their general authority to lay out highways, cannot take land for a parallel highway previously taken and occupied by a railroad company, un- der and pursuant to its grant. Presumptively, there is no necessity so urgent as to require it. But they may lay out highways across a railroad, because such layout docs not dispos- sess the railroad company, and being a more urgent and constantly occurring necessity, must bo presumed to have been contemplated by the parties to the grant. Bridgeport «. New York and New Saven B. R. Co., 36 Conn., 255. 1869. 2. Eailroads are improved property. The ground appropriated for a railroad is improv- ed property within the road laws. Road in Lancaster City, as Fenn. St.. 390. 187i. 3. Station lands. A highway cannot be laid out over grounds acquired by a railroad corporation for the site of an engine house, etc., necessary for its use at a station. Albany MortJiem JR. B. Co., i). Brownell, U N. Y., 345. 1863. 4. — An injunction will be issued to re- strain highway commissioners from taking possession of such site. li. 5. Streets. Power to appropriate the prop- erty of a railroad in such a manner as to des- troy or greatly injure its franchise, or render it impossible or very difficult to prosecute the object of its organization, cannot be inferred from the general grant of power to establish a road across its track, but such general grant is sufficient to warrant the laying of the road across its track whenever public necessity demands it; and as to whether that public necessity exists, the city council must be the judge. Hannibal i>. Hannibal and St. Joseph B. B. Co., 49 Mo., 480. 1872. 2. Change of location. 6. For railway purposes. The charter of a railroad company provided that where any highway was so located that the railroad could not be judiciously laid out without interfer- ing therewith, the company might, with the consent of the commissioners, cause the high- way to be so altered that the railway might be made on the best site of ground for that pur- pose ; also that the company should maintain all bridges which it should construct for the purpose of conducting any highway over the road. The company, having made its road through a deep cut in a ridge, across the line of a highway which traversed the ridge, foi the purpose of avoiding the expense of con- structing a bridge for the highway, changed the location of the same, with the consent of the commissioners, to a place where it could cross the railroad at the grade. Held, that the charter did not authorize such change of location, as its object was wholly to save the expense ot a bridge, and not to make a more judicious location of the railroad; and that the portion of the old highway between the points of junction wjHi the new location, was not thereby discontinued. Norwich and Wor- cester R. B. Co. ■». Town of KilUngly, 25 Conn., 402. 1856. 7. Proceedings. Before a public road can 324 HIGHWAY. Establishment and Alteration of Highways. be vacated by the opening of a new road, in accordance with the statute for changing and vacating roads, the county court must be satis- fied that the new road is open and in good condition, and must have made an order vacat- ing the old road. JPhdpgv. Pacific B. JR. Co., 51 Mo., 477. 1873. S. Dedication. 8. Dedication of land owner. There was evidence that a road over a railroad had in 1856 been dedicated to public use by a land owner. In an action for an injury sustained at this crossing, the court instructed that " if this strip of ground so thrown out was dedi- cated to the public use, without any intention of resuming the exclusive right to, or use of the said ground, and if from that time to this, the public has used this as a public road, then it has become public, with all the character- istics of a public highway, so far as that ques- tion can have any legitimate bearing on this issue." Held, not to be error. Pittsburgh, Ft. Wayne and Ohicago R. B. Co. u. Dunn, 56 Penn. St., 380. 1867. 9. Dedication may be made. A highway may be acquired under the laws of Rhode Island as at common law, by dedicatio:i. Hughes v. Providence and Worcester B B. Co., 2B. I., 493. 1853. 10. Railway eompanles have power, in connection with the owners of the fee, to dedi- cate for a public highway lands taken by them under their charters, where there is noth- ing in such charters to forbid it. Ch-een v. Toum of Canaan, 29 Conn., 157. 1860. II. — A railway company can dedicate land for a public highway; but under the facts of this particular case, it was Tield that there was no such dedication. Williams v. New Torlc and New Haven B. B. Co., 39 Conn., 509. 1873. 4. Contract. 12. Letters. Where the defendant, in letters signed by him, and addressed to the plaintiff or its agents, stated the terms and conditions upon which he would consent to the making of a road across his land, by the plaintiff, upon a compliance with which terms and conditions he agreed tg convey the title to the land ; and the plaintiff manifested its assent to the terms, by commencing operations upon the road, with the knowledge of the defend- ant : held, that the plaintiff, by accepting the defendant's proposition, came under a legal obligation to perform the requirements of the agreement, and that this was a valid and suffi- cient consideration for the defendant's agree- ment. New York and New Haven B. B. Co. V. PixUy, 19 Barbour (N. T.), 428. 1855. 5. Proceeding. 13. Appeal. A statute, giving to land owners a right of appeal from decisions of selectmen laying out highways, will not be construed as applicable to proceedings pend- ing at "the time of its passage, unless such intent of the legislature is clearly manifested. Boston and Maine B. B. Go. ■». Cilley, 44 N. H., 578. 1863. 14. Benefits. The easement possessed by a railroad company, in a limited portion of the land adjoining a new highway, cannot be assessed for the benefits assumed to be con- ferred upon the company by the laying out of such new and adjoining highway ; but such benefits may be assessed upon the franchise of the company, where they are direct, imme- diate, appreciable and certain. Contingent, remote, inappreciable or uncertain benefits will not authorize such assessment. Bridgeport t). New York and New Haven B. B. Co., 36 Conn., 255; 1869. 15. — Therefore, where, in laying ont new highways, parallel with the line of a railroad and upon a curve, buildings and other objects which had somewhat obstructed and contract- ed the lines of sight from the road in turning the curve, were removed for the purpose of making the highway, and the railroad com- pany was assessed for benefits conferred by thus extending its line of sight, on the ground that such extension would enable the com- pany to run its trains with greater speed and with less liability to casualties, and with less expense for maintaining gates or keeping flagmen at the crossings, and it appeared that the company in respect to such speed, gates and flagmen was subject to the contrid of the railroad commissioners, — it was holden that the benefits were too contingent, remote, and uncertain, and did not authorize the assess- ment, lb. HIGHWAY. 325 Crossings. 16. Collateral proceeding. Where a high- way was laid out along side of a railway, and in places, was laid in part upon the land taken hy the railway company, it was held, that the town being a party to the adjudication of the county court, establishing the road, the adju- dication is binding on the town, and cannot be set aside in a collateral matter. State v. Vernon, 35 Vt., 244. 1853. 17. Depot grounds. A. highway was laid out by the selectmen of a town, nearly par- allel with a railroad track. Between the rail- road track and the highway so laid out, there was, for its entire length, an open space of ground, which was in part within the limits of the company's right of way, and in part owned by it in fee. The railroad depot stood upon this open space, which furnished the only means of access to the depot, and had been for twenty years used by the public for a highway. The highway laid out was com- posed of a strip of land lying contiguous to the open space, and the object of the select- men in laying it out was to provide, in con- nection with the open space, a safe and con- venient way to and from the depot. Upon the petition to set aside the proceedings of the selectmen in laying out the highway, a com- mittee found that the highway as laid out was of common convenience and necessity ; that they were Unable to determine from the facts be- fore them whether the open space was a pub- lic highway or not, but that the interests of the railroad company required that it should be used, as it had been, for public travel ; that they were satisfied that such use would con- tinue, and as long as it continued, there was no necessity for a highway wider than that laid out by the selectmen. The committee further found that the layout was judicious and proper, and within the lawful powers of the selectmen ; that the layout, by itself and unconnected with the use of the open space, was too narrow to accommodate jjublio travel, and that, if the open space should be closed, the layout would need to be widened, for which purpose there was ample and conven- ient land adjacent. Held, that the layout was judicious and should not be set aside. Sackett v. Town of Greenwich, 88 Conn., 525. 1871. 18. Jurisdiction. The jurisdiction of the circuit court in respect to roads and highways is limited to ad quod damnum proceedings. In all other matters relating to roads, the board of supervisors has exclusive jurisdic- tion. Oh. 86, Laws of 1868. Kenned;/ v. Du- buque, 0. and M. R. B. Co., 34 Iowa, 421. 1872. 19. Location. Under the St. of 1857, ch. 287, an adjudication of county commissioners laying out a highway across a railroad, which does not state whether the highway is to be carried over or under or on a level with !^e railroad, or show that special notice w^as given to the railroad corporation, is erroneous and will be quashed on certiorari, although the railroad company actually appeared and was heard before the commissioners. Old Colony and Fall River R. R. Co. ii. County ConVrs of Plymouth, 11 Gray (Mass.), 512. 1858. II. Crossings. 20. Change of grade. An order of county commissioners, passed on the petition of mayor and aldermen or selectmen, under St. 1842, ch. 22, which determines that the raising of a highway at a place named, where it is crossed by a railroad on a level, so as to pass over the railroad, is necessary for the security of the public, without defining the height above the railroad to which the highway shall be raised, the grade of the ascent, the mode and material ' of the structure, or the time within which it shall be made, is too indefi- nite to be specifically enforced by this court in equity under St. 1849, ch. 232, §,5. Roxbury V. Boston and Providence R. R. Co., 2 Gray (Mass.), 460. 1854. 21. Damages for crossing railway. In estimating the damages sustained by a rail- road company by the laying out of a highway across its railroad, the jury have no right to take into consideration any supposed future benefit to it from a probable increase of busi- ness in consequence of the establishment of the new highway. Boston and Maine R. R. Co. V. County of Middlesex, 1 Allen (Mass.), 324, 1861 ; Old Colony and Fall River R. R. Co. V. Inhabitants of Plymouth, 14 Gray (Mass.), 155, 1859. 22. — A railroad company is entitled to damages for land taken by the laying out of a public highway across its track; and for the expense of erecting and maintaining signs and cattle guards at the crossing, and of fioor- .326 HIGHWAY. Crossings. ing tlie same and keeping it in repair ; but not for any increased liability from accidents, or for tlie increased expense of ringing the bell, or for its liability to be ordered by the county commissioners to build a bridge for the high- way over its track. lb. 23. — The provision of the act regulating " the construction of roads and streets across railroad tracks " (§ 1, oh. 62, Laws of 1853), which authorizes the laying out of streets and highways across the track of any railroad without compensation, has reference only to tracks used for public traffic, and for turn outs and switches. Boston and Albany B. B. Go. v. GreenMsh, 53 N. Y., 510. 1873. 24. — It does not include tracks laid for storing cars. lb. 25. —The statute (ch. 63 of 1853), authoriz- ing the construction of highways across rail- road tracks without compensation, is constitu- tional. Albany NortJiern JR. E. Co. v. Srownell, 34 N. Y., 345, 1863; but see Miller v. New York and Brie B. B. Go., 31 Barbour (N. Y.), 518. 1856. 26. Flagmen. Evidence that daily, twenty trains on a railroad, and about as many vehi- cles on a highway, passed over a place where a railroad crossed the highway at grade, but was in full view from the highway at any point within one hundred and fifty feet of the crossing; and where the public authorities never required the establishment of a gate, station agent or flagman, although the cross- ing had existed for many years ; is not suf- ficient to warrant a finding that the company was guilty of negligence in omitting to pro- vide any safeguard there. Commonwealth ■». Boston and Worcester B. B. Co., 101 Mass., 301. 1869. 27. — The establishment of a flag station at a railway crossing is legal evidence of the consent of the corporation to the use of the crossing. Webb v. Portland and Kennebec B. B. Co., 57 Me., 117. 1869. 28. — The open, notorious use of a way as a highway, and the acts of a railway company recognizing it as such, without objection, bind the railway company to the exercise of the same precautions at such crossings as would be required at a lawful highway. lb. 29. iDJunction. An injunction will not be granted against a railroad company, restrain- ing a necessary cut and excavation it is mak- ing across a public highway, in anticipation that the wooden bridge intended to be substi- tuted, will not restore the highway to its for- mer usefulness. Baueus ii. Albany Northern B. B. Co., 8 Howard's Pr. (N. Y.)," 70. 1853. 30. Joint occupancy of railways. Where one railway company is using the track of an- other, it is held to the same care and prudence at a crossing as the company owning the road. Webb v. Portland and Kennebec B. B. Co., 57 Me., 117. 1869. 31. Landing places. Railway companies are bound to keep safe and suitable landings at the places where passengers usually get on and oflF the trains. TJiey are not bound to prepare landing places where no passing can reasonably be expected. Murch v. Concord R. B. Co., 29 N. H., 9. 1854. 32. Municipal corporations. The city council of Bangor is a body entirely distinct from the mayor and aldermen ; and the con- sent of the former to the construction of a railway across a street is nugatoiy. Inhabit- ants of Veazie v. Mayo, 45 Me., 560. 1858. 33. — The obligation of a town to make roads safe and convenient for travelers con- tinues where such roads are crossed by rail- roads at grade. Davis v. Leominster, 1 Allen (Mass.), 182. 1861. 34. Nuisance. A railroad company, con- structing its railroad across a highway with- out lawful authority, is liable to indictment for a nuisance. Commonwealth v. Vermont and Massachusetts B. B. Co., 4 Gray (Mass.), 22. 1855. 35. — The crossing of highways by a rail- way at grade is not unlawful ; nor is it a nui- sance or a trespass ; nor does it require the consent of the highway commissioners. Bax- ter V. Spuyten Buyttil, etc. B. B. Co., 11 Ab- bott's Pr., N. S. (N. Y.), 178. 1871. 36. — Under R. S. of 1857, ch. 51, § 15, a railroad crossing, not made in the " manner determined in writing by the county commis- sioners," is to be regarded as a nuisance. State T. Portland, Saco and Portsmouth B. B. Go., 58 Me., 46. 1870. 37. — An indictment in such case for nui- sance is fatally defective unless it alleges sub- stantially that the railway crosses the highway in a manner not determined in writing by the county commissioners. lb. 38. Number of tracks. A railroad com- HIGHWAY. 327 Construction of Highways. pany wliich lias lawfully located its road across a public highway without any restric- tion as to the number of tracks or the place where they should be laid, is authorized to lay and maintain as many tracks as are essential to the convenient transaction of its business ; and for that purpose may make any necessary alteration in the surface of the highway. ComrrwwuieaUli v Hartford and New Haven B. R. Go., 14 Gray (Mass.), 879. 1860. 39. Obstructions. Where no positive in- jury to the individual is shown, an action will not lie in favor of an individual against a rail- way company for obstructing a highway at a crossing. The company is, under the statute, liable to the town. Buck v. Oonnectimit and PaHumpsie Jlivm-8 B. B. Oc, 43 Vt., 370. 1869. 40. Proceedings. Under Rev, Sts., ch. 24, § 13, county commissioners have fl»al juris- diction of the question whether a highway crossing a railroad shall be laid out over, under, or on a level with it. Boston and Maim B. R. Co. V. County of Middlesex, 1 Allen (Mass.), 334. 1861. 41. — A railroad corporation was authorized by the county commissioners to raise a high- way at a certain grade so as to cross its road on a level, and raised the highway according- ly, but at a steeper grade. The commissioners subsequently, on the application of the towns between which the highway lay, modified their former order by postponing the time within which it should be complied with, and assessed damages to the towns. Held, that that part of the second order assessing dam- ages was unauthorized, and that the whole order was therefore void, and would not justify the corporation in not complying with the first order. Commormealth v. Vermont and Massa- chusetts B. B. Co., 4 Gray (Mass.), 33. 1855. 42. Statutory requirements. An open and traveled street in a city, though not so laid out and established by the municipal authori- ties as to make the city responsible for dam- ages occasioned by defects therein, is a " trav- eled place," within the meaning of St. 1849, ch. 233, § 3; and a railroad corporation is bound to maintain a sign board, and the other precautions required by statute at railroad crossings, at the place where it crosses the railroad. Whittalcer ii. Boston and Maine B. B. Co., 7 Gray (Mass.), 98. 1856. 43. — The N. C. R. R. Co. is not required under § 26 of its charter to construct cross- ings and bridges over its track except w^here public roads cross the same, which have been kept up by the public. Coon v. North Oa/rolina B. B. Co., 65 N. C, 507. 1871. 44. — Under ch. 41, § 3, Acts of 1853, a corporation cannot extend a curve in a branch track partly over or along a highway, but without crossing it. Bangor, Oldtown and Milford B. B. Co. v. Smith, 47 Me., 34. 1859. 45. — Ch. 41, § 3, Acts of 1853, in relation to the construction of railways across streets and highways, is remedial, and applies to all railways not completed or in process of con- struction. Veazie, Inhabitants of, v. Mayo, 45 Me., 560. 1858. 46. — The general railroad act, as origin- ally enacted (Laws of 1850, p. 233, § 39), re- quired the bell to be rung or the whistle sounded, each time tlie engine passed over the railway where the latter crossed a public high- way, although the railroad and highway did not cross each other upon the same level. People V. New York Central B. B. Co., 13 N. Y., 78. 1855. Same v. Same, 35 Barbour (N. Y.), 199. 1855. 47. Tunnels. Where the charter of a rail- road company directs the company to keep sufficient passages over or under its railroad, where any public road crosses the same, so that carriages, etc., on the said road shall not be impeded thereby, it is lawful for such com- pany, having laid a public road over its track, subsequently to lay the same through a tunnel under such track, whenever the safety or convenience of the public requires such change. State v. Central B. B. Co., 3 Vroom (N. J.), 221. 1867. III. Obsteuctiojsts of highways. 48. Acts of third persons. A corporation owning and operating a railway which crosses a highway, is under no obligation to remove from the highway obstructions placed on the crossing by a stranger, if the material consti- tuting the obstruction is neither the property, nor under the control of the corporation, al- though the existence of such obstruction is brought to the knowledge of its agents. Pitts- burgh, Fort Vfayne and Chicago B. B. Go. v. Maurer, 21 Ohio St., 421. 1871. 49. — The fact that such material is waste 32b HIGHWAY. Construction of Highways. manure from tlie company's stock cars, and is placed ttiere by one of tlie company's brake- men, does not make the company liable, if the brakeman so placed the manure there for his own use, without the authority of the com- pany, and was at the time not acting within the scope of his employment as a brakeman. lb. 50. Adjoining proprietors. A railroad company having the right to use a public highway for the ordinary purposes of a rail- road as a means of trayel and transportation, is responsible to adjoining proprietors only for using it in an illegal manner. Lackland V. North Missouri S. S. Co., 34 Mo., 259. 1863. 51. Criminal law — Indictment. A rail- road laid out over and along a highway in such a manner as to obstruct it, without ex- press statute, authority or necessary implica- tion, is liable to indictment as a nuisance. Commonwealth v. Old Colony and FaU River S. R. Co., U Gray (Mass.), 93. 1859. 52. — Where selectmen, besides requiring other alterations to be made by a railroad com- pan;^ in a way over which its railroad passed, pursuant to Rev. Sts., ch. 89, § 67, ordered a draw to be made in the railroad for the ac- commodation of public travel on the way, it was h£ld, that the railroad company building its road without such a draw, so as to obstruct public travel, was liable to indictment for a nuisance. Commonwealth v. Nashua and Low- ell R. M. Co., 2 Gray (Mass.), 54. 1854. 53. — An obstruction to that part of a high- way which is outside of the finished way is a nuisance for which an indictment will lie. OrnnmonweaUh «. Boston and Lowell R. R. Co., 12 Gushing (Mass.), 254. 1853. 54. — information. In Indiana, under the criminal law, a corporation cannot be prose- cuted, by information or otherwise, for mis- feasance. State V. Ohio and Mississippi R. R. Co., 23 Ind., 362. 1864. 55. — judgment. The confirmation, by statute of the illegal location of a railroad in a highway, is no ground for anresting a pre- vious judgment on an indictment for a nui- sance caused by such obstruction. Common- wealth V. Old Colony and Fall River R. R. Co., 14 Gray (Mass.), 93. 1859. 56. — process. Where an information was filed against a railroad company for obstruct- ing a highway, and a summons was issued and served by delivering a copy to a station agent, and one to an attorney and director oi said company, the process and the service thereof were properly set aside. State v. Ohio and Mississippi R. R. Co., 23 Ind., 362. 1864. 57. — receiver. An indictment will not lie against a railroad company for the obstruc- tion of a highway by its trains, while the road is under the sole management of a receiver appointed by a court of chancery. State v Vermont Central R. R. Co., 30 Vt., 108. 1858 58. Damages — Innkeeper. In an action by an innkeeper against a railroad com pany for obstructing a road leading to his inn, it is er- roneous not to allow a witness to testify as to the number of guests entertained at the inn, or as to the expedition and care with which the work which caused the obstruction was prosecuted. lUinois Central R. R. Co. v. White, 18 111., 164. 1856. 59. — In claiming damagesof defendants foi the bad condition in which they have left the passage-way from the highway to his tavern stand, the plaintiff cannot show that the car- riages of travelers were upset by reason of the defendant's omission. Subbard v. Androscog- gin and Kennebec R. R. Co., 39 Maine, 506. 1855. 60. Depot gronnds. Railway companies have no right to build their depots in high- ways which they merely cross with their rail- road, and the location of which they do not change. The only use to which they may put the highway is for a track crossing, and in this they are bound to do as little damage as possible. State n. Vermont Central R. R. Co-, 27Vt., 103. 1854. 61. — Railroad companies are liable to in- dictment for the acts of their agents in erect- ing and maiataining a nuisance. Tb. 62. — The word " unlawfully " is not indis- pensable in an indictment for nuisance against a railway company. The words " wrongfully and injuriously " are suflBcient. lb. 63. —A railroad company has no right to use a highway as a part of its freight yard; but it has a right to pass and repass over a" highway in making up its trains and shifting its cars, provided this is done only to a rea- sonable extent. Gahagan v. Boston and Lowell R. R. Co., 1 Allen (Mass.), 187. 1861. 64. Duties of railway companies. It is the duty of a railway company not to obstruct HIGHWAY. 329 Construction of Railways — Tailing Highway for Railway Purposes public roads, either by stopping a train across them, or otherwise. Speed should be slack- ened at a side track, and a signal warning should be given when approaching a crossing. Murray n. South Oa/roUna B. B. Co., 10 Rich- ardson's Law (So. Car.), 337. 1856 65. Forfeitures. Under R. S., ch. 131, § 13, an indictment will lie to recover tlie forfeiture provided for in R. 8., ch. 51, § 40, for " unrea- sonably and negligently obstructing any way by engines, tenders and cars." State i). Grand Trunk B. B. Co., 59 Me., 189. 1871. 66. Bights of the public. It is a proper instruction to be given to a jury, on an indict- ment against a railroad company for obstruct- ing a highway with its cars while discharging and receiving freight and passengers, that the right of the public in the highway for the purpose of travel is paramount to the right and convenience of the company for any other purpose than that of transit. State v. Morris and Essex B. B. Co., 1 Butcher (N. J.), 437. 1856. IV. Construction of eailways. 67. Alterations in highway. An action will not lie against a railroad company for consequential damages arising from building a bridge over its railroad, in accordance with the provisions of the Revised Statutes, ch. 143, § 4. Towle V. Eastern B. B. Co., 17 N. H., 519. 1845. 68. — The legislature has a right to provide for and determine the mode of making such alterations in the highways as public good may require by reason of the construction of a railroad, and such alteration cannot be made the subject of an action against the corpora- tion, lb. 69. By §4, ch. 335, Laws of June Sess., 1846, it was enacted, among other things, that where the property of individuals shall have sus- tained consequential damages by the construc- tion or continuance of bridges theretofore erected by a railroad company over its railway, at the intersection of the railroad with a high- way, and the owners have not been compen- sated therefor, they may have damages assessed against the railroad company, on petition for that purpose ; held, that this provision was a retrospective law for the decision of a civil cause, and void for that reason. Towle v. East- ern B. B. Co:, 18 N. H., 547. 1847. 70. — Where the charter of a railroad com- pany gives it power to alter and grade the public and other roads, the company has no right to change the route of any public or other road. State v. Warren B. B. Co., 5 Butcher (N.J.), 358. 1863. 71. Liability of company. A railway com- pany authorized to construct its road across a highway is bound to use reasonable care in protecting those passing thereon from injury. Veaeie v. Penobscot B. B. Co., 49 Me., 119. 1860. 72. Such company cannot relieve Itself from any such liability by its agreement with its contractors. lb. 73. Trespass. A person who interferes to prevent a railway company from constructing its road across a highway where it has no right to build it, is not liable for damages to the company therefor. Nor can the company claim that he committed a trespass upon the lands of another person in so doing. Bangor, Oldtown and Milford B. B. Co. v. Smith, 49 Me., 9. 1860. V. Taking highway foe bail way PURPOSES. 74. BeiJots. A railroad company is not justified in building a depot upon a public highway, or so near to it that the trains must injuriously obstruct the public travel. State V. Morris and Essex B. B. Co., 1 Butcher (N. J.), 437. 1856. 75. Injunction. The construction of a rail- way operated by steam upon a public high- way is a nuisance which will be restrained by injunction. Attorney General ii. Morris and Essex B. B. Go., 4 C. E. Green's Ch. (N. J.), 386. 1869. 76. Proceedings. The Hancock Brook road was laid out by the county court in 1845, for two miles through a nan-ow and precipi- tous gorge, to accommodate, by a shorter and more level route, the travel which then passed around an ancient, circuitous and hilly road. In 1853, a railroad company, authorized by its charter to locate its road along the same gen- eral route and to occupy, where necessary, the track of any highway, took about a mile of the central portion of this road. By its charter, and by the general statute on the sub- ject, it became its duty to alter the highway under the advice of the commissioners on the railroad, and under their direction to put the 830 HORSE RAILWAY — HORSES. Adverse Enjoyment — Injuries to Persons by Defects in Highway — Repairs. highway thus altered into as good repair as it was before, the deteimination of the commis- sioners thereon to be final. After taking the portion of the highway stated, the company surveyed and laid before the commissioners for their approval a substitute road on the other side of the gorge. This road the com- missioners disapproved, and advised the adop- tion of the ancient highway as the substitute road, which the company accordingly adopt- ed, but made no repairs or improvements thereon, and the commissioners formally ac- cepted. Held, on an application for a manda- mus to compel the company to make the sub- stitute road through the gorge, that so long as the commissioners were acting within their jurisdiction and without fraud, their deter- mination conld not be reviewed by the supe- rior court. Waterhury, Town of v. Hartford, Providence and FishJctU S. B. Go., 27 Conn., 146. 1858. 77. Right to use highway. The authority of a railroad company to lay tracks in a pub- lic highway, must be given by express enact- ment, or if it rests upon implication, it must flow necessarily out of the law from which it is derived. State v. City of HohoJcen, 6 Vroom (N.J.), 205. 1871. 78. Title of highway. The right to a town or county road is but an easement for public use in which the town has legally no title or property. Vassalborough, InTuibitants of, v. Somerset and Kennebec B. B. Co., 43 Me., 337. 1857. VI. Adverse enjoyment. 79i Adverse enjoyment. The occupation of premises on the line of a highway, for a period of twenty years or more, without any paper title, affords no presumption, as a mat- ter of law, that the possessor's title extends beyond the limits of his actual possession or to the center of the highway. Hatch v. Ver- mont Central B. B. Co., 28 Vt, 142. 1855. 80. — Nor can such person acquire a title to any portion of the highway by an occu- pancy of it with his wagons and carriages and those of his customers, if such occupancy is not adverse to the right of the public, or un- der some other claim of right to the premises than as a highway. lb. VII. Injuries to peksqns by de- fects IN HIGHWAY. 81. Injuries to travelers on highway. Where a railroad corporation has been author- ized by law to alter highways, for its own convenience in building its road, upon condi- tion that it should restore such highways to their former state of usefulness, and the corporation has altered such a highway, but has failed so to restore it, and has left it in an unsafe condition, and the town to which the highway belongs has suffered it to continue in the same condition, and has consequently become liable in an action brought against it by a third party for injuries sustained by him through the defects of the highway, the rail- road company is bound to indemnify the town for the judgment recovered against the town in such action, and for the costs and expenses incurred by the town in defending the action. Hamden, Town of, v. New Haven and North- ampton B. B. Co., 27 Conn., 158. 1858. 82. — A railroad company is liable for in- juries sustained by a traveler, driving a horse upon a highway with due care, through a fright of the horse occasioned by a derrick which it maintained projecting over the high- way so as naturally to frighten passing ani- mals. Jones i>. Housatonic B. B. Co., 107 Mass., 261. 1871. VIIL Eepairs. 83. — A supervisor may enter upon land adjoining a highway in his district and take material for the repair of the road. § 16, 1 G. and H., 591. Jefersonville, Madison and Indi- anapolis B. B. Co. v. Daugherty, 40 Ind., 33. 1872. HORSE RAILWAY. See EmsENT Domain; Stbeet Kaii,wats. HORSES. See Cabriaoe op Live Stock; Comtagious Diseases. HUSBAND AND WIFE — INCOME BONDS. 331 Miscellaneous. HUSBAND AND WIFE. gee Bassage; Damages ; Injcjbies to Emflotes; Injdbies to Passengers; Injubies to Pebsoks. 1. Conveyance. If land be conveyed to a feme covert, the husband is seized of an estate therein for their joint lives. Junction R. R. Go. V. Ea/rri8, 9 Ind., 184. 1857. 2. — And if the wife, though a minor, join in a conveyance of the land in fee, the deed is effectual to pass the husband's estate; and the right to possession and profits •will be in the vendee. lb.' 3. — A husband may act as the agent of his ■wife in transactions relating to her separate estate, and may execute in her name a con- veyance of her land under a power of attor- ney. Weiabrod v. Chicago and Northwestern R. R. Co., 18 "Wis., 35. 1864. 4. Death — statute. A husband is not text of kin of the wife, within the meaning of the act " requiring compensation for caus- ing death," etc. (ch. 450, Laws of 1847, amend- ed by ch. 256, Laws of 1849), and previous to the amendment in 1870 (ch. 78, Laws of 1870), he was not entitled to a distributive share of any recovery, under said act, for causing her death. Drake v. aOmore, 53 N. Y., 389. 1878. 5. Parties to action. A married woman, domiciled in another state, and by the laws thereof holding property to her separate use, in seeking a remedy to recover for loss or in- jury thereto in New York, is governed as to her remedy by the laws of New York, and may bring an action in her own name. Stone- man v. Erie R. R. Go., 53 N. Y., 439. 1873. 6. — A married woman has the riglit to sue for personal injuries without joining her hus- band. Seymour «. Chicago^ Burlington and Quincy R. R. Co., 3 Bissell (U. S. C. C), 43, 1871 ; Chicago, Burlington and Quincy R. R. Co. V. Dunn, 53 111., 360, 1869. 7. — Under the Revision of I860, §3771, the husband and wife being joined in an action for an injury to the wife, may recover, not only for the injuries done to the wife, but also for the loss of service to the husband. Mc- Donald «. Chicago and Northwestern R. R. Co., 36 la., 124. 1868. 8. Personal injury to the wife. The right of action accruing by reason of personal in- juries received by a married woman, from the negligence of a railroad company, is her sep- arate property, and comes under the operation of the act of 1861. Chicago, Burlington and Quincy R. R. Co. v. Dunn, 53 111., 260. 1869. 9. Personal property. If a married wo- man suffers her personal property to pass into the possession of and under the control of her husband, without having filed notice of her ownership with the recorder of deeds, as pro- vided in the statute, it is liable to be taken for the debts^of the husband. The Joint posses- sion of such property by the husband and wife is regarded as his possession. MazoucJc v. Iowa Northern R. R. Co., 31 la., 558. 1871. 10. Release. A married woman released railroad damages, her husband not joining. Sets, that she was not bound by the release. Delaware, Lackawanna and Western R. R. Co. V. Burson, 61 Penn. St., 369. 1869. 11. — In such cases, her husband cannot, without her consent,' adjust or release her cause of action. Chicago, Burlington and Quincy R. R. Co. v. Dunn, 53 111., 260. 1869. ILLEGITIMATE CHILDREN. 1. Evidence. Declarations of a deceased mother that her child was born before her marriage, and corroborating statements by her of the circumstances and his lory of her life, are conjpetent evidence to prove that the child was illegitimate ; but evidence of a gen- eral reputa'.ion that the child was illegitimate is not competent. Haddock e. Boston and Maine R. R. Co., 3 Allen (Mass.), 298. 1862. INCOME BONDS. 1. Mortgage. The Central Ohio R. R. Cn. issued certain bonds styled " income bonds," providing " for the punctual payment of the principal and interest of said bonds and oth- ers of like tenor, issued, or to be issued, in preference to the payment of dividends on the capital stock of the company, the income arising from the road and its appurtenances is hereby specifically pledged." Seld, that it was no fraud upon the holders of these bonds 332 INCOME TAX — INDICTMENT. Contract Limiting Liability — Forms. for the company to issue mortgage bonds for an additional sum upon the line of its road. Ga/rrett v. May, 19 Md., 177. 1862. INCOME TAX, See Mobtgage; Taxation. INDEMNIFYING BOND. 1. Condition. If a party give a bond to indemnify the obligee against a release of an unsatisfied debt, and the condition is broken, judgmentwill be rendered on the bond forthe amount of the debt. Kimball d. Cocheco B. B. Go., 3 Foster (N. H.), 579. 1851. INDICTMENT, She Bbidges; Ekbezzleme^it; Febbies; Highways; MAI.ICI0IT8 inacHTEv; NtnsAzrcB: Obstbucting BAII.WAT TBACX8. 1. Contract limiting liability. A mem- orandum endorsed on a season ticket issued by a railroad company, that it " assumes no liability for any personal injury received ■while in a train to any such season ticket holder," is no defense to an indictment of the corporation on the Gen. Sts., ch. 63, § 97, for causing the death of the ticket holder by gross negligence. Commonwealth n. Vermont and Massachusetts B. B. Co., 108 Mass., 7. 1871. 2. — Railroad corporations are by statute subjected to indictment and fine in case of the loss of life by reason of the negligence of the proprietors or their servants. Seld, that a corporation may be legally subjected to such proceedings. Boston, Concord and Montreal B. B. Co. v. The State, 32 N. H., 215. 1855. 3. Default. Judgment may be rendered against a corporation upon an indictment upon default of appearance, after notice to ap- pear, lb. 4. — A summons is the only process neces- sary in such a case. lb. 5. Employes. This remedy is limited to cases where the person dies immediately, and is not applicable in any case to the employes of the road. State v. Maine Central B. B. Co., 60 Me., 490. 1872. 6. Evidence. In the trial of a railway cor- poration on an indictment, under R. S. of 1857, ch. 51, § 42, the same rules of evidence and the same principles of law should be applied as in analogous civil actions for damages. State v. Grand Trunk B. B. Co., 58 Me., 176, 1870 ; See State V. Manchester and Lawrence B. B. Co., 53 N.H.,538. 1873. 7. Fences. In an indictment against a rjiil- way company for an unlawful and willful neg- lect to erect and maintain fences, it is necessary to aver that it was the duty of the corporation to erect and maintain such fences. People v. New York Central B. B. Co., 5 Parker Or. (N. Y.), 195. 1861. 8. Form. "Where the county is stated in the margin of an indictment, it is sufficient, in de- scribing the place where the offense was com- mitted, to say that it was in the town of A., " in the county aforesaid." State v.Wentworth, 37N. H., 196. 1858. 9. — It is not necessary that the state should be named if the indictment sets forth the name of the town and county. lb. 10. — So far as the form of the indictment is concerned, it must be governed by the prin- ciples of the criminal law. Statep. Manchester and Lawre-nce B. B. Co., 52 N. H., 528. 1873. 11. — An indictment to recover the fine im- posed by the Statute of 1850, where the life of a person is lost by cai-elessness on a railroad, must be against the corporation, and not against the individual stockholders. State n. Gilmore, 34 N. H., 461. 1853. 12. — The indictment under this st.itute should show that there is a surviving relative of the deceased, entitled to the fine. lb. 13. — R. a, ch. 51, §36, provides that in case of negligence on the part of a railway company or its employes whereby a person, in the exercise of due care and diligence, loses his life, a forfeiture of not less than $500 and not more than $5,000 shall be recovered by in- dictment found within one year, whoUy to the use of his widow, if no children; and to the children, if no widow ; if both, to her and them equally. An indictment under this law must give the names of the persons who are to re- INFORMATION — INJUNCTION. 383 Bond — Dissolution. ceive the forfeiture, and it is not sufficient to aver that " their names are to tlie jurors un- known." The indictment must aver that the person whose life was lost left a widow, or heirs, or both ; and the averment, that he had then and there " a lawful wife and child," or that " there is now living a widow and one child," is insufficient. State «. Grand Trunk M. B. Co., 60 Me., 145. 1871. 14. — The St. 1840, ch. 80, applies to cor- porations owning and running a railroad, and an indictment thereon need not set out the names of those servants or agents who are guilty of negligence, nor the nature or manner of such negligence, nor the names of the heirs at law of the deceased, if it aver their names to be unknown. ConanoivweaUh v. Boston and Worcester JR. M. Co., 11 Gushing (Mass.), 513. 1853. 15. — An indictment under St. 1840, ch. 80, which imposes a fine on anj'- common carrier by whose negligence the life of a passenger is lost, " to be recovered by indictment to the use of the executor or administrator of the de- ceased person, for the benefit of his widow and heirs," must aver that he left a widow, or heirs, or both, as the case may be. Common- wealth i>. Eastern M. B. Co., 5 Gray (Mass.), 473. 1855. 16. — It is not necessary to state by what particular acts of negligence or careless- ness, or by what special unfitness of serv- ants, the accident occurred. State v. Man- chester and Lawrence B. B. Co., 53 N. H., 538. 1873. 1 7. Instantaneous killing. Where a state declares that railroads, by whose negligence the life of a jierson is lost, shall forfeit not less than $500 nor more than $5,000, to be recov- ered by indictment to the use of the heirs of the deceased ; held, that to bring a case within this statute, the killing must be instantaneous. State 11. Grand Trunk B. B. Co., 61 Me., 114, 1873; State ». Maine Central B. B. Co., 60 ib., 490. 1873. 18. Limitation. An indictment against a railroad company under St. 1840, ch. 80, for negligently causing the death of a passenger is not within Rev. Stats., ch. 130, § 31, limiting actions and suits for any penalty, or forfeiture to one year after the offense is committed. Commonwealth v. Boston and Worcester B. B. Co., 11 Gushing (Mass.), 513. 1858. INFORMATION. 1. Bescription of corporation. In an in- formation against a railroad company, a de- scription of the respondent by name, and as " a corporation existing under and by virtue of the laws of this state, duly organized and doing business," is a sufficient allegation that it is a corporation in esse. State v. Vermont Central B. B. Co., 38 Vt., 583. 1856. 2. — The time and place where its existence commenced need not be averred. Ib. INJUNCTION. See Bbidses; Constitutiokal Law; Elbctioit oy CoKPoitATB Ofpicbbs ; Bmikent Domain ; Express Companies; Hiqhwats; Jueisdiction ; Location. OF Kail WAYS ; Hoiit&aqe ; Nuisakoe ; Parties to Actions; Penalties: Tax Sale. I. Bond. II. DlSSOLTTTION. III. Contempt. IV. Subject and aKOtrNDS of injunction. V. Damages. VI. Appeals. VII. General matters. I. Bond. 1. Form. An injunction bond improperly made payable to the sheriff, his heirs and as- signs, instead of the defendants, is neverthe- less sufficient to sustain an action in behalf of the real parties in interest. Vieksburg, Shreve- port and Texas B. B. Co. v. Barksdale, 15 La. An., 465. 1860. 2. — And the court will examine the petition for the itijunction to ascertain what obligation the parties to the bond have assumed. Ib. 3. Parties not served. An undertaking, given on the issuing of an injunction, is for the benefit of all the defendants enjoined, whether served or not. Consequently it is not necessary for the defendant not served to ap- pear in the action, to have the benefit of the undertaking. Dry Dock, etc., B. B. Co. v. Cun- ningham, 45 Howard's Pr. (N. Y.), 458. 1873. 11. Dissolution. 4. Amendment. While under the statute a 334 INJUNCTION. Contempt — Subjects and Grounds of Injunction. petition may be amended so as to sustain an existing injunction, even after motion to dis- solve, yet, if the plaintiff, instead of so amend- ing his petition as to make it appear therefrom that his purpose is to support his existing ■writ, files as an amended petition what is in fact a petition for a new writ, the action of the court in sustaining the motion to dissolve the writ filed before this amended petition, will not be disturbed by reason of the matters con- tained therein. Des Moines Natigation and R. a. Co. V. Carpenter, 27 la., 487. 1869. 5. Answer. An injunction will not in- variably be dissolved, even upon a full denial of the equity of the bill. It was always a matter in the discretion of the court. Camden and Amboy R. R. Co. v. Stewart, 3 C. E. Green's Ch. (N. J.), 489. 1867. 6. — Where, in an injunction suit by a stockholder in a corporation, as such, it is de- nied by the answer that plaintiff is a stock- holder, a preliminary injunction granted on the complaint will be dissolved. Blatehfm-d V. New Tork'und New Haven R. R. Co., 5 Ab- bott's Pr. (N. Y.), 276. 1857. 7. — A preliminary injunction cannot be sustained where the equities of the complaint are denied by the answer. lb. 8. — When the defendant moT es alone on his answer to dissolve an injunction, the plaintiff can read no affidavits in opposition to the motion ; but if the defendant uses affidavits to move for a dissolution of the injunction, with or without his answer, the plaintiff may read additional or counter affidavits. Blatchfordt. New Turk and NeiD Haven R. R. Co., 7 Abbott's Pr. (N. Y,), 323. 1858. 9. Appeals. Where an appeal has been taken to the supreme court from an order dis- solving a temporary injunction, and the judg- ment below has been affirmed, such affirma- tion does not dispose of the action below for a perpetual injunction, and it is error to sustain a motion by the defendant to dismiss the ac- tion for that cause. Rayle v. Indianapolis, etc., R. R. Co., 40 Ind., 347. 1872. 10. Constitutional law. Under the consti- tution of Ohio, the general assembly cannot confer on a judge of the supreme court juris- diction at chambers, to grant or dissolve an injunction in a cause pending in another court. Pittsburgh, Fort Wayne and Chicago R. R. Co. V Hurd, 17 Ohio St., 144. 18GG. 11. Motion. On motion to dissolve an in- junction in vacation, all amendable defects in the bill will be considered as amended. Ala- bama and Florida R. R. Co. v. Kenney, 39 Ala., N. S., 307. 1864. 12. — Amotion to dissolve an injunction may be made before answer put in. Middle- town V. Rondovi, etc., R. R. Co., 43 Howard's Pr. (N. Y.), 144. 1872. III. CONTEMPI. 1 3. Retnrn of writ. Where a judge in one county grants an injunction in a suit pending in another county, the order has no greater force by having been made by him while sitting as a court, than if it had been made in cham- bers. Androscoggin and Kennebec R. R. Co. v. Androscoggin R. R. Co., 49 Me., 893. 1863. 14. — In case of contempt for violation of such an injunction, the attachment is not re- turnable to the court or judge where the writ was ordered, but to the court where the suit is pending. lb. 15. — In matters of contempt, exceptions may be taken on the question of jurisdiction, where it is distinctly raised and acted on as a matter of law. lb. 16. Review. A proceeding for a contempt in disobeying an injunction is not an order in the cause; but is in the nature of a criminal, proceeding, and the judgment in such a pro- ceeding can only be reviewed by a superior tribunal by writ of error, and not always in that way. Baltimore and Ohio R. R. Co. ■». Wlieeling, 13 Grattan (Va.), 40. 1855. IV. Subjects akd geou^'ds of is- JUNCTION. 17. Against dissolntion of corporation. A corporation, defendant in a suit in equity, and which might be held liable to respon J pecuniarily to the plaintiflf, in the suit, and which had made one attempt to procure its own dissolution, was enjoined from taking any proceedings for its own dissolution, or for the appointment of a receiver of its effects, or for the distribution thereof among its stockholders, or any other persons, and from making any distribution or transfer of any of its eflects. Fisk v. Union Pacific R. R. Co., 10 Blatchford (U. S. C. C), 518. 1873. INJUNCTION. 335 Subjects and G-rouuds of Injunction, 18. Assessment. An injunction to pre- vent the collection of an assessment, is not sufficient in evidence to prevent the rendition of a judgment of confirmation of such assess- ment. Ottawa V. Chicago and Bock Island 22. iJ. Co., 25 III., 47. 1860. 19. Canals. The courts interfere, by in- junction, to prevent wrongs of a repeated and continued character, or which occasion damages which can be estimated only by con- jecture, and not by any accurate standard, and this is what is meant by irreparable damage and mischief. Oommonwealth v. Pittsburgh and OonneUsmlle B. B. Go., 34 Penn. St., 159. 1854. 20. — When public rights or private rights secured by statute or by contract, are invaded, and an injunction is asked for in order to pro- tect them, no question of the amount of dam- ages is raised ; but only one of right. lb. 21. — A railway company having begun to fill up part of the state canal, and to erect an arch over it which would obstruct its use, an injunction was granted at the instance of the state, although the canal had been abandoned for several years. lb. 22. Change of line of railway. Conced- ing that it is not competent for the general assembly to authorize a corporation to em- bark in new enterprises, entirely beyond and outside the scop? of the objects contemplated by its charter at the time stockholders be- came mernbers of the corporation by sub- scribing to its stock, and thus to effect a fun- damental change in the charter, and in the risks and prospects of its stockholders, with- out the consent of all the stockholders ; yet it is clear that before a stockholder can be enti- tled to a remedy by injunction against such departure from the original objects of the in- corporation, he must have shown himself prompt and vigilant in the assertion of his rights as such stockholder. It will not do for him to wait until the mischief of which he complains is accomplished, fortunes expended, and great public interests created. If he do, he must be held to have acquiiisced in the change, or to content himself with some other form of remedy. Ohapman v. Mad Bimr and Lake Erie B. B. Oo,, 6 Ohio St., 119. 1856. 23. Criminal act. Threats of personal violence to the agents of the company, if they attempt the construction of the road, will not give chancery jurisdiction to interfere by in- junction, to restrain the former proprietor of the land from obstructing its construction by violence. Montgomery and West Point B. B. Co V. Walton, 14 Ala., N. S., 207. 1848. 24. Crossings of two railways — com- pensation. Where a bill was filed by B., a railway company which had existed for years, to enjoin C, another railway company re- cently chartered, from the further construction of its road and from crossing B.'s track, on the ground that C.'s charter was a violation of B.'s, B.'s rights being regarded as, at least, doubtful, and it appearing that there had been great delay in its application for relief ; tliat it had acquiesced, for a long time, in the building of C.'s I'oad; that during such delay and acquiescence, C. had expended, and in- curred liabilities for large sums of money, and that the consequences to the stockholders of C, if it were enjoined, would be disastrous, the injunction was denied; but the bill was retained in order that compensation might be made for crossing B.'s track. South Carolina B. B. Co. V. Columbia and Augusta B. B. Co., 13 Richardson's Eq. (So. Car.), 339. 1867. 25. Elevated railway. The legislature of New York having authorized the construc- tion of an elevated railway through certain streets, the federal courts will not interfere by injunction with its construction.. Currier v. West Side Elevated B. B. Co., 6 Blatchford (U. . S. C. C), 487. 1869. 26. Executory contract. The complain- ants contracted with a railway company to lay down the iron for its road, to erect the necessary bridges, buildings, etc., and were to be paid in the mortgage bonds and stock of the company, but in consequence, as they allege, of the defendant's fault, Ihey had not entered upon the work, the road bed not hav- ing been prepared by the company as agreed upon. The complainants asked an injunc- tion, to restrain the company from making a contract with others to equip the road, and prayed a specific execution of their contract. The court sustained a demurrer to the bill and refused to retain the bill for compensation. Fallon V. Bailroad Co., 1 Dillon (8 U. S. Cir, Ct), 121. 1871. 27. Foreign corporation— bonds. Before a foreign corporation can rightfully be re- strained by the supreme court of New York 336 INJUNCTION. Subjects and Grounds of Injunction. from issuing bonds, or from executing and de- livering a mortgage upon its property, to se- cure such bonds, it must appear tliat the exe- cution of the mortgage would be an injury or obstruction to rights of the plaintiff, which could be enforced in that court. Rogers v. Michigan Southern and Northern Indiana R. B. Co., 28 Barbour (N. T.), 539. 1858. 28. Fraud. Matters, such as fraud, which should have been pleaded as a defense, are not suflBcient grounds, after j udgment, upon which to apply to equity to enjoin process to collect the judgment. Muscatine v. Mississippi and Missmi/ri B. B. Co., 1 Dillon (U. S. Cir. Ct.), 536. 1870. 29. Fulfillment of a contract delayed by au iiqnnctiou. The plea that the parties had forfeited the right of way by voluntarily aDandoning the construction of railroads in certain sti'eets, and by failing to construct said loads within, the time limited by the contract, IS not made out, when proved that it was pro- hibited to do the work by an injunction by a third party; and because the injunction taken in September, 1866, was not dissolved before June, 1872, it is not to be infeiTed that it was kept so long in force by the wish and con- nivance of the relators, when the city was a party to the injunction suit, and having the same right to push the case that the relators had, did not do so. State ex rel. v. GocJcrem^ 25 La. An., 356. 1873. 30. Injunction against an injunction. In an action brought in the supreme court by S. against a railway company, an injunc- tion order was granted by a justice of the first district. Subsequently the railway company brought an action, in the same court, against S. and others, laying the venue in a county in the eighth district, ar.d obtained from a differ- ent justice of the first district an injunction order stopping all proceedings in the action of S. Seld, that the granting of the second injunction order was not a valid exercise of judicial power, and the order was void. ScMl V. Erie B. B. Co., 51 Barbour (N. T.), 368, 1868; Same t. Same, 35 Howard's Pr. (N. T.), 438, 1868; 8am£- d. Same, 4 Abbott's Pr. (N. T.), 287, 1868; see Erie B. B. Co. ■». Bamr sey, 57 Barbour (N. T.), 449, 1870. 31. Interference by state officers. It is competent for the state, at common law, through its officers, to maintain proceedings by injunction to restrain public corporations from doing acts in violation of the constitu- tion and laws of the state. Section 24 of the statutes concerning injunctions (W. S. 1082), which provides that " the remedy by injunc- tion or prohibition shall exist in all cases where injury to real or personal property is threatened, and to prevent the doing of any legal wrong whatever, whenever, in the opin- ion of the court, an adequate remedy cannot be enforced by an action for damages " also applies to such cases. State v. Saline County Omrt, 51 Mo., 350. 1873. 32. Lien. The existence of a lien upon a railway, on behalf of the complainant, will not entitle him to an injunction to restrain the defendant, the owner, from the free use of the property. Pensaeola and Georgia B. B. Co. «. Spratt, 12 Fla., 26. 1867. 33. Mistake, Where a clerical mistake ia made in the computation of a judgment, and no application is made for its correction, and it appears the mistake would not have been made but for the laches of the debtor, an in- junction to restrain the collection of the judg- ment will be denied. Muscatine v. Mississippi a-ad Missouri B. B. Co., 1 Billon, (U. S. Cir. Ct.), 536. 1870. 34. Mortgage. Whore a mortgagee adver- tises to sell and convey the mortgaged proper- ty, " to the full extent of the powers derived to or by him under and by virtue of said deed, and not otherwise," he proposes only to exercise a legal right, and an injunction will not be granted to restrain him. York and Cumberland B. B. Co. v. Myers, 41 Me., 109. 1856. 35. Rates fixed by law. An injunction will not be granted to compel a common car- rier to transport goods at the rates fixed by law ; but it will issue to prevent any railway company, bound by law to transport goods, from entering into an agreement not to trans- port them at the rates fixed by law. Bogers Loeomatine, etc.. Works v. Erie B. B. Co., 5 C. B. Green's Ch. (N. J.), 379. 1869. 36. Right of way. A railway company is entitled to an injunction to restrain the erec- tion of a mill within seven or eight feet of its track, upon land over which it has the right of way. Cunningham v. Borne B. B. Co., 27 Ga.,499. 1859. 37. — A court of equity will not grant an INJUNCTION. 337 Subjects and Grounds of Injunction. injunction to restrain the construction of a railroad, on the ground that the plaintiff will sustain indirect damages by the construction, where his property is not taken or appropri- ated. Bwrnes v. South Side B. R. Go., 2 Abbott's Pr.,N. S.(N.Y.),415. 1866. 38. — A court of equity has jurisdiction to prevent, by injunction, a railroad company from making its railroad over the land of a private citizen where the company has not paid or tendered compensation for the use of the land, as provided in art. 3, § 46, of the con- stitution of the state. Western Maryland B. B. Co. V. Owingi, 15 Md., 199. 1859. 39. — Where a party conveys land to a rail- way company for its right of way, relying upon the assurance of the president that cer- tain stock gaps would be erected, it was held, that the railway company would not be en- joined from using the right of way until the " stock gaps " were erected. Gook v. North md South B. B. Go., 46 Ga., 618. 1873. 40. — Where an injunction is asked to restrain a railway compainy from using a right of way, where the damages have been assessed by the county commissioners more than six years before, the question of the bar of the statute of limitations maybe raised by demur- rer. JUooers v. Kennebec and Portland B. B. Co., 58 Me., 379.- 1870. 41 . — The petition for such injunction must allege a demand of the damages- more than thirty days before the filing of the bill. lb. 42. — Wliere, in equity, A. alleged a contract with a railroad company,, under which he was to convey to the company a right of way over his groundi=i, and a tract of land for the erec- tion of a depot, and charged that in violation of thi« contract the company had purchased other grounds, and intended to erect its depot thereon, and abandon the ground contracted for (which abandonment was denied by the respondent), and praying for an injunction; Md, that the plaintiff was not entitled to relief in equity but must resort to his remedy at law. Gallagher v. Vayette Co. B. B. Co., 38 Penn. St., 103. 1860. 43. _ Where a party whose land has been taken by a railroad company might have insisted on receiving a compensation at tne time, but neglected to do so, and forbears to assert his right until after the road is com- pleted and in full operation, an injunction 23 should not be granted, until all the ordinary means for obtaining an indemity have failed. Sentz n. Long Island B. B. Go., 13 Barbour (N. Y.), 646. 1853. 44. Specific performance. When allowed on a bill for specific performance of a con- tract, an injunction should be granted, if, upon the case made in the bill, the court ought to entertain it, and there is a probability that the defendant will, before the hearing, render itself incapable of executing the contract specifically. Boss v. Union, Pacijie B. B. Co., 1 Woolworth (U. S. D, C), 26. 1863. 45. — But if it does not state a case on which at the hearing, specific performance will be decreed, an injunction, which is Sought only to make the final decree effective, ought not to be allowed. lb. 46. — A restriction of the manner of using land granted, not against public policy, and beneficial to the adjacent land of the grantor, may be enforced in equity against the grantee or his assignees with notice. Whitney v. Union B. B. Go., 11 Gray (Mass.), 859. 1858. 47. Spring of water. A party owning a spring of water is entitled to an injunction to prevent a railway company from laying pipes across his land to such spring for the purpose of appropriating the water. StroheeJcer v. Ala- bama and Ghattanooga B. B. Co., 43 Ga., 509. 1871. 48. Streets. The location of a railroad tlirough a public street in a line not warranted by law will not be enjoined at the instance of the owner of an unimproved lot, suffering no present injury. ZabrisJcie v. Jersey City and Bergen B. B. Co., 3 Beasley's Oh. (N. J.), 314. 1861. 49. — The erection of a trestle work for a railway in a public street or levee is not such a trespass as will authorize the issuance of a writ of injunction, as the trestle work can readily be removed. Sehurmeier v. St. Paul and Pacijie B. B. Go., 8 Minn., 113. 1863. 50. Street Railways. A person who is not the owner of the fee of the land in a street in a city, over which the track of a horse rail- road is about to be laid, but is only an abut- ting proprietor, owning up to the line of the street, must show special damage sustained, or likely to be sustained by him, differing from that of every other lot owner on the street, in order to support an individual action by him- 338 INJUNCTION. Damages. self to restrain the laying of such track. Os- borne v. Brooklyn City B. B. Co., 5 Blatchford (U. S. C. C), 366. 1866. 51. Taxation. Circuit courts have jurisdic- tion, by injunction, to stay any illegal pro- ceedings to assess a tax upon, and sell by coercive sale, the property of an individual or corporation. Louisville and Nashville B. B. Co V. Warren County Ceuvt, 5 Bush (Ky.), 243. 1868. 52. Tide waters. Whether the owner of land along the shore on tide waters has any right in the shore or the lands under water, by reason of adjacency, or by the provisions of the wharf act, is a disputed question, not settled by the courts of law in this state, and an injunction will not be granted to protect the shore owners in such rights. Stevens v. Paterson and Newark B. B. Co., 5 C. E. Green's Ch. (N. J.), 126. 1869. 53. Wharves. The right to erect wharves and employ steamboats, if destructive to a par- amount right of general navigation and fish- ing, cannot be redressed by an injunction at the suit of a private individual. Delaware and Maryland B. B. Co. v. Stump, 8 Gill & John- son (Md.}, 479. 1837. 54. When not to be granted. An injunc- tion will not be granted where it would cause great injury to the defendants, and might be of serious detriment to the public without corresponding advantage to the complainant. Torry v. Camden and Atlantic B. B. Co., 3 C. E. Green's Ch. (N. J.), 293. 1887. 55. — Injunctions will only be granted for great and irreparable injuries, and where ade- quate relief cannot be had at law. Whittlesey V. Hartford, Providence and Fishkill B.B, Co., 23, Conn., 421. 1855. 56. — An injunction will not be granted ■vrhen there is a doubt in the mind of the court as to the right of the complainant. Cooper v. Second and Third St. B. B. Co., 3 Philadelphia Rep. (Penn.), 232. 1858. V. Damages. 57. Proofof damage must be made. Upon the dissolution of an injunction restraining the sale, under a deed of trust, of the property, effects, franchises, etc., belonging to a railway company, it is erroneous for the court to assess the damages at six per cent, without proof; the damages assessed should be commensurate with the actual injury sustained. St. Louis v. Alexander, 23 Mo., 483. 1856. 58. Reference. Upon a reference for the assessment of damages sustained by defend- ant in consequence of an injunction, it is the duty of the party claiming to have sustained damages, to establish the fact and the amount, by satisfactory proof. Dwight r. Northern B. B. Co., 54 Barbour (N. Y.), 271. 1869. 59. i{«nts — Participation in suit. K. and B., as trustees of the bondholders of a railroad company, after foreclosure, made a lease of the road to another company. The orators, who owned one-fourth and represented a majority of the bonds, brought a bill for themselves and all other bondholders who should choose to come in and prosecute, against K. and B., and the lessees, to set aside the lease; and an injunction was granted against the use of the road by the lessees. The bill was dismissed, and the damages were as- sessed at 163,097.86, as to K. and B., and as to the lessees, at |17,883.52, and that the funds in the hands of a receiver who had been ap- pointed to take charge of the. road pending the suit, should be applied in payment of these damages so far as they went, and that the orators should pay the remainder, not ex- ceeding 180,000, the amount of the bond, and that the apportionment of this sum between the defendants should be considered a final decree. It turned out that there was no money in the hands of the receiver. Held, that the trustees, in defending the suit, must be re- garded as acting for and in behalf of all the bondholders who did not assent to or aid in the prosecution of the suit, and no others. Sturges n. Knapp and Troy and Boston B. B. Co., 36 Vt., 439, 1863. (See Same Case, 31 ib., 1; 33ib., 486; 36 ib., 721). 60. — The act of the orators, in causing damages, was not the act of all the bondhold- ers. Ib. 61. — As the damages assessed to the trustees was solely for the rent tliey would have received as representatives for all the bondholders, but for the injunction, the true rule of apportionment is a pro rata distribu- tion upon tbe sum assessed to the lessees on the one hand, and the share of the rent as- sessed to the trustees on the other hand, which would have belonged to and been received by INJUNCTION. 339 Damages. tlie inaoceat bondholders, had no injunction been granted. lb. 62. — Previous to said lease, three of the bondholders executed a power of attorney to S. and R. to act in tlieir behalf in relation to the leasing or operating of said road. S. and R. opposed the leasing of the road, and subse- quently S. signed a paper for himself and others not named, authorizing the commence- ment of said suit, and took an active part in its prosecution and claimed to represent said three bondholders. S. told them he had done nothing to bind them, but they knew this suit was being prosecuted and did not dissent. Eeld, that they thereby participated in its prosecution. Same v. Same, 36 ib., 721. 1864. 63. — Previous to the commencement of the suit. P., who assented to its prosecution, owned bonds to the value of $4,500, and pas ed them to the L. Bank as collateral se- curity for a loan of $5,000. When P. had paid up said loan to within a few hundred dollars, after said suit was instituted, the S. Bank entered into an arrangement with the L. Bank to pay up the balance of said loan and take the bonds as collateral security for a loan of $7,000, Ihat the S. Bank had against P. and also for what it had paid to the L. Bank. sad, that the S. Bank, as it did not purchase said bonds, but look them as collateral, took its title from P., and must stand in his place as to the injunction fund, although neither bank knew of P.'s participation in the prosecution of said suit. £b. 64. — M. executed and sent to the commit- tee a power of attorney authorizing them to act for him, but the power of attorney left blank the names of the committee; held, not- w-thstanding, that M. thereby participated iu the injunction suit. Ib. 65. — C. was not in favor of the suit, but being absent, appointed an attorney to act for him, who took part in the suit, and when C. learned of that fact, he did not apprise the committee of his disapproval.. Held, that he had no right to a distributive share by virtue of his bond, having taken part in said suit. Ib. 66. — K. and B., as trustees of the bond- holders of a railway, made a lease thereof to a railway company. The orators, who owned one quarter of the bonds, brought a bill, for themselves and all other bondholders who should choose to come in and prosecute, against K. and B. and the lessees, to set aside the lease; and an injunction was granted against Uie use and occupation of the road by tlie defendants, the court, however, firjt requiring a bond to be filed by the orators to pay t() the defendants such damages as they should sustain from the injunction, if it should be decided that it had been improperly granted. Held, the bill having been dismissed, that the relation of the orators to the trustees was such as to excuse the lessees from paying rent to the trustees during the timo the road was kept out of their hands by the injunction; and, therefore, that the orators must pay to the trustees as damages that proportion of the rent, during such time, whicli the bondhold- ers, not participating in the prosecution of the bill, were entitled to. Sturges v. Knapp, 33 Vt., 486. 1860. 67. — That on the question of the amount of damages sustained by reason of the in- junction, evidence of the earnings of the road for a period immediately preceding the in- junction and immediately after its dissolution was competent to show the value of its use ; and that also the opinion of witnesses who were acquainted with the business and ex- penses of the road were competent for such purpose. Ib. 68. Streets. Upon a bill charging that the Lexington and Ohio railroad, within the city of Louisville, and the steam qars, etc., there used, were a nuisance, the chancellor granted an injunction, restraining the com- pany from running cars there; without re- quiring of the complainant any bond to pay any damages which the defendant might sus- tain by reason of the injunction. The com- pany answered, denying the charge, and mak- ing its answer a cross bill, praying for dam- ages occasioned by the suspension of its priv- ileges and business. The complainants hav- ing failed to sustain their case by proof, their bill was to be dismissed, by the mandate of this court, but as no bond was required of the complainants, and it does not appear that they instituted or prosecuted their suit njali- ciously or without believing that they had good cause, they are not liable for damages, and the decree dismissing the cross bill is af- firmed. The complainants can only be made liable, in such a case, by showing that their 340 INJUNCTION. Appeals — General Matters. suit was malicious, as well as groundless; and then the remedy, it seems, would be at law, not in chancery. Lexington and Ohio B. R. Co. V Applegate, 8 Dana (Ky.), 289. 1839. YI. Appeals. 69. What orders may be appealed from. In a case which is purely an injunction cause, the parties having had time to prepare the case, and having taken testimony to support their respective pretensions, and it not being probable that any other facts can be brought into the cause which will affect its principles, a motion was made in vacation todissolve the injunction, on the ground that it was improv- idently awarded, and upon the cause as it then stood. The hearing of the motion was objected to: 1st, because a foreign corpora- tion, which was a party, had not answered; 3d, because exceptions had been filed to tho sufficiency of the answers of the defendant, which were still pending and undetermined ; 3d, because the answer of the defendant, a corporation, was not verified by affidavit. The judge heard the motion but refused to dis- solve the injunction, and continued it until further order or decree. Seld, that the refusal of the judge to dissolve the injunction adju- dicated the principles of the cause to the ex- tent that the injunction had not been improv- idently awarded, and that the cause, as it then stood, ought to be continued. It is, therefore, such an order as may be appealed from ; and it is a proper case for appeal at once, Baltimore and Ohio B. B. Go. v. Wheel- ing, 13 Grattan (Va,), 40. 1855. 70. — From an order to show cause, granted ex parte returnable at a future day, and grant- ing a temporary injunction pending the mo- lion, no appeal will lie to the general term, until a hearing has been had on the original order to show cause, or on a motion to vacate or modify such order. Bloodgood t. Erie B. B. Co., 51 Barbour (N. Y.), 373. 1868. 71. — An appeal may be taken from an or- der made in vacation, overruling a motion to dissolve an injunction when the principles of the cause are thereby adjudicated. Bieh- nwnd and York Biver B. B. Co. v. Wicker, 13 Grattan (Va.), 375. 1856. 72. — An appeal lies in all cases from an interlocutory decree where an irreparable in- jury will follow its enforcement. An appeal was therefore held to lie from an order dis- solving an injunction restraining the city of New Orleans from removing the depot of a railway company. State v. Judge, Eighth District, 33 La. An., 51. 1871. 73. — On appeal from an order dissolving an injunction, the chancellor granted an or- der staying the proceedings to restrain which ■ the injunction had issued until the next sit- ting of the court of errors and appeals. A motion was made in that court, at its next sit- ting, for an order extending the stay until the hearing of the appeal. Held, that the court of errors and appeals had power to make such an order; but that the granting or refusing it rested in the sound discretion of the court. It was denied in this case. Doughty v. Somer- ville and Easton B. B. Co., 3 Halstead Ch. (N. J.), 639. 1848. 74. — The judgment dissolving an injunc- tion and dismissing the bill of the plaintiff, is not a final judgment from which an appeal lies. Pacific B. B. Co. v. Burger, 33 Mo., 578. 1863. 75. — An appeal to the supreme court does not lie from an ex parte order made at the chambers by a judge of the district court. Schurmeier ii. St. Paul and Pacific B. B. Co., 12 Minn., 351. 1867. 76. — An appeal will not lie to the supreme court from the action of the court or judge below, in granting a temporary restraining order. Cincinnati and Chicago B. R. Co. v. Suncheon, 16 Ind., 486. 1861. VII. General matters. 77. Charter. The act granting aid to the Air Line R. R. Co. construed, and held not to entitle any individual to bring suit under that act against any other railway company in the state in the manner in which the present ac- tion was brought. Jones v. Macon and Brum- wick B. B. Co., 39 Ga., 138. 1869. 78. County judge. An injunction order which forbids a railroad company from leas- ing or selling any part of its property is an injunction which suspends the "general and ordinary business of a corporation," within § 324 of the Code, and 1 Laws of 1870, ch. 151, § 1, and cannot bo granted bj' a county judge. Middletown v. Bondout and Oswego B. B. Co., 12 Abbott's Pr., N. S, (N. Y.), 276. 1872. INJUNCTION. 341 General Matters. 79. — A county judge lias no power or ju- risdiction, on granting an injunction ex parte, to grant an order to show cause, returnable before himself, why such injunction should not be continued. Middletown v. Sondout and Oswego B. B. Co., 43 Howard's Pr. (N. Y.), 481. 1872. 80. Discontinuance of suit. Selectmen of a town may discontinue a suit in equity to re- strain a railway company from unlawfully and dangerously running cars on its road; although a temporary injunction has been issued; and although some of the inhabitants of the town move to come in and prosecute the suit. Mears v. Boston and Neva York Central B. B. Co., 5 Gray (Mass.), 371. 1855. 81. Decree. A decree dissolving an in- junction previously granted to restrain a sale under a deed of trust, and directing a sale ac- cording to the deed of trust, and the bringing of the proceeds into court, is a final decree. Bailroad Co. ■». BradUys, 7 Wallace, 575. 1868. 82. Doubtful right; streets. It is not error to sustain an injunction until the trial, where the injunction is asked to restrain a city from opening an embankment of a rail- way, where the right of the city is doubtful. Mayor of Atlanta v. Georgia B. B. Co., 40 Ga., 471. 1869. 83. Irregularity. An injunction order issued by the court to restrain proceedings in another suit in the same court, is irregulai-, but is entitled to obedience, after service, until set aside. Srie B. B. Co. ii. Bamsey, 3 Lan- sing (N. Y.), 178. 1870. 84. .Tudgment — release of errors. The injunction of proceedings upon a judgment does not operate as a release of errors in the proceedings at law prior to the judgment. St. Louis, Alton and Terre Saute B. B. Co. v. Todd, 40 III, 8d. 1865. 85. Jurisdiction. The power of the court of common pleas to grant injunctions rests mainly if not entirely on the clause of the act giving that court equity jurisdiction. Moore V. Green Street, eta., B. B. Co., 3 Philadelphia Kep. (Penn.), 210. 1858. 86. — In courts of equity, injunctions are allowed by the judge in vacation solely under the authority of a statute. Gray v. illiicago, Iowa and Nebraska B. B. Co., 1 Woolworth (U. S. D. C), 63. 1864. 87. — The circuit court of the United States, may, in a proper case, enjoin the agents or officers of a state, whatever may be their grade, and this although the state may be the real party in interest; this doctrine ajDplied in this case against the governor of Missouri act- ing as the special agent of the state in the foreclosure of a mortgage lien upon a railway for the benefit of the state. Murdoch v. Wood- son, Governor, 2 Dillon (U. 8. C. C), 188. 1873. 88. — A citizen of another state owning property in Ohio, has a right to come into the circuit court of the United States, asking an injunction to restrain the wrongful acts of a corporation incorporated under the laws of Ohio. Works v. Junction B. B. Co., 5 McLean, 425. 1853. 89. — A court of equity in Vermont may enjoin parties from proceeding in a court of law in another state ; but the mere preference of the orators to have the matter determined by their own domestic tribunals is not a suf- ficient ground for the interference of a court of equity ; and the inability of the court to enforce the injunction is a good reason for re- fusing to grant it. Bank of Bellows Falls i>. Butland and Burlington B. B. Co., 28 Vt., 470 1856. 90. — The supreme court, sitting at Philar delphia, will not hear a motion for an interlo- cutory injunction, unless the judge at nisi prius regards the case as of such importance as to request the other judges to sit with him for that purpose. Philadelphia and Beading B. B. Co. . Barrie, 55 111., 336. 1870. 2. — The leaving of cars upon an inclined plane insecurely fastened, with a full knowl- edge of the danger of such a practice, consti- tutes gross negligence. Battle i>. W- and W. B. B. Co., 66 N. 0., 343. 1873. 3. Accidents. A railroad company is not responsible for the value of a mule, which passed through a gap in the fence near the railway, jumped on the track, only about fifty 34i INJURIES TO DOMESTIC ANIMALS. C!ommon Law Rules. yards ahead of the locomotive, and was killed by an inevitable collision, there being no proof of negligence, nnskillfulness, defective machinery, or recklessness. Louisville and Nashvitte R. B. Go. v. Wmnscott, 3 Bush. (Ky.), 149. 1867. 4. — Had the mule been on the railroad track far enough ahead to enable the engineer, by proper means, to stop the locomotive be- fore it reached the animal, or to have enabled him to retard the train's progress until the mule could have been driven out of all dan- ger of collision, it was his duty to see and save the mule, and for failing to do so, the railroad company would have been responsi- ble for its value. lb. 5. — Where animals were killed while gal- loping along the track at night, the night be- ing foggy, the engine having a good head- light, the alarm whistle being blown, and the speed of the train being reduced from fifteen to seven and a half miles an hour, it was held that the company was not liable. Haiford v. Mississippi Central R. R. Go., 43 Miss., 233. 1870. 6. — Where the engineer stopped his train to prevent a collision with a horse, and when the horse was apparently out of danger, starts ed the train, and the horse suddenly turned again upon the track and was killed, it was held, that the jury erred in finding that the engineer was guilfy of negligence. Wattson «. Railroad Go., 7 Phil. Rep. (Penn.), 349. 1869. 7. — Plaintiff's mare strayed upon a high- way and took fright at an approaching train and ran down the track ahead of the train, the railway being fenced. After proceeding a short distance on the track she fell upon a trestle bridge, her legs hanging down between the ties. The train was stopped, and after several efforts to remove her, the employes of of the company sawed the ties off and let her fall through, the bridge being about seven feet high. Held, that under these circumstan- ces the employes acted with ordinary pru- dence and the owner could not recover. Need- ham V. Ban Francisco and San Jose R. R. Go., 37Cal.,409. 1869. 8. Comparative negligence. In this class of actions, the jury may compare the degrees of negligence. Illinois Oentrai R. R. Go. v. Middlesworih, 43 III., 64 1867. 9. — The plaintiff alone is in fault, or if both parties are equally in fault in committing an injury, the aggrieved party cannot recover. Aurora Braruih R. R. Co. v. Orimes, 13 111., 585. 1853. 10. — If stock is injtired by a railroad company, when the injury might have been prevented by the use of ordinary care, the company will be held liable although the owner of the stock was also in some degree negligent. Central R. R. Co. v. Davis, 19 6a., 437. 1856. 11. — The question of the degree of negli- gence of the two parties is one for the detei-mi- nation of the jury. St. Louis, Alton and Terre Haute B. R. Co. v. Todd, 36 111., ^iQ, 1865; Illinois Central R. R. Co. v. Wren, 43 ib., 77, 186T. 12. Contributory negligence. Where there is mutual negligence, if the defendant cannot avoid the accident by reasonable care and skill, the plaintiff cannot recover ; nor can he recover when his negligence is proximate, and directly and materially conti-ibutes to the result, if the defendant could not have avoided the accident by ordinary care. Indianapolis and Cincinnati R. R. Go. v. Wright, 23 Ind., 376. 1864. \'A. — In case of injuries to cattle, though there be negligence upon the part of the plaintiff, remotely connected with the injury, yet, if the defendant's fault or negligence was the immediate and proximate cause of the injury, the plaintiff may maintain his action for damages. Vicksburg and Jaekton R. R. Go. V. Pattm, 31 Miss., 156. 1856. 14. — In an action against a railroad com- pany for the negligent killing of animals be- longing to the plaintiff, the court instructed the jury that " proximate negligence is negli- gence at the time of the happening of the injury complained of;" that "remote negli- gence is that which does not occur at the time of the injury;" that he thought "the plaintiff, in suffering his animals to go at large in the vicinity of the railroad, was only guilty of remote negligence;" that if so, and if the de- fendant was guilty of gross negligence, the latter was liable for the damage. Eeld, that the instruction was erroneous, and that the plaintiff's right to recover depended on the degree of negligence on his part contributing to the injury, as well as upon the time of its INJUEIE8 TO DOMESTIC ANIMALS. 345 Common Law Rules. happening. Chicago and Northweatem B. B. Go. «. Qtois, 17 Wis., 428. 1863. 15. — If tlie conduct of the owner is of such a character as to justify the belief that be desired the injury to happen, the railroad company will not he liable, though the road is not fenced. J^ersonville, Madison and In- dianapolis B. B. Oo. V. Dunlap, 29 Ind., 436. 1868. 16. Degree of care required. A railway company is not liable for injuries done to cattle by its trains, unless the trains doing the injury were run without proper care. Wil- liams ». Michigan Central B. B. Co., 3 Mich., 259. 1851. 17. — Railway companies are responsible for the value of animals killed by reason of the negligence of their employes. Lapine v. New Orleans, Opelousas and Great Western B, B. Co., 20 La. An., 158. 1868. 18. — In an action for an injury to the plaintiff, resulting from the negligence of the defendant, the care required of the plaint- ifi, is that degree of care which may reason- ably be expected from one in his situation — i. e., reasonable care ; and if this degree of care be exercised by him, the want of a greater degree will not preclude him from a recovery for the negligence of the defendant. Beers v. Mousatonie B. B. Co., 19 Conn., 566. 1849. 19. — What will be deemed reasonable care in any ease, will depend on the peculiar cir- cumstances of that particular case. lb. 20. — Reasonable care upon the part of railway companies is such care and prudence in running their cars, as a prudent man, en- gaged in the same business, would use to pre- vent such injury, having regard to the means and instruments employed. Mississippi Cen- tral B.B.Co. V. Miller, 40 Miss., 45, 1866; Gormam, v. Pacific B. B. Co., 36 Mo., 441, 1868 ; Tarioater v. Hannibal and St. Joseph B. B. Co., 43 ib., 193, 1868; Viakers v. Same, ib., 198; McPheeters v. Same, 45 ib., 33, 1869. 21. — The only justification to a railroad company for injury to cattle upon its track is that, in the prosecution of its ordinary and lawful business, the act could not be avoided by the use of such care, prudence and skill as a discreet man would put forth to avoid it. New Orleans, Jackson and Great Northern B. B. Co. V. Field, 46 Miss., 578. 1873. 22. — A railway company is bound to have in charge of its engines men of reasonable skill and judgment, and the engineers thus in charge must exercise such judgment and skill in avoiding injury to cattle on the track, hav- ing due regard to the safety of the train and passengers, in order to exonerate the company from liability. Parker i). Dubuque S. W. M. B. Co., 34 la., 399. 1872. 23. — There is no distinction between rail- roads and ordinary highways in regard to the degree of care which the law requires, on the part of those who have the direction or man- ageinent of vehicles upon them. Beei'S v. Hou- satonie B. B. Co., 19 Conn., 566. 1849. 24. — Railway companies are liable for in- juries done to cattle on their track, where the injury could have been prevented by use of ordinary care. Bichmond v. Sacramento Val- ley B. B. Co., 18 Cal., 351, 1861 ; Illinois Central B. B. Oo. V. Baker, 47 111., 295, 1868; Cincin- nati and Zanesville B. B. Co. v. Smith, 22 Ohio St., 227. 1871. 25. — Where a beast on a railroad would not be driven off from the track by a person trying to do so, and could not be scared off by the steam whistle, the engineer striving to ar- rest the progress of the train, before it reached it, but it was run over and killed ; it was held, not to be negligence so as to subject the com- pany. Montgomery v. Wilmington and Welden B. B. Co., 6 Jones' Law (N. C), 464. 1859. 26. — Where the engineer in charge at the time, could, by use of ordinary care and skill, without danger, have stopped the train in time to avoid the collision, although the animals were wrongfully upon the track, the company is nevertheless liable. Toledo, Peoria and War- saw B. B. Co. V. Bray, 57 111., 514. 1871. 27. — Although an injury has occurred at a point where the railway ccnnpany is not re- quired to fence, the company is liable if the injury might have been prevented by the use of ordinary care. Boclcford, Bock Island and St. Louis B. B. Co. «. Lewis, 58 111., 49, 1871 ; Toledo, Peoria and Warsaw B. B. Co. v. Ingra- ham, ib., 130. 28. — To support trespass for an injury done by a party in the exercise of his lawful rights, it must appear that no neglect or want of care on the part of the plaintiff cooperated in producing the injury. Waldron v. Portland, Saco and Portsmouth BB.Co., 35 Me., 423. 1853. 316 IITJUEIES TO DOMESTIC ANIMALS. Common Law Rules. 29. — In such suit, it is for the plaintiff to show the exercise of ordinary care on his part, and the omission of some duty, or the commis- sion of some wrong, on the part of the defend- ant, hy which the injury was produced. lb. 30. Evidence. The plaintiff may either prove negligence or show facts from which negligence will be inferred. Calvert v. Hanni- bal and St. Joseph M. B. Go., 38 Mo., 467. 1866. 31. — The mere killing of an animal by a railroad train, is not evidence of negligence upon the part of the company. Walsh v. Vir- ginia and Truckee S. S. Co., 8 Nev., 110, 1873; Scott V. Wilmington and Raleigh B. B. Oo., 4 Jones' Law (N. C), 433, 1857. 32. — Before the owner of stock can recov- er for its injury, he must first show negligence on the part of the railway company. The fact of the injury raises no presumption of negligence. Bethje v. Souston and Texas Gen- ti'al B. B. Go., 36 Tex., 604. 1863. 33. — The absence from the trial of the employes who were on the train when the animal was killed, raises a strong presump- tion against the company. Murray v. South Carolina B. B. Co., 10 Richardson's Law (So. Car.), 327. 1857. 34. — It makes a prima facie case of negli- gence for the plaintiff to show that his cattle were injured while pasturing upon his own land. Banner v. South Carolina B. B. Co., 4 Richardson's Law (So. Car.), 339. 1851. 35. — The fact of killing does not make out a.prima facie case of negligence where the animal killed is a dog. Wilson v. Wilmington and Manchester B. B. Go., 10 Richardson's Law (So. Car.), 52. 1856. 36. — In order to recover against a railway company for injury to stock, it is incumbent on the owner to show that such injury result- ed from the negligence of the railway com- pany. Georgia B. B. Go. v. Anderson, 33 (Ja., 110. 1861. 37. — time. Evidence of a want of rea- sonable and proper care upon the part of the defendant should be confined to the time of the injury. Mississippi Central B. B. Co. v. Miller, 40 Miss., 45. 1866. 38. Fences. The law in Ohio does not re- quire railroad companies to fence their roads, but when they leave their roads uninclosed, they take the risk of intrusions thereon by animals running at large, the same as other proprietors who leave their land uninclosed ; so that tlie owner of domestic animals, in al- lowing them to be at large, takes the risk of their loss, or of injury to them by unavoidable accident; and the company, in leaving its road unprotected by an inclosure, runs the risk of animals at large getting upon the road, without any remedy against the owner of the animals. Kerwhacker v. Cleveland, Co- lumbus and Cincinnati B. B. Co., 3 Ohio St., 173, 1854; Central Ohio B. B. Co. v. Lawrence, 13 Ohio St., 66, 1861. 39. — Having left its railroad uninclosed through a country where domestic animals are allowed to be at large, and thus exposed to the casualties of the animals accidentally get- ting upon the railroad track, it is the duty of the railroad company, acting through its agents, to use at least ordinary and reasonable care and diligence to avoid unnecessaiy injury to the animals, when found in the way of a train on the road. lb. 40. — The first and highest object of the attention of the employes of the company, is due regard for the safety of the persons and property in their charge on the train, for which they are held to a high degree of care; and so far as consistent witli this paramount duty, they are bound to the exercise of what, in that peculiar business, would be reasonable and ordinary care to avoid unnecessary injury to animals straying upon their uninclosed road; and for any injury to animals arising from a neglect of such care, the company is liable in damages to the owner. lb. 41. — A railroad company is bound to exer- cise ordinary care and prudence in running its trains, and is liable for injuries to cattle on its track occasioned by the negligence or mis- conduct of its agents or servants. When the ti-ack is properly inclosed, the company is only liable for gross negligence. Alger v. Mis- sissippi and Missouri B. B. Co., 10 la., 268. 1859. 42. — It appeared that the plaintiff's horse escaped in the night from his pasture on the railroad track on account of the want of a proper ftence along the same, and was found in the morning a mile from the plaintiff's land in a rocky pasture, seriously injured in the leg, and there was some evidence tending to show that this injury was received in the pasture where he was found. The court INJURIES TO DOMESTIC ANIMALS. 3i7 Common Law Rules. charged that if the jury were satisfied from the evidence " that tliere was a clear connec- tion between the escape of the horse and the injury received, the plaintiff would be entitled to recover." Held, that the charge was erro- neous in not instructing the jury to distinguish between a direct and a remote connection be- tween the want of fence and the injury, and that if there was not a direct connection the plaintiff could not recover. Holden v. Rutland and Burlington R. B. Co., 30 Vt., 297. 1858. 43. — Railway companies are not bound to fence their tracks. Memphis and Clw/rleston R. R. Co. V. Orr, 43 Miss., 379. 1870. 44. Gross negligence and wanton in- juries. Railway companies are liable for gross negligence or wanton malfeasance of their servants, whereby an injury results to cattle upon their track. Pritchard ii. La Crosse and Milwaukee R. R. Co., 7 Wis., 333. 1859. 45. — It is gross negligence in an engine driver not to have observed stock upon or near the track at a road crossing for eighty or one hundred yards before reaching that point, when he could readily have done so. Chicago, Burlington and Quincy R. R. Co. v. Cauffman, 88 111., 434. 1865. 46. — In an action against a railway com- pany to recover damages for the killing of the plaintiff's cattle by the train of defendant, the negligence of the company must be shown. If the killing was entirely accidental or was the willful act of the engineer, the company is not liable. Banner v. South Carolina R. R. Co., 4 Richardson's Law (So. Car.), 839. 1851. 47. — The rule in case of Banner v. South Carolina R. R. Co., 4 Rich. L., 339, applies to a case of the killing of a horse at night. Murray v. South Carolina B. R. Co., 10 Rich- ardson's Law (So. Car.), 327. 1857. 48. — A railway company will be liable for either recklessness or want of common care, at the time and after cattle are discovered by its employes on the track, or for wanton in- jury. Jackson v. Rutland and Burlington R. 2?. Co., 25 Vt, 150. 1853. 49. Injuries upon farms. In an action for killing a cow, it appeared that the railroad divided plaintiff's farm into two parts, and it did not appear that there was any highway or ordinary passway that enabled him to get from one side of his farm to the other, with- out crossing the railroad. Held, that the rail- road company hold its easement subject to the plaintifi's right to cross and recross to and from different sections of his farm, ijrovided such right was reasonably exercised ; that it was the duty of the jury to ascertain if either party had been guilty of negligence ; if the plaintiff saw his cow on the track about the ordinary train time, or if his cattle were turned upon land adjoining said track, and were loitering along near the track, such facts might be evidence of negligence which it was proper for the jury to consider. Housatonie R. R. Co. V. Waterbury, 28 Conn., 101. 1854. 50. — Though one who grants a right of way through his field for running a railroad, is not bound to inclose his field, it does not follow that the company is noti'csppnsible for injury done to stock on the road by the train, in no case ; nor is' the company under legal obligation to inclose the railroad. Louisville and Frankfort R. R. Co. v. Milton, 14 B. Mon- roe (Ky.), 75. 1853. 51. Management of trains — pleading. An allegation in the pleading of negligence in the management of the train, is not sup- ported by proof that too heavy a train was fastened to the locomotive. Central Military Iract R. R. Co. ». Rochafellow, 17 111., 541. 185G. 52. Negligence a qxiestion of faot. In an action wherein damages ai'e sought to be re- covered on account of injuries resulting to property from the negligence of defendant, the question of negligence is one of fact for the jury, and their finding thereon, under proper instructions, will not be disturbed, unless clearly against the weight of testimony. Bo^gs V. Chicago and Northwestern R. R. Co., 29 la., 577. 1870. 53. — Whether the circumstances attending the transaction constitute negligence, will not, though admitted, be decided by the court, as matter of law, but will be left to the jury, as evidence for them to pass upon. Beers v. Housatonie R. R. Co., 19 Conn., 566. 1849. 54. Rate of speed. Whether under all the circumstances of a particular case, a railroad company is guilty of negligence in running its train at a certain rate of speed, is a question for the jury. Morse v. Rutland and Burlington R. R. Co., 37 Vt., 49. 1854. 55. — Railway companies have the right to run their trains at such a rate of speed as the 348 INJURIES TO DOMESTIC ANIMALS. Common Law Bules. exigencies of travel and freiglits require, with- out regard to tlie liability of stock to wander upon the track. Baifordv. Mississippi Central B. B. Co., 43 Miss., 233. 1870. 56. — In determining the rate of speed at which a railway company may run its trains, it is not bound to consider the increased risk to cattle running at large in the vicinity of its track. Central Ohio B. R. Co. v. Lawrence, 13 Ohio St., 66, 1861 ; JS'eut Orleans, Jackson and Cfreat NcrtTiem B. B. Co. «. Field, 46 Miss., 573. 1873. 57. — Where it appeared that a train was running at a greater than the usual speed, upon a straight part of the road, in the day time, and that one of several cattle, that were feed- ing near, and crossing the road, was killed by the locomotive, it was Jield, to be a negligence that the speed of the train was not lessened, nor the usual mode of driving off stock by the blowing of a steam whistle resorted to. Ay- eoek V. W. and W. B. B. Co., 6 Jones' Law (N. C), 331. 1858. 2. Stock running at large. 58. Animals escaping from inclosares. A railroad company is not liable for negligently running an ergine upon and killing the plaint- iff's cattle, which have escaped from his in- closure and strayed upon the track. Munger V. Tonawanda B. B. Co., 4 N. T., 349. 1850. 59. — Where cattle enter from a.highway, where it crosses a railroad, upon the track of such railroad, such entry is a trespass, al- though there is no obstacle to prevent such entry, and the town has made regulations re- quiring fences of a particular kind, and allow- ing cattle to run at large on the highways. Tonawanda B. B. Co. v. Munger, 5 Denio (N- T.), 255. 1848. 60. — common law. Every unwarrantable entry by a person or his cattle on the land of another, is a trespass. lb. 61. — This is so at common law, though the entry be by cattle coming from the high- way, and the land be unfenced ; and it is no excuse that the owner exercised care and pru- dence to keep them in his own inclosure. lb. 62. — Cattle escaping from the owner's inclosure, into a highway, against his will, are not " lawfully, going at large," within the meaning of the statute, though there be a town regulation authorizing cattle to run at large. Jb.; Munger v. Tonawanda B. B. Co., 4N. T., 349. 1850. 63. — A party whose cattle, without fault on his part, escape from his inclosure and wander upon a railroad track, and are there killed by alleged carelessness in not slacken- ing the speed of the locomotive, cannot re- cover for their loss from the railroad company. Price u. New Jersey B. B. Co., 2 Vroom (N. J.), 229, 1865 ; Same v. Same, 3 ib., 19, 1866. 64. — The plaintiff had driven his cows after dark and left them in the highway in front of his house, intending to milk them there, and then put them into his inclosure, and while they wei-e so left, went into his house for a short time. While he was gone they strayed away and he searched for them until eleven o'clock at night. About ten o'clock at night, they were run over by the de- fendant's cars. The railroad was about a mile from the plaintiff's house, and he had not searched in that direction. The suffering of cattle to run at large was forbidden by statute. The judge charged the jury that the plaintiff had a right to place his cows in the highway for the temporary purpose of milking them, and that if he left them there, intending to milk them within a reasonable time and then to put them into his inclosure, and exercised or- dinary care for the purpose of keeping them, he was not to be regarded as having suffered them to go at large within the meaning of the statute, and was not guilty of such negligence as would prevent his recovery. Hdd, on mo- tion of tlie defendant for a new trial, that the question of negligence was properly one of fact for the jury, bnt that, so far as it could be- treated as involving any legal question, the law was properly stated in the charge. Btdh- ley V. New York and New Haven B. B. Co., 27 Conn., 479. 1858. 65. — Plaintiff's horses escaped from the pasture into the highway, and went from the highway through a defective cattle guard maintained by defendant, upon defendant's railway track, where they were kiyed by a passing train. Seld, that defendant was liable for the value of the horses. The defendant was bound to guard against animals wrong- fully as well as those rightfully in the high- way; and the negligence of plaintiff in per- mitting the horses to escape would not bar a INJURIES TO DOMESTIC ANIMALS. 349 Common Law Rules. recovery. Slieaf v. Utica and Black River B. B. Co., 2 N. Y. Sup. Ct., 388. 1873. 66. — A distinction should be made be- tween the case of an owner whose cattle es- cape from his inclosure and stray upon a rail- road against his will, and that of one who voluntarily permits them to go there, or to range in ijlaces where it is probable that they will do so. Ohicago and Northwestern B. B. Co. V. Goss, 17 Wis., 428. 1863. 67. — An owner of mules, killed upon the track of a railroad by an engine and cars, cannot recover damages therefor, though they escape from a properly fenced inclosure with- out his knowledge, and were on the highway at its intersection with the track, at the time of the accident. North Pennsylvania B. R. Go. B. Mehman, 49 Penn. St., 101. 1865. 68. Highways. If a party is guilty of neg- ligence, and allows stock to run in a highway near a railway crossing, he cannot recover for injuries received by such stock, although the servants of the railway company may also have been guilty of negligence. Ohicago, Bur- lington and Quiiicy B. B. Co. ■». Oaniffnum, 23 111., 513, 1862 ; Ola/rk i'. Syracuse and Utica B. B. Co., 11 Barbour (N. Y.), 112, 1851. 69. Local regulations. In a suit against a railroad company for killing a cow, the injury was alleged to have been caused by the neg- ligence of the servants of the company. The evidence showed that the county board had passed an order allowing such animals to run at large; that the cow was killed at the cross- ing of a public highway; that the whistle was not sounded nor the bell rung, and that the train was running at an unusual speed. It was storming at the time, making it difficult to see or hear at any great distance. Held, that the defendant was not liable. Michigan Southern and Northern Indiana B. B. Co. ». Fisher, 27 Ind, 96. 1866. 70. — Cattle are not presumed to be law- fully at lai'ge. There must be proof that the' town gave permission. Perkins v. Eastern B. B. Co. am,d Boston and Maine B. B. Co., 29 Me., 807. 1849. 71. Male animals. The statute prohibiting stallions from running at large was not in- tended to apply to colts until they were of such an age as to be troublesome to mares or dangerous to run at large. Aylesworth v. Chi- cago, Bock Island and Pacific B. B. Co., 30 la., 459. 1870. 72. — Whether a railway company is liable under § 6, ch. 169 of the Laws of 1862, for killing a bull running at large in violation of law, even in case of gross negligence, quoere? But inasmuch as it was conceded by counsel that it would, the judgment in this case was affirmed. McOool v. Oalena and Chicago Un- ion B. B. Co., 17 la., 461. 1864. 73. Negligence of owner. Where there was no order of the commissioners shown authorizing cattle to run at large, and the plaintiff permitted "his cattle to run at large in the vicinity of a railway where fencing was not required, he was held guilty of such neg- ligence as to prevent a recovery for their injuries. Indianapolis, Cincinnati and Lafay- ette B. B. Co. V. Earter, 88 Ind., 557. 1872. 74. — The owner of cattle, permitting them to run at large, assumes some of the risk of their injury by trains of cars, and it is incum- bent upon him to show that they were injured by some mismanagement of the company. Memphis and Charleston B. B. Co. v. Blakeney, 43 Miss., 218, 1870; Baiford v. Mississippi Central B. B. Co., 43 Miss., 233, 1870 ; O'Ban- non v. Louisville, Cincinnati and Lexington B. B. Co., 8 Bush (%.), 348, 1871 ; Louisville and Frankfort B. B. Co. v. Milton, 14 B. Mon- roe (Ky.), 75. 1853. 75. — A person is guilty of negligence who permits h-is animals to go upon a railroad track at a place where the company is not re- quired by law to fence. Illinois Central B. B. Co. V.Phelps, 29 111., 447, 1862 ; see Cfreat Western B. B. Co. v. Geddis, 83 ib., 304, 1864; Illinois Central B. B. Co. v. Qoodwin, 30 ib., 117. 1868. 76. The owner of cattle is bound to keep them in his own close at his peril; and noth- ing but willfulness on the part of a locomo- tive engineer would make him liable for the loss of a cow, exposed by the fault of the owner upon the track of a railroad. Vande- grift V. Bediker, 2 Zabriskie (N. J.), 185. 1849. 77. Rules in the several states — Georgia, Live stock have the right to run at large in Georgia. Macon and Western B. B. Co., v. Lester, 30 Ga., 911, 1860; Macon and Western B. B. Co. V. Baber, 43 ib., 800. 1871. 78. — Illinois. The fact that the animal in- jured was running at large will not excuse the 350 INJURIES TO DOMESTIC ANIMALS. Common Law Bules. company if there was no law proliibitiug such animals from running at large. Toledo, Wa- bash and Western R. B. Co. v Turgusson, 43 111., 449, 1867; Chicago, Burlington and Quin- cy B. R. Co. V. Caufman, 38 111., 434. 1865. 79. — Iowa. In Iowa, cattle have the right to run at large. (See Wagner v. Bissel, 3 Iowa, 396, 1856; Heath v. Coltenbaek, 5 ib., 490, 1857;) Alger v. Mississippi and Missouri R. R. Co., 10 Iowa, 268, 1859 ; Evans v. Burlington and Mis- souri Biver B. B. Co., 21 Iowa, 374. 1866. 80. — Kansas. Ordinarily, wlien a person allows his cattle to run on another's land, the owner of the land is not liable for injuries re- ceived by the cattle while there, unless the Injury is occasioned by his wanton act or gross neglect. It was held error to charge the juiy that a railway company was liable for the killing of cattle on its road through negli- gence or want of ordinary care. Union Pa- cific B. B. Co. u. Bollins, 5 Kansas, 168. 1869. 81. — Although in Kansas, cattle are free commoners, the defendant was not liable unless the injury was the result of gross neg- ligence. Ib. 82. — Maryland. The owner of cattle is bound to keep them in an inclosure, or in cus- tody. Baltimore and Ohio R. R. Co. n. Larribom, 12 Md., 257. 1858. 83. — Michigan. The fact that cattle, etc., axe free commoners, by a vote of a township, does not confer upon individuals the right to graze horses and cattle upon a railway, the road being in law neither a highway or pub- lic common. Williams v. Michigan Central B. R. Co., 2 Mich., 259. 1851. 84. — Minnesota. The common law rule in relation to cattle is in force in Minnesota, and where a cow was killed by a railway train while running at large, it was Jield, that ;he owner of the animal was guilty of contribu- tory negligence. Locke v. St. Paul and Pacific B. B. Co., 15 Minn., 850. 1810. 8.5. Mississippi. The common law, so far as it relates to the right of permitting cattle to run at large, is not in force in Mississippi. Vicksburg and Jackson B. R. Co. v. Patton, 31 Miss., 156, 1856; Neuo Orleans, Jackson and Oreat Northern R. R. Co. v. Field, 46 Miss., 573, 1872. 86. — Railway companies are liable for injuries done to cattle upon their uninclosed roads, where such injury is caused by a want of reasonable care and prudence in running their trains. Ib. 87. — They are bound to keep their ma- chinery and road in goo j order, and to have a sufficient number of faithful and trustworthy employes to manage and control their trains. Ib. 88. — Missonri. The owner of cattle is un- der no obligation to keep them on his own premises; if, however, he should permit them to roam at large and they should go upon the track of a railroad and be injured unavoida- bly, through no want of care on the part of the employes of the company, he would be without redress. Gorman v. Pacific R. B. Co., 36 Mo., 441, 1858; Tarwater v. Hannibal and St. Joseph B. B. Co., 43 ib., 193, 1868; Vickers v. Same, ib., 198; McPheeters v. Same, 45 ib., 23. 1869. 89. — If the road is not fenced, that fact should be considered in estimating the degree of care required of the company. Ib. 90. — Ohio. Cattle have the legal right to run at large in the state of Ohio. Cleveland, Columbus and Cincinnati B. R. Co. v. Elliott, 4 Ohio St., 474, 1855; Cranston v. Cincinnati, etc., B. B. Co., 1 Handy (Ohio), 193. 1854. 91. — Pennsylvania. An owner of cattle cannot recover for an injuiy done by a train to the cattle while rurming at large. On the contrary, he is liable for any injury done by them to the company or passengers. Railroad Co. V. Skinner, 19 Penn. St., 298. 1853. 92. — A railway company has the right to the exclusive possession of its right of way. Ib. 93. — South Carolina. Cattle are free com- moners in South Carolina, and it is no trespass for them to go upon an uninclosed railway. Mmray v. South Carolina R. B. Co., 10 Rich- ardson's Law (So. Car.), 237. 1857. 94. — It is not negligence, therefore, for the owner of a horse to permit it to run at large. /*. 95. Streets. Apersonwho voluntarily suf- fers his horse to go at large upon the public Streets, and stray upon the railroad, cannot re- cover for injuries to the horse, happening through the negligence of a railroad company. Halloran i>. Neu> York and Harlem R. R. Co., 2 E. D. Smith (N. Y.), 257. 1853. 3. Tresjpassing animals. 96. Duty of railway companies. The par- amount duty of a railroad company, through INJURIES TO DOMESTIC ANIMALS. 851 Common Law Rules. its agents entrusted with the conduct of a train, is to look to the safety of the persons and property thereon ; subordinate to whicli is the duty to avoid unnecessary injury to animals straying upon the road. Louiamlle and Frank- fort B. B. Oo. V. Balla/i'd, 3 Metcalfe (Ky.), 177. 1859. 97. Fences. Where the land owner is un- der an obligation to fence the tracic of a rail- way through his premises, and fails to do so, and his horses stray upon the track in conse- quence and are injured, nothing short of in- tentional wrong or gross carelessness would render the railway company liable. Oincin- nati, Hamilton a/nd Dayton B. B. Oo. v. Water- son, 4 Ohio St., 434. 1854. 98. Gross negligence and willful acts. If an animal is wrongfully on the track of a rail- road, but is injured, while on the same, by the gross negligence or willful misconduct of the company's agents, the company is liable. La- fayette amd Indianapolu B. B. Oo. v. Shriner, ff Ind., 141, 1855 ; Northern Indiana B. B. Oo. ■0. Martin, 10 ib., 460. 1858. 99. — Even where cattle are trespassing upon the track, the company is liable for their injury, if it appears that no means were used to avoid the killing of the cattle, and the em- ployes showed such an inattention and disre- gard of consequences, such a degree of rash- ness or wantonness as evinced a total want of care for the safety of the cattle, or a willingness to destroy them, though the destruction may have been unintentional. Stuche v. Milwaukee and Miss. B. B. Oo., 9 Wis., 303. 1859. 100. — The circuit judge in his charge to the jury read the entire syllabus of the case of Olark V. The Utica and Syracuse B. B. Oo., 11 Barb., 113, and instructed the jury that that was the law of this case. Held, that because the facts were dissimilar, the instruction was calculated to mislead the jury, and therefore erroneous. Ib. 101.— -In the case cited in 11 Barb., the court stated that where cattle were trespassers upon a railway, the company was not liable for their killing, even though it was occa- sioned by gross negligence on the part of the company. Held, that an instruction embrac- ing such statement was erroneous. Ib. 102. Liability of railway companies. The plaintiff cannot succeed if it appears that the Injury complained of was received by him while he was trespassing upon the defendant, without proving that such injury was willful and intentional, on the part of the defendant. Terry v. New York Oentral B. B. Oo. 33 Bar- bour (N. Y.), 574. 1855. 103. — If the plaintiff's cattle are wrong- fully on the track of the railroad, the company is not liable for negligently running an engine upon and killing them. Talmadge v. Bensselaer and Saratoga B. B. Oo., 13 Barbour (N. Y.), 498. 1853. 104. — If the owner of sheep negligently suffers them to stray on a railroad, where they are killed by a passing train, the railroad company is not liable in damages. Eames v. Salem and Lowell B. B. Oo., 98 Mass., 560. 1868. 105. — Where cattle are trespassing upon the track, a railway company is not liable for their injury unless such injury occurs through a want of ordinary care upon the part of *the employes. Engineers are required to use the ordinary means, the bell and whistle, to re- move animals from the railway track; but when such means fail, then the question whether the engineer should stop flie train, check or increase the speed, if in his power, would depend upon what the safety of the passengers and train required, and whatever is required in this respect, under the cir- cumstances, would be allowable as to ani- mals wrongfully on the track. Bemis v. Oon- necticut and Passumpsic B. B. Oo., 43 Vt., 375. 1869. 106. Owner not at fault. Where cattle are at large without the fault of the owner, and go upon the track of a railroad, and are there killed through the negligence of the railroad company in the management of its train, the owner is not precluded from the right to recover damages by the fact that the cattle were trespassers on the railroad. Isbell V. New York and New Haven B. B, Oo., 37 Conn., 393. 1858. 107. Right of way lands — title. Rail- road companies have an absolute ownership in fee of the land on which their roads are built, and if cattle graze upon these lands, it must be as a favor, not as a right Ohieago and Mississippi B. B. Oo. v. Patchin, 16 111., 198, 1854; Great Western B. B. Oo. v. Thompson, 17 ib., 131, 1855 ; Oentral Military Tract B. B. Oo. v. Boekafellow, ib., 541, 1856. 352 INJURIES TO DOMESTIC ANIMALS IL Damages. 108. Double damages — appeal. Where, in an action for double damages for killing stock, the court below erroneously excluded certain evidence which was necessary to the recovery of such damages, and the verdict and judgment were only for actual damages, the supreme court will not^ on reversing the ruling of the court below, enter judgment for double damages. Mendell b. Chicago and NoHhwestem R. R. Co., 20 la., 9. 1865. 109. — constitutioiial law. The legisla- ture has the power to fix the consequences at- tending the failure of a railroad company to pay the simple or actual value of property injured or destroyed as contemplated by the statute, ch. 169, acts of 1863, § 6, is not uncon- stitutional. Jones V. Galena and Chicago Union JJ. iJ.-Co., 16Ia.,6. 1864 110. — Lessees. A statute requiring railway companies to fence their roads, and providing that in case they fail to do so, they shall be liable for damages done to live stock, does not apply to the lessees of such companies operating the roads. Liddle v. Keokuk, Mt. Pleasant and M. R. R. Co., 23 la., 378. 1867. 111. — But the lessees, though not liable under the statute, would still be liable in case of negligence. lb. 112. — notice. Proof of the service of the notice of injury and affidavit, on the station agent may be proven by the return of the sheriff or his deputy, verified by affidavit of the officer. Brandt v. Chicago, Rock Island and Pacific R. R. Co., 26 Iowa, 114. 1868. 113. — To render a railroad company liable for double damages, it must have been served with a written notice of the killing or injury, accompanied by the original of the affidavit of loss; a copy of the affidavitisnot sufficient. Ch. 169, Laws of 1862. McNaught ». Chiwgo and Northwestern R. R. Co., 30 Iowa, 336. 1870. 114. — parties. In a suit against a railroad company for double damages for injuries to cattle, brought under the statute (W. S., 310, § 43), the party injured is the proper plaintiff. Fickle V. St. Louis, Kansas City and Northern iJ. 5. Co., 54 Mo., 219. 1873. 115. — tender. A tender, made within thirty days, in order to avoid the liability for double damages, must be an amount equal to the full value of the stock. A tender of nearly the amount will not be sufficient. Brandt v. Chicago, Rock Island and Pacific R. R. Co., 26 Iowa, 114. 1868. 116. Evidence. In a suit against a rail- road company for damages for injuring cattle, the witnesses estimated the value of the prop- erty variously, from $30 to $40. Held, that the court might find the value to be $37. Mad- ison and Indianapolis R. R. Co. v. Herod, 10 Ind., 3. 1857. 117. Exemplary damages. In case of gross negligence or wanton and willful mis- chief by defendant's agents, exemplary dam- ages may be allowed. Vicksburg and Jackson R. R. Co. V. Patton, 31 Miss., 156. 1856. 118. Measure of damages. The measure of damages is the value of the property des- troyed. Toledo, Peoria and Warsww R. R. Co. V. Arnold, 43 111., 418. 1867. 119. Value. Where an animal is so badly injured by a passing train of cars upon a rail- road track that it must soon die from the in- jury, and the railroad company is liable there- for, and the owner kills the animal, but re- ceives no benefit from it after the injury, evi- dence of the value of the animal after the injury is not admissible for the purpose of reducing the damages. Indianapolis, Pitts- burgh and Cleveland R. R. Co. v. Mustard, 34 Ind., 50. 1870. 120. — Where it appears that the weather was warm and the cattle when found were swollen and unfit for beef, the plaintiff is en- titled to a verdict for their full value. Toledo, Peoria and Warsaw R. R. Co. v. Sweeney, 41 111., 226. 1866. 121. — It cannot be objected that the owner failed to perform his duty in the premises, in not disposing of the stock to some profit, where, on the evening of the day ■when the injury occurred, the stock was taken posses- sion of and buried by the employes of the defendant. Toledo, Peoria and Warsaw R. R. Co. T. Parker, 49 111., 385. 1868. 122. — It is for the jury to say what was a reasonable time in which the owner should have taken possession of the injured stock. lb. 123. — Where it appears that animals fit for beef are not killed, nor so injured but that they are of value for food, it is the duty of the owner to dispose of them to the best INJURIES TO DOMESTIC ANIMALS. &5? Highways. advantage. Illinois Central B. H. Co. v. Finnigm, 31 111., 646. 1859. 124. — Where the company is liable under the statute, the owner may abandon the injured animal, and the railroad company will be lia- ble for the value of the animal when injured. Ohio and Mississippi B. B. Go. v. Hays, 35 Ind., 173. 1871. III. Highways. 125. Burden of proof. In an action for killing cattle by a train at a crossing of a highway, in the absence of any evidence that the cattle were lawfully upon the road, the burden of proof is upon the plaintiff cf fur- ther proving negligence on the part of de- fendant. Galpin v. Oliicago and Northwestern B. B. Oo., 19 Wis., 604. 1865. 126. Fences. Bailroad companies are re- quired by statute to fence their roads, and construing this law as a police regulation, for the safety of the public, the fact that a rail- road runs along side of a public highway would seem to require peculiar care on the part of the company in complying with the law. Indianapolis and Cincinnati B. B. Co. v. Guard, 24 Ind., 232. 1865. 127. — Where cattle are injured at a high- way crossing, the test of the liability of the company is, whether, at the time of the acci- dent, reasonable and proper care was exer- cised to avoid the injury, the cattle not being on the track by the negligence of the plaint- iff. Baleom e. Dubuque and Sioux City B. B. Co., 31 la., 103. 1866. 128. — In the absence of proof of negli- gence in such a case, a railroad company is not liable for the killing of cattle which had strayed upon the track at a highway crossing. Loganspoii, Peoria and Burlington B. B. Co. V. CaldweU, 38 111., 280. 1865. 129. — When a railroad company is duly authorized to lay its track in one of the streets of a city, it is not, at all events and without proof of negligence or want of skill and reas- onable care, liable for accidents, which may be caused thereby. Proof of such negligence or want of care or skill in the manner of con- structing or maintaining (lie track, are neces- sary, as between the company and persons exercising the common right of passing and repassing thi'ough or across the street. Ma- 33 zetti V. Nm York and Harlem B. B. Co., 3 E D. Smith fN. T.), 98. 1854. 130. — The fact that a horse was frightened and not under the control of any one, at the time when it was struck by a railroad train on a highway crossing, is not conclusive, as a matter of law, of such a want of care on the part of its owner as to defeat his right to re cover for the injury. Southworth v. Old Colony and Newport B. B. Co., 105 Mass., 343. 1870. 131. Signals. A party lawfully crossing a railroad at grade with a drove of cattle is not bound to signal the approaching train. If necessary, it is the duty of the company to employ a person to give signals. Beeves a. Delawa/re, Latkamanna a/nd W. B. B. Co., 30 Penn. St., 454. 1858. 132. — A person approaching a crossing with a drove of cattle has a right to presume that the company's servants will take all reas- onable and proper precautions to avoid injur- ing those who are lawfully on the road. lb. 133. — It is negligence to approach such highway with a train at a speed of 35 or 30 miles an hour. lb. 134. Statutes. A railroad company had authority by its charter to take a right of way sixty feet wide, with the limitation that where the track was built upon or along a preexist- ing highway, it was required that the high- way should be left thirty feet wide. Held, in a suit against a company to recover the value of animals killed by a passing train at a place where there was a space of from forty-five to fifty-five feet between the track and the fur- ther side of such a highway, that the company was required to fence 'at such place. Jeffer- sonville, Madison and Indianapolis B. B. Co. V. Sweeney, 33 Ind., 430. 1869. , 135. Where the outer line of a railway and that of a highway running parallel with each other, intersected several hundred feet before the highway crossed the track of the railway, it was held, that the company was, under ch. 169, Laws of 1863, liable for stock killed on the track between cattle guards which were erected at the points where the right of way of the railroad and the highway intersected and where the highway crossed the track, and to which the company had erected fences. It seems that, in order for the company to protect itself from liability, its fences should be built to, and its cattle guards erected at Sbi INJUBIES TO DOMESTIC ANIMALS. Cities and Towns. the crossing. Andre v. Chicago and North- western B. B. Co., 30 la., 107. 1870. 136. — A railway company is not liable, under ch. 169, Laws of 1863, for stock killed at a crossing of a road, used and traveled as a public road, though the route thus traveled was in fact onfcside of the survey or line of a highway, as established by the county author- ities. Soward ». Chicago and Northwestern B. ^. Co., 33 Iowa, 386. 1871. 137. — Where an animal goes upon a rail- road track at the crossing of a public street or highway, or other place where, from any cause it would be improper that the railroad should be fenced, and is killed by the loco- motive or cars, the company is not liable, ex- cept for the negligence or misconduct of those having charge of the train. Indian- apolis and Cincinnati B. B. Co. v. McKinney, 24Ind., 283. 1865. 1 38. — A recovery cannot be had under the statute for the killing of stock at a highway crossing. Negligence must Tdc shown in such case. Jefersonville, etc., B. B. Co. v. Huber, 43Ina., 173. 1873. 139. — But where the animal was killed ten feet beyond the line of the highway, the company was held liable. Indianapolis, Cin- cinnati, etc., B. B. Co. v. Bonnell, 42 Ind., 539. 1873. 140. — A railroad company is not liable, under ch. 169, Laws of 1863, for stock killed on its track at a point where it has no right to fence the same, as at the crossing thereof by a public highway. Soward v. Chicago and North- western B. B. Co., 30 la., 551. 1870. 141. Stock running at large. Plaintiff's horse escaped from his stable at night, and fell into a cut in the public highway through which the railroad track of the defendant passed. Held, that it was the plaintiff's duty so to secure his horse that he could not stray into the public streets, and that, if he escaped and any accident occurred to him in conse- quence of such escape, the plaintiff must suffer the consequences. Mentges v. New Tork and Harlem B. B. Co., 1 Hilton (N. T.), 425. 1857. 142. — Where cattle are ranning at large upon a public highway, the owner being guilty of no negligence, and they are killed by a lo- comotive, the railroad company is liable for their injury through negligence. Behman v. B. B. Co., 5 Philadelphia Rep. (Pcnn.), 450. 1864. IV. Cities and towns. 143. Cattle guards. If cattle guards are constructed by railway companies within the limits of towns, they should keep them in re- pair. Chicago and Bock Island B. B. Co. v. Beid,Ul\\.,lU:. 1860. 144. — The provision in the Statute of 1848, requiring railroad companies to construct and maintain cattle guards at all road crossings, does not apply to streets in cities and villages. Vanderkar «. Bensselaer and Saratoga B. B. Co., 13 Barbour (N. T.), 390. 1851. 145. — The statute makes an obvious dis- tinction between streets and roads. Cattle guards in the streets of a city or village would be a nuisance. lb. 146. Crossings. Where streets in a town or city have been laid out on the plat and ded- icated to public uses, they become public high- ways,whether they be used as such or not, and a railroad company is not liable for animals killed at the crossing of such streets, under R. C, 1855, p. 649, § 5, if there be no actual neg- ligence. Meyer v. North Missouri B. B. Co., 35 Mo., 352. 1864. 147. — For injuries occurring at public crossings, no recovery can be had without proof of actual negligence. McPheeters v. Han- nibal and St. Joseph B. B. Co., 45 ib., 23. 1869. 148. — Where the council of a city, having exclusive control of the streets of the city, specifies by ordinance the general character and extent of the work to be done by railroad companies ■where the streets are crossed by their railway tracks, in order that such tracks may be crossed with more safety and conven- ience by the public, such work and the repairs thereof to be done and maintained to the satis- faction of a specified agent of the city, with- out, however, furnishing detailed specifica- tions as to the particular manner in which the work shall be executed, or requiring it to be done under the supervision, control, and direc- tion of an authorized agent of the city; the fact that such work is done and maintained by a railroad company to the satisfaction of such specified agent, does not relieve the com- pany from liability for an injury to a horse driven without fault or negligence over such crossing, such injuiy being occasioned by the work having been done or maintained in an unskillful and improper manner, renderingthe INJURIES TO DOMESTIC ANIMALS. 35c Depot Grounds — Pleading and Practice. crossing unsafe. Deleell o. Indianapolis and Oincinnati E. B. Co , 33 Ind., 45. 1869. 149. Cities and towns; Evidence. Tlie killing of stock within the corporate limits of a town does not raise a legal presumption that the train was running at a rate of speed pro- hibited by the ordinances of such town. Chica- go and Alton B. B. Co. v. Engle, 58 111., 381. 1871. 1 50. Fences. In an action against a rail- road company for the killing of a cow upon its track, where the proof showed that the accident occun-ed within the limits of a town, as shown by the paper plat of the town, but in fact away from any street, and in an open prairie, and in case where the town corpora- tion had been dissolved or suspended, the railroad company would be responsible, under the act of 1855 (Wagn. Stat. 310-11, § 43), for actual damages arising from failure to fence its track at the point of the accident, without proof of other negligence. The same action miglit also be brought under § 5, p. 520, Wagn. Stat. Iba V. Ranniial and 8t. Joseph B. B. Oo., 45 Mo., 469. 1870. 151. — The statute applies to such places within the limits of a city where it would not be illegal or improper to maintain a fence. JefersomiiUe, Madison and Indianapolis B. B. Co. V. Parkhurst, 34 Ind., 501. 1870. ' 152. Limits of village. The presump- tion is, that the houses compose a village-; and if an animal is killed beyond the houses the presumption is, that it is killed beyond the village ; if the town extends beyond the houses, the defendant should show the fact. Ohio and Mississippi B. B. Oo. v. Irvin, 37 111., 178. 1863. 153. Stock running at large. One who voluntarily suffers his cow to go at large in the public street of a city, and to stray upon a railroad track therein, at a time when cars are passing, is guilty of carelessness, and hence cannot recover for injuries to the cow, happening through the negligence of the rail- road company, not amounting to gross neg- ligence. Bowman v. Boston and Troy B. B. Go., 37 Barbour (N. Y.), 518. 1863. Y. Depot grounds. 134. —The act of 1863, requiring railroad companies to fence their roads, or to be abso- lutely liable for all stock killed where they have the rigJit to fence, does not apply to de- pot grounds, and in the absence of negligence, they are not liable for stock killed thereon. Davis V. Burlington and Missouri Biver B. B. Co., 36 Iowa, 549, 1869; Bogej-s «. Chicago and Northwestern B. B. Co. i b., 558 ; Durand v. Same, ib., 559 ; Packard v. Illinois Central B. B. Co., 30 ib., 474, 1870; Smith v. Chicago, Bode Island and Paeine B. B. Co., 34 Iowa, 506. 1873. 155. — It is not the a Js. Sannibal and St Joseph B. B. Co., 33 Mo., 309. 1868. 187. — An allegation setting forth facts ren- dering the company liable under the statute (E. C, 1855, p. 649), is equivalent to an allega- tion of negligence. West n. Sannibal and St. Joseph B. B. Co., 34 ib., 177. 1863. 188. — A petition against a railrad com- pany which states that the defendant, whilst running its locomotive, etc., negligently, stmck the cattle of the plaintiff, etc., shows a good cause of action at common law. If the peti- tion set forth a good cause of action at com- mon law, other irrelevant allegations may be disregarded, or stricken out as surplusage. Garner «. Sannibal and St. Joseph B. B. Co., 84 Mo., 235. 1863. 189. — Either negligence or a violation of the statute must be averred and proved. Oal- vert V. Sannibal and St. Joseph B. B. Co., ib., 343. 190. Ownership of track. Where, in an action, on the case, against a railroad company, for killing the plaintiff 's cow, by carelessly and unskillfully running its locomotive against her, the declaration contained no aver- ment that this was done on the defendant's railroad track ; it was held, that such averment was not necessary. Sovsatonic B. B. Co. v. Waterbury, 23 Conn., 101. 1854. 191. Ownership of train. It is necessary to allege that the train that caused the injury belonged to the railway company, or that it was being run over its road. Toledo, Wabash and Western B. B. Co. v. Weaver, 34 Ind., 298. 1870. 192. Particular cases. The sufficiency of the pleadings determined in actions for inju- ries to stock in particular cases. Jeff'ersonville, Madison and Indianapolis B. B. Co. v. Under- hiU, 40 Ind., 339, 1873 ; Samie v. Vancant, ib., 333 ; St. Louis, Jaeksonmlle and Chicago B. B. Co. v. Samilton, 46 111., 450, 1868 ; Same v. Thomas, 47 ib., 116, 1868; Same v. Winter, ib., 130; To- ledo, Wabash and Western B. B. Co. v. Cole, 50 ib., 184, 1869 ; Toledo, Peoria and Warsaw B. B. Co. V. Darst, 51 ib., 365, 1869 ; Sam^ v. Same, 53 ib., 89, 1869 ; Same v. Bookless, 55 ib., 230, 1870; Same v. Webster, lb., 338, 1870; Great Western B. B. Co. v. Sanks, 36 111., 281, 1865. 193. Separate connts. In a complaint to recover the val.e of stock killed by a railroad company, in one count whereof the stock is described as common stock, and in another as stock of the full blood, such difference is suf- ficiently material to sustain and render proper separate counts. Toledo and Wabash B. B. Co. V. Daniels, 31 Ind., 356. 1863. 194. Statutes. In an action under the statute (R. C, 1855, p. 649, § 5), a petition which neither avers negligence or misfeasance, nor states facts which would render such an aver- ment unnecessary, is deficient. The ground of liability should be distinctly stated, and the place where the accident occurred should be stated. Quick t. Sannibal and St Joseph B. B. Co., 31 Mo., 399, 1861; Miles ». Sam^, ib., 407; Brown v. Same, 33 ib., 309, 1863 ; Dyer v. Pacific B. B. Co., 34 ib., 137. 1863. 195. — A suit brought in the Common Pleas against a railroad company for killing cattle, is not governed by the statute of 1853, but by the common law rules. Jeffersonville B. B. Co. «. Ma/rtin, 10 Ind., 416. 1858. 196. — Hence, the complaint must charge negligence, unskillfulness or willful miscon- duct on the part of the company or its agents, and that such negligence, etc., was the proxi- mate cause of the injury. 76. 197. Statutory notice. In an action before a justice of the peace against a railway com- pany for double damages for stock killed, un- der § 6 of ch. 169, Laws of 1863, it is not neces- sary to plead the fact of the notice and affi- davit, in order to make them admissible in evidence on the trial. Brandt v. Chicago, Bock Island and Pacify B. B. Co., 26 Iowa, 114. 1868. 198. Towns and villages. In an action under the statute, the road being unfenced, the plaintiff should aver that the animals were not injured within the limits of a village. Chicago, Burlington and Quincy B. B. Co. ®. Ca/rter, 20 111., 390. 1858. 199. — Trespass vi et amnis is not the proper form of action for injuries resulting from the negligence of the servants of a cor- poration ; trespass on the case is the proper action, of which a justice of the peacehasnot jurisdiction. Illinois Central B. B. Co. v. Beedy, 17 111., 580. 1856. 200. Unimproved lands. The words "un- improved land " are sufficient in a pleading based upon a statute using the words " unin- closed lands." Illinois Central B. B. Co. v. Wade, 46 m., 115. 1867. INJURIES TO DOMESTIC ANIMALS. 359 Roads Operated Jointly or by Lessees or Receivers. VIL EOADS OPEBATED JOINTLY OE BY LESSEES OR EECEIVERS. 201. Joint liability. Where a complaint against two railroad companies cliarged that "the defendants, by their locomotives and cars, then by them run upon their road, at said county and state, run over and upon one colt belonging to the plaintiff," etc. Held, that regarding the action as in the nature of a tort, it was sufficient to charge that the act was done by the defendants, without showing what relation they sustained to each other, and a recovery might be had against the one shown by the evidence to be liable; or that there might, under the statute, be a joint or several liability of the defendants as lessees, assignees, receivers, or as running or control- ling a railroad. Indianapolis, Oinainnati and Lafayette R. B, Go. 11. Warner, 35 Ind., 515. 187L 202. — Where a railroad company, by an arrangement with another company, runs its cars over the road of the latter company, and an animal is injured by such cars, not from any negligence in the running of the cars, but in consequence of the omission to erect cattle guards or fences, the company owning the locomotive is not liable. Pa/rker v. Rensselaer and Saratoga R. R. Co., 16 Barbour (N. Y.), 315. 1853. 203. — Where the company owning an un- fenced railroad, by contract, allows another company to run trains over such road, by one of which trains stock is injured, the com- pany running the train is liable for such in- jury, even though the same was a result of the unfeuced condition of the road. Illinois Central R. R. Go. «. Kanouse, 39 111., 272. 186C. So also is the company owning the fa'aok. Toledo, Peoria and Wa/raaw B. R. Go. v. Bum- bold, iO ib., US. 1866. 204. Lessees. In a suit brought against two railroad companies, the complaint charg- ed that a horse was killed on the road of one of the companies, where the track was not securely fenced, by the cars of the other com- pany, passing over the road in charge of the officers of the latter company: Md, that the averments were not sufficient to charge either one of the companies with liability under the statute, as the railroad company owning the track was not shown to have authorized the use of its road; nor was the company owning the cars alleged to liavo been controlling or running the road in the corporate name of the corporation owning thu road, either as lessee, assignee, receiver or otherwise. Oincinnati and Martinsville R. R. Go. ». Paskins, 36 Ind., 380. 1871. 205. — The lessee of a railway, while oper- ating such road, is liable if the fences are not maintained. Tracy v. Troy and Boston R. R. Go., 38 N. Y., 488, 1868; Same v. Same, 55 Barbour (N. Y.), 529, 1867. 206. — A company running and operating a railway under an exclusive lease for fifty years is liable for injuries to stock on such road at such places as it has the right to fence. The case of Liddle «. Keolcuk, Mt. Pleasant and M. R. R. Co., 23 la., 378, distinguished from the present case. Stewart «. GMcago and Northwestern B. R. Go., 27 la., 282. 1869. 207. — Lessees are not liable under the act of 1863. They are not embraced in the terms of the statute. They would however be liable in cases of their negligence. Liddle v. Keokuk, Mt. Pleasant and M. B. R. Go., 33 ib., 378. 1867. 208. — Where animals are killed by the train of another corporation, running in its own name and in its own behalf, and under its control, over a part of the track of the de. fendant, the company owning the road is liable under the statute. Indianapolis and Madison R. R. Co. v. Solomon,. 33 Ind., 534. 1864. 209. — The defendant was running a rail road belonging to another corporation, under a written agreement with the owners, and for a period of time only fixed by the terms of a lease made to another corporation, and as- signed to the defendant, who agreed to pay the rent reserved iu said lease. Held, that the defendant was a lessee of such road, and liable for the value of a cow killed by its engine upon the track, in consequence of the defendant's neglect to maintain fences and cattle guards. Act of 1850, § 44. Burehfield V. Nortliern Central R. R. Co., 57 Barbour (N. Y.), 589. 1870. •210. Receiver. A railroad company is liable for stock killed by the cars, in such case, although the road is at the time operated by a receiver duly appointed by a competent court. McKinney v. Ohio and Mississippi B. B. Co., 23 Ind., 99. 1864. 360 INJURIES TO DOMESTIC ANIMALS. Fences and Cattle Guards. VIII. Fences and cattle guards. 1. Generally. 211. Negligence; fire; fences. Where a fence, between a railway and the adjoining farms, which it is the duty of the land owners to keep in repair, is destroyed by fire com- municated by the engines used upon the rail- road, and the railroad company neglects to rebuild such fence, this will not render the company liable for the damages to a horse which strays upon the track of the road from an adjoining pasture where it is kept, through the open fence, and is killed by the engine. Terry v. New Tork Central B. B. Co., 22 Bar- bour (N. y.), 574. 1855. 212. Partition fences. No one but the ad- joining owner or possessor of land has any interest in the duty or obligation of another to erect or maintain a division fence. Byan v. Bbeheater and Syracuse B. B. Co., 9 How- ard's Pr. (N. Y.), 453. 1854. 213. Snow in cattle guards. Where a railroad company permits its cattle gnards to remain filled with snow, so that catlle which have gotten upon the highway without any negligence on the part of the owner, pass over the guards, and in consequence of being thus upon the track are injured by a train, the company is liable for damages. Bunnigan v. Chicago and Northwestern B. B. Co., 18 Wis., 28. 1864. 214. Stock running at large. When a railroad company is in default, for not repair- ing a gap in a fence, and a horse passes through the gap, upon the railroad track, and is there killed, the mere negligence of the owner in permitting the horse to run at large, will not excuse the railway company. Munch 1). New York Central B. B. Co., 29 Barbour (N. Y.), 647. 1859. 2. Contract. 215. A verbal agreement with a property owner, through whose field a railroad passed, that if the company would erect certain cattle guards, it need not fence the sides of its road, and he would not claim damage for injury done to his stock getting thereon from the field, does not pass to or bind his grantee of the premises. 8t. Louis, Alton and Terre Haute B. B. Co. v. Todd, 36 111., 409. 1865. 216. Breach of contract. A railway com- pany, in purchasing the right of way, bound itself by contract with the owner of the land to fence the road through his land. The com- pany neglected to fence, and the plaintiflF's cattle being upon his own land, went upon the road and were killed by the engines. Seld, that the owner could not recover in an action of tort; whether he conid do so on the con- tract, not decided. Drake v. Philadelphia and Erie B. B. Co., 51 Penn. St., 340. 1865. 217. — Where, by contract with a railroad company, the owner of the land through which the road runs agrees to maintain tlie fence, no recovery can be had by him, or his tenant on the land, for injury to animals resulting from the failure to comply with such contract. In- dianapolis, Pittsburg7i and Cleveland B. B. Co. ■B. Petty, 25 Ind., 413. 1865. 21S. — In a suit against a railroad company for injuries to sheep, arising from neglect of the company to build a fence, as it had con- tracted to do, the question is whether the neg- lect contributed to the injury. JoUet and Northern Indiana B. B. Co. v. Jones, 20 III., 221. 1858. 219. Covenants running with the land. D. hired pasture for his horse on a lot belonging to B., adjoining the defendant's railway. A horse strayed upon the track, the fence being defective, and was killed by a passing train. It appeared that the strip of land on which the track was laid had been purchased by B., and in the conveyance thereof to the railway company, B. had covenanted, for himself and his heirs, to erect and maintain, on both sides of the strip, during the continuance of the de- fendant's charter, good and sufficient fences. In an action by D. to recover the value of the horse, it was Jield, I. That the covenant ran with the land, and every occupation was sub- ject to it. II. That D. acquired no greater rights, in respect to its occupation, than his landlord, B., had to confer, and was estopped by the covenant to the same extent as B. III. That, as B. could not recover in such a case, D. could not. Duffy v. New Tork and Ea/rlem B. B. Co., 2 Hilton (N. Y.), 496. 1859. 220. — T., by deed duly recorded, conveyed to a railroad company the right of way for its track as then located and constructed through certain lands, and covenanted for himself, his heirs and assigns, to erect and maintain a fence INJURIES TO DOMESTIC ANIMALS. 361 Fences and Cattle Guards. on each side of tlie right of way, and reserved the right to pass and repass over the same in such way and at such time as would not inter- fere witli the running of the railroad trains. T. subsequently conveyed the land through which the right of way was thus granted, by deed in fee, without exception or reservation, to H. And E., a tenant holding under H., brought an action against the company for negligently killing his horse, being on the track where it passed through the land, and no fence having been erected; held, that the assignee of T. was so far affected by the cov- enant in the grant, that he could derive no ad- vantage from its breach, and that he could not claim from the railroad company a higher de- gree of care to avoid injury to a horse, being on the track through the land, than if the cov- enant had been kept. Easter v. Little Miami E. S. Oo., 14 Ohio St., 48. 1863. 221. Lands occupied in common. Plaint- ift's cows passed from his field to H.'s land, which was occupied by H. and the plaintiff in common, and thence upon a piece of land be- longing to the plaintiff, but which he had leased to the defendant as a woodyard, which was not properly fenced, and thence on the defendant's track where they were killed. There was no agreement between plaintiff and defendant in regard to the exclusive occu- pancy by the latter of the woodyard, nor in regard to who should maintain the fence around it. Held, that under these circum- stances the court should have leftittothe jury to find whether the defendant was or was not to have the exclusive occupancy of the wood- yard, and also whether the cows escaped from H.'s land into the woodyard through a defect in the fence which defendant was bound to repair. Holden v. Rutland and Burlington, B. iJ. Co., 30 Vt., 297. 1858. 222. Negligence. A landowner granted a railroad company the right of way for its road across his land, in part consideration of which the company agreed, that whatever damage might be done to the grantor's prop- erty by the running of the cars on said rail- road should be reimbursed by the company. Held, that the railroad company was not liable for the consequences of the landowner's neg- ligence. Indianapolis, Pittsbwrgh and Cleve- land B. B. Go. ». Brownenburg, 33 Ind., 199. 1869. 233. — Held, also, that it was negligence on the part of the landowner to confine his ani- mals in an inclosure embracing a portion of the railroad track, where it was crossed by a private lane, with no bars or other appliances to restrain them from loitering on the track ; and that where being so confined, they were injured without carelessness of the persons running the cars, the company was not liable. lb. 224. Release of liability. A landowner released to a railroad company the right of way through his land, and also released and relinquished to the company, " all damages and rights of damages, actions and causes of action, which he might sustain or be entitled to by reason of anything connected with or consequent upon the location or construction of said work, or the repairing thereof when finally established or completed." Held, that said release in no manner related to actions for damages for the injury or destruction of cattle by the running of cars along the rail- road. Cleveland, Calumbus, etc., B. B. Co, v. Cro«sZ«y, 36 lud., 370. 1871. 225. Statutory liability. .An agreement between a railway company and an adjoining proprietor not to require the company to fence but one side of its road across his land, will not relieve the company from its statutory liability'to any person not cognizant of or assenting to it. Q-ilman v. European and North American B. B. Co., 60 Me., 335. 1872. 226. — Where an ox was killed on defend- ant's road, and defendant relies upon the de- fense that the ox was wrongfully there, and excepts to the instructions of the court upor that question, the exceptions will not be con- sidered, unless there is evidence tending to show that the animal was wrongfully there. lb. 227. — Plaintiff's cattle, having passed through a fence bordering defendant's rail- road, upon the track, were killed by the cars. Defendant had covenanted, in the deed of its roadway, at the point where the accident oc- curred, to " make and maintain good and suf- ficient fences on both sides " of the strip of land taken. The court refused to charge " that a compliance by defendant with the statute as to fences exonerated it from liability irrespect- ive of the covenant in the deed." Held, error. Thompson v. New York and Hmlem, B. B. Co., IN.T. Sup.Ct.,411. 1873. 862 INJURIES TO DOMESTIC ANIMALS. Evidence. IX. EviDElfCE. 228. Admissions. Proof that cattle -were killed by- a train, and that tlieir owner applied ■for payment to the agent of the railroad com- pah}', who offered to pay for them at a price ■which the owner would not talse, was held, sufficient to make a prima facie case against the company. Georgia B. B. Co. 11. Willis, 38 Ga., 317. 1859. 229. Burden of proof. The burden of proof is upon the plaintiff to show negligence on the part of the railway company. New Or- leans, Jackson and Great Northern B. B. Co. v. Enochs, 42 Miss., 603. 1869. 230. — In actions for damages, a party al- leging negligence cannot shift the burden of proof to the other side, until he has proved facts, which are at least more consistent with negligence than with care. Jones v. North Car- olina B. B. Co., 67 N. C, 132. 1872. 231. — It is erroneous to instruct the jury " that the mere fact of a horse being killed on the track is evidence of negligence on the part of the company." Chicago and Alton B. B. Co. V. Utley, 38 111., 410. I860. See also to the same effect, Illinois Central B. B. Co. v. Beedy, 17ib., 580. 1856. 232. County boundaries. Suit was brought for the value of animals killed by the cars of a railroad company. The evidence showed that the animals were killed between two named geographical points, and upon some railroad, by the rolling stock thereof, but did not show, in terms, that they were killed in Shelby county, nor by the railroad company defendant. Held, that as the court below knew judicially the boundaries of the county, it will be presumed that the first point was correctly determined. Indianapolis and Cin- cinnati B. B. Co. V. Moore, 16 Ind., 43. 1861. 233. — And it was held, also, that as the evi- dence tends to support the finding in relation to the killing by the cars of defendant, the judgment will not be reversed. lb. 234. Expert. In an action to recover dam- ages for the killing of plaintiff's horses through the negligence of the servants of a railway company in the running and manage- ment of a locomotive and train, the engineer in charge of the locomotive at the time of such killing, who saw the horses when they came upon the track and who is shown to be acquainted with the business of operating railroad locomotives and trains, and had been engaged in such business for five years, is competent to testify, as an expert, upon ques- tions in respect to the management of loco- motives and trains, and to give an opinion whether, in view of the distance between the engine and the horses when the latter came upon the track, it was possible to avoid the injury complained of Bellefountaine and Indiana B. B. Co. v. Bailey, 11 Ohio St., 333, 1860 ; Same v. Fifer, ib., 339. 235. — A person skilled in the running of railroad cars may be asked, as an expert, upon an assumed state of fact which the evidence tended to prove, whether or not, in the case assumed, the brakesmen were in their proper places. Cincinnati and Zanesville B. B. Co. v. Smith, 33 Ohio St., 337. 1871. 236. Failure of proof. Where, in an action to recover damages for the killing of the plaintiff's horses, upon the defendant's rail- road, through the carelessness of the servants of the defendant, the plaintiff examined but one witness as to the charge, and he effectually disproved it. Held, that the judge erred in refusing to charge the jury that the plaintiff had wholly failed to prove the charge of care- lessness. TTnderhill v. New York and Harlem B. B. Co., 21 Barbour (N. Y.), 489. 1856. 237. Husband and wife. In an action against a railroad company for causing the death of the plaintiff's cow, the fact that the plaintiff's wife was the only person who saw and knew the circumstances does not render her a competent witness under the provision of tlie St. of 1865, ch. 207, § 3, admitting a married woman to testify when the contract or cause of action in issue was made or trans- acted with her in the absence of her husband. Baxter v. Boston and Worcester B. B. Co., 102 Mass., 383. 1869. 238. Inference. The jury may infer that an animal was killed by a railway train from the situation in which it is found dead. Chi- cago and Northwestern B. B. Co. v. Dement, 44 111., 74. 1867. 239. Interest. The Memphis and Ohio K. R. Co., was sued for killing the stock of the plaintiff; on the trial, the engineer who had charge of the locomotive, and was running at the time when the injuiy occurred, was offered as a witness for defendant, without a release INJURIES TO DOMESTIC ANIMALS. 363 Signals. from the company; he was properly rejected by the court. Memphis and Ohio R. B. Co. v. Tugwell, 1 Coklwell (Tenn.), 91. 1860. 240. — statute. Section 1169 is construed to exclude as witnessses, only such agents, employes, or engineers, whose tortious act or acts, carelessness and negligence are drawn in question in the case, and for which he or they would be liable, even to the railroad .com- pany, if the latter should be held responsible for the wrong or injury. Home v. MemipMs and Ohio B. B. Co., 1 Coldwell (Tenn.), 73, 1860 ; Nashville and Chattanooga R. B. Co. v. Fugett, 3 ib., 403, 1866. 241. Particular case. The evidence in this particular case held sufficient to justify a re- covery. Toledo, Peoria and Warsaw B. B. Co. V. Pineo, 56 111., 308. 1870. 242. — Where it appeared that the stock was found by the side of the road "badly smashed up," it was Jield that the jury were justified in finding that the injury was done by the cars or locomotive of the defendant. Illi- 'nois Central B. R. Co. v. Whalen, 43, 111., 396. 1866. 24.'J. Value. On the trial of an action for damages for killing a horse, the plaintiff in- troduced a witness who testified that he was acquainted with the value of horses, but had never seen the horse in controversy. The wit- ness was then asked, " What, on the 10th day of May (the day of the killing), was the aver- age price of a horse fifteen^ or sixteen hands high, three or three and one-half years . Ehrha/H, 36 Ind., 118. 1871. 304. — The duty of placing suitable cattle guards at highway crossings, etc., results from the requirement that a railroad shall be " se- curely fenced," if the company would avoid liability for animals killed. Indianapolis, Pittsburgh and Cleveland R. R. Oo. «. Irish, 26 Ind., 368. 1866. 305. — When the. usual and ordinary cattle pit has been constructed, as near the highway as can coUveniently be done, the company is not liable, unless there is proof of negligence, for an injury happening to an animal between the highway and the pit. Ib. 306. — collision. To render a railway com- pany liable, under the statute, for injuries to animals by its cars, locomotives, or other carriages, there must be actual collision of the cars, locomotives, or other carriages with such animals. Ohio and Mississippi R. R. Co. v. Cole, 41 Ind., 381. 1872. 307. — A railroad company is not liable under the statute of 185.'?, for an injury to stock resulting from fright at its cars, where the animal was not touched by any car, loco- motive, or other carriage belonging to the company. Ib.; Peru and Indianapolis R. R Oo. V. Hasket, 10 Ind., 409. 1858. 868 INJURIES TO DOMESTIC ANIMALS. Statutory Liability and Decisions under various statutes. 308. — constitutional law. Tlie act of Marcli 4, 1868 (Acts 1863, p. 25), providing for tlie enforcement of judgments against railroad companies for stocit killed, are not repugnant to §§ 33 and 23 of article 4 of the constitu- tion. Toledo, Logansport and Burlington B. B. Co. V. Nordyke, 37 Ind., 05. 1866. 309. — The statutes providing compensa- tion to the owners of animals Killed or injured by the cars of railroad companies are police regulations which the legislature had the right to impose upon existing corporations, as well as those thereafter to be formed. Indianapolis and Oincinnati B. B. Co., v. Kerclieval, 16 Ind., 84, 1861 ; Indianapolis, Pittslurgh and Oleoe- land B. B. Oo. v. Marshall, 27 Ind., 300. 1806. 310. — There is nothing peculiar in the charter of the Indianapolis and Cincinnati Railroad Company which would prevent the legislature from requiring it to pay for the killing of animals upon its road, in default of keeping it fenced. lb. . 311. — The cost of making and keeping the fences in repair, or the amount paid in the way of damages for stock killed, docs not " detract from or affect the profits of the cor- poration," in the sense intended by its char- ter. lb. 312. — The whole of the act of 1853, en- titled " An act to provide compensation to the owners of animals killed or injured by the cars, locomotives or other carriages of any rail- road company " in Indiana, is not void for in- consistency with its title. The immediatc( purpose of the act is expressed in the title ; and the exception as to railroads that are fenced, is so properly connected with the sub- ject matter of the act designated in the title as rightly to appear in it under the title. Mad- ison and Indianapolis B. B. Oo. v. Whiteneck, 8 Ind., 317, 1856 ; Same v. Burnett, lb., 377 ; La- Fayette and Indianapolis B, B- Oo., v. Ma/rtin, ib., 251 ; Jeffersomille R. B. Oo. v. Ha/rdy, 9 ib.,495. 1857. 318, — Nor is the act void simply because it is special. Ib. 314. — Section 3 of the act is unconstitu- tional and void, so far as it inflicts a penalty, for appealing and failing to reduce the judg- ment 30 per cent. Ib. 315. — Section 1 of the act is also void so far as it gives, as to amount, unlimited juris- diction to justices of the peace, Ib. 310. — The legislature did not transcend its powers, or violate private right, in enact- ing tliat railroad companies shall fence their roads, or pay for the cattle they kill or injure, Ib. 317. — cojistraction of statute. The act of March 1, 1853 (Acts, p. 113), which pro- vides compensation to the owners of animals killed or injured by the cars, etc., of railroad companies, is more for the benefit of the pub- lic — to guard against injury to passengers — than for the benefit of the owner of the ani- mal. New Albany and Salem B. B. Co., v. Maiden, 12 Ind., 10. 1859. 318. — Under the statute, the liability of the company is based solely upon its failure to fence its track. Toledo Wabash and Western B. B. Oo. V. Oory, 39 Ind., 218. 1872. 319. — The liability under the statute ex- tends to all kinds of animals that would bo kept from the track by an ordinary fence, without regard to the question whether they are large enough to throw a train off the track when run over by it. Indianapolis, Pitts- burgh and Cleveland B. B. Oo. v. Ma/rshall, 27 Ind., 300. 1866. 320. — The act of 1859 (Acts 1859, p. 105), is prospective only In its operation, and ap- plies to animals killed or injured after the taking effect of the law. Indianapolis and Oincinnati B. B. Oo. v. Elliott, 20 Ind., 430. 1863. 321. — A statute in derogation of common right, and highly penal in its character, is not to be applied to cases not clearly within its provisions. Indianapolis and Oincinnati B. B. Oo. V. Kinney, 8 Ind., 402. 1856. 322.— The statute of 1853, in relation to the liability of railroad companies whose roads are not fenced, fbr killing stock, does not apply to actions commenced in courts of common pleas and circuit courts. Toledo, Wabash and Western B. B. Oo. ®. Hibbert, 14 Ind., 5C|9, 1860; Indianapolis, Pittsburgh and Olevehmd B. B. Oo. v. Fisher, 15 ib., 203; FvansvilleandOrawfordsvilleB. B. Oo. v. Boss, 12ib., 446 1859. 323. — The act of 1852, provided that when any animal should be killed or injured by any vehicle run upon a railroad in Indiana, the owner might recover for his loss in a suit against the company, without proof of negli- gence, where the injury occurred upon a part INJURIES TO DOMESTIC ANIMALS. 369 Statutory Liability and Decisions under various statutes. of tlie road left by the company without a fence, etc. The act did not designate any tri- bunal in which the remedy should be sought. On the 1st of March, 1853, another act was passed, authorizing the prosecution in such cases to be instituted before a justice of the peace, and prescribing the mode of proceed- ing. The second section enacted, that on the hearing of the cause, the justice or jury try- ing the same should give judgment for the plaintiff for the value of the animal destroyed or the injury inflicted, without regard to the question whether the injury or destruction was the result of willful misconduct or negligence, or of unavoidable accident. The latter act expressly repealed the former, saving, how- ever, pending suits. HM, that the acts were in pari materia, were enacted to effect the the same object, and were to be construed to- gether. Williams «. New Albany and Salem B.B. Co.iSInd., HI, 1854; Smith v. Terre Saute and Richmond B. B, Go., 7 ib., 553, 1856 ; Tei-re Eoute and Biehmond. B. B. Co., v. Jones, 8 ib., 188, 1856. 324. — contributory negligence. The act of March 1, 1853, relative to compensation for animals killed or injured by railroad machin- ery (Laws of 1853, p. 118), is in the nature of a police regulation designed to promote the se- curity of persons and property passing upon the road ; and hence, though the owner of the animal be not an adjoining proprietor, and be guilty of negligence in permitting it to ' stray upon lands adjoining the road, he may recover, if the company has failed to comply with the requirements of the statute. Indian- polis and Cincinnati B. B. Co. v. Townsend, 10 Ind,, 38, 1857 ; Same i>. Paramore, 13 ib., 406, 1859 : Same v. Meek, 10 ib., 502 ; Jfffersonmlle B. B. Go. v. Applegate, ib., 49 ; Same v. Dough- •erty, ib 549, 1858 ; Hart v. Indianapolis and Cincinnati B. B. Go., 13 ib., 478, 1859; Indian- apolis and Cincinnati B. B. Go., ■». McAhren, 12 ib., 553; New Albany and Salem B. B. Co., «. Beeler, 12 Ind., 560, 1859 ; Same v. Fix, ib., 485 ; Same v. Oollins, ib., 536 ; Same v. Aston, 13 ib., 545; Sarne v. Bishop, ib.,566; Indianapolis and Cincinnati B. B. Go. v. Case, 15 ib., 43. 1860. 325. — The fact that the animals injured were permitted to run at large by the owner, with a knowledge that the fences of the rail- way were defective, will not relieve the com- 24 pany from liability. Bellefontaine B. B. Co. V. Beed, 33 Ind., 476. 1870. 326. — An instruction, that in case the owner of the cattle turns them out, at a place where they must pass along a railway track, when trains are passing, he cannot recover for their injury, is erroneous as applied to a case where the road should be securely fenced, and is not so fenced. Jeff'ersonville, Madison and Indianapolis B. B. Co. v. Boss, 37 Ind., 545. 1871. 327. — Suit was brought against a railway company to recover for cattle killed by its engines. The right to recover was rested on the following facts : near where the stock was killed, there was a small brook over which the company had built a culvert. Below the cul- vert, the plaintiff had a pasture in which he kept his cattle. Across the stream, below the culvert, he had made a fence of long poles. A flood came and floated driftwood through the culvert, against the fence. To prevent the ac- cumulation of drift above the culvert in such quantities as to endanger its safety, the com- pany aided in its passage. At sunset, the plaintiff knew of the exposed situation of his fence, but would not remove his cattle. At night, the fence being borne away, the cattle passed upon the road and were killed. Held, that the plaintiff could not recover. Indiana- polis and Cincinnati B. B. Co. v. Wright, 13 Ind., 313. 1859. 328. — crossing. Where an animal was killed by the cars of a railroad company at a point where the road was properly fenced to within ten feet, on one side of the track, and within twenty steps, on the other, of a public crossing, " but the fences did not extend to the cattle guard at the public crossing ; if they did, it would stop the cattle going on the track; " it was held, that the company was not relieved from liability by the fact that the road was se- curely fenced at the point where the animal was killed. Jefersonville, Madison and Indian- apolis B. 3. Co. V. Avery, 31 Ind.j 377. 1869. 329.. — evidence. Suit was brought to re- cover damages for killing stock under the stat- ute. It was alleged that the railway was un- fenced, but there being no evidence in support of such allegation, the judgment in favor of the plaintifl was reversed. Indianapolis and Cincinnati B. B. Co. v. StalVman, 16 Ind., 205. 1861. 370 INJURIES TO DOMESTIC ANIMALS. Statutory Liability aud Decisions under various statutes. 330. — fence — by whom maintained. The fact tliat the owner of the land has for a. long period, -without any contract to that effect, maintained a sufficient fence, does not, so far as the public is concerned, relieve the company from the duty imposed by the statute. While the fence is so maintained, the company is not liable to the penalty provided by law, but that penalty is incurred whenever the failure to maintain the fence as required may happen. Jeffersonmlle, Madison and Indianapolis JR. R. Co. V. JSfichoU, 80 Ind., 321. 1868. 331. — A railway company cannot divest itself of responsibility by making private con- tracts with the landholders along its road, by which the latter separately agree to make and keep up fences, jlfmo Albany and Salem B. B. Co. V. Maiden, 13 Ind., 10. 1839. 332. — Where the land owner, through whoso land a railway runs, has received from the company in the assessment of dainages, an agreed compensation for erecting and main- taining fences between the road and his land, and fails to maintain such fences, he cannot, if by reason of such failure an animal is killed by the cars of the company, recover for the same, without proof of negligence. Terre Saute and Biclimond B. B. Co. v. Smith, 1 6 Ind., 102, 1861 ; Toledo, Wabash and Western B. B. Co. V. Brown, 17 ib., 353. 1861. 333. — fence — repairs. Where the fence is out of repair, and the company relies upon the defense that a reasonable time to repair the same has not elapsed, such fact must be pleaded or proved. Jeffersonville, Madison and Indi- anapolis B. B. Co. V. Sullivan, 38 Ind., 263. 1871. 334. — If a railway company permit an opening to be made in its fence and left inse- cure, it cannot be said that the road is properly fenced. Cleveland, Colvmbus, etc., B. B. Co. v. 5w8^, 43 Ind., 110. 1873. 335. — Are — destruction of fence. Where a rail^'oad is kept securely fenced by the com. pany, and the fence is destroyed by unavoidable accident, as by fire, and is repaired by the company within a reasonable time after its destruction, but before it is so repaired, stock gets upon the track and is injured, the com- pany will not be held liable therefor. Toledo and Wabash B. B. Co. v. Daniels, 21 Ind., 256. 1863. 336. — freight trains. The statute award- ing damages to the owners of animals killed or injured by the rolling stock of any rail- road company applies to animals killed by freight, as well as passenger, trains. Indian- apolis and Cincinnati B. B. Co. v. Snelling, 16 Ind., 435. 1861. 337.— liighways. In a suit against a rail- road company to recover damages for stock killed by its cars, at a point on its road where a highway had been established, which high- way, though shown to have been abandoned by the public for two years, was not shown to have been vacated, the plaintiff must prove misconduct or negligence on the part of the company or its agents. Indiana Central B. B. Co. V. Oapen, 10 Ind., 292. 1858. 338. — The act of 1853 is not applicable to a case where the injury is done by the cars at the crossing of a public street in a city, the company having no right to erect a fence thereon. Lafayette and Indianapolis B. B. Co. V. Shriner, 6 Ind., 141. 1855. 339. — jurisdiction. A cow and heifer, together worth |110, standing at the same time near together, upon a railroad track, were killed by a passing train. The value of the heifer did not exceed |50. Eeld, that there was but one cause of action, of which the common pleas court had jurisdiction. La- fayette and Indianapolis B. B. Co. v. Bhman, 30 Ind., 83. 1868. 340. — lawful fences. A railroad com- pany is only required to make and keep up a lawful fence, such a one as good husbandmen generally keep. Toledo and Wabash B. B. Co. V. Thomas, 18 Ind., 215. 1863. 341. — Where such a fence is maintained by the company, it is not liable for stock killed, except as at common law, for negli- gence. Ib. 342. — negligence. The simple killing of an animal by the cars of a railroad com- pany, is not prima facie evidence of negli- gence on the part of its employes. Indian- apolis and Cincinnati B. B. Co. v. Means, 14 Ind., 80. 1850. 343. — A party cannot have the benefit of the statute of 1858, making railroad corapn- panies liable for animals killed without neg- ligence, unless he prove that the road was not fenced as prescribed by the statute. Ib. 344. — The statute of 1858 excludes from the consideration of the jury in a suit against a railway company for the destruction of INJURIES TO DOjIESTIC A3IIMALS. 371 Statutory Liability and Decisions under various statutes. stock by its cars, any consideration of tlie question wliether tlie injury was tlie result of ■willful misconduct or negligence, or of un- avoidable accident. Lafayette and Indianapo- lis B. B. Co. V. Shriner, 6 Ind., 141. 1855. 345. — Under the acts of 1852 and 1853, companies, whose roads were not fenced in, were liable for the value of all stock straying without the owner's fault from adjoining lands, killed or injured by the cars, without regard to the question of negligence, miscon- duct or inevitable accident. Williams ». New Albany and Salem B. R. Go., 5 Ind., Ill, 1854; Smith 0. Terre Haute and Bichmond B. B. Co., 7 ib., 553 ; Terre Haute and Bichmond B. B. Co. V. Jones, 8 ib., i83, 1856. 346. — negligence need not be proven. Where a railroad is not securely fenced, the company is liable for stock killed by its cars, without reference'to the question of negli- gence. 1 G. & H., 532. McKinney v. Ohio and Mississippi B. B. Co., 23 Ind., 99. 1864. 347. — notice. It seem^s, thai ia an action against a railroad company for killing cattle, ten days' service is not sufficient notice under the act of March 4, 1853. New Albany and Salem B. B. Co. v. Welsh, 9 Ind., 479, 1857; Cincinati and Chicago B. B. Co. v. Calvert, 13 ib., 489, 1859. 348. — order of county commissioners. A railroad company is liable for cattle killed where its road is unfenced, although the county commissioners may not have made any order in regard to cattle running at large in the county. Jeffersonville, Madison and In- dianapolis B. B. Co. V. O'Connor, 87 Ind., 95. 1871. 349. — places where a fence wonld be illegal and improper. The statute does not apply to injuries done at points where it would be illegal or improper for the railroad company to maintain fences. Indianapolis and Cincinnati B. B. Co. v. Parker, 39 Ind., 471, 1868; Same v. Kinney, 8 Ind., 402. 1850. 350. — The open space in front of a mil], necessary for the convenience of shipment, is such a place. Indianapolis and Cincinnati B. B. Co. V. Kinney, 8 Ind., 403. 1856. HUl. — Proof that the killing or injury oc- curred at or near the mill, brings the case prima facie within this rule, and puts it upon the plaintiff to show that it occurred at a place where a fence would not be improper. Ib. 352. — A railroad company is not required by the statute to fence its road, where such fencing would result in cutting itself off from the use of its own land, or leased property or buildings or wood sheds, although the build- ings or sheds may not be in present use. Jeff'ersonville, Madison and Indianapolis B. B. Co. v.Beatty, 36 lod., 15. 1871. 353. — If cattle come upon a railroad where there ought to be a suflScient fence, but there is not, and wander upon the road to a point where the road is not fenced, and can- not lawfully be fenced, and are there injured, the company is liable, and an answer to an action for such injury, under the statute, must show that they did not thus enter upon the road. Toledo, Wabash and Western B. B. Co. V. Hotcell, 38 Ind., 447. 1872. 354. — A railroad company is not required to fence its track in the immediate vicinity of its engine house, machine shops, car house, and wood yard, and the com pany therefore is not liable, under the statute, for stock killed by it in such places. Indianapolis and Cincin- nati B. B. Co. V. Oestel, 30 Ind., 231. 1863. 355. — Where animals running at large are killed by a railroad engine, at a point on the road not required by law to be fenced, the rights and liabilities of the parties must be determined by common law principles. In- dianapolis and Cincinnati B. B. Co. v. Caldwell, 9 Ind., 397. 1857. 356. — venue. Actions against railway companies for injuries to domestic animals must, under the statute, be brought in the county where the injury was done, and the place of the injury, being denied, must be proved or there can be no recovery. Indian- apolis and Cincinnati B. B. Co. v. Benner, 17 Ind., 135, 1861 ; Same v. Wilsey, 30 Ind., 329, 1863; Same ®. Brinkman, ib., 330. 357. — villages. An animal was killed by the freight train of a railroad company, at a place where a small town was being built up, and used as a station. The road had been fenced at this point, but a gap had been opened by some one in front of the town. It was not clearly shown whether the town was laid out up to, and along the railroad, or at some distance back. Held, that this court is not authorized to say, in opposition to the finding^ of the court below, that the railroad company was not in fault in not closing up 372 INJURIES TO DOMESTIC ANIMALS. Statutory Liability and Decisions under various statutes. tlie fence, IndiariapoUa and Cincinnati B. B. Oo. V. SneUing, 16 Ind., 435. 1861. 358. — wanton acts. It is no defense to an action for injuring a horse, if it was wantonly killerl, tliat it occured at a point where the road was properly fenced ; nor that the com- pany had paid the owner of the land, on which it was killed, for fencing the road, as a part of the consideration for the right of way through the farm. JS'ew Albany and Salem B. B. Oo. V. McNamara, 11 Ind., 543. 1858. 359. Iowa. A railroad company is liable under ch. 169, Laws of 1863, for stock killed upon its track that have escaped there from the inclosure of tlie owner (through which the road runs), by reason of the failure of the company to maintain a snfDcicnt fence along its road at that point. When thus on the track they are lield to be " running at large " within the meaning of the statute. Hinman ®. Oldeago, Boch Island and Pacific B. B. Co., 38 la., 491, 1870; Swift v. North Missouri B. B. Co., 39 ib., 343, 1870. 360. — animals prohibited from running at large. A railroad company is liable for ' killing stock at a point where it has the right to fence, unless the injury was occasioned by the willful act of the owner or his agent. Ch. 169, Laws of 1863. But tlie permitting of a bull to run at large does not constitute such willful act. Stewart v. Burlington and Missouri B. B. Co., 33 la., 561. 1871. 361.— A railroad company is liable for swine killed upon its track, while running at large at a point where it has the right to fence its road, although swine are prohibited from running at large by a vote of the legal voters of the county where the injury occurs, unless it be shown that such injury occun-ed by reason of the willful act of the owner or his agent. Ch. 169, Laws of 1863. Spence v. Chicago and Northwestern B. B. Co., 25 la., 139, 1868 ; Femow v. Dubuque and S. W. B. B. Co., 33 ib., 528, 1867 ; Stewart v. Chicago and Northwestern B. B. Co., 37 ib., 282, 1869 ; Fritz ». MiVwcmkee and St. Paul B. B. Co., 34 ib., 337, 1873. 362, — A railroad company is liable for swine killed upon its road, that came upon it from the inclosure of the owner, through which the right of way was granted to the company on condition that it should fence the road which it has failed to do; Femow «. Dubuque and S. W. B. B. Co., 23 la., 528. 1867. 363, —burden of proof. The burden of proof is upon tlie plaintiff to show that the stock was killed at a point where the railvi-ay company had a right to fence and had not done so, or that the company was guilty of negligence in causing the injury. Comstoclc ». DesMoines ValUy B. B. Co., 33 la., 376. 1871. 364. — cattle not running at large. Un- der ch. 169, laws of 1863, a railway company is only liable for injuries done to cattle run- ning at large, and if the cattle are being driven in charge of the owner or his agent, and escape and run upon the track and are in- jured, the company is not liable. Smith i). Chicago, Rock Island and Pacific B. B. Co., 34 la., 96. 1871. 365. — double damages. It is not neces- sary that the "notice of loss" contemplated iu § e of ch. 169, Laws of 1862, shall be separate from the affidavit of loss. If the notice em- braced all the essentials of the aflSdavit, and is sworn tJ, it is sufficient. Mendell «. Chicago and NoHhwestern B. B. Co., 30 la., 9. 1865. 366. — The statute does not require service of such notice by reading the original and de- livering a copy to the parties served. It is suffi- cient if the original is delivered to the party. Ib. 367. — private crossing. There is nothing in §§ 3 and 4 of ch. 169, Laws of 1862, requir- ing railway companies to make cattle guards at private crossings. The failure to do so might, under some circumstances, be evidence of negligence ; but it can in no case create the liability contemplated in these sections. Bartlett v. Dubuque and Sioux City B. B. Co., 20 la., 188. 1868. 368. — The fact that bars at such crossing were left down by the land owner, and not by the cmployds of the company, does not dis- charge the latter from liability for injuries re- sulting therefrom, if it have not used due care to keep them closed. Ib. 369. — As to third persons, it is the duly of railway companies not only to fence their roads, but to keep the gates at private cross- ings in repair and closed ; but where a road is properly fenced and the company uses the necessary care and caution in keeping it up or in good condition, and it is thrown and left down by the act of a third person, without INJURIES TO DOMESTIC ANIMALS. 373 Statutory Liability and Decisions under various statutes. fault of the company, the liability for the in- jury is upon the party thus leaving down the fence, and not upon the railway company. Bussell V. Hanley, 30 la., 219. 186G. 370. — repairs of fence. A railroad com- pany 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 stock killed on its road, unless it has failed to exercise such ordinary care in the repair of the fence where the stock came through on to the road. Lemmonv. Chi- cago and WortJiwestern, B. S. Co., 33 la., 151. 1871. 371. — A railway company is liable for stock killed on its track by reason of its fail- ure to keep in repair the fences which it has erected on the line of its road; but, before such liability will attach, it must have know- ledge, either actual or implied, that the fence is out of repair, and a reasonable time there- after to put it in proper condition. This rule applies where bars or gates have been left open by third parties. Ayleaworth -e. Chicago, Mock Island and Pacific B. B. Co., 30 la., 459. 1870. 372. Kentucky. A railway company which is not bound to fence its track is not liable for injuries to cattle straying thereon, unless such injury was caused by the wanton and reckless negligence of the company or its agents or servants. Louisville and Frankfort B. B. Co. s). Balla/rd, 2 Metcalfe (Ky.), 177. 1859. 373. Louisiana. There being no law re- quiring it, a railway company is not bound to fence its road, and it is not liable for cattle killed on its track unless great negligence and want of care upon its part are proved. Knight V. New Orleans, Opelousas and Great Western B. B. Co., 15 La. An., 105. 1860. 374. Maine — defective fences. Where the plaintiff has failed to erect a sufficient fence between his lot and that of another, and the defendant had failed to fence its road as required by law, and by reason of the defect in the fence of defendant, the plaintiff's ox escaped upon the track and was killed, it was ?ield, that the company was liable for the in- jury, the defect in its fence being the proxi- mate cause of the injury. QiVman v. European and North American B. B. Co., 60 Me., 235. 1872. 375. — Where the fence was originally im- perfectly built by the plaintiff for defendant, and the plaintiff's horse escaped from his pas- ture upon the track by reason of such defect, and was injured by the engine, the railroad company was held responsible for the dam- ages. Norris v. Androscoggin B. B. Co., 39 Me., 273. 1855. 376. — negUgence. A railroad company is not bound to fence its road except where it passes through improved land. Perkins v. Eastern B. B- Co. and Boston and Maine B. B. . Co., 39 Me., 807. 1849. 377. — It is therefore not liable for killing cattle upon its road unless in case of negli- gence, willful or otherwise. lb. 378. — penalties. Kailroad corporations, under ch. 41, acts of 1853, are liable to a pen- alty of $100 per month for a failure to erect sufficient fences on their roads. Norris v. Androscoggin B. B. Co., 39 Me., 273. 1855. 279. — Said act applies to corporations existing before its passage. lb. 380. — road operated by contractors or lessees. Where a railway company has com- menced the running of cars upon its road be- fore the road is fenced, it will not be exoner- ated from the resulting damages by proof that the road is then being operated by certain persons under an agreement by which they received all the earnings, when it was further stipulated that trains " should be run under ,the direction of the company." Wyman v. Penobscot B. B. Co., 46 Me., 162. 1858. 381. — The Atlantic and St. L. B. R. Co. had not released itself from its statutory lia- bility by leasing its road to another company. Whitney v. Atlantic and St. Lawrence B. B. Co., 44 Me., 362. 1857. 382. Maryland — burden of proof. Under the statutes of Maryland the injury of stock by a railway company raises a presumption of negligence upon its part. Keech v. Balti- more and Ohio B. B. Co., 17 Md., 32. 1860. 383. — construction of statute. At com- mon law, a plaintiff cannot recover where his own fault or negligence has directly contrib- uted to the injury, and this principle is not changed by the acts of 1838, ch. 244, and 1846, ch. 346, in relation to the liability of railroad companies in Maryland for injuries to cattle and stock on their roads. Baltimore and Ohio B. B. Co. V. Lamborn, 12 Md., 257. 1858. 374 INJURIES TO DOMESTIC ANIMALS. Statutory Liability and Decisions under various statutes. 384. Massachusetts — animals escaping from inclosures. In an action against a rail- road company for killing a horse which ran upon the track from adjoining land which de- fendant had negligently omitted to fence, it appeared that the proprietor of this land gave the plaintiff leave to put the horse in a stable thereon ; that " the only traveled access to the land and stable " was by a path from the street; and that the horse escaped from the stable, was pursued, and ran upon the land, and thence upon. the track, but not by the path. Held, that the evidence warranted a finding that the horse was lawfully on the land from which it ran upon the track. Saw- yer V. Vermont and MassaeJiusettg B. S. Co., 105 Mass., 196. 1870. ."IBS. — bar-ways. Where a railroad is fenced and bars placed by the company tharein for the use of the land owner, and an injury to cattle occurs through such bars being left down, the company is not liable un- less it is at fault. Eames v. Boston and Wor- cester B. B. Co., U Allen (Mass.), 151. 1867. 386. — construction of statute. The St. of 1846, ch. 271, requiring railroad companies to erect and maintain fences upon both sides of any railroad which they might thereafter build, does not apply to a railroad which was located and partially constructed at the time of its passage. Stearns v. Old Colony and Fall Biver B. B. Co., 1 Allen (Mass.), 493. 1861. 387. — culvert. A railway company, which was required by law to maintain a fence along its line of railway, was in this particular case held liable for injury to cattle occasioned by their cGcape through the neglect of the company to fence the mouth of a culvert. Keliher «. Connecticut Biver B. B. Co., 107 Mass., 411. 1871. 388. -^ defective fences. A railroad com- pany, which is not bound to construct and maintain a fence, is not liable in damages if an animal, feeding in an adjacent pasture, es- capes through a defect in the fence, and is run over and killed by the cars, without proof of due care on the part of the owner to prevent such an escape. Steams ■». Old Colony and Fall Biver B. B. Co., 1 Allen (Mass.), 493. 1861. 389. — The contraiy doctrine will prevail where a railway company is bound to erect and maintain sufficient fences. Bogers v. New- hwryport B. B. Co., 1 Allen (Mass ), 16. 1861. 390. — A railroad company, which ia obliged by statute to make all needful fences and cattle guards ou the sides of its road, is liable for injuries by its engines to cattle stray, ing at large through the land of a sti'anger upon its road, by reason of its negligence in placing such fences and guards. Browne v. Providence, 3a/rtford and Fishkill B. B. Co., 12 Gray (Mass.), 55. 1858. 391. Itlichigan — fences. Session Laws of 1847, p. 181, does not require individuals to fence their lands, but simply precludes them from recovering damages for trespass thereon unless they ai'e fenced. Willimns v. Michigan Centrals. B. Co., 3 Mich., 259. 1851. 392. — The act refers to such lands as are usually fenced, which cannot be entirely done in the case of a railway. lb. 393. Missouri. In actions to recoverdam- ages for injuries sustained through the omis- sion of a railroad company to fence its road as required by § 51 of the act of February 34, 1853, the question of care and diligence ou the part of the railway company cannot arise. The highest care will not excuse the company if its road is not fenced. Gorman v. Pacific B. B. Co., 36 Mo., 441, 1858; Burton v. North Mo. B. B. Co., 80 ib.,373, 1860; Trice v. Hannibal and St. Joseph B. B. Co., 35 ib., 188, 1864; Bigelow v. North Mo. B. B. Co., 48 ib., 510, 1871. 394. — If the animals are killed upon a portion of the road not inclosed by a lawful fence, and not at the crossing of a public high- way, actual negligence need not be shown. (R. C. 1855, p. 649, § 5). Powell v. Hannibal and St. Joseph B. B. Co., 85 ib., 457. 1865. 395. — cities or towns. A railway com- pany is not excused from fencing its track through a town or city merely because of its passage through such locality, without refer ence to the question whether it crosses the public highways, of a town or city. JElls v Pacific B. B. Co., 48 Mo., 231. 1871. 396. — collision must be shown. Section 43, ch. 63, Gen. Stat. 1865, contemplated a di rect or actual collision between the train and the animal injured. In such case only, the company should be responsible for the penalty given by the statute. The act was intended not only for the benefit and protection of own- ers of stock, but also as a public regulation for the safety of passengers and the traveling INJURIES TO DOMESTIC ANIMA.LS. 375 Statutoiy Liability and Decisions under various statutes. public, who are exposed to danger and peril in case of collision. Lafferty v. Hannibal and iSt, Joseph S. B. Co., 44 Mo., 291. 1869. 397. — constitutional law. The legisla^ ture has power to require railway companies to erect and maintain cattle guards and fences or to respond in damages for all injuries aris- ing from an omission to do so, although their charters contained no reservation of such a power. Gorman V. Pacific B. B. Co., 26 Mo.,- 441. 1858. 398. — contract. One who had contracted with a railroad company to fence his land along the line of the road, cannot set up the failure of the company to fence that part of its track as ground of action for damages for' the killing of stock, even though the statute makes it imperative on the company to fence. ElU -0 Pacific B. B. Co., 48 Mo., 2iil. 1871. 399. — crossings. The law will not pre- sume negligence from the killing of stock within the corporate limits of a town or city, especially where the accident hapjjened at a crossing long used as a public highway. (Wagn. St., 520). Wier ii. St. Louis and Iron Sit. B. B. Co., 48 Mo., 558, 1871 ; Lloyd v. Pacific B. B. Co., 49 Mo., 199, 1873. 400. — nninclosed lands. When it ap- pears from the evidence, that cattle were killed by a railroad company where its track passed through uninclosed prairie land, and where the track was not fenced, and where there was no road crossing, the law presumes negligence on the part of tlie company. Lantz «. St. Louis, Kansas City and Northern B. B. Co., 64 Mo., 228, 1873; Mclde v. Same, ib., 219. 401 . Nevada. The statutes of Nevada do not require fences to be constructed by rail- way companies where their roads run through public lands. Walsh v. Virginia and Truclcee B. B. Co., 8 Nev., 110. 1873. 402. New Hampshire — contract as to fences. Where the plaintiff gave a railway company a deed of part of the road which contained the clause: "Said corporation to fence the land and prepare a crossing with cattle guards at the present traveled path, on a level with the track ;" and it appeared that the railroad divided plaintiff's pasture into two parts ; held, that the clause was not a set- tlement between the parties as to crossings required by the statute, and that their legal position was not changed by this stipulation. Held, also, that where the plaintiff turned his cattle into the pasture, the company was liable for their injury while crossing the track, un- less it was done by accident, or by some fault of the plaintiff. White v. Concord B. B. Co., 30 N. H., 188. 1855. 40.5. — Ordinary care would not require the land owner to keep a "look out" at the crossing, or an attendant to watch the cattle. Ib. 404. — crossings. The plaintiffs' marc escaped from their pasture into an adjoining higliway, which was crossed by a railroad, in land not owned by the the plaintiffs, and went thence upon the track at a place where it crossed the highway and where there was no cattle guard or fence, and was killed by the engine: held, that the corporation was not liable. Towns v. Cheshire B. B. Co., 1 Foster (N. H.), 363. 1850. 406. — The plaintiff!s farm was divided by the defendant's railroad, and fences were made along the sides of the road, and also two farm crossings, but no gates were put up at the crossings. The plaintiff with the knowledge that there were no gates at the crossings, turned his sheep into his field, and afterwards, in attempting to pass over the road at one of the crossings, they were killed by the defend- ant's engine ; held, that the company was lia^ ble for the damages, as it was bound to erect the fences and to put gates at the crossings. Hm-n V. Atlantic and St. Lawrence B. B. Co., 35N. H., 169. ia57. 406. — A railway company is not only re- quired to erect fences, but to keep them in repair, or suffer the consequences. Smith v. Eastern B. B. Co., ib., 357. 407. — The killing of cattle at a private crossing by a railway company is prima facie evidence of its negligence. WJiite «. Concord B. B. Co., 30 N. H., 188. 1855. 408. — division fences. Where a railroad company owned a piece of land adjoining its railway, and the plaintiff owned a tract ad- joining the company's piece, and there was no fence between the plaintiff's land and the land of the company, and no steps had been taken to have any division of fence between them, and there was no fence between the company's piece of land and the railway, and the plaintiff turned his sheep upon his own land, from which they strayed upon the land 376 INJURIES TO DOMESTIC ANIMALS. Statutory Liability and Decisions under various statutes. of the corporation, and tlience upon the rail- road track and • were killed ; held, that the plaintiff could not sustain an action against the company for the loss of the sheep, al- though the statute requires railways to be fenced. Oomwall v. Sullivan, B. B. Co., 38 N. H., 161. 1854. 409.— fences. By the Eev. Stat. ch. 142, § 6, railroad companies are not bound to erect or keep fences, except against the land of per- sons adjoining the railroad, nor are they bound to erect cattle guards. Towns v. Oheshire B. B. Co., 1 Foster (N. H.), 363. 1850. 410. — A railroad company is not liable for damages done to cattle which escape from the highway to the railroad, nor through fences between the railroad and land of the owner of such cattle. WooUon v. Northern B. B. Co., 19N. H. 367. 1848. 411. — A railway company is not bound to maintain a fence on the line of its road against cattle unlawfully in a pasture adjoining. May- lerry «. Concord B. B. Co., 47 ib., 391. 1867. 412. New York. Under the provisions of the general railroad act, railroad companies are required to fence both sides of their track, and are liable for damages done to cattle so long as such fences are not made and kept in good order. Shepard v. Buffalo, JV. T. and Erie B. B. Co., 35 N. Y., 641, 1866. Tracy v. Troy and Boston B. B. Co., 38 ib., 433. 1868. 413. — Where a railroad company neglects to maintain fences and cattle guards along its road, as required by the general railroad act (Laws of 1850, p. 333, § 44), and cattle get upon the track and are injured by its engines or cars, the company is liable to the owner in damages, although he is not an adjoining proprietor, and it does not appear how or whence the cattle came upon the land Cor- win V. New York and Erie B. B. Co., 13 N. Y., 42. 1855. 414. — The statute protects corporations from liability for damages after the fences and cattle guards are constructed and maintained, only where the damages are not done negli- gently or willfully. McDowell v. New York Central B. B. Co., 37 Barbour. (N. Y,), 195. 1862. 415. — cattle guards. When a railroad company Jias constructed and maintains proper fences and cattle guards, as required by statute, its absolute liability for damages to cattle upon its ti'ack ceases ; and though guilty of negligence in permitting the cattle guards to remain full of snow, it is not responsible to the owner of cattle who is himself chargeable with negligence in allowing them to get upon the track. Hance v. Cayuga and Susquehanna B. B. Co., 36 N. Y., 428. 1863. 416. — constitutional law. The provisions of the railroad acts requiring the erection and maintenance of suitable fences, gates, bars, etc., is a police regulation, and is not incon- sistent with the special charter of the Hud- son River R. R. Co. Staats v. Hudson Bieer B. B. Co., 3 Keyes (N. Y.), 196, 1866; see Same v. Same, 39 Barbour. (N. Y.), 398, 1863; Same v. Same, 23 Howard's Pr. (N. Y.), 463, 1862; Same v. Same, 33 ib., 139, 1866 ; Waldron V. Bensselaer and Saratoga B. B. Co., 8 Bar- bour. (N. Y.), 890, 1850. 41 7. — contributory negligence. The stat- utes of 1848 and 1850, requiring railroad com- panies to fence their roads, render the com- panies responsible when they omit to make the fences, etc., if the damages are caused by them; but they are not responsible where the owner's negligence contributes to the injury. Marsh v. New York and Erie B. B. Co., 14 Bar- bour (N. Y.), 864. 1853. 418. — covenant to maintain fences. It is no defense tliat the party whose cattle were killed was legally bound to build such fence, under a covenant between his assignor and the company. It was the duty of Uie company to see the fence built. Sh&pard v. Buffalo, New York and Erie B. B. Co., 35 N. Y., 641, 1866; Tracy V. Troy and Boston B. B. Co., 38 ib., 433. 1868. 419. — crossings. Where a railroad com- pany neglects to erect and maintain fences and cattle guards at road crossings, as required by the general railroad act of March 27, 1848, and cattle are injured by reason of such neglect, the company is liable to the owner, in dam- ages, without any proof of negligence. Suy- dam V. Moore, 8 Barbour (N. Y.), 358, 1850 ; Waldron v. Bensselaer and Saratoga B. B. Co., ib., 390. 1850. 420. — The failure of a railroad company to erect cattle guards at road crossings does not make it liable for damages to cattle which have entered on the railroad from the owner's land, through the want of a fence which the owner was bound to build and keep in repair. mjURIES TO DOMESTIC ANIMALS. 377 Statutory Liability and Pocisions under various statutes. (Laws of 1848, p. 231.) TalmadgeD.Bensselaer and Saratoga S. M. Go., 13 Barbour (N. Y.), 493. 1853. 421. — The provision in the general rail- road act of J848, requiring railway companies to construct cattle guards at all road crossings, does not apply to streets in cities or villages. Pa/rker v Rensselaer and Saratoga B. B Co~, 16 Barbour (N. Y.), 315. 1853. 422. — The fact that the road crossing is at or near the depot, and that, to malce a cattle guard there, would inconvenience the com- pany, will not excuse it from complying with the positive requirements of the statute. Brad- ley V. Buffalo, New York and Erie B. B. Co., 34 N. Y., 437, 1866 ; Tracy v. Troy and Boston B. B.0o., 38 ib., 433, 1868; Same v. Same, 55 Barbour (N. Y.), 529, 1867. 423. — defective fences. Railroad com- panies are not liable under the statate for in- juries resulting from a casual defect in the fencing. They are not insurers. Murray v. New York Central B. B. Go., 3 Abbott's Ct. of Ap. Dec. (N. Y.), 339. 1868. 424. — Railroad corporations, in order to secure the protection aflEbrded by § 44 of the general railroad act, from liability for dam- ages done to cattle, etc., must not only erect fences and cattle guards, but must keep them In good repair, so that at all times and in all places, they shall be of the description and in the condition required, and sufficient to an- swer the purposes intended. Morrison v. New York and New Haven B. B. Go., 33 Barbour (N. Y.), 568, 1860; McDowell v. New York Cen- tral B. B. Go., 37 ib., 195. 1863. 425. — To render a railroad company liable under the laws 1850, ch. 1^, and 1854, ch. 283, for injuries to animals escaping through a railroad fence, temporarily out of repair, actual or constructive notice of such want of repair must be shown against the company, and its neglect to repair within a reasonable time proven. Wheeler v. Erie B. B. Co., 3 N. Y Sup. Ct, 634. 1874. 426. — The language of § 66 of the general railroad act, is not to be construed literally, so as to render a railroad company liable for in- juries occasioned upon its road, at a time when such fence is temporarily out of repair, with- out fault or negligence in any manner impu- table to the company. Murray v. Nrno York Central B. B. Co., 4 Keyes (N. Y.;, 374. 1868. 4-27. — farm crossings. The failure to fence at a farm crossing will render a railway comi)any liable for stock injured upon its track that has passed upon the track at tbat point. Fanning ®. Itong Island B. B. Co., 3 K". Y. Sup. Ct., 585, 1874. 428. — gates or bars left open. Where the cattle of a stranger are upon the lands of another, adjoining a railroad, and from those lands they pass upon the railroad through a gate left open by tlie proprietor of such lands, and are killed by the cars, their owner cannot recover their value, although the railroad company has not complied with the general railroad act, in respect to fences, at other points on the railroad. Brooks v. New York and Erie B. B. Co., 13 Barbour (IST. Y.), 594. 1853. 429. — A railway company is liable for injury to domestic animals resulting from one of its employes' negligence In leaving down the bars of the fence along the side of the track. Chapman v. New York Central B. B. Co., 33 N. Y., 369, 1865; Same v. Same, 31 Bar- bour (N. Y.), 399, 1860. 430. — Hudson Eiver R. R. Co. By the charter of the Hudson River R. R. Co., the corporation is relieved from any obligation to maintain fences, where its railroad is con- structed in the river, and this exemption is not changed or removed by the provisions of the general railroad act of 1848. SahermerJiom ». Hudson Biver B. B. Co., 38 N. Y., 103. 1868. 431.-— kind of fence required. The fail- ure of the statute to specify the kind of a fence to be built by a railway company caur not operate as an excuse for the entire failure of the company to erect a fence. Tallman v. Syracuse, BingTiamton and New York B. B. Co., 4 Keyes (N. Y.), 128. 1868. 432. — trespassing animals. It seems that a railroad company, which omits to com- ply with the statute by erecting and maintain- ing suitable fences and cattle guards, is liable to the owner of cattle which stray upon the track from an adjoining close»or from the highway, and are there injured by the engines or cars of the company, although they were not lawfully in such close or highway. Cor- win B. New York and Erie B. B. Co., 13 N. Y., 43. 1855. 433. North Carolina — negligence. The 378 INJURIES TO DOMESTIC ANIMALS. Statutory Liability and Decisions under various statutes. presumption of negligence raised by the stat- ute, can only be rebutted by showing that the agents of the railroad company used all proper precautions to guard against damage. It is not sufficient to prove that there was proiably no negligence. Battle v. Wilmington and Wei- don li. M. Co., 66 N. C, 343. 1873. 43't. — Where.it appeared by the plaintiflF's testimony that his horse had been injured on a railroad by the running of a train against it, and it was left doubtful from defendant's tes- timony, whether the brakes had been applied after the animal was discovered to be on the track, it -washeld that t\\Q, prima facie case of negligence made by the act of 1856, ch. 7, was not repelled. Olarlcv. Western North Cn/rolina JR. B. Co., Winston's Law (N. C), 109. 1863. 435. Ohio. In an action by the owner, against a railway company, to recover dam- ages resulting from an injury to his cow for want or insufficiency of fences (under act of March 35, 1859), when it appeared tliat ^he in- jury complained of was done subsequent to the taking eflFect of the act of April 13, 1865, restraining certain stock from running at large, it was held to be a sufficient answer, to allege that " the plaintiff did not live along the line of the road, nor was his cow grazing in any inclosed field adjacent thereto, and that plaintiff, knowingly and unlawfully per- mitted his cow to run at large." Pittihurgh, Fort Wayne and Ghieago B. B. Co. v. Methven, 31 Ohio St., 586. 1871. 436. PennsylTania. In Pennsylvania, a railway company is not bound to fence its road. It is not liable except for negligence .or wanton injury. BaiVroad Co. «. Skinner, 19 Penn. St., 398. 1853. 437. Khode Island. Where a railroad company, not obliged by its charter to fence the road against adjoining lands unless re- quested so to do by the owner, agreed with such owner that it should not fence the road against his lands, and a cow placed upon such lands having strayed upon the railroad, where it was killed by a train of cars, lield, that the owner of th» cow could not recover. Tower V. Providence and Worcester B. B. Co., 3 R. I., 404. 1853. 438. Tennessee — burden of proof. When the plaintiff proves the killing or injury of his stock by a railroad company, the onus is cast upon the company to prove that the act was unavoidable. Nashville and Chattanooga B. B. Co. V. Fugett, 3 Coldwell (Teun.), 403. 1860. 439. — retrospective statute. In an ac- tion against a raih'oad company for killing stock, previous to the passage of the act of the 3d of March, 1858, ch. 44, Code, § 1169, the act has no such retrospective construction as to embrace this case. Home «. Memphis and Ohio B. B. Co., 1 Coldwell (Tenn.), 73. 1860. 440. Vermont — private crossings. Where a railway company is bound by law to erect bars or gates at a private crossing, and the company had agreed to erect gates, but in- stead of so doing proceeded to erect bars, and the land owner forbid the erection of such bars, the land owner cannot hold the company liable for injuries to cattle in consequence of the want of such gates or bars. The remedy of the land owner for the refusal to erect gates instead of bars is by an action for dam- ages on the contract. Hurd v. Butland amd Burlington B. B. Co., 35 Vt, 116. 1853. 441. — construction of railways. As soon as railway companies have opened the fields of an adjoining land holder for the purpose of constructing their roads, they are bound to use all reasonable and prudent means to re- strain the cattle of the land holder from stray- ing upon the track, and to prevent other cat- tle from going upon his lands. Holden v. Butland ami Burlington B. B. Co., 30 Vt., 297. 1858. 442. — contributory negligence. It is the duty of the owner of cattle and horses, know- ing the exposed situation of an unfenced rail- road track, to exercise as much care and pru- dence in keeping his property from exposure to injuries therefrom, as is required of the corporation in guarding against their com- mission; and if in such case, he permits his cattle or horses to run in the highway, know- ing that there is no obsti-uction to their pass- ing thence upon the track, he is guilty of the same degree of negligence as that with which the corporation is chargeable in pennitting the railroad to remain unfenced. Trow v. Vermont Central B. B. Co., 34 Vt., 487. 1853. 443. —If the plaintiff were guilty of neg- ligence or even positive wrong, in allowing his cattle or horses to run in the highway, whence, through the want of a fence, which INJURIES TO DOMESTIC ANIMALS. 379 Statutory Liability and Decisions under various statutes. it was the duty of tlie railway company to maintain, they strayed upon the track, the corporation is bound to the exercise of reason- able care and diligence in the use of its road and management of its engines and trains, and if, from want of that care the injury arose, it is liable. lb. 444. — But in such case, if the company was guilty of no negligence in the manage- ment of its engine or train, it would not be liable for any inj ury resulting to such animals. lb. 445. — decree of care required. The owner of cattle which stray upon a railroad track by reason of the insufficiency of a fence which the railroad company is under obliga- tion to maintain, and who brings an action against the company for killing cattle, i? en- titled to have the degree of care required of the companj' defined in a more strict manner than by instructing the jury, that the company is bound to exercise such care as a man of ordinary prudence would use who was the owner of both the railroad and the cattle ; but defendant cannot complain if such instruc- tion is given. Quimby v. Vermpnt Central B. B. Co., 23 Vt., 387. 1851. 446. — trespassing animals. Where ani- mals are suflFered to go astray and trespass upon a railway, their owner cannot recover for their destruction, unless there is negli- gence upon the part of the servants of the company, even where the company is under a statutory obligation to fence its road, and has omitted to do so. Jackson v. Butland and Bur- lington B. B. Co., 25 Vt., 150, 1853 ; Morse d. Butland and Burlington B. B. Co., 27 ib., 49. 1854. 447. — The obligation to fence only extends to the owner or rightful occupier of the ad- joining fields, and against cattle rightfully in such adjoining fields. Ib. 448. Wisconsin — constitntional law. Ch. 268, Laws of 1860, is constitutional, and the requirement for the erection of fences was chiefly intended to protect passengers. Blair v. Milwaukee and Prairie du Ohien B. B. Co., 20 Wis., 254. 1866. 449. — evidence. The owner of an ani- mal injured by a railway train cannot recover damages under ch. 268, Laws of 1860, by merely showing that near the place where the injury happened, and near the depot of the company, land occupied by the company for its track, otiier than its depot grounds, was unfenccd ; but he must show that the animal got upon the track at a point where the com- pany was bound to maintain a fence, and had neglected to do so. Bennett «. Chicago and Northwestern B. B. Co., 19 Wis., 145. 186.0. 450. — fences. Where the owner of lands, across which a railway had been constructed prior to 1860, has recovered damages for the right of way, it will be presumed that he has recovered compensation for erecting and maintaining suitable fences along the line of the road where it crossed his land ; and the company would not be liable for the ei-ection of fences, nor for injuries done to the cattle of the landowner by reason of defects in the fences. Ch. 268, Laws of 1860. Johnson ■». Milwaukee and St. Paul B. B. Co., 19 Wis., 137. 1865. 451. — La Crosse and Milwaukee R. R. Co. Ch. 122, Laws of 1856, required the La Crosse and Milwaukee R. K. Co., to fence its road in parcels, each to be fenced in one year after it was put in operation. BCeld, that the object of this statute was not merely to regu- late the division fences, as between the com- pany and the adjoining landholders, but was to protect the public generally. McCall v. Chamberlain, 13 Wis., 637. 1861. 452. — lessees. The lessee takes the road subject to all the duties which the company owes to the public. Ib. 453. — If the company Jias neglected to make such fence within the time limited, it will be liable for all damages done to animals straying on the track through the want of such fence, without reference to whether there was negligence in managing the cars at the tirhe of the injur}', or whether such animals were rightfully or wrongfully on the adjoining land from which they escaped upon the track. Ib. 454. — repairs of fences. Under the stat- ute which requires railroad companies to fence their tracks and makes them absolutely liable for injuries to stock straying thereon in case of their neglect to do so, such companies are bound to exercise a high degree of dili- gence in keeping their fences in a safe condi- tion. Antisdel v. Chicago and Northwestern B. B. Co., 26 Wis., 145. 1870. 455. — It was not error for the court to 380 INJURIES TO DOMESTIC ANIMALS. General Matters. refuse to instruct tho jury, that the company " was required to cxsroiso only ordinaiy care and diligence in maintaining the fence along its road." lb. 456. — It seemt that if the company has a patrol passing along the track daily, and if, when informed of any defect in its fence, it at once makes the ncdessary repairs, this will discharge it from liability. lb. 457. — Though under the statute, a railway company is required to fence its road, or be absolutely liable for injury to animals which get upon its track in consociuonce of such failure to fence, it will not, perhaps, be liable to such absolute liability in case its fence should be suddenly destroye.l by unav jidable accident, in case immediate steps were taken to rebuild. Brown «. Milwaukee and Prarie du Ohien B. B. Oo., 21 Wis., 89. 1868. 458. — Under the statute, railway compa- nies are absolutely liable for all damages to cattle occasioned by their neglect to fence their roads ; and it was so held in a case where plaintiiPs cattle were placed in a close adjoin, ing the track, after the fence separating it from the track had been partially destroyed by Are. Sika «. OMoago and Northweatern B. B. Oo., 21^18., 370. 1867. 459. — And it is no defense that the plaintiff had trespassed upon defendant's track in driving his cattle to said close ; such tres- pass not being connected with the subsequent acts by which they were killed. lb. 460. — trespassing animals. Where a railroad company erects and maintains proper fences and cattle guards along its road, keep- ing them in good condition, cattle escaping and straying upon the road are trespassers, and the law charges the owners with negli- gence, although not actually guilty of any carelessness in permitting them to escape. Fisher v. Farmera' Loan and Trust Oo., 21 Wis,, 73. 1866. 461. — Where the negligence of the owner directly cooperates with that of the company's agents in causing the injury, he cannot recover without showing willful misconduct or gross carelessness on the part of the agents. lb. XIII. General matters. 462. Accidental killing. Where the en- gine, running on the road of the P. and R. R. R. Co., killed a steer under such circumstances as showed that the killing was accidental; held, that the company was not responsible for the loss. Qa/rris «. Portsmouth and Bocmohe B. B. Oo., 2 Iredell's Law (N. C), 824. 1842. 463. Action. Damages cannot be recov- ered in an action for stock killed after suit is bi'ought. Toledo, Peoria and Warsaw B. B. Co. 1). Arnold, 49 111., 178. 1868. 464. Assignment of claim. Claims for mere personal torts, which die with the per- son, arc not assignable; but claims for taking and converting personal propei'ty, or for in- juiy to personal property, may be assigned, so as to pass an interest to the assignee which I he can assert in his own name in a civil ac- tion under the code. Butler v. New York and Erie B. B. Oo., 23 Barbour (N. Y.), 110. 1856. 465. Canal lands. A railway company is bound to fence at a place where its road is situated on the tow path of a canal abandoned as a thoroughfare. White Water Valley B. B. Oo. V. Quick, 80 Ind., 884. 1808. 466. — Where a railroad passes upon an embankment erected in the bed of a canal, such embankment must be guarded by fences. Same v. Same, 31 ib., 127. 1869. 467. Charter. The charter of the Vt. Cent. R. R. Co. provides that, on taking land for the use of the road, tho company shall be " seized and possessed of the land." This does not make the company owner in fee of tho land; hence the statute with reference to the obliga- tion of adjoining land owners to maintain division fences does not apply, but the obli- gation rests primarily upon the company, and until it has done this, or paid the owner for so doing, a sufficient length of time having elapsed for erecting such fences, the mere fact that the cattle get upon the road from land acljoining, is no ground for imputing negligence to the owners of the cattle. Quim- by «. Vermont Oentral B. B. Oo., 28 Vt., 887, 1851 ; Trow v. Same, 24 ib., 487, 1852. 468. Consolidation of companies. A com- plaint against the P., C. and St. L. R. R. Co., charging that a railroad corporation known as the C, C. and I. C. R. R. Co., killed an ani- mal, belonging to the plaintiff, and after tho killing, consolidated with another railroad company, and is now run and known as tho P., C. and St. L. R. R. Co., is not supported by the evidence, if the evidence falls to show the INJURIES TO DOMESTIC ANIMALS. 381 General Matters. consolidation charged. Pittsburgh, Cincinnati and Bt. Louis B. S. Co. ». Kain, 35 Ind., 201. 1871. 469. Contractors operating railway. The corporators of a railroad company are liable, if its lessees should commit a trespass. The same rule applies where the road is operated by contractors, while constructing it. Chicago and Bonk Island B. B. Co. v. Whipple, 22 111., 105. 1859. 470. Estrays. One who is in possession of an animal which he has taken up as an estray, may sue for and recover damages, in his own name, for injury to such property, Peoria, Pe- hin and JacJcsonmlle B B. Co. v. McTntire, 39 111., 298. 1866. 471. — Where the party taking up an estray, in attempting to comply with the law, failed to post the animal in the proper man- ner, yet he could recover against a railroad company for the wrongful injury to the prop- erty, and such recovery would be a bar to any subsequent action against the comisany, by the true owner, for the same injury. Chicago and Northwestern B. B. Co. v. Shultz, 55 111., 421. 1870. 472. Former adjudication. An action was brought at common law for the killing of an ox through the negligence of a railway com- pany. The plaintiff failed and afterwards brought his action under the statute. Held, that the former action was no bar to the sec- ond. Incdanapolis and Cincinnati B. B. Co. e. Olark, 21 Ind., 150. 1863. 473. Fright of animals causing injuries. Where a horse, while being led along the highway by its owner, is so frightened by a passing train that he bursts a blood vessel, and dies, no action will lie against the railroad company for the Injury, unless it was the re- sult of some wrongful act of the company. Moshier v. UHca and Schenectady B. B. Co., 8 Barbour (N. Y.), 427. 1850. 474. — But where the charter of the com- pany required it to purchase a turnpike road running parallel with the proposed railroad, and to assume the liabilities of that corpora- tion before it should be permitted to run cars upon its own road, and gave it the right to lay its road track across and along the bed of the turnpike, but required it " to restore the road to its former state, or in a sufficient manner not to impair its usefulness,'' it was held, that if the taking of a part of the bed of the turn- pike, for the track of the railroad, rendered it dangerous to persons traveling with teams on the turnpike, and thus impaired its usefulness to the public, the railroad company was bound either to remove the two roads further from each other, or to separate them by pro- tecting guards. lb. But, see Coy «. Same defendant, 23 ib., 643, 1855, in which the con- trary doctrine is held to be the law. 47.5. Headlight. The operators of a rail- road train have an unqualified right to carry a headlight upon the train at night, when necessary for the safety of the lives and prop- erty embai'ked upon the train. Bellefontaine and Indiana B. B. Go. v. Schruyhart, 10 Ohio St., 117. 1859. 476. — It is error to instruct a jury that such right depends upon its exercise not en- dangering cattle that may stray upon the track. Ib. 477. Ownersliip. Where parties suing in case, for damages for killing cattle, claim !j,s joint owners, they should be held to reasona- bly strict proof of ownership. Illinois Cen- tral B. B. Co. V. Finnigan, 21 111., 646. 1859. 478. Pasturage. Damages from the non- thriving of cattle, owing to the construction of a railroad through the pasture on which tliey were feeding, are not remote, contigenl or speculative, but are recoverable in an ac- tion of trespass, quare clausum fregit. Balti- more and Ohio B. B. Co. v. Thompson, 10 Md., 76. 1856. 47 9. Railway yards. The yard of defend- ant was full of pitfalls, and was inclosed by a high fence with gates for the passage of cars, the gates being open by day and shut at night. The plaintiff's cow strayed into the yard, and was not discovered by the watchman who searched the yard before closing the gates. After the gates were closed, dogs were turned loose into the yard. The dogs chased the cow and she fell and was killed. Held, that the company was not liable for the injury. Leseman i>. South Carolina B. B. Co., 4 Rich- ardson's Law (So. Oar.), 413. 1851. 480. Watclunanon locomotive. The act of 1856, ch. 94, § 8, requires all railroad com- panies in Tennessee to keep a special watch- man upon the locomotive when in motion, to watch the track and give warning of any ob- stacle or obstruction. This is a special duty 882 INJURIES TO EMPLOYES. Negligence of Co-employe8. to be performed by one person, as his sole oc- cupation wliile the train is in motion, and if in the absence of such special watchman, in- jury result to person or property by being overrun, the company is liable in damages, such omission being deemed negligence. Memphia and Oharleston B. B. Co. v. Dean, 5 Snead (Tenn.), 291. 1858. 481. Wells. Where a well is dug upon the right of way of a railroad company, with- out its knowledge or consent, and a mule falls into it and is killed, the company cannot be held liable. Illinois Central B. B. Co. v. Car- rah&r, 47 111., 333. 1808. 482. Where the company is a trespasser. Where a railway was built through plaintiff's pasture and without payment or securing of compensation, and a cow was killed by a train in the pasture, it was held, that these facts made & prima facie case against the company. Matthews v. St. Paul and Paeifia B. B. Co., 18 Minn., 434. 1872. 483. Willful acts of employes. A railroad company is liable for the careless and negli- gent acts of its agents in the course of the per- formance of their duties ; but it is not liable for their criminal and willful acts. De Camp 1). Misaiisippi and Missouri B. B. Co., 13 Iowa, 348. 1861. 484. — A railroad company is not liable for stock killed or injured on its track, in conse- quence of the willful act of the engineer run- ning the train. Coohe v. Illinois Central B. B. Co., 30 Iowa, 303. 1870. 485. — Where an injury is alleged to have been willfully done, it is not necessary that it should appear that the plaintiff was free from contributory negligence. Indianapolis, Pitts- bwffh and Oleneland B. B. Co. v. Petty, 30 Ind., 361. 1868. INJURIES TO EMPLOYES. See Constitutional Law; Damaobs; Ikdiotment; Medioai, Sekvices; Nbolioenoe; BBCEivEn. I. Negligence of co-employ iSs. 1. Neglect of employer. a. Generally. b. In the selection of servants. 3. What constitutes an employi. 3. What employments are common. 4. Employments not common. 6. Common Law Bule. II. Defective roadway, machinkiiy and MATBIIIALS. 1. Boadway. 3. Machinery. 8. Other Defects. III. Risks assumed by employes. IV. Employi: s as pabsengehs. V. Negligence as between EMPLOYis. VI. iNJOniBS CAUSING DEATH. VII. Evidence. VIII. Pleading. IX. Genebal matters. I. Negligence of co-EMPLOYis, 1. Neglect of Employer. a. generally. 1. Dispatching trains. Where an agent whose duty it was to make up and dispatch trains, and to hire and station brakemen, sent out a heavy freight train with but two brake- men when three were required, and the train broke in two, and in consequence of the want of necessary brakemen the rear part ran back- ward and collided with another train which had been dispatched five minutes after the first, killing the fireman thereof; it was held, that the railway company was liable. VUIk jj. Boston and Albany B. B. Co., 58 N.Y., 549. 1873 2. — The company should supply sufficient help to operate the train. lb. •S. Joint negligence. Where a servant re- ceives an injury which is occasioned in part by the negligence of his master, and partly by that of a fellow servant, he can maintain an action against his master for such injury. Panilmier v. Brie B. B. Co., 5 Vroom (N Y ) 161. 1870. ■ ■ ' 4. Rank of employes. A corporation is liable to an employ6 for negligence in respect to such acts and duties as it is required to perform as master or principal, without re- gard to the rank or title of the agent entrusted with their performance. Flike v. Boston and Albany B. B. Co., 58 N. Y., 549, 1878. b. IN. the selection of servants. 5. Degree of care required. A master is bound to use diligence in the selection of his INJURIES TO EMPLOYfiS. 883 Negligence of Co-employ6s. servants, and for want of such care, he is liable to all other servants for any damage that may arise. But if the officers of a rail- road company have made careful inquiry into the habits and competency of the employes, and upon such inquiry, believe and have reason to believe them sober, competent and careful, the company is not liable for injuries resulting from the negligence of a co-em- ployfi. Moss «. Pacific S. R. Oo., 49 Mo., 167, 1873; Sizer ii. Syracuse, etc., It. B. Oo., 7 Lans- ing, (N. Y.) 67, 1873; Union Pacific B. B. Co. ■e. Milliken, 8 Kans., 647, 1871 ; Frazier v. Penn- sylvania B. B. Oo., 38 Penn. St., 104, 1860; O^Donnell v. Allegheny Valley B. B. Oo., 59 Penn. St., 339, 1868. 6. — A railway company is boun:l to use ordinary care in the selection of its servants. BoKback v. Pacific B. B. Oo., 48 Mo., 187, 1869. 7. Continuance of employment. The same degree of negligence which unfits a party for employment in the first place will equally unfit him for a continuance therein, his neg- ligent conduct being known to his employer. Sa/rper v. Indianapolis and St. Louis B. B. Oo., 44 Mo., 488, 1869. 8. Evidence of want of care. For the pur- pose of showing that the officers of a railway company did not exercise proper care in the employment of, or in retaining in service, care- ful, prudent, and skillful persons to manage and operate its road, and for the purpose of charging such company with notice of the incompetency of its employes, specific acts of negligence or unskillfulness of such employes may be proved, and it may be proved that such acts were known to such officers before, the employment of such persons, or that such employes were retained in such service after notice of such acts. Pittsburgh, Ft. Wayne and Chicago B. B. Oo. v. Buby, 38 Ind., 294, 1871. 9. — Character for care, skill, truth, etc., though growing out of the special acts of a party, cannot be established by proof of such acts, but by evidence of general reputation. Frazier ». Pennsylvania B. B. Co., 38 Penn. St., 104, 1860. 10. — Mere proof of the particular act of negligence of the employe causing the injury Is not sufficient to show negligence in his employment. So held, where a brakeman on a train was injured by the taking up of rails to repair the track, of which the trainmen were not properly notified. Gqooper «. Mil- waukee and Prairie du OMen B. B. Co., 33 Wis., 668, 1868. 11. Exemplary damages. A railway com- pany impliedly warrants that its cmploygs are persons of due skill, and are competent and faithful. And in case of the willful miscon- duct or gross neglect of its employes, it is liable in exemplary dainages. Mew Orleans, Jackson and Crreat Nortliem B. B. Co. v. All- britton, 38 Miss., 343, 1859. 12. Fireman. Permission given by the company to one of its engineers to allow a fireman to act as an engineer, when he deemed the fireman competent, makes the company responsible for injuries resulting from a mis- take or negligence of the engineer in per- mitting a fireman to handle the engine when incompetent for duty. Harper «. IndianopUs and St. Louis B. B. Co., 47 Mo., 567, 1871. 13. Knowledge of employe of co-em- ploye's incompetence. Where the servant has full and equal knowledge with the master that a fellow-servant is incompetent, and he remains in the service, this may constitute contributory negligence; but if it appears that the master has promised to amend the defect, or other like inducement to remain has been held out to the servant, the mere fact of his continuing in the employment does not of itself, as matter of law, exonerate the master from liability. Laning v. New York Central B. B. Co., 49 N. Y., 531. 1873. 14. — Where the plaintiff, who was a brakeman, knew that his conductor was ha- bitually careless, and chose to continue in service with him, neither informing the com- pany of his known carelessness, nor refusing to serve with him ; lield, that he could have no claim for injuries resulting from further acts of carelessness of the conductor, even though the company also knew it. Fratier v. Penn- sylvania B. B. Co., 38 Penn. St., 104. 1860. 15. — In an action for an injury to an em- pIoy6 resulting from the negligence of a con- ductor, it is proper, in defense, to show that the superintendent did not know that the con- ductor was a careless person. lb. 16. Switchmen. Where, in an action for damage sustained by an employe, by the neg-, ligence of a fellow-servant in misplacing a switch, it appeared that a misplacing of a switch by the same switchman had caused an 884 INJURIES TO EMPLOYES. Negligence of Co-employes. accident on a former occasion; 7ield, that the company should have been allowed to prove, that on the occasion of the former accident, an investigation had been made by one of its roadmasters, who reported that the switchman •was free from negligence. Bmilec v. HfTeie York and Earlm, B. B. Co., 12 Abbott's Pr. N. S. (N. Y.), 810, 1872; Same v. Same, 62 N. Y., 033, 1873. 17. — A railroad company employed A., ■who was careful and trusty in his general character, to tend the switches on its road ; and after he had been long in such service, B. ■was employed to run the passenger train of cars on the road; B. knowing the employ- ment and character of A. Held, that the company was not answerable to B. for an in- jury received by him, while running the cars, in consequence of the carelessness of A. in the management of the switches. Farwell v. Boston and Worcester B. B. Co., 4 Metcalf (Mass.), 49. 1842. 18. — drunkenness. If a flagman em- ployed by a railway company is addicted to drunkenness, and is usually intrusted with the management of a switch, and these facts are known, or, by the use of due care, would be known by the officers of the company, and he, through intoxication, fails properly to ad- just a switch, whereby an accident happens to a person employed by the corporation to repair its cars, the corporation will be respon- sible in damages, although due care was used in the original selection of the flagman. Gil- man v. JSastem B. B. Co., 13 Allen (Mass.), 433. 1866. 19. — A railroad company is not respon- sible to one of its employes whose duty it was to repair its cars, for a personal injury arising from the negligence of a switchman, in failing properly to adjust a switch upon the track over which he is carried by the company free of charge, between his home and the place of his work, provided tlie company has used duo care in the selection of the switchman ; but if the switchman was an habitual drunkard, and this fact was known, or ought to have been known to the corporation, and the injuiy resulted from his intoxication, the corporation is responsible. Same v. Same, 10 Allen (Mass.), 2^8. 1865. 20. Want of skill. A railway company is not chargeable for injuries to one servant by the negligence of another, on the ground of the unskillfulness of the latter, unless the in- juries resulted from such unskillfulness. Wright v. Nm York Omtral B. B. Co., 25 N. Y., 562, 1802 ; ixiversing Same v. Same, 28 Bar- bour (N. Y.), 80, 1858. 2. What constitutes an emphye. 2 1 . Contractors. Where a contractor, en- gaged in repairing a bridge upon a railway for the company, employs men to work thereon by the day, the latter are the servants of tlie contractor, and not of the company ; and there is no privity between them and-the com- pany. Toung v New York Central B. B. Co., 30 Barbour (N. Y.), 229. 1850. 22. — If a man, thus employed by the con- tractor receives an injury from a passing train while at work upon the bridge, he may, upon a proper showing, maintain an action for dam- ages against the railroad company. lb. 23. — A railroad company to which coal was delivered by vessels, undertook to remove it from the vessels to its cars at a fixed price per Ion, paid by the masters of the vessels, and employed N., who was in its service as a weigh master, to do the shoveling and dump- ing, using a stationary hoisting engine be- longing to the company, and employing his own help, and receiving a certain price per ton. N. hired B. as a shovel er, and B. ■was killed, while in the employment, by a car be- ing backed upon him without notice by the servants of the company. The wages of B. were not paid by the company and his name was not entered on its pay roll. In a suit brought by his administratrix against the com- pany in which the latter claimed that B. was its servant and that it was therefore not liable for the injury, tlie court charged the jury that if the company had control of B. and could have discharged him without breaking its contract with N., or if N. was its agent in employing him, then he was in the employ- ment of the company, but that if N. was an independent contractor and hired B. as such, and the company could not control or dis- charge him, then he was not. lleld, on a motion of the defendant for a new trial : I. That the charge was unexceptionable. II. That on the facts, the jury properly held that B. was not the servant of the company. Bitrke v. INJURIES TO EMPLOYES. 385 Negligence of Co-employes. Norwich and Worcester B. li. Co., 34 Conn., 474. 1867. 24. Joint occupancy of railways. A switch tender was employed by a railroad company on a portion of its track upon which it per- mitted another company to run trains. Seld, that such switch tender was not a servant of the latter company ; and an engineer of the latter, injured by the negligence of such switch tender, may maintain an action against the switch tender's employer. Stnithv. Ifem York and Harlem R. B.Go., 19 N. T., 137, 1859; Same ®. Same, 6 Duer (N. Y.), 225. 1856. 25. Parent and child. A minor son of the plaintiff was, with his consent, en. ployed to go upon a construction train to furnish water to the laborers at the points where they stopped for labor. The son was also, at times with the father's knowledge, employed as brake- man and fireman upon the train. By the neg- ligence of a person in charge of a section of the road, in not signaling the train, it ran off tiie track at a curve, where the rails were be- ing elevated, and the boy was killed. Held, that the company was not liable for the injury. Ohio and Miisisaippi B. B. Co. v. Bammersley, 28Ind.,371. 1867. 26. Persons helping employes. A train of defendant's coming into a city, the engine, tender and one car were detached from the remainder, and run under the charge of the fireman, in the . engineer's place, to a water station belonging to defendant. At the station, the fireman asked a boy ten years old, stand- ing tliere, to turn on the water; whilst he was climbing on the tender to put in the hose the remainder of the train came down with its ordinary force and struck the car attached to the engine; the jar threw the boy under the wheel and he was killed. Held, that it not being within the scope of the engineer's or fire- man's employment to ask any one to come on the engine, the defendant was not liable. Flower ■o. Pennsyhania B. B. Co., 69 Penn St.. 310. 1871. 27. — The boy did not come within the protection of defendants ; assuming that he became an employg, this relation would des- troy the right of action. lb. 3. What emphyTnents are common, 28. Brakemen. Engineers and brakemen 25 are held to be in the same class or line of service; and the fact that the engineer ser ed on a passenger and the brakeman on a freight train, does not change the rule. Louisville and Nashville B. B. Co. v. Bobinson, 4 Bush (Ey.), 507. 1868. 29. — A brakeman on a train and a switch tender are engaged in the same general un- dertaking, and the company is not liable to one for an injury caused by the negligence of the other. Slatterfs Adm'r. ■». Toledo and Wa- bash B. B. Co., 23 Ind., 81. 1864. 30. — A brakeman, whose duty it is to ap- ply the brakes only when directed by the en- gineer or conductor, cannot maintain an ac- tion against their common employer for an injury resulting from the culpable speed, at which the engineer and conductor ran the train. Sherman v. Boehester and Syracuse B. B. Co., 17 N. Y., 153, 1858; Same v. Same, 15 Barbour (N. Y.), 574. 1838. 31. Carpenters. Employes engaged in a carpenter shop of a railroad company, and employes operating an engine, are not on- gaged in a common employment. Byan v. Chicago and Northwestern B. B. Co., 60 111., 171. 1871. 32. Car repairer. An engine driver, in charge of a switch engine, and a laborer en- gaged in repairing cars, the switch engine being used at times to move such cars as needed repair, were held to be engaged in one common employment, so that the one could not recover against the railway company for injuries resulting from the negligence of the other. Chicago and Alton B. B. Co. v. Murphy, 53 111., 336. 1870. 33. Common hazards. Where the ordinary duties of the servants of a common master ai-e such that one is necessaily exposed to hazard by the carelessness of another, they must be regarded as fellow servants. lb. 34. Conductor. The plaintiff, an employ^ of a railway company, was employed by the month to render service generally on the road, in the capacity of baggage master, conductor of passenger trains, and gravel trains, at such times and places along the road as directed ; and being ordered to go to F. and take charge of a gravel train the next day at that place, took passage on the train for F., but passed by F. to T., and on the morning of the next day returned, by the same train, toward P., to 386 INJURIES TO EMPLOYES. Negligence of Co-employ§s. take charge of the gravel train as directed. Before arriving at F., by the carelessness of the servants operating the passenger train, he was thrown from the car and injured, and brought his action against the company for damages. Held, that his relation of fellow servant to the employes operating the train, entitled the plaintiff only to the exercise on their part of ordinary care; and not to that extraordinary care due to a common passen- ger. Manville v. Cleveland and Toledo B. B. Co., 11 Ohio St., 417. 1860. 35. — When a railroad company places the engineer under its employ under the control of the conductor, who directs when the cars are to start, stop, etc., the company is liable to the engineer for an injury received, occas- ioned by the negligence of the conductor, whilst they are both engag.d in their respect- ive employments. Little Miami B. B. Co. v. Stevens, 20 Ohio, 415. 1851. 36. Contractors. A. contracted to deliver wood to a railroad company, the company to furnish the equipments to move it, the men on the train to obey the orders of the con- tractor. One of the servants employed by him to load wood upon the car was thrown off and killed. Held, that the parties were all servants of the company, and that no recovery could be had against the company for his death. Illinois Central B. B. Co. v. Cox, 21 111., 20. 1858. 37. — A subcontractor engaged in build- ing bridges on the line of a railroad is not a coservant of those employed in operating the trains. Donaldson v. Mississippi and Missouri B. B. Co., 18 la., 280. 1865. 38. Conpling cars. An employd whose em- ployment consists in the performance of va- rious duties, among other things, of coupling and uncoupling cars, is, while engaged in uncoupling cars, to be regarded in the same general undertaking as the engineer and con- ductor having charge of the cars. Wilson v. Madison, etc. B. R. Co., 18 Ind., 226. 1863. 39. — The fact that such servant had other duties to perform would not enlarge nor di- minish his rights in the premises. lb. 40. — A common laborer having been ordered by the foreman to couple cars, he be- ing ignorant of such duty, went between the cars for that purpose and while there, was killed by the negligence of the engineer in brinffing the cars together with great force. Held, on demurrer, that the railway company was liable for the damages. Lalor v. Chicago, Burlington and Quiney B. B. Co., 52 111., 401. 1869. 41. Defective cars. Where a brakeman upon a freight train was injured while de- scending a ladder on one of the cars, in obe- dience to a signal from the engine driver, the injury being occasioned by the absence of some rounds from the ladder, it was held, the brakeman should not be prejudiced as to his right of recoveiy by the negligence of those servants of the company having charge of the inspection and repair of tlieir cars, as they were superior to him in authority ; notice to them of the defect was notice to the company. Chicago and Northwestern B. B. Co. v. Jackson, 53111., 492. 1870. 42. Grades of employment. When several employes are engaged in the same general ser- vice, and one is injured by the negligence of another, though the negligent sei-vant in his grade of employment is superior to the one injured, the employer is not responsible. Slumck J). Northern Central B. B. Co., 25 Md., 462, 1866 ; Thayer v. St. Louis, Alton and Terre Haute B. B. Co., 23 Ind., 26, 1864. 43. — Railway companies are liable for in- juries arising from the negligence or careless- ness of their agents and ofBcers, in the course of their employment, in the same manner, and to the same extent, as private individuals. Cleveland, Columbus and Cincinnati B. B. Co. V. Kcary, 3 Ohio St., 201. 1854. 44. — These principles apply where a cor- poration places a brakeman in its employ un- der the control of the conductor, the latter having the exclusive command of the train, and the brakenian, without fault on his part, is injured by the carelessness of the conductor. In such a case, the brakeman is entitled to re- cover of the company for the injury ; the con- ductor being the sole and immediate repre- sentative of the company upon which rested the obligation to manage the train with skill and care. 76. 45. — But a principal is not liable to one servant in his employ for injuries resulting from the carelessness of another servant, when both are engaged in a common service, and no power or control is given to the one over the ether. Such employes stand as equals to INJURIES TO EMPLOYES. 887 Negligence of Co-employes. each othei', and are alone liable for the inju- ries they may occasion. lb. 46. — Tlie agent or officer entrusted with power and control over the subordinates, and the operations of the business, is not engaged in a common service with them, admitting of joint participation; nor is he, in any just sense, their fellow servant; but their employ- ments are separate and distinct, although both are necessary to a successful result in the busi- ness, lb. 47. — Where a servant receives a personal injury through the carelessness of a fellow servant engaged in a common business and employment, and no relation of subordination or subjection existed between them, and the employer is himself guilty of no fault, such employer is' not responsible for the injury. Whaalan ii Mad Biver and Lake Erie B. B. Co., 8 Ohio St., 349. 1858. 48. Gravel trains. A set of hands were working for a railroad company, graveling a part of the track. The gravel was conveyed from the gravel pit to the place where it was used, by a train of cars. The same hands loaded and unloaded the gravel, and rode upon the cars to and from the place of load- ing and discharging. While thus employed, the train, through the alleged carelessness of the engine-driver ran against an ox, was thrown oflF the track, and one of the hands was killed. flisM, that the engine-driver and the deceased were engaged in the same gen- eral undertaking, and the representative of the deceased could not recover damages. OMo and Mississippi B. B. Go. v. Tindall, 13 Ind., 366, 1859 ; see also Fitzpatrick v. New Albany and Salem B. B. Go., 7 ib., 436, 1856. 49. Joint occupancy of railways. Where the deceased was in the sole employ of one railway company, and was killed by the cars of another company, running its trains over the road of the former company, the right of action of the widow of the decedent is not pre- cluded on the ground that the deceased was in the same general employment as defendant's servants. The rule as to employes recognized in the adjudged cases will not be extended. OatoMissa B. B. Co. v. Armstrong, 49 Penn. St., 186. 1865. 50. Laborers. Where a laborer upon a con- struction train, working under the orders of the conductor in charge of such train, is in- jured in consequence of the train being moved by the engineer, also in pursuance of the order of the conductor, but without giving any sig- nal, as required by' the rules, such laborer can- not recover against the common master for injuries resulting from the carelessness of his engineer, if the master has used due diligence in his selection. GMeago and Alton B. B. Go. V. Keefe, 47 111., 108. 1868. 51. — A laborer employed to put gravel upon a new and unflnished railroad track, upon which no train had run, and who was w^alking upon such track towards the place where he was to commence his day's work, was overtaken and injured by a passenger train using the new track in consequence of a tem- porary obstruction upon the old track of the same company, which was parallel and about six feet distant. Meld, that he could maintain no action therefor. Boldt v. New York Cen- tral B. B. Co., 18 N. Y., 432, 1858 ; GilsTian- non V. Stoney Brook B. B. Co., 10 Gushing (Mass.), 238, 1852. 52. Machinist. A master machinist who has the immediate charge, control and direc- tion of the locomotive and other machinery of a railroad company, and the repairs of the same and the control and direction of the en- gineers and firemen on the ti-ains, is a fellow- servant of such firemen. Colnmbus and Indi- anapolis Central B. B. Go. v. Arnold, 31 Ind., 174. 18G9. 53. Minors. A railroad company is liable for the negligent act of a fireman in charge of dangerous machinery, who, in the scope of his duty, orders a minor employ6 to perform a dangerous service not in the ordinary course of the employment of such minor. Fort v. Union Pacific B. B. Co., 3 Dillon (U. S. C. C,),, 359. 1871. 54. Track repairer. Where the injured servant is engaged in the repair of a railroad track which is then in use, and the party through whose negligence the injury occurs is a hand employed on the engine and tender of a passing train, they are engaged in a com- mon employment, and the injured party can- not recover damages from his employer Whaalen v. Mad Biver and Lake FrieB. B. Co., 8 Ohio St., 349. 1858. 55.— The plaintiff was employed as a track- man to follow in a hand car, passenger trains over a certain part of the defendant's road to 388 INJURIES TO EMPLOTfiS. Negligence of Co-employ§8. keep it in order, and report defects ; and while engaged in this duty, in the evening, was run over, and very seriously and permanently in- jured by a train of defendant's cars, without lights, not usually passing at that hour, and through the negligence (as was claimed) of the employes managing the train. Eeld, that the defendant was not liable to the plaintifi for the negligence of the managers of the train. Coon V. 8yraeuee and Utiea B. H. Co., 5 N. Y., 403, 1851 ; Same v. Same, 6 Barbour (N. Y.), 231, 1849. 56. — The plaintiff was a section hand en- gaged in repairing track. He was injured by the negligence of an employg who so care- lessly piled wood upon the tender that a stick fell off and injured the plaintiff. Eeld, that the employes were engaged in the same gen- eral employment and plaintiff could not recover for the injury. Foster v. Minnesota Central JR. B. Co., 14 Minn., 860. 1869. 4. Employments not common. (See Bnbdlvision Immecliately preceding.) 57. Liability of corporation. A railway company is liable to a servant for an injury occasioned by the negligence of other ser- vants of the company, where the duties of the latter in connection with which the injury happened were not common nor in the same department with those of the injured servant, and where the injured servant is guilty of no contributory negligence. Fitzpatrieh v. New Albamy and Salem B. B. Co., 7 Ind., 436, 1856; Gillemoater v. Madison and IndianofpoUt E. B. Co., 5 ib., 339, 1854. 58. — The difference in the grade of the servants in the same employment does not change the rule. Colmnbus and Indianapolis Central B. B. Co. v. Arnold, 31 ib., 174. 1869. 59. Servant not on duty. The rule that a master is not liable for injuries sustained by one servant through the negligence of another servant does not apply where the servant at the time of the injury is not acting in the ser- vice of the master. WasKbum v. Nashcille and Chattanooga B. B. Co., 3 Head (Tenn.), 688. 1869. 5. Common law rule. 60. General rule. Where a railroad com- pany has exercised reasonable care in the selection of its employes, it is not liable for injuries resulting to one of such employes from the neglect of an employe engaged in the same general employment. O^Connell v. Baltimore and Ohio B. B. Co., 20 Md., 212, 1863 ; Cumberland Coal and Iron Co. v. Scally, 27 Md., 589, 1807 ; Ponton ii. Wilmington and Weldon B. B. Co., 6 Jones' Laiv (N. C), 245, 1858 ; Honner v. Illinois Central B. B. Co., 15 111., 550, 1854; Madison and Indianapolis B. B. Co. V. Bacon, 6 Ind., 205, 1855 ; Ohio and Mississippi B. B. Co. v. Tindall, 13 Ind., 360, 1859; Wilson v. Madison, etc., B. B. Co., 18 Ind., 226, 1803; Farwell v. Boston and Wor- cester B. B. Co., 4: Metcalf (Mass.), 49, 1843; Harrison v. Central B. B. Co., 2 Vroom (N. J.), 293, 1805; Coon v. Syracuse and Utiea B. B. Co., 5 N. Y., 492, 1851; Sam^ v. Same, 6 Barbour (N. Y.), 231, 1849 ; Warner v. Erie B. B. Co., 39 N. Y., 468, 1868; reversing Same V. Same, 49 Barbour (N. Y.), 558, 1867; Mobile and Ohio B. B. Co. v. Thomas, 42 Ala., 672, 1868. 61. — The soundness of this rule is ques- tionable, but it seems to be well established. Bv/rke V. Norwich and Worcester B. B. Co., 84 Conn., 474. 1867. 62. — The servants of a contractor are the servants of his principal only where the lat- ter has the right to select and control them. Ib. 63. — This general doctrine only applies to cases where the injury occurs without the fault of the principal, either in the act which caused the injury or the employment of the person who caused it. Chicago and North- western B. B. Co. V. Sioett, 45 111., 197, 1867 ; Illinois Central B. B. Co. ». WelcJi, 52 ib., 183. 1869. 64. — The master is not liable for the dam- ages resulting to a servant by the negligence of another servant, unless that other servant was habitually careless and unskillful. Eubgh v. New Orleans and Oa/rrolton B. B. Co., 6 La. An., 495. 1851. 65. — A railroad company is not liable to one of its agents for an injury arising from the negligence of another competent agent. Murray v. South Carolina B. B. Co., 1 McMul- lan (So. Car.), 885, 1841 ; Eayes v. Western B. B. Co., 3 Gushing (Mass.), 270. 1849. 66. — Independent of the staute, a railway company is not liable for injuries sustained by one of its employes through the negligence INJUEIES TO EMPLOYES. 889 Defective Roadway, Macliinery and Materials. of another. Hunt v. Chicago and Northwett- em B. B. Co., 36 la., 363. 1868. 67. — Although the statute gives a right of action, in such cases, the standard of negli- gence is different from what it is in case of injuries to passengers; ordinary care only is due to the employg. lb. 68. — The common law rule is not changed hy the Revised Statutes of Maine, ch. 81, g 31. Carle v. Bangor and Piscataqua Canal and B. B. Co., 43 Me., 369. 1857. 69. — This rule is not changed by the " right of way act " . of 1853. Sullivan «. Mississippi and Missouri B. B. Co., 11 la., 431. 1860. 70. Grades of employment. A servant who has sustained an injury from the negli- gence of a superior agent engaged in the same general business, cannot maintain an action against their common employer, although he was subject to the control of such superior agent and could not guard against his negli- gence. Sherman «. Bochester and Syracuse B. B. Co., 17 IT. Y., 158, 1858; Same «. Same, 15 Barbour (N. Y.), 574, 1853. 71. Gravel trains. Where one of the la- borers on a railroad gravel train was injured through the carelessness of the conductor or engineer, by the dumping of one of the cars while on their passage between their lodgings and their work, it was 7ield, that the employ- ers were not answerable. An employer is not responsible for the injury of one of his ser- vants, through the carelessness of another ser- vant. Byan v. Cwmbevland Valley B. B. Co., 33 Penn. St., 384. 1854. 72. Liability notwithstanding the com- mon law. An employe can recover of his employer for an injury occasioned by the neg- ligence of another employ! engaged in the same business, upon the general rule that every person is responsible for injuries occur- ring to others by the negligence of his ser- vants while in the execution of his employ- ment. Ohamierla/in v. Milwaukee and Missis- sippi B. B. Co., 11 Wis., 338. 1860. 73. — A servant of a raili-oad company does not, in undertaking his business, agree to as- sume the risk of negligence as well as others ; but on the contrary, he assumes only such risks as are incidental to the employment When conducted with ordinary care and pru- dence, lb. 74. — PuTjlic policy requires that em- ployes should be protected against injury by other employes. lb. 75. — The same doctrine has been held in Tennessee. See Haynes v. East Tenn. and Qa. B. B. Co. SColdwell (Tenn.), 333. 1866. 76. — Unusual risks. Although a servant cannot recover from his employer for injuries sustained through the neglect of a coemployg, this rule does not apply to risks not fairly to be presumed within the contract of service. Railroad Co v. Fort, 17 Wallace, 553. 1873. 11. Defective eoadway, machinery and materials. 1. Roadway. 77. Bridges. A servant of a railway com- pany could not recover against the company for an injury caused by the falling of a bridge, unless such injury was caused by incompetent servants or agents of the company whose em- ployment might be traced to the negligence of the company, or to a defect in the bridge attributable to the fault of the company. Mc- Dermott v. Pacific B. B. Co., 30 Mo., 115 1860. 78. — It is no defense against an action for damages resulting from a defective briclge that the injured employg knew of the defect- ive condition of the bridge before the injury, Or off V. Cincinnati and Indianapolis B. B. Co., 1 Cincinnati Superior Ct. Rep., 364. 1871. 79. — A railroad company having employed skillful and competent persons to supervise and inspect its road bed and bridges, and having made it their duty to do so, is not liable for an injury to an employe, occasioned by the falling of one of its bridges, where the defect was such as was not apparent, and of which it had no notice. Warner v. Erie B. B. Co., 39 N. Y., 468, 1868 ; reversing Same v. Same, 49 Barbour (N. Y.), 558. 1867. 80. — Where a railroad bridge was built of good materials, and its sinking was not due to any defect in its original constructloi', but to a process of natural decay, called dry rot; and the day before it fell, it had been in- spected by the repairer of bridges, and the division superintendent, competent men, and examined, tested and watched under the weight of a train of cars, aad was deemed by 390 INJURIES TO EMPL0Y]6S. Defective Roadway, Macliinery and Materials. them entirely sound and safe ; held, that the company was not liable to the representatives of an employe who was killed by the falling of the bridge. Faulkner v. Brie B. B. Co., 49 Barbonr (N. Y.), 324. 1867. 8 1 . Ditches. Plaintiffs intestate had been employed by defendant as a brakeman for two months upon through trains running from A. to S. In the discharge of his duty, he was, in the night, coupling some cars to a train slowly moving backward upon a switch at a way station. While walking along be- tween the cars he fell into a partly uncovered ditch running across the track, and was run over and killed. In an action against defend- ant for damages for his death, held, that it was for the jury to determine whether there was such negligence on the part of the company in leaving the ditch partly uncovered as to ren- der it liable for the death of the intestate. Plank V. New York Central and Hudhon Biver B. B. Co., 1 N. Y. Sup. Ct., 319. 1873. 82. Roadway.. A company is bound to furnish a safe and sufficient roadway to its servants as well as others traveling over it. O'Donnell v. Allegheny Valley B. B. Co., 59 Peun. St., 239. 1868. 83. — If the substructure of the road is per- mitted to lie until it becomes rotten and un- safe, it is the negligence of the comiiany. lb. 84. — Casualty from such cause is not an ordinary peril which an employe is bound to incur. lb. 85. — A railroad company may be held liable for an injury to one of its employgs, which is caused by a want of repair in its road bed. Bnow v. Houiatonic B. B. Co., 8 Allen (Mass.), 441. 1864. 86. — There is no implied warranty, gener- ally, of the completeness or titness of the road or rolling stock, as between the company and its employes. Indianapolis and Cincinnati B. B. Co. V. Love, 10 Ind., 554. 1858. 87. — But there are many exceptions. If a defect existed in the road, which was known to the company, but which it was impossible for it to remove immediately, and in conse- quence of such defect, the road was unsafe but not impassible, and yet it should suffer an employ^, who does not know of the defect, to attempt to pass upon the road, ancl injury Should thereby result to him, the company would be liable. So, on the other hand, if the employs had knowledge of the defect, and the employers had not, the latter would not be liable. And where both parties had such knowledge, each takes the risk, unless the company undertake to give special directions as to the mode of operating. lb. 88. Snow and ice. An action may be main- tained against a railroad corporation by one of its servants employed as a brakeman, who was injured by reason of the negligence of the corporation in permitting its road to be- come blocked with snow and ice, and a car to be out of repair, the plaintiff being without fault. Fifield v. Northern B. B. Co., 42 N. H., 225. 1860. 89. Trestle work. Where the track over a trestle work was not capable of supporting an engine, and the engine driver in charge had orders not to put his engine thereon, which orders he disobeyed, and the intestate of the plaintiff, who was a fireman on the engine, and who was unaware of such orders or of the danger, was thereby killed, the said trestle work giving way: lield, that the plaintiff was entitled to recover, on the ground that such death was occasioned in part by the want of care in the defendant, the railroad company, with respect to said trestle work. .Pavlmier v. Erie B. B. Co., 5 Vroom (N. J.;, 151. 1870. 2. Machinery. 90. Brakes. In an action to recover from a railroad company for injuries received by a brakeman while in the service of the com- pany, by reason of the breaking of the chain, and giving way of the brake wliilc working it, owing to a defect therein, whereby he was thrown from the train and injured, it was hM,, that it was the duty of the company to use all reasonable and ordinary care in providing safe and well equipped brakes for the brakemcn, and that if the company, in neglect of such duty, has procured a defective and improper brake, and placed the brakeman to work the same, without an opportunity to know such defect, and he was thereby injured, a right of action would thereupon arise against the com- pany. That if the existence of such defect at the time of the accident was owing to the neglect of the other operatives of the road, supposed to be competent, whose duty it was to have inajiected said brake, but who neg- INJURIES TO EMPLOYES. 391 Defective Roadway, Machinery and Materials. lected so to do, and negligently Buffered the same to continue in use, when not road worthy, unknown to the company, it is not liable therefor, inasmuch as such delinquent in- spector is to be regarded a fellow servant of the brakeman, in a common service. Golum- hus and Xenia M. S. Go. v. Webb, 12 Ohio St., 475. 1861. 91. — Where a brakeman was thrown from a car and killed, it being alleged the accident was caused by a defect in the brake, and in the effort to work the brake, the wheel came off and the deceased was thrown to the ground, it was held, that it was the duty of the brakeman to see that the brake was in fit condition for use, and the company would not be liable ; otherwise if the accident would not have occurred but for the recklessness of the engine driver which was known by the company, the train being run at an excessive rate of speed in approaching a station. Illi- nois Central B. B. Co. v. Jewell, 46 111., 99. Ii67. 92. — A brakeman cannot maintain an ac- tion against his employer, a railroad com- pany, for an injury sustained by him, and which resulted from a defect in the brake on the train he was operating, if the defect ex- isted by reason of the neglect or want of care of his fellow servants, unless the railroad com- pany was negligent in the selection of those seiTants; and the onus of proof of such neg- ligence is on the plaintiff. Wonder v. Balti- more and Ohio B. B. Co. 32 Md., 411. 1870. 93. Degree of care. Railroad companies will be held to the highest degree of vigilance in regard to the condition of their machinery. OMeago and Alton B. B. Co. i>. Shannon, 43 111., 338. 1867. 94. Employes riding free. A railroad com- pany exercising reasonable care in providing and using suitable engines and tenders on its road, is not liable for an injury occasioned by a defect therein to a workman employed by it, while being carried over its road without paying fare. Seaver v. Boston and Maine B. B. Co., 14 Gray (Mass.), 466. 1860. 95. Engines. When an injury has occurred to a servant of a corporation, in consequence of a defect in an engine, and he sues the cor- poration for such injury, the burden is upon the plaintiff to show negligence, or the want of care and diligence in the defendant. The onus of proof is not shifted to the defendant by the fact that an injury has resulted from the defect. Mobile andOhio B. B. Co. «. Thomas, 42 Ala.,' 672. 1868. 96. — A railway company ■which continues in use a defective and dangerous locomotive engine, after notice of its dangerous condition, is liable to one of its employgs engaged in running such engine for an injury sustained by him (without negligence on his part), in consequence of such defects. Keegan ■s. West- ern B. B. Co., 8 N. Y., 175. 1853. 97. — explosion. The complaint alleged that the decedent had been in the employment of the railway company as a fireman on a freight engine for g,bout two months, when, on a day mentioned, he was ordered by defendant to serve as fireman on a particular engine at- tached to an express passenger train, then running on said road between certain points named ; that said engine " was old and rick- ety, with a weak, defective, patched up and leaky boiler," which was not strong enough to endure a high pressure of steam, and could not be used with safety in drawing a train of any kind, and that its use to an express train, in its weak and unsound condition, involved great peril to the lives of passengers and em- ployes ; that the deceased did not know, and had no means of knowing, the weak and un- safe condition of said engine when he was placed upon it as fireman ; that defendant, with full knowledge of the defective and unsafe condition thereof, carelessly and negligently caused the same to be used in drawing said express train; that on the same day, the boiler exploded, by reason of its defective and un- sound condition, and caused the death of the decedent, without any negligence or fault on his part. Held, that the complaint was good on demurrer. Columbus and Indianapolis Cen- tral B. B. Co. V. Arnold, 31 Ind., 174. 1869. 98. — If the boiler of an engine of a rail- road car has an apparent defect, and the engi- neer continues running it with a head of steam higher than he was instructed to carry, he could not recover damages for any injury he might sustain by reason of the explosion of the boiler, nor can his widow or his heirs recover damages for his death under such cir- cumstances. Rubgh v. New Orleans and Carrol- ton B. B. Co., 6 La. An., 495. 1851. 99. — Where a certain locomotive was re- 392 INJURIES TO EMPLOYJiS. Defective Roadway, Machinery and Materials. ported to the employes of the company hav- ing charge of its machinery, as unsafe, and after such report, Ihey failed to ascertain its condition, the company cannot claim exemp- tion by reason of such negligence on the part of its agents. Chicago and AUon R. R. Co. v. Slumnon, 43 111., 338. 1867. 100. — Where the directors have placed the engines of the company under the imme- diate charge, control and direction of a com- petent and trustworthy master machinist, and have provided him with sufficient materials and resources for their repair, notice to the directors that an engine is out of repair and unsafe for use is not, in the absence of notice that it is being so used, sufficient to render the company liable for an injury to a fireman employed by the company, while in the per- formance of his duty upon such engine under the direction of the master machinist, caused by the explosion of the boiler, by reason of its defective condition, without his fault or negligence, or the fault or negligence of the engineer in charge. Oohmbut a/nd Indianwpo- Us Central R. R. Co. v. Arnold, 31 Ind., 174 1869. 101. — The plaintiffs intestate who was an engine diiver on defendant's road, was killed by the explosion of the locomotive which he was running. The explosion occurred through the neglect of the defendant's master me- chanic who was superior in the grade of his employment to the intestate. The din ctors of the company were not guilty of negligence in furnishing defective machinery in the first instance, and they did not know of the defect in the engine in question. Meld,Va&i the rail- way company was not liable, the injury hav- ing been occasioned by the negligence of one of its employes, who was employed in the same general business with the deceased. Eard u. Vermont and Canada R. R. Co., 33 Vt, 473. 1860. 102. — In an action to recover damages caused by the explosion of a locomotive, the testimony of the employes of the company using it, that, among them, such engine had always been considered unsafe, is competent for the purpose of showing that the person having care of the machinery of the road knew, or might have known, by reasonable diligence, that it was not safe. Chicago and Alton R. R. Co. v. Shannon, 43 111., 338. 1867. 103. Evidence. An artisan charged with a duty of repairing, within the scope of his handicraft, is not conclusively shown to have been negligent, by a failure to remedy some defect in an engine or other machinery, spe- cifically pointed out to him. Mobile and Ohio R. R. Co. t. Thomas, 43 Ala., 673. 1868. 104. General principies. The general prin- ciples stated regulating the liability of the master for injuries to one servant caused by another, or by the defects in the machinery and implements furnished, or arrangements prescribed by the master. Wright v. New York Central R. R. Co., 35 N. Y., 563, 1862; Laning V. Same, 40 ib., 531, 1873. 105. — The master is not liable for injuries occurring to one of his servants through the negligence or misconduct of one of his fel- low servants, unless the latter servant is not possessed of ordinary skill and capacity, and unless his employment is attributable to the want of ordinary care on the part of the mas- ter; but the rule is otherwise where the injury is the result of defective or improper machin- ery or appliances used in the prosecution of the work — the condition of which, by ordi- nary and reasonable care and prudence,- the master-might know. The legal implication is that the master will adopt suitable instruments and means with which to carry on his busi- ness. Gibson v. Pacific R. R. Co., 46 Mo., 168. 1870. 106. — In an action against a railway com- pany for an injury sustained by a conductor on a train of cars, on the ground that the in- jury was the result of the insufficiency of the cars, or defects in the machinery or fixtures of the train, the company is not to be treated as a guarantor of the sufficiency and safety of the cars and machinery of the train ; but as responsible only where the injury is without fault on the part of the conductor, and the result of the neglect of that ordinary and rea- sonable care and diligence in furnishing suffi- cient and safe cars and machinery for the train, which appertains to that particular branch of business. Mad RiverandZake Brio R. R. Co. ■». Barber, 5 Ohio St., 541. 1856. 107. — The conductor of a train of cars, although he undertakes his engagement in view of the nature and hazards of his employ- ment, has a right to exact that reasonable care and diligence on the part of his emi^loyer, in INJUEIES TO EMPLOYES. 393 Defective Boadway, MacUinery and Materials. furnisliing him with safe and sufficient cars and machinery for the train, which is most common and usual in the business of railroad companies; and being presumed to contract in contemplation of this, he can require no more. Ih. 108. — A railroad company is not liable to an action for damages for an injury received by a conductor of one of its trains, in conse- quence of the insufficiency of the cars, or de- fects in the machinery or apparatus of the train under his charge and control, where such insufficiency or defects were unknown to both parties, and neither party was in fault. lb. 109. — It is the duty of a railway company to furnish the necessary and proper number of hands for the safe management of its trains ; and for a delinquency in this particular, the conductor of a train has a right to decline his charge, or refuse to run the train. But where he takes the charge, and runs his train for a length of time, without a sufficient number of hands, he voluntarily assumes the risk, and waives the obligation of the company in this respect as to himself, and if injured by means of such delinquency on the part of the com- pany, he is without a remedy against the com- pany for damages. lb. 110. — A master is not liable to his servant for an injury occasioned by defective machin- ery furnished to the latter to operate, unless there was negligence in providing such ma- chinery, or, knowing of the defect, the master omitted to warn the servant of its existence. Wonder v. Baltimore and Ohio S. R. Co., 32 Md., 411. 1870. 111. — It is the duty of railroad companies to provide their cars with such appliances as are calculated and reasonably necessary to in- sure the safety of their employes. Gheenleafv. Illinois Central B. M. Co., 29 la., 14. 1870. 112. — If a car was wanting in some such necessary appliance at time of its construction and so continued when put upon and used on the road, it would not be necessary to show any further knowledge thereof on defendant's part in order to fix its liability. lb. 113. — It seems that if the employ! knows of such defect, and no inducement is used to cause him to remain in the employ of the com- pany, and he afterwards continues in such em- ployment, he thereby assumes the risk. lb. 1 14. — But though the employe knew of the defect, tho company would be liable if the employs was at the time acting under the im- mediate orders of a superior. lb. 115. Improvements iu machinery. A rail- way company is liable iu damages for an in- jury which has resulted to any person lawfully using its road, from its neglect to introduce any improvement in its apparatus which it knows to have been tested and found materi- ally to contribute to safety, and the adoption of which is within its power so as to be rea- sonably practicable. SmiiJi v. New Torh and Harlem B. B. Co., 19 N. Y., 137, 1859; Same v. Same, 6 Duer (N. Y.), 225, 1856. 116. — A master is not bound to change his machinery in order to apply every new inven- tion or supposed improvement in appliance. Wonder v. Baltimore and Ohio B. B. Co., 32 Md., 411. 1870. 117. Knowledge of defects by employe. A servant does not, by simply remaining in the employ of his master, with knowledge of defects in the machinery which he is obliged to use, assume the risks attendant upon such use. Such result only follows where he re- mains without objection or protest against the continuance of the defects. Oreenleaf v. Duy buqw and Sioux City B. B. Co., 33 la., S2. 1871. 118. Turn table. In an action against the owner of a railroad, brought by his servant to recover damages for a personal injury sus- tained by reason of a locomotive engine's run- ning upon the plaintiff from a turn table, while turning upon it,, in consequence of the want of a sufficient brake, evidence is competent on the part of the owner of the road to show that the person who had charge for him of all the engines on the road had given instructions to the engineers before the accident to have the wheels of their engines blocked while turning on the turn table', and that the accident occurred from the failure of some of the defendant's servants to obey such instructions ; although such instruction was not known to the plaint- iff. JDurgin v. Munson, 9 Allen (Mass.), 396. 1864. 3. Other defects. 119. Collision with a mail catcher. Afire- man upon a locomotive was killed by a colli- sion with a mail catcher while the train was in motion, the accident being occasioned by S94 INJURIES TO EMPLOYrcS. Defective Roadway, Machinery and Materials. the negligence of the company in permitting the mail catcher to be placed too near the track. In an action by the administrator of the de- ceased, to recover damages against the com- pany, under the statute, it was Jield, that those servants of the company whose duty it was to see that the mail catcher was placed a safe dis- tance from the track, were not fellow servants of the deceased, in the same line of empl'oy- ment, and that the company was liable. Chi- cago, Burlington and Quincy B. R. Oo. n. Greg- ory, US lU., 272. 1871. 120. — The opinions of railroad men, as experts, that the mail catcher in its proximity to the track was not dangerous, were not con- clusive on that question, but the jury might consider any other evidence in the case on the subject. lb. 121. Fences. That bars were down or boards off of a fence along a railroad, through which horses probably came upon the ti-ack, where they were run into by the cars, throw- ing the tr-ain off and killing the conductor, •would not of itself constitute any ground for a recovery against the company. Dewey v. Chicago and Northwestern S. B. Co., 31 la,, 373. 1871. 122. — There is no obligation imposed upon a railway company, so far as its serv- ants, employed upon its engines, are con- cerned, to erect and maintain fences on the sides of the road ; so as to render the corpora- tion liable for an injury happening to a servant thus employed, in consequence of its neglect to fence against cattle. LangloU v. Buffalo and Rochester B. B. Co., 19 Barbour (N. Y.), 364. 1854. 123. — Under § 44 of the general railroad act, requiring railway companies to erect and maintain fences on the sides of their road, and declaring that in case of omission to do so, by any corporation, the corporation and its agents shall be liable for all damages which shall be done by their agents or en- gines to cattle, horses, or other animals there- on, the duty is one in respect to the owners of such animals, only; and the liability pre- scribed is all that is incurred by a violation of it. n. 124. — A servant in order to recover of his principal, a railway company, for an injury occurring to him through defects in the ma- chinery or roadway, or in the fences along such roadway, must prove actual notice to his principal, of such defects. McMillan v. Sar- atoga and Washington R. R. Co., 30 Barbour (N. Y.), 449. 1855. 125. — He must notify his principal of any such defects coming to his knowledge. lb. 126. Projecting awning. In an action for injuries sustained by the plaintiff, while acting as a brakcman, the evidence showed that the injury liappencd while plaintiff was engaged in the discharge of his duties, by collision with an awning of one of the station houses, on defendant's line of road, whereby he was so injured as to require amputation of his left arm ; and that the dangerous position of this awning was well known to the divis- ion superintendent and division engineer, whose attention had been called to it a long time prior to the accident. Seld, that the company was liable for the damages sus- tained. Illinois Central R. R. Co. v. Welch, 52 111., 183. 1869. 127. Scaffolding. In case of an injury oc- curing to an employe by reason of a defect in certain scaffolding erected in the shops of the employer, the burden of proof is upon the employer to show such facts as will excuse him from liability for the injury resulting from such defect. Brielcnm- v. New York Cen- tral i?, B. Co., 3 Lansing (N. Y.), 506. 1870. 128. Switch. The complaint averred, in substance, that A. was a brakeman on a freight train of defendant, and was killed by the cars being thrown off the track by the breaking of a switch-pin, which the company and its servants, knowing it was insecure, had carelessly left out of repair for twelve days previous. There was no switch tender, and the whole care of the switch, and all things pertaining to its security, was under the con- trol of the section boss and his hands, who had nothing to do with running the trains, Beld, that in the absence of an averment that the company was negligent in the employ, ment of an incompetent section boss, the com- plaint did not sufficiently state a case of neg- ligence against the company. SlattertfsMmW V. Toledo and Wabash B. B. Co., 23 Ind 81 1864. 129. In an action against a railroad com- pany for the accidental death of a person in its employ, caused by a displaced switch, it was shown that previous to the accident a INJURIES TO EMPLOYES. 395 Risks assumed by Employes. common switch had been substituted for a patent one, at the request of the intestate. Held, that such substitution was not negli- gence on the part of the company. Piper v. New York Central and Hudson River B. B. Oo., 1 N. Y. Sup. Ct., 290. 1873. 1 30. — Where it was claimed by the plaint- iff that the injury was the result of the neglect of defendant's switchman in misplacing a switch, it was held, that it was proper for de- fendant to show -that the misplacement of the switch was done by some one in the absence of the switchman. Baulec v. New York and Harlem B. B. Co., 5 Lansing (N. Y.), 436, 1873; Same v. Same, 63 Barbour (N. Y.), 633, 1873. 131. — And it appearing from the evidence that the misplacing of a switch, by the same switchman, had caused an accident, on a for- mer occasion; Jield, that the defendant should have been allowed to prove that after the pre- vious accident, an investigation was made by a track-master, who reported to the company that the switchman was free from negligence, in respect to that accident. lb. 132. — A fireman in the employ of a rail- road company lost his life by reason of a switch being displaced ; but the displacement of the switch was not traced to the railroad company, or either of its employis. Held, in an action brought by the administratrix of the deceased, to recover damages of the company, that the judge was right in refusing to submit the case, or any question in it, to the jury, and that he correctly nonsuited the plaintiff. Tin- ned/ V. Boston and Albany B. B. Co., 63 Barbour (N. Y.), 318.. 1873. III. ElSKS ASSUMED BY EMPLOYES. 133. Highway bridge. Abrakeman.while discharging his duties in the line of his em- ployment, upon the roof of a freight car, was carried against a highway bridge, and sus- tained injuries, for which he brought an action against his employer. The bridge was some three and a half feet higher than the top of the highest freight car in use by the company, and had so remained for many years, and since the construction of the railway. The brakeman had entered into the employment of the com- pany with knowledge of the position and height of the bridge, and he had had opportu- nity of informing himself as to its continuance in the same position. Held, that the plaintiff should have been nonsuited, the danger from the bridge being clearly inciclent to the la- bor he undertook to perform. Owen v. Nem York Central B. B. Co., 1 Lansing (N. Y.) 108. 1869. 134. Incompetence of co-empIoycSs. Rail- way companies may be liable to employgs for injuries happening to them through the neg- ligence of the company; which negligence may consist in tlie employment of incompetent persons in the management of the road and trains, or of unsafe machinery in the running of them, or of using the road when defective, etc., if the Injuries actually happen from such causes, and the employ§s injured have not the same means of knowledge of the existence of such causes as the employer. Thayer v. Si. Louis, Alton and Terre Haute B. B. Co., 33 Ind., 36. 1864. 135. — 'Where one employe knows that an- other employe is habitually negligent, or that the materials with which he works are defect- ive, and he continues his work without objec- tion and without being induced by his em- ployer to believe that a change will be made, he will be deemed to have assumed the risk, and cannot recover for an injury resulting therefrom. Kroy v. Chicago, Bock Island and Pacific B. B. Co., 33 la., 357. 1871. 136. — Where it was the habit to uncouple the engine from a freight train at a certain sta tion while the train was in motion, and the decedent had, without protest or objection, contributed to the establishment of this cus- tom, and its performance generally devolved on him, and in the particular instance was voluntarily assumed by him, it was held, that the railway company was not liable for an in- jury sustained by him while in the perform- ance of this act. lb. 137. Increased risks. Where an employe of a railway company, who is hired to labor in a particular service only, is compelled by a fellow employe of such company to labor at a business much mor* perilous than that which he engaged to do, and while thus laboring re- ceives an injury, the company is liable for the damages occasioned by the injury. Chicago and Great Eastern B. B. Go. v. Homey, 38 Ind., 28. 1867. 396 INJURIES TO EMPLOYES. EmploySs as Passengers — Negligence as between Employes. IV. Employes as passengees. 1 38. Contract. In an action for negligence against a railway company, it is error to reject any evidence tending to prove that the plaint- iff, although in the service of the company, was also by the contract a daily passenger on the road, and that he was not out of place at the time of the injury. O'Donnell v. Alleghany B. B. Co., 50 Penn. St., 490. 1865. 139. — A carpenter working for a railway company, and going to and from his work on the train as a part of his contract of hiring, is a passenger. O'Donnell v. Alleghany Valley B. B. Co., 59 Penn. St., 339. 1888. 140. — The court charged that the baggage car is an improper place for a passenger to ride; whether the rule against it was com- municated to him or not, if he left the seat in the passenger car and went into the baggage car it was negligence, which nothing less than a direction or invitation from the con- ductor would excuse ; such invitation should not be inferred from his having ridden there ^ frequently with the knowledge of the con- ' ductor and without objection. Eeld, to be error. lb. 141. — The defendant employed the plaint- iff to frame and build a bridge on its road across Sugar creek, and while he was engaged in the work, the defendant directed him to proceed in its cars to Greenwood, and assist in loading timbers for the bridge. While on its cars as directed, the servants of the defend- ant, who had in charge the running of the cars, so carelessly managed and ran the same, without the leave, sanction, or consent of the defendant, that they were thereby run off the track; by means of which the plaintiff's right hand was fractured and permanently injured, so as to disable him from pursuing his busi- ness of house carpenter. Held, that the plamtiff was a passenger, and that the defend- ant was liable for the injury. Oillenmater v. Maditon and IndimuvpoUs B. B. Co., 5 Ind., 339. 1854. 142. — A laborer employed by a railroad company to work in connection with a train of cars, under an arrangement by which he was to be carried to his home every night in such cars free of charge, cannot maintain an action against the company for an injury sus- tained, while thus riding home, in conse- quence of the negligence of the engineer. Bussell v. Hudson Bmer B. B. Co., 17 N. Y., 134, 1858; reversing Same v. Same, 5 Duer (N. Y.), 39, 1855. 143. Negligence of employes. A railroad company will not be exempted from liability for injuries incurred by a passenger while on its cars, produced by the carelessness of the servants, upon proof that the servants were carefully selected by the company with reference to their competence, and that the negligent act was done without the sanction of the company. Gillenwater v. Madison and Indianapolis B. B. Co., 5 Ind., 339. 1854. 144. — Public carriers of passengers not only engage for the competent skill of their employes, but for the faithful and continued application of such skill. lb. 145. — The servants of a corporation are no more and no less than the servants of natural persons, and whatsoever is negligently done or omitted by them, is, as to the public, the employer's act. Jb. 146. Pleading. Action was brought by a widow against a railroad company, to recover damages for the loss of her husband, who was killed, as her complaint alleged, while travel- ing as a passenger in one of defendant's cars. The answer averred that the husband was not a passenger but a servant of the company, and that the accident by which he lost his life happened through the negligence of his fel- low sei-vants acting with him in the manage- ment of the train. Held, that the answer was sufficient. Madison and Indianapolis B. B. Co. v. Bacon, 6 Ind., 205. 1855. V. Negligence as between em- PLoy:gs. 147. Collision. S. was a brakeman upon defendant's train. He had gone to the engine to warm himself, thinking his services at the brakes were not needed, as the train was going up a heavy grade, but some cars of a preced- ing train became detached and were rapidly descending the grade when a collision oc curred in which S. lost his life. Held, that 8. was guilty of contributory negligence. Sprrnig •B. Boston and Albany B. B. Co., 60 Barbour (N.Y.),80. 1871. 148. — The fact that the employ^ or other person is riding in the baggage car, with tbe INJURIES TO EMPLOYES. 397 Negligence as between Employes. knowledge of the conductor, or is riding free, will not preclude him from a recovery for an injury caused by a collision, even though he might or would not have been injured if he had remained in the passenger car Wasli- Jmrn v. Nanhville and Clmttanooga B. B. Co., 3 Head (Tenn.), 638. 1859. 149. — A railway company is not liable in damages to a brakeman on one of its trains, for injuries sustained by him in a collision of his train with another train of the same com- pany, where the collision occurred by means of the negligence of the conductor or engi- neer, or both, of such other train; unless it appear that the company was guilty of a want of ordinary care in the selection ani employ- ment of an incompetent conductor or engineer through whose negligence the collision oc- curred. Pittsburgh, Ft. Wayne and Gliuago B. B. Co. «. Demnney, 17 Ohio St., 197. 1867. 150. Contributory negligence. In an ac- tion for injuries received by an employ^, it was held, that if the employ^ exercised ordi- nary and reasonable care in the performance of his duties he was not guilty of contributory negligence. Oreenleaf e. Dubuque and Sioux City B. B. Co., 33 la., 53. 1871. 151. — Plaintiff's decedent being in the employ of a railroad company, but not en- gaged in operating the train in question, and on which he was riding, voluntarily got upon the tender of the engine to ride. While he was in this position, the engine broke through a defective bridge and he was killed. A caboose car was attached to the train for passengers and employgs to ride in, and if he had been there, he would not have been injured. Ifeld, that he was guilty of contributory negligence, and that plaintiff could not recover. Doggett 1). Illinois Central B. B. Co., 34 la., 284. 1872. 152. — If it appear that the accident would not have occurred if the agents of the railroad company had used ordinary care in running the train which occasioned the killing, and had given reasonable and usual signals of its approach, and had kept a proper lookout, the company is liable even if the deceased were guilty of the want of ordinary care and pru- dence in being on the railroad track at the time of the accident. Baltimore and Ohio R. B. Co. V. The State, 33 Md., 542. 1870. 153. — If it is the duty of a servant of a railroad company to uncouple the cars of a train, and this cannot easily be done while the train is still, and he, in endeavoring to uncou- ple them while the train is in motion, steps between the cars and meets with an injury which is caused by a want of repair of the roadbed, the court cannot rule as a matter of law that he was careless, but should submit that question to the jury, although he con- tinued in the employment of the company after he knew of the defect. Snow v. Sousa- tonic B. B. Co., 8 Allen (Mass.), 441. 1864. 1 54. — "Where the plaintiff, being in the employ of a railroad company, as a brake- man on a gravel train, of his own accord, and on his own business, leaves the train while proceeding to its place of destination, and voluntarily attempts to get aboard the same train, on its return, while its speed is not suflB- ciently " checked up " to permit this to be done with safety, and, in making the attempt, seizes the rim of a gravel box, which, through defect of material, breaks, whereby the plaint- iff falls upon the track and is run over by the train and injured, held, that these facts show such a want of ordinary care by the plaintiff, as will preclude him from a recover}'. Tim- mons V. Central Ohio B. B. Co., 6 Ohio St., 105. 1856. 155. — An employ^ cannot recover from a railroad company for injuries sustained by reason of the negligence of a co-employe, if he was also negligent and careless. Hoben v. Burlington and Missouri B. B. Co., 30 la., 563. 1866. 156. — The same rule applies where an ac- tion is brought by the widow of an employe for damages sustained by his death. Bowland V. Cannon, 35 Ga., 105. 1866. 157. — degree of care. As to its employgs, a railway company is only responsible for or- dinary care. Pittsburgh, Ft. Wayne and Chi- cago B. R. Co. V. Buby, 88 Ind., 294. 1871. 158. Degree of negligence. The re- sponsibility of railroad companies, for in- juries resulting from the negligence or un- skillfulness of their engineers, is graduated by the classes of the persons injured by the en- gineer's neglect or want of skill ; as to stran- gers, ordinary negligence is sufficient ; as to subordinate employgs, associated with the en- gineers in conducting the ears, the negligence must be gross ; but as to employgs in a differ- ent department of service, unconnected with 398 INJURIES TO EMPLOYES. Negligence as between EmploySs. the running operations, ordinary negligence may be sufficient. Louisville and Nashville B. JR. Oo. V. Collins, 2 Duvall (Ky.), 114, 1865; Same v. BoUnson, 4 Bush. (Ky.), 507, 1868. 159. Gross negligence. Although the plaintiff, suing for an injury resulting from the gross negligence of the defendant, may have been guilty of negligence, if, neverthe- less, the injury might have been avoided by the proper care of the defendant, such coap- erating negligence of the plaintiff will not exonerate the defendant. Louisville and NasJir ville B. B. Oo. v. OolUns, 3 Duvall (Ky.), 114. 1865. 160. — The implied undertaking of em- ployes in the same general service to risk the contingencies which the ordinary skill and care of each other in his line of service could not avert, does not exonerate the company from liability for damages resulting to one of such co-employgs from the extraordinary or gross negligence of another of them. Louis- mile and Nashville B. B. Co. v. Fillern'e Adm'x, 6 Bush. (Ky.), 574. 1869. 161. — ■Willful negligence in this case did not depend " on the knowledge or belief of the road master or section boss, as to whether the tree which fell across the track and caused the injury was decayed and subject to fall or be blown down across the track, and his failure, though so apprised, to remove it." These were facts from which the jury might have inferred willful neglect, but they did not necessarily constitute it. lb. 162.-^ Whether or not willful neglect is the same as gross neglect, or in any case more or less culpable, it must involve either an " inten- tional wrong, or such a reckless disregard of society and right as to imply bad faith." lb. 163. — If the employs or agent injured, contributed to it, by his own negligence, he cannot recover damages from the railroad com- pany, unless its cooperating agent, charged with gross neglect, could have avoided the impending danger, by the observance of ordinary diligence. Louisville and Nash- ville B. B. Co. v. Bdbinson, 4 Bush. (Ky.), 507. 1868. 164. — For any injury resulting to a rail- road employs through gross negligence or carelessness, or want of ordinary care on the part of the company alone, recovery may be had ; but otherwise, if the employg himself is at fault. Vioksburg and Meridian B. B. Co. V. Wilkins, 47 Miss., 404. 1873. 165. In pari delicto— war of 1861. Where a railroad employe is engaged in aiding or abetting a rebellion against the government, and while thus engaged receives an injuiy through the negligence of others, no cause of action accrues therefor. Wallace v. Can- non, 38 Ga., 199. 1868. 166. Laborers. Among common laborers, constituting a distinct class, no one of them, as between himself aud his coequals, is the corporation's agent. Louisville and Nashcille B. B. Co. V. Collins, 3 Duvall (Ky.), 114. 1865. 167. Time — mistake. An eraployg can- not recover for an injury resulting from the negligence or misconduct of a co-employe, un- less there be fault in the employment of unsafe machinery, or in the selection of the wrongdoer, or, in continuing him there after he has proved incompetent. Weger v. Pennsyl- vania B. B. Co., 55 Penn. St., 460. 1867. 168. — The company is not liable to such employe for an injury resulting from the difference between the time kept by a fellow servant and the conductor. lb. 169. — The company was not liable where an employe was killed on a hand car by a train, where the accident was occasioned by the foreman's watch being slower than tlie conductor's. lb. 170. Wanton injnries. Railway compa- nies are liable for injuries done to persons not passengers, when the injuries arise from neg- ligence on their part, to which injuries the negligence of the injured party does not im- mediately contribute; and this mty include wanton injuries by the companies, where there may be negligence on the part of the injured party. Thayer i>. St. Louis, Alton and Terre Haute B. B. Co., 23 Ind., 30. 1864. 171. Wanton or willful negligence. Al- though the deceased may have been negli- gent in riding on some one of the cars instead of another deemed less dangerous, or might, notwithstanding the wreck of the train, have effected his escape by the use of ordinary dili- gence, yet, if the disaster resulted from a will- ful neglect of duty on the part of other agents of the defendant, who controlled the running operations of the train, and it might have been prevented or avoided by them by the use of ordinary prudence and care in the discharge INJURIES TO EMPLOYES. 899 Injuries Causing Death. of their duty, the company was not exonerated from responsibility. Louisville, Cincinnati And Lexington R, JR. Co. ■». Mdlioney^s Adm'x, 7 Bush. (Ky.), 235. 1870. VI. Injueies causing death. 172. Damages. Only actual damages can be recovered by the next of kin under the stat- ute. Chicago and Northwestern R. R. Co. v. Swett, 45 111., 197, 1867 ; Chicago and Alton R. R. Co. V. Shannon, 43 ib., 338, 1867 ; Chicago and Rock Lsland R. R. Co. v. Morris, 26 ib., 400. 1861. 173. — The fact that no evidence was intro- duced showing the amount of the earnings of the deceased at the time of his death, will not prevent a recovery for more than nominal dam- ages. Baltimore and Ohio R. R. Co. v. The State, 24Md., 271. 1863. 174. — Where the court instructed the jury that, in estimating the damages in case of an injury resulting in death, they might consider the actual pecuniary loss to the plaintiff occa- sioned by the death of the son and servant, and also such other circumstances as have injuri- ously affected the plaintiff in person, in peace of mind, and in happiness ; Jield, that this was error. Ohio and Mississippi R. R. Co. e. Tindall, laind., 366. 1859. 175. — In an action for damages resulting from the death of a parent and husband, evi- dence as to the business, education and habits of sobriety and economy of the deceased is ad- missible. Taylor v. Western Pacific R. R. Co., 45Cal.,323. 1873. 176. — The condition of the family of the deceased directly and essentially affects the question of damages. This action is of that peculiar kind in which all attendant circum- stances of aggravation which go to character- ize the wrong complained of may be given in evidence. Louisville, Cincinnati and Lexington R. JS. Co. V. Mahoney's Adm'x, 7 Bush. (Ky.), 235. 1870. 177. — The rules in relation to damages in this class of cases — discussed. Chicago and JHorthwestern R. R. Co. v. Swett, 45 111., 197. 1867. 178. — In au action against a railroad company to recover damages for the killing of a person, brought by the state in behalf of the widow and children of the deceased, the jury in assessing the damages should consider the reasonable probabilities of the life of the deceased, and award damages not only for past losses, but for such as they will suffer as the direct consequence of the killing; the prospective damages for the children to be estimated to their majority, and also for the widow upon the probable duration of.her life. Baltimore and Ohio R. R. Co. v. The State, 33 Md., 542. 1870. 179. Representatives of decedent. A rail- road company is not liable, so far as the sim- ple question of negligence is concerned, to the parents, guardians, or representatives of a servant killed upon the road, where it would not have been liable to such person, had he been injured simply, and not killed. Ohio and Mississippi R. R. Co. v. Tindall, 13 Ind., 366. 1859. 180. Statutes: — California. Under § 3 of the act of April 26, 1862, in relation, to com- pensation for death caused by the wrongful act or negligence of another, the jury or court should assess such damages as will be a just compensation to the surviving widow and children for the death of the husband and parent; but if the widow dies before the trial of the action, the question of compensation to her no longer exists, and proof on that point is irrelevant to the issues, and has nothing to do with the controversy ; and the only question left to be determined in relation to damages is, what will be a just compensation to the children for the loss of the father. Taylor v. Western Pacific R. R. Co., 45 Cal., 323. 1873. 181. — Iowa. Where an employ^ is injured in consequence of the negligence of a co-em- ploy6, the company will be regarded as the " perpetrator" of the act within the meaning of § 4111 of the Rev. of 1860, providing that the perpetrator of an act producing death shall be civilly liable for the injury. Philo v. Illinois Central R. R. Co., 33 la., 47. 1871. 182. — And where an employe is killed thiough the negligence of a co-employe, a right of action accrues to the representatives of the deceased. Ch. 169, Laws of 1862. Jb. 183. — Louisiana. An action for damages caused by the homicide of a free human be- ing cannot be maintained, in the absence of any statute authorizing it. Eubgh v. Neu) Orleans and Carrollton R. R. Co., 6 La. An., 495. 1851. 400 INJURIES TO EMPLOYES. Evidence. 184. — The subsequent passage of such a statute ■will not authorize the bringing of an action for a death occurring before its pass- age. Hermann v. New Orleans and Carrollton R. M. Co., n La. An., 5. 1850. 185. — Under this statute (Act March 15, 1855), a father may bring an action for the death of his minor son. Frank v. Same, 30 La. An., 25. 1868. 186. — Missouri. Under the statute, the burden of proof is upon the plaintiff to show that death was the result of the negligence of defendant. Schultz v. Pacific B. B. Co., 36 Mo., 13. 1865. 187. — New Jersey. The statute is intend- ed for the benefit of all the next of kin who may be deprived of a reasonable expectation of a pecuniary advantage from a continuance of the life of the deceased. Paulmier v. Erie B. B. Co., 5 Vroom (N. J.), 151, 1870. 188. — Where death ensues to a party by the wrongful act or default of another, and the deceased leaves no widow surviving, an action may be maintained under the statute of New Jersey by the personal representa- tives of the deceased, for the benefit of the next of kin. Maggerty v. Central B. B. Co., Sib., .349. 1865. 189. — The act is in its highest sense reme- dial, and is entitled to receive the liberal con- struction which appertains to such statutes. lb. 190. — Ohio. Under the statute of March 85, 1851, entitled " an act requiring compensa- tion for causing death by wrongful act, neglect or default," an action may be maintained by the adminiEtrator of the decedent for the benefit of the next of kin of the deceased, though he leave no widow or children, and though the petition do not contain a statement of special circumstances rendering the death a pecuniary injury to them. Such special circumstances can affect only the amount of the recovery. I/yon^t Adm'r v. Cleveland and Toledo B. B. Co., 7 Ohio St., 336. 1857. 191. — Under the statute, the administrator of a party injured can bring an action for the injuiy under the same restrictions, and on the same grounds that the party injured, if death had not ensued, might have done. Meara's Adm'r e. Rolbrook, Beceiver, 30 ib., 187. 1870. 192. — An administrator appointed in In- diana cannot maintain an action in the courts of that state, under a statute of the state of Illinois, authorizing the personal representa- tive of a person who comes to his death by the \Wongful act, neglect or default of another, to maintain an action against such other, for damages, for the benefit of the widow or next of kin of such deceased person. Woodard v. Michigan Southern and Northern Indiana B. B. Co., 10 ib., 131. 1859. VII. Evidence. 193. Burden of proof. The burden of proof is upon the employe to show both the negligence of the company and his own care, but he is not bound to do more than raise a reasonable presumption of negligence on the part of the company. Cheenleaf v. Illinois Central B. B. Co., 39 la., 14. 1870. 194. Damages. In an action against a railroad company by an employe for injuries sustained through the negligence of a co-em- ploye, it was held, that it was competent to show that the plaintiff had no means to sub- sist upon, and that he was dependent entirely upon his labor for support. This evidence is admissible, as tending to show the nature of his business and the value of his services. Hunt v. Chicago and Northwestern B. B. Co., 30 la., 363. 1868. 195. — But the jury cannot take into consid- eration the ability of the defendant to pay. 76. 196. Employ6's pass. That the plaintiff was riding on an employe's pass is a presump- tive admission by him that he was a servant of the company. Pennsylvania B. B. Co. v. Books, 57 Penn. St., 339. 1868. 197. Offer of donation. In an action for damages against a railroad company for kill- ing plaintiff's husband, proof of a letter from the president to plaintiff, containing an offer of money as a charitable donation, but not admitting any legal liability, although strictly improper for irrelevancy, would not be calcu- lated to work harm to defendant, and would not justify a reversal of the cause. Qavisk v. Pacific B. B. Co., 49 Mo., 274. 1873. 198. Unfitness of employ^. Where an employ§ brings suit for an injury resulting from the negligence or unfitness of a co-em- ployg, the burden of proof is upon the plaint- iff to show such unfitness, or that it was known to the corporation. DaA>is v. Detroit and Mil- waukee B. B. Co., 30 Mich., 105. 1870. INJURIES TO EMPLOYES. 401 Pleadings. 199. — General reputation of unfitness would be admissible in evidence, and might be sufficient to charge the company, although it may have been ignorant of such reputation. The ignorance will be 'negligence where any proper inquiry would have obtained the neceiJ- sary information. lb. 200. — Where the injured employe knows of the unfitness of his co-employe and does not disclose It to the company, he assumes the risks of injury from such unfitness. /6. 201. — Where the reasons relied upon, to charge the corporation with knowledge of such unfitness, apply with equal force to show the knowledge of the plaintiff, tlie negligence of the latter in not complaining is as great as that of the company in employing an incom- petent person. Ih. 202. — It is neglect of duty in an employg not to give notice to the proper officers of the corporation of any fact affecting the perform- ance of the duties of the company to the pub- lic, occurring within the department under his supervision, lb. VIII. Pleading. 203. Contributory negligence. In an ac- tion for an injury to the person, caused by negligence, it must appear from the complaint, either by express averment, or by a particular allowing of the facts, that the injury occurred without the fault or negligence of the plaintiff. Etamulle and Orawfoi'damlle R. R. Go. v. Dex- ter, 24 Ind., 411. 1865. 204. Defective machinery. Action was brought by an employ§ of a railroad company against his employer, to recover damages for an injury sustained whilst in the employ of the company as a brakeman, occasioned by the roughness of the road and the breaking of a defective axle. A demurrer to the com- plaint was overruled. The objection was, that the complaint did not negative a knowledge by the plaintiff, of the condition of the read and machinery. Seld, that this was not neces- sary; that it was matter of defense, which would more properly appear in the answer. rndianapolis and Cincinnati R. R. Go. v. Klein, 11 Ind., 38. 1838. 205. Hand car. Where the pleadings aver that the plaintiff was injured by negligence in 2B the management of a hand car, it is erroneous to permithimto show that the injury occurred from some other cause. Thomas v. Georgia R. R. Co., 40 Ga., 231. 1869. 206, Neglect of co-einploy^ In an action brought by an employe for an injury sustained by reason of the employer's carelessness, if the employer relies upon the defense that the injury was occasioned by the neglect of a co-employg, such fact should be averred in the answer. , An averment that the plaintiff's own negligence caused the injury, does not raise such issue, Conlin v. San Franciico and San JoieR. -B. Co., 36 Cal„ 404. 1868. 207. Negligence. In a suit brought against the company by an employg engaged as an engineer in running a train upon the road, to recover for injuries sustained in such service, the plaintiff must allege and also prove negli- gence on the part of the company, by means of which the injury was caused. Indianapo- lis and Cincinnati R. R. Go. «. Love, 10 Ind., 554. 1858. 208. Particular case. The sufficiency of the pleadings — determined in a particular case. Baltimore and Ohio R. R. Go. v. Gettle, 3 W. Va., 376. 1869. 209. Unfitness of employ^. In an action by an employg against his employer for injuries caused by the negligence of a' fellow- servant, an allegation that an employer knew of the latter's incompetency is not supported by proof simply of an employment without reasonable inquiry as to fitness. Union Pacific R. R. Co. V. Young, 8 Kans., 658. 1871. 210, — In an action brought by a brake- man against a railway company for injuries caused through the negligence of the con- ductor, the petition was held insufficient on demurrer where it failed to show that the company was negligent in employing or re- taining the conductor. Dow v. Kansas Pacific R. R. Go., 8 Kans., 642. 1871. 211, — In an action for damages against a railway company, an allegation that it was the duty of the defendant to employ a suitable engineer, and that it failed and neglected to do so, does not authorize proof that a fireman, in the absence of the engineer, did manage and control the engine. The petition should allege that defendant authorized or allowed the fire- man to do such act. Harper v. Indianapolis and St. Louis R. R. Go., 44 Mo., 488. 1869. 402 INJURIES TO EMPL0Yi5S, General Matters. IX. General matters. 212. Board of directors. The board of directors of a railway company are its imme- diate representatives, and sustain the relation of master to the various employga of the corporatioB engaged in operating the road. Columbus and Indianapolis Central B. JR. Co. V. Arnold, 31 Ind., 174. 1869. 213. Conductoi". That the deceased was conductor and superior officer of the train, and directed the line of conduct that resulted in his death, would estop the administrator from recovering against the company on the ground of negligence on the part of the em- ployes. Dewey i) Chicago and Northwestern R. B. Co., 31 la., 373. 1871. 214. Connecting lines. Where a steamboat company and a railway company run in con- nection with each other and sell tickets over each other's lines, but the faros over each line are separate and distinct, the servants of one company cannot be held to be co-employfis with the servants of the other, so as to pre- vent the liability of their employers for injur- ies to each other resulting from their negli- gence. Carroll v. Minnesota Valley R. B. Co., 13 Minn., 30. 18C8. 215. Contractors. The term employ6, as used in connection with railroads, does not apply to contractors and persons engaged in constructing the road. Ney v. Dubuque and Sioux City B. B. Co., 20 la., 847. 1800. 216. Employes off duty. Damages maybe recovered against a railroad company for the killing of a person who was employed by it at a fixed price per day, but who was not in its service at the time of the killing, if the killing has resulted directly from the want of ordi- nary care on the part of the agents of the company, and not from the want of ordinary care on the part of the deceased, directly con- tributing to the accident. Baltimore and Ohio B. B. Co. V. The State, 33 Md., 543. 1870. 217. Evidence. In an action brought by a father for an injury to his minor son, it was held, that the declarations of the son, made on (he day following tlie injury, as to the cause of the accident, were not admissible against the plaintiff. Ohio and Mississippi B. B. Co. s. I-Iammersley, 28 Ind, 371. 1867. 218. Express messengers. A messenger of an express company, who was entitled to be carried on a freight train, was employed by the superintendent of the road to act as brakeman for one trip, and whilst so employed, was, by the negligent conduct of the engineer, thrown from the cars and greatly injured. Held, that an action would lie against the railway com- pany whether he were to be considered a pass- enger or an employe. Chamberlain v. Milwau- leee and Mississippi B. B. Co., 11 Wis., 338. 1860. 219. Handcar. Where several employes were traveling upon a hand car, under the charge of a " boss," employed as such by the company, such emplnySs are not chargeable with any negligence of the " boss " in the man- agement of the car. Hoben v. Burlington and Missouri Biver B. B. Co., 30 la., 563. 1800. 220. — By the provisions of the § 3.339 of the Code, railroad companies are liable to bo sued for injuries done to persons or property, by the running of " hand cars " ui>on their roads, as well as by the running of cars i^ro- pelled by steam power. Thomas ii. Georgia B. JJ. Co., 38 Ga., 233. 1868. 221. Minors. The common law rule thata master is not liable for an injury to rfne serv- ant through the neglect of another servant, is not changed where the injured servant is a minor. King v. Boston and Worcester B. B. Co., 9 Gushing (Mass.), 113. 1851. 222. — A minor, without an appointed guardian, and without an estate of inheri- tance, living in his mother's family, the mother being a widow, is subject to her con- trol, as his natural guardian, and she is enti- tled to his wages ; and where such an infant, wliile in the employ of a railway company, was killed by a train through the negligence of its agent, it was held, that an action would lie in the mother's name, for damages. But, held, also, that as such guardian, the motlier could not, it seems, assume, the custody of any separate estate the son might possess. Ohio and Mississippi B. B. Co. v. Tindnll, 13 Ind., 368. 1859. 223. — Where the injured person is a minor, who is, at the time of receiving the injury, in the employ of a railway company, and the injury is caused by his own negli- gence, or the negligence of a co-employg en- gaged in the same general employment, an action cannot be maintained by the father of such minor for the injury received, unless the company was negligent in hiring the co-serv- INJURIES TO PASSENGERS. 403 Injuries received ia getting on and oflf the Cars. ant by whose negligence the injury was caused. Chicago and Chreat Eastern B. B. Go. V. Harney, 28 Ind., 28. 1867. 224. Rules and regulations. Wliere an employ^ enters upon the employment of a railway company with the knowledge that no provision has been made for protecting such employe from moving trains and engines about the depot grounds, he has no cause of action for injuries resulting to him by reason of the neglect of the corporation to make such rules and regulations as prudence would re- quire in that respect. Eashin v. New York Central and Hudson Siver B. B. Co., 65 Bar- bour (N. T.), 129. 1873. INJURIES TO PASSENGERS. See Akbitkation; Indictment; lN,rnBiBS to Em- ployes ; Injuries to Pbksons Geneballt ; Limita- tiokb; Negliqenob; Sunday Laws; Tickets. (For damages oaueed by delay, see Passbnqehs.) I IlSfJTJKIES KECEIVED IN GBTTING ON AND OFF OF THE CABS. \ 1. Getting on the ears. 2. Getting off the cars. II Injuries caused by defective ho ad- way, MACHINERY, ETC. III. INJUKIES KECEIVED ON DEPOT PLAT- FORMS AND IN DEPOTS. IV. InJTTBIES RECEn'ED ON CAR PLAT- FOKMS. V. Negligence. 1. Of carrier. 2. Of passenger. 3. Of third person. VI. Assault and battery. VII. Expulsion op passengers fkom the CAKS. VIII. Injueies causing death. IX. Damages. 1. Death. 2. Other damages. X. Gratuitous passengers. XI. Limitation op liability. XII. Injuries received at car window. XIII. Collisions and running off the TRACK. 1. Collision of trains. '2. Collision with cattle or teams. 1 3. Biinning off the track. XIV. Joint occupation of railways, and CONNECTING LINES. 1. Connecting lines. a. Bailway lines. b. Stage lines. 2. Two companies running same trade. 3. Crossing of two railways. XV. Freight trains. XVI. Evidence. XVII. Pleading. XVIII. General matters. I. Injuries received iisr getting on AND OFF THE OARS. 1. Getting on the cars. 1. Custom. Where there was no passenger platform to indicate the proper place for pas- sengers to enter the cars, and it was the cus- tom of the company to receive and discharge passengers on both sides, and the plaintiff himself, on former occasions, had been je- ceived and discharged on the east side of the track, as had other passengers all along, for a distance of over 200 feet ; held, that the com- pany having permitted this method of receiv- ing passengers at the station, must be regard- ed as responsible for the safety of the regula- tion. Phillips u. Bensselaer and Saratoga B. B. Co., 57 Barbour (N. Y.), 644. 1870. 2. Negligence. The facts constituting neg- ligence and contributory negligence, Tield to be properly submitted to the jury in a particular case. Keating v. New York Central B. B. Co., 3 Lansing (N. Y.), 469. 1871. 3. — Passengers who are injured while at- tempting to get upon a train while it is in motion, cannot recover for the injury. Knight V. Poncha/rtrain B. B. Co., 23 La. An., 462, 1871 ; Hubener «. New Orleans and Oarrollton B. B. Co., ib., 492, 1871. 4. — The train being a night train with a sleeping car attached, it was not error to re- fuse to instruct the jury that plaintiff's at- tempt to get aboard before the sleeping car was abreast of the platform, was negligence per se; it not appearing that the plaintiff knew the length of the traia as compared with the platform, or ought to have assumed that it was intended to bring the sleeping car 404 INJURIES TO PASSENGERS, Injuries received in getting on and off tlie Cars. to that position. Owtis v. Detroit and Milwau- kee II. B. Co., 27 Wis., 158. 1870. 5. — Where a train stops at a station in such a manner as to induce the belief on the part of the passengers waiting on the plat- form that it had stopped for their reception, it is negligence to start the train without a sig- nal when they had commenced to go aboard. Under these circumstances, if it was not in- tended the passengers should go atxjard, it was the duty of the company to have some one there to warn and prevent them. lb. 6. — Where there was evidence tending to show that a railroad train had come to a full stop and that the persons waiting to get npon it were told to go on board by the persons in charge of it, and that the plaintiff' below, in attempting to get on board, was injured in consequence of the sudden starting of the train, it was not error to leave to the jury the question of the negligence of the parties. Detroit and Milwaukee B. B. Co. v, Curtis, 23 Wis., 153. 1868. 7. — Nor were the facts that plaintiff below was told by the company's servants to get on the hind car, and that he was injured in try- ing to get on another car, such conclusive proof of nagligence on his part as to take the case from the jury. lb. 8. — It was error to instruct the jury that it was negligence in the company in not having an agent present, wearing a badge, whose duty should consist in informing the passen- gers what cars to enter. lb. 9. —Plaintiff attempted to get upon a train of cars while slowly passing a station where he had bought a ticket. The platform and steps were full, so that he could only get upon the lower step. A jerk of the cars throw him off, but he held on to the iron rod and ran along by the car striving to recover his posi- tion upon the step, although the speed of the train was increasing, when he was struck by a platform near the track and injured. Held, there was such contributory negligence upon his part as justified a nonsuit. PhillipB v. Bensselaer and Saratoga B. B. Co., 49 N. Y., 177. 1872. 2. Qetting off the cars. 10. Acts of employ«5s. Information by the conductor of a freight train to a passenger of mature age and acciwtomcd to railroad trav- eling, that persons sometimes debarked at a particular place, does not require the passen- ger to take the risk of leaving the car at such place, and is not negligence in the conductor. Chicago, Burlington and Quiney B. B. Co. ■». Eazza/rd, 28 111., 373. 1861. 11. Aged or decrepid persons. Railroad companies must afford a reasonable time to passengers, whether young or old, to leave the cars in safety. But the age or decrepitude of a person will not determine the time of the stoppage of a train on its arrival at a station. Toledo, WahanU and Wettern B. B. Co. V. Baddsley, 54 111., 10. 1870. 12. Cattle guard. The question of negli- gence resulting in the injury of a passenger by falling into a cattle guard, discussed with regard to the facts of a particular case. Hul- bert V. New York Central B. B. Co., 40 N. Y., 145. 1869. 1 3. Culvert. A train ran beyond the plat- form for landing passengers at a station, and stopped over a culvert, and the proper servants of the railroad campany announced the name of the station as a notification to the passen- gers for that station that the train was there; a passenger for that station who had paid his fare, relying on the good faith of the com- pany, alighted upon and in said culvert, with- out his fault or negligence, supposing he was alighting on the platform, it being at night and so dark that he could not see that the train had not stopped at said platform ; where- by he was greatly injured. Held, that the company was liable for the Injury so received. Colvmbnn and Indianapolit Central B. B. Co. v. Farrell, 31 Ind., 408. 1869. 14. Custom. Where the plaintiffs on the trial of an action for an injury claimed to have resulted from tlie cars not stopping at a station a reasonable time for the passengers to leave; which was controverted by the de- fendant; and the plaintiff offered evidence to show the usual and customary period of the cars stopping at that place, held, that such evidence was admissible. Fvller v. Namga- tuck B. B. Co., 21 Conn., 557. 1852. 16, Duty of carrier. Wherever passengers are accustomed to be received upon a train, whether at the station house, at the water tank, or elsewhere, railroad companies are bound to keep in a safe condition for transit, INJURIES TO PASSENGERS. 405 Injuries received in getting on and oflf the Cars. the ordinary space, in wliich passengers go t)o and from the train, and passengers have the right to presume that this duty has been performed. Hulbert o. Neio York Central JR. 5. Co., 40 N. Y., 145. 1869. 16. Failure to stop the cars. Where a pas- senger, by the wrongful act of the company, is compelled to choose between leaving the cars while they are moving slowly, or submit- ting to the inconvenience of being carried by the station where he desires to stop, the com- pany is liable for the consequences of the choice, provided it is not exercised wantonly or unreasonably. Filer «. New York Central R. R. Co., 49 N. Y., 47. 1872. 17. — Where a passenger had bought a ticket and desired to stop at F., where the train was advertised to stop, and it did n'lt stop entirely, but, while it was moving very slowly by, plaintiff was directed by a brake- man to get off, and told that it would not stop or move more slowly. Another passen- ger got off safely; in attempting to follow him, plaintiff was injured. Held, that leaving the cars under such circumstances was not, as matter of law, negligence, but the question was a proper one for the jury. lb. 1 S. — Where cars pass their usual stopping place, and to avoid being carried beyond his destination, a passenger, when they are in mo- tion, jumps out, and in so doing sustains an injury, he cannot recover. JDamout «. Ifew Orleans and Ca/rrolUon R. R. Co., 9 La. An., 441, 1854; Railroad Co. ii. Aspell, 23 Penn. St., 147, 1854; IlUnoii Central R. R. Co. «. Able, 59 111., 131, 1871; Gmett •». Manclmt&r and Laiwrence R. R. Co., 16 Gray (Mass.), 501, 1860; Jeff'ersonville R. R. Co. v. Hendricks, Adm'r, 36 Ind., 228, 1866; &ame o. Swift, ib., 459. 1866. 1 9. — If the train should be started again while the passenger is in the act of leaving it, and without giving him a reasonable time for that purpose, and an injury should result, the company would be liable. Jeffersonville R. R. Co. V. Hendricks, AdmW., 26 Ind., 238. 1866. 20. — It is not sufficient to charge the com- pany in such case that the conductor advised the passenger that he could safely jump from the train. Jeff'ersonville R. R. Co. v. Swift, 26 Ind., 459. 1866. 21. — Where a railroad company accepts the fare of a passenger to a particular station on its road, it is bound to stop its train at that station, that he may get off the cars ; it is not sufficient that the speed of the cars is slack- ened. And if, after passing the station, the speed of the cars is again slackened, that the passenger may get off, and, under the direc- tion of the conductor, he does get off, and, in so doing, gets injured, the company is liable. It is not want of ordinary care, if a passenger prudently uses the means which the company affords him to get off the train. Georgia R. R. Co. V. McCurdy, 45 Ga., 288. 1873. 22. — Even if the plaintiff leaped from the car on suggestion of the conductor, and the conductor only gave it as his opinion that the plaintiff could leap from the train in safety, it was the plaintiff's duty to exercise his judg- ment whether or not it was safe, and if the danger was so apparent that a prudent man similarly situated would not have attempted the leap from the train, then the plaintiff was guilty of negligence, and should not be per- mitted to recover. Chicago and Alton R. R. Co. V. Randolph, 53 111., 510. 1870. 23. — It is not carelessness in the conductor to announce the place to which a train is ap- proaching before it has actually stopped. Railroad Co. v. Aspell, 33 Penn. St., 117. 1854. 24. Intermediate Stations. When a pas- senger enters a railway train and pays the regular fare to be transferred from one station to another, his contract does not obligate the corporation to furnish him with safe ingress and egress at an intermediate station. State v. Gi-and Trunk R. R. Co., 58 Maine, 176. 1870. 25.. — And where such passenger, at an in- termediate station, where the train is awaiting the passage of another train, without objec- tion made or notice given, leaves the cars, he he does no illegal act, but for the time being, he surrenders his place as a passenger, and takes upon himself the direction and responsibility of li is own motions during his absence. Tb. 26.— When such train is about to start, the proper employes should give reasonable no- tice for such passenger to return to the car, and if there is an established signal by blow- ing the whistle, that should also be given. Ib. 27.— But if the passenger go out of sight and out of the reach of the voice which gives the usual loud and distinct notice for all pas- sengers to repair on board, the corporation is not required to send after him. Ib. 406 INJURIES TO PASSENGERS. Injuries received in getting on and oflf the Cars. 28. — A railroad company, undertaking the carriage of passengers to an intermediate point on its road, is bound to stop there a suf- ficient length of time to enable all the pas- sengers to alight, whose destination is at that point; and if a passenger is injured in conse- quence of the starting of the train before a sufficient time has been given to alight, the comijany is liable in damages. Pennsyhania B. B. Co. V. Kilgore, 33 Penn. St., 293. 1858. 29. Length of stoppage. In an action to recover damages for injuries suffered by a passenger in leaving a train, alleged to have occurred by reason of the negligence of the employes of the company in not stopping the train at a station long enough to enable the plaintiff to leave it in safety, it was error for the court to refuse to Instruct the jury that if the train had stopped " a sufiicient time for the plaintiff to leave it upon the platform where passengers leaving the defendant's cars usually land, and had again started on its course and had passed said platform, and the plaintiff then left the platform of the car, rather than be carried by, he was guilty of carelessness and could not recover in the action ; " and that " if the train stopped a sufficient time to allow the plaintiff to get off, then the defend- ant was not guilty of negligence in its man- agement." Dams V. Chicago and Nortlmestern JR. B. Co., 18 Wis., 175. 1864. 30. Mistake. If a train is stopped, at night, merely for the purpose of allowing a train which is expected from the opposite direction to pass by, and no notice is given by the em- ployes of the company to passengers that they may leave the cars, one who leaves the cai-s and walks into an open cattle guard and re- ceives a personal injury cannot recover against the company therefor ; and it is imma- terial that he was misinformed by some per- son not in the employment of the company that he must go and see to having his baggage passed at a custom house, supposed to have been reached by the train, or that the train was near a passenger station, which was not the place of his destination. Frost v. Orand Trunk B. B. Co., 10 Allen (Mass.), 387. 1865. 31. — A railroad company is not legally liable for the action of persons not its serv- ants in falsely announcing the arrival of a train at a station, whereby a passenger in at- tempting to alight from the train is injured. Cohimlnis and Indianapolis B. B. Co. d. Fanrell, 31Ind.,408. 1869. 32. Negligence. In an action for an injury to a passenger occurring while getting off the cars, the court instructed the jury to the effect that if the want of proper care or skill on the part of the conductor caused the injury, the defendant would be liable, lield, not to be erroneous, taken in connection with' another instruction to the effect that if the plaintiff was guilty of negligence in jumping from the car, she could not recover. Bvansville and Crawfordsville B. B. Co. v. Duncan, 28 Ind., 441. 1867. 33. — The evidence in this case disclosing that the plaintiff leaped from the cars merely to iirevent being carried on, and that she was at the time warned that it was dangerous, and so thought herself, it was held, that she could not recover, she having contributed to the injury by her negligence. lb. 34. — The principle that there can be no recovery for an injury resulting from mutual riegligence is applicable to an action for an injury which is founded on a contract. Bail- road Co. v. Aspell, 28 Penn. St., 147. 1854 35. — In an action against a railroad com- pany for an injury sustained by a passenger, who in a dark night upon the arrival of a train on the main track next to the depot, alighted on a narrow platform between that track and a side track, and in crossing from the platform to the highway was struck by an engine backing on the side track, if the evi- dence at the trial has any tendency to show, according to the general knowledge and ex- perience of men, that the arrangement and use of the premises were such as to invite the plaintiff to cross to the highway in the manner in which he attempted to do so, that he used ordinary care in the attempt, and that the de- fendant did not provide proper safeguards against such an accident, the question whether there was due care on tlie part of the plaintiff, and negligence on the part of the defendant, are for the jury. Gay nor v. Old Colony and Newport B. B. Co., 100 Mass., 208. 1868. 36. — In an action for an injury to a pas- senger, caused by leaping from a box car while the train was stopped at the station to which the plaintiff had taken passage, no means of descent being provided, it was held, that an instruction to the effect that if the INJURIES TO PASSENGERS. 407 Injuries received in getting on and off the Cars. plaintiff leaped from tlie car without being in peril, or having reason to believe that she was in peril, and the injury thereby resulted, she could not recover, was correctly refused, because it did not contain the further element that the circumstances were such that the plaintiff might reasonably have apprehended ■injury from the leap. Emnsville aiid Graw- fordsville S.B.Oo.v. Duncan, 28 Ind., 441. 1867. 37. —Where a train had stopped a sufficient time to enable passengers to get off in safety, it was Tield, to be negligence for one of such passengers to attempt to get off after the train had again started. Illinois Central B. R. Go. «. Slatton, 54 111., 133. 1870. 38. — A female passenger, accompanied bj' three young children, on arriving at an inter- mediate station, proceeded to alight with them; two of the children had left the car, and whilst the plaintiff was still on the train,- the cars started, when she sprang forward on the platform, on which one of the children had fallen prostrate, and was injured: held, that this was not such negligence as would prevent her from recovering damages for in- juries sustained by the premature starting of the train. Pennsylvania S. S. Go. v. Kilgore, 33 Penn. St., 293. 1858. 39. — If, through the default of the com- pany, or its servants, a passenger is placed in such a perilous condition as to render it an act of reasonable precaution, for the purpose of self preservation, to leap from the cars, the company is responsible for the injury he re- ceives thereby, although if lie had remained in the cars he would not have been injured. Southwestern B. B. Go. v. Paulk, 34 Ga., 356. 1858. 40. — Where the usual signal was given for slackening the speed of the train, and the conductor went with a passenger and his com- panion out on the platform to assist them in getting off' safely, and such passenger, without any direction from the conductor, jumped off the train while in mgtion, the carrier is not responsible for injury resulting therefrom; but it would be otherwise if the motion of the train was so slow that the danger of jumping off would not be apparent to a reasonable person, and the passenger acted under the in- structions of the conductor. Lambeth v. North Can-olina B. B. Go., 66 N. C, 494. 1872. 41. Passing from car to car. Where a passenger attempts to pass from a train in motion, and not at a station, and is warned not to get off at that place, and the conductor takes hold of him to prevent him from pass- ing from tlie car, the passenger is guilty of negligence if he passes from the train and re- ceives injury thereby. Ohio and Mississippi R. B. Go. ■». Sehiebe, 44 111., 460. 1867. 42. Pleadings. The sufficiency of the pleadings in a particular case— determined. Jeffersonxiille, Madison and Indianapolis B. B. Go. i>. Hendricks, 41 Ind., 48, 1872; Eldridgev. Long Island B. B. Go., 1 Sandford (N. Y ) 89 1847. 43. Termination of cai-rier's liability. In an action against a railway company as a common carrier of passengers, for personal injuries, there being evidence from which the jury might have found that the relation of passenger and carrier had ceased before the accident, a judgment for the plaintiff was re- versed because the jury were instructed (by a distinct proposition in writing), "that defend- ant was liable if the injury was caused by its negligence, without negligence of the plaint- iff contributing thereto; " although by a sub- sequent written instruction they were told, that " if a reasonable time had elapsed for the plaintiff to get out of the cars, the relation of common carrier ceased, and the defendant could not be held liable as a common carrier," and were orally instructed that in such a case, the plaintiff could not recover at all in tliat ac- tion. Imhoff V. Chicago and Milwaukee B. B. Co., 20 Wis., 344. 1866. 44. — A railroad company is liable for neg- ligently injuring persons lawfully on or around its cars, even after its liability as a carrier has ceased, a reasonable time having elapsed for them to leave the train after arriving at its destination. Bame v. Same, 22 ib., 681. 1868. 45. — It is the duty of railway companies to stop their trains at their stations, and to have the names of the stations announced, and a sufficient time given to allow passengers to get off without danger. Southern B. B. Go. v. Kendrick, 40 Miss., 374, 1866 ; Fairmount and Arch Street B. B. Co. v. Stutler, 54 Penn. St., 375. 1867. 46. — Where a railroad company, by its negligence, compels a passenger to choose be- tween Incurring some risk in leaving the train, and being exposed to other inconveniences to 408 INJURIES TO PASSEKGERS. Injuries caused by Defective Roadway, Macliineiy, etc. which it has no riglit to expose him, and he is injured in getting off, under circumstances ■which would not prevent a person of ordinary prudence from doing so, the company is liable. Delamatyr v. Milwaukee and Prairie du Ohien B. B. Co., 24 Wis., 578. 1869. 47. — Where the train stopped at the statioo only one minute, and during that time plaint- iff 's child alighted, and the plaintiff followed without any delay, but after the train was in motion, held, that she would not be barred from recovering for a personal injury received in consequence of jumping from the train. Loyd v. Hannibal and 8t. Joseph M. M. Go., 53 Mo., 509. 1873 II. IXJURIES CAUSED BY DEFECTIVE ROADWAY, MACHINERY, ETC. 48. Bridge. Where an accident happened from the breaking of a wheel, which hiwl been previously cracked, but which crack had not been discovered, owing to an imperfect inspec- tion of it by the oflScers of the company, and from the prostration of a bridge which had been so imperfectly constructed as not to be strong enough to guard against the accident, the company was guilty of negligence, and was responsible to parties injured. Oliver v. New Tork and Erie B. B. Go., 1 Edmonds (N. Y.),589. 1848. 49. Machinery. Where a passenger in a railroad car was injured by the breaking of one of the axles in consequence of a latent de- fect which could not be discovered by the most vigilant external examination, it was held, that the company was responsible to him for damages, although it purchased the car from extensive and skillful car makers, and the axle was procured from a manufacturer of skill and reputation, if the defect could have been dis- eovered in the process of manufacturing the axle or car by the application of any test known to men skilled in such business. -Hege- man v. Western B. B. Co., 13 N. T., 9, 1855; Same v. Same, 16 Barbour (N. T.), 353, 1853. 50. — A common carrier is bound, abso- lutely and irrespective of negligence, to pro- vide roadworthy vehicles. A railroad com- pany is liable for injuries to a passenger, caused by a crack in the iron axle of a car, al- though the defect could not have been discov- ered by any practicable mode of examination. Mden v. N. T. Cent. B.B.Co., 36 N.T., 103, 1863 ; see contra, McPadden v. 8ame,4A ib., 478, 1871. 51. — The want of any necessary apparatus and fixtures to the locomotive or train will not increase the responsibility of the company, where the accident would have happened equally without them. Hill v. New Orleans, Opelousas and Great We»tern B. B. Co., 11 La. An., 293. 1856. 62. — Whether a railroad company manu- factures the cars and engines used in trans- porting passengers, or procures them from others, it is responsible that the utmost precau- tion, care and skill have been exercised in their construction to render them safe. Sege- man v. Western B. B Co., 13 N. Y-, 9, 1855; Same v. Same, 16 Barbour (N. Y.), 353, 1853. 53. Head bed. A company cannot be re- quired, for the sake of making travel on its road absolutely free from peril, to incur a de- gree of expense which would render the oper- ation of the road impracticable. Pittsburgh, Cincinnati and St. Louis B. B. Co. v. Thomp- son, 56 111., 138. 1870. 54. — The court will not set aside a verdict when the Judge who tried the case in his dis- cretion admitted testimony showing the gen- eral bad state of the defendant's track for miles distant from the place of accident, as one of the causes probably contributing to the acci- dent, which occasioned the injuiy to plaintiff. Holyoke v. Grand Trunk B. B. Co., 48 N H 541. 1869. 55. — Proof of the bad condition of the rail- road in the immediate vicinity of ihe place where the accident occurred is admissible fur the purpose of showing the negligence of the company. Beed v. New Yvrk Central B. B. Co., 56 Barbour (N. Y.), 493. 1868. 56. — ballasting. Contracttjrs employed by a railway company to deliver stone on the road and prepare it for ballasting the track (the ballasting not being necessary to the se- curity, but being intended for the preservation of the track), placed the stone in ridges so near the rail that it was struck by the step of the baggage car, or the ridge was disturbed and a stone rolled down by the hub of one of the cars, or was rolled down by the jarring of the train as it passed near the ridge, or it was loosed from its place and rolled down by the haste of one of the hands employed by the con tractors in getting off the ridge to avoid the INJURIES TO PASSENGERS. 409 Injuries received on Depot Platforms and in Depots. train, and the cars ran against it and were thrown oflf the track, whcjreby a passenger was injured. Held, that it is for the jury to inquire wliether there was not danger in the work, arising from the mode and manner in which it was done; whether the company did not know, or should have ascertained, the exist- ence of such danger; and whether it bad used due care and foresight in guarding against it. Yirginia Central R. R. Go. v. Sanger, 15 Grat- tan (Va.), 330. 1859. 57. — rails. Where the car in which the plaintiff rode was overset by reason of the breaking of one of tlie rails, in consequence of which his shoulder-blade was broken, and without any negligence on his part, he sus- tained serious injury; held, that he had made out a, prima facie case of negligence on the part of the defendant, entitling him to damages. BrigrwU v. Chicago and Great Eastern R. R. Co., 4 Daly (N. T.), 183. 1871. 58. — Where an accident has occurred by reason of a broken rail, if a passenger claims that the rail was broken before the train reached it, he is called upon to show that fact by evidence. MePadden v. New Toih Central R.R. Co., 44N. T., 478, 1871 ; reversing, Same V. Same, 47 Barbour (N. Y.), 347, 1866. 59. — If a railroad company lays its rails in such a manner, that within the ordinary ex- tremes of cold and heat, they expand so as to bo pressed out of place thereby, that of itself is negligence. Reed v. New York Centrvl R. R. Co., 56 Barbour (N. T.), 493. 1868. 60. — Where it was proved that the con- traction and expansion of rails, of the length of those used, between the ordinary extremes of heat and cold, during the year, is from three-eighths of an inch to one-half an inch in each bar, and that the rails upon defend- ant's road were laid with spaces of not more than one-fourth of an inch between them: hMd, that the jury were authorized to find that the rails were negligently laid. lb. 61. — Whether an accident, by which cars are thrown from the track and upset, is caused by the expansion of the rails from heat, or the shoving forward of the rails and throw- ing them out of place by running all the trains upon the track in one direction, or by J)oth causes united, neither cause furnishes a defense to an action brought by a passenger sustaining an injury. lb. 62. — Where a railroad company knows that, as its road is constructed and operated, an accident may liappen from either or both of those causes, it is its duty to effectually guard against it, by so fastening the rails that they win not be liable to be pushed forward by the running of the trains ; or if that cannot be done where (in case of a double track) tlie trains are running the same way all the time, then it should run them on the same rails, sometimes one way and sometimes the other. lb. 63. — Where a complaint alleged that the injury resulted from a broken rail, which the company had carelessly left unrepaired for a long time, whereby the car in which the plaintiff was being carried as a passenger was thrown from the track arid the plaintiff there- by injured, etc., it was held good, without an express averment, that the plaintiff was with- out fault. Michigan Southern and Northern Indiana R. R. Co. v. Lantz, 29 Ind., 538. 1868. 64. — repairs. Repairs of a track were attempted to be made without interfering with the passage of the trains. The time of the passage of such trains was well under- stood, and to insure safety, it was only neces- sary that the employes of the company should have an accurate timepiece, to enable them so to conduct the work that the track should be in order, on the arrival of the next train. Held, that it was the duty of the company to see that the men employed in labor of that kind were furnished with a proper timepiece. Matteson v. New York Central R. R. Co., 63 Barbour (N. Y.), 364, 1863; see Same «. Same, 35 N. Y., 487, 1866. 65. — ties. Although a railroad company may use ties of wood, such ties shall be abso- lutely sound and road worthy. Pittsburgh, Cincinnati and St. Louis R. R. Co. v. Thompson, 56 111., 138. 1870. III. Injuries eeceived oisr depot PLATFORMS AND IN DEPOTS. 66. Depot floor. It is gross negligence for a railway company to leave a hole in the floor of the depot, where its passengers are accustomed to alight from its cars, thus ren- dering their landing unsafe. Ziscomb v. New Jersey, etc. R. R. Co., 6 Lansing (N. Y.), 75. 1873. 410 INJURIES TO PASSENGERS. Injuries received on Depot Platforms and in Depots. 67. Lights. The absence of a light at a depot, in a dark night, whereby a passenger was injured in falling from a platform was held to be sufficient evidence of negligence to go to the jury. Patten v. Chicago and North- western S. R. Co., 32 Wis., 534 1873. 68. Platform. It is not necessary that a person should be on the train of a railroad in order to be regarded as a passenger. As a passenger, he has the right to stand or walk on the platforms provided at stations for the con- venience of passengers while the train is stop- ping for refreshments, and in a street along- side of the track and platforms. Jeffersonville, etc., a. S. Co. V. BiUy, 39 Ind., 568. 1872. 69. — Neither an entry into the cars, upon a railroad, nor the payment of the fare, is es- sential to create the relation of carrier and pas- senger. Being within the waiting room, wait- ing to take the cars, is as effectual to make one a passenger as if he were within the body of a car. Oordon v. Grand Street and Newtown S. B. Co., 40 Barbour (N. Y.), 546. 1863. 70. — "Where an action was brought for an injury sustained by a party by reason of de- fective steps to a platform, which was not the usual place for passengers to get on and off the cars, the jury should, have been instructed to ascertain from the evidence whether the company had set apart the platform in front of the depot as the place where all passengers were required to enter the cars ; if so, and this was known to the plaintiffs, and they disre- garded the requirement, and met an injury in attempting to get on at another place, the com- pany would not be liable as a common carrier. McDonald v. Chicago and Northwestern B. B. Co., 26 la., 134, 1868; 29 ib., 170, 1870. 71. — But if no such rule was known to them, and they, in the exercise of reasonable care, were seeking to enter thccars, they would have a right to presume that the platform and approaches were in a safe condition. Ib. 72. — As a general rule, a railway company is bound to keep ia a safe condition all por- tions of its platforms and approaches thereto, to which the public would naturally resort. Ib. 73. — If a station room is full, or offensive from tobacco smoke, a passenger will be just- ified in entering the cars at as early a period as possible, and may endeavor to enter them before they are drawn up to the station, if he is not aware of any rule of the company to the contrary ; and if, in so doing, he receives an injury (he using proper care) from the unsafe and dangerous condition of the platform, or the steps, in a place where passengers would naturally go, the company will be liable there- for. Ib. 74. — Railroad companies must provide reasonable accommodations at their stations for iDassengers. Ib. 75. — Stopping the train at an unusual place is presumptively wrong, and the onus is on the company to explain this neglect. Mem- phis and Charleston B. B. Co. v. Whitfield, 44 Miss., 466. 1870. 76. — The conductor is bound to back the train if requested, so that a passenger may alight upon the platform. Ib. 77. -—If the train is stopped at a place where there is no platform, the company is bound to assist the passengers off the train. Ib. 78. — It is the duty of a railroad company using a platform in a depot belonging to an- other company, to see that the platform used is safe and convenient for passengers. Sey- mour «. Chicago, Burlington and Quincy B. B. Co., 8 Bissell (U. S. C. C), 43. 1871. 79. — In an action, it was alleged that the death for which the suit was brought, was caused by negligence " in not allowing a safe and convenient platform or way, and a suffi- cient time to get into the cars, and causing an engine to run alongside the cars, which killed the deceased." Held, that the delay in the i.r- rival of the train in which the deceased was to go, not being alleged in the declaration, was not a cause of action, but was a circumstance bearing on the question of negligence. Pe7in- sylvania B. B. Co. v. Henderson, 51 Penn. St., 315. 1865. 80. — On the question of negligence, evi- dence was proper that the next day after the accident, the agent of the company telegraphed to the superintendent that the platform should be- removed, and it was removed the next dav. Ib. ^ 81. — Where a railway company provides a platform or other safe means of exit from its cars, at a station, it is the duty of passengers to leave by the way provided, unless it is un- safe, or a justifying necessity exists to escape from peril or injuiy to life or limb; and it is error to admit evidence to be given to the jury that persons were in the habit of getting out INJURIES TO PASSENGERS. 411 Injuries received on Car Platforms. of the cars ou the opposite side of the platform. Pennsylvania B. B. Co. «. Zebe, 37 Penn. St., 420. 1860. 82. — Where it appeared that a passenger on the defendant's cars, alighted from the cars on a dark night, at a station of the de- fendant, on one of two platforms extending along each side of the track to a highway (which, as he knew, crossed the railroad), and having a step at the end next the highway ; instead of walking along the platform, he voluntarily stepped from it, to cross the track to the highway, and when he stepped off, fell into a cattle guard dug across the track, and was injured ; it was lield, that he was not in the exercise of due care, and could not re- cover. Fonyth v. Boston and Albany B. B. Co., 103 Mass., 510. 1870. 83. — If the station house of a railroad company is separated by a side track from a platform provided for passing to the trains, and there are no regulations or directions as to when or how passengers shall pass to them, the question whether a passenger is hound to wait in the station house until the arrival of the train at the platform, or may go to and stand on the platform during its approach, depends on what is a reasonably safe and pru- dent course for him to adopt, and known usage may be considered in determining the question. Caswell v. Boston and Worcester B. B. Co., 98 Mass., 194. 1867. 84. — A- railway company that has pro- vided a sufficient platform for the egress of passengers from its cars, is not liable for in- juries occurring to a passenger in consequence of his voluntarily leaving the cars on the op- posite side, and stepping on the track instead of the platform. Pennsylvania B. B. Co. v. Zebe, 33 Penn. St., 318. 1858. " 85. — The company is not liable in such case, unless. there were gross negligence on its part, in thus permitting the passenger to leave the cars. Ih. 86. — If a passenger be injured in conse- quence of his disregard of the necessary regu- lations of the company, in regard to the mode of alighting from its cars, the company is not liable, even though the negligence of its serv- ants concurred in causing the mischief, lb. 87. — A railway company is liable to a hackman for an injury received by him while carrying a passenger to the depot for transpor- tation, by stepping into a cavity in the plat- form, and occasioned solely by the unsafe condition of the platform. Tobin ■v. Portland, Saco and Portsmouth B. B. Co., 59 Me., 183. 1871. 88. — Under §uch circumstances the liabil- ity is not changed by the fact that the plat- form was erected and maintained in the limits of the highway. lb. 89. Switch. If, by a displacement of a switch by an employe of a railway company, a train due over the main track of the railroad is diverted to a side track, and comes into collision there with other cars, and puts in peril passengers on au adjoining platform, it is com- petent for a jury to find that the omission to replace the switch was culpable negligence Caswell V. Boston and Worcester B. B. Co., 9S Mass., 194. 1867. IV. Injuries eeceived ox car plat- forms. 90. Negligence. Although the railway company has been guilty of negligence, yet if the passenger could have avoided the injury by the exercise of ordinary diligence, no cause of action will arise against the railway company; so Tield, in case of an injury by collision to a passenger while riding upon the platform in violation of the rules of the company. Macon and Western B. B. Co. v. Johnson. 38 Ga., 409. 1868. 91. — A passenger cannot maintain an action for an injury sustained in consequence of voluntarily and unnecessarily standing upon the platform of a car while in motion, even although the injured party is acting in conformity with a custom in that respect. Hiclcey «. Boston and Lowell B. B. Co., 14 Allen (Mass.), 429. 1867. 92. — Passengers are not guilty of negli- gence in standing on the platform of cars In motion, when there are no vacant seats for them within the cars. Willis v. Long Island B. B. Co., 34 N. Y., 670. 1866 ; Same v. Same, 33 Barbour (N. Y.), 399, 1860. 93. — The mere fact that the conductor does not object to a passenger's riding on the platform of a car, does not raise a presump- tion that the company assented to such BCt of the passenger, if notices were duly posted for- bidding passengers thus to ride, as required 412 INJURIES TO PASSENGERS. Negligence. by the statute. Eigginsv. New Torhand Rwr- lem S. B. Co., 2 Boaworth (N. Y.), 132. 1857. 94. — A passenger was injured wliile riding on tlie platform. After the injury, -witnesses testified that he admitted that he would not have been injured if he had. not been in an improper place. Held, that this evidence was properly left to the jury; that it did not follow that because such admitsions were made, the plaintiff could not recover, but the question of negligence was for the jury. Zemp v. Wil- mington and Manchester S. S. Co., 9 Richard- eon's Law CSo. Car.), 84. 1855. 95. — There was a notice near the door on the inside of the car, " that passengers should not stand on the platform." The court Tield, that even if the plaintiff knew that the plat- form was a prohibited place, then it was for the jury to say whether the act of the plaintiff contributed to the injury so as to exonerate the company, the facts clearly showing the negligence of the company in the construc- tion of the road. lb. 96. — One of a large funeral party who took passage upon a train to go a distance of twelve miles, was standing upon the steps of the platform of one of the cars holding on to the railing, when the conductor came along collecting fare. In making change for a bank note which the passenger paid for his fare, the wind carried away the paper. The passenger in attempting to regain it, lost his foothold and fell against an embankment, was thrown back under the cars and killed. The cars were quite full, but there was standing room in all of them. In an action against the com- pany, it was held, that it was the negligence of the deceased, not that of the company, which caused his death, and there could be no recovery. Qmnn v. Illinois Central It. B. Co., 51 111., 495. 1869. V. Negligekce. 1. Of Carrier. 97. Comparative negligence. If the neg- ligence of one party is only slight, and that of the other appears gross, a recovery may be had. Chicago, Bwrlington and Quincy B. B. Co. V. Dewey, 26 III., 355 1861. 98. — Where a passenger is injured and is entitled to damages, if he himself is at fault, he will not be entitled to as heavy damages as he would if he had been free from negligence. Yonge v. Kinney, 28 Ga., 111. 1859. 99. Degree of care required. Carriers of passengers are bound to use the utmost care and skill in the performance of such duty. BueUenlcamp v. Citizens B. B. Co., 37 Mo., 537, 1866 ; Johnson v. Winona and St. Peter B. iZ. Co., 11 Minn., 296, 1866; Taylor v. Grand Trunk B. B. Co., 48 N. H., 304, 1869 ; Union Pacific B. B. Co. ■». Hand, 7 Kan., 380, 1871; Brown v. Nem York Central B. B. Co., 34 N. y., 404, 1866 ; Mississippi Central B. B. Co. v. Miller, 40 Miss., 45, 1866 ; New Orleans, Jack- son and Great Northern B. B. Co. v. Bailey, ib., 395, 1866 ; J^ersonmlle B. B. Co. v. Hendrick's Adm'r, 26 Ind., 338, 1866; Toledo, Wabash and Western B. B. Co. ■». BaddeUy, 54 111., 19, 1870; FuUer v. Naugatuck B. B. Co., 21 Conn., 557, 1852. 100. — It is an implied condition of the contract of railroad companies with each passenger, that he shall not be |,ut in jeopardy by the slightest fault of the employes of the company. Black v. Carroll on B. B. Co., 10 La. An., 33. 1855. 101. — The slightest neglect resulting in hurt or loss, against which human foresight and prudence may guard, renders a carrier of passengers liable. Meier v. PennsyVoania B. B. Co., 64 Penn. St., 225. 1870. 102. — The requirement of extreme care does not extend beyond the use of known machinery and the modes of using it. Ib. 103. — Railroads must keep pace with science, art and modern improvement in their application to the carriage of passengers. Ib. 104. — The injury of a passenger without his own fault, makes a prima facie case against the carrier. Ib. 105. — The carrier may relieve himself by showing that the injmy arose from an acci- dent which the utmost skill, foresight and dil- igence could not prevent. Ib. 106. — An instruction was properly re- fused which read as follows: "The rule is not to be understood as requiring of such carriers those particular precautions as it is apparent after the accident might have prevented the injury." Wheaton v. North Beach and Mis- sion B. B. Co., 36 Cal., 590. 1869. 107. — Such carriers are chargeable if their negligence, however slight, was the sole IKJURIES TO PASSENCrERS. 413 Negligence. cause of the injury. Knight v. Portland, Saeo and Portsmouth B. li.Oo., 56 Me., 334. 1868. ] 08. — When a railway company under- takes to transport passengers at an agreed price, tliat contract implies that the company is provided with a safe and sufficient railroad to the point indicated; that its cars are staunch and road worthy; that means liave been taken before hand to guard against every apparent danger that may beset the passenger; and that the servants in charge are tried, sober and competent men. Sullwan v. Philadelphia and Beading B. B. Co., 30 Penn. St., 234. 1858. 109. — The degree of precaution, care and skill required of a carrier of passengers by stage coaches, in the preparation and manage- ment of the means of conveyance, is not a test of that which is required of those engaged in transporting persons upon railways. Hege- man v. Weetern B. B. Co., 13 N. Y., 9, 1855; Same v. Same, 16 Barbour (N. Y.), 353, 1853. 110. — The standard of care required of a railroad company in carrying passengers does not depend upon its financial cohdition or the amount of its revenues, but it is bound to pro- vide a track, rolling stock and all other agen- cies suited to the nature and extent of the business it assumes to do. Taylor v. Grand Trunk B. B. Co., 48 N. EC., 304. 1869. 111. — A direction to the jury that a rail- road company must use such a degree of care as is practicable, short of incurring an ex- pense which would render it altogether im- possible to continue the business, is erroneous and calculated to mislead the jury. II). 112. Engine driver. It is not negligence in an engine driver, on arriving at a station, if he should let on more than the exact quan- tity of steam necessary to overcome tlie fric- tion of frogs and switches, thereby creating a jerking motion of the train, if in so doing, he exercises a reasonable discretion. Chicago, Burlington and Quincy B. B. Co., ». Haeeard, 26 111., 373. 1861. 113. Pleading. Railway companies are responsible for injuries inflicted upon passen- gers in consequence of the negligence, impru- dence and want of skill of persons in the ser- vice of those companies, and the injury hav- ing occurred, it is not necessary that the party who sues for damages should allege the par- ticular; cause of the accident. Carmanty v. Mexican GulfB. B. Co., 5 La. An., 703. 1850. 114. Presumption. No presumption of negligence arises from the mere fact that an accident has occurred. Curtis -■». Bochester and Syracuse B. B. Co., 18 N. Y., 534, 1859 ; Sam£ V. Same, 20 Barbour (N. Y.), 282, 1855. 115. — But a presumption of negligence arises whenever it appears that an accident has resulted from a defect in the road, or any part of the ajjparatus employed in operating it. lb. 116. —The presumption of a want of care may arise from circumstances attending the injury; and whenever such a state of things exists, tlie onus is upon the company to show that the injury did not result from any negli- gence on its part. Brehm v. Great Western B. B. Co., 34 Barbour (N. Y.), 256. 1861. 117. — When the presumption of negligence lias been once established against a carrier of passengers, in an action for damages resulting from an accident, it can only be rebutted by proving that the accident resulted from circum- stances against which human prudence and foresight could not guard. Bowen v. New York Central B. B. Co., 18 N. Y., 408. 1858. 118. Time. Evidence of negligence must be confined to the time of the alleged injury. Southern B. B. Co. v. Kendrick, 40 Miss., 374. 3866. 2. Of passenger, 119. Contributory negligence. Where the negligence of the injured party contributed to the injury, he cannot recover. Harper v. Erie B. B. Co., 3 Vroom (N. J.), 88, 1866 ; Deyo V. New York Central B. B. Co., 34 N. Y., 9, 1865 ; Spooner v. Brooklyn City B. B. Co., 31 Barbour (N. Y.), 419, 1860; Same v. Same, 36 ib., 217, 1862; Jeffersonville B. B. Co. v. Hen- drick's Adm'r, 26 Ind., 328, 1866. 1 20. — If the injury was the result of negli- gence on botli sides, then, as the passenger's own fault was contributory to it, he can re- cover nothing, unless the managing agents saw his perilous condition, and might, by ordinary diligence, have prevented the injury. Ken- tucky Central B. B. Co. v. Dills, 4 Bush (Ky.), 593. 1868. 121. — When a passenger, by his own mis- conduct or negligence, contributes to the in- jury, as by riding in the baggage car contrary to the rules of the road, he cannot recover. 414 INJURIES TO PASSENaERS, Assault and Battery. Higgins v. Hannibal and St. Joseph S. R. Co., 36 Mo., 418. 1865. 122. — If the injury was occasioned liy the passenger's failure to obtain the knowledge of, and to act upon, established usage, custom and regulations, he cannot recover. Southern R. li. Oo. V. Kendrick, 40 Miss., 374. 1866. 123. Evidence. In an action by a widow against a railway company to recover damages for the loss of her husband's life, it was error to instruct the juiy that if the deceased knew that " the fast line " was approaching, and knew his danger in time to escape and did not, then the fault was his own, and there could be no recovery. The instruction should have been, that he was to be charged with knowledge, or regarded as knowing, if he had such warnings or opportunities of knowledge, as would, with ordinary caution in those circumstances, have saved him from danger. No one could prove his. actual knowledge, but his means of know- ledge could be shown. Pennsylvania B. B. Co. v. Henderson, 43 Penn. St., 449. 1862. 124. Negligence a question of law. If the facts are undisputed, and fail to show that the plaintiflp was in the exercise of due and reasonable care at the time of receiving the injuries, it is the duty of the court to instruct the juiy that he cannot recover. Qavett d. Manchester and Lawrence B. B. Co., 16 Gray (Mass.), 501. 1860. 125. Pleading. A complaint seeking a recovery from a railroad company on the ground Of negligence ,in running a train of cars, whereby the plaintiflF has been injured, must expressly allege that the injury occurred without the fault or negligence of the plaint- iff. Maxfield v. Cincinnati, etc. B. B. Co., 41 Ind., 269, 1872; Jeff'ersonville B. B. Co. v.Hen- di-icks' Adm'r., 26 ib., 228, 1866. 126. — The burden is not on plaintiff to aver affirmatively that he was at the time ex- ercising due care, and was himself without negligence, contributing to the injury. Neg- ligence in the plaintiff is a mere defense to be set up by the answer, and shown like any other defense. Thompion v. North Missouri B. B. Co., 51 Mo., 190. 1873. 3. 0/ third person. 127. It is no defense to an action by a pas- senger against a railway company to recover damages for an injury sustained through its negligence, that the negligence or trespass of a third party contributed to the injury, al- though such third party acted entirely inde- pendent of the carrier. Eaton v. Boston and Lowell B. B. Co., 11 Allen (Mass.), 500. 1866. 1 28. — The negligence of defendant, where- by plaintiff was injured, being established, and there being no pretense, that plaintiff was guilty of any personal negligence, the negli- gence of a third party, contributing to the in- juries, furnishes no legal excuse for the negli- gence of defendant. Webster v. Hudson Biver B. B. Co., 38 N. Y„ 260. 1868. VI. Assault and battery. (See next subdivision, post, 415.) 129. Exemplary Damages. Where an agent commits an assault in the line of his duty and within the scope of his employment, the master is liable, and is liable in exemplary damages in a proper case. Hamilton v. Third Avenue B. B. Co., 13 Abbott Pr. N. S. (N. Y.), 318, 1872 ; Same v. Same, 3 Jones and Spencer (N. Y.), 118, 1872. 130. — A common carrier is responsible for the willful misconduct of his servant against a passenger. Qoddard v. Grand Trunk B. B. Co., 57 Me., 202. 1869. 131. — Where a person is assaulted and grossly insulted by a brakeman employed on the train, the company is liable. Ib. 132. — The retention of the brakeman in the service of the company, after such mis- conduct is known to it, will render it liable to exemplaiy damages. Ib. 133. Liability of carrier. Wliere an em- ploy6 in the course of his employment, com- mits an assault and battery upon a passenger about to enter the cars without a ticket, it is a joint trespass, for which a joint or several ac- tion against either the principal or agent could be sustained. Priest v. Hudson Biver B. B. Co., 40 Howard's Pr. (N. Y.), 456. 1870. 134. — A railroad company is responsible for an assault and battery by the conductor of one of its trains upon a passenger in seizing or attempting to seize his property to enforce payment of his fare. Bamsden . — A brakeman employed by a rail- road company, assaulted the plaintiff by sti'ik- INJURIES TO PASSENGERS. 415 Expulsion of Passengers from the Cars. ing him, throwing him down, trampling on him, etc., as alleged in the complaint; lield, that the action against the company was for as- sault and battery. Priest v. Hudson River R. R. Co., 10 Abbott's Pr., N. S. (N. Y.), 60. 1870. 1.H6. — Wliere the plaintiflf, after purchas- ing a ticket as a passenger, applied to the ser- vant of the defendant who was charged with the duty of checking baggage, to have his baggage checked to his plage of destination, and by his importunate conduct and abusive language toward the servant, provoked a quar- rel, in which the sei-vant, to gratify his per- sonal resentment, struck the plaintifi; held, that the wrongful act of the servant in strik- ing the plaintiff cannot be regarded as author- ized by the master, nor as an act done in the execution of the service for which he was en- gaged by the master. And the fact that the blow was inflicted with a hatchet furnished by the master, to be used for a wholly differ- ent purpose in connection with the servant's business, is immaterial as respects the liabil- ity of the master. Little Miami R. R. Oo. ®. Wetmore, 19 Ohio St., 110. 1869. 137. — The acts of a servant beyond the scope of his employment, are not chargeable to the master. lb. 138. — A conductor, when sued for an as- sault and battery committed in ejecting a pas- senger from the cars, if he relies upon the rules and regulations of the company as a de- fense,, mjist plead them. Pier v. Finch, 29 Barbour (N. Y.), 170. 1859. VII. Expulsion of passbngees from THE CABS. (See preceding sub-division, ante, 414.) 139. Amount offeree to be used. If a conductor attempt to expel from the cars a person who, by law or the rules of the com- pany, has no right to ride thereon, he has no right to use more force or violence than is necessary to accomplish his jiurpose. State V. Ross, 2 Butcher (N. J.), 324. 1857. 140. — In an action against a railroad com- pany for blows struck upon the plaintiff by its servants in expelling him from a car from which they had a right to remove him, it is a question of fact for the jury whether the blows were struck in the exercise of justifiable force to eflect the expulsion and overcome force with which he was resisting it. Coleman v. New York and New Haven R. R. Co., 106 Mass., 160. 1870. 141. Assault and battery. On the trial of an action against a railroad company for cx- ■cessive violence used to expel the plaintiff from a car, if there is evidence tending to show that it consisted both in blows struck within the car, and in throwing him from tlie platform, the defendant has no ground of ex- ception to the refusal of a ruling which as- sumes that the evidence related only to the blows. lb. ' 142. — If assistants employed by the con- ductor of a railroad train to expel a person from the car, strike him unjustifiably in expel- ling him, the company is liable, although the blows were struck against the conductor's or- der, lb. 143. — An action of trespass for an assault and battery will lie against a corporation. Bro- kaw V. New Jersey R. R. Co., 3 Vroom, (N. J.)i 338. 1867. 144. — In such action, an individual may be joined as a co-defendant, with a corpora- tion, lb. 145. — It is no defense to an action against a railroad company for excessive violence of its servants in expelling the plaintiff from a car, which aggravated a disease known to him, but not to them, to which he was subject, that he gave them no caution in relation to it. Cole- man V. New York and New Hamen R. R. Co., 106 Mass., 160. 1870. 146. Colored persons. Where a colored woman was refused admittance to a ladies' car, solely on account of her color, and was direct- ed to take a seat in another car, which was set apart for, and mostly occupied by men, and the evidence justifying the conclusion that the brakeman, in excluding her from the ladies' car, did so in a very rude manner, and in the presence of several persons, it was lield, a ver- dict of $200 recovered by the woman against the company, was not excessive. Chicago and Northwestern R. R. Co. v. Williams, 55 111., 185. 1870. 147. — An act of congress, passed in 1868, granting certain privileges which it asked to a railroad company, enacted also that " no per- son shall be excluded from the cars on account of color." Held, that this meant that colored persons should travel in the same cars that 416 INJURIES TO PA8SENGEES. Expulsion of Passengers from the Cars. ■white ones did, and along with them in such cars ; and that the enactment was not satisfied by the company's providing cars assigned ex- clusively to people of color, though they were as good as those which they assigned exclus- ively for white persons, and in fact the very cars which were, at certain times, assigned ex- clusively to white persons. Bail/road Co. v. Brown, 17 Wallace, 445. 1873. 148. Drunken passengers. The plaintiff 's intestate was ejected by the defendant's con. ductor from a train of cars, and left, in the night time, in a state of intoxication, near the railroad track; several hours after, at a distance of a half mile from the station where he was displaced, he was killed by another train of cars. Held, that to entitle the plaintiif to recover, it should be made to ap- pear, to the satisfaction of the jury, that the killing was the natural or proximate result of the act of defendant's agent. Halep v. Chicago and, NortTiwestem B. R. Co.. 31 la., 15. 1866. 149. — The attention of the jury should have been called to the distance between the place where the deceased was left, and that where he was killed; the time which elapsed between his removal from the cars and his death, as presenting a material cxuestion for their determination ; and whether his faculties had so far recovered as to enable him to un- derstand the danger of being on the track. lb. 150. Evidence. How far the declarations of the conductor, made at the time of ejecting a passenger, may be considered in evidence upon the trial of an action against the com- pany for such act— considered. Hamilton v. New York Central B. B. Co., 51 N.T., 100. 1873. 151. — Where a plaintiflF has brought suit for damages sustained from having been pushed off one of defendant's cars while in motion, by a negro, who emerged from the car, and stated that he was in charge of the same ; this declaration, unless brought to the knowledge of the defendant or its agents, who had charge of the train at the time, is insufB- cient to make the defendant liable for the acts of the negro as its servant. Lindsay v. Central B. B. Co., 48 Ga., 447. 1873. 152. Exemplary damages. A corporation, by the malicious acts of its agents within the scope of their employment, may render itself liable to punitive damages; but this doctrine beins capable of great abuse, the giving of It in a charge to a juiy in a case clearly not war- ranting its application, tends to mislead them; and where, in such case, the damages found are obviously exorbitant, a new trial should be granted. Pittshurgh, Fort Wayne and Chi- cago B. B. Co. V. Shisser, 10 Ohio St., 157. 1869. 153. — In an action against a railroad company for the misconduct of the conductcir in expelling the plaintiff from the cars before he reaches the place to whicli he had pur- chased a ticket, the measure of damages is such sum as would compensate him for his actual loss by being put off the cars, and not vindictive damages or smart money ; unless it appear that the conduct of the conductor was malicious, and his act authorized or sanc- tioned by the company. li. 154. — Unless the malice or wantonness of the agent be brought home directly to the prin- cipal, such action will be deemed an action ex contractu, although bi ought nominally in tort. lb. 155. — Plaintiff paid his fare upon one of defendant's cars. The car stopping for son e reason, he was transferred to another car. Upon his refusal to repay his fare he was ex- pelled by the conductor, who hone.stly sup- posed that the fare had not been paid. No unnecessary force was used, and plaintiff sus- tained no material injury. Held, that the act of defendant's sei-vant, although in good faith, yet being unlawful, rendered it liable for com- pensatory damages, including compensation for loss of time, the fare upon another car, and a suitable recompense for the injury done to plaintiff's feelings; but that exemplary damages were not proper. Hamilton v. Third Avenue B. B. Co., 53 N. Y., 25. 1873. 156. — It is erroneous to instruct a jur)', that in a proper case for exemplary damages, they should know that, in case the party re- cover less than one hundred dollars, he cannot recover his cost in the action. C, C. & C. B. R. Go. V. Bartram, 11 Ohio St., 457. 1860. 157. Freight trains. A railroad company which instructs its conductor not to allow any person to ride in any freight car is responai- ble for the act of one of its conductors in improperly putting a person off from a freight car while the train is in motion. Holmes v. Wakefield, 12 Allen (Mass.), 580. 1866. 158. — Where a railroad company regu- larly carries passengers by a freight train, it INJURIES TO PASSENGERS. 417 Expulsion of Passengers from the Cars. thereby hecomes a common carrier of pas- sengers by such freight train, and has no more right to expel a passenger therefrom without cause than from a regular passenger train. Chicago and AMon R. B. Go. o. Flagg, 43 111., 364. 1867. 159. Liability of the employer. In an ac- tion brought against a railroad company for trespass committed by a servant of the com- pany, the complaint alleged that the plaintiff had paid his fare and was seated in the car, when he was assaulted and beaten and ejected from the car, by an employe of the company ; that the duty and employment of said em- ploye was to provide seats for passengers and exercise care for their comfort, and that he then was in the exercise of his duties at the time of the commission of the assault. Held, that the expulsion of the plaintiff from the car, where he lawfully was, if done without unnecessary violence, would give a right of action against the company, and as this state of facts might have been proved under the allegations of the complaint, a demurrer to the complaint was correctly overruled. Evans- mile and Ora^ordsviUe B. B. Co. o. Baum, 26 Ind., 70. 1860. 160. -^ If the act of the servant was neces- sary to accomplish the purpose of his employ- ment, and was intended for that purpose, then it was implied in the employment, and the master is liable, though the servant may have acted willfully and maliciously. Tb. 161. — For a willful and malicious trespass of an employs, not commanded or ratified by the employer, but perpetrated to gratify the private malice of the servant, under mere color of discharging the duty which he has undertaken for his employer, no action will lie against such employer. lb. 162. — In putting a trespasser off of a train, it is not necessary to consult his personal con- venience, but he should not be wantonly ex- posed to peril. Qreat Western B B. Co. v. Miller, 19 Mich., 305. 1869. 163. — A conductor of a train is in a posi- tion similar to that of the master of a ship ; and in expelling a passenger from a train he will be regarded as acting in the line of his employment. But it does not follow that the responsibility of the company is the same as the conductors. Where the agent acts wantonly or maliciously, the employer 27 does not stand in the same footing as the agent. lb. 1 64. — Where a conductor is instructed by his employer that he must put off from Ihe cars, with as little force as may be necessary, any passenger who does not pay his fare or produce a transfer ticket, the comiiany is lia- ble to a passenger put off by the conductor, in case of nonpayment, for any abuse of author- ity, and for injuries resulting from any error of judgment or mistake of fact by the con- ductor, as well as for those which arise from negligence or reckless -performance of his duty. Samilton v. Third Avenue B. B. Co., 13 Abbott's Pr., N. S. (N. Y.), 318, 1872; Same v. Same, 3 Jones and Spencer (N, Y.), 118, 1872. 165. — Where the conductor has been in- structed by the company to demand of every passenger a certain fare, and to remove from the car all passengers refusing to pay the same; if the company has not the right to de- ' mand the required fare, it is liable for any force used upon the person of a passenger in an attempt to execute such order; if it has a right to the fare, and the conductor, acting in the performance of his duty, exceeds the de- gree of force necessary and proper to accom- plish the purpose of removal, and injury re- sults, the company is also liable. Jackson v. Second Avenue B. B. Co., 47 N. Y., 274. 1872. 166. — In an action for damages for inju- ries sustained by a forcible ejection from a car while in motion, proof that the conductor ordered the plaintiff to get off, and accom- panied such order with such a show or dem- onstration of force sufficient to impress him with the belief that it would be employed, and thereby compelling him to jump from the car, is equivalent to proof of the employment of actual force. £line v. Central Pacific B. B. Co., 39 Cal., 587. 1870. 167. Mistake. A person who has, by mis- take, got on a passenger train, other than the one he intended to take passage upon, is, nev- ertheless, a passenger upon the train he is on, and the relation of passenger and carrier ex- ists between him and the company. Colum- bus, etc., B. B. Co. V. Powell, 40 Ind., 37. 1872. 168. — The company ma}', in such a case, charge him for the distance it carries hira. and is not bound to stop to allow him to get off, except at a regular station or stopping place. lb. 418 IXJURIE8 TO PASSENGERS. Expulsion of Passengers from the Cars. 169. — Where a conductor, under a mis- take of facts, or of judgment, ejected a person from the car in which he was a passenger, which act was not justified by the passenger's misconduct, it was hdd, that the company was liable. Higgijis v. WaienUet Turnpike and iJ. JJ. (7o., 46 N. Y., 23. 1871. 170. — In an action against a railroad com- pany by a passenger to recover damages for injuries sustained by him, while traveling over its road, it is not competent for the de- fendant to exonerate itself, la whole or in part, by proving mistakes committed by its own agents. Baltimore and Ohio B. B. Co. u. Blocker, 27 Md., 277. 1867. 171. Negligence. The negligence of a conductor of a train of cars, in putting or assisting a person off the cars, is the negli- gence of the corporation owning or operating the road. Gohmibug, etc., B. B. Go. v. Powell, 40Ind., 37. 1872. 172. — If the train is stopped at any other point than a station, or the passenger is put off without stopping, reasonable and proper diligence must be used in patting him o:^ and if Informed of dimness of vision and fee- ble condition of the passenger, such care must be used as his case requires, to prevent injury. lb. 17.3. — Whether the action of the conduct- or in putting a passenger off the train while it was moving slowly, amounted to negligence is a question for the jury. Meyer v. Pacific B, B. Co., 40 Mo., 151. 1867. 174. — -To eject a passenger from a rail- road car while in motion, is so dangerous an act that it may justify as much resistance on the part of the passenger as to a direct attempt to take his life. Sanford r>. Eighth Azenue R. B. Co., 28 N. T., 343, 1861 ; reversing Same v. Same, 7 Bosworth (N. T.), 122. 1860. 175. — Where the passenger is liable to expulsion in a proper manner, for refusing to pay fare, his resistance to the attempt to expel him without stopping the car, is not concur- rent negligence on his part. lb. 176, — Where, in such a case, the principal is responsible for the act of his agent, he is, it seems, also responsible for any circum- stances of aggravation which attended the wrong. lb. 177. Place of expulsion. Under the spe- cial charter of the Jeffersonville R R. Co., which is silent npon the subject, if there is lawful cause for the expulsion of a passenger from the cars, he may be expelled between stations. Jeffemonville B. B. Go. v. Rogers, 28 Ind., 1. 1867. 178. — Although a person who is ejected from a car elsewhere than at a station, for non- payment of fare, sustains an injury for which he may bring a.i action, yet, where there is no improper conduct on the part of the agents of the company, nor any peculiar circum- stances to justify it, a thousand dollars will be held to be excessive damages for the act. Chi- cago, Burlington and QuincyB. B. Co. v. Paries, 18 111., 460. 1857. 179. — Where a passenger refuses to pay his fare, and informs the conductor that he will get off if he will stop the train, and when it stops, refuses to do so; held, that this does not authorize the conductor to forcibly expel him at a place other than a regular station. Chicago and NortJucesiem B. R. Co. d. Peacock, 48 111., 2.53. 1868. 180. — A passenger for refusal, to pay fare, may be ejected from the cars at any regular station, not elsewhere. Chicago, Burlington and Quincy B. B. Co. d. Parks, 18 111., 460, 1857 ; Chicago and AUon R. B. Co. v. Boberts, 40 ib., 503, 1866; see also Illinois Central B.B. Co. v. Sutton, 43 ib., 438, 1867; Chicago and Northwestern B. B. Co. v. Peacock, 48 ib., 253, 1868; Illinois Central B. B. Go. v. Sutton, 53 ib., 398. 1870. 181. Pleadings. Where a party is ejected from a car and brings an action of trespass, and alleges consequential damages caused by detention, the pleading will be held bad on demurrer. The action of trespass can only be brought for a direct injury. Bamum v. Balti- more a?id Ohio R. B. Co., 5 W.Ya.., 10. 1871. 182. — Where a passenger sues for dam- ages solely for his removal from a railway train, and not for the manner in which it is done, if a legal justification for his removal is shown, it is immaterial whether unneces- sary force was used by the conductor in the removal. Johnson n. Concm-d R. R. Co., 46 N. H., 213. 1865. 183. Refusal to pay fare. A railroad com- pany is liable for injuries resulting from the negligence, violence or carelessness of its con- ductors in removing from the cars a passen- ger who refused to pay his fare or produce his INJUEIES TO PASSENGERS. 410 Expulsion of Passengers from the Cars. ticket. Pennsylvania R. B. Go. o. Vandiver, 43 Penn. St., 365. 1863. 184. — Where such injury resulted in the death of the passenger, and there was evidence on the trial that the conductor forcibly re- moved the hands of the deceased from the car railing so that he fell on the track of the road, it was not error In the court below to re- fuse to instruct the jury " that under all the circumstances of the case, their verdict should be for the defendant." lb. 185. — A passenger who, for refusal to pay fare, has befen ejected from a car, at a place where there is no station, cannot, by climbing upon the train again before it starts, and ten- dering the fare, obtain a right to be carried by it. O'Brien v. Boston and Worcester B. B. Co., 15 Gray (Mass.;, 20. 1860. 186. — A regulation of a railroad company, that conductors shall eject passengers refusing to pay their fare, and not afterwards accept their fare if oflEered after the cars have stopped, is within tlie authority conferred upon such corporation by the Bev St., ch. 39, § 83. lb. 187. Right of expulsion. A passenger maj' be removed from a train for improper conduct, provided the removal is not made in an unreasonable manner, or by the employ- ment of unnecessary force. Marquette v. Chicago and Northwestern B. B. Co., 33 la., 562. 1871. 188. — The removal of a passenger from one car to another while the train is moving at the rate of twenty-flve miles an hour, is not negligent or wrongful per se, but the question is for the jury under all the facts of the case. lb. 189. — So, too, the question whether un- necessary force was used, or used in an un- reasonable manner, is a question of fact for the jury. lb. 190. — A railway company may expel a passenger from its cars at a place other than a regular stati()n, for the violation of any reasonable rule, other than that of nonpay- ment of fare. Illinois Central R. B. Co. v. Whittemore, 43 111., 430. 1867. 191. — The statute requiring conductors to remove from tlie cars all persons who refuse to pay the established fares, was intended to apply to all persons properly acting as con- ductors, without regard to the formal regular- ity of their appointment. Silliard ii. Gool'd, 34, N. H., 230. 1856. 192. — The right of the managers of a rail- road to remove from their cars a passenger who refuses to pay his fare, is controlled by the provisions of ch. 26, § 53, of the compiled statutes. They can only do so at one of their usual stopping places. Stephen v. Smith, 29 Vt., 160. 1857. 193. Rules and regulations. The regula- tions of passenger carriers, in relation to the conduct of passengers, are not by-laws of the corporation, but regulations whose va- lidity depends not upon their lawfulness, but upon their being reasonable. State v. Oeerton, 4 Zabriskie (N. J.), 434. 1854. 194. Street railways. One who, having paid to the conductor of one car the full fare to his place of destination, and upon the car stopping short of such destination, gets off and enters another car of the same company, he is entitled to ride in the latter car without payment of further fare, unless he has neg- lected to obtain a transfer ticket, if so required by the rules of the company. Samilton v. Third Avenue B. B. Co., 3 Jones and Spencer (N. Y.), 118, 1873; Same v. Same, 13 Abbott's Pr., N. S. (N. Y.), 318, 1873. 195. Tender of fare. Whether a tender of legal tender notes before entering the train would be sufficient, wherp payment was re- quired to be made in coin, is not decided, but after the passenger enters the train, and the contract of the carrier to transport him is in process of pevformance, it is no longer an open question, and the company is bound to accept legal tender notes. Tarbell v. Central Paeifia B. B. Co., 34 Cal., 616. 1868. 196. — An absolute strict tender is not neces- sary, but a willingness and readiness to pay the legal fare is sufficient. lb. 197. — Where the plaintiff was ejected from the train at a point twelve miles from his place of destination, and five miles from the place of departure, it was held, that a verdict of .?500 was disproportionate, and a new trial was or- dered, unless the plaintiff should accept a judgment of $100. lb. 198. — An offer to pay the fare to an em- ployg on the train unauthorized to receive the same, is not an offer to the company, and in such case, does not entitle the person to a place on a freight train, as a passenger. Olevela/nd, Columbus and Cincinnati B. B. Co. v. Bartram, 11 Ohio St., 457. 1860. 420 INJURIES TO PASSENGERS. ExpnlsioD of Passengera from the Cars. 199. Tickets — commntation tickets. The plaintiff purchased of the defendant a commu- tation ticket, entitling him to ride in its cars within certain limits, for a certain length of time, upon certain conditions. One of the conditions was, that the ticket should be shown to the conductor on every passage, and if not shown when called for, that the regu- lar fare should be paid. Upon one of his pas- sages, the plaintiff had by mistake left his ticket at home, and was unable to show it when called for. Held, I. That the defendant had a right to demand of him the ordinary fare for the passage. II. That the conductor, on his refusal to pay the fare demanded, had a right under the rules of the company in such cases to eject him from the cars at the next station. Down* «. 2feu> York and New Saven B. R. Co., 36 Conn., 287. 1869. 200. — The plaintiff purchased of the de- fendant a commutation ticket, which gave him the right to ride in the defendant's cars be- tween the city of New York and the town of W., during the ensuing year, upon certain con- ditions. One of the conditions was, that the ticket should be shown to conductors when requested, or when required by the rales of the company. One of the company's rules re- quired commuters to show their tickets to con- ductors when required, in the same manner as other pasjBengers. At the time of purchasing the ticket, the plaintiff signed a receipt con- taining similar conditions. Dmang the year, while the plaintiff was riding in the defend- ant's cars between New York and W., he was requested by the conductor to show his ticket. The plaintiff had his ticket upon his person, but was unable to find it at the time, and so informed the conductor. The conductor knew that the plaintiff was a commuter, and that the time covered by his ticket had not expired, but demanded of the plaintiff his fare for the trip, and on his refusal to pay it, expelled him from the train. Held, that the plaintiff was rot bound to produce his ticket immediately when requested, but was entitled to a reason- able time to find it, and had the right to ride as long as there was any reasonable expecta- tion of finding it during the trip ; that under the circumstances, the production of his ticket by the plaintiff was the merest formality, and that, in the absence of an express stipulation in the contract that the plaintiff should pay the fare of the passage unless the ticket should be produced, his failure to produce the ticket was not such a breach of the contract as to justify the defendant in rescinding it, and treating the plaintiff as a trespasser on the train; and that if the defendant had aright to eject the plaintiff from the train, that right could only be exercised at a regular station on the road ; that any rule or regulation of the de- fendant which required or allowed such an act to be done between stations to a person in the condition of the plaintiff, was unreasonable and void. Maples v. New Torhand New Haven B. B. Co., 38 Conn., 557. 1871. 201. — express trains. The conductor of an express train may lawfully stop the train and expel a passenger who holds a ticket to a station between the place where fare is de- manded and the first station at which the train, by the published time tables, is to stop, if such passenger refuses to pay the fare which, in ad- dition to the sum paid for his ticket, would entitle him to ride to such latter station. And this is so, notwithstanding the train may stop at the station for which the passenger has a ticket, if, at the time the fare is demanded, facts do not exist which call for its stoppage there. Fink V. Albany and Suagtiehanna B. B. Oo^ 4 Lansing (N. Y.), 147. 1871. 202. — extra fare. When a passenger, be- fore the departure of the train, sought to buy a ticket, but the office was closed, and then en- tered the train, and offered to pay his fare to the conductor, which was refused, and he was expelled from the train at a place other than a regular station; held, that the company was liable for the damages. IlUnoiii Central B. B. Co. r. Sutton, 43, 111., 438. 1867. 203. — A disci-imination of five cents in fa- vor of those who purchase their tickets before entering the cars, over those who pay after taking their seats, is a reasonable regulation, and a passenger who, having neglected to pro- cure a ticket, shall refuse to pay the additional five cents, may lawfully be ejected from the cars. Hilliard r. ffoold, 34 N. H., 280, 1856; Jefenonville B. B. Co. ■». Boger$, 28 Ind., 1. 1867. 204. — Such a regulation, however, carries with it an obligation on the part of the com- pany to afford an opportunity to passengers to purchase tickets, and unless such an opportuni- ty is given, the discrimination cannot be made. Jeff'ersom>ille B.BOo. ■». Sogers, 28 Ind., 1. 1867. INJURIES TO PASSENGERS. 421 Expulsion of Passengers from the Cars. 205. — Where a passenger who has been denied an opportunity to purchase a ticket is expelled from the cars because of liis refusal to pay an increased rate of fare, the difference between the two rates of fare is not the meas ure of his damages. The act being wrongful, the company is responsible for its conse- quences. Tb. 206. — He may be entitled to exemplary damages by reason of the time place, and circumstances under which he has been ex- pelled from the cars. Same v. Same, 38 ib., 116. 1871. 207. — Where a company has adopted a rule to charge ten cents extra for passengers who do not procure tickets before entering the cars, a conductor will not be warranted in taking the ordinary fare from a passenger and then ejecting him from the train for a refusal to pay the extra ten cents, and without returning the fare already received. Su Lau- ■' rens o. St. Paul and Pacific if. S. Co., 15 Minn., 49. 1870. 208. — Where the published rates of fare from N. to N. L. were fifty cents, but the same regulation gave notice that if a ticket was not procured before entering the cars the rates would be fifty-five cents, and A., without a ticket, took a seat in one of the cars at N., and when called upon by the conductor after the cars left for N. L., offered to pay fifty cents, and refused to pay any more, where- upon the conductor ejected him from the cars. Upon the trial of an action of trespass, brought to recover damages for the injury sustained by A. in such removal, he claimed to have proved that he went to defendant's ticket ofBce where tickets were usually sold, at a reasonable time before the train left for N. L., to procure a ticket; that said office was closed and there was no one there from whom he could procure a ticket then or afterward till the departure of the cars, and that he in- formed the conductor of these facts at the time that his fare was demanded ; and it was admitted that said regulation of the defend- ant was a reasonable one. Held: I. That as a common carrier, the defendant was under no obligation to furnish tickets or carry passen- gers from N. to N. L. for less than fifty-five cents each. II. That plaintiff's claim to such passage for fifty cents rested entirely on the assumed engagement of the defendant to fur- nish tickets, or to carry passengers between such points at fifty cents each. III. That such regulation was not a contract but a mere proposal, which might be withdrawn at pleas- ure. IV. That the closing of the ticket office was a withdrawal of such proposal. V. That such proposal being withdrawn, defendant was bound to carry plaintiflt for fifty-five cents, but not otherwise. VI. That upon plaintiff's refusal to pay such sum, the , con- ductor had a right to remove him from the cars. Crocker v. New Lor>,Aon, WiUimantic and Palmer U. R. Co., 34 Conn., 249. 1855. 209. — Where, on such ti-ial, the plaintiff claimed that, for the purpose of expelling plaintiff from said car, the conductor called to his assistance, servants of the defendant, and in the effort to remove him, a struggle ensued, before the determination of which, one of said servants intentionally kicked him in the face, and the defendant claimed that such kick, if given, was without the knowl- edge, and without any authority from the conductor or any other agent of the corpora^ tion, and the court charged the jury, that upon the facts as claimed by the plaintiff, the de- fendant was liable in that action ; it was held that this was a misdirection. Ib. 210. — Where the court instructed the jury that, if the plaintiff was wrongfully removed from said car, he had a right to reenter it, and if in his endeavor to do so, he received the injury complained of, he was entitled to re- cover, unless tliere was, on his part, a want of reasonable care, which produced, or essen- tially contributed to such injury; but if such removal was lawful, or if, in his attempting to reenter it, there was, on the part of the plaintiff, a want of reasonable care or pru- dence, which produced or contributed to such injury, he was not entitled to recover, it was held that such instruction was correct. Ib. 211. — mistake of employt^s. A passenger gave to the conductor his ticket from C. to N., but the conductor gave him no check in re- turn ; before reaching N., there was a change of conductors, and the new conductor expelled the passenger for want of a ticket or check. Held, that the railroad company was liable in damages to the passenger, and that the su- preme court would not disturb a verdict for $500 in such a case, on the ground that the damages were excessive. Pittsburgh, Cinein- 422 INJURIES TO PASSENGERS. Expulsion of Passengers from the Cars. nati arid St. Louit R. R. Co. v. Hennigli, 39 Incl., 509. 1872. 212. — pass. Where a passenger oflfered a ■worthless piece of paper, claiming it to be a pass, and refused to pay fare or leave the train; the servants of the company had a right to remove him from the train at a regular station, and to use the necessary force for the purpose. Chicago, Rock Island and ^Pacific R. R. Co. v. Herring, 57 111., 59. 187o! 213. — passenger stopping over. Plaintiff was a passenger on defendant's cars, under a contract to carry him from Charlotte, N. C, to Augusta, Ga., with the privilege of stopping at Columbia. His ticket was a through ticket from New York to Savannah, with coupons for the different roads — for defendant's road there being two, one from Charlotte to Colum- bia, and one from Columbia to Augusta. On the passage from Charlotte to Columbia, W., the conductor on the train detached both cou- pons, and gave plaintiff a conductor's check, which by the rules of the company and the general usage of railways, was good only for that trip. Plaintiff stopped at Columbia, and the next day took the train for Augusta, in charge of J., another conductor. On this train his ticket was again demanded, and on his exhibiting the conductor's check, and his ticket without the coupon to Augusta, was in- formed by J. that they did not answer, and that he must either pay the fare to Augusta or leave the train. He failed to pay, and was ejected from the train. Held, that the act of J. in ejecting plaintiff from the train, was wrongful, and that defendant was liable in damages therefor. Pahner v. Charlotte, etc., R. R. Co., 3 So. Car., N. S., 580. 1872. 214. — Where a passenger buj-s a through ticket, which the conductor takes up and de- livers a check marked, " good for this day and train only," the passenger has no right to get off at an intermediate station, and travel to his place of destination by a subsequent train without payment of fare. And upon refusal to pay, he may be expelled at any point. The conductor is not bound to expel him at a station. MeOlure «. Philadelphia, Wilmington, etc., R. R. Co. , 34 Md., 532. 1871. 215. — Where a passenger purchases a ticket and enters a railroad train, and after the train starts upon the road, he gives up his ticket to the conductor, he cannot, at any in- termediate station, by virtue of his subsisting contract, leave such train while in the reason- able performance of the contract, and claim a seat upon another train. Cleveland, Cohimiui and GineinrMti R. R. Co. v. Bartram, 11 Ohio St., 457. 1860. 216. — punched ticket. Where a passen- ger attempted to travel upon a train, offering a ticket that was void by reason of having a hole punched in it, and was ejected from the cars three or four miles from a station, it was held, that the company had no right to eject him except at a regular station, but that $1,000 damages for such act was excessive, and a verdict for that amount was set aside. Terre Haute, Alton and 8t. Louis R. R. Co. v. Vanatta, 21 III., 188, 1859; see Chicago and Northwestern R. R. Co. v. Peacock, 48 ib., 253, 1868. 217. — A railway company owned and op- erated two tracks from B. to R., one of which was longer than the other, and the fare upon the longer route was forty-five cents more thau upon the other. A passenger, having pur- chased a ticket for the short route, insisted upon riding upon the long route without paj'- ing the extra fare ; the conductor punched his ticket, but i3ut him off at the next station. Held, that the ticket was not destroyed by being punched, and that the conductor had a right to expel the passenger upon his refusal to pay the fare. Adwin v. New York Central, etc., R. R. Co., 60 Barbour (N. Y.;, 590. 1871. 218. — rales and regnlatlons. A regula- tion made by a railroad company, requiring passengers to exhibit their tickets whenever requested by the conductor, and directing the expulsion from its cars of those who should refuse to do so, is a reasonable and proper one. Hibbard d. New York and Erie R. R. Co., 15 N. Y.,455. 1857. 219. — It seems, that a railroad company has the right to make a resolution requiring all passengers to purchase tickets before tak- ing passage in a caboose car attached to a freight train, and to enforce this rule by eject ing all persons not having tickets. But if this ^ould be so improperly done as to en- danger life or person, as while the cars are in motion, the company would be liable. Law V. Illinois Central R. R. Co., 32 la., 534. 1871. 220. — Where a passenger purchases a inJubies to passengers. 423 Injuries causing Death. railway ticliet for passage to a station on a rail- way line, in the absence of express stipulations he becomes entitled to be carried over the rail- i-oad to that station, in a reasonable time, and agreeably to reasonable rules and regulations of the corporation. Johnson ®. Concord B. B. Co., 46 N. H., 213. 1865. 221. — A rule established by the C. R.R. - Co., a carrier of passengers between C. and N., in New Hampshire, that tickets over Its road road should be dated on the day of their sale, and should only entitle the holder to passage on that day, provided, that joint tickets should be good for such further time as might be necessary to enable the holders, by the regula- tions of the road, to reach the station to which such tickets were sold, is not unreasoliable. lb. 222. — Where the plaintiflf, nearly a year after the establishment of this rule, purchased a ticket from Chicago to Boston by way of that railway, voluntarily stopped nearly four months at M., an intermediate statibn on the C. railroad: Md, that he was not afterwards entitled to a passage on such ticket from M. to Boston; also that it was not necessary that notice of this rule should be brought home to plaintifif, even if, prior to its establishment, a usage known to plaintiff had existed to allow such passengers to stop over at intermediate stations ; a passenger should make inquiry as to the regulations of tlie company. 76. 223. — Evidence showing a violation of this rule by the conductors of the defendant's trains is incompetent, unless these instances are brought home to the knowlege of the gov- erning officers of the corporation. lb. 224. Trespassers. If a boy sixteen years of age only, leaps from a railway car while in motion, in obedience to the command of the conductor, accompanied by a show of force, the court cannot say judicially that the act was voluntary, but should leave it for the jury to say whether the act was not the result of compulsion. Kline ». Central Pacific R. B., Co., 37 Cal., 400. 1869. 225. — Where a person who has got upon a train in order to ride without payment of fare is put off, he must be ejected prudently and in such a manner as not to endanger his personal safety. If such prudence is. not ex- ercised, the company cannot exonerate itself on the ground that the wrong was mutual. lb. 226. — If, in such case, the conductor sees the person attempting to get on the train, he may use force to prevent him, and no liability will result from the injury, but if the person is once fairly in the car, care must be exercised in his removal. lb. 227. — The rule that the plaintiff cannot re- cover where both are in the wrong, is confined to cases where the plaintiff's wrong or negli- gence has immediately or proximately con- tributed to the result. lb. 228. — It is within the scope of the authority of a conductor to remove persons from the cars who are wrongfully there, but if he does not exercise care and caution, or acts maliciously, and injury results, the company is liable. lb. iflll. IXJUEIES CAUSING DEATH. (See Bubdivision IX, post 425, for damages in cases of death of passengers; see also Ibtjuries to Pek- BOKS Genehallt, for a number of cases in wMcli the CLUestion is examined.) 229. Charter. An action for damages for causing the death of a person will not lie since the passage of the acts of the legislature of 1847 and 1849, giving a right of action to the next of kin ; in the absence of any clause in the defendant's charter subjecting the corpo- ration to the operation of those acts, as a part of the condition of its being, the defendant be- ing engaged in business in a foreign country. Crowley V. Panama B. B. Co., 80 Barbour (N. Y.), 99. 1859. 230. Child. Only the persons mentioned in the statute can recover for the damages re- sulting from the death of a person occasioned by negligence or violence. Coakley v. North Pennsylvania B. B. Co., 5 Penn. Law Jour. Rep. 444. 1858. 231. — In an action by the father for the death of his child, he should allege his cause of action as derived from the deceased. Act March 18, 1855. Earhart v. New Orleans and CarrolltonB. B. Co., 17 La. An., 248. 1865. 232. Damages. A recovery may be had in case of death caused by negligence without any proof of actual damages to the next of kin. Keller v. Neio YorTc Central B. B. Co., 3 Abbott's Ct. of Ap. Dec. (N. Y.), 480. 1861 ; see also Dickens v. Same, 1 ib., 504. 1864. 233. — Under the statute of Illinois, provid- ing for an action in favor of the widow and next of kin, in case of the death of a person 42J- INJURIES TO PASSENGERS. Injuries causing Death. from the wrongful act, neglect, or default of another, it is not necessary that the ■widow and next of kin should have had a legal claim for support on the deceased. Mailroad Co. v. Bar- ron, 5 Wallace, 90, 1866; Barron v. IlUnoU Central B. B. Co., 1 Bissell (U. 8. C. C), 413, 1863 ; Samie v. Same, ib., 453, 1864. 234. — The part of the act of 1853, relating to railroads, which fixes the minimum of dam- ages to be recovered for the loss of life of a passenger, by reason of negligence in the management of the road, is not penal but rem- edial. Lcmvphear «. Biickingham, 33 Conn., 237. 1866. 235. — Therefore, where an action was brought by an administrator against the trust- ees of a railroad, for the loss of the life of the intestate by reason of negligence, the superior court, on a heaving in damages, after demur- rer overruled, found as a fact that the defend- ants were not guilty of any negligence, it was held, nevertheless, that the plaintiff was enti- tled to recover the minimum sum of $1,000 fixed by the statute. Ib. 236. — In an action under this statute heard in damages after the overruling of a demur- rer, it was held, that the defendant might show the want of ordinary care in the de- ceased and the exercise of due care on its own part, to reduce the damages to the lowest sum fixed by the statute. Carey ». Bay, 36 ib, 153. 1869. 237. — Under this statute, the ground of the damages was not the loss to such relatives by the death, but the injury to the deceased. Goodsell v. Hartford and New SoAien B. B. Co., 33 Conn., 51. 1865. 288. — This act, whether viewed as giving a new action, or as limiting or regulating an old one, takes away the right of an executor or administrator to sue for the injuries to his intestate, or for the injuries and death, for the ienejU of the estate generally. Andrews n.Ha/rt- ford and Nmc Haven B. B. Co., 34 Conn., 57. 1867. 239. — As to pecuniary injuries sustained by the next of kin in such cases, the statute has set no bounds to the sources thereof; and they may be such as arise from the loss of per- sonal care, intellectual culture^ or moral train- ing, which would have been received had the deceased lived. Mclntyre v. New Tork Cen- tral B. B. Co., 37 N. Y., 287, 1867; Same v. Same, 35 Howard's Pr. (N. Y.), 36, 1867; Samt V. Same, 47 Barbour (N. Y.), 515. 1867. 240. Husband and wife. The husband cannot, under R. 8. 293, bring an action for the death of his wife. Oreen v. Hudson Bwer B. B. Co., 2 Abbott's Ct. of Ap. Dec. (N. Y.), 377. 1866. 241. — The act oflSSS (Rev. of 1866, p. 202), provides that where the life of a passen- ger is lost by reason of the negligence of a railroad company, the company shall be lia- ble to pay damages, not over $5,000 nor less than $1,000, to the use of the executor or ad- ministrator, to be recovered by him in an ac- tion on the statute, for the benefit of the hus- band or widow and heirs of the deceased per- son ;' if children, one-half to them, and if no children, the whole to the husband or widow, and if no husband or widow, to the heirs-at-law. A husband and wife, having no children, were injured at the same time by the negligence of a railroad company, and both died, but the the husband died a little befoi-e the wife. Hdd, that the right to the damages vested absolute- ly in the wife, and on her death, went to her heirs and not the heirs of the husband. Wai- do V. Goodsell, 33 Conn., 433. 1866. 242. — Under existing provisions of the statutes of New York, a husband cannot main- tain an action for the instantaneous killing of his wife through the negligence of another. Cfreen v. Hudson Biver B. B. Co., 2 Keyes (N. Y.), 294, 1866 ; /Same v. Same, 28 Barbour (N. Y.;, 9, 1858; Same v. Same, 31 ib., 260, 1859; and Same n. Same, 33 ib., 25, 1860; see Same v. Sam, 16 Howard's Pr. (N. Y.), 230, 1858. 243. Jurisdiction. In a suit for damages for the killing of a person by a railroad, under the act of 1850, the action should be brought in the county where the principal office of the corporation is kept. Southwestern B. B- Co. v Paulk, 24 Ga., 356. 1858. 244. — The statutes of New York, passed in 1847 and 1849, giving an action for damages to the families of persons killed by the wrong- ful act, neglect or default of others, have no extraterritorial application, and do not author- ize a suit there tor an act done out of the state. Vanderwerken v. New Tork and Nm Ha/ven B. B. Co., 6 Abbott's Pr. (N. Y.), 239, 1857; Van- deventer ». Same, 27 Barbour (N. Y.), 244, 1857 ; but see in conflict with this. Beach v. Bay State Co., ib., 248, 1838. INJURIES TO PASSENGEllS. 425 Damages. 245. — The statute, giving a cause of action to tlxe representatives of a deceased person in case of the death of such person from negli- gence, -will not apply to cases where the act causing death occurred beyond the limits of the state. Whitford v. Panama B. B. Co., 3 Bosworth (N. Y.), 67. 1858. ■ 246. — The statute giving an action for dam- ages resulting from a death, caused by culpable negligence, does not apply where the injury is not committed in this state. Whitford v. Pan- ama B. B. Co., 23 N. Y., 465. 1861. 247. — It does ■ not vary the case that the negligence was that of a corporation chartered by this state for the purpose of operating a railroad in a foreign country, and which made the contract in this state for the conveyance of the injured party over such road. lb. 248. Non residence. Section 784, 3 G. & H., 330, was intended to provide a remedy, not only for the resident citizens of Indiana, but for the citizens of the several states while pass- ing through or residing within this state. Sec- tion 2, Article 4, of the Constitution of the United States, would secure the benefit of this section to citizens of other slates. Jefersonmlle, etc., B. B. Oo. V. Hendricks, 41 Ind., 48. 1872. 249. — The statute (Gen. Statutes, tit. 7, § 544, gives to the relatives of a passenger killed by the negligence of a railroad company, a right to recover damages against the company by a suit.instituted by an administrator. Where a person so killed in this state was domiciled in another state, and had no property in this state, it was held, that his administrator ap- pointed in the state where he was domiciled was entitled as a matter of right to an ancil- lary administration in this state, for the pur- pose of prosecuting the suit here, and that it was enough for the court of probate in grant- ing such administration, to be satisfied that there was an apparent claim, and a hona fide intention to pursue it. Hartford and New Ha- mn B. B. Oo. ■». And/rewa, 86 Conn., 213. 1869. 250. — Where an injury occurs in Alabama, causing death, the action must be governed by the laws of that state. A recovery in such case cannot be had upon the statutes of Tennessee. Nashville and Chattanooga B. B. Oo. v. Eakin, 6 Coldwell (Tenn.), 582. 1869. 251. Pleading. Under the statute of Illi- nois of Feb. 12, 1853, it is not necessary that the declaration should aver the manner in which the next of kin have sustained pecuni- ary loss. Barron v. Illinois Central B. B. Co., 1 Bissell (U. S. C. C), 412. 1863. 262. Settlement. Where it is shown that the defendant settled with the deceased, in his lifetime, and paid him the amount of his claim on account of the injury, this will bar the ac- tion of his administrator. Dibble v. New York and Erie B. B. Co., 35 Barbour (N. Y,), 183 1857. 253. — Therefore, by a settlement with the person injured, and payment before death en- sues, all the consequences of the injury, past and future, are included. lb. 254. Statute. Under § 83 of the act relat- ing to civil actions (Rev. Stat. tit. 1, ch. 6, § 83), an action may be brought by an adminis- trator for an injury to his intestate, which resulted in death. Soule «. New York and New Haven B. B. Co., 24 Conn., 575. 1856. IX. Damages. 1. Death. 255. Excessive Damages. Where the per- son killed was a woman forty.eight years of age, a widow with three children, all of whom were over twenty-one years of age, and had left her ; who was capable of earning a dollar a day by her labor, but who left but little property, and died intestate; and the jury in an action brought by her administra- tor, for the benefit of the next of kin, found a verdict in favor of the plaintiflf for $3,500: held, that the damages were excessive ; and a new trial was ordered, unless the plaintiff would consent to remit $2,000 of the damages, reducing the verdict to $1,500. Mclntyre v. New York Central B. B. Co., 47 Barbour (N. Y.), 515, 1867; sen Same v. Same, 48 ib., 532, 1865. 256. — Damages in the sum of $2,333.35 were held not to be excessive in this case for an injury to a person resulting in death. Jeg'eraomille, etc. B. B. Co. v. Biley, 39 Ind., 568. 1872. 257. Expectancy of life. On the question of damages, the plaintiff might ask a witness "from his knowledge of decedent's habits, age, health and physical condition, how long he would have been useful to his family." 426 IXJUKIES TO PASSENGERS. Damages. Pennsylvania R. B. Co. -o. Henderson, 51 Penn. St., 315. 1865. 258. Husband and wife. In an action by ^ father, as administrator of his wife, who was killed by negligence of a railway com- pany, leaving children, the value of her earn- ings and the probability that the children would have received an estate increased by reason, of such earnings on the death and intestacy of their father, cannot be considered in estimating damages. Tillei/ v. Hudson Miver S. B. Co., 24 N. T., 471, 1863; Same v. Same, 23 Howard's Pr. (N. Y.), 363. 1862. 359. — But the injury to the children, in the loss of maternal nurture and education, is a pecuniary one within the intent of the stat- ute, lb. 260. — It seems that in such a case, evidence of the habitual occupation and employment of the deceased is admissible, to show her general capacity and relation to the family. lb. 261. — The nurture, instruction, and phy- sical and mental training, which the mother gave to the children may be considered in estimating the damages. Same v. Same, 29 N. T., 252. 1864. 262. — There is no snflScient legal reason for limiting the damages, in such action, to the minority of the children, if the jury are legally persuaded they will continue after that age. lb. 263. — The court properly refused to charge that " if the deceased was largely in- debted at the time of his death, his wife could have no pecuniary interest in his life until his debts were paid ; and that the jury must, if they can, fix a period in his life, if he lived, in which he would have acquired property be- yond his debts." Pennsylvania B. B. Co. v. Henderson, 51 Penu St., 315. 1865. 264. — The right of action of the widow is different from that which would have ac- crued to the decedent if he had survived the injury, and excluded all questions of exem- plary damages, the damages being simply compensatory for the loss sustained by the surviving family. lb. 265. Measure of damages. Where a suit is brought by a widow, for the homicide of her husband, under the § 2920 of Irwin's Code, and there is no fault proven on the part of the deceased, the rule to be adopted for estimating the damages, is : the pecuniary damages to the wife from the homicide, to be ascertained by inquiring what would be a reasonable support according to the circumstances in life of the husband, as they existed at his death, and as they may be reasonably expected to exist, in view of his character, habits, occupation and prospects in life ; and when the annual money value of that support has been found, to give, as damages, its present worth, according to the expectation of the life of the deceased, as ascertained by the mortuary tables of well es- tablished reputation. Maeon'and Western B. B. Co. V. Johnson, 38 Ga., 409. 1868. 266. — In an action for damages for the loss of a life through the negligence of a rail- way company, the court instructed the jury that they might compute the damages by the probable accumulations of a man of the age, habits, health and pursuits of the deceased, du- ring what would have probably been his life- time; and added that if the jnry could find no better rule, they were at liberty to adopt it. Held, that there was no error in this direction. Pennsylvania B. B. Co. v. McGloskey's Adm'r, 23 Penn. St., 526. 1854. 267. — The jury must, in such cases, place a money value on the life of an individual, in the same manner that in other cases they est;- mate the value of health and reputation. The law can furnish no definite measure of dam- ages that are essentially indefinite. lb. 268. — It is erroneous to tell the jury the rule as to the measure of damages, and at the same time to inform them that if they can find a better one, they are at liberty to adopt it. Overruling, lb.; Pennsylvania B.B. Co.v.But- ler, 57 Penn. St., 335, 1868; Same v. Books, ib., 339. 269. — The proper measure of damages is the pecuniary loss suffered by the parties en- titled to the sum to be recovered, wilhout any- thing for distress of mind; and that loss is what the deceased would probably have earned by his intellectual and bodily labor during the residue of his life, which would have gone for the benefit of his children, taking into consid- eration his age, ability and disposition to la- bor, and his habits of living and expenditure. Ib. 270. — The damages must depend on the facts and circumstances of each particular case, and the result must be left mainly to the INJURIES TO PASSENGERS. 427 Damages. sound sense and deliberate judgment of the jury. Bailroad Co. v. Barron, 5 Wallace, 90. 1566. 271. — Tlic value of the services of the de- ceased, to her next of kin, is a question for the juiy, and the jury is not limited to nominal damages. Melntyre ». New York Central JR. R. Co., 43 Barbour (N. Y.), 533, 1865; see -Same 0. Same, 47 ib., 515, 1867. 272. — The damages to be recovered by the surviving relatives for an injury resulting in dea,th are confined to such as are capable of a pecuniary estimate ; nothing is to be allowed for -the sufferings of the injured party, or the mental sufferings of the survivors. It is error to tell the jury that the question of damages is one entirely for them. Pennsylvania B. R. Co. v. Zebe, 33 Penn. St., 318, 1858 ; Pennsylvania R. R. Co. V. Vandever, 36 Penn. St., 298, 1860; Ooahley v. North Pennsylvania R. R. Co., 5 Penn. Law Jour. Rep., 444, 1858. 273. Minors. In case of the loss of a minor son, the measure of damages is the pecuniary value of his services during his minority. Pennsylvania R. R. Co. v. Zebe, 33 Penn. St., 818. 1858. 2. Other damages. 274. Drunkards. In an action by a passen- ger for damages on account of a personal in- jury, it is proper for the defendant to show that the plaintiff was an habitual drunkard. This evidence has a direct bearing upon the question of compensatory damages. Cleveland and Pittsburgh R. R. Co. v. Sutlierland, 19 Ohio St., 151. 1869. 275. Excessive damages. Five thousand dollars were held to be excessive damages for an injury to a passenger, where no bones were broken and the injury was only muscular, especially as there were some signs of feign- ing lameness. Chicago, Rock Island and Pa- cific R. R. Co. V. McAra, 52 111., 296. 1869. 276. — Where, by reason of a collision which occurred upon the defendant's road, the plaintiff, who was a passenger at the time, had his leg broken, between the knee and the ankle, and he received some flesh wounds upon the head, and was in consequence con- fined to his house about five months, and was obliged to go on crutches three or four months afterwards, and the injured leg was left some- what shorter than the other, but it appeared that at the time of the trial the muscles were well developed, and the plaintiff was restored to his usual health; it was held, that a verdict for $6,000 damages was excessive ; and a new trial was ordered, unless the plaintiff would stipulate to reduce the verdict to $4,000. Clapp V. Rudson River R. R. Co., 19 Barbour (N. T.), 461. 1854. 277. — Where the jury, in an action foi personal injuries occasioned by negligence, found, upon conflicting evidence, that the plaintiff was permanently injured in his spinal cord : held, that the court should not overrule them ; and that if they were correct in that finding, a verdict in favor of the plaint- iff for $4,000 was not excessive. Reed v. New York Central R. R. Co., 56 Barbour (N. Y.), 493. 1868. 278. Exemplary damages. Railway com- panies are liable to exemplary damages for tortious acts of their agents or seiTants done within the scope of their employment, in all cases where individuals, acting for themselves, if guilty of like tortious acts, would be liable to such damages. Atlantic and Great Western R. R. Co. V. Dunn, 19 Ohio St., 162. 1869. 279. — In actions against common carriers for neglect of duty, where the neglect is clear, ly unattended with any circumstances of in- sult, of aggravation of feelings, of injury to the person or his property, or of bodily or mental suffering, the jury will not be justified in finding exemplary damages. Southern R. R. Co. V. Ken4rick, 40 Miss., 374. 1866. 280. — Where there is gross neglect or carelessness or want of skill on the part of the employes of the company, the jury may assess the damages in such an amount as they deem the circumstances of the case will jus- tify. Va/rillat v. New Orleans and Carrollton R. R. Co., 10 La. An., 88, 1855 ; Kentucky Cen- tral R. R. Co. V. Dills, 4 Bush. (Ky.), 593, 1868. 281. — But where there is no willful fault . on the part of the company or its employes, exemplary damages cannot be awarded. Ib. 282. — Where an injury occurs to a passen- ger through the negligence of an employe, and the railroad company has employed com- petent agents and adopted all needful rules and regulations, the passenger cannot recover exemplary damages. Aekerson v. Erie R. R, Co., 3 Vroom (N. J.), 254, 1867 ; Porter v. Same, ib., 361, 1867. 428 INJURIES TO PASSENGERS. Damages. ' 283. — The jury can only give compensa- tory damages for the injury, and cannot any- thing by way of punishing the defendant. Seymow ®. Chicago, BwUnglon and Quincy R. R. Co., 3 Bissell (U. S. C. C), 43. 1871. 284. — The jury may, in tlieir discretion, give exemplary damages where a personal in- jury has been caused by the gross carelessness of a railway company in the management of its trains. Hopkins i>. Atlantic and St. Law- rence R. R. Go., 36 N. H., 9, 1857. Taylor v. Grand Trunk R. R. Co., 48 ib., 305, 1869. 285. — On a rainy day, when the tracls was slippery, defendant's engineer, in charge of a freight train, uncoupled two cars loaded with Btone, while standing on a side track, upon a downward grade; and in consequence of such uncoupling, and of neglect to block the wheels, or to turn the switch, two cars collided with an approaching passenger train ; and plaint- iffs injuries were caused (without fault on his part) by his jumping from the train to avoid the eflfects of the collision. Seld, that this was not a case for punitory damages. Spicer 71. Chicago and Northwestern R. R. Co., 29 Wis., 580. 1872. 286. — Where exemplary damages are to be given, the condition and circumstances of the defendant may be material. What would be sufficient damages, by way of example, for a day laborer without means, would be noth- ing by way of punishment or example for a wealthy corporation. Belknap t. Boston and Maine R. B. Co., 49 N. H., 358. • 1870. 287. Hnsband and wife. In an action brought by a married woman to recover dam- ages for personal injuries caused by the wrong- ful act of another, unless she is carrying on a trade or business, or performing labor or ser- vices on her separate account, she is not en- titled to recover consequential damages re- sulting from her inability to labor. Her ser- vices and earnings belong to her husband. Filer v. New York Central R. R. Co., 49 N. T., 47. 1872. 288. Measure of damages. The damages for negligence are to be measured by the same rule to artificial persons as to natural persons. Pittsburgh, Alleghany and Manchester R. R. Co. V. Donahue, 70 Penn. St., 119. 1871. 289. — In estimating damages unless there is malice or willfulness, the jury should allow Buch reasonable sum as will compensate the plaintiff, and no more. Sill n. New Orleans, Opelousas and Great Western R. R. Co., 11 La. An., 292. 1856. 290. — In an action by the person injured by the negligence of a railway company, the jury may not only give such damages as he has already sustained, but also such damages as he will probably sustain in future, and they may also allow him for his pain and suf- fering. Pittsburgh, Allegheny and Manchester B. B. Co.v. Donahue, 70 Penn. St., 119, 1871; Holyoke v. Grand Trunk R. R. Co., 48 N. H., 541, 1869. 291. — Damages may be assessed without calculating altogether on the pecuniary loss, or privation of pecuniary gain to the party. Civil Code, 1928. Choppin v. New Orleans and Carrollton R. R. Co., 17 La. An., 19. 1865. 292. — In such an action, evidence of the number of the plaintiff's family, his habits, industry and economy is inadmissible. Penn- sylvania R. R. Co. v. Books, 57 Penn. St., 339. 1868; Same v. Allen, 53 ib., 276, 1866; but see contra Winters v. Hannibal and St. Joseph B. R. Co., 39 Mo., 468, 1867. 293. — In a suit by the party injured, tlin damages may include a reasonable compensa- tion for suffering, expense of medical attend- ance and loss of time from confinement; but unless the injury has been wantonly inflicted, the damages must be strictly compensatory. Pennsylvania R. R. Co. v. Books, 57 Penn. St, 339, 1868 ; Same v. Allen, 53 ib., 276, 1866 ; Hol- yoke V. Grand Trunk B. B. Co., 48 K. H., 541, 1869 ; Brignoli v. Chicago and Great Eastern B. B. Co., 4 Daly (N. Y.), 183, 1871 ; Morse e. Auburn and Syracuse B. B. Co., 10 Barbour (N. T.), 621, 1851. 294. — Damages for bodily pain and suf- fering, in such cases are not exemplary or punatory in their character, in any strict or proper sense of those terms. Ib. 295. — It was held proper to charge the jury that "the law is that the plaintiff is only entitled to recover the pecuniary value of the injuries sustained, and so we lay it down to you. In its application to the question of damages for the physical pain suffered by the plaintiff, you must exercise your own discre- tion, governed by your own sense of justice and right, taking care not to indulge in your imaginations or sympathies so as to be led into an assessment of damages that would be INJURIES TO PASSENGERS. 429 Gratuitous Passengers. unjust and oppressive." Pennsylvania R. B. Go. V. Allen, 53 Penn. St., 376. 1866. 296. — The plaintiff is entitled to receive as damages, one compensation for all injuries, past and prospective, in consequence of the defendant's wrongful or negligent acts. Hol- yoTcp, and Grand Trunk R. B. Co., 48 N. H., 541. 1869. 297. — Plaintiff is to have a reasonable sat- isfaction for loss of both bodily and mental powers, ■ or for actual suffering both of the body and mind, which are the immediate and necessary consequences of the injury. Jft. 298. — Plaintiff will not be entitled to spe- cial damages on account of his particular calling or profession. lb. 299. — The plaintiff may show his condi- tion and situation in life and that of his fam- ily, to enable the jury to estimate the amount of damages. Winters v. Hannibal and 8t. Jo- seph B. B. Go., 39 Mo., 468. 1867. 300. Mental injuries. In estimating the damages, the jury may consider whether the mental faculties of the plaintiff were impair- ed by the accident, and this is a legitimate subject of inquiry without reference to the ((uestion whether the act was willfully done. Toledo, Wabash and Western B. B. Go. v. Badde- Zey, 54 111., 19. 1870. 301. Minors. Where a child is injured by negligence of a railway company, the parent may recover for the loss of service for the re- mainder of the period of minority; should the disability continue beyond that period, thfe child may recover for such further loss. Traver v. Eighth Avenue B. B. Co., 6 Abbott's Pr., N. S. (N. Y.), 46. 1867. 302. — A boy, eight years old, being injured while a passenger, the parent's damages are not confined to the loss of his services down to the trial, but include all such prospective loss as must necessarily follow from the injury. Drew V. Sixth Avenue B. B. Co., 26 N. Y., 49. 1863. 303. Statute. The plaintiff purchased from the defendant, a New York corporation, at a station within the state of New York, a passenger's ticket thence to the city of New York, and having taken passage in its cars to be carried thithei', received injuries upon a portion of the road situated in the state of Pennsylvania, through the negligence of the defendant's servants. Held, that the amount of damages for such injuries, recoverable by him, was not affected by a statute of Pennsyl- vania limiting the amount of recovery in similar cases. Dyke v. Brie B. B. Go., 45 N- Y., 113. 1871. X. Gratuitous passengers. 304. Contracts limiting liability. A rail- road company cannot, by contract, exempt itself from liability to a passenger for dam- age resulting from its own willful misconduct, or recklessness, which is equivalent thereto. Perkins ®. New York Gentral B. B. Go., 24 N. Y., 196. 1863. 305. — But in respect to a gratuitous pas- senger, it may contract for exemption from liability for any degree of negligence in its servants, other than the neglect of its board of directors. lb. 306. — It is immaterial whether the negli- gence of the agents be slight or gross. The supposed distinction between different de- grees of negligence, is illusory and impracti- cable. Wells V. New York Gentral B. B. Go., . 24 N. Y., 181, 1862; reversing Same v. Same, 36 Barbour (N. Y.), 641. 1858. 307. — A passenger who knowingly receives a free ticket with an indorsement of such con- tract upon it, will be bound by the terms of such contract, and cannot recover for injuries sustained from the cause specified. Kinney V. Gentral B. B. Go., 3 Vroom (N. J.), 407, 1868 ; SaTne v. Same, 5 ib., 513, 1869. 308. — The use of a free pass, with a no- tice limiting the liability of the carrier en- dorsed upon the back of it, is an assent to the condition upon the part of the passenger. Such condition is binding upon him, but will not exonerate the carrier from the effects of gross negligence. Illinois Central B. B. Co. V. Bead, 37 111., 484, 1865 ; Indiana Gentral B. B. Go. V. Mundy, 21 Ind., 48, 1863. 309. — Public policy forbids that a carrier should be allowed to contract for exemption from liability for damages caused by the neg- ligence, willful default, or tort, of himself or his servants; and this rule applies also where he undertakes to transport passengers under " free tickets," containing an express stipula- tion on the part of the passenger, that, " in consideration thereof, he assumes all risk of accidents, and expressly agrees that the car- 430 ISTJURIES TO PASSENGERS. Gratuitous Passengers. rier shall not be liable under any circumstan- ces, whether of the negligence of his agents or otherwise, for any injury to the person or property. Mobile and Ohio B. R. Co. v. Eop- kins, 41 Ala. N. S., 486. 1868. 310. — Where a person traveling upon a " free pass " is injured, and it is stipulated in the contract by which he obtains such pass, that he shall assume all rislrs of accident by negligence, and such contract is valid in the state in which the contract is made, and where the injury has occurred; field, that the liability of the railway company must be determined by the law of that state. Knmlton v. Erie B. B. Co., 19 Ohio St., 260. 1869. 311. — The circumstance that a passenger who has received an injury while on the cars of a railroad company, by the negligence of its servants, was traveling free of fare, does not exempt the company from liability for the in- jury. Gillenwater v. Madison and Indianap- olis B. B. Co., 5 Ind., 339, 18.54; Todd v. Old Colony and Fall BiverB. B. Co., 8 Allen (Mass.), 18, 1861. 312. — Where a railroad company under- takes to convey a passenger upon its roarl, whether with or without compensation, if such passenger is injured by the culpablenegligence or want of skill of the agents of the company, it is liable, in the absence of an express agree- ment to the contrary. NoUon v. Western B. B. Co., 15 X. T., 444, 1857: see 8an,6 t. Same, 10 Howard's Pr. (N. T.), 97, 1854. 313. — The circumstances impose a duty upon the carrier which renders il liable. Ih. 314. DroTer's pass. Where an agreement was made with a shipper of live stock, by which he received a ticket to go with his stock and retm-n on a passenger train, and the ticket was endorsed as a " free ticket," with a proviso that the holder assumed all risks of accident from negligence or otherwise ; held, that the pass and contract for shipping stock constituted a single contract, and that the holder was not a gratuitous passenger. That the stipulation exempting the company from liability for negligence was against public policy and void. Olendand, Painesville and Ashialula B. B. Co. v. Curran, 19 Ohio St., 1, 1869 ; Pennsyhania B. B. Co. v. Henderson, 51 Penn. St., 315, 1865; Flinn v. Philadelphia, Wilmington and Baltimore B. B. Co., 1 Hous- ton (Del.), 469, 1857. 31.5. — The same principle is seemingly held in the following cases. Smith v. Neu York Central B. B. Co., 24 N. T., 233, 1863; Same II. Same, 39 Barbour (K. T.), 132, 1859; Bailroad Co. i>. Loekwood, 17 Wallace, 357, 1873. 316. — A carrier of passengers in consid- eration of an abatement in whole or in part of his legal fare, may lawfully contract with a passenger that the latter will take upon him- self the risk of damage from the negligence of agents and servants, for which the can-ier would otherwise be liable. Bissell v. Neu> York Central B. B. Co., 25 N. T., 442. 1862. 317. — So ^€M!, where a cattle dealer paid no independent consideration for his own conveyance, but accompanied his cattle, under a contract stating that they were to be carried at a reduced rate, and providing that "the persons riding free, to take charge of the stock, do so at their own risk of personal in- jury from whatever cause." lb. 318. — A railroad company may limit its liability for the carriage of passengers upon a drover's free pass, except as to willfulness or gross negligence. Boswell v. Hudson Biter B. B. Co., 5 Bosworth CS. T.), 699. 1860. 319. — Defendant received of plaintiff I at N., a car load of sheep, to be transported to A., under a contract which contained a clause by which plaintiff agreed to go or send some one with the sheep, "who should take all the risks of personal injury from whatever cause, whether of negligence of defendants, its agents, or otherwise." After the slieep were loaded, plaintiff, who was intending to accom- pany them, and had a drover's pass, in pass- ing by the tender to the engine, was injured by a stick of wood negligently thrown there- from. Held, that under the contract, the com- pany was not liable. Poueher v. Neio York Central B. B. Co., 49 N. T., 263. 1873. 320. Stockholder. One who, being law- fully on tlie defendant's road, was injured by the gross negligence of one of their servants, is I entitled to an action for his damages, though he was a stockholder in the corporation, was riding by the invitation of the president, pay- ing no fare, and not in the usual passenger cars. PhUadO/phia and Beading B. B. Co. v. Derby, 14 Howard, 468. 1852. INJURIES TO PASSENGEBS. 431 Limitation of Liability — lojuries received at Car Windows. XL Limitation of liability. (See subdivision X, ante, 489, in cases of free passes.) 321. Car belonging to party injured. At tlie request of the owner of a freiglit car, tlie agents of a railway company attaclied his car to a passenger train, contrary to the " instruc- tions and rules " of the company ; he agreeing to run all risks. Seld, that the company could not repudiate the act of its agents so as to be free from responsibility for negligence. LaeJc- awanna and Bloomaburg R. R. Co. v. Chenewith, 52 Penn. St., 383, 1866. 322. — The owner assumed only the risk of attaching his car, not the risk of the negli- gence of the company's agents. lb. 323. — The agreement of the owner to at- tend to the brakes of his car did not constitute him an employ^ of the company so as to pre- vent him from bringing suit against the com- pany for damages for negligence. lb. 324. — Cattle being on the road at the time of an accident raises a question of negligence, and whether it is imputable to the company is only determinable by the jury. lb. 325. Negligence. A stipulation by a com- mon carrier that he will nolrbe liable for dam- ages, does not relieve him from responsibility for actual negligence. Pennsylvania R. R. Co. . ». Butler, 57 Penn. St., 335. 1868. 326. Power to make such contracts. Car- riers of passengers may restrict their liability by a contract. Boswell v. Hudson River R. R. Co., 10 Abbott's Pr. (N. Y.), 443. 1860. 327. Roads running through two states. Where a Maryland railway corporation, whose charter contemplated the extension of the road beyond the limits of Maryland, was allowed by act of the legislature of Virginia — reenacting the Maryland charter — to con- tinue through that state, and to build a lateral road in the District of Columbia: held, that no new corporations were created, eitlier in Virginia or the District, but that the old one was exercising its faculties with their permis- sion ; that the corporation was anieniible to the courts of the district for injuries done on its road in Virginia. This responsibiliiy was not lessened by the reception by the traveler of tickets announcing that " Eesponsibility for safety of person or loss of baggage on each portion of the route, is confined to the propri- etors of that portion alone." Railroad Co. v. Harris, 13 Wallace, 65. 1870. XII. Injdeies eeceived at car WINDOWS. 328. Car windows. The proposition is not sound as a general principle, that "nd car is roadworthy if the windows are not so constructed as to prevent the passengers from putting their arms through them ; " but it is applicable to a road which, in some places, is so narrow as to endanger projecting limbs. New Jersey R. R. Co. ■». Kennard, 21 Penn St., 303, 1853 ; see also, Indianapolis and Cin- cinnati R. R. Co. V. Rutherford, 29 Ind., 83, 1867. , 329. — A carrier of passengers or goods is bound to provide a proper vehicle, and no precaution which will conduce to the safety of passengers should be omitted. lb. 330. Comparative negligence. Where a passenger permits his arm to rest on the base of the window, and slightly project outside, and thereby has his arm broken in passing a freight train, the negligence of such person is slight, compared with the negligence of the company, and a recovery may be had for the injury sustained. Chicago and Alton R. R. Co. V. Pondrom, 51 111., 833. 1869. 331. Negligence. A railway passenger cannot recover damages against the railroad company for a personal injury sustained in part by reason of allowing his arm or elbow to be outside of the car window. Todd v. Old Colony and Fall River R. R. Co., 3 Alien (Mass.), 18. 1861. 332. — Such an act is negligence in itself. Pittsburgh and Connellsville R. R. Co. v. Mc- Clurg, 56 Penn. St., 294. 1867. 333. — Where the injury resulted from the arm of a passenger, placed by him several inches outside of the window, coming in con- tact with the structure of a water tank, it was lield, that the carrier was not liable. Indian-, a/polis and Cincinnati R. B. Co. v. Rutherford, 29 Ind., 82. 1867. 334. — The voluntary act of a passenger in putting his arm out of a car window, so that it was injured by striking against a car stand- ing on a side track, was held, to be gross neg- ligence on his part, and such negligence as to preclude a recovery, unless gross negligence 432 INJURIES TO PASSENGERS. Collisions and Running Oflf the Track. or intentional wrong could be shown on the part of the company. Louisville and NaBhville B. B. Co. V. Sickings, 5 Bush. rKy.), 1. 1868. 335. — If an injury be not willfully done, when it occurs from an exposure of an elbow or arm out of a car window while moving, negligence in the carrier is not to be inferred. Pittsburgh and C'onnellsville B. B. Co. v. Mc- Clurg, 56 Penn. St., 294. 1867. 336. — If, in an action brought by a rail- way passenger against the railroad company, to recover damages for a personal injury from the swinging of an unfastened door of anoth- er car standing upon a track parallel to that over which he is riding, it clearly appears that his elbow extended through the open window, beyond tUe place where the sash would have been if the window had been shut, he cannot recover. Todd- v. Old Colony and Fall BiverB.B. Co., 7 Allen (Mass.), 307. 1863. 337. — In an action against a railway com- pany for damages done to plaintiff while riding in defendant's cars, and alleged to have . resulted from defendant's negligence, it was not error for the circuit court to refuse to in- struct the jury that if the plaintiff was sitting with his elbow or arm projecting out of the window, and sustained the injury by reason of that fact, he could not recover. It was properly left for the jury to determine, under all the circumstances of the case, whether the plaintiff was guilty of negligence in respect to the position of his arm. Spencer v. Milwau- kee and Prairie du Chien B. B. Co., 17 Wis., 487. 1863. 338. — Where the evidence showed that the passenger was injured while sitting in his seat in a railroad car and resting his head on his arm, which rested on the window sill of the car, by the car coming in contact with the corner of a wrecked car which had not been sufficiently removed from the track ; Jield, that there was no proper case made by the evi- dence for instructions upon the subject of contributory negligence. Winters v. Hanni- bal and St. Joseph R. B. Co., 89 Mo., 468. 1867. XIIL Collisions and running off THE TRACK. 1. Collision, of trains. 339. Burden of proof!, Proof of a collis- ion is prima facie evidence of negligence, and it casts upon the company the necessity of proving that the collision could not have been prevented by any human care and foiesight. 2feu> Orleans, Jackson and Great Northern B. B. Co. v. Allbritton, 38 Miss., 242. 1859. 340. Contributory negligence. Negli- gence in the managers of a railroad car in which a passenger is carried, contributing to the collision with a train upon another road, by which a passenger is injured, will defeat a recovery. Mooney v. Hudson Biver B. B. Co., 5 Robertson (N. Y.), 548, 1868; Same v. Same, 1 Sweeny (N. T.),835, 1869; see contra Chap- man v. New Haven B. B. Co., 19 N. Y., 341. 1869. 341. — A passenger may recover for an in- jury occasioned by the collision of two trains, although such passenger was in the baggage car at the time of the collision. Carroll v. New York and New Haven B. B. Co., 1 Duer, (N. Y.), 571. 1853. 342. — A passenger who receives an injury while attempting to leave the cars on seeing two trains approaching each other at such a speed as to make a serious collision inevitable , is not to be deemed guilty of negligence. Buel V. New York Central B. B. Co., 31 N. Y., 314. 1865. 343. — Although he is upon the platform of the cars, attempting to escape, at the time he was injured, he is not standing or riding upon • the platform in such a sense as to excuse the company under the regulation prohibiting passengers from standing or riding on the platform. lb. 344. Habits of employt^. In an action for injury to the plaintiff whilst on the defend- ant's cars, by collision with another train, evidence of the habits and competency of the conductor of the latter train is pertinent. Pennsylvania B. B. Co. v. Books, 57 Penn. St., 339. 1868. 345. — When habits of intoxication in a conductor are shown, it raises a presumption of negligence in case of accident. lb. 346. — Evidence of statements of a flag- man as to how far he had gone back to flag a coming train was inadmissible. lb. 347. Negligence. Where a train upon the defendant's railway, in which the plaintiff was a passenger, was met by a construction train coming from the opposite direction, which had upon it a bar of ii-on projecting INJURIES TO PASSENGERS. 433 Collisions and Running Off the Track. five or six feet, In a slanting direction, so that it would necessarily run into anything it came against, and such bar struck the car in which the plaintiff was sitting, and injured him; held, that this was prima facie evidence of negligence on the part of the company. Walker v. Erie B. B. Co., 63, Barbour (N. Y.), 260. 1872. 348. — If the employe of a railway com- pany, in the course of his employment, dis- obey an express order of his employers and thereby cause a collision, his employers are responsible to the person injured. PMladel- phia and Beading B. B. Co. v. Derby, 14 How- ard, 468. 1852. 349. — An Instruction, that if the jury be- lieve it impossible that the injury could have occurred in the manner stated by the plaintiff, he could not recover; but that it was not essential to his right to recover, that the injury should have occurred precisely as he alleged; it was enough that he was thrown down and injured by the collision by the negligence of the company, without fault on his part; is, in substance, correct. FoUard v. New York and New Haxen B. B. Go., 7 Bosworth (N. Y.), 437. i860. 350. Two companies using the same track. In an action brought for injuries sus- tained by reason of a collision of railroad cars, where two companies use the same track, and a question arises as to which of the com- panies is at fault, the running time of trains may be shown, by other proof than the time table of the companies. Ghieago, Burlington and Quiney B. B. Co. ©. George, 19 111., 510. 1858. 2. Collision with cattle or teams. 351. Cattle. It is gross negligence for the employgs of a railway company to run trains at full speed over any part of its road known to be frequented by cattle, unless that part of the track is properly guarded from that inva- sion. Brown v. Neie York Central B. B. Co., 34 N. Y., 404. 1866. 352. — That a car was thrown off the track by running over a cow, that was unlawfully upon the road, and the passenger thereby in- jured, is not, in itself, suiBoient to repel the presumption of negligence. The company is bound to make provision against such acci- 28 dents. Sullimn v. Philadelplda and Beading B. B. Co., 30 Penn. St., 234. 1858. 353. — In an action for personal injury received by the plaintiff, by reason of the train in which he was a psissenger having struck a cow which suddenly run upon the track, and the cars thrown from the track, it appeared that cattle were in the habit of re- sorting to the station where the accident hap- pened, being attracted there by the corn liable to be scattered upon the ground, and that a few days before this accident, a train had run over a cow at that station. There was no watchman there to keep the track clear, and the train was passing the station with more ■ than ordinary speed, neld, that this was inexcusable negligence. Chicago, Bock Island and Pacific B. B. Co. v. McAra, 53 111., 296. 1869. 354. — If the employes upon a train ob- serve a drove of cows upon the railroad, wheth- er properly, or improperly, or negligently there, they should not presume that they are properly attended, and will be driven off in season to escajje collision. Ca/rd v. New York and Rwrlem B. B. Co., 50 Barbour (N. Y.), 39. 1864 355. Crossings. Railroad companies have no right to run their trains upon the assump- tion that travelers on a highway, which the railroad crosses, will always be prudent and careful. lb. 356. Statute. Ch. 268, Laws of 1860, re- quires railway companies to erect fences along the line of their roads, and makes them liable for all damages sustained by reason of the neg- lect to maintain such fences, except at depot grounds, highways, etc., and proof of a failure to erect such fences is evidence of negligence. Where an injury occurred to a passenger by a collision with live stpck, at a point in the neighborhood of a depot, but out on the main line of the road, where there was but a single track, more than a hundred yards beyond the switch, and beyond where a cattle guard was subsequently placed, and the road at that place was fenced by the company soon after the ac- cident, and continues to be so fenced. Held, that although long trains, in switching, run out to the place, it could not be considered a part of the depot grounds. Blair «. Milwaukee and Prairie du Chien B. B. Co., 20 Wis., 254. 1866. 3 5 7. — The said statute is constitutional. lb. 434 INJUKIES TO PASSENGERS. Joint Occupation of Bailways and Connecting Lines. 3. Running off the trach 358. Contributory negligence. A passen- ger was taken upon a train to be carried for a 'short distance ; he was told that the passenger cars were full, and that he must ride in the baggage car ; he commenced playing with his companions ; obtruded into the passenger car ; when that car was thrown from the track, he leaped from it, and was injured; held, that he could not recover for this injury. Gale- na and OMeago Union B. if. Oo. v. Tar- wood, 15 Ill.,468, 1854; Bame v. Fay, 16 ib., 558, .1855. 359. Evidence. In an action brought to re- cover for personal injuries caused by the de- fendant's car, in which the plaintiff was a pas- senger, running off the track, alleged to have occurred by reason of the defective condition of such track, it was held, that the admission of evidence, on behalf of the plaintiff, of the condition of the road at a point lialf a mile dist- ant from the place of the accident, and evi- dence that new ties were subsequently put in at points in the neighborhood of the accident, was erroneous. Reed v. New York Central B. B. Co., 45 N. Y., 574. 1871. 360. Hill side. If the railroad is built on an embankment or a hill side, the company is bound to take all due precautions against a carriage being thrown down the declivity either by widening the crown of the road, or erecting walls or railing sufficiently strong to prevent it. Hanley v. Harlem B. B. Co., 1 Ed- monds (N. Y.), 359. 1846. 361. Presumption. The proof of the over- turning of a passenger car is prima facie evi- dence of the negligence of the railway com- p;^y. Pittebvrg, Cincinnati, etc., B.B. Co. v. Tliompson, 56 111., 138, 1870; Yonge v. Kinney, 2SGa., Ill, 1859. 362. — Where a train of cars upon the de- fendant's road, in which the plaintifi was a passenger, was, in consequence of an embank- ment having been swept away or submerged, plunged into a gulf of some forty feet in deptli, and'the plaintiff seriously injured; it was held, that these facts being shown to exist, the pre- sumption of negligence on the part of the de- fendant necessarily arose. Brehm v. Cheat Weetem B. B. Co., 34 Barbour (N. Y.), 256. 1861. XIV. Joint occupation of bail- ways AND connecting LINES. 1. Connecting lines. a. EAILWAT lilNES. 363. Evidence. Where an action for injury to a passenger was brought against two con- necting railway companies, and it did not ap- pear what relations the two companies bore to each other, but that they had been notified to produce the writings showing their connec- tion, which writings were in their possession, lield, that their failure to produce such writ- ings justified a judgment against both of them. Wylde t. Nortliem B. B. Co. of New Jersey, 53 N. Y., 156. 1873. 364. Getting on the cars. Two railroad companies having made an arrangement for the sale of through tickets, and the train of one company connecting with that of the other, arrived and left the same station at the same time from opposite sides of the same platform. A passenger having a through ticket arrived just as the other train was de- parting, stepped over the platform and stepped on the other train; by its movement he was thrown off and injured. HeU, that it was for the jury to say whether the danger of board- ing the train when in motion was so appaient as to make it the duty of the passenger to de- sist from the attempt. Johnson v. Westchester and PhiladeVpMa B. B. Co., 70 Penn. St., 357. 1873. 365. — It was the duty of both companies to give a reasonable time for the transfer of passengers and their baggage Ib. 366. — The conductor of the arriving train signalled the departing train that there were no passengers for it; the passenger was not responsible for this mistake. Ib. 367. — The company having wronged the passenger by the premature moving of the train, he was not required to exercise the same self possession and coolness in determining the danger as a bystander or passenger in the car would have. Ib. 368. Joint liability. Several railway com- panies, jointly interested in the business over their connecting line, may be held jointly and severally liable for the negligent breach of a contract made by one of them, in its own name exclusively, for transportation over the INJURIES TO PASSENGERS. 435 Joint Occupation of Railwa3'S and Connecting Lines. common route. Wylde v. Northern B. B. Co., 14 Abbott's Pr., N. S. (N. Y.), 213. 1873. 369. AVIien liability does not attach. A carrier of passengers wlio riglitfully runs liis cars upon the railroad of enother, over wliich he has no control or right beyond that of run- ning his own cars upon it, is not liable for in- juries sustained by his passengers while upon that road, which are occasioned without his fault, by the misconduct or negligence of the operatives of that road, over whom he had no control. Sprague ». Smith, 39 Vt., 421. 1857. b. STAGE LINES. 370. Collision. A passenger on a stage sleigh has a right to presume that the parts of the vehicle provided for passengers are safe for that purpose ; and it was held, that a passenger was not guilty of contributory negligence by riding upon a foot board at the side of sleigh, in which position he was injured by collision \vith another sleigh. Spooner v. Brooklyn City B. B. Co., 54 N. Y., 230. 1873. 371. Liability. The defendant at the time specified in the declaration, was running its trains as a common carrier from N. H. to P., five miles short of C, its liability ending at P., except as resulting from stage carriage beyoud P. The defendant had advertised that its cars would arrive at P. and stages leave P. for C. at specified times. The railroad com- pany did not own the stage line, and had no interest in its profits. The plaintiff bought of defendant a ticket from N. H. to C. The in- jury complained of occurred in the stage be- tween P. and 0. Held, that the advertisement implied no liability of the defendant beyond the line of its road, and the ticket only showed the receipt of so much money paid by the jDlaintiff, which was all that he was to pay previous to the arrival at C. ; and consequently the undertaking alleged in the declaration to carry safely from N. H. to C, was not proved. Hood 11. New York and New Haven B. B. Co., 22 Conn., 1. 1853. 372. — Por more than six months before, and at the time of the sale of said ticket, the defendant had been in the daily usage of en- tering into and fulfilling contracts identically like that alleged in the declaration, and had, during the entire period, permitted its agents to publicly represent that the company was vested with the powers requisite for such pur- pife. The plaintiff bought his ticket, believ- ing in and relying on the truth of such repre- sentations. But defendant, under its charter, had no power to enter into the alleged contract, and had never by a corporate vote exprassly authorized or sanctioned the same, nor had their directors by any vote directed any such contract to be made. Held, that defendant was not estopped from pleading its want of power to make the contract, and that it was not binding. Same v. Same, ib., 508. 1853. 373. — And where, on motion by the de- fendant for a new trial in an action at law on such conti-act, the court of eiTors directed a new trial on the ground that the court had erred in instructing the jury that the defend- ant was estopped from pleading its want of power to make such contract, and the plaintiff brought his bill in equity to restrain defend- ant from further prosecuting such motion for a new trial, on the ground that the defendant, by its representations, had induced the plaint- iff to enter into said contract, and therefore its defense was inequitable; held, that the defendant would not be estopped from mak- ing such defense in equity any more than at law. That plaintiff's remedy at law was complete and adequate. Same v. Same, 23 ib., 609, 1855 ; see Buffett v. Troy and Boston B. B. Co., 40 N. Y., 168, 1869. 2. Two companies using same track. 374. Contributory negligence. A passen- ger is not so identified with the proprietors of the train conveying him, or their servants, as to be responsible for negligence on their part. Chapman v. New Haven B. B. Co., 19 N. Y., 341. 1859. 375. — He may therefore recover against the proprietors of another train for damages from a collision through their negligence, though tliere was such negligence in the man- agement of the train conveying him as would have defeated an action by its owners. Ib. 376. — The contrary doctrine is held in Mooney v. Hudson Biver B. B. Co., 5 Robertson (N. Y.), 548, 1868; and Sam^ Case, 1 Sweeny (N. Y.), 825, 1869. 377. Defective roadway. A railroad cor- poration, by giving permission to another rail- road company to use a part of its track, does not thereby bind itself to make the road safe, 436 INJURIES TO PASSENGEKS. Freight Trains. nor to put it in repair, nor to make any change in its existing state. Murch ■». Concord B. n. Co., 29 N. H., 9. 1854. 378. — In socli case the claim of an injured passenger is upon the company with which he contracts. /6. 379. Joint liability. Where a train, while moving on a track belonging to one railroad company, is in the exclusive charge of the serv- ants of another company, the former company is not responsible for the negligence of the servants of the latter company in conducting such movement of the train. Clymer v. Central B. B. Co. of New Jersey, 5 Blatchford (U. 8. C. C), 317. 1866. 380. — A railroad corporation, which grants the use of its road to another company, is re- sponsible for accidents caused to passengers which it itself carries, by the negligence of the trains of the other company, thus running by its permission. Bailroad Co. r. Barron, 5 Wal- lace, 90, 1866 ; Barron «. Illinois Central B. B. Co., 1 Bissell (U. 8. C. C), 453, 1864. 381. — Where two corporations, chartered respectively by the states of Michigan and In- diana, with power to each to construct and operate a railroad within its own state, have united in the business of transporting passen- gers over a third road, in the state of Illinois, beyond the limits authorized by the charter of either, such corporations are jointly liable for injuries to a passenger resulting from the negligence of their employes. BisaeUv. Michi- gan Southern and Northern Indiana B. B. Co., 23 N. T., 258. 1860. 382. — And the same principle applies in case of a railway company carrying passen- gers by stage outside of the line of the rail- way. Buffett 7). Troy and Boston B. B. Co., 40 N. Y., 168, 1869; reversing, Scvme v. Same, 36 Barbour (N. T.), 420, 1862. 383. — A passenger, injured by a collision resulting from the concurrent negligence of two railroad companies, may maintain a joint action against both. Colegrove v. New York and New Haven B. B. Co., 20 N. T.,492, 1859 ; Same V. Same, 6 Duer (N. T.), 382, 1857. 3. Crossings of two railways. 384. Degree of care required. A con- ductor of a train of cars is bound to use rea- sonable care for the safety of passengers, and at cross roads, where the tracks lie near to- gether, more than ordinary care is requisite. Curtis V. Centrals. B. Co., 6 McLean, 401. 1855. 38.5. Loading freight trains. Any care- lessness in loading a freight train of cars, or in not attending to the adjustment of the load of lumber, by which an injury is done to a passenger in another train, will make the own- ers of the freight train responsible. lb. XV. Freight trains. 386. Carriage of passenger beyond his destination. A passenger on a freight train, which was not regularly, but only occasionally used to carry passengers, paid his passage money ; the train carried him five miles be- yond his destination ; he had to walk back, although suffering from chronic rheumabism. Seld, that he was entitled to recover. Mobile and Ohio B. B. Co. v. McArlhur, 43 Miss., 180. 1870. 387. Cars. It is not usual to place a chain across the back end of the platform of a ca- boose car, and the omission to do so is not negligence. A passenger taking a freight train, takes it with the increased risks, or dim- inution of comfort incident thereto. Chicago, Burlington and Q;uiney B. B. Go. ■n.Hazzcurd, 26 111., 373, 1861 ; see Hazard v. Chicago,' Burling- ton and Quincy B. B. Co., 1 Bissell (U. 8. C. C), 503, 1865. 388. Cattle guards. Where a railway com- pany carries passengers upon a car attached to a freight train, it is bound to see that there is 3 safe and commodious passage way from the station or ticket office to the place where the passenger car has usually stopped ; and it is liable in damages for any inj ury sustained by an intending passenger upon the train in ques- tion, in falling into an improperly constructed cattle guard, in consequence of the negligence of the company. DiUaye v. New Torh Central B. B. Co., 56 Barbour (N. T.), 30. 1865. 389. Evidence. It is sufficient to sliowthat a railway company is a carrier of passengers by its freight trains, when it appears that it was accustomed to carry passengers on freight trains ; that notices were posted up around the window of the ticket office, that passengers on freight trains must first obtain tickets, and that there were persons on the train who had INJURIES TO PASSENGERS. 437 Evidence. procured tickets. Illinois Central B. B. Go. v. Sutton, 53 111., 397. 1870. 390. Liability. Railroad companies are not to be regarded as common carriers of pas- sengers by their freight trains unless they make it an habitual business. Mureh «. Con- cord B. B. Co., 29 N. H., 9. 1854. 391. — Where a railway company carries passengers upon a car attached to its freight train, it incurs the same liability as if such passengers were carried upon a regular pas- senger train. It makes no difference that the company does not check baggage upon such train. Dillaye v. New York Central B. B. Co., 56 Barbour (N. Y.), 80, 1865 ; EdgeHon v. New York ana Harlem B. B. Co., 39 N. Y., 237, 1868; Same n. Same, 35 Barbour (N. Y.), 193, 1860; and 389, 1861. 392. — Where a person enters the saloon car of a common freight train, without objec- tion being made, though against the rules of the company, and the conductor receives from him first class fare, the corporation incurs the same liability for his safety as if he were on a regular passenger train. Dunn v. Grand Trunk B. B. Co., 58 Me., 187. 1870. 393. — Such travelers acquiesce in the usual incidents and conduct of a freight train managed by prudent and competent men. Hazard v. Chicago, Burlington and Qwincy B. B. Co., 1 Bissell (U. S. C. C), 503, 1865 ; Chi- cago, Burlington and Qwincy B. B. Co. v. Haz- ard, 26 111., 373, 1861. 394. Persons in charge of freight. Where a person was graveling on a railroad, in a ca- boose car, in charge of his stock and furni- ture, and an entry in reference to him had been made on the way bill by the assistant superintendent, thus: "a man in charge," he was a passenger and entitled to all the rights and remedies of a passenger. Indianapolis, etc. B. B. Co. V. Beaver, 41 Ind., 493. 1873. 395. Private cars. A conductor of private freight cars, not in the employ of a railroad company, at the reqtiest of the company's con- ductor of the train, cut loose the cars follow- ing his own, fell off the train and was injured. The court properly charged "that if the in- jury was not caused by drawing the bolt, but by the negligence or misconduct of the engi- neer in increasing the motion of the cars, with a violent, unusual and unnecessary jerk, after the plaintiff had resumed his proper position on the car, such as he could not anticipate and guard against, lie might not recover." Cumberland Valley B. B. Co. v. Myers, 55 Penn. St., 288. 1867. 396. — Tlie plaintiff, after performing the duty he voluntarily undertook, having re- sumed his proper place as a passenger, be- came entitled to the protection which such relation gave him. lb. 397. Kules and regulations. A railroad company carrying passengers cannot shield itself from the consequences of its negligence, by showing that a person injured obeyed spe- cific instructions of the conductor, instead of general directions of whicli he had been in- formed. Pennsylvania B. B. Co. v. McClos- key's Adm'r, 23 Penn. St., 536. 1854. 398. — A regulation requiring a passenger with live stock on a freight train, to remain on the cars which contained his stock, is not so transgressed by his being on another part of a train when it is at rest, as to make him a contributor to his own injury by that train being run into by another. lb. XVI. Evidence. 399. Burden of proof. The injury of a passenger raises a presumption of negligence upon the part of the carrier. This presump- tion may be repelled by proving that the in- jury resulted from inevitable accident, or from something against which no human prudence and foresight could provide. Sullivan v. Phil- adelphia and Beading B. B. Co., 30 Penn. St., 384, 1858; Baltimore and Ohio B. B. Co. v. Worthington, 21 Md., 275, 1863 ; Zemp v. Wil- mington and Manchester B. B. Co., 9 Richard- son's Law (So. Car.), 84, 1855 ; Galena and Chi- cago Union B. B. Co. v. Tarwood, 17 111., 509, 1856 ; see also, New Orleans, Jackson and Great Northern B. B. Co. v. Albritton, 38 Miss., 343, 1859. 400. — Whether such circumstances exist as will repel the legal presumption of negli- gence, is a question of fact for the jury, to be determined from all the evidence in the case Sullivan v. Philadelphia and Beading B. B. Co.. 30 Penn. St., 334. 1858. 401. — Where a passenger on a railroad is injured, the burden of proving that the injury was caused by the negligence of the company or its employgs, rests upon the party seeking 438 INJUEIE8 TO PASSEXGERS. Pleading. to recover damages. Holbrook v. Utiea and Schenectady B. S. Co., 13 N. Y., 236, 1855; af- firming, Same v. Same, 16 Barbour (N. T.), 113, 1853. 402. — Tlie mere fact that a person is in- jured while riding in a railroad car, does not impose upon the company the burthen of dis- proving negligence. lb. 403. — But the presumption of a want of proper care on the part of the company may arise from circumstances attending the injury, and in such cases the onus is upon the com- pany to show that the injury is not attributable to any fault on its part. lb. 404. Every one riding in a railway car is presumed to be there lawfully as a passenger, and the onus is on the carrier to prove that he IS a trespasser. Pennsylvania B. B. Co. t. Books, 61 Penn. St., 339. 1868. 405. Cross examination. On the cross ex- amination of a witness offered by the railroad company, and who had charge of the section where the alleged injury happened from a de- fective rail, it is proper to ask him if he was short of iron at the time. Taylor v. Grand Trunk B. B. Co., 48 N. H., 304, 1869. 406. Experts. On the trial of an action against a railroad company by a passenger for a personal injury, after several experts called by the plaintiff had testified, upon a statement of the facts and circumstances of the accident, what in their opinion threw the cars from the track, the defendant was permitted to ask a machinist, who had been connected for many years with railroads and with the running of cars and engines upon them, and who was in the cars at the time of the accident, and saw all these facts and circumstances, " What in your judgment threw off the car at the time of the accident?" Held, that the plaintiff had no ground of exception. Beaver v. Boston and Maine B. B. Co., 14 Gray (Mass.), 466. 1860. 407. — The testimony of a physician that injuries from railroad accidents were more se- vere than from other causes, though bearing the name external appearance, is admissible, although his knowledge is derived from study alone. Taylor v. Orand Trutik B. B. Co., 48 K. H., 304. 1869. 408. Opinions of witnesses. In an action by one of a mercantile firm against a railroad company for injuries to plaintifl 's person, caused by defendant's negligence, plaintiff cannot ask the other partner, as a witness for him, what was the amount of the damages to said firm for a specified time, by reason of plaintiff's absence, caused by his injuries. The witness cannot state his opinion as to the amount of damages; he can only state facts from which the jury can estimate their amount. Blair v. Milwaukee and Prairie du Chien B. B. Co., 30 Wis., 363. 1866. 409. Snrgical examinations. The proposal of counsel to have surgeons called in during the progress of the trial to examine the plaint- iff as to the extent of his injuries is unkno'^n to the law, and the court has no power to en- force such an order. Loyd v. Hannibal and St. Joseph B. B. Co., 53 Mo,, 508. 1873. XVIL Pleading. (See also the various other enhdivisions for qnestious of pleading.) 410. Contribut»ry negligence. In a suit against a railway company to recover dam- ages for an injury to a passenger, tlie answer averred that the passenger was, at the time of the accident, riding upon the platform of the car, contrary to the rules of the company, of which he had notice; that it was dangerous to stand upon the platform while the train was in motion, "wherefore defendant says that the injuiy sustained by the plaintiff was the result of his own carelessness in being in an improper place." Held, that the answer failed to show, by any averment of fact, that the injury was occasioned by the fault of the plaintiff; the conclusion of the pleader not being equiv- alent to the averment of the fact. Lafayette and Indianapolis B. B. Co. u. Sims, 27 Ind., 59. 1866. 411. Defective track. Where the petition alleges that plaintiff was injured in conse- quence of a defective track, a defect in the track anywhere may be shown, if it contrib- uted to the injury. Union Pacifia B. B. Co. v. Hand, 7 Kans., 380. 1871. 412. Misjoinder. A declaration contained a count in trespass for the forcible expulsion of the plaintiff by the defendant, from its cars, and a count in trespass on the case for the same injury by the negligence of the de- fendant as a common carrier in conveying him as a passenger, the latter count containing an averment that it was for the same cause of INJURIES TO PASSENGERS. 439 General Matters. action with the former. The latter count also contained an allegation that the defendant at the same time, assumed for a certain hire to also carry safely his tool cliest, but so negli- gently carried it that it became broken and greatly damaged. Held, on a motion in error from a judgment overruling a general demur- rer to the declaration, that although the latter count was averred to be for the same cause of action with the former, yet as the injury to the chest was so set forth as to constitute an independent and substantial ground of recov- ery, both counts could not be for tlie same cause of action, and there was therefore a misjoinder of counts. Swvens v. Eartfwd and New Saven B. B. Co., 26 Conn., 320. 1857. 413. Prospective damages. Successive actions cannot be maintained, but the party injured is entitled to recover, in a single ac- tion, compensation for all the damages result- ing from the injury, whether present or pros- pective. Filir V. New York Central B. B. Oo. 49N. Y.,42. 1872. 414. — Therefore in such a case upon issue joined, a question to a physician, asking him to state, from his experience and medical knowledge, the probability of a recurrence of inflammation in an injured muscle, is com- petent, lb. 415. — So, also, is evidence of a physician as to the probable effect on the general health of the injured person. lb. XVIIL General matters. 416. Burning of passenger with money on his person. Where it was alleged that through the negligence of a railway company in the construction of a bridge by which a train was thrown from the track and burned by fire from' stoves in the cars, and by which a passenger was burned, together with a sum of money upon his person, upon demurrer, it was JieM, that the railway company was not liable for the loss of money kept in the sole custody of a passenger, and which he carries without notice to the defendant, for a purpose unconnected with the expenses of his journey, notwithstanding the loss was occasioned by the negligence of defendant's servants. First NatioTial Bank of Greenfield v. Marietta- tmd Cincinnati B. B. Co., 20 Ohio St., 259. 1870. 417. Child. An infant, twelve years of age, was traveling with his mother upon defend- ant's cars, and being unable to find a seat in the car with her, by her permission, went into another and remained there until the train reached a station; when, in the effort to leave the car and return to his mother, he received an injury. Held, it was not per se a negligent act on the part of the mother to permit him to go from one car to another under the cir- cumstances. Downs a. Neio York Central B. B. Co., 47 N. Y., 83. 1871. 418. — That which is negligence in an adult will also constitute it in a child of tender years. Solomon v. Central Park,^etc. B.B. Co., 1 Sweeny (N. Y.), 298. 1869. (See Injuries to Persons ou the Track, subdivision V.) 419. Child or sick person. A sick or aged person or a child is entitled to more care from a railroad company than one in good health ■and under no disability. Sheridan v. Brooklyn City B. B. Co., 36 N. Y., 39, 1867; Smne v. Same, 34 Howard's Pr. (N. Y.), 217, 1867. 420. — The assistance of such persons in getting on and off the cars is an act within the line of duty of employSs of a railway company, and negligence in so doing will render the employer liable. Drew v. Sixtlt, Avenue B. B. Co., 3 Keyes (N. Y.), 439. 1867. 421. — Sick persons, and persons unable to take care of themselves, should provide for themselves proper assistance while traveling, and if such passengers require longer delay than usual in getting off the train, they should give timely notice to the conductor. It is not the duty of conductors to see to the debarka- tion of passengers. It is their duty to have the stations announced, and to stop long enough for passengers to get off. New Orleans, Jackson and Cheat Northern B. B. Co. v. Stat- ham, 42 Miss., 607. 1869. 422. Confederate soldier. A soldier in the confederate service during the war of 1861, was engaged in an illegal transaction, and if while traveling upon a railway upon a pur- pose connected with the war, he has received an injury, no action lies for the negligence of a railway company in not transporting him safely. Martin v. Wallace, 40 Ga., 53, 1869; Turner «. North Carolina B. B. Co., 63 N. C, 533, 1869. 423. Constmction trains. When contract- 440 INJUKIE8 TO PASSENGERS. General Matters. ors, building a railroad and running a con- struction train, consent to take a passenger for hire on their train, they are private car- riers for hire, and are only bound to exercise such care and skill in the management and running of the train as prudent and cautious men, experienced in that business, are accus- tomed to use under similar circumstances. Shoemak&r el al. v. Eingslmry, 12 Wallace, 369. 1870. 424. — The passenger in such case takes upon himself the risks incident to the mode of conveyance. lb. 425. — Where an accident occurs to a pas- senger on such train by the cars being thrown from the track, the contractors are not respon- sible unless the accident is directly attribu- table to their negligence or unskillfulness. Tb. 426. Epileptics. If a passenger on a rail- way car were known to be subject to epileptic fits, or insane, more care and attention would be required of the carrier than in ordinary cases. Pittsburgh and Connellsville B. B. Oo. v. McClurg, 56 Penn. St., 394. 1867. 427. — Where the action is brought prin- cipally on account of a permanent injury to the plaintiff in consequence of epileptic spasms caused by the wound received, and the medical testimony leaves it very doubtful whether the wound contributed to the spasms, it would be unsafe for the judge to allow the jury to speculate upon such remote conse- quences. Thringa v. Central Park B. B. Co., 7 Robertson (N. T.), 616. 1868. 428. Express messenger. Where a rail- way company is transporting freight and mes- sengers for an express company, and a person, not an employe of the express company, goes into the baggage car with the regular express messenger, not as a passenger, but for the pur- pose of learning the route, and assists such messenger along the route, and the conductor of the train, not knowing the facts, but sup- posing such person to be an express messen- ger, allows him to ride without paying his fare, and the baggage car turns over and said per- son is injured; in an action by such person against the railway company for damages for such injuries, held, that the plaintiff was not a passenger, nor entitled to the rights of a pas- senger. Union Paeiflc B. B. Co. v. Nichols, 8 Kans.,505. 1871. 429. Ferries. Under the facts of this partic- ular case, a railway company was held liable for an injury occurring to a passenger in cross- ing on a ferry from New York to Jersey City. New Jersey B. B.Co. v. Palmer, 4Vroom (N. J.), 90. 1868. 430. Gravel train. Action was brought against a railroad company for an injury done to the plaintiff, while traveling on a gravel train of the company. The defendant asked the court to instruct the jury as follows : A railroad company is not liable for an injuiy which may happen to a person who takes pas- sage on a train engaged in transporting gravel, and not engaged in carrying passengers. Held, that the instruction was properly refused. Law- reneeburgh and Upper Mississippi B. B. Co. v. Montgomery, 7 Ind., 474. 1856. 431. Hnsband and wife. In an action against a railway company by the husband, to recover damages for an injury sustained by his wife, caused by the carelessness of the servants of a railway company, damages may be recovered for expenses incurred, and loss of services after the commencement of the suit, and for such expenses as may be incurred and loss of services as are reasonably probable in the future. Boplcins v. Atlantic and 8t. Lam- rence B. B. Co., 30 N. H., 9. 1857. (See ante, 4SZ, sabdivision VIII, Injuries Cansing Death.) 432. — A promise founded on a considera- tion relating to the wife's personal security does not vest absolutely in the husband, but may be the subject of an action in the name of the husband and wife. Fuller v. Nantgatuck B. B. Co., 31 Conn., 557. 1853. 433. — An implied contract will be pre- sumed to be made with the party in interest, and as the husband has legally no interest in the wife's personal security, a contract for that purpose will be presumed to be made with her. lb. 434. Instmctions. An instruction which directs the jury that in fixing the damages, if they believe from the evidence that the plaint- iff is entitled to recover, they should consider all the circumstances surrounding the case, and then specifically points out the circum- stances, is not obnoxious to the objection, that instructions should be based upon the evidence. Chicago, Boch Island and Paeiflc B. B. Oo. v. Otto, 52 111., 416. 1869. INJURIES TO PASSENaERS. 441 General Matters. 435. Lessees and trustees operating a rail- way incur the same liabilities that would be incurred by the company itself, if it were op- erating the road. Sprague v. Smith, 29 Vt., 421. 1857. 436. — Under § 513 of the statute (Revision of 1866, page 196), a trustee of a railroad who operates the road for the benefit of bondhold- ers or creditors, is liable to suit, as such trustee, in favor of the administrator of a passenger fatally injured by negligent carriage. Lam- pliear v. Buckingham, 33 Conn., 237. 1866. 437. — exxjulsion of passenger. A rail- road company ran on the joint account of a receiver of part of it, and the lessees of the re- maining part was held liable for injuries com- mitted by a servant of the parties working it, upon the person of a passenger, whom such servant improperly expelled from the car, into which the passenger had entered ; the railroad company having allowed tickets to be issued in its own name, in the same form as it had done before the road was leased, and the pas- senger, for aught that appeared, not knowing tliat the railroad company was not itself man- aging the road. Bailroad Company v. Brown, 17 "Wallace, 445. 1873. 438. Lunatics. A lunatic was traveling in the cars, in company with his father, who had paid the fare of both, through, and taken tick- ets. The father got out at a stopping place, to procure refreshments, leaving his son in the cars, without giving notice to any one, of his situation; and while absent the train started. On regaining the cars, the father did not find his son where he had left him, the latter having changed his seat. The conductor, in good faith, in the absence of the father, applied to the lunatic for his ticket. The lunatic refusing to deliver his ticket, the con- ductor caused the train to be stopped, and the lunatic to be put oflf the cars ; in consequence of which the lunatic was run over by another train and killed. The evidence did not show negligence on the part of the conductor. Held, that the father's negligence was such that he could not recover. Willetts v. Buffalo and Bochester if. B.' Co., 14 Barbour (N. Y.), 585. 1853. 439. Mobs. There is no such privity be- tween a railroad company and a passenger as to make it liable for that passenger's injury to another, upon the principle of respondeat superior. Pittsburgh, Ft. Wayne and Ohicago B. B. Co. V. Hinds, 58 Penn. St., 512. 1866. 440. — A train having stopped at a station, a riotous crowd rushed upon the cars in such numbers as to defy the power of the conductor to resist. They commenced a fight on the cars, in which the plaintiff was injured. Held, that the fact that the conductor knew the crowd were improper persons was immaterial. Railway companies are not required to pre- pare for such emergencies. lb. 441. — Passengers take the risk of mobs by the way, and cannot throw them on the car- rier, lb. 442. — A conductor has large powers at his disposal to preserve order. His official character is a power. He may stop the ti-ain, call to his assistance the train employgs, and such passengers as are willing to help. Until he does this, he has no right to abandon the conflict. lb. 443. — A conductor falls short of his duty when he keejis his train in motion, or is busy in collecting fare in one car whilst a general fight is raging in another. lb. 444. — Calling on the passengers to throw the fighters out is not enough ; he should lead the way, stop the train, and expel the rioters, or demonstrate by an earnest experiment that it is impossible. lb. 443. Payment of fare. In order to consti- tute the relation of common carrier and pas- senger, it is not necessary that the fare should have been paid. It is enough that it is under- stood that it is to be paid. Ifashville and Chat- tanooga B. B. Go. V. Messino, 1 Sueed (Tenn.), 320, 1853 ; Hurt v. Southern B. B. .Co., 40 Miss., 391, 1866. 446. — If a passenger is lawfully on the cars, the company is bound to carry him safely, whether he has paid his fare or not, although if he refuses to pay, he may be ejected. Ohio and Mississippi B. B. Co. «. Muhling, 30 111., 9. 1861. 447. Passing from car to car. It is not negligence, per se, for a passenger to follow the direction given by a servant of a railroad company, and to pass from one car to another, while the same are in motion, for the' purpose of finding a seat. Mclntyre v. Nm York Central B. B. Co., 37 N. Y., 287, 1867; Same v. Same, 47 Barbour (N. Y.), 515, 1867; Same v. Same, 35 Howard's Pr. (N. Y.), 36, 1867. 442 INJURIES TO PASSENGERS. General Matters. 448. — Where a female passenger upon a railroad, being ordered by an officer of the train, while the cars were in motion, in a dark and rainy night, to pass forward, in attempting to step from one car to another, fell betwen the cars and was instantly killed, it was Tield, that the deceased was not so clearly guilty of neg- ligence as to warrant the taking of the case from the jury on that ground. McIrvtyre'D. New York Central B. B. Co., 43 Barbour (N. T.), 532, 1865; see Same v. Same, 47 ib., 515, 1867. 449. Pop com vender. A railroad corpora- tion, for a certain sum of money per year, and in consideration of an agreement to supply the passengers on one of its trains with iced water, issued season tickets to A. for his passage on any of its regular trains, and permitted him to sell popped com on all its trains. Held, that his relation to the company while traveling upon its road, under this contract, was that of a passenger and not of a servant. Commmi- wealth V. Vermont and Massachusetts B. B. Co., 108 Mass., 7. 1871. 450. Prisoners of war— guards. The de- fendant undertook to transport prisoners of war, on the employment of an authorized gov- ernment officer. Held, that it was liable, as a common carrier, to the soldiers in charge of the prisoners, and was in no such sense an agent of the government as to preclude it from such liability. Truex v. Erie B. B. Co., 4 Lan- sing (N. T.), 198. 1870. 451. Public enemy. In an action by a pas- senger for injuries caused by the cars being thrown into a chasm, occasioned by the burn- ing of a bridge by the public enemy, of which defect in the road the conductor of the train was prevented from receiving notice by the acts of the enemy, an instruction confirming the issue of negligence to the particular case in the running of the cars, and telling the jury that " if the train was conducted and managed with as much care and diligence as a very pru- dent and careful man would have conducted the same where his own interest and safety were concerned, taking into consideration all the circumstances of the case, and that the in- jury complained of was the result of mere ac- cident, then the earner was not liable for the injury," was improperly refused, as it present- ed to the jury the principle that the defendant was not to be held liable for mere accident, in the absence of any want of that degree of care and prudence which the law requires. Saw- yer v. Hannibal and St. Joseph B. B. Co., 37 Mo., 240. 1866. 452. Riding on the engine. A railroad company, by its printed rules and regulations, prohibited its engine drivers from permitting any one, not in its employ, to ride upon its engines. The plaintiff applied to an engineer for permission to ride upon the engine, and was told that it was against the rules of the company to carry him in that place, but the engineer finally consented that the plaintiff might ride with him, and he did so, without the knowledge of the conductor, and paying no fare. Held, that the consent of the engineer conferred no legal right, and tliat the plaintiff, not being lawfully upon the engine, was a wrong-doer, and could not recover damages of the company for an injury sustained while riding in that place. Bobertaon v. New York and ErieB. B. Co., 32 Barbour (N.T.), 91. 1856. 453. Roles and regulations. A railroad company has a right to make all reasonable rules respecting the time, manner and place of entering cars ; and these rules, when known to the passenger, he is bound to conform to, and if he fails to do so, he cannot recover for an injury sustained thereby, although the jury may believe that an ordinarily prudent man might have adopted the same course. McDon- aid t. Chicago and Northwestern B. B. Co., 36 la., 124. 1868. 454. — In an action against a railway com- pany by a passenger, for an injury occasioned by a collision, it is not sufficient for the com- pany to show that the plaintiff was acting at the time in disobedience of a proper order to secure his safety; it should also appear that the injury was caused by such disobedience. Lawrencebwgh and Upper Mississippi B. B. Co. V. Montgomery, 7 Ind., 474. 1856. 455. Speed. A railroad company is lia- ble for any casualty that may occur from ruiming at a greater rate of speed than is pru- dent, or on account of collisions with cattle, which might have been avoided by the most skillful and prompt use of all the means in its power. Nashville and Chattanooga B. B. Co. t. Messino, 1 Sneed (Tenn.), 220. 1853. 456. State roads. The owners of passen- ger cars on a state railway are liable, as com- mon carriers, for an injury sustained by a pas- INJURIES TO PERSONS GENERALLY. 445 Injuries (renerally. senger from the collision of two of their trains ; though the motive power is furnished by the state, and under the control of the agents of the state, and though the accident happened through the negligence of such agents. By- land, V. Peters, 5 Penn. Law Jour. Rep., 126. 1851. 457. Sudden stoppage of cars. Evidence of the sudden stoppage of a train of cars is sufficient to sustain a finding of negligence, in an action hy a passenger for injury caused thereby. W^lde v. Northern R. B. Oo., 14 Ab- bott's Pr. N. S. (N. Y.), 313. 1873. 45S. Switch. A railroad company is re- sponsible for an injury, sustained by a passen- ger in its cars, in consequence of the careless management of a switch, by wliich another railroad connects with and enters upon its road, although the switch is attended by the employSs of the proprietors of the other road. McElroy v. Nashua and Lowell B. B. Co., 4 Gushing (Mass.), 400. 1849. 459. — Injuries to passengers occurring through the misplacement of a switch — con- sidered. Baltimore and Ohio B. B. Co. v. Worthington, 21 Md., 375. 1863. 460. Trespassers. Where a boy attempted to climb up on the rear of a train while it was in motion, and was injured in the attempt, it was held that he could not recover. Chicago, Burlington and Quincy B. B. Co. v. Stumps, 55 111., 367. 1870. 461. Unusual number of passengers. A railway company is not bound to receive an unusual number of passengers, beyond the number that it might reasonably be required to provide for, but if it does receive them, without condition, or notice of its inability to provide for their safety, it assumes all the ob- ligations usually incumbent upon a carrier. Evansville and Cra/wfordsville B. B. C«). ». i>a?i- Msre, 28 Ind., 441. 1867. 462. Vehicles in the streets. The negli- gence of other persons, running vehicles in a crowded street, is not an act for which carriers of passengers through such streets are respon- sible, where they are without fault themselves. Spooner d. Brooklyn City B. B. Co., 31 Barbour , (N.Y.), 419, 1860 ; Samev. Same, 36 ib., 217, 1863. 463. Wharf. Where a railway company runs its line in connection witli a steamboat, issuing tickets over both lines, and the use of a wharf becomes necessary in the delivery of passengers to the steamboat, the railway com- pany is bound to the same degree of care in seeing that the wharf is safe as is required of it elsewhere on its line. Its liability only ceases where the steamboat company's liabil- ity commences. Knight v. Portland, Saeo and Portsmouth B. B. Co., 56 Mo., 334 1868. 464. Willful acts of employes. A princi- pal is not responsible for the injuries arising from the willful acts of his servants. Winter- son V. Eighth Avenue B. B. Co., 2 Hilton (N.Y.), 389. 1859. 465. — Whenever the justification of an act, alleged to be wrongful and injurious, is found- ed on the exercise of authority, the question of the excess of such authority is for the jury, and not for the court. Silliard v. Ooold, 34 N. H., 230. 1856. 466. — In all cases where it appears that the employment of the principal afforded the agent the means and opportunity, which he used, while so employed, in committing an injury to a third person, the principal is re- sponsible, whether the injury results from the negligence or willful and malicious acts of the agent. New Orleans, Jackson and Great Northern B. B. Go. v. AUbritton, 38 Miss., 342- 1859. 467. — This rule is, from public policy, applied with strictness in case of common carriers. /6. INJURIES TO PERSONS GENERALLY. See HioHWATs; Indiotmbht; Injukibs to Emplotes; IXJCBIES TO PASSBNQEBS ; InJUKIES to fZBSONS ON THE Tback; Neohgehoe. I. Injtories genekallt. II. Injuries causins death. I. Injuries genebally. 1. Frightened team. Where a driver of a carriage is not attending to his team, but is engaged in reading a newspaper, he is guilty of negligence, and cannot recover for an in- jury resulting from his team being frightened by an approaching snow plow which, he might have seen if he had been attending tc 444 INJUKIES TO PERSONS GENERALLY. Injuries causing Death. his business. Chray v. Second Atenue B. R. Co., 2 Jones and Spencer (N. T.), 519. 1872. 2. — Where a team was frightened by the starting of a locomotiTe, and ran away, and in endeavoring to stop it, the driver was thrown under the wheel of the wagon and had his leg broken — both the driver and the agents of the company being engaged in law- ful pursuits — it was Tield, that if the acci- dent occurred through negligence on the part of the company, and the negligence of the driver did not proximately contribute to it, he might recover; but not if the negligence of the driver concurred to produce it, or if it occurred entirely through his own fault. Pittsburgh, Ft. Wa^fne and Chicago S. S. Oo. V. Kcrnis, 13 Ind., 87. 1859. 3. Persons assisting passengers. A person who enters the cars, not as a passenger, but for the purpose of assisting an aged and in- firm relative to take a seat as a passenger, must, in order to maintain an action against the railway company for an injury sustained while leaving the cars, show that he exercised due care, that the company was wanting in ordinary care, and that such negligence was the cause of the injury ; and if he attempts to leave the cars after they have started, or, find- ing them in motion as he is going out, persists in making progress to get out, he cannot maintain such an action, if his attempt causes or contributes to the injury ; even if the cor- poration is guilty of negligence. Lucas v. New Bedford and Taunton B. B. Co., 6 Gray (Mass.), 64. 1856. 4. State railways. Section 2 of the special act of March 3, 1869, authorizing compensa- tion to persons injured on the Iron Mountain railroad, did not limit the claim to a party personally injured, but his administrator would be entitled under it to receive payment of the amount after his death. Section 2 was intended to guard against a sale of the claim, and nothing more. Hickey v. Dallmeyer, 44 Mo., 237. 1869. IL iKJtTBIES CAUSING DEATH. (See alBO Isjueies to Pabsekgebs ; Iktobies to Peb- SONS OS THE TBACK; lN.nrBIBB TO EXPLOTEB.) 5. Ck)mmon law. The courts will presume that the common law is in force in another state, and that no action can be maintained for a homicide occurring in such state, unless it is alleged that in such state a statute exists authorizing the action. The statute of the state in which the suit is brought will not apply. Selma, Borne, etc. B. B. Go. v. Lacy, 43 6a., 461. 1871. 6. — No civil action at common law can be maintained for the death of a human being. Worley v. Cincinnati, etc. B. B. Co., 1 Handy (Ohio), 481, 1855; Kramer o. San Francisco Market St. B. B. Co., 25 Cal., 434, 1864; Carey V. Berkshire B. B. Co., 1 Cushing (Mass.), 475, 1848. 7. Damages. In an action for the death of a person caused by negligence, no damages should be allowed on account of the grief of the survivors, or the loss of the society of the deceased; but in estimating the damages, the jury should consifler his annual earnings, age, health, habits and estate. Donaldson v. Missis- sippi and Missouri B. B. Co., 18 la., 380, 1865; Illinois Central B. B. Co. v. Weldon, 52 111., 290, 1869. 8.— The jury will not consider the pain suffered by the deceased, nor the wounded feelings of his friends, in estimating the dam- ages. Barron v. IlUnois Central B. B. Co., 1 Bissoll (U. S. C. C), 412. 1863. 9- — The jury may take into consideration the support of the widow of the deceased, and the minor children, and the instruction and physical, moral and intellectual training of the minor children by the deceased. Illin/>is Central B. B. Co. v. Weldon, 52 111., 290. 1869. 10. — "Where it appeared that the deceased was a common laborer who left a widow and several minor children, but what wages he was earning was not shown, yet a verdict of |5,000 was regarded as excessive, in view of there being no evidence that he earned, annually, as much even as one-half the interest on that sum. lb. 11. — In such cases, where no exact compu- tation can be made, discretion in fixing the amount is left to the judge and jury. C. C, 1928. Frank v. New Orleans and Carrollton B. B. Co., 20 La. An., 25. 1868. 12. — In estimating the value of the life of the deceased, it is proper to instruct the jiuy to consider his probable gains and accumula- tions, his age, his family and his usual wages, and to award such an amount of damages as a careful and impartial examination of the evi- INJURIES TO PERSONS GENERALLY. 445 Injuries causing Death. dence seemed to demand. Oatawissa R. B. Co. 11. Armstrong, 53 Penn. St., 2S3. 1866. 13. — The obligation of the wife, whose husband has been Itilled by negligence, to sup- port herself and children, and the loss of her chance to be endowed out of his future accu- mulations, are pecuniary injuries to her, to be redressed by the person who caused them. Il>. 14. — The value of the husband's life to his wife is to be determined by ascertaining how much better she would be in her pecuniary re- sources with him than without him. lb. 15. — In such case, there can be no fixed standard for the measurement of damages, the discretion of the jury, properly instructed, is the standard. lb. 16. — Damages for death are exclusively statutory, and are capable of restriction and limitation by the legislature. Cleveland and Pittsburgh li. B. Go. v. Sowan, 66 Penn. St., 893. 1870. 17. Husband and wife. Where a husband brings an action as the administrator of his wife, for the damages resulting from her death by the defendant's negligence, he can recover only for the pecuniary injury sustained by her next of kin. The value of her services to him does not enter into the estimate of damages, and evidence thereof is inadmissible. Diekins v. New York Central B. B. Co., 23 N. Y., 158, 1861 ; reversing Same v. Same, 28 Barbour (N. Y.), 41, 1858; see SaTne v. Same, 13 Howard's Pr. (N. Y.), 228, 1856. 18. — To sustain an action under the stat^ ute, for injury to the person resulting in death, it must appear by pleadings and proof that there is a person in being who is entitled to the money when recovered. Woodward v. Chi- cago and Nortlmestern B. B. Co., 23 Wis., 400. 1868. 19. — Where the person injured was a married woman and the husband sui'vives, the measure of damages is the pecuniary loss to him, not exceeding $5,000. lb. 20. — Such an action sounds in tort; and in this case, it abates on the death of the hus- band, although the administrator is the nom- inal plaintiff, and there is a child of the de- ceased surviving. Tb. 21. — If a widow die, pending a suit for damages for the death of her husband, the ac- tion will survive to tlie children. David v. Southwestern B. B. Co., 41 Ga., 223. 1870. 22. — No action lies on a promise by a railroad company to pay to the widow of one who was killed by an accident on its railroad a certain sum of money, in consideration of her forbearance to sue it for damages; the company not being liable, there was no con- sideration for the promise. Palfrey ■». Port- land, Saao and Portsmouth B. B. Co., 4 Allen (Mass.), 55. 1863. 23. — An action lies for injuries done to a married woman by the wrongful act, neglect, or default of another person, resulting in her death. Such action must be brought by her executor or administrator. R. S. ch. 135, §§ 12, 13. Whiton v. Chicago and Northwestern B. B. Co., 21 Wis., 805. 1867. 24. Instantaneous death. An administator of a person killed by a collision on a railway, cannot maintain an action for the injury un- der St. 1843, ch. 81, § 1, where the death of tlie intestate was instantaneous with the col- lision. Kearney, Adm'r v. Boston and Worces- ter B. B. Co., 9 Gushing (Mass.), 108, 1851 ; Hollen^eek v. Berkshire B. B. Co., ib., 478. 1853. 25. ^ The statute supposes the party de- ceased to have been once entitled to an action for the injury. Ib. 26. — An action at law to recover damages for an injuiy which causes immediate insen- sibility, and death in fifteen minutes, survives to the administrator of the estate of the de- cesed. Bancroft v. Boston and Worcester B. B. Co., 11 Allen (Mass.), 34. 1865. 27. — The fact that the injured party re- mains insensible up to the time of his death does not change the rule. Ib. 28. Jurisdiction. An administrator ap- pointed in Massachusetts cannot maintain an action there on the statute of another state, which gives to the personal representatives of a person killed by wrongful act, neglect or default, a right to maintain an action for damages in respect thereof. (See Woodard v. Michigan Southern B. B. Co., 10 Ohio St., 131.) Biclmrdson v. New York Central B. B. Co., 98 Mass., 85. 1867. 29. Parent and child. The act of April 36, 1855, gives the widowed mother power to re- cover damages for the death of her child by negligence; the damages are not limited to nursing and medical attendance, but are such as a court and jury, under all the circum- stances, shall consider reasonable. Pennsyl- 4A6 INJURIES TO PERSONS GENERALLY. Injuries causing Death. ■Bania S. JR. Co. t. Bantom, 54 Penn. St., 495, 1867 ; see CUteland and Pittsburgh R. R. Co. V. Rowan, 66 Penn. St. 393, 1870. 30. — Both parents are entitled to recover damages, estimated by a common standard. Pennsylvania R. R. Co. v. Bantom, 54 ib., 495, 1867. 31. — The mother may show what the services of the child were worth to her, as if she had acquired the right to them by con- tract Ib. 32. — Nursing, medical attendance and funeral expenses, are proper elements of esti- mate, but the value of the services lost is equally legitimate since the statute. Ib. 33. — On proof of the child's disposition, and that the parents were poor and in ill health, the judgment will not be reversed be- cause the jury were allowed to consider, in es- timating the damages, the parents' reasonable expectation of pecuniary benefit from contin- uance of her life after she should become of age. Potter v. Chicago and Northwegtern R. R. Co., 23 Wis., 615. 1868. 34. — In an action by a father against a company operating a railroad, for the negli- gent killing of his female child, the court re- fused to instruct the jury that in estimating what the services of the deceased, until she was twenty-one years old, would hav* been worth to the plaintiff, they were to make "allowance for the chances of her marriage after she shoul d have attained the age of eighteen years; " but instructed them that the contingency was " too remote to be considered by them." Eeld, that whether or not such contingency was too re- mot* to be considered, it was correctly ex- cluded, because there was no evidence before the jury upon which they could have arrived at a conclusion on the subject. Seaman v. Farmers' Loan and Trust Co., 15 Wis., 578. 1863. 35. — An action for damages " for causing death by wrongful act, neglect or default," (Laws of 1847-9), can be sustained by an indi- vidual as the administrator of his intestate mother, whose death was caused by the negli- gence of the agents and servants of the defend- ant, although the deceased was a widow and had no child at the time of her death, under the age of twenty-one years, or relative, who was dependent upon her, or who could have any legal claim upon her for service or sup- port Keller v. New Torh Central B. R. Co., 17 Howard's Pr. (N.Y.), 103, 1858; see Same v. Same, 34 ib., 173, 1861. 36. Pleading. The right to sue in such cases, under g 784, 2 G. & H., 330, is given to the personal representative of the deceased, but the action is prosecuted for the benefit of the widow and children, or next of kin, and the names of these persons, and their relationship to the deceased, should be stated in the com- plaint Indianapolis, Pittsburgh and Cleveland R. R. Co. a. Keely'sAdm'r, 23 Ind., 133. 1864. 37. Statutes. Section 3, p. 436, R. S. 1853, which gave to the wife, or in case there was none, then to the minor children of a person killed by the negligence or unskillfulness of the officers or servants of a railroad company, etc., a right of action against the company, was repealed by implication by § 784, p. 205, 2 R. S., 1852. President, etc., of Peru and Indian- apolis R. R. Co. D. Bradshaw, 6 Ind., 146, 1855 ; Knightgtown and ShelbyviUe R. R. Co. ■». Lind- say, Qih.,ZK. 1856. 38. — A corporation is liable in a civil ac- tion for the wrongful acts of its servants, caus- ing death. Rev. 1860, §4111. Donaldson v. Misseissippi and Missouri R. R. Co., 18 la., 280. 1865. 39. — A corporation may be guilty of crim- inal acts, for which it may be held liable in a civil action. Ib. 40. — In California, a civil action can b3 sustained by the administrator. Kramer v. San Francisco MarTcet Street R. R. Co., 25 Cal.,434. 1864. 41. — Where death is caused by the wrong- ful act, neglect or default of another, the per- sonal representative of the deceased can re- cover damages only with reference to the pe- cuniary injury resulting from such death to the widow and next of kin of the deceased, and the intestate's cause of action cannot be taken into the account in assessing the dam- ages, under the provisions of the statute, G. 8., ch. 52. Needltam ■e. Grand Trunk R. R. Co., 38 Vt,294. 1865. 42. — Where death thus occurs, two causes of action may arise, one in favor of the dece- dent, for his loss and sufferings in his lifetime, and revived by act of 1847, the other founded on his death and consequent Injury to his heirs, under act of 1849. Both actions are to be pros- ecuted la point of form in the name of his personal representatives, but the damages in INJURIES TO PERSONS ON THE TRACK. 447 Street and Highway Crossings. the two suits are given upon entirely diflEerent principles, and for different purposes. lb. 43. — Where the injury was inflicted out of the state, and the cause of action of the intes- tate does not survive by the laws of the place where it accrued, our statute of 1847 does not apply ; nor does the statute of 1849 apply where the injury which caused the death was inflicted without the state, though upon a citizen of this state, who was brought here before his death. lb. 4A. — The statute giving a cause of action to the widow or next of kin in cases of death from negligence — construed, Chicago and Alton B. B. Co. v. Shannon, 43 111., 338. 1867, INJURIES TO PERSONS ON THE TRACK. See Damages; Highway; Isjubies to Emflotes; NsGi-iaBHCE; Beceiveb; Slaves. I. Street and highway cbossings. 1. Negligence of railway companies. 2. Negligence of injured paHy. 3. Bights of both parties. ^ II. Streets. III. Signals. IV. Nkgligbnce. 1. Contributory negligence. 3. Comparative negligence. 3. Negligence of railway company. 4. Choss negligence. 5. By whom the question of negligence is to be determined. Y. Injuries to children. VI. Injuries causing death. VII. Damages. VIII. Defects in roadway, machinery, etc. IX. Depot grounds. X. Evidence. XI. Frightened teams. XII. General matters. I. Stbeet and highway crossings. 1. negligence of railway companies. 1. Burden of proof. Where a traveler is injured in crossing arailway, negligence is not to be presumed against the company. Penn- sylvania R. B. Co. ■». Goodman, 02 Penn. St., 829. 1869. 2. Cars moved by the wind. Where a per- son attempted to cross a railway track during a high wind, with his hat over his face, and without looking up the track, and was killed by a train of cars standing ujDon the branch track, the cars being set in motion by the gale, it was held, that it was error to instruct the jury that it was a violation of duty in the company to fail to set the brakes or fasten the cars when left thus standing upon a side track. Nicholson v. Erie B. B. Co., 41 N. Y., 525. 1870. 3. — Where, in consequence of the neglect of a railway company to chain or put blocks under the wheels of cars, left standing on a track, constructed on a pier used as a public highway, one, wlio was necessarily crossing the track during a dark niglit, without fault on his part, was run over and seriously injured by the cars, which had been put in motion by a strong wind, he will be entitled to recover damages to the extent of the injury sustained. Brown v. Pontchartrain B. B. Co., 8 Robinson (La.), 45. 1844. 4. Contributory negligence. An action was brought against a railroad company for causing the death of S., by running its cars over him, while crossing the railroad track upon a public highway. The court instructed the jury, that though deceased was in fault in being upon the railroad track, yet if the com- pany's agents were guilty of gross negligence in running over him, by which is meant a want of such care as very prudent persons take of their own concerns, the plaintiff was entitled to recover. Held, that if negligence and want of ordinary care of the deceased contributed to his death, the company cannot be held liable, although guilty of negligence, unless that negligence was so gross as to imply a willingness to inflict the injury, ffeld, also, that the want of such care as a very prudent man takes of his own concerns, does not con- stitute such gross negligence as would rcndei the company liable, if deceased, by his own negligence, contributed to his death ; while the exercise of such care would render the com- pany excusable, although deceased was also without fault. Evansville and Orawfordsville B. B. Co. V. Smith, 15 Ind., 120. 1860. 5. — To entitle the plaintiflf, in an action 448 INJURIES TO PEKSOJiTS OIX THE TRACK. Street and Highway Crossings. brought against a railroad company to recover damages for injuries sustained by him In be- ing caught between two cars of the defendant, while he was attempting to cross a street, it must be shown that such injuries were directly caused by the want of ordinary care and pru- dence on the part of the defendant, and that they could not have been avoided by the exer- cise of reasonable care and caution on the part of the plaintiC Baltimore and Ohio B. B. Co. ■D. Fitzpatrick, 35 Md., 32. 1871. 6. — The following instruction was held er- roneous to defendant's prejudice in an action against a railway company for injuries sus- tained in attempting to cross its track: "It is incumbent upon the plaintiff to use all reason- able care and prudence in crossing the track, and particularly at stations where there is a reasonable probability of there being trains; and the want of such care and prudence on the part of plaintiff, if it tended to cause tlie injury, will be taken into consideration by the jury in determining the liability of the com- pany." The instruction was held erroneous, as falling short of stating the law. Spencer v. lUinoig Central B. B. Co., 29 Iowa, 55. 1870. 7. Crossing made by company. In an ac- tion against a railroad company for negli- gence in killing a man by its engine at the crossing of a public highway, evidence that such road had been made by the company was irrelevant. Pennsylvania B. B. Co. ■». Weber, 72 Penn. St., 37. 1873. 8. Defective crossings and obstmctions to the view. Where the defendant's road is car- ried across a highway in such manner and place that those traveling the highway can neither see nor distinctly hear approaching trains imtil too late to avoid collision with them, the company is liable for such collision in the absence of negligence of those injured. Bieha/rdson v. New York Central B. B. Co., 45 N.T., 846. 1871. 9. — This is the rule, although he might also have a remedy against the town which was bound to keep the highway in repair. Gillett V. Western B. B. Co., 8 Allen (Mass.), 560. 1864 10. — Compliance with the statute as to sounding the whistle and ringing the bell is not the whole duty of the company, and will notexcuseit insuchacase. Bichardsonv. New York Central B. B. Co., 45 N. T., 846. 1871. 11. — The circumstances under which a person was injured at a highway crossing considered — the approach of the railroad to the highway being through a cut Chicago, Burlington and Quincy B. B. Co. «. Triplet!, 38 lU., 483. 1865. 12. — Injuries to a person in crossing a highway considered with reference to the facts of this particular case, the view of the crossing having been obstructed in excavating for the railway. Dicffy v. Chicago and Norths western B. B. Co., 33 Wis., 369. 1873. 13. — The company having constructed a " crossing " at the intersection of a highway dedicated to public use, was bound to keep such crossing in such reasonable repair as to be safe and convenient for travelers to pass over. Pittsburgh, Ft. Wayne and Chicago B. B. Co. ■». Dunn, 56 Penn. St, 280. 1867. 14. — In an action against a railway com- pany, it appeared that the company had just raised its track at a crossing of the highway, and had so left the crossing that a loaded team would naturally be hindered in crossing the track ; that while the plaintiff, who was cross- ing the track in the night time was so hin- dered with his wagon, a locomotive of the company, without giving any signal of its approach, struck the wagon and injured the plaintiff; such conduct on the part of the company was sufficient to make out a clear case of negligence and to warrant tlic jury in inferring that there was no want of ordinary care on the part of the plaintiff. This rule would be the same if the plaintiff was driving a colt which baulked at the crossing, and which baulking might have been attribute.d to the bad condition of the crossing. Mil- wavJcee and Chicago B. B. Co. v. Hunter, 11 Wis., 160. 1860. 1 5. Fireman. The running of an engine across a much frequented thoroughfare, such as the street of a village, by a fireman alone, without an engineer, would justify a jury in finding a want of proper care on the part of the railway company. O'Mara v. Hudson Biver B. B. Co., 38 N. T., 445. 1868. 16. Flagmen. In an action to recover dam- ages for an injury occasioned by a collision at a crossing, evidence of the intoxication, on former occasions, of the flagman stationed there, is immaterial; the issue is confined to the question of negligence at the time of the INJURIES TO PEKSOXS ON THE TRACK. M9 Street and High'vvay Crossings. collision, Warner ». Nea Yorh Central B. S. Co., 44 N. Y., 465, 1871; reversing Same n. Same, 45 Barbour (N. Y.), 299, 1866. 17. — The common law does not require a railroad company to station a flagman at every street or road crossing, where a, jury may be of the opinion that the travel is so great that ordinary prudence requires such precaution. Beisiegel c. New Yorh Oentral M. JR. Go., 40 N. Y., 9, 1869 ; Mrmt v. Eud«m Mimer B. B. Go., 3S lb., 61, 1868. 18. — And this, although an omission to sta- tion a flagman at a crossing where the rail- road company runs its trains at a greater rate of speed, or in other respects differently from what would otherwise be permissible or con- sistent with proper care, may be evidence of negligence to go to the jury. lb. 19. — But the company, for its own con- venience, may elect to place a flagman at cer- tain crossings, and, by establishing a practice of that kind, may make a law binding upon itself. Ernst ». Htidson Biver B. B. Co., 39 N. Y., 61, 1868; Warmr v. New York Oentral B. B. Co., 45 Barbour (N. Y.), 299. 1866. 20. — Where, by such voluntary and con- tinued practice, it has become notoriously public, that a flagman is placed at such cross- ing to give notice of the approach of trains, then to withdraw such flagmen without no- tice, may become an adt of negligence on the part of the company for which it would be liable. lb. 21. Liability of corporation. A railroad company having the general right to lay a track, and run its engines and cars across a public street in a city, must be shown to have committed some fault in the manner of doing it, before it can be held for a personal injury sustained by an individual. Wilds v. Hudson Biver B. B. Co., 29 N. Y., 315, 1864; see Same V. Same, 24 ib., 480, and 33- Barbour (N. Y.), 503 ; see Same v. Same, 23 Howard's Pr. (N. Y.), 492. 1862. 22. Signal. In an action by the widow and children of a decedent, to recover damages for an injury occurring at a crossing of a public street, within the limits of a city, and causing his death, it was held, not error to instruct the jury that if the whistle was not sounded, nor any other usual notice given' of the approach of the train, the deceased had a right to pre- sume that the track was clear ; and that, unless the jury were satisfied by affirmative proof, that the deceased did not use ordmary care, the defendants were liable. Philadelphia and Trenton B. B. Co. v, Hagan, 47 Penn. St., 244. 1864. 23. — Nor was it error to instruct the jury that the employes of the train were required to approach such crossing at a moderate rate of speed, and to give timely warning to those law- fully passing along the street; and that, if by any neglect or omission that duty was not ful- filled, the company was liable, unless it was affirmatively shown that the deceased was not exercising ordinary care. Ib. 24. Streets. The passage of two trains of cars in opposite directions, along contiguous tracks, in a populous city, so as to meet at or near a crossing properly used by foot passen- gersj without the presence of a flagman, and without lessening their speed, was held to just- ify a jury in determining that the railway com- pany was guilty of culpable negligence, al- though flagmen were kept at the place, desig- nated in a city ordinance, and the speed did not exceed what was authorized for one train by the ordinance. West v. New J&rsey B. B. Co., 3 Vroom (N. J.), 91. 1866. 25. — The jury were held to be justified in exonerating the plaintiff from the charge of negligence when he was struck by one of the trains, while he was endeavoring to guard against injury from the other. Ib. 26. Whistle. The engine of defendant having given no notice of its approach, whis- tled under a bridge whilst a traveler was pass- ing over it; his horses took fright, ran off and injured him. Meld, that if danger might be reasonably apprehended, it was the duty of the company to give some warning. Pennsylvania B. B. Co. «. Barnett, 59 Penn. St., 259. 1868. 27. — It would have been negligence for the traveler to drive upon the bridge, knowing, that the train was about to pass under it; it was the duty of the company to give notice. Ib. 2 8. — Sounding the whistle under the bridge was a sufficiently proximate cause of injury to render the company liable, lb. 2. Negligence of injured party. 29. Backing train. While a train was stand- ing upon the street on defendant's track, plaint, iff, desirous of passing upon the street with his 450 INJURIES TO PEKSONS ON THE TBACK. Street and Highway Crossings. horse and wagon, asked a man who had got off the train, but who it did not appear was in defendant's employ, if he could pass. He was advised not to do so, as the train might back at any time. Plaintiff waited a few minutes, and then attempted to lead his horse across the track in the rear of the train, when the train moved backward, struck and injured the horse and wagon. Held, that this was not such evi- dence as constituted contributory negligence as matter of law, but the question was one of fact for the jury. Eaton u. Erie B. B. Co., 51 N. T., 544. 1873. 30. Defective crossings. Whether it was negligence in the plaintiff to walk upon a side- walk, in a dark night, without a light, is a question of fact for the jury. Malay v. New York Central B. B. Co., 58 Barbour (N. T.), 182. 1870. 31. Degree of care required. The degree of care required by persons about to drive a team across a railway, considered. Wilds v. Hudson Biver B. B. Co., 39 N. Y., 315, 1864; see Same «. Same, 24 ib., 480, and 33 Barbour (N. Y.), 503; see Same v. Same, 23 Howard's Pr. (N. Y.), 492, 1862. 32. — Every person of ordinary intelligence is bound to know that a railroad crossing over a public highway, where cars are frequently passing, is a place of more than ordinary dan- ger, and should use care accordingly. Illinois Central B. B. Co. ti. Bathes, 55 HI., 379. 1870. 33. — If a person who is about to drive his team across a railway track, sees a train ap- proaching, and determines to try the speed of his horses against that of the engine, he does it at his peril. Wilds «. Hudson River B. B. Co., 29 N. Y., 315, 1864; see Sams n. Same, 24 ib., 430, and 33 Barbour (N. Y.), 503; see Same v. Same, 23 Howard's Pr. (N. Y.), 492, 1862. 34. Double track. In an action for killing the plaintiffs' intestate by defendant's trains, while she was attempting to cross two adjacent tracks, it appearing that the deceased must have seen and known that two trains were ap- proaching on said tracks side by side, and with the exercise of any care, must have known that they were running at a much greater rate of speed than usual, and the circumstances were such as would have prevented any pru- dent person from attempting to pass, the court should have set aside a verdict for the plaintiff and ordered a new trial. LangTwff v. Mil- waukee and Prairie du Chien B. B. Co., 23 Wis., 43. 1868. 35. Evidence of care of injured party. It is error to charge the jury that the plaintiff will be presumed free from fault, if nothing else appears in the case. Proof in some form, that the plaintiff was free from contributory negligence, constitutes a part of his case. This must appear, either from the circum- stances, or from direct evidence. Warner's. New York Central B. B. Co., 44 N. Y., 465. 1871. 36. — The foregoing is held to be dictum, and the contrary doctrine is sustained. Boh- inson is. New York Central B. R. Co., 65 Bar- bour (N. Y.), 146. 1873. 37. — In an action against a railroad com- pany for injuries caused by collision with a train, at a highway crossing, with an open wagon in which the plaintiff was being driven in the day-time, it appeared that the track and the sign over the highway were visible five rods or more off, in the direction from which the plaintiff approached the crossing. The plaintiff testified that he did not know of the crossing and did not look up, and that the driver was careful and the horse safe; but Uiere was no evidence that the driver looked to ascertain whether a train was coming. Held, that there was no evidence for the jury that the plaintiff was in the exercise of due care. Allyn v. Boston and Albany B. B. Co., 105 Mass., 77. 1870. 38. Master and servant. In an action brought against a railway company for dam- ages caused by running a train of cars over plaintiff's wagon and horses, while they were being driven by the plaintiff's servant along a public highway, it was Ttdd, that if the servant contributed by his negligence to the accident, the plaintiff could not recover. Toledo and Wabash B. B. Co. d. Ooddard, 25 Ind., 185. 1865. 39. — The statements made by the servant at the time, as to the cause of the accident, were a part of the res gestce, and admissible in evidence against the plaintiff. Ih. 40. Obstmctions to the view. Where a railroad company has obstructed the view of travelers upon the highway by piling its wood so that the approach of the traili to the cross- ing cannot be seen until the traveler is upon the track, one who has driven upon the track INJURIES TO PERSONS ON THE TRACK. 451 Street and Highway Crossings. witii due care, and looked for the train as soon as looliing could be of service, will not be deemed guilty of negligence in not stopping his team to ascertain if a train might be ap- proaching. Mackny v. New Torh Central M. B. Go., 35 N. Y., 75, 1866 ; reversing Saim v. Same, 27 Barbour (N. Y.), 528,1868; sec Brooks e. Buffalo and Niagara R. JR. Co., 25 ib., GOO; and Brendell v. Buffalo and State Line R. li. Co., 27 ib., 534. 41. Persons must look and listen. It is the duty of one lawfully attempting to cross a railway, to stop and look both ways and listen for approaching trains. Lehigh Valley B. S. Co. ®. Ball, 61 Penn. St., 361, 1869; Pittsburgh, Ft. Wayne and Chicago B. B. Co. «. Dunn, 56 Penn. St., 280, 1867. 42. — If a traveler goes upon a track with- out negligence, and by a defect in the crossing, he is stopped on it, it is his duty to look out for a train, and use all his efforts to give notice to one coming, and to extricate himself as speedily as possible. Ib. 43. — A ti-aveler appi'oaching a railway should do so cautiously and should obsei-ve the approach of trains, and the company should give timely warning of the approach of the ti-ain. Pennsylvania B. B. Co. e. Cfood- man, 62 Penn. St., 329, 1869; North Pennsyl- vania B. B. Co. «. Seilman, 49 ib., 60, 1865 ; Maight v. New York Central B. B. Co., 7 Lan- sing (N. Y.), 11, 1872; Ilewett v. Same, 3 ib., 83, 1870; Morse «. Erie B. B. Co., 65 Barbour (N. Y.), 490, 1873; ffomales v. New York and EarUm B. B. Co., 39 Howard's Pr. (N. Y.), 407, 1870; Same v. Same, 38 N. Y., 440, 1868; reversing Same e. Same, Robertson (N. Y.), 98, 1868; see Sam^ «. Sam^, 1 Sweeny (N. Y.), 506, 1869; see Sam^ ». Same, 1 Jones and Spencer (N. Y.), 57, 1871; Wilds v. Hudson Biter B. B. Co., 24 N. Y., 430, 1862; Same v. Same, 23 Howard's Pr. (N. Y.), 492 ; reversing Same V. Same, 33 Barbour (N. Y.), 503, 1860; McCaU V. New York Central B. B. Co., 54 N. Y., 643, 1873 ; Toledo, Peoria and Warsaw B. B. Go. V. Biley, 47 111., 514, 1868; St. Louis, Alton and Terre Haute B. B. Go. v. Manly, 58 ib., 300, 1871. (See subdivision, HI, pott, 455, of tills title.) 44. — Where a person, on approaching such a crossing with a team, does not avail himself of his sense of sight and hearing, when by the proper exercise of it, he could have avoided a collision, he will be regarded as unusually negligent, though the bell was not continu- ously rung or the whistle sounded. Chicago and Bock Island B. B. Co. v. McKean, 40 III.. 318. 1866. 45. — If it appear that the deceased would have seen the approaching cars, in season to have avoided them, had he first looked before attempting to cross, it will be presumed that he did not look ; and he will be deemed to have been guilty of contributory negligence. Wilcox V. Borne, Watertown and Ogdensburgh B. B. Co., 39 N. Y., 358. 1868. 46. — At the intersection of a railway with a common road, there are concurrent rights; neither the traveler on the highway nor the company has the exclusive right of passage. North Pennsylvania B. B. Co. v. Heileman, 49 Penn. St., 60, 1865; PitUbwrgh, Ft. Wayne and Chicago B. B. Co. v. Dunn, 56 ib., 280, 1867; Warner v. New York Central B. B. Co., 45 Barbour (N. Y.), 299, 1866 ; Galena and Chi- cago Union B. B. Go. v. Dill, 22 III., 264, 1859 ; Toledo and Wabash B. B. Go. v. Qodda/rd, 25 Ind., 185, 1865. 47. — A traveler upon a highway who knows that he is near a railway crossing and yet does not look up to see if a train is com- ing, simply because there is a storm and the traveling is bad, is guilty of such negligence as to preclude a recovery for an injury sus- tained by him from a collision with a passing train. Butterfield v. Western B. B. Co., 10 Allen (Mass.), 532. 1865. 48. — One who approached a railroad at a point in a town where he had often crossed, muffled in his coat within the covered top of his wagon, taking no notice of the railroad, and drove slowly upon the track without stopping or looking out, was guilty of negli- gence. Hanover B. B. Co. v. Goyle, 55 Penn. St., 396. 1867. 49. — It is not necessary to prove affirma- tively that a person injured when crossing a railroad on a public highway had stopped and looked up and down the railroad ; whetlier he used the proper precautions is to be deter, mined by all the circumstances of the case. Pennsylvania B. B. Go. v. Weber, 72 Penn. St., 27. 1872. 50. — Where a person crosses a railway with a team, in ignorance of the approach of the 452 INJURIES TO PERSONS ON THE, TRACK. Street and Highway Crossings. cars, when the clanger may he easily seen by looking for it, lie is fairly chargeablewith neg- ligence. Much more so, if he drives on to the track and there stops, looking in an opposite direction from an approaching train, until the engine comes in contact with him, and throws him (iflf. Brooks ». Bufalo and Niagara PalU B. B. Co., 25 Barbour (N. Y.), 600. 1854 51. — A person driving a heavy team, on a foggy morning, over a railroad, without wait- ing to ascertain whether an approaching train ■was near, having been struck by the engine and killed, Jteld, to have contributed to the act by his own negligence. Haalan v. Morris and Essex B. B. Co., 4 Vroom (N. J.), 147. 1868. 52. — In an action brought against a rail- road company for negligently running over a passer-by at a crossing, it is error to grant a nonsuit, refusing to submit the question of concurring negligence on his part to the jury, merely because he did not look to see whether a train was approaching ; if it appear that from the circumstances at the time — for example, the state of the weather — he could not have seen the train in time to avoid it. Sackfordv. New York Central B. B. Co., 13 Abbott's Pr. N. S. (N. y.), 18. 1871. 53. — Where a person, knowingly about to cross a track, approaches it from a point where he may have an unobstructed view of the rail- road, and know of the approach of a train a sufficient time to clearly avoid an injury from it, he cannot, as a matter of law, recover, al- though the company may also have been neg- ligent in omitting to perform a statutory re- quirement, or otherwise. ArU ». Chicago, Boclc Island and Pacific B. B. Co., 34 Ia.,'158. 1871. 54. — But if the view was obstructed, or if there were circumstances calculated to throw a person off his guard, then, whether it was negligence on the part of the person undertak- ing to cross, is a question of fact for the jury. Ih. 55. — No neglect of duty on the part of a railway company will excuse any person, ap- proaching on a highway a railway crossing, from using the senses of sight and hearing, vyhen these may be available. Bellefontaine B. B. Co. ». Hunter, 33 Ind., 335. 1870. 56. — A person is npt bound to stop his team and look and listen before attempting to cross the track. He may have satisfactory and sufficient evidence to justify him in attempting to cross, without this. Spencer ®. Illinois Cen- tral B. B. Co., 29 la., 55. 1870. 57. — Although a person, about to cross a railway, must look and listen, yet this rule does not require the traveler to stop, or if he is with a team, to go out and leave his vehicle and go to the track, or to stand np, and go upon the track in that position in order to obtain a better view. Da/vis v. New York Central and IIudf.on Biver B. B. Co., 47 N. Y., 400, 1872; Duffy V. Chicago and Northwestern B. B. Co., 33 Wis., 269, 1873. 58. — A plaintiff, approaching a crossing, and stopping from four to six rods therefrom to look and listen, and neither seeing or hear- ing a signal of an approaching train, is not to be deemed guilty of such negligence as to just- ify a nonsuit. Benwiek u. New York Central B. B. Co., 36 N. Y., 132, 1867 ; Same v. Same, 34 Howard's Pr. (N. Y.), 91, 1867. 59. — Where a person, standing in a cart, and driving the horse which drew it, and at the same time leading by a strap in his hand another horse drawing another cart, attempted (after taking precautions by looking and list- ening to ascertain if a train was approaching) to pass over the track of a railroad at a place where it crossed at grade the street on which he was traveling, and the rear horse, becoming restive, rushed forward, so that both of the horses and carts were on the track, and in this position they were struck and injured by a train; it was lield, that the question whether the traveler was in the exercise of due care at the time of the collision, was for the jury. Ma- ganv.PitcKburgB.B. Co., 101 Mass., 315. 1869. 60. Presumption. A man was found dead on a railroad where it crossed a street, having been killed by a train of cars. Beld, that whether he was lawfully on the railroad, and whether his own negligence contributed to his death, were for the jury. Lehigh Valley B. B. Co. V. Hall, 61 Penn. St., 361. 1869. 61. — Where there is evidence of negli- gence upon the part of the company, the law will not presume in the absence of proof that the negligence of the deceased contributed to his death. lb. 62. Signals. A person traveling on foot on the public highway, who is not aware of the vicinity of a passing train, is at liberty to assume that none is approaching, when no flag is displayed and no whistle or bell is sounded. INJURIES TO PERSONS ON THE TRACK. 453 Streets. Beisiegel v. New Torh Central R. R. Co., 34 N. Y., 633, 1866; Sa/me v. Same, 31 Howard's Pr. (N. Y.), 181 ; reversing Same v. Same, 38 Bar- bour (N. Y.), 429, 1861 ; but see same case 40 N. Y., 9, and Ernst v. Hudson River R. R. Co., 89 ib., 61 ; see Beisiegel v. New York Central R. R. Co., 14 Abbott's Pr. N. S. (N. Y.), 39, 1870. 63. — As between him and the company, he is not bound to be on the alert for danger, when he has the assurance of the company that the crossing is safe. Ib. 64. — The citizen who, on a public high- way, approaches a railroad track, and can neither see nor hear any indication of a mov- ing train, is not cliargeable with negligence for assuming that there is no car sufficiently near to make the crossing dangerous. He liaa the right to presume that in handling thoir cars, the railroad companies will act with ap- propriate care, and that the usual signals of approach will be seasonably given, aiid that the managers of the train will be attentive and vigilant. Kermayde v. Pacific R. R. Co., 45 Mo., 256, 1870; I'dbor v. Missouri Valley R. R. Co., 46 ib., 353. 65. — It is incumbent on railway companies to exercise care and diligence ; and unless the acts of a person killed by the cars were the direct and proximate cause of the disaster, the company will not be excused from liability. Ib. 66. — A defendant cannot impute a want of vigilance to one injured by his act, as negli- gence, if that very want of vigilance was in consequence of an omission of duty on the part of the defendant. As where a person driving a team, listened carefully at a highway crossing and hearing no train or whistle (the whistle not being sounded at the usual place if at all), drove upon the track, and was killed. Pennsylvania R. R. Go. v. Ogier, 35 Penn. St., 60. 1860. 67. — Where three persons, having waited for a freight train to pass, at the crossing of a frequented street, then cross the track, and two of them are struck by a switch train, on an adjoining track, and killed, there being at the time a strong wind blowing, the bell on tlie switch train not having been rung, and the survivor having neither seen nor heard the switch train until after the accident, the cir- cumstances are not sBch as to warrant the coui-t in instructing the jury in an action brought by the representative of one of the deceased persons that the plaintiff could not recover. Whiton V. Chicago and Northwestern R. R. Co., 2 Bissell (U. S. 0. C), 383. 1870. 68. Speed of team. It is negligence in one knowing the position of the railroad and the frequent passage of trains, to approach the crossing at such speed as to be unable to stop his horses before actually getting upon the track. Wilds v. Hudson River R. R. Co., 24 N. Y., 430, 1863 ; Same v. Same, 33 Howard^s Pr. (N. Y.), 493 ; reversing Sam.e v. Sam^, 33 Barbour (N. Y.), 503, 1860. 3. Rights of both parties!. 69. Rights are mutual. Neither the com- pany nor the public have the exclusive right of a clear passage. Both are restricted by public necessity and convenience. Pittsburgh, Fort Wayne and Chicago R. R. Co. v. Dunn, 56 Penn. St., 380, 1867 ; North Pennsylvania R. R. Co. ■». Heileman, 49 ib., 60, 1865 ; Toledo and Wabash R. R. Co. v. Goddard, 35 Ind., 185, 1865. 70. — A railroad company, and a traveler on the highway, have correlative rights. Neither has a superior right, except as it re- sults from the difficulties and necessities of the case. Galena and Chicago Union R. R. Co. V. Dill, 32 111., 364. 1859. 71. — It is not a question of superior, or subordinate right, in passing, which arises in an action for damages occasioned by a collis- ion between a locomotiye on the railroad and a vehicle upon the highway, but a question merely of the exercise of proper caution and prudence, by either party, in the exercise of a common and equal right. Warner v. New Torh Central R. R. Co., 45 Barbour (N. Y.), 299. 1866. II. Streets. 72. Backing train. The running of a train of cars backwards through a street of a city in the night time, without a light, signal or' warning at the rear end of the train, is suffi- cient negligence to render the railroad com- pany liable for an injury to one crossing the street. Maginnis v. Neic York Central B. R. Co., 53 N. Y., 215. 1873. 454: INJURIES TO PERSONS ON THE TRACK. Streets. 7.3. City ordinances. Where a train of cars is run at a speed forbidden by a city ordi- nance, that is evidence of negligence. Jetter V. New York and Harlem H. B. Co., 3 Abbott's Ct. of Ap. Dec. (N. Y.), 458. 1865. 74. — If a railroad company do not con- form to the city ordinances, providing certain safeguards in the use of its engines, it is not in the lawful pursuit of its business, and is responsible for any injury which it may oc- casion, if the party injured be not in fault. Baltimore and Ohio R. B. Go. v. The State, 29 Md., 253. 1868. 75. Culverts.. A railway company con- structed its road across the main street of a village, about a foot and a half above the street level. The street was twelve rods wide, with two traveled paths, one on each side of the street, and an open common between. The company was required by its charter to restore any highway intersected, so as not to impair its usefulness. The company put the two traveled tracks in proper condition for passing with vehicles, but made no other cross- ing. About midway between the two paths, it constructed a culvert under the limbers of its track, which was left uncovered. A per- son walking across the street upon the rail- road track,' at a time when the culvert was filled with snow and could not be seen, fell into it and was injured. Held, that the com- pany was liable for the injury. Judson v. New York and New Haven B. B. Go., 29 Conn., 434. 1861. 76. Degree of care required. As to per- sons not passengers, a railway company is only liable for ordinary care in moving its cars by horse power through a public street. Baltimore and Ohio B. B. Co. v. Bahra, 28 Md., 6i7. 1868. 77. — Railway companies must run their trains with reference to persons who may be rightfully upon the streets used by their roads. Kansas Pacific B. B. Go. v. Pointer, 9 Kans., 630. 1873. 78. — Railway companies, in the lawful pur- suit of their business, are only obliged to use such reasonable care and diligence as ordinary prudence would suggest and require, in the passage of their locomotives through the thor- oughfares of a city. Baltimore and Ohio B. B. Ca V. TIte State, 39 Md., 353. 1868. 79. Neither party at fault. An action was brought in the Marine Court, by the owner of a horse and cart, for injuries caused by a col- lision with one of the cars of the defendant, and the justice charged the jury, " that if the plaintiff was, in their opinion, doing his best to got out of defendant's way, it was all that could be required of him; that if lie was so doing, the defendant was bound, at its peril, to stop its cars to avoid collision; and if it had not sufficient power to do so, or if it omitted to stop its cars, it was responsible." Held, that the charge being iu effect that, if neither party was in fault, the plaintiff was entitled to recover, was palpably erroneous and unjust. Altreuter v. Hudson Biver B. B. Co., 3 E. D. Smith (N. Y.), 151. 1853. 80. Obstructions to the view. It is a neg- ligent act for a railway comiiany to peiinit its cars to Stand upon and obstruct a public street ; and where, by reason of such obstruction, the view of the track is cut off in one direction, and it was rendered impossible for the plaint- iff, in crossing the track, to see a train ap- proaching in that direction, held, that it was not negligence, as matter of law, for the plaint- iff to omit to look in the direction, the view of which was thus obstructed. McChiire v. Htid- son Biver B. B. Co., 2 Daly (N. Y.), 76. 1866. 81. Persons on foot. The liability for in- juries to foot passengers, occasioned by a col- lision with carriages, or cars, or engines in the streets, is the same as that which arises iu re- spect to a collision between two carriages meeting on the highway. Brand v. Troy and Schenectady B. B. Co., 8 Barbour (N. Y.), 868. 1850. 82. — It is error to instruct that a railway company is bound to use the utmost care and diligence in such cases. lb. 83. Presumption. A horse car of the de- fendant was passing upon its railroad without lights or bells, on a dark evening, in a street of New York city, obstructed by a sewer in the process of construction. The plaintiff, a sober cartman, was found dead upon the track, un- der circumstances authorizing the inference that he had fastened his horse, and was grop- ing in the dark to find a safe passage for his team, when struck by the defendant's car. There was no witness to the accident. Held, that the dangerous tendency of the defendant's conduct was such as, in the absence of any other evidence than the presumption that the INJURIES TO PEESONS ON THE TRACK. 455 Signals. plaintiff had the same regard for his safety as other men, to authorize the attributing of the accident to the negligence of the defendant. Johnson v. Hudson River R. R. Go., 20 N. Y., 65, 1859 ; reversing. Same ii. Same, 5 Duer (N. Y.), 31, 1855; Samev. Same, 6 ib., 633, 1857. 84. Rights of railway companies occupy- ing streets. A railway company, which is permitted to lay its tracks upon a public high- way, is not subject, in the running of its cars, to the ordinary law of the road. It has the ex- clusive right of way to that portion of the highway occupied hy its tracks, and a truck or cart passing along the highway must turn out of the Way for its cars, and the drivers of them cannot call upon the driver of the ra il- road company's cars to stop, or do any other act to avoid a collision, if the same result can be attained by their turning out. Ba/rJcer «. Sudson River R. R. Co., 4 Daly (N. Y.), 374. 1873. 85. Signals. It is gross negligence to per- mit a train of cars to move along without any signal, detached from the engine, and under the control of no one, in the streets of a popu- lous city. Ohiaago and Alton R. R. Oo. v. Qar- «ej^, 58 111., 83. 1871. 86. Statute. The act of March 20, 1845, forbidding the obstructions of streets, etc., is a general law, and applicable to a railway company subsequently incorporated. Penn- sylvania R. R. Go. 1). Kelly, 31 Penn. St., 373. 1858. 87. — Such obstruction being unlawful, the company is liable for any damages occasioned thereby, although the act imposes a specific penalty. Ib. 88. — In such an action, the doctrine of re- mote and proximate cause has no application. Ib. III. SlGJTALS. 89. Burden of proof. Railroad companies are not liable for any and all damages a party may sustain, when they have omitted to give a required signal, nor is the onus thrown upon the company until some proof has been given, tending to show that the injury complained of resulted from the want of a signal. Galena and OMcago Union R. R. Oo. v. Loomis, 13 111., 548. 1853. 90. Constitutional law. A general law which requires that a hell shall be rung or whistle sounded before crossing any other road, is binding on railroad corporations cre- ated before the passage of such law. Galena and'GMcago Union R. R. Go. «. Loomis, 13 111., 548. 1853. 91. Depot grounds. If at a railroad station the direct and usual course for passengers to reach from the station house cars waiting to receive them is by crossing one of the tracks, they have a right to rely, to some extent, upon proper and usual signals of warning to he given by trains or cars approaching. Gliaffee V. Boston and Lowell R. R. Go., 104 Mass., 108. 1870. 92. — The fact that such persons do not, at the instant of stepping upon the track, look to ascertain whether a train is approaching, is not conclusive of a want of due care on their part. Ib. 93. Evidence. Where there was no pre- tense that there was any negligence on the part of the defendant, except in the omission of the engineer to ring the bell, or sound the whistle, at a street crossing ; and the testimony of the engineer, upon that point, was positive and unqualified, that the whistle was blown and the bell rung, and another witness testi- fied that he heard the bell ringing, and saw the engine pass ; and this testimony was un- contradicted, except by the testimony of the plaintiff, and another person near by at the time, who swore that they heard no bell or whistle; lield, that a verdict in favor of the plaintiff was not warranted by the evidence; and a new trial was granted. Seibert v. Erie R. R. Go., 49 Barbour (N. Y.), 583. 1867. 94. — In respect to ringing the bell on the engine, jDositive evidence is entitled to more weight than negative evidence. Ghicago, Bur- lington and Quincy R. R. Go. v. Stumps, 55 111., 367. 1870. 95. — It is competent for a railway com- pany to show that the signals in use within a city were different from those set forth in its printed rules. Ghicago and Alton R. R. Go. v. Gretener,4em.,15. 1867. 96. — It is error for the court to permit the introduction of evidence showing that on former occasions the bell had not been rung or the whistle sounded as the trains passed the place where the accident occurred. OMcago, Burlington and Quincy R. B. Oo. v. Lee, 60 111., 501. 1871. 456 INJURIES -TO PERSONS ON THE TRACK. Signals. 97. Flagmen. If a railroad company has made a private crossing over its track, at grade, in a city, and allowed the public to use it as a highway, and stationed a flagman there to prevent persons from undertaking to cross when there is danger, it may be held liable in damages to one who, using due care, is in- duced to undertake to cross b/ a signal from the flagman that it is safe, and is injured by a collision which occurs through the flagman's negligence. Sweeney v. Old Colony and Nevo- port M. S. Co., 10 Allen (Mass.), 368. 1865. 98. Highway crossings. It is the duty of those in charge of a train, when approaching a public crossing, to give notice by whistling, ringing the bell or other device sufficient to warn of the approach of the train. Pittsburgh, Ft. Wayne and Chicago S. JR. Co. v. Dunn, 56 Penn. St., 280, 1867; Senwiek o. New York Central S. R. Co., 36 N. Y., 133, 186T; O'Mara V. Hudson liiver R. R. Co., 38 ib., 445, 1868. 99. — The bell should be rung not only be- fore crossing a street, but so long as there is danger of encountering passers by. Whiton 1). Chicago and Northwestern R. R. Co., 3 Bissell (U. S. C. C), 383. 1870. 1 00. — The extent to which persons ap- proaching a railway track have the right to rely, upon signals — considered. Mayo vJ Bos- ton and Maine R. R. Co., 104 Mass., 187. 1870. 101. — Where the engine driver sounds the whistle and rings the bell, and runs the train at a reasonable speed in approaching a cross- ing, he exercises reasonable and ordinary care, which is all the law requires. Toledo and Wabash R. R. Co. v. Qoddard, 25 Ind., 185. 1865. 102. — A failure to give a signal, by sound- ing a bell or whistle, is not of itself evidence of negligence. Galena and Chicago Union R. R. Co. V. Dill, 22 111., 264, 1859 ; see St. Louis, Jacksonville and Chicago R. R. Co. v. Terhune, 50 111., 150, 1869. 103. — Neither the statute nor any rule of law requires the giving of a signal by the train on approaching a highway crossing. Spencer v. Illinois Central R. R. Co., 29 la., 55, 1870 ; Artz v. Chicago, Rock Island and Pacific R. R. Co., 84 la., 158, 1871. 104. — The omission to make such signals, if required by statute, would not render the company absolutely liable for injuries to per- sons crossing the track, unless such injury results from the omission alone, without the negligence of the party injured. Ib. 105. — Nor would the absence of such statute excuse the company from making such signals under all circumstances. Ib. 106. — The failure of a railway train to give any signal when nearing a public cross- ing is not of itself negligence under the laws of Indiana unless the peculiar circumstances, the concealment of the train or the like, may render it necessary and proper. Rellefountaine R. R. Co. 1). Suntei; 38 Ind., 385. 1870. 107. Persons walking along the track. A person who is injured by a locomotive whilst he is walking along the track of a rail- - way, not at a crossing, cannot recover for such injury on the ground that it was caused by the neglect to ring the bell of the engine as required by the statute. QDonnell v. Provi- dence and Wm-e ster R. R. Co., 6 R. I. 211. 1859. 108. — Where the train is approaching a man walking along the ti-ack, and the bell is rung and the whistle sounded in time to enable him to get oflF, the company is not liable for an injury occurring to him. Finlaysrm v. Rail- road Co., 1 Dillon (8 U. S. Cir. Ct.), 579. 1871. 109. Starting of train. Although the stat- ute does not require a signal to be given upou the starting of a train, still the common law , requires the exercise of ordinary care, and in this particular case, it was Jteld, that the jury should say whether the omission to give any signal was negligence, the party injured hav- ing been engaged in unloading the cars. Bar- ton «. New York Central R. R. Co., 1 N.Y. Sup. Ct., 297. 1878. 110. Statute. It is the imperative duty of a railroad company to sound the bell, and npt merely the whistle of the locomotive, in pass- ing through cities. (Wagn. Stat., p. 310.) ICen- nayde v. Pacific R. R. Go., 45 Mo., 255. 1870. 111. — The statute requiring " blow posts " at points 200 yards from crossings, signals to be given, etc., may be looked to as indicating the legislative mind upon the question of neg- ligence. Augusta and Savannah R. R. Co. v. McEVmurry, 24 Ga., 75. 1858. 112. — The omission of a railroad company to have a sign board at a highway crossing to warn persons approaching, as required by § 1381 of the Revision, does not alone render the company liable for injuries to persons or prop- ' INJURIES TO PERSONS ON THE TRACE:. 457 Signals. erty while attempting to cross the track at such point. The injured party must be free from contributory negligence. Dodge «. Burlington, Cedar Rapids and Minnesota B. B. Go., 34 la., 276. 1873. 113. — Tlie statute, §55, cli. 28, G. S., re- quiring the bells of locomotives to be rung, or the whistle blown, for a certain distance at crossings, imposes a duty on railroad compa- nies, not only in reference to persons approach- ing, or in the act of passing the crossing, but in reference to all persons who, being lawfully at or in the vicinity of the crossing, may be subjected to accident and injury by the passing train. Wakefield i>. Connecticut and Passump- sie Bivers B. B. Co., 37 Vt., 330. 1864. 1 14. — A compliance with the provisions of the Rev. Sts., ch. 39, §§ 78, 79, respecting the putting up of notices at railroad crossings, and the ringing of a bell when engines are passing over the same, will not exempt a rail- road company from its obligation to use rea, sonable care and diligence, in other respects, ■when running its engines over such crossings, if the circumstances of the case render the use of other precautions reasonable. Bradley v. Boston and Maine B. B. Co., 2 Gushing (Mass.), 539, 1848; Linfieldv. Old Colony B. B. Co., 10 ib., 563, 1853; WeJ6 v. Portland and Kennebec B. B. Co., 57 Me., 117, 1869. 115. — Whether or not it is negligence not to employ a flagman at such crossing, is a question of fact. Webb v. Portland and Kenne- bec B. B. Co., 57 Me., 117. 1869. 116. — An action will not lie against a rail- road company, under the § 39 of the general railroad act, for an injury caused by its neg- lect to ring the bell, or sound the steam whistle, after the cars have passed a crossing. The statute only requires the ringing of the bell, or the sounding of the whistle, when the cars are approaching a crossing. Wilson v. Boehester and Syracuse H. B. Co., 16 Barbour (N. Y.), 167. 1853. 117. — The omission to give the signals at a highway crossing, as required by the statute, is not in itself evidence of gross negligence. Leavenworth, Lawrence, etc. B. B. Co. v. Bice, IdKans., 426. 1873. 118. — The failure of a railway company to comply with the statute by ringing the bell, etc., at a crossing, will not render it liable to damages for an injury sustained by a person crossing the track, at such crossing, who has gone upon the track without looking for an . approaching train. Ernst v. Hudson Biver B. B. Co., 32 Barbour (N, Y.), 159, 1860; Same v. Same, 39 N. Y., 61, 1868 : Wilcox v. Bom^, Wa- tertown and Ogdensburg B. B. Co., ib., 358; Eartyv. Central B. B. Co. of N. J., 43 ib., 468, 1870; Havens v. Erie B. B. Co., 41 ib., 296, 1869; Baxter v. Troy and Boston B. B. Co., 41 ib.. 502 ; Gorton t. Erie B. B. Co., 45 ib., 660, 1871. Dascomi v. Buffalo and State Line B. B. Co., 37 Barbour (N. Y.), 231, 1858; Havens v. Erie B. B. Co., 53 Barbour (N. Y.), 338, 1869 ; Ernst V. Hudson Biver B. B. Co. 19 Howard's Pr. (N. Y.), 305, 1860; Sanw v. Same, 34 ib., 97, 1863; Same v. Same, 31 ib., 63'!n; 35 ib., 64]n,; 32 ib., 61, 1866; 33 ib., 363, 1862; 36 ib., 84, 1868; Same v. Same, 3 Abbott's Pr. N. S. (N. Y.), 82, 1866. 119. — The gross negligence of the person injured at a railway crossing by a passing train will defeat his action for damages, not- withstanding the omission of those running the train to ring the bell or sound the whistle as required bylaw. Steves v. Oswego and, Syra- cuse B- B. Co., 18 N. Y., 423. 1858. 120. — A charge to the jury, in an action brought against a railway company for negli- gently causing the death of the plaintiff's in- testate, at a railway crossing in a city, to the effect that even if it appeared from the evi- dence that the signals were not given for the entire distance required by law, it would not necessarily follow that the company would be liable, if the bell was rung or whistle sounded for such a distance from the place of the acci- dent as fully and fairly to give the deceased timely and sufficient warning that the train was approaching, in time to prevent him from crossing or attempting to cross the track, sustained as correct. Cook v. New York Central B. B. Co., 5 Lansing (N. Y.), 401. 1871. 121. — The provision of the code giving a cause of action in case of injuries arising from neglect of a railway company to have the whistle blown at a highway crossing does not require that there should be an actual collision with the cars or engine and the in- jured person. Oeoi-gia B. B. Co. v. Wynn, 43 Ga.,381. 1871. 458 INJURIES TO PERSONS OX THE TRACK. Negligence. IV. Negligence. (See Bubdivisiou I, Street and Highway Crossings, ante, 447.) 1. Contributory negligence. 122. Comparative negligence. If a collis- ion occurs at a public crossing, and the plaint- iff, by the exercise of common care, might have avoided the injury, he cannot recover although the railway company was also in fault. Macon and Western B. R. Co. v.Winn, 19 Ga., 440. 1856. 123. — Railroad companies are under the same pbligations with other persons to use their own property so as not to injure others, and though a person be injured while unlavr- fully on their track, or contributes to the in- jury by his own carelessness, or negligence, yet the injury might have been avoided by the use of ordinaiy care and caution by the railroad company, it is liable for damages tor the injury. Brown v. Hannilal and St. Joseph B. B. Go., 50 Mo., 461. 1873. 124. — A railroad company has a right to stop its train at a public crossing for a reason- able time for proper purposes, but passengers are not obliged to wait until the train is re- moved ; and if the passengers are obliged to cross at other points than the public crossing on account of such obstruction, the company is bound to use ordinary care and diligence to pi;event injuries to them; and when persons were in the habit of crossing the track at an- other than the public crossing, the agents and servants of the company were bound to take notice of the fact, and use a precaution com- mensurate with it. lb. 125. — It appeared that the deceased was a track repairer in the service of another com- pany, with whose road the defendant's track connected at the place where the accident oc- curred. It was a point where the tracks were numerous, and engines constantly in motion in great numbers. W^hile cars were being pushed by an engine, the deceased stepped upon the track in front of the moving cars, with his back to them, and his cap drawn closely over his ears, not looking about to see if there was danger, which he could easily have discovered, though he well knew the danger of the place. The cars overtook him, and he was killed. He was Jield to have been guilly of such recklessness, that there could be no recovery, unless a greater degree of neg- ligence on the part of the company could be shown. Chicago and Northwestern B. B. Co. V. Sweeney, 53 111., 325. 1869. 126. Depot grounds. One of the defend- ant's tracks, connecting two depots near a city, ran within six or eight feet of the top of steps leading to the basement of a flouring mill ; and plaintiff's decedent passed over the track and down the steps into the mill, and soon after returned with two bags of flour on his right shoulder, which completely ob- structed his view on that side ; and stepping in front of a train approaching from the right at a speed of four miles an hour, he was im- mediately run over and killed. Held, that there was such contributory negligence on the part of the deceased that the administrator could not recover. Bothe v. Milwaukee and St. Paul B. B. Co., 31 Wis., 256. 1866. 127. Effect of contributory negUgence. There can be no recovery if the injured party was guilty of contributory negligence. Telfer V. Northern B. B. Co., 1 Vroom (N. J.), 188, 1862 ; Bunyon v. Central B. B. Co., 1 Butcher (N. J.), 556, 1856 ; Moore i>. Same, 4 Zabriskie (N. .!.), 268, 1854; Baltimm-e and OhioB. B. Co. V. Breinig, 25 Md., 378, 1866; Same v. Fryer, 30 ib., 47, 1868 ; Lafayette and Indianapolis B. B. Co.v. Huffman, 28 Ind., 287, 1867; Spencer ■0. TTtiaa and Schenectady B. B. Co., 5 Barbour (N. Y.), 337, 1849; McGrath v. Hudson Biver B. B. Co., 33 ib., 144, 1860; Catroll v.- Minne- sota Valley B. B. Co., 13 Minn., 30, 1868. 128. — Any degree of contributory negli- gence will prevent a recovery on the part of the plaintiff. O'Brien v. Philadelphia, Wil- mington and Baltimore B. B. Co., 3 Phila. Rep. (Penn.), 76. 1858. 129. Empty cars. Where a person, who has just alighted from a train, for a personal necessity of his own steps behind some empty cars standing upon the track, and while thus engaged, the empty cars are struck by another train and backed over him and he is killed, he is guilty of such conti-ibulory negligence as to exonerate the railway company from re- sponsibility for the injury. Van Sehaick v. Hudson Biver B. B. Co., 43 N. Y., 527. 1871. 130. Evidence. In an action brought to recover damages arising from negligence, the plaintiff must prove the defendant's negligence, and his own freedom from any negligence con- INJUEIE8 TO PERSONS ON THE TRACK. 459 Negligence. tributing to the injury. MeGratli v. Hudson River R. R. Co., 33 Barbour (N. Y.), 144, 1860; Same «. Same, 19 Howard's Pr. (N. Y.), 211, 1860 ; Spencer v. Utiea and Schenectady R. R. Co., 5 Barbour (N. Y.), 337, 1849. 131. Exposure in efforts to save life. "Where the plaintiff's intestate, seeing a little child on a railway track and a train swiftly approaching, so that the child would be almost Instantly crushed unless an immediate effort -was made to save it, and thereupon, in the sudden exigency of the occasion, rushing to save the child, and succeeding in that, lost his own life by being run over by the train; it was held, that his voluntarily exposing himself to the danger, for the purpose of saving the child's life, was not, as matter of law, negli- gence on his part pecluding a recovery. Eckert v. Long Island R. R. Co., 43 N. Y., 503, 1871 ; see Sam^ v. Same, 57 Barbour (N. Y.), 555. 1870. ' 132. — A locomotive and gravel train were standing, temporarily, on the railroad track at a station on the line of a railroad ; and about the time the train started to back down the road, two persons, a father and son, started to come up toward the station on the track, from a mill, a sliort distance below. As the train approached them, the son stepped off the track, but seeing that his father was still on the track, and in the way of the train, the son stepped back and took him ofif the track, but was not able, himself, to avoid the train, but received an injury resulting in the loss of his leg. The train was not moving faster than four miles per hour, and the persons manag- ing the train, when they perceived that both persons did not leave the track, reversed the engine, and made every effort to stop the train. Held, that the injury complained of did not result from any want of care, on the part of the company or its employes, and hence, the company was not liable for damages. Mvans- ville and CrawfordsvUle R. R. Co. ■». Hiatt, 17 Ind., 103. 1861. 133. — When a plaintiff is in fault, but the defendant is aware of it in time to avoid in- juring him, by reasonable diligence, the fail- ure to use such diligence is held to be, alone, the proximate and immediate cause of the in- jury, li. 184. Failure to stop team. The plaintiff ' was, under the facts of this particular case, held to be guilty of contributory negligence, he having seen the smoke of the approaciiing train, but made no effort to stop his, team to prevent a collision. Chicago and Alton R. R. Co. V. Fears, 53 HI., 115. 1870. 135. Jury to determine the question of negligence. The question of contributoiy neg- ligence is a question for the jury to determine from the evidence, undqr proper instructions. Webb V. Portland and Kennebec R. R. Co., 57 Me., 117. 1869. 136. Nonsuit. Where the plaintiff was clearly guilty of contributory negligence, he should be nonsuited, but not so where there is a conflict of evidence upon that point. Hack- ford V. New York Central and Hudson River R. R. Co., 53 N. Y., 654, 1873; Having «. New York and Brie R. R. Co., 13 Barbour (N. Y.), 9, 1853; New Jersey R. R. Co. v. West, 4 Yroom (N.J.), 430. 1867. 137. Passing through or under train. It was held to be negligence for a person to at- tempt to climb tlirough a freight train in the evening without looking to ascertain if an en- gine is attached to the train. Lewis v. Balti- more and Ohio R. R. Co., 38 Md.. 588. 1873. 138. — An attempt to pass between cars in motion, propelled by an engine, if no reason appears to j ustify the attempt, shows such want of care as to prevent the plaintiff from recov- ering for an injury received while making such attempt. Oahagan v. Boston and Lowell R. R. Co., 1 Allen (Mass.), 187. 1861. 139. — The act of passing under a train of cars after darlt, is an act of gross negligence, and where a person is injured while engaged in such an act, he cannot recover. Central R. R. Co. V. Dixon, 43 Ga., 337. 1871. 140. Persons should look and listen. It is negligence for a person to drive a team upon a railway track and stop it there, without look- ing for the cars. Brooks v. Buffalo and Niag- ara Falls R. R. Co., 1 Abbott's Ct. of Ap. Dec. (N. Y.), 311. 1855. (See sub-divisions I and III, ante, 447, 455, of this title.) 141. — It is no excuse for a plaintiff that he was absent minded, and did not look to see, or stop to hear, the cars. Lake Slwre and Michi- gan Southern R. R. Co. v. Miller, 35 Mich., 374. 1873. 142. — Where it appeared that there were five parallel tracks, and a space of five feet be- .400 INJURIES TO PERSONS OK THE TRACK.' Negligence. tween the tracks, next to the track on which the plaintiff was injured, on which the plaint- iff might have stood, and looked up and down the track far enough to have seen the approach- ing train, and it also appearing that until reaching the space of five feet, the view had heen obstructed by standing cars, and that the plaintiff, in crossing the space of five feet on the track, was engaged in looking up and down the track, and was looking in the opposite di- rection when struck by the engine, it was Tield, that the question of contributory negligence belonged' to the jury, and that a motion for a nonsuit was properly denied. Beinegelv. New York Central B. S. Co., 14 Abbott's Pr. N. S. (N. Y.), 39. 1870. 143. Sidetracks. Where it appeared upon the trial that an engine and cars were on a side track of the defendant, and one of the cars was to be loaded with lumber by N. and Co., who had a contract with the defendant for its trans- portation ; that the plaintiff, being employed by N. and Co. to assist in placing the car op- posite to their lumber, which was on an adja- cent wharf of the defendant, uncoupled the car and pushed it opposite to the lumber, not knowing that there was an engine on the track ; that, in uncoupling the cars, he went between them ; that he pushed the car down, walking on the track ; and that the defendant's servants backed the engine and other cars upon him, and he was jammed between the cars and in- jured. Held, that these facts disclosed such negligence on the part of the plaintiff as to prevent him from recovering. Burns v. Boston and Lowell B. B. Co., 101 Mass., 50. 1869. 144. Snow storm. What facts and circum- stances ought to be submitted to the jury upon the question of contributory negligence, ex- amined with relation to a particular case, where the party injured attempted to cross the track during a snow storm. Mackford v. New York Central and Hudson Biver B. B. Co., 43 Howard's Pr. (N. T.), 333, 1871 ; Same v. Same, 6 Lansing (N. Y.), 381, 1871. 145. Teamster. In an action brought against a railway company, for injuries received by the plaintiff, in a collision between a locomo- tive and the wagon in which he was riding, negligence on the part of the person owning and driving the team, affects the right of the plaintiff to recover, equally with his own neg- ligence. Lake Shore and Michigan Southern -. B. B. Co. V. Miller, 35 Mich., 274. 1873. 146. Uncoupling ears. A railway com- pany is not liable for injuries occasioned by the negligence of its servan ts upon a stranger to the company, while engaged in the volun- tary act of uncoupling its oars, if, by his neg- ligence, he contributed to the injuiy com- plained of. New Orleans, etc., B. B. Co. v. Har- rison, 48 Miss., 113. 1873. 2. Comparative negligence. (See ante, 438, In this subdivision, under head of Con- tributory Negligence. 147. Crossing track with team. The doc- trine of comparative negligence aflBrmed with reference to injuries sustained in crossing a railway with a team. Chicago, Burlington and QuincyB. B. Co. «. Payne, 59 111., 534. 1871. 148. Degrees of care. Where there is mu- tual fault, the party guilty of the greater wrong is to be considered the aggressor. Macon and Western B. B. Co. v. Davis, 37 Ga., 113. 1859. 149. — In case of mutual neglect, to author- ize a recovery by the plaintiff, the negli- gence on the part of the defendant must be so much greater than that of the plaintiff, as to clearly preponderate. Chicago, Burlington and Quincy B. B. Go. v. Payne, 49 111., 499. 1869. 150. — If the plaintiff has exercised reason- able care, though he may have been guilty of some negligence, he is still entitled to re- cover for any injury sustained in consequence of the defendant's negligence. Baltimore and Ohio B. B. Co. D. Pitzpatrick, 35 Md., 33. 1871. 151. — Railroad companies should use reasonable care, and although the plaintiff may have been at fault, yet if the injury could have been prevented by the exercise of ordi- nary care upon the part of the railway com- pany, it will be liable. Macon and Western B. B. Co. D. Davis, 18 Ga., 679. 1855. 152. — A person who, in crossing a rail- road track, could have seen the cars approach, but turned his back to that direction, and had his ears so bandaged that he could not hear, is guilty of such negligence as will prevent his recoveiy for injuries, unless he can prove a greater degree of negligence on the part of the railroad company. Chicago and Bock Island B. B. Co. v. Still, 19 111., 499, 1858. 153. Gross negligence. A railroad com-. INJURIES TO PERSONS ON THE TRACK;' 461 Negligence. panjr is not liable for injuries occurring to persons who are guilty of gross negligence ■when the company exercises ordinary care. Sims «. Macon and Western B. B. €■>., 28 Ga., 93. 1859. 3. Negligence of rdilivay company. 154. Train cut in two. Since the business of railway companies involves great risk to human life, especially in running trains across highways in populous places, the law requires the utmost care. Butler v. Milwaukee and St. Paul B. B. Co.. 28 Wis., 487. 1871. 155. — Where a train, in passing through a populous village, was cut in two, and ten rear cars, being separated from the ten front cars and engine by a distance of fifteen or twenty rods, while running across a public street, struck and killed plaintiff's intestate, there being no person on the front car of said rear section on tlie look out for, and ready to warn, persons approaching, and no flagman at the crossing : lieM, that these facts were evidence of gross negligence on the part of the company. Ih. 156. — When the engine and first section of cars passed the street, deceased was standing at the head of his horse, harnessed to a buggy, about twenty-seven feet from the track, facing towards the rear section, but with his horse's head and neck intervening. The horse en- deavored to escape, and in the effort to hold him, deceased was drawn upon the track and killed by collision with the rear section of the cars. Held, that if he actually saw the cars approaching, he was chargeable with negli- gence. Tb. 157. — It was not error to refuse to instruct the jury, that "if he saw the cars approach- ing, or might have seen them by looking," he was guilty of negligence. li. 158. — The court cannot say against the verdict, either that the deceased did see the cars approaching, or that he was chargeable with ^legligence in not seeing them. Ih. 159. — The fact that the deceased incurred great risk from his own horse, while lawfully endeavoring to prevent its escape, is not proof of negligence on his part such as will dis- charge the railroad company from liability. Ih. 160. Backing train. Where an action was brought against a railway company for negli- gently causing the death of A., and it appeared from the evidence that A. and others in the employment of a union railway company were at work at a certain point on the track of such union company over which trains could pass at that point; that a train of cars owned and run by defendant was backing at the time; that the bell of the locomotive was ringing; that there were four or five cars in the train and no method of communicating with the engineer from the rear of the train ; nor was there any brake in working order on the car farthest from the locomotive, althougli a brake- man was on the rear end of the car, the loco- motive being at the other end of the train; nor was any person in advance of the train to warn others of its approach. The engine was in charge of the fireman, the engineer being absent to procure a drink. The other persons employed with B. at work on the track stepped off, and some one called to him to " look out," when B., instead of stepping back, stepped forward, and was struck and killed. The fire- man and one brakeman were the only persons in charge of the train. This instruction was asked and refused : " If, at the time deceased was killed, it was his duty to be engaged upon the track at that place, and he might have seen the approach of the train by exercise of reasonable care, as by looking up, then the failure to do so, if he did so fail, was negli- gence on his part; and if such negligence contributed to his injury, then the jury should find for the defendant." Held, that there was no error in this ruling. Eeld, also, that this evidence was suflScient to sustain a finding against the railway company. Indianapolis, Bloomington and Western B. B. Co. ■». Oarr, 35 Ind., 510. 1871. 161. Particular case. The question of negligence in crossing a railway discussed with reference to the facts of a particular case. CMcago and Alton B. B. Co. v. Qretzner, 46 111., 75. 1867. 4. Gross Negligence. (See ante, 460, in this snbdiyision of the preeent title.) 162. Effect of gross neglect. If the de- ceased came upon the railroad track, at the crossing, without ordinary care, — still, if the servants of the road, after they saw his danger, might have avoided the fatal result by the 462 INJURIES TO PERSONS ON THE TRACK. Injuries to Children. exercise of ordinary care, and through their gross negligence, drove upon him and killed him, defendant would be liable. State v. Manchester and Lawrence B. B. Co., 52 N. H., 528. 1873. 163. — Where the safety of a person is put in imminent danger, by the gross negligence or want of ordinary care of the employes of a railroad company, and in attempting to es- cape danger, such person is seriously injured, it is no relief to the company that the person misjudged as to the danger, unless the plaint- iff acted from a rash misapprehension as to the true situation. Macon and Western B. B. Co. V. Winn, 26 Ga., 250. 1858. 1 64. — Where the neglect of the defendant is so gross as to imply a disregard of conse- ci.uences, or a willingness to inflict the injury, the plaintiff may recover, though he be a tres- passer, or did not use ordinary care to avoid the injury. Lafayette and Indianapolis B. B. Co. v. Adams, 26 Ind., 76. 1866. 165. Intoxicated person. Where an intox- icated person places himself, in the dusk of the evening, upon the track of a railway, in a city, and is there run over and killed, the rail- way company is not liable for the injury, un- less it is guilty of gross negligence or willful neglect of duty. Illinois Central B. B. Co. ». Hutchinson, 47 111., 408. 1868. 5. By whom the question of negligence is to he determined. (Decisions upon this question will also be foand under the various other heads of this Digest.) 166. Death. In a suit by the legal repre- sentatives of A., against a railway company for damages caused by his death, the question whether the facts constituted such negligence as to render the corporation responsible, was exclusively for the jury to determine. Ken- nayde v. Pacific B. B. Co., 45 Mo., 255. 1870. 167. Degrees of care. One who passes along an obstructed highway is bound to ob- serve ordinary care, that is, such care as a reasonably prudent man, under the peculiar circumstances of the case, would exercise to preserve himself and property from injury. Pennsylvania B. B. Co. «. McTigli£, 46 Penn. St., 316. 1863. 168. — In an action against a railway com- pany to recover damages for an injury sus- tained by a collision with cars standing on the track in a public highway, in the daytime, in view of a witness who testified as to all the particulars, it was held immaterial upon whom the onus of proving or disproving negligence was cast by the court, as it was for the jury to determine, under the circum- stances, whether or not the plaintiff had been guilty of inexcusable negligence. Ih, 169. — In such case, it is not error to refuse to instruct the jury that "it lay upon the plaintiff to show that he had used that degree of ca;e and prudence which was necessary to have prevented a collision with defendant's cars, and that he must show this affirmative- ly;" nor that " in a public street and not dan- gerous per se, if a person comes against an obstruction in the day time and receives in- jury, he cannot recover against the wrong doer, without showing affirmatively that he had used that amount of care which was re- quired under the peculiar circumstances of the case to pass by it, and having used the same, is nevertheless damaged ;" such stand- ards of care are not reasonable, as, under them, the occurring of the accident would have been proof of negligence. lb. 170. When it is for the court to decide. Negligence is, in all instances, a question of fact, and it is only where a question of fact is entirely free from doubt that the court has the right to apply the law without the action of the jury. Bemiwrdt v. Bensselaer and Saratoga B. B. Co., 33 Barbour (N. Y.), 165, 1860 ; see Same v. Same, 18 Howards's Pr. (N. Y.),.427, 1859; 19 ib., 199, 1860; 23 ib., 166, 1861 ; Central B. B. Co. v. Moore, 4 Zabris- kie (N. J.), 824, 1854. V. Injuries to children. 171. Climbing upon the cars. Where two boys, without the knowledge of the train men, climbed upon the rear car of a train that was being slowly moved around a curve by an engine used for making up trains, and by a sudden jolt, the boys were thrown from the car and run over, it was 7ieM, that they were guilty of contributory negligence, and no cause of action arose against the company on account of the injury. State v. Baltimore and Ohio B. B. Co., 24 Md., 84, 1865 ; Bannon «. Same, ib., 108, 1865. INJURIES TO PERSONS ON THE TRACK. 463 Injuries to Children. 172. Damages. In an action brought to recover damages for the loss of service of the plaintiff's son, caused by an injury received through the negligence of the defendant's serv- ant, the plaintiflF is confined to loss of service before suit brought, together with reasonable compensation for the expenses incurred, and care bestowed by himself and servants during the illness of the child. He cannot recover for the prospective loss during the minority, unless he has declared specially therefor. Oilligan v. New York and Harlem B. B. Co., 1 E.D. Smith (N. Y.),453. 1852. 173. Defective roadway. Where a boy, sixteen or seventeen years of age, in running with a fire engine at night, upon an alarm of fire, in the road bed of a railway company, in a street which the company was required to keep in repair, stepped into a hole therein, fell across the track, and was run over by the en- gine and injured; the rule of damages in an action by the father against the company, was compensation for the loss of services, for nurs- ing and for medical attendance. Oaldand B. B. Co. V. Fielding, 48 Penn St., 330. 1864. 1 74. Ditch left open. It is not negligence for a railway company to leave open a ditch across its track, two feet wide and eight inches deep, to carry off the surfdce water, and where a child was playing in such a ditch, and was thereby concealed from view of the engineer until too late to stop the train, and was injured, the company was held not liable. Meyer o. Midland Pacific B. B. Co., 2 Neb., 820. 1871. 175. Duty of railway companies. It is not a part of the duty of a railway company to maintain a guard over its oars left standing upon its track, in order to keep children, play- ing about them, from getting upon or under them, and thereby save them from injury. Chi- cago and Alton B. B. Go. v.McLaughlin,4'7 111., 265. 1868. 176. Evidence. In an action by a youth for damages for a personal injury, it was held proper to show the means of support of the father, and the number of his children. This testimony, however, should not affect the ques- tion of damages. It could only be offered to show the probable pursuits and occupation of the plaintiff. Baltimore and Ohio B. B.-Oo. ». BMpley, 31 Md.,368. 1869. 177. How far age is to be considered. If an infant insists on a right of action, it is in- I cumbent on him to show compliance with the conditions on which his right of action is to arise, irrespective of his age. Monegsberger v. Second Avenue B. B. Co., 1 Keyes (N. Y.), 570, 1864; Same v. Same, 33 Howard's Pr. (N. T.), 193, 18C4; reversing. Same v. Same, 1 Daly (N. Y.), 89. 1860. 178. — The infancy of the injured party does not change the degree of care and dili- gence required of a railway company in the management of its trains. Bannon v. Balti- more and Ohio B. B. Co., 34 Md., 108. 1865. 179. Negligence of child. Contributory negligence cannot be shown as against a child of tender years. Mahoney v. Bailroad Co., 6 Philadelphia Rep. (Penn.), 343, 1867; Kay «. Pennsylvania B. B. Co., 65 Penn. St., 269, 1870; North Pennsylvania B. B. Co. v. Mahoney, 57 ib., 187, 1868; Schmidt v. Milwcmkee and St. Paul B. B. Co., 23 "Wis., 186, 1868; Chicago, etc., B. B. Co. V. Gregory, 53 111., 226, 1871. ISO. — When the question is one of simple negligence, there is no distinction between the case of a child unnecessarily exposed and that of a grown person, but where the question is one of gross neglect or willful misconduct, the rules applicable to the two cases are different. Lafayette and Indiana/polis B. B. Co. v. Euf- man, 28 Ind., 287. 1867. 1 81. — The same strict rules as to contrib- utory negligence do not prevail as to children that are in force as to adults. Bailroad Go. v. Stout, 17 Wallace (U. S.), 657, 1873; Boland v. Missouri B. B. Go., 36 Mo., 484, 1865 ; Pendril V. Second Avenue B. B. Co., 2 Jones and Spen- cer (N. Y.), 481, 1872; Warner o. Bailroad Go., 6 Philadelphia Rep. (Penn.), 537, 1868. 182. — The terms, ordinary and reasonable care are relative and dependent, and in de- termining whether such care has been used, the age and capacity of the person injured should be considered. Baltimore and Ohio B. B. Co. V. The State, 30 Md., 47. 1868. 183. — An infant, when suing in his own behalf for injuries to his person arising from the negligence of others, must be free from contributory negligence on his part. The rule is the same whether the action be by an infant or an adult. Burke v. Broadway and Seventh Avenue B. B. Co., 49 Barbour (N. Y.), 529, 1867; Same v. Same, 34 Howard's Pr. (N. Y.), 239, 1867. 184. — The father of an infant, suing for 46i INJURIES TO PERSONS ON THE TRA.CK. Injuries to Cliildren. damages sustained by the latter tlirough the negligence of others, can recover only under such circumstances of prudence as would be required if the action were in behalf of the infant. II). 185. — If the neglect of a boy (of six years of age) to exercise the ordinary degree of prudence of au adult contributed to the injuiy, the father cannot recover. Honegsberger v. Second Avenue E. JR. Go., 2 Abbott's Ct. of Ap. Dec. (N. T.), 878. 1864. 186. — Where an infant, 18 months of age, gets upon a railroad track in (Tonsequence of the failure of the company to erect a fence as required by law, and is injured, the parents being in the exercise of ordinary care, the company is liable to it for the injury. Schmidt v. Milwaukee and St. Paul R. B. Go., 23 Wis., 186. 1868. 187. — A child of tender years was taken for the purpose of protection, into the arms of a person to whose care she was not entrusted, and by the negligence of such person in falling on the track was injured by an engine. Meld, that such negligence was not contributory neg- ligence so as to discharge the railway company, its servants being also negligent. North Penn- syltania U. B. Go. v. Mahoney, 57 Penn. St., 187. 1868. 188. — Though an action in such case would lie at the suit of the child against the person who took her into her arms, yet suit could be brought against either or both. J6. 189. — Where due diligence is exercised in running a train across a street in a city, the company is not liable, simply because it was running there, for an injury to a child which suddenly placed itself on the track in front of the cars. Meyer v. Midland Pacific B. B. Co., 2 Neb., 319. 1871. 190. — It is not the duty of an engineer to stop the train whenever he sees a child of tender years running towards it. The situa- tion of the parties is to be considered, and the engineer must exercise the judgment of a prudent person, having due regard to all the circumstances and to the safety of the passen- gers, lb. 191. — The rules which regulate the dis- tance at which trains shall run from each other are intended solely for the protection of the property of the company, and the safety of its employes and passengers, and not for persons who may be traveling along the high- way; and no inference of negligence can be drawn from the proximity of trains, in an ac- tion to recover damages for an injury done to a person while crossing the track at a place not known or used as a public crossing. Phila- delphia and BeaMng B. B. Co. v. Spearen, 47 Penn. St., 300. 1864. 192. — Where a child about five years of age, in attempting to run across a railway be- tween a coal train and an engine which was following close behind it, was struck and ini- jured, it was held, that the company was not liable for the damages without proof of want of ordinary care In tlie engineer at the time and place of the accident. Pb. 19.S. Negligence of parents. If parents permit a child of tender years to run at large without a protector, in the streets of a city traversed by cars and other vehicles, they are guilty of contributory negligence, in case of iiijury to the child. Pittsburg, etc., B. B. Co. ■V. Pearson, 72 Penn. St., 169, 1872; see Kay v. Pennsylvania B. B. Co., 65 ib., 269, 1870; Pitts- burgh. Fort Wayne and Chicago B. B. Go. v. fining's Adm., 27 Ind., 513, 1867; Lafayette and Indianapolis B. B. Co. u. Huffman, 28 ib., 287, 1867; Jefersonville, etc., B. B. Co. v. Bowen, 40 ib., 545, 1872. 194. — The negligence of a parent or cus- todian of child cannot be imputed to the child, to bar its right of action. Bellefontaine and Indiana B. B. Co. v. Snyder, 18 Ohio St., 399, 1888 ; Daley v. Norwich and Worcester B. B. Co., 26 Conn., 591, 1858. 195. — It is the duty of persons in charge of cars passing along streets to exercise great caution; and if, by failure to do so, a child of tender years is injured, the company repre- sented is liable in an action by the child, not- withstanding the negligence of the parent in permitting it to be upon the track, or of the person in charge of the child in not keeping a proper look-out for the cars. 76. 196. — A person injured by the negligence of another is not barred of his remedy by the fact that at the time of the injury he was nominally trespassing upon the premises oi the person injuring him, if his trespass does not involve negligence on liis own part, sub stantially contributing to produce the injury Daley v. Norwich and Worcester B. B. Co., 2f Conn., 591. 1858. INJURIES TO PERSONS ON THE TRACK. 465 Injuries causing Death. 197. — If the plaintifl', although an infant, was unlawfully upon the track, the company IS not liable. Crawford v. Ilailroad Co., 5 Philadelphia Rep. (Penn.), 359. 1864. 198. — Though an infant of tender years may recover for an injury, partly caused by his own imprudent act, the father cannot. CHusaey v. Hestonville, Mantua and Fairmount B. B. Co., 57 Penn. St., 172. 1868. 199. — It makes no difference whether the injury was to the father's absolute or relative rights, n. 200. — It is negligence for a father to per- mit a child of four years of age to run unpro- tected in the streets of a city traversed by cars and other vehicles. lb. 201. — The fact that such child is thus found is presumptive evidence that he was ex- posed voluntarily or negligently. lb. 202 — pleading. In a complaint for dam- ages for an injury to a child of tender years, it is sufficient to aver that the injury hapijened without the fault of the parents with whom the child resided. Pittsburgh, Fort Wayne and Chicago B. B. Co. v. Vining's Adm'r, 27 Ind., 513. 1867. 203. — In an action for injuries to a child resulting in death it appeared that the child killed was sent across defendant's track unat- tended except by a child nine and one-hiilf years old. Seld, that this was not per se such negligence as would defeat a recovery. Ihl v. FoHy-second Street B. B.Co., 47 N.T., 317. 1872. 204. — If the deceased child was exercis- ing due care, and the injury was caused solely by the negligence of defendant's driver, the defendant was liable without regard to the question whether it was negligence in the parents to let the child go with so young an attendant. lb. 205. — Negligence upon the part of so young a child as the deceased, when there was no negligence upon the part of the parents or the attendant, would not absolve the defendant from liability. lb, 206. — The question of negligence of par- ents determined with reference to the facts of a particular case. Pittsburgh, Ft. Wayne and Chicago B. B Co., v. Bumstead, 48 111., 221. 1868. 207. Negligence of railway company. In tlie exercise of his lawful rights, every man has a right to act on the belief, that every other 30 person will perform his duty and obey the law. Jetter v. New Torlt and Harlem B. B. Co., 2 Keyes, (N. Y.), 154. 1865. 208. — If there be no negligence the in- capacity of the child' creates no liability on the company. Kay n. Pennsylvania, B. B. Co., 65 Penn. St., 269. 1870. 209. State railways. The conductor of a train, on a railway belonging to the state, has the right to direct all the movements of the train; and the engineers and teamsters em- ployed, whether the motive power be furnished by the Commonwealth or not, are regarded as agencies employed by him and are under his control. Bauch v. Lloyd & Hill, 31 Penn. St., 358. 1858. 2 1 0. — For an injury resulting to a person through the negligence of any of the agencies employed by him in the management of the cars the conductor and his employers are responsible. lb. 21 1. — Where the conductor permitted the train to stand on the crossing of a public street and absented himself from it and the teamster attached the horses to the train which was usually moved at that point by horse- power, and moved it and injured a child who was attempting to pass under the train at the crossing, it was held that it was as much the act of the conductor and his employ§s as if they had been present, and that the owners of the cars were liable. lb. 212. — A child is not to be judged by the same rule as an adult, and cannot be regarded as guilty of negligence for attempting to pass under a car, left standing across a street where he had a right to pass. Pennsylvania B. B. Co., V. Kelly. lb, 372. 1858. 213. Turn table. Under certain circum- stances, a railroad company may be liable, on the ground of negligence, for a personal injury to a child of tender years, in a town or city, caused by a turn table, built by the company upon its own uninclosed land, and which is left unguarded and unlocked in a situation which renders it likely to cause injury to chil- dren. Stout V. Sioux City and Pacific B. B. Co., 3 Dillon (U. S. C. C), 294. 1872. VI. Injuries causing death. 214. Child. A boy about twelve years old was killed at a highway crossing by defend 466 INJURIES TO PERSONS ON THE TRACK. Injuries causing Death. ant's railroad train; lield, that the boy was bound to exercise only such care as a person of his age, of ordinary prudence, would exer- cise, and under such rule, it was for the jury to say whether the deceased was guilty of con- tributory negligence. Meynoldt v. Mew York Central and Hudson River B. R. Co., 3 N. Y. Sup. Ct., 644. 1874. (See next subdivision, antej 462.) 215. — A child of from six to seven years of age was run over and killed by one of the de- fendant's cars, and plaintiff, as administrator of the child, brought suit to recover damages for the death of the child. Held, that no proof of any pecuniary or special damage to the plaintiff, or next of kin, in consequence of the death of the child, was necessary to sustain the action under the statute, Oldfield v. New York and Harlem R. R. Co., 14 N. Y., 310, 1856 ; Same V. Same, 3 E. D. Smith (N. Y.), 103, 1854; Ifil V. Forty Second Street R. R. Co., 47 ib., 317, 1872. 2 1 6. — statute. Under § 27 of the code, an action for damages for causing the death of a child, must be brought by the father, or in case of his death or desertion of his family, by the mother, or by the guardian for his ward. Pitts- burgh, Fort Wayne and Chicago R. R. Co. ii. Vi- ning's Adm'r, 27 Ind., 513. 1867. 217. — If there be no father, or mother, or guardian, then an administrator may sue, un- der § 784 of the code. And, in either event, the limitation of the action, the amount of re- covery, and the distribution thereof, will be governed by the provisions of § 784. Ib. 218. — The word "child," as used in §27, is not equivalent to the word " minor," but must be limited to persons under age who are dependent for support, protection, etc., upon their parents. It would not include one who, though a minor, had assumed the responsibili- ties of the head of a family. Ib. 219. Common law rule. The cause of ac- tion for an injury to the person dies with the person; though a husband may maintain a 'civil action for an injury to the wife, so far as medical service and funeral expenses were in- curred, or a pai'ent for a child up to its death, but not for the loss of life. Sden v. Lexington and Franicfort R. R. Co., 14 B. Monroe (Ky.), 204. 1853. 220. Contributory negligence. In an ac- tion by an administrator to recover damages for the negligent killing of his intestate by running over him with a street car, if the neg- ligence of the deceased contributed to the in- jury, the plaintiff is not entitled to recover. Kelly V. Rendrie, 26 Mich., 255. 1872. 221. Damages. In an action brought un- der the statute for the death of a person, the only question to be determined in estimating the damages, is the pecuniarj' loss resulting from his death to the widow and next of kin of such deceased person. Illinois Central R. R. Co. ■». Bacfies, 55 111., 379. 1870. 222. — Evidence is admissible in mitiga- tion of damages to show that the deceased was a drunken man and a burden on his fam- ily. Nashville and Chattanooga R. R. Co. v. Prince, 2 Heiskell (Tenn.), 580. 1871. 223. — It is not error in an action by a widow for the death of her husband, for the court, after giving correct instructions as to the measure of damages to add "much is left, and much must always be left to your sound discretion," It must be intended that this discretion is to be exercised, within the limitations previously prescribed to them by the court. Pennsylvania R. R. Co. v. Ogier, 35 Penn. St., 60. 1860. 224. Evidence. In an action for wi-ongfolly killing the plaintiff's intestate by running cars over him while crossing the track, it is incumbent on the plaintiff to show by direct testimony, or by presumptions arising from facts and circumstances, that the deceased was, at the time, rightfully and not negligent- ly or improperly on the track. Donaldson v. Mississippi and Missouri R. R. Co., 18 la., 280. 1865. 225. — bnrden of proof. Where a person has been killed on the track of a railway by a passing train, the burden of proof is upon the railway company to show that it had com- plied with the requirements of the statute. Smith V. Nashville and Cliattanooga R. R. Co., 6 Coldwell (Tenn.), 589, 1869. 22e. Husband and wife. The statute pro- viding a cause of action in cases of homicide does not give a husband a cause of action for the death of his wife. Georgia R. R. Co. v. Wynn, 42 Ga., 331, 1871 ; Sam^ v. Same, 43 ib., 163, 1871. 227. Illegitimate child. In an action by the administrator of a woman killed by the negligence of the employes of a railroad com. INJURIES TO PERSONS ON THE TRACK. 467 Injuries causing Death. pany in running its loconiotlve, the petition alleging and the proof showing the deceased to have left a son as her sole surviving heir; held, that it is error to order a nonsuit, on tlie ground that such child is illegitimate. The fact of such child's legitimacy or illegiti- macy can in no respect effect the right of ac- tion in his behalf. MiiM's Adm^r v. Southern Michigan, R. B. Co., 10 Ohio St., 273. 1859. 228. Indictment. An indictment to recover the penalty fmposed by the statute need not negative the existence of circumstances which, under a proviso contained in the statute, would exonerate the defendant from liability. Com- monweaXth c. FitMurg B. B. Co., 10 Allen (Mass.), 189. 1865. 229. Instantaneous death. An action lies in behalf of the administrator of the person killed although his death was instantaneous. Naahmlle and Chattanoogii M. B. Co. v. Prince, 3 Heiskell, Tenn., 580, 1871 ; overruling Louis- ville and Nadtmlle B. B. Co. i). Burke, 6 Cold- well (Tenn.), 45, 1868. 230. — The statute (Rev. Stat, tit. 1, g 83), provides that "actions for injuries to the per- son, whether the same do or do not result in death, shall survive to the executor or admin- istrator." Under this statute an action can be maintained where the death was instantaneous. Murphy V. New York and New Haven B. B. Co., 30 Conn., 184. 1861. See also Same v. Same, 29 Conn., 496, 1861. 231. — It is immaterial, under the statute (ch. 256 of 1849), whether the death was instan- taneous or consequential. Brown v. Buffalo and State Lim B. B. Co., 33 N. Y., 191. 1860. 232. Neglect of employes after the in- jury. The deceased was run over and injured by a train of cars of the Northern Central R. B. Co. After the train was stopped, the in- jured man was found upon the pilot of the engine in a helpless and apparently lifeless condition, and was removed from thence by the employes of the railroad company, and locked up in a warehouse at night. On open- ing the warehouse in the morning, he was found to have come to life during the night, and to have afterwards died from hemorrhage of an artery which had been severed by the collision. JTeld, that from whatever cause the collision occurred that thereupon at once it became the duty of the railway company's agents in charge of the train, to remove the injured person, and to do it with a proper regard to his safety and to the laws of human- ity. And if in removing and locking him up, although he was apparently dead, negligence was committed whereby his death was caused, there is no principle of reason or of justice upon which the railroad company can be exonerated from responsibility. Northern Cen- tral B. B. Co. V. The State, 29 Md., 420. 1868. 233. Pleading. In an action against a railroad company for the killing of plaintiff's husband, the petition contained two counts, framed respectively on the second and third sections of the act relating to damages, Wagn. Stat,, 519-20.) The first count charged that the killing was caused indirectly by the cor- poration, through the negligence, unskillful- ness, and criminal intent of its employes : the second, that the death was owing directly to the neglect or default of the compan3^ Held, that the two counts contained but one subject matter of complaint, viz : the killing of com- plainant's husband; and therefore but one cause of action, although stated in different ways to meet the evidence. Hence there could be but one verdict and one assessment. Brown- ell V. Pacific B. B. Co., 47 Mo., 239. 187l. 234. — A verdict on one action would be a complete bar to an action on the other. lb. 235. — In an action brought against a rail- road company for causing the death of a per- son by carelessly and negligently running over him with a locomotive, the general averment that the defendant, by its agents and servants, did carelessly and negligently run over, etc., is sufficient, without stating the particular acts constituting such negligence. India- napolis, Pittsburgh and Cleveland B. B. Go. v. Keelfs AdmW, 23 Ind., 138. 1864. 236. — The complaint must aver that the deceased did not, by his own fault or negli- gence, contribute to his death; and the aver- ment that " he was at the time lawfully on the track of said railroad," etc., is not sufficient lb. 237. — A plaintiff cannot include in the same action, claims in his individual right, and as administrator of another. Imcas v. New York Central B. B. Co., 31 Barbour, (N. Y.), 245. 1855. 238. — Where a complaint alleges that the plaintiff's wife was killed instantly, by the careless act of the defendant, the complaint is 468 INJURIES TO PERSONS ON THE TRACK. Damages. substantially defective. This allegation will not give the plaintiff an action for the loss of nis wife's services. lb. 239. Signals. Where a person, walking upon a railroail track, is run over and killed by an engine belonging to the railroad com- pany, the company is responsible in damages for such killing, though the deceased was guilty of a want of ordinary care and prudence in so walking on the track, provided that it appear that the accident would not have oc- curred if the agents of the railroad company had used, in running the engine which occa- sioned the killing, ordinary prudence and care in giving reasonable and usual signals of its approach, and in keeping a reasonable look- out. Baltimore and Ohio R. S. Co. v. The State, 36 Md., 366. 1872. 240. Statute. Under the act of December 13, 1847, providing for compensation for caus- ing death by wrongful act, neglect or default, if there is neither wife nor next of kin, there can be no such pecuniary damages to be re- covered as the act contemplates. jCueas v. New Torlc Oentral B. B. Co., 21 Barbour (N. Y.), 245. 1855. 241. — The statute requiring compensation for injuries resulting in death, considered. Old,- Held V. New York and Harlem B. B. Oo., 3 E. D. Smith (N.T.), 103, 1854; Same v. Same, 14 N. Y., 310, 1856; Keller v. New Tork Oentral B. B. Go., 24 Howard's Pr. (N. Y.), 173, 1861. 242. — Before recovery under the statute, it must be averred and proved, that the deceased left a widow or next of kin. OMcago and Bock Island B. B. Uo. ■». Morris, 26 111., 400. 1861. 243. — In an action brought under the stat ute, " for causing death by wrongful act, neg- lect or default," a declaration which does not aver, that the railroad causing the death was used in the state and county in which the action was brought, would be defective on de- murrer, but is good after verdict. lb. VII. Damages. (For further decisions in relation to damages, see the other subdivisions of this title.) 244. Child. An infant having recovered $8,000 for the loss of its right arm, the court refused to disturb the verdict as excessive. Schmidt v. Milwaukee and St. Paul B. B. Co., 23 Wis., 186. 1868. 245. Death of a woman. Where the jury rendered a verdict for the highest sum allowed by statute, $5,000, it appearing that the person killed was a superior woman, as wife, mother, and member of society, there is nothing in tlie amount of the verdict to authorize the court to interfere. Whiton v. Chicago and Northwest- ern B. B. Co., 2 Bissell (U. S. C. C), 282. 1870. 246. Evidence. In an action brought for damages caused by injury to the person, the jury in estimating damages, cannot take into consideration the fact that the plaintiflf is a man who has to depend on his manual labor for a living. Shea v. Pofrero and Bay View B. B. Co., 44 Cal., 414, 1872; see Hunt i). Chi- cago and Northwestern B. B. Co., 26 Iowa, 363, 1868, where proof of the financial condition of the injured party was permitted in order to show the nature of his business and value of his services. 247. Exemplary damages. An adminis- trator brought suit against a railway company for its negligence in running its cars by means of which the intestate was run over and killed. On a hearing in damages the court found that the death was not instantaneous, but that there was a brief period of suflering, and assessed damages for the blow and the pain suffered, and in view of the negligence of the de.*end- ant assessed punitive damages. Held, on a motion of the defendant for a new trial — I. That this court could not review the finding of the court below as to the death not being in- stantaneous. II. That there was no error in the assessment of punitive damages in such a case. Murphy v. New York and Nm Haven B. B. Co., 29 Conn., 496. 1861. 248. — In an action brought against the proprietor of a railroad by the personal repre- sentative of one killed by reason of the negli- gence or carelessness or unfitness of the ser- vants or agents of the company, exemplary damages may be given by the jury. Bowler v. Lane, 3 Metcalfe (Ky.), 311. 1860. 249. Injured arm. The evidence in this case tended to show that the injury to plaint- iff 's arm and wrist, was very severe and prob- ably permanent in its character: held, that $2,500 was not excessive damages. Malay v. New York Central B. B. Co., 40 Howard's Pr. (N. Y), 374. 1870. 250. Pain and suffering. The bodily pain or suffering, which is an element in estimating INJURIES TO PERSONS ON THE TRACK. 469 Defects in Roadway, Machinery, etc. damages for bodily injuries, is not confined to that which may have been incurred before the trial, but includes such future suffering as it is reasonably certain from the evidence must result from the injury. Aaron v. Second Avenue R. B. Co., 2 Daly (N. Y.), 137. 1367. VIII. Defects in roadway, machin-- ERY, ETC. 251. Borrowed car. Where the injury was occasioned by a defective car, the fact that the car was a borrowed one will not excuse the company. Jetter v. New York and Harlem B. B. Co., 3 Abbott's Ct. of Ap. Dec. (N. Y.) 458, 1865; Same «. Sanie, 2 Keyes (N. Y.), 154, 1865. 252. Bridge. The duty of a railroad com pany to keep in repair a bridge with its abut- ments, which it has constructed over its rail- road at a place where the railroad crosses the highway through a cut, in order to allow the crossing of the highway over the same, under Rev. Sts., ch. 39, § 73, extends beyond the abutments to the line of the excavation made by the company in constructing its railroad. And if a traveler has received an injury with- in the line, through a defect in the railing, a verdict in his favor, in an action against the company, will not be set aside on account of an instruction f« the jury that the liability of the company extends to the line of the loca- tion of the railroad. Titcomb ii. Pitehhurg B. B. Oo., 13 Allen (Mass.), 254. 1866. 253. — If the injury at such place occurred by reason of the want of a sufficient railing, and would not have occurred if the railing had been suitable and proper for the place, the traveler may recover damages therefor against the railroad company, although his horse be- came frightened without the fault of anybody, and ran against the railing and broke through it, and thus caused the injury complained of. lb. 254. Car brakes. A railway company should use all the known improvements in machinery which will contribute to the safe operation of its road; it will not be excused for using an old car brake when other com- panies use one of much better design. These requirements are not for the benefit of passen- gers only. Costello ®. Syracuse, etc. B. B. Co., 65 Bai-bom- (N. Y.), 92. 1873. 255. Platform. The platform of a railway company at a station is in no sense a public highway. There is no dedication to public use as such. GiUis v. Pennsylvania B. B. Co., 59 Penn. St., 139. 1868. 256. — The platform is for the accommo- dation of passengers, and being unenclosed, persons have the privilege, but have not the legal right, of walking over it for other pur- poses, lb. 257. — After requesting such persons to leave, the company may remove them by force ' if necessary. Ih. 258. — To persons who come upon the plat- form to meet or part with passengers, or who stand in such relation to the company as re- quires care, the company is bound to have a structure strong enough to beai' all who could stand upon it. lb. 259. — Where an immense crowd gathered at a railway station to see the President of tlie United States, and the platform broke down, killing and injuring many persons, it was held, that tbe company was not liable. Ih. 260. — The owner of a house is bound to have the approach safe for visitors on business or otherwise, but if a crowd gather on it to witness a parade, and it break down, though not sufBoient even for its ordinary use, he is not liable to one of the crowd who might be injured. lb. 261. Splintered rail. A railroad company having a right to lay tracks in a public street is bound to lay them in a proper manner, and to keep them in repair. Bochwell i>. Third Avenue B. B. Co., 64 Barbour (N. Y.), 438. 1878. 262. — The plaintiff, while lawfully pass- ing along the street, was injured by a splinter projecting from a rail upon the defendant's railroad. It appeared from the evidence that the defendant was in tlie habit of allowing such defective rails to remain, after its officers knew of their condition. Held, that under such circumstances, notice to the company of the defect was unnecessary. lb. 263. Streets and liigliways. Where a boy was injured while running at night with a fire engine, by stepping through a hole in defend- ant's roadway in a public street, and the in- jury would not have occurred but for the hole in the road bed, the defendant's negligence in suffering it to be there was held to be a 470 INJURIES TO PERSONS ON THE TRACK. Depot Grounds. cause of injury sufficiently proximate to en- title tlie plaintiff to maintain his action. Oak- land R. S. Co. r>. Melding, 48 Penn. St., 320. 1864. 264. — Tliougli the defect in the road bed was not caused by any act of the company, it was its duty to have it repaired. lb. 265.— Whether or not the injured party was guilty of contributory negligence was a question for the jury. /6. 266. — In estimating the degree of care required, it was proper for the jury to consider the age, intelligence and physical strength of the boy, and apply to his conduct the same standard that they would in judging boys of like age, strength and intelligence; and if it was common for boys of like age to run with Are engines, the jury should take that fact into consideration. Ih. 267. — For the purpose of enabling a third person to move a building across a place where a railroad track crossed a highway at grade, the railroad company took down a post and thereby made a hole within its location in the highway, into which a traveler fell and was injured, several days after the building was moved. Held, that the railroad corpora^ tion was reponsible to the town for damages recovered against the town by the traveler in an action on the Gen. Sts., ch. 44, § 22. Wobum V. Boston and Lowell B. B. Co., 109 Mass., 283. 1872. IX. Depot grounds. 268. Cars standing upon depot grounds. A possibility, or even probability, of injury to any one who may happen to be behind sta- tionary cars in a railroad depot, does not make it incumbent on the employes of a rail- road company, as a duty, to ascertain that no one is there, before they move any of such cars. Leheyv. Hudson Biver B. B. Co., 4 Rob- ertson (N. Y.), 304. 1866. 269. Contributory negligence. "Where a person of mature years knows a freight train is standing ready to move between himself and the passenger train, in the night time, and he attempts to pass and is injured, it will amount to such negligence on his part as to defeat a recovery. Chicago, Burlington and Quincy B. B. Go. v. Dewey, 26 111., 255. 1861. 270. Detached car. The company having allowed the neighboring population to use its track as a way across its lot, there is no pre- sumption of a clear track, and it is negligence to detach a car and permit it to run down a grade on tracks through such lot, without a brakeman. Kay v. Pennsylvania B. B. Co., 65 Penn. St., 269. 1870. 271. Obstruction of view by train. Where a person at a railroad station, where there is a convenient place of egress to the highway from the platform on which he has alighted from a train, but which he docs not observe, attempts to cross the double track of the railroad in or- der to reach another place of egress from the platform opposite, he is not in exercise of due care if he steps down upon the. first track at a time when the train by which he has arrived hides the tracks wholly from his view in the direction in which it is moving, and then crosses the intervening space and steps upon the second track at a time when this train, moving slowly off, and a high bank wall, ob- struct his view in that direction further than from eighty to a hundred feet. Bancroft ii. Bos- ton and Worcester B. B. Co., 97 Mass., 375. 1867. 272. Particular case. The circumstances ccnsidered under which the question of the plaintiff's care may be submitted to the jury, where he has been injured by an approaching train, while crossing the track at a station. Wlieeloch v. Boston and Albany B. B. Co., 105 Mass., 203. 1870. 273. Persons about to take passage. Cross- ing a railroad track without looking to see if a train is coming, is not conclusive proof of negligence; and if it appears that there is a double track, and a, person has just bought a ticket at a station for a train which is to pass upon the further track, and the station agent says to him, " The train is coming, we will cross over," and he attempts to follow the agent, to take his place in the train, which meanwhile has arrived, and, in crossing over the nearer track for that purpose, is struck by a train coming from the other direction, and partially behind him, which he did not look for or see until too late to save himself, it is proper to submit it as a question of fact for the jury, to determine whether he was careless. And while so going from the ticket office to take his seat in the cars, he is to be considered as a passenger, and it is the duty of the rail- road company to use the utmost care and dili- INJURIES TO PERSONS ON THE TRACK. 471 Evidence. gence in providing for liim a safe and conve- nient way and manner of access to the train. Warren v. Fitchburg R. JR. Go., 8 Allen (Mass.), 227. 1864. 274. — The plaintiff, -without having first procured a ticket, was crossing a side track of a railroad, in the night, to get upon a passen- ger train at its usual place of stopping, on the main track, but by the negligence of the em- plOySs of the company, a switch had been left open, and the train was thrown upon the side track, and ran against the plaintiff, and broke his leg. Held, I. That he was not a passenger at the time of the injury. II. That he had the same right to cross the side track as he did, that persons have to cross a railroad upon a public street or highway. III. The company having the legal right to run its train upon the side track, it is immaterial whether it was run upon that track by accident or design, if run with due care. No greater care would be re- quired in case of such accident than if the train were thrown upon the track by design. IT. If the train, in running upon the side track, was managed with due care, the plaintiff cannot recover. Indiana Central S. M. Go. v. Mudel- son, 13 Ind., 325. 1859. 275. Persons standing on depot platform. An action was brought to recover for injuri(;s received while standing on the platform of one of the stations of a railroad companv, by the falling of wood from a train of the com- pany, passing the station, alleged to have been carelessly loaded, run and managed. The de- fendant answered, 1. That the injury was the result of the plaintiff's own carelessness ; 2. That the train was skillfully loaded and man- aged; but, that by reason of frost upon the rails, and a down-grade, it could not be checked in passing the station, and that the injury happened without defendant's fault. Held, that if the injury was the result of care- lessness on the part of the plaintiff, and could have been avoided by the exercise of ordinary vigilance, he was not entitled to recover. Ohio and Mimasippi Jt. JS. Go. v. Chiilett, 15 Ind., 487. 1860. X. Evidence. (See anU, 458, of this title, eubdivlsion IV, Negligence.) 276. Burden of proof. In an action against a railroad company for an injury oc- casioned by its engine, the burden of proof is upon the plaintiff to show want of due care on the part of the defendant, as well as ordi- nary care in himself SoMnson v. Fitchburg and Worcester B. B. Co., 7 Gray (Mass.), 92. 1856. (See post in this subdivision.) 277. Crossings. In an action against a railroad corporation to recover damages for an injury occasioned by its engine to a man de- livering wood by the side of the track, the plaintiff, after having introduced evidence which tended to show that there was at the time of the accident a traveled crossing at that place, was not allowed to show that such a crossing was there before the railroad was made, and also at the time of the trial. Held, that the exclusion of this evidence was no ground of exception. lb. 278. Flagmen. In an action for running a train over the plaintiff at a crossing where there was a single track and no flagman, a witness, called as an expert by the defendant, cannot be asked what is the custom of rail- roads in maintaining a flagman at crossings similar to the one in question. Bailey v. New \ Haven and Northampton B. B. Co., 107 Mass., 496. 1871. 279. General reputation. In an action against a railroad company to recover dam- ages sustained by a person in a carriage on a highway, by means of a collision with a loco- motive engine of the defendant, the careless- ness of the driver of the carriage cannot be proved by common reputation. Baldwin v. Western B. B. Co., 4 Gray (Mass.), 333. 1855. 280. Inference of care. The absence of any fault on the part of the plaintiff may be inferred from the circumstances, in connection with the ordinary habits, conduct and motives of men. Johnson ». Hudson Biver B. B. Co., 20 N. Y.,'65, 1859; reversing Same v. Same, 5 Duer (N. Y.), 31, 1855 ; see Same v. Same. 6 ib., 633, 1857. 281. — It cannot be said as a universal rule either that it is incumbent upon the plaintiff to prove affirmatively that he was not guilty of negligence, or upon the defendant to prove the conti-ary, in order to establish his defense. Ib. (See ante in this subdivision.) 282. Proposition to take care of injured person. An unauthorized proposition to the president of a railroad company, that a person 472 INJUKIE8 TO PERSONS ON THE TRACK. Frightened Teams — General Matters. injured by a train of the company should be sent to a hospital, is improper to go to a jury as evidence, in an action by the injured party against the company. Oalena and Chicago Union B. B. Co. ■». Dill, 33 111., 264. 1859. 283. Usage. When, in a suit against a railroad company for an injuiy received while passing along a highway, an issue is made upon the negligent conduct of the company in the use of the highway at the time com- plained of, the usage of the corporation at other times is incompetent. G-aTiagan v. Bos- ton and Lowell B. B. Co., 1 Allen, (Mass.), 187. 1861. XI. Frightened Teams. 284. Insufficient room left by train. If a railway company leaves its trains standing at a street or highway crossing, with scarcely room for a team to pass, and in consequence a team becomes frightened in passing such crossing and oversets the vehicle, and the team and a i^erson in it are injured, the railway com- pany will be held liable for the damages. Ogle V. Philadelphia, Wilmington and Balti- more B. B. Co., 3 Houston, (Del.), 367. 1865. 285. — Otherwise if the street or highway is not a legal one. Same n. Same, 3 lb. 303. 1866. 286. Noise and steam. Where a train is passing through a city at the usual speed the railway company is not responsible for in- juries to teams occasioned by fi'iglit at the steam or noise. Burton v. Philadelphia, Wil- mington and Baltimore B. B. Go., 4 Harring- ton, (Del.), 253. 1845. 287. — In an action brought against a rail- way company, for injuries to the plaintiff, caused by negligence in blowing the whistle on an engine, at a time and place, however, when and where it was customary to blow it, while too near a team of mules attached to a ■wagon in which the plaintiff was riding, it was held, that compensatory damages only should be given. A verdict for $1,525 was regarded as excessive, the injury received being only a sprained ankle. Chicago, Bur- lington and Quincy B. B. Co., «. Dunn, 53 111., 451. 1869. 288. Teams used in unloading cars. N. was unloading the defendant's cars at the place on a side tracls where, by agreement with the owners of the freight, they had been lef . for unloading, and at the very point desig- nated by the defendant's agent, using his team for that purpose, as all the parties contem- plated when the arrangement was made. While N. was thus engaged, a locomotive approached, on the main track, and his horses became frightened, he received an injury resulting in his death. Held, that it was a part of the agreement between the owners of the fi-eight and the railroad company that the person going for the freight should not be endangered in his person or property by any act of the company. Newson v. Neie York Central B. B. Co., 39 N. Y., 383. 1864. XII. Geneeal MATTEES. 289. Connecting lines. The defendant made a verbal arrangement with the D., X. and B. R. R. Co., giving to the latter com- pany the right to construct a track on the side of defendant's road bed, for the purpose of connecting the road of the said D., X. and B. company with defendant's road. The con- necting track passed over a bridge previously constructed by defendant for its track, and which foot passengers had been permitted to use for the purpose of transit. The plaintiff, in passing on foot, over said bridge at night, fell through the same, between the rails of the connecting track, by reason of its imperfect covering, and was injured. Held, that if the nuisance complained of was created solely by the D., X. and B. company in the construction of said connecting track, and said company had the sole ownership, possession, and use of said track, the contract between the two companies giving the defendant no power of control in the construction or use thereof, the defendant cannot be held liable for tlie plaint, iff's injury, although the defendant may have had a reversionary interest in the premises, subject to the easement of the D., X. and B. company. Qwathney v. Little Miami B. B. Co., 13 Ohio St., 93. 1861. 290. Contractors. D. and M. made an ab- solute contract With a railroad company to draw its cars, over a certain portion of the road, to furnish the horses and drivers for that purpose, and assume the entire control of the work. Held, that while D. and M. were in the performance of this contract, th" railroad INJURIES TO PERSONS ON THE TRACK. 473 General Matters. company could not be made liable for their negligent acts. Sehular v. Hudson River B. a. Co., 38 Barbour (N. Y.), 653. 1863. 291. — Where the plaintiff was run over by a locomotive engine of the defendant, while he was at work, on a side track of the railroad, in the employment of a contractor who, under an agreement with the defendant, was building a wall to support the road bed, there was evidence that a,t the time of the ac- cident the plaintiff and other servants of the contractor were standing on the side track and holding one of the guys of a derrick; that the work required the derrick and the guy to be in the position in which they were, and the plaintiff and his comrades to stand where they did and concentrate their atten- tion on it; and that the engine, after having just before moved a train of freight cars from the side track to the main track, was detached from the train and backed down the side track, without any signal of its approach, un- til it struck the plaintiff, who knew and relied upon a usage of the defendants to ring the bell or sound the whistle whenever one of their engines approached men working upon the railroad. Held, that on this evidence a jury would be warranted in finding that there was due care upon the part of the plaintiff'. Qoodfelloio «. Boston, Hartford and Erie B. B. Co., 106 Mass., 461. 1871. 292. Deaf persons. In an action brouglit against a railway company to recover dam- ages caused to third persons by ,a train while in motion, no recovery can be had un- less the employes were, at the time, guilty of negligence or want of due care; nor if the party injured was also guilty of negligence, contributing directly to the injury. Cleveland, OolumJbus and Cincinnati B. B. Co. v. Terry, 8 Ohio St., 570. 1858. 293. — Where the party injured is an adult of ordinary mental capacity, but partially deaf, her infirmity not being known to the servants of the company, will not increase, their responsibilities as to care; nor will it excuse her from the full measure of care which prudent persons, partially deaf, but conscious of their infirmity, would ordinarily observe under similar circumstances, lb. 294. — Where evidence of such deafness and evidence that the partj"- injured at the time of crossing the track, was prevented from observing the proximity of the train, by reason of a veil drawn and retained over her face, has been submitted to the jury, it is the right of the defendant to require the court to charge the jury that neither such deafness nor volun- tary obscuration of vision, will excuse the party injured from the observance of such ordinary care, " by the more cautions exercise of her remaining faculties ;" and the court, on being requested so to charge, cannot, without comment, refer the whole matter to the jury. li. 295. — Where a deaf mute slave, who was walking on a railroad track from the direction of an approaching train, was killed by the ti-ain, it not appearing that the engineer knew of the slave's infirmity, and it appearing that the usual warning was given by the steam whistle for one endowed with hearing to have made his escape, it was held, that the company was not liable for the loss. Poole ii. North Carolina R. B. Co., 8 Jones' Law (N. C), 340. 1861. 296. — It is negligence for a deaf person to drive an unmanageable horse across a railroad track, when a train is approaching. It is no excuse that the horse rushed upon the track near a crossing, or was driven there to avoid the engine. Illinois Central B. B. Co. v. Buck- ner, 38 111., 399. 1863. 297. Employes— unfitness. In an action by a personal representative against the pro- prietor of a railroad for the carelessness, neg- ligence, and unfitness of his employes and agents in running an engine over and killing the deceased, the fitness or qualification of the employes, who were acting as engineers at the .time the accident occurred, for the business in which they were engaged, is properly a sub- ject of inquiry for the jury, and instructions, limiting their inquiry as to whether the acci- dent was the result of carelessness or negli- gence alone, are improper. Bowler v. Lane, 8 Metcalfe (Ky.), 811. 1860. 298. Engine. In an action against a rail- road corporation to recover damages sustained by the negligent management of its engine evidence of specific acts of negligence of the engineer on other occasions, previous and sub- sequent, is admissible. Bobinson v. Fiteliburg and Worcester B. B. Co., 7 Gray (Mass.), 93. 1856. 299. Flying switch. The making of a " run- 47i INJURIES TO PERSONS ON THE TRACK. General Matters. ning" or "flying switch " in the limits of a populous town, is negligence per se. Illmois Central B. JR. Co. v. Baches, 55 III., 379, 1870; CMaago, Socle Inland and Pacific R. B. Go. v. Dignan, 56 ib., 487, 1870. 300. — For a railroad company to make what is denominated " a running switch " over the crossing of the track by a public road, in the populous part of a village, is of itself an act of gross and criminal negligence on the part of such company. Brown v. New York Central B. B. Co., 32 N. T., 597, 1865 ; 3tillwell ». Same, 34 ib., 29 ; see also Brown v. New York Central B. B. Co., 31 Barbour (N.Y.), 385, 1860. 301. — Any person who, without negligence on his part, is injured at such crossing by the act of the " running switch," may recover of such company for the damages sustained, without other proof of negligence. Ib. 302. Hand cars. It is the duty of all per- sons on the track of a railway, and rightfully there, but in subordination of the right of pass- ing trains, to exercise that care which pru- dence would suggest, measured by the stand- ard of care that a prudent man would natu- rally adopt under the circumstances. Cata- wissa B. B. Co. v. Armntrong, 49 Penn. St., 186. 1865. 303. — Therefore, where a track repairer was killed at night by the collision of a back- ing train of cars with a hand car, in whicli he with others was approaching the station at . which the train had been standing, it was Jield, that it was error to instruct the jury, that if the deceased knew that the train was at the sta- tion, he was not guilty of negligence in ap- proaching it in a hand car, unless he knew the train was in motion; for though the court might have declared it not negligence to ap- proach the train, at the station, yet the instruc- tion given placed the question of negligence on the knowledge of the moving train brought home to the deceased, and not on the degree of care which he should, as a prudent man, have exercised. Ib. 304. — The question of negligence should have been referred to the jury. Ib. 305. — Whether a given state of facts con- stitutes negligence, is generally a question of law, but whether a particular negligence con- tributed to the catastrophe, is a question of fact. Same v. Same, 52 ib., 283. 1866. 306. Joint occupancy. Where both par- ties are at fault, no action for damages will lie. Bailroad Co. «. Norton, 24 Penn. St., 465. 1855. 307. — Where a person places himself pn the track of a railroad, he can claim no dam- ages, except for wanton injury, and not from injury sustained in the pursuit of the com- pany's lawful business in the ordinary man- ner, even though the negligence of the com- pany's agent contributed to the result. Ib. 308. — The plaintiff, in the employ of a contractor with a railway company, owning the road, fastened upon the road a maclxine for sawing wood, and whilst there, was injured by a train of another company having the right by contract to use the track. Held, that though he were upon the track by authority of the superintendent of the company owning the road, he could not recover against the other company for the injury sustained, even though the conductor of the train previously knew of the machine being on the track, and was guilty of negligence on the occasion. Ib. 309. — The plaintiff was thrown out of his wagon and injured by a collision with a rail- way car. The car was the property of one company, but was drawn by horses of another, and under the control of the latter company. Held, that the latter company was liable for the injury. Weyant v. New York and Harlem B. B. Co., 3 Duer (N. Y.), 360. 1854. 310. Pleading. Trespass m et armis will not lie against a railroad company, for an in- jury done to the plaintiff by its locomotive, whether such injuiy be willful or accidental on the part of the servants of the company, where it does not appear that tlie particular in- jury was done by the command or with the assent of the defendant. Philadelphia, Gar- mantown, etc., B. B. Co. v. Wilt, 4 Wharton (Peni..), 143. 1838. 311. — In an action against a foreign cor- poration, operating a railroad with.n New Jer- sey, by legislative authority, when the action is not founded on any special statutory pro- visions, but is brought to enforce the common law liability of the defendant, it is not neces- sary to aver in the declaration upon what road the injury was sustained. Austin v. New York and Brie B. B. Co., 1 Dutcher (N. J.), 381. 1856. 312. — A variance between the verdict and the pleadings as to the precise spot where an accident occurred will be disregarded, where the case declared upon and that proved would INJURIES TO PERSON^ OX THE TRACK 47.') General Matters. require the same evidence. Webb v. Portland and Kennebec B. B. Co., 57 Me., 117. 1869. 313. — Case cannot be maintained against a corporation for injuries, willfully and inten- tionally committed by its servants, and not occasioned in the course of their employment in the pursuit of ,their regular business. Illi- nois GentHB. B. Co. v. Downey, 18 111., 259. 1857. 314. Rate of speed. That a train was run in Buffalo at a rate of speed prohibited by a city ordinance, passed in pursuance of legisla- tive authority to prescribe a pecuniary penalty for such excess of speed, is' not evidence of negligence in fact, and of itself involves no consequence except liability for the penalty, to the municipal corporation. Brown v. Buffalo and State Line B. B. Go., 32 N. Y., 191. 1860. 315. — The authority of the above case seems to be doubted. Jetter v. New York and Harlem B. B. Go., 3 Keyes (N. Y.), 154. 1865. (See ante, 454.) 316. — The speed of a train in a city or town must be regulated with a due regard to the safety of the passengers and the inhab- itants. Meyer b. Midland Pacific B. B. Go., 2 Neb., 319. 1871. 317. — The running of a train at a rate of speed of over twenty-flve miles an hour in the populous neighborhood of a city is an act of negligence. Hagan v. Bailroad Co., 5 Phila- delphia Rep. (Penn.), 179. 1863. 318. — The law not having fixed the rate of speed at which cars may be run upon a railroad, in and across the streets of a city, it is generally a question of fact, in such case, whether the actual rate was dangerous. Wilds V. Hudson Biver B. B. Go., 29 N. Y., 315, 1864; see Same «. Same, 24 ib., 430, and 83 Barbour (N. Y.), 503 ; see Same «. Same, 23 Howard's Pr. (N. Y.), 492, 1862. 319. — Although one who knows that a train of cars is moving at a greater rate of speed than is lawful, is not authorized to go upon the track, or attempt to cross merely because he might do so with safety if the cars were moving at a lawful rate of speed ; still he has the right to assume that the train is moving at a lawful rate until the contrary ap- pears ; and the fact that the speed was unlaw- ful must therefore be considered in determin- ing the question of negligence. Langhoff v. Milwaukee and Prairie du Ghien B. B. Go., 19 "Wis., 489. 1865. 320. Scales by the track. In an action for negligence from cars striking a Cart on scales near a railroad track, evidence was proper, that after the accident the track was removed to a greater distance. WestcTiester and Phil- adelphia B. B. Co. V. McElwee, 67 Penn. St., 311. 1871. 321. — If the track was too near the scales, a higher degree of care was necessary to avoid the accident. Ib. 322. Side track. Railroad companies are liable to persons not passengers for the slight- est negligence, when the injured party had not equal means with the company to avoid the accident, or where the company at the time of the injury, or its agents, were not en- gaged in a lawful employment. New Orleans, Jackson and Great Northern B. B. Go. ■». Bai- ley, 40 Miss., 395. 1866. 323. — B., by a contract with the Central R. R. Co., had the right to use a certain portion of the side-track for the purpose of loading and unloading freight. The N. O., etc., R. R. Co. had the right to use this side-track when nothing was in the way. B. was engaged in unloading cars on this side-track, and while thus engaged, a train of cars of the N. O., etc., R. R. Co. came in collision with the car upon which B. was standing, and seriously injured him. Held, that the company was liable, al- though the employg of the company may have given the usual signals, that he was about to move the train upon the side-track. Ib. 324. Slaves. Where the slave of the plaint- iff, endowed with ordinary intelligence, and acquainted with the nature and manner of using a railroad, voluntarily laid himself down on the road and went to sleep, and in this situation, without any fault of the engineer, the engine going at the ordinary speed, passed over the body and killed the slave. Held, that the plailitiff could not recover against the company for the value of the slave. Pelder v. Louisville, Gineinnati and Charleston B. B. Co., 2 McMullan (So. Car.), 403, 1841 ; Biehardson B. Wilmington and Manchester B. B. Oo., 8 Richardson's Law (So. Gar.), 120,1854; Fleytas V. Pontdia/rtrain B. B. Go., 18 La. (O. S.}, 339, 1841. 325. — Where a slave, eight years of age, was asleep on the track and the employes of the railway company thought the object was the coat of a workman and made no signal 476 INJURIES TO PERSONS ON THE TRACK. General Matters. and the lad was run over and killed, It was held, that the company was liable for the value of the slave. East Tennessee and Georgia B. B. Co. e. St. John, 5 Sneed (Tenn.), 524. 1858. 326. — Where the evidence shows that a slave, mules and cart were run over and de- stroyed, through the fault and folly of the slave in driving across the railroad when the engine was approaching and near, the owner cannot recover. Lesseps «. Pontchartrain R. S. Co., 18 La. (O. S.), 361. 1841. 327. — A new trial granted ujwn the facts in the case of the killing of a slave. Holmes «. Central B. B. Oo., 37 Ga., 593. 18G8. 328. — To render a railway company liable for running over and killing a slave, it should be shown that the injury was the result of carelessness upon the part of the company. Mann v. Macon and Western B. B. Co., 32 Ga., 845. 1861. 329. Statutory liability. By statute, in Indiana, 1 G. & H. 342, railroad companies are liable for animals, but not persons injured upon their roads, where they might be, but are not fenced, irrespective of the question of negligence. Thayer v. St. Louis, Alton and Terre Saute B. B. Co., 23 Ind., 26. 1864. 330. — The 44th section of the general railroad act (Laws of 1850, p. 233), requiring railway companies to fence in their roads, is inapplicable to depots in cities. Lehey v. Hudson Biter B. B. Co., 4 Robertson (N. Y.), 204. 1866. 331. — The statute of Georgia of 1847, pro- viding that railway companies shall be liable for all damages done to property in running their cars, is only declaratory of the common law. If the plaintiff is negligent he cannot recover. Macon and Western B. B. Co. v. Dams, 13 Ga., 68. 1858. 332. — Under Art. 65, § 1, of the Code of Pub. Gen'l Laws, persons and corporations are accountable for all damages occasioned by any neglect on Iheir part, where the other party was not in fault and had not contributed to his own injury. Baltimore and Ohio B. B. Co., V. The State, 29 Md., 460- 1868. 333. Street railway crossing;. Instruc- tions upon the degree of care to be exercised by conductors of railway trains and street cars at a crossing commented upon. Madison and Indianapolis B. B. Co., v. Taffe, 37 Ind., 361. 1871. 334. Trespassers. A party should cross a railroad track at the , usual crossing. An unauthorized person cannot go on the track elsewhere except at his own hazard; unless it be under certain qualifications. Oalena and Chicago Union B. B. Co., v. Jacobs, 20 111., 478. 1858. 335. — The use of a railroad track, cutting, or embankment, except at lawful crossings of public roads or highways, is exclusively for the company and its employes. Hence, where v/ant of ordinary care is not shown, a rail- road company is not liable for an injury to a person on a road, where he had no right to be. Philadelphia and Beading B. B. Co. v. Hummell, 44 Penn. St., 375. 1863. 336. Trustees operating railway. If a mortgage of a railway has been executed to trustees, for the benefit of bondholders, and the trustees, after entering into possession, lease the railroad to others, but, under a verbal agreement, continue to operate the road for the lessees and receive the earnings, pay the expenses, select, contract with and discharge the persons employed on the road, and exer- cise all the powers usually exercised by rail- road companies ever their own roads, the trustees are personally responsible for au in- jury sustained by reason of the negligence of one of the persons so employed. Ballon v. Farnum, 9 Allen, (Mass.), 47. 1864. 337. Willful act of employe. A railway company is not liable for damages resulting from a willful and malicious trespass com- mitted upon a stranger to the company by its engineer or conductor, outside of and beyond his line of duty. Kew Orleans, etc., B. B. Co., V. Harrison, 48 Miss., 112, 1873; Byan v. Hudson B, B. Co., 1 Jones & Spencer (N. T.), 187, 1871. (See ante, 475.) 338. Willful act of third person- Where the injury results from the wanton act of a third person, as where such third person wantonly attacks the team of a railway com- pany and causes it to take fright, and a party is injured thereby, the company will not be responsible for the damages. Weldon v. Harlem B. B. Co., 5 Bosworth (N. Y.), 576. 1859. INJURIES TO TEAMS AKD OTHER PROPERTY. 477 Contributory Negligence — Verdict. INJURIES TO TEAMS AND OTHER PROPERTY. 1. Contributory negligence. Any con- tributory negligence, however slight, on the part of the plaintiff, arising from the want of ordinary care, will prevent his recovery. Strader v. Marietta and Cincinnati S. S. Co., 2 Cincinnati Superior Ct. Rep., 268. 1872. 2. Crossing the track. An action was brought to recover damages against a railway company for injuries to property of the plaintiffs by a train of the former, where the latter while driving in a wagon upon the highway, attempted to cross the track in the day-time, and seeing at a distance of forty feet, a train approaching, turned their horse's head towards the engine and attempted to back him from the train, but he being frightened, they turned his head away towards a neighboring fence, in a narri)W space where the passage was obstructed, and the wheel of their wagon was struck by the train. Held, to be a case of contributory negligence on the part of the plaintiffs, or of unavoidable accident on the part of the defendant, unless there were other proof of defendant's negligence. Schwartz v. Hudson River B. B. Co., 4. Robertson (N. Y.), 347. 1867. 3. Damages. The plaintiff below came to the depot of the defendant's railroad at S., with his team, to haul a load of dry goods to the town of R., and was directed by the de- fendant's agent who had charge of the depot, where to back his wagon and receive the load. While he was engaged in loading the wagon, at the place designated, through the defend- ant's negligence his wagon was run into by the defendant's cars and seriously damaged, so as to be unable to carry its load. In an action on the case the court, upon these facts appear- ing, instructed the jury that the measure of damages was the damage done to the wagon, the loss of the trip in which the plaintiff was engaged, and the loss of the use of the wagon until, by proper diligence, tlie plaintiff could get it repaired. Held, that the instruction was correct. Blielbyville Lateral Branch B. B. Co. V. Lewark, 4 Ind., 471, 1853; Same «. Lynch, ib., 494. 4. Freight. An engineer, while his loco- motive was standing near a crossing at the time a person was crossing the track in front of his engine, negligently or maliciously caused the steam to escape, whereby the team was made to run off and injury inflicted: held, that the company was liable, toledo, Wahash and Western B. B. Co. ■». Harmon, 47 111., 298. 1868. 5. — The company is not released from re- sponsibility by having rules against such an act. Ib. 6. Horse left unfastened. Evidence that a servant, employed by traders to deliver goods, upon stopping with his horse and wagon to deliver a parcel at a house from fifty to a hun- dred rods from a railroad crossing, left the horse unfastened for four or five minutes while ho was in the house, knowing that it was not afraid of cars, and having used it for three or four months without ever hitching it or Know- ing it to start, is not conclusive, as matter of law, of a want of due care on his part; but the question is for the jury. Southworth v. Old Colony and Newport B. E. Co., 105 Mass., 842. 1870. 7. — It is not uegligence per se to have a horse and wagon unhitched in a public street, unless the horse is vicious or restive. Albert V. Bleecker Street, etc., B. B. Co., 2 Daly (N. Y.), 889. 1868. 8. Stalled team. As a railroad train rounded a curve in the road in the city of Chicago, a heavily loaded wagon, with horses attached, was in plain view, a few hundred feet distant, stationary across the track. When the engine driver first saw the wagon he ob- seiTed there was no one near it, and he must have observed that it was loaded. He saw the wagon in time to have avoided a collision by stopping the train, but did not attempt to do so until it was too late, supposing the wagon would be removed. The wagon, however, was stalled, and could not be removed in time to avoid a collision, and the train ran into it, in- juring the wagon and horses attached to it. It was held, in an action against the railroad company, to be culpable negligence on the part of the engine driver. Chicago and Alton B. B. Go. V. Hogarth, 88 111., 370. 1865. 9. — comparative negligence. If the de- fendant was chargeable with a far greater de- gree of negligence than plaintiff, and tliereby caused the injury, he would be liable. Ib. 10. Verdict. Where, in an action to recover for damages occasioned by a collision between 478 INSANITY — INSOLVENCY. Miscellaneous. the defendant's cars and the plaintiff's horse and wagon, there is evidence on both sides, in regard to the negligence of the defendant, a verdict of the jury in favor of the plaintiflF will be regarded as settling the question in his favor. Sheffield v. Rochester and Syracuse B. B. Co., 31 Barbour (N. Y.), 339. 1856. INSANITY. 1 . Hnsband and wife. It is not ground to vacate a decree appointing a guardian of a ■wife as insane, that her husband, after making the application and before the decree, joined with her in a conveyance of land, and repre- sented, in conversation, that the application was abandoned. BrigTiam i>. Boston and Al- lany B.B.Oo.,W'i'M.&as.,U. 1869. 2. Rights of insane persons. Whenever a man loses his memory and understanding, he is entitled to legal protection, whether such loss is occasioned by his own imprudence or misconduct, or by the act of providence. Bliss V. Connecticut and Passumpsic Biters B. iJ. C 166, 1869. IV. Marine insurance. 19. General average. Expenses incurred for seamen's wages and subsistence are proper items of charge to be included in the adjust- ment of general average. Barker v. Baltimore and Ohio R. R. Co., 23 Ohio St., 45. 1871. INTEREST. See Bonds of Kailwat CoMPAurEs ; Exiitest Do- main ; Judgment ; Stock and Stockholders. 1 . Bank discotint. The legal interest on a sum discounted by a bank is that established by its charter. Comers Clinton and Port Hud- son R. R. Co. v. Keman, 10 Robinson (La.), 174,176. 1845. 2. Grace. Where a company was author- ized to charge seven per cent, interest for notes running four months, and eight per cent, for notes at a longer time, it was held, that grace, at the end of the four months, did not justify taking the interest at eight per cent. Forni- guet 1). West Feliciana R. R. Co., 6 Howard (Miss.), 116. 1843. 3. Unliquidated damages. It seems that the rules as to interest on unliquidated dam- ages have been so modified by modern de- cisions that interest is now recoverable on the value of property lost by a bailee from the date of such loss. Mote v. Chicago and North- western R. B. Co., 27 Iowa, 23. 1869. INTERPLEADER — JOINT LIABILITY. 483 Miscellaneous. 4. Where contract does not specify in- terest. If a contract is silent upon the sub- ject of interest, and does not by implication exclude it, the law implies that interest shall be paid on money due and payable after it falls due. Vermont and Canada B. B. Co. v. Vt. Cent. B. B. Co., 34 Vt. 1, 1861. INTERPLEADER. 1. Estates of decedents. Where an ad- ministrator, "who was also an heir to the estate, brought a bill in chancery, setting forth among other things, that the commissioners allowed a claim against the estate in favor of the R. and B. R. R. Co., for 1 1,000, being ten shares of corporation stock, and that orator at the time did not deem it his duty to appeal, and the time of appeal had expired, and since that, the company had commenced suit upon the administrator's bond to recover this allow- ance, and that the heirs insisted the $1,000 should be distributed, and that the allowance was made by fraud, and that legal proceedings would be obtained for that purpose ; and that plaintiflf is ready to pay it to whomsoever is entitled; and praying that the parties may interplead and that orator may be permitted to deposit the money in court to await its orders ; also praying an injunction. Held, on demur- rer, that the facts alleged did not entitle plaiutiflE' to relief, nor will the facts lay the ground of an independent jurisdiction in equity, for a bill of interpleader. Lincoln v. Butland and Burlington B. B. Co., 24 Vt. 639. 1852. INTERNAL REVENUE. Sek Moktgage; Taxation. INTOXICATING LIQUORS. 1. Contractor. Under the "Ohio Liquor Law" a railroad contactor can recover dama- ges from a person who sells his hands intoxi- cating liquor whereby they became intoxi- cated and their work delayed. Bwroy v. Blinn, 11 Ohio St., 331. 1860. 2. License. In an indictment, under the act of 1868-9 ch. 213, for selling spirituous liquors within three miles of the Western N. C. Railroad, during the period of its construc- tion, "unless licensed by the state," it is a complete defense to show that a license has been granted by the county commissioners of the county in which the selling takes place, as such commissioners are the agents of the state for that purpose. State v. Dolson, 65 N. C, 846. 1871. 3. Search warrant. An officer, acting un- der a warrant for the search of intoxicating liquors, is justified in forcibly breaking open the depot of a railway in which the liquors are stored, if such forcible entry is necessary to the execution of the warrant. Andros- coggin B. B. Co. V. Bichards, 41 Maine, 233. 1856. JOINDER OF ACTIONS. See Injtibies to Domestic Animals. JOINT LIABILITY. See Cabkiagb of Mebchand^se. 1. Connecting lines. The S. C, the G., and the W. and A. railway companies entered into an arrangement to carry cotton from Chatta- nooga to Charleston at 65 cents per 100 pounds. The S. C. company published a no- tice, stating the arrangement, requesting ship- pers to take duplicate receipts, and forward one by mail to its agent at Hamburgh "in order to fix the responsibility on this com- pany. With these precautions, the business can be transacted mutually satisfactory to all concerned. The roads pledge themselves to give all practicable despatch to cotton shipped under the arrangement." Seld, that the three companies were joint contractors, and that the 8. C. company was liable for damages which occurred in the transportation before the cotton reached its road. That, as oral evi- dence was required to construe the contract, it was proper to submit to the jury the question 484 JUDGES - JUDGMENT. Confession — Interest. as to whether the contract was joint or not. Bradford v. South Garolina B. R. Co., 7 Rich- ardson's Law (So. Car.), 301. 1&54. 2. — Subsequently, a notice was published that the company would only be liable after the goods came into its possession, and receipts for cotton were also given stating that fact, and it was accordingly held, that the three companies were not joint contractors. Brad- fwd, Pattern, and Go. «. Same, 10 ib., 231. 1857. JUDGES. See iNJTJNonoH. 1. Pro tempore. A judge who is called to preside, under the act of 185S, at the trial of a cause, in the place of another judge who is disqualified, derives his power from the stat- ute, and not from the notice given to him by the disqualified judge. The object of the no- tice is simply to secure the attendance of a competent judge, and the notice is not part of the record. Bmjamm ■». JSvanmille, Indian- 's, etc. S. B. Co., 38 Ind., 416. 1867. JUDGMENT. See Coktbacxor; Eminent Domain; Gabnishment; iHjciroTioN ; JuBisDicTioN ; Mandamus ; Moutgaoe ; Pleadinq ; Wbit o¥ Assistance. 1. Confession. The court will not reopen a judgment by confession for the payment of money in installments, with power to issue execution for the whole amount on the failure to pay one of the installments. Malone v. Pldladelphia and Beading B. B. Co., 1 Penu. Law Jour. Kep., 380. 1843. 2. Consent. Where the record shows a judgment or decree against a corporation, and further shows that such judgment was ren- dered " by consent of the parties," to the ac- tion, there is no presumption that such con- sent was given by the attorney of the corpora- tion, notwithstanding the rule that "there can be no appearance of a corporation in court but by attorney." Union Pacifio B. B. Co. v. MeOa/rty, 8 Kans., 135. 1871. 3. Correction of judgment. An error of fact, made by the High Court of Appeals, may be corrected by motion, giving ten days' notice thereof to the opposite party. The more correct practice would be by a writ of error coram nobis. Mississippi and Tennessee B. B. Co. v. Wynne, 43 Miss., 315. 1868. 4. Creditor's suit. In a creditor's suit, the judgment debtors must be served with process. Uonroe v. Oalveston B. B. Co., 19 Abbott's Pr. (N. Y.), 90. 1862. 5. Death of party. A judgment against one who, though cited, dies before issue joined, is a nullity. New Orleans and CarrolUon B. B. Co. V. Bosworth, 8 La. An., 80. 1858. 6. Foreign corporation. The service of summons upon an ofBcer of a foreig-n corpora- tion, who happens to be temporarily in another state, and who does not voluntarily appear to the action, does not give jurisdiction to the court of that state for the purpose of render- ing personal judgment upon conti-acts made in that state, for debts due to residents thereof. Latimer v. Union Pacific B.B. Co.,^Z Mo., 105. 1868. 7. Form. All judgments for money must be certain, and find the sura for which they are rendered. If they fail to do so, they are fatally defective. Without either the dollar mark or ftther term indicating the amount, they will be held void. Pittsburgh, Fort Wapne and Chi- cago B. B. Co. V. Chicago, 53 111., 80. 1869. 8. — The reasons for a judgment are not a necessary part of the record. West Feliciana B. B. Co. V. Thornton, 13 La An., 786. 1857. 9- — Upon a trial by the court, the success- ful party is under no obligation to submit a draft of the judgment to the adverse party, for amendments. Peoplev. Albany and Sm^ehanna B. B. Co., 57 Barbour (N. Y.), 304. 1870. 10. Interest. Where at the Nov. term, 1857, judgment was rendered upon a verdict returned at May term, 1856, without adding interest upon the amount of the verdict, the plaintiff's mo- tion for interest having been denied, but no exception taken or reserved, it was lield, on motion at April term, 1861, that interest ought to have been added to the verdict ; but that, having failed to procure any bill of exceptions and transfer of the question, the party had lost his remedy and the whole matter must be re- garded as res adjudieata. Johnson e. Atlantic and St. Lawrence B. B. Co., 48 N. H., 410. 1861. 11. — Where a verdict has been found for JUDGMENT. 485 Justice of the Peace — Reversal. the plaintiff for a certain sum, and the defend- ant moves for a new trial and in arrest of judg- ment, and these motions are overruled and judgment entered on the verdict, interest will not be allowed on the sum ascertained by the verdict, for the time between the date of the verdict and the entry of the judgment. Balti- more City B. E. Go. e. Sewdl, 37 Md., 443. 1872, 12. Justice of the peace. Where a justice of the peace has jurisdiction of the parties and subject matter, and renders a judgment, the law presumes all the prerequisites necessary to the validity of the judgment. The errors of the justice must be corrected by a direct proceeding for that purpose, and cannot be set up in any collateral action. Hendrickion «. 8t. Louis and Iron Mountain R. R. Go.^ 34 Mo., 188. 1863. 13. Lien. The sale of i^roperty under a junior judgment discharges it from the lien of an older judgment, but the proceeds of the sale must be applied upon the latter, unless the creditor be guilty of some negligence, which will postpone his lien. Mobile and Ohio R. R. Co. V. Trotter, 36 Miss., 416. 1858. 14. — The failure of the sheriff to levy an execution in his hands at the same time that he levies the execution issued on the junior judgment, is not an act of negligence of the creditor, and does not affect his lien. lb. 15. — ^ In Wisconsin, a judgment is a lien from the time it is rendered, upon a railroad, and upon the rolling stock, which is a fixture by statute. Railroad Co.' v. Jam,es, 6 Wallace, 750. 1867. 16. ^ The lien of a judgment upon real estate is purely statutory, and it is within the power of the legislature to abolish this lien at any time before rights have become vested, or estates acquired under it. A provision, therefore, causing the lien of a judgment which has not ripened into a title, to be super- seded by the taking of the land under proceed- ings in the exercise of the right of eminent domain, on payment of compensation to the owner of the land, is valid. Watson i>. New York Central B. R. Go., 47 N. Y., 157. 1873. 17. ^ In proceedings for the condemnation of lands, under the provisions of the acts incorporating the B. and A. R. R. Co., (Laws of 1836, ch. 243, and of 1843, ch. 169.), judg- Dient creditors were not required to be made parties. They are in no sense "owners." lb. 18. Mistake. The facts with relation to an alleged mistake in a judgment — consider- ed. Buffalo, New York and Erie B. R. Co., V. Stevens, 51 N. Y., 659. 1873. 19. Motion to set aside. Where there is any irregularity in the proceedings, a court may, on motion, at a subsequent term, set aside the judgment, or do whatever the jus- tice of the case may require ; but where the proceedings are regular, however erroneous, the power of the court to interfere ceases with the term. Harbor «. Pacific R. B. Co., 33 Mo., 433. 1863. 20. Note. Where a judgment is rendered upon a note, the note is merged in the judg- ment. West Feliciana B. B. ■ Co., v. Thornton, 13 La. An., 736. 1857. 21. Nunc pro tunc. A final judgment cannot properly be entered nunc pro tunc, without a special order of the court. JEJrie B. B. Go. 11. Acker son, 4 Vroom (N. J.), 33. 1868. 22. Personal judgment. There cannot be any valid personal judgment without notice. Kansas Pacific B. B. Go. v. Streeter, 8 Kan., 133. 1871. 23. Pleading. A judgment is not void because no complaint has been filed. Leach V. Western North Carolina B. B. Co., 65 IT. C, 486. 1871. 24. Presumption. Where a court, having jurisdiction of the case and of the parties, enters a judgment, there is a presumption that ' all the facts necessary to warrant the judg- ment have been found, if they are sufficiently averred in the pleadings. Miller v. United States, 11 Wallace, 368. 1870. 25. Publication of notice. A personal judgment obtained in a sister state, upon notice to the defendant by publication only, there being no appearance of defendant, will be deemed null and void outside the state In which it was rendered, and will support no action in Missouri. Latimer v. Union Pacific B. B. Co., 43 Mo., 105. 1868. 26. Quashing writ. That judgment is ren- dered upon motion to quash the writ, when the proper judgment would be, upon nonsuit, is no error of which defendants can complain. Darwin v. Tuscumbia, Oourtland and Decatur B. B. Co., 4 Porter (Ala.), 160. 1836. 27. Reversal. Where a judgment is re. versed and declared null and void by the su- preme court on appeal, the defendant is en- 486 JUDICIAL NOTICE— JUDICIAL SALE. Contract— Eight of Way. titled to be restored to tlie condition in which he stood previous to the judgment, and to restitution of everything ■which he had lost and which remained in the hands of the ad- verse party, his agents, attorneys or privies; and no suit is required to set aside a deed of land bought by an attorney of plaintiff, upon executive sale under said judgment Hanni- bal and St. Joseph B. B. Go. v. Brown, 43 Mo., 294 1869. 28. Sister state. A final judgment in a sister state is conclusive in the absence of evi- dence impeaching it. We$t Feliciana B. B. Qo. V. Thornton, 12 La. An., 736. 1857. 29. Transfer of corporate rights. A. re- covered a judgment against the Terre Haute, Alton and St. Louis E. E. Co., for work and labor performed for it, and subsequently the road was sold, and its purchasers were, by an act of the legislature, passed Feb., 1801, incor- porated as the St. Louis, Alton and Terre Haute E. E. Co., under which they organized, and which act provided, among other things, that, as a condition precedent to its operation, they should pay all unsatisfied judgments which had been recovered against the former company for work and labor done for it. In an action of debt, brought against tl.e latter compan}', upon this judgment, held, that it was liable, it having succeeded, under said act, to all the corporate powers, privileges and fran- chises of the former company, and having as- sumed, in consideration of such grant, to pay and discharge all judgments of such a charac- ter, remaining unsatisfied against said com- pany last named. St. Louis, Alton and Terre Saute B. B. Co. v. Miller, 43 111., 199. 1867. JUDICIAL NOTICE. See Chabteb. JUDICIAIi SALE. See Atpeaisemknt Laws ; Eminent Domain ; Execu- tion; MOETQAGB. 1. Contract. A railway company con- tracted by articles for land and entered under the articles. Having failed to pay the pur- chase money according to the articles, the court decreed specific performance with leave for the vendor to issue execution, if the pur- chase money found due should not be paid within a certain time. The money was not paid and tlie whole tract was sold under exe- cution. Before the sale, the company had laid a track, etc., on a strip of the land. Held, tliat the sale vested the whole interest of the company, legal and equitable, including the strip occupied by the ti-ack, etc., in the sheriff's vendee, subject to no easement by the com- pany. Pittahurgh and Steuienville B. B. Co. v. Jones, 59 Penn. St., 433. 1868. 2. — The company entered and constructed its track as the equitable owner of the land, and had no right to its use except as such equitable owner. lb. 3. — The supreme court however ordered a stay of proceedings until there should be an opportunity to assess the owner's damages and make compensation. lb. 4. — A sale upon his judgment under the decree was an election by the vendor to sell his legal as well as the company's equitable title, and wag a virtual rescission of the con- tract, lb. 5. Corporations. Solvent corporations are subject to the ordinary forms of execution. Act June 16, 1836, § 72. Oakland B. B. Co. v. Keenan, .^6 Penn. St., 198. 1867. 6. — All the provisions of the act for deliv- ering possession to the pm-chaser at sheriff's sale apply the same in corporation cases as in others. lb. 7. — The finding of the inquisition, that legal demand had been made for possession by the purchaser, is conclusive of the question of notice. lb. 8. — If a railroad company be interrupted in the exercise of its franchises by the levy and sale of a private creditor, he would be re- strained and denied the remedial provisions of the act of 1836. lb. 9. — A corporation exists in legal contem- plation for the public benefit, and can only be put out of existence, or stripped of what is es- sential to its existence, by public autliority and not by a private suitor. lb. 10. Right of way. The charter, under the railroad act of 1849, gives a railway company only an easement in the land occupied by it. Western Pennsylvania B. B. Co. v. Johnston, 59 Penn. St., 290. 1868. JUKISDICTION. 487 Administrator — Cause of Action arising in Foreign State. 11. — Such interest is 'not the subject of lien or sale under execution. lb. 12. — An interest wliich is the subject of a lien and execution must be an interest in the land itself. lb. 13. — A judicial sale extinguishes liens not estates. lb. 14. Payment of bid. The purchaser, at a sheriff's sale made on time, cannot tender in payment an obligation of the judgment cred- itor, the creditor being an insolvent corpora- tion, and the sale being made under the com- missioners of the corporation. JFelps v. Gom'rs of Clinton and Port Hudson B. S. Co., 10 Kob- inson (La.), 89. 1845. JURISDICTION. See Bakkbtjptct; Eminent Domaist; Execution; Eesbbal Courts ; Highways ; Injukction ; State Kailwats; Stock and Stockholdehs. 1. Administrator. No suit can be main- tained or brought by an executor or adminis- trator, in his official capacity, in the courts of any other county, except that from which he derives his authority. Southwestern, B. B. Co. V. Paulk, 24 Ga., 356. 1858. 2. Agreement to confer jurisdiction. All civil suits shall be tried in the county of the defendant's residence as provided by the con- stitution. Held, accordingly, that where a de- fendant agreed to submit to the jurisdiction of the court of another county, and judgment was rendered against him therein, such judg- ment was void as against other judgments subsequently regularly obtained. Georgia B. B. Co. «. Harris, 5 Ga., 537. 1848. 3. — Consent cannot confer a jurisdiction to render judgment, when not authorized by law. Bell 1). Tombigbee B. B. Co., 4 Smedes and Marshall (Mis,), 549. 1845. 4. Amendment. A party cannot be permit- ted to amend his pleadings by adding a nom- inal sum to increase. his demand above $300, so as to give jurisdiction to the supreme court. Such a course would be an evasion of the constitution. Bed Biver B. B. Co. i). Williams, 16 La. (O. S.), 183. 1840. 5. Appeal. A plea to the jurisdiction comes too late upon appeal. Muscogee B. B. Co. v. Neal, 36 Ga., 130. 1858. 6. — The objections that there is no juris, diction, and no cause of action, may be raised upon appeal. I'erre Haute a-nd Bichmond B. R. Co. V. Smith, 19 Ind., 43. 1863. 7. Appearance. The defendant may appear to object to tlie jurisdiction of the court, with- o(ut waiving his right, but if he seek to call into action any power of the court except jurisdiction, his appearance is general. Porter V. Chicago and Northwestern B. B.Co., 1 Neb., 14. 1870. 8. — Where the court has jurisdiction of the subject matter of an action, consent will con- fer jurisdiction of the person, and in case of a foreign corporation, such consent may be ex- pressed by appearing by attorney and answer- ing generally in the action. McCormieh v. Pennsylvania Central B. B. Co., 49 N. Y., 803. 1873. 9. Boundary of a state. Two states made an agreement as to a boundary line, and con- gress gave its assent as to the agreement. After the agreement, one of the states sued a corpo- ration for taking possession of land and water which the state suing alleged were in its terri- tory. The corporation asserted, in defense, that under the agreement, the land and water were within the jurisdiction of the other state, and the state court, in which the suit was brought, sustained the defense. Held, that this was an adjudication of the meaning of an agreement, and not the construction of the statute, and that a writ of error would not lie to the su- preme court of the United States. People v. Central B. B. Co., 13 Wallace, 455. 1870. 10. Brooklyn city courts. The city court of Brooklyn has no jurisdiction of an action unless the cause of action originated within the territorial limits of the city, and the de- fendant is a corporation not located nor having a pi ace of business therein. Landers v. Staten Island B. B. Co., 14 Abbott's Pr. N. S. (N. Y.), 846. 1873. 11. — The city court of Brooklyn had no jurisdiction of an action against a corporation for negligence as a common carrier, where the cause of action arose, and the business of the corporation was transacted, and its offices lo- cated, outside of the limits of said city. Same v. Same, 53 N. Y., 450. 1873. 12. Cause of action arising in foreign state. An action may he brought by petition and process in the usual way by a citizen of 488 JURISDICTIOIT. Chief Place of Business — Depot. Georgia against the Montgomery and West Point R. E. Co., even though the cause of ac- tion originated in Alabama. Berry v. Mont- gomery and West Point R. S. Co., 39 Ga., 554. 1863. 13. — The plaintiff was injured hy careless- ness of defendant while riding in the cars of the defendant, situate in New York. Held, the action was properly brought in New Jersey. Akerson v. Erie R. R. Go., 3 Vroom (N. J.), 303. 1865. 14. — Such action is transitory, and the vemie may be laid in the county in which the defendant was served with process. lb. 15. Chief place of business. The Aurora Railway runs through the counties of I>uPage, Kane and La Salle, but it lias its chief office for business in Cook county; this gives the courts of Cook county jurisdiction over it. Bristol v. Chicago and Aurora R. R. Co., 15 111., 486. 1854. 16. Common pleas. The right of way of a railroad company is such an interest in real estate as may not be put in issue in the plead- ings of a cause in the Court of Common Pleas. Oineinnati, Union and Port Wayne R. R. Co. v. Sipe, 11 Ind., 67. 1858. 17. Conflict of. The state and national courts are independent of each other, and nei- ther can an-est or impede the action the other may take, within the limits of its jurisdiction, for the satisfaction of its judgments and de- crees. Riffffs V. JoTinson County (6 Wallace, 165), affirmed. Amy v. The Supervisors, 11 Wallace, 136, 1870. 18. Corporation existing in two states. Corporations owing their corporate existence, in part, to the state of Maryland, and exercis- ing their franchises therein, may be restrain- ed there from expending their funds for any other than corporate purposes. State i>. North- ern Central R. R. Co., 18 Md., 193. 1861. 19. — A plea, by such corporation, to the jurisdiction of a Maryland court, on the ground that the corporate property lies partly in another state, or that its corporate existence is derived, in part, from a charter of another state, K not tenable. lb. 20. — The Vt. and Mass. Railway lying partly in Vermont and partly in Massachusetts, the courts of Vermont have jurisdiction of the corporation as well as the courts of Massa- chusetts. Richardson v. Vermont and Massa- chusetts R. R. Co., 44 Vt. 613. 1872. 21. Costs. Where the complaint shows prima facie the jurisdiction of the court, but ' upon the trial the plaintiff admits facts show- ing a want of jurisdiction, and the complaint is dismissed on that ground, the defendant is entitled to a judgment for costs. Ha/rriott v. New Jersey R. R. Co., 1 Daly, (N. T.), 377, 1860; reversing Same v. Same, 2 Hilton, (N. Y.), 262. 1858. 22. County court. A corporation may be properly sued in the county court, in any county in the state, where the plaintiff resides. Morehead v. Atlantic omd North Oa/rolina R. R. Co., 7 Jones' Law, (N. C), 500. 1860. 23. Courts of inferior jurisdiction. The proceedings of courts of inferior jurisdiction will be deemed of no validity unless their jurisdiction is affirmatively shown. Ohio and Mississippi R. R. Go. -t. Shultz, 31 Ind., 150. 1869. 24. Crossing of railways. Although a court of chancery, having jurisdiction irt personam, may exercise its jurisdiction in a case of contract, fraud, or trust, concerning land out of its jurisdiction, it cannot make a decree to restrain, or give compensation for a nuisance, or tort to real property lying in another jurisdiction ; and of this character is a bill, by one railway company, to restrain another from doing acts continually injurious to the estate and franchise of the complain- ants, by crossing their railroad and intruding within their exclusive limits. Northern In- diana R. R. Go. V. Michigan Central R. R. Co., 15 Howard, 333. 1853. 25. Dalton and Gadsden R. R. Co. The Dalton and Gadsden R. R. Co., cannot bring a suit against a stockholder in a county where its principal office is not situated. Ross ». Harney, 82 Ga., 388. 1861. 26. Demurrer. Demurring to a bill in chancery for want of equity in it, is submit- ting to the jurisdiction of the court. The question of jurisdiction should be presented by plea. Bank of Bellows Falls v. Rutland and Burlington R. R. Co., 28 Vt., 470. 1856. 27. Depot. The Marietta and Cincinnati R. R. Co., having perfected an arrangement with other linea to run its trains into Cincin- nati, and having a depot in that city is liable to process there. Alliens Branch of State Bank V. Marietta and Cincinnati R. R. Go., 3 Disney, (Ohio), 435. 1858. JUKISDICTION. Equity — Federal Courts. 28. Equity. Tliougli usually where a case is not cognizable in a court of equity the ob- jection must be made in the first instance, yet if a plain defect of jurisdiction appears at the hearing on appeal, such court will not make a decree. Thompson v. Railroad Companies, 6 Wallace, 134. 1867. 29. — The abolition of the distinction be- tween actions at law and in equity will not affect the two forms of proceedings in the fed- eral courts. Ih. 30. Exclusive jurisdiction. After the passage of the act creating the eighth district, the other district courts were divested of juris- diction over such cases in which exclusive jurisdiction was given to the eighth district court. The signing of a judgment in one of said causes by the judge of the sixth district, after the passage of the act creating the eighth district court, was void for want of jurisdic- tion. HoyU V. New Orleans City B. B. Co., 23 La. An., 503, 535. 1871. 31. Federal courts. Where three aliens and one citizen of the state of New York brought, in one of the courts of that state, a suit against a Connecticut corporation, upon a claim in which they had a united interest, held, that the defendant was not entitled under § 12 of the Federal Judiciary Act of 1789, to have the cause removed to the United States circuit court. Denniston v. New York and New Haven B. B. Co., 2 Abbott's Pr. (N. Y.), 278, 1855; ib., 415, 1856: Same v. Same, 1 Hil- ton (N. Y.), 62, 1856. 32. — A suit by a corporation created by the concurrent legislation of two states, is a suit in which citizens of each state are joined as plaintiffs. If the defendant is a citizen of either of those states, the suit cannot be sus- tained in the United States courts. Alleghany Ooxmty V. Cleveland and Pittsburgh B. B. Co., 51 Penn. St., 228. 1865. 33. — Where a case is brought up to this court by a writ of error issued to the supreme court of a state, under the twenty-fifth section of the judiciary act, if it appears that the judgment of the state court only involved the question of the construction of state statutes which both parties admitted to be valid, the writ of error will be dismissed on motion. Michigan Central B- B. Co. v. Michigan South- ern B. B. Co:, 19 Howard, 378. 1856. 34. — A railroad corporation, chartered by the state of South Carolina, to build and man- age a railroad therein, may be sued in the cir- cuit court of the United States for the district of South Carolina, although some of the share- holders are not citizens of said state, and al- though the state owns some of the shares. Louisville, Cincinnati and Charleston B. B. Co. V. Letson, 2 Howard, 497. 1844. 35. — An averment that the plaintiff is an alien, and the defendants are the "Pennsyl- vania Bailroa,d Company," without saying whether a corporation or not, will not support jurisdiction. Piquignot v. Pennsylvania B. B. Co., 16 Howard, 104. 1853. 36. — The jurisdiction of the circuit courts of the United States, where a corporation is a party, is held to attach, where it is averred that a citizen of one state sues a corporation created by the laws of another state. Ma/r- shall V. Baltimore and Ohio B. B. Co., 16 How- ard, 314. 1853. 37. — Where one of the plaintiffs resided in New Hampshire, and the other in Vermont, and the defendant in New York, held, that the circuit court of the United States for the dis- trict of Vermont had no jurisdiction of the cause; and where the suit was originally brought in the state court, it was lield, that it could not be removed to the federal court. Hubbard v. Northern B. B. Co., 25 Vt, 715. 1853. Cir. Ct. U. S. 38. — Under the act of congress of April 29, 1802, § 6, providing, " that whenever any question shall occur before a circuit court upon which the opinions of the judges shall be opposed, the point upon which the disa- greement shall happen shall be certified to the supreme court, and shall be by the said court finally decided " — the court will not even by consent of parties take jurisdiction, unless the certificate of division present in a precise form a point of law upon a part of the case settled and stated. Daniels v. Bock Island B. B. Co., 3 Wallace, 250, 1865; Havemeyer v. Iowa County, ib., 294, 1865. 39. — An act of congress (July 15, 1862) repealed all circuit court ijowers given to cer- tain district courts. A subsequent statute (March 3, 1868) enacted "that in all cases wherein the district court had rendered final judgments or decrees prior to the passage of the act, said district court shall have power to issue writs of execction or other final pro- i90 JURISDICTION". Foreign Corporations. cess, or to use such other powers and proceed- ings as may be in accordence with law, to en- force the judgments and decrees aforesaid." Held, that the district court only had the power necessary to insure the execution of any final process that it might issue. That even if the statute in question conferred larger powers, and gave the court more general juris- diction over its former cases, such court could not, pending an appeal by a party in whose favor it had decreed, exercise them in favor of such party. Branson v. La Orosse B. B. Co., 1 Wallace, 405. 1863. 40. — In a case taken to the supreme court of the United States from a state court, under the twentj' -fifth section of the judiciary act, the record must show that some one of the matters mentioned in that section was neces- sarily decided by the court. Mississippi and Missouri B. B. Co. v. Bock, 4 "Wallace, 177. 1866. 41. — If it appear from the record that tlie state court might have decided the case on some other ground, this court has no jurisdic- tion, lb. 42. — The circuit court will give relief un- der the laws of the state, the same as a state court. Paine et al. -v. Wright and the Indiam- apoUs and BellefontaiTie B. B. Co., 6 McLean, 395. 1855. 43. — The circuit court takes jurisdiction where a suit is brought by a corporation, from the place where it is located, and where its corporate functions are discharged. No furth- er allegation of citizenship is required. New York and Erie B. B. Go. v. Shepard, 5 ib., 455. 1853. 44. — This court cannot entertain jurisdic- tion of a case from a state court because the judgment of ihat court impairs or fails to give eflFect to a contract. The judgment must give effect to some state law impairing the obliga- tion of a contract to entitle this court to juris- diction. Northern B. B. Go. v. The People, 12 "Wallace, 384. 1870. 45. — The legal presumption is that tlie members of a corporation are citizens of the state that created it; and no evidence or aver- ment to the contrary is admissible for the pur- pose of withdrawing the suit from a court of the United States. Allegheny County v. Cleve- land and Pittsburgh B. B. Co., 51 Penn. St., 228. 1865. 46. — Under the act of congress creating the Union Pacific railroad company, the fed- eral courts have jurisdiction in actions by and against that corporation whenever these courts would have jurisdiction of the same class of actions between other parties. Smith v. Union Pacific B. B. Co., 2 Dillon (U. 8. C. C), 278. 1872. 47. — In a suit, brought in the circuit court for the purpose of setting aside a judgment therein, a cross bill was filed to have it en- forced. Meld, that the citizenship of the par- ties to this suit was immaterial, as it was but ancillai-y to the original suit in which the court had jurisdiction. Bailroad Company v. James, 6 "Wallace, 750. 1867. 48. — This court will not entertain jurisdic- tion if it appears that, besides the Federal question decided by the state court, there is an- other and distinct ground on which the judg- ment or decree can be sustained, and which is sufficient to support it. 6 "Wallace, 142 ; 13 ib., 257 ; 14 ib., 15. Kennebec B. B. Co. v. Portland B. B. Co., 14 "Wallace, 23. 1871. 49. Foreign corporations. Foreign corpo- rations have the right to bring suits in the state of New York. BanJc of Commerce ». Butland and Washington B. B. Co., 10 Howard's Pr. (NT. Y.), 1. 1854. 50. — A. foreign railroad corporation having its whole road and traffic without the limits of the state of New. York, and having no office there, is not a corporation doing business in that state, although tickets for passage over its road are sold by its agent there. Doty v. Michigan Central B. B. Co., 8 Abbott's Pr. (N. Y.),427. 1859. 51. — To enable a non-resident plaintiff to maintain an action in the New York Common Pleas against a foreign corporation, it must appear either that the action is upon a contract made, executed, or delivered in that state ; or, that the cause of action arose therein ; or, that the subject of the action is situated therein. Harriott v. New Jersey B. B. Co., 8 Abbott's Pr (N.Y.), 284. 1858. 52. -* The defendant does not, by appearing and answering, waive the objection that none of such grounds of jurisdiction exist. Ib. 53. — Where a railroad terminates opposite the city of St. Louis, and has its chief office for the transaction of business in St. Louis then the law regards it as a domestic corpora- JURISDICTION. 491 Mortgage : Receiver — Place of bringing Suit. tion, and amenable to the jurisdiction of the courts of Missouri by ordinary process. It is otherwise where the chief office is in Chicago, and there is only an office for the sale of tick- ets and for receiving and handling freight in St. Louis. Bobb v. Chicago and Alton B. B. Co., 47Mo.,540. 1871. 64. — Where the court has jurisdiction of the subject matter and of the parties to the suit, it will render its judgment without waiting to inquire whether either party have sufficient property in the jurisdiction to respond to the judgment. The question as to how his judg- ment shall be satisfied when he gets it, is for the party who obtains it, and not for the court. March v. Eastern B. B. Co., 40 N. H., 548. 1860. 55. "When a contract is made and is to be performed within a foreign jurisdiction, yet a court of equity will enforce it here, if it has or can acquire jurisdiction of the person. lb. 56. — In suit against a foreign corporation, where it is not alleged or anywhere shown that defendant had its chief office or place of busi- ness in the state of Missouri, the petition will lie dismissed for want of jurisdiction. Mid- dough V. St. Joseph and Denver B. B. Co., 51 Mo., 520. 1873. 67. — A foreign corporation can be sued in Massachusetts only by means of an attachment of its properly, unless jurisdiction otherwise is expressly given by statute. Andrews v. Mich- igan Central B. B. Co., 99 Mass., 534. 1868. 68. — In the absence of a voluntary appear- ance, a Court of Wisconsin can only acquire jurisdiction of a foreign corporation in the manner pointed out by the statute. Congar v. Galena and Chicago Union B. B. Co., 17 Wis., 477. 1863. 59. — But a general appearance by the cor- poration gives the court jurisdiction to render a personal judgment against it. lb. 60. — The principle that the objection to the jurisdiction of the court may be taken at any time, applies only to the subject matter of the action, lb. 61. — The courts of Iowa cannot, in an or- dinary personal action, acquire jurisdiction of the person of a nonresident defendant, so as to jjroceed to judgment, when such nonresi- dent is, without more, served with notice out of the state. Bates v. Chicago and Northwest- ern B. B. Co., 19 Iowa, 260. 1865. 62. — Semble, that aforeign corporation may be sued in a state, other than the one in which it exists, where personal service is had on its officers in such state where they had gone on official business. North Missouri B. B. Co. v. Akers, 4 Kansas, 453. 1868. 63. — It is too late to raise the question of jurisdiction after appearing and submitting the case to the court; lb. 64. InjuRCtion. The circuit court of Bal- timore has no jurisdiction to enjoin proceed- ings for the condemnation of land for railway purposes, the superior court having special and competent authority. Western Maryland B. B. Go. ■». Patterson, 37 Md., 135. 1873. 65. Mortgage: receiver. A state court has no jurisdiction of an action to foreclose a mortgage, or to avoid or set aside an alleged foreclosure and sale by the mortgagee under a power, where the premises were, at the com- mencement of the action, in the hands of a re- ceiver appointed by a federal court having jurisdiction to make such appointment; and this, whether the lien which such receiver was appointed to enforce was prior or subsequent to that sought to be enforced in the state court. Milwaukee and St. Paul B. B. Co. v. Milwaukee and Minnesota B. B. Co., 20 Wis., 165. 1865. 66. New York City courts. A suit may be maintained in a district court of the city of New York, against a corporation which has any place for the transaction of business in that city. It is not necessary that its general business should be transacted within the city; nor is it necessary that it should be sued in the district in which its general business is trans- acted. It may be sued in any district in which it has a place of business. Jay v. Long Isladd B. B. Co., 2 Daly (N. Y.), 401. 1868. 67. Place of bringing suit. Under a proper construction of the statute (W. S., 847, § 3) for the purpose of bringing action, the residence of a railroad corporation is in any county through which its line of road passes, and in which it has an agent upon whom pro- cess can be served. Slavens v. South Pacific B. B. Co., 51 Mo., 308. 1873. 68. Plea. A plea to the jurisdiction should be pleaded in person, not by attorney. Mineral Point B. B. Co. v. Keep, 33 111., 9. 1859. 69. — A plea to the jurisdiction of the cir- cuit court, after a defense to the merits of the action, unless for want of jurisdiction over 492 JURY. Miscellaneous thd subject matter of tbe action, comes too late. Baker v. Louisville and Nashville B. B. Co., 4 Bush (Ky.), 619. 1868. 70. — In an action on contract in the War- ren circuit court against the Louisville and Nashville R. R. Co., objection to the jurisdic- tion, because it did not have its principal ofiSce or place of business in that county, and that its chief ofBcer did not reside therein, is ■waived, by answer to the merits of the action. 71.'— The court cannot judicially know that the principal office or place of business of a corporation is not in the county in which an action is brought against such corporation. lb. 72. Process: service. The service of a declaration as commencement of a suit by a nonresident, against a corporation created by a foreign government, the cause of action arising within the jurisdiction of such govern- ment, upon an officer of the corporation, then casually within this state, but not here in the performance of the duties of his office, nor authorized by the corporation to submit to such service, confers no jurisdiction. Newell V. Great Western B. B. Co., 19 Michigan, 336. 1869. 73. — A judgment rendered without notice is void. Penobscot B. B. Co. v. Weeks, 53 Maine, 456. 1864. 74. Right of way proceedings. A party alleged to have been divested of his land, under the order or decree of a county judge authorized to take proceedings to appraise his damages from the appropriation of the land by a railroad company, may prove the falsity of all or any of the recitals in Uie order, of facts necessary to give the judge jurisdiction. Adams v. Saratoga and Wash- ington B.B.O0., 10 N. Y., 328, 1852; revers- ing Same v. Same, 11 Barbour (N. Y.), 414. 1851. 75. State a party. The state of Georgia cannot be made a party defendant in a suit in any court, except by consent, nor can this be done so as to affect the rights of the state by making the agent of the state, appointed by its authorities, a party; and any judgment against such agent cannot affect the rights of the state, or affect its position. Printup v. Charokee B. B. Co., 45 Ga., 365. 1873. 76. Supplemental proceeding. A bill in equity, to have a construction of the orders, decrees and acts of a federal court, may be filed in such court although the jjarties might not, for want of proper citizenship, be entitled to proceed by an original bill. Minnesota Co. ■a. St. Paul Co., 2 "Wallace, 609. 1864. 77. Supreme court. The supreme court has no original jurisdiction in equity on the ground of fraud. Crawford County v. Pitts- burgh and Erie B. B. Co., 33 Penn. St., 141. 1858. 78. — The original jurisdiction of this court over private corporations does not authorize the joinder of individuals, as de- fendants, who are not necessary parties to such suit. lb. 79. — The supreme court has no original jurisdiction in equity of a bill for specific performance. Sunbury and Brie B. B. Co. b Cooper, 83 Penn. St., 378. 1859. 80. — The chancery powers of the supreme court, as to supervising and controlling the proceedings of corporations, are no greater while sitting at Harrisburg than those of a court of common pleas, and hence it cannot conti'ol the proceedings of the Penn. R. R. Co., beyond the limits of Dauphin county. Hays V. Pennsylvania B. B. Co., 17 Penn. St., 9. 1851. 81. Trespass. A railroad company may be sued in any county in which its agents may have committed a trespass. BaHee v. Houston and Texas Central B. B. Co., 36 Tex., 648. 1871. JURY. See Eminent Domain. 1. Argument to: time of. It is within the discretion of the court to limit the time for the argument of counsel to the jury, and such discretion will not be reviewed by the supreme court, unless it has been unsoundly exercised to the prejudice of the rights of the party. Trice V. Hannibal. and St. Jos&ph B. B. Co., 35 Mo., 416. 1865. 2. Baggage. The jurors, when the prop- erty is described, may have a proper measure of damages in tlieir own knowledge of values. Illinois Central B. B. Co. ■». Gopeland, 24 111., 333. 1860. JURY. 4!)i5 Bailiff unaworn — Instructions. 3. Bailiff unsworn. The objection, that the officer into whose charge the jury is given, is not specially sworn, must be taken at the time, or it is waived. Chapman «. Chicago and Northwestern B. R. Co., 36 Wis., 395. 1870. 4. — The objection that the jury, after be- ing put into the sheriff's charge, was left by him for three hours in charge of his deputy, is not sufficient, unless it is shown that appel- lant was in some manner prejudiced thereby. IJ). 5. Challenge. A party is not bound in a civil action to exercise his right of peremp- tory challenge to jurors, until there are in tlie jury box, twelve persons whom the court has adjudged to be competent jurors. Taylor ». Western Pacific B. R. Co., 45 Oal., 333. 1873. 6. — A juryman who, on his voir dire, was asked if the evidence was evenly balanced, which way he would be inclined to find, an- swered that in such case he would "lean against the defendant:" held, such juryman was incompetent, and it was error to refuse his challenge by the defendant. Chicago and Alton B. B. Co. v. Adler, 56 111., 344. 1870. 7. — Where, in the effort to get a perfectly impartial jury, a challenge to a juror for a cause which did not render him incompetent, is sustained, and the result is achieved, the cause will not be reversed. Heaston ». Cin- cinnati and Ft. Wayne B. B. Co., 16 Ind., 375. 1861. 8. Change of jurors daring trial. In a case of necessitj'-, as when a coronor is a member of a jury, and is unexpectedly called to hold an inquest, the presiding judge may authorize him to withdraw, and direct another juror, who had heard the evidence, to take his place, and such an act is not ground for a new trial, especially where no objection was made at the time. Boland v. Qreenville and Columbia B. B. Co., 13 Richardson's Law (So. Car.), 368. 1859. 9. Constitutional law. In trials at common law in courts of record, the parties are enti- tled to a jury of twelve men as a matter of constitutional right, and any consent to waive this right must be entered of record. If such consent do not appear of record, the party may avail himself of the objection by motion in arrest of judgment. Brown v. Hannibal and St. Joseph B. B. Co., 37 Mo., 398. 1866. 10. — The term "jury," as used in the con- stitution, means twelve good and lawful men. May D. Milwaukee a/nd Mississippi B. B. Co., 3 Wis., 319. 1854. 11. — A statute providing for a trial by a jury of six men is unconstitutional. lb. 12. — The constitutional provision "that the right to jury trial shall remain inviolate," secures the right to a jury trial in all cases where a jury was necessary according to the principles of the common law. Isom v. Mis- sissippi Central B. B. Co., 36 Miss., 300. 1858. 13. — The clause of the constitution of the United States touching jury trials does not operate upon the courts of the several states. Zake Erie. Wabash and St. Louis, B. B. Co. v. Heath, 9 Ind., 558. 1857. 14. — The clause of the constitution of In- diana which provides that in civil cases, the right of trial by jury shall remain inviolate, embraces, it seems, such cases as were treated as civil cases in this state when the constitu- tion was adopted. Lake Erie, Wabash and St. Louis B. B. Co. V. Heath, 9 Ind., 558. 1857. 1.5. — Appeals to the Circuit Court from proceedings to assess damages to real estate taken for public works, have been uniformly tried by jury in this state, and are civil cases within the above constitutional provision. lb. 16. — The right of trial byjuryinsuchca,ses may be waived as in other civil cases. lb. 17. — On appeal to the Circuit Court from report of appraisers, in such proceedings, a complaint is unnecessary. The party has a right to appear in the Circuit Court and de- mand a jury to retry the question of damages. lb. 18. Documentary evidence. Ifa jury take a paper which is given in evidence in the cause, with the concurrence of the judge, it is not error; that proceeding resting entirely in the exercise of his sound discretion. Schapp- ner v. Second Avenue B. B. Co., 55 Barbour (N. Y.), 497. 1870. 19. Equity. Where a proceeding has been commenced in equity, which should have been at law, the proper remedy is to move to trans- fer it to the proper docket. If this is not done, the defendant will be held to have waived his right to a jury trial. Bichmondv. Dubuque and Siouit City B. B. Co., 33 la., 433. 1871. 20. Instructions. It is not error for the court to instruct the jury, when they have failed to agree, that they should make further efforts to harmonize, and to indicate that they 494 JUSTICE OF THE PEACE. Miscellaneous. ■will be kept together until they do agree. Pa- cific B. R. Co. V. Jffash, 7 Kans., 380. 1871. 21. Judge's notes of evidence. Where it appeared that the jury were allowed, during an intermission of court, to occupy the court room, and that, having accidentally got possession ' of the judge's notes of the evidence, they read them, but that they were not in any way af- fected thereby to appellant's injury, Jield, that the court did not err in refusing to set aside the verdict. Chapman ■». Chicago and North- western B. B. Co., 26 Wis., 295. 1870. 22. Marine Court. The Marine Court of New York city being of limited jurisdiction, a jury trial therein can only be had in the man- ner provided by the statute. Mooney v. Hud- son Biver B. B. Co., 3 Daly (N. Y.), 105. 1869. 23. Motion. In a motion against a sheriff and his sureties for failing to return an execu- tion, where there was no fact disputed but the want of notice, it was held, that the defendants were not entitled to a jury trial. Coleman -c. Mississippi and Alabama B. B. Co., 5 Howard (Miss.;, 419. 1841. 24. Number of jurors. In trials in the cir- cuit court, the parties are entitled to demand a jury of twelve men. Eenning v. Hannibal and St. Joseph B. B. Co., 35 Mo., 408. 1865. 25. Qualifications. The fact that a juror sitting upon a trial is ignorant of the English language, is sufficient ground for granting a new trial. Lafayette Plank Boad Co. v. New Albany and Salem B. B. Co., 13 lud., 90. 1859. 26. — The failure to examine the juror upon this point before accepting him cannot be im- puted as negligence. It may be presumed that the officer has called a jury competent in this respect. lb. 27. — The fact of such incompetence may be proven by the juror's statement under oath, without a violation of the rule that jurors are incompetent to impeach their verdicts. lb. 28. — interest of juryman. That a jury- man had an interest in the cause is no ground for a new trial. Boland ii. Greenville and Oo- luvnbia B. B. Co., 12 Bichardson's Law (So. Car.), 868. 1859. 29. — The smallest pecuniary interest in the result of a case disqualifies a juror. Page ». ContoocooJc B. B. Co., 1 Foster (N. H.), 438. 1850. 30. Rejection of juror. If, in the rejection of a juror, a sufficient cause is assigned, the decision of the court upon the facts on which the exclusion is based, cannot be reversed in error. March v. Portsmouth and Concord M. B. Co., 19 N. H., 372. 1849. 3 1 . Separation of jury. The separation of the jury for a short time for a necessary pur- pose is no cause for setting aside their verdict, where there is no prejudice shown to the party complaining. Boggs v. Chicago and North- western B. B. Co., 39 Iowa, 577. 1870. 32. Struck jury. A struck jury, empan- neled in conformity with the act of March 13. 1853, is not subject to peremptory challenge. Cleveland, Painesville and Ashtabula B. B. Co. V. Stanley, 7 Ohio St., 155. 1857. 33. — A jury composed of seven of the six- teen persons selected under the provisions of said act, and of five talesmen, is not a struck jury within the meaning of said act, and is subject to peremptory challenge as to any of the panel. lb. 34. Vicinage. The "vicinage "from which a jury is to be summoned means the county and not the neighborhood or town. Convers ■J). Chand Bapids and Indiana B. B. Co., 18 Mich., 459. 1869. 35. Waiver. If a party voluntarily ab- stain from claiming the right of trial by jury in a given case, it may be judicially held that it is waived. Madison and Indianapolis B. B, Co. V. Whiteneck, 8 Ind., 317. 1856. 36. — Hence the statute (2 E. 8., 115), enact- ing that such act shall be regarded as a waiver, is valid. lb. - JUSTICE OF THE PEACE. See CoNTiKtrANCE ; Judgment. 1. Appeal. In a cause which has been ap- pealed from a justice of the peace, the appellee, who has failed to enter his appearance, cannot be forced to trial at the first term of the court. Chrismer v. St. Louis, Kansas City and North- em B. B. Co., 54 Mo., 152. 1873. 2. — On an appeal from a justice, the circuit court can allow the constable's return to be amended ; for the circuit court can do what- ever the justice can. Transier v. St. Louis, Kansas City and Northern B. B. Co., 54 Mo., 189, 1873; Hoelselier v. Same, ib., 313. KILLING EMPLOYES— LAKES. 495 Miscellaneous. 3. — Where a transcript from a justice's court stated that plaintiff filed an account in the case, and judgment on the appeal trial in the circuit court found that plaintiff had sus- tained damages as alleged in his complaint, and the objection that plaintiff failed to file his account was raised for the first time in this court, tlie objection comes too late. Fisher v. Pacific B. R. Co., 46 Mo., 304. 1870. 4. Jurisdiction. A justice of the peace has no common law jurisdiction in civil cases; his powers in that regard are statutory. To- ledo, Wabash and Western B. B. Co. v. McNuUy, 34 Ind., 531. 1870. 5. — The court of a justice of the peace is one of special limited jurisdiction, which acts by virtue of statutory power, and whose acts, to be valid, must be authorized by statute. Ohio and Mississippi B. B. Co. ». Hanna, 10 Ind., 391. 1861. 6. — Justices of the peace have jurisdiction of actions brought against railroad corpora- tions under § 12 of the general railroad act (E. C, 1855, p. 414). Mooney v. Hannibal and St. Joseph B. B. Oo., 28 Mo., 570. 1859. 7. — Under the existing laws of this state, justices of the peace now have jurisdiction over contracts of affreightment made by rail- road companies to the extent of ninety dollars. Williams v. North Missouri B. B. Co., 50 Mo., 433. 1872. 8. — A justice of the jjeace in Indiana has no jurisdiction of a cause where the sum de- manded is over one hundred dollars. Btans- mlle and Orcmfordsville B. B. Oo. ■». Kargus, 10 Ind., 183. 1858. 9. Summons. The mode of service of sum- mons upon corporations, in actions brought against them before a justice of the peace, as prescribed lu Act of March 14, 1858, is not ap- plicable to suits against railway companies. North ■». Cleveland and Mahoning B. B. Co., 10 Ohio St., 548. 1860. 10. — The statute does not authorize a jus- tice of the peace to issue a summons, in a civil case, running more than thirty days be- fore the return, and hence such a writ is void, and no notice to tlie defendant. Ohio and Mis- sissippi B. B. Co. V. Hanna, 16 Ind., 891. 1861. KILLING EMPLOYES. See Iktoribs to EmFloths. KILLING PASSENGERS. See Injubies to Passenseks, KILLING STOCK. See IsjuRiEB TO Stock. LADIES' CAR. See Injubies to Passengbes. 1. Colored people. The mere fact that, un. der the rules and regulations of the company, a certain car in its passenger train has been designated for the exclusive use of ladies and gentlemen accompanied by ladies, will not justify the exclusion of a colored woman from the privileges of such car, upon no other ground than that of her color. Chicago and Northwestern B. B. Co. v. Williams, 55 111., 185. 1870. 2. — A rule setting apart a car for the ex- clusive use of ladies, and gentlemen accompa- nied by ladies, is a reasonable rule, and it may be enforced. lb. LAKES. 1 . Champlain. The proprietors of land ly- ing upon Lake Champlain, unless it is other- wise expressed in the grants, own to low water mark, subject to a servitude to the public, for the purposes of navigation, up to high water mark. Champlain and St. Lawrence B. B. Co. V. Valentine, 19 Barbour (N. Y.), 484. 1853. 2. — The proprietor of land on the bank of a river, where the tide fiows, owns to high wa- ter mark ; but above tide water, he takes usque adfilumaqum; except, perhaps, when the stream is a navigable boundary. 'This rule, however, is not applicable to our North American lakes. lb. 3. — Owners of land bordering on the wa. ters of Lake Champlain have no title to the 496 LAND GRANTS. Miscellaneous. soil beyond low water mark, nor right appur- tenant, but only a statutory right, to build wharves and storehouses into the lake, in front of their land. Therefore, if land be made by a stranger by filling in earth in front of their land, from low water mark Into the lake, and wharves and docks be built there- on, they cannot maintain ejectment therefor. Austin V. JRutland B. B. Co., 45 Vt., 215. 1872. 4. Decretions. The court will not decide what are the rights of lake shore proprietors whose fronts are swept away by currents, nor to what extent they still own the lands covered by water, except in case of one who proves that he owned the land before the decretion took place. Bates v. Illinois Central B. B. Co., 1 Black, 204 1861. LAND GRANTS. See MANDAMCJ3 ; Beceiteb. 1. Central Paciflc R. R. Co. The grant of right of way to the Central Pacific R. R. Co. by act of congress of July 1, 1862, was a grant of a present right, and all acquisitions of lands made subsequent to that act were subject to the exercise of this right. Central Pacific B. B. Co. 11. Dyer, 1 Sawyer (9 TJ. S. Cir. Ct.), 641. 1871. 2. — The provision in the grant to the Cen- tral Pacific R. R. Co., requiring that a plat of the route should be filed in the Department of the Interior within two years, does not affect the right of way ; it only furnishes the means by which the secretary can withdraw from sale the lands embraced in the grant. lb. 3. Certificate. The descriptive list of lands, certified by the Commissioner of the General Land ofSce, is presumptive evidence that such lands have been granted by act of congress. Hannibal and St. Joseph B. B. Co. v. Moore, 37 Mo., 338. 1866. 4. Construction of grants. No privileges pass by a grant to a corporation except what are given in clear and explicit terms. Bice v. Minnesota and Northwestern B. B. Co., 1 Black, 358. 1861. 5. — Land grants are strictly construed against the grantees. Dubuque and Pacific B. B. Co. V. Litchfield, 28 Howard, 66. 1859. 6. — Where the act of congress making the grant declares that no title shall vest nor pa- tent issue until twenty miles of the road are finished, these words cannot be disregarded, unless clearly repugnant to the rest of the act. Bice V. Minnesota arid NoHhwestem 3. B. Co., 1 Black, 358. 1861. 7. — The word grant is not a technical word like enfeoff, and it may be used in a restricted sense. lb. 8. — Legislative grants must be construed as a whole ; but if the words are ambiguous, the true rule is to construe them most strongly against the grantee. lb. 9. Contract. An agreement to procure a grant of lands to A. is executed by procuring such grant to the person appointed by A. to receive it. Smith «. Chicago and Northwestern B. B. Co., 18 Wis., 17. 1864. 10. Des Moines River grant. The land grant to the territory of Iowa, for the improve- ment of the Des Moines River, only conveyed the lands between the mouth of the stream and Raccoon fork. Dubuque and Pacific B. B. Co. V. Litchfield, 28 Howard, 66. 1859. 11. — The Dubuque and Pacific R. R. Co. were held to be entitled to the lands included in their grant above Raccoon fork. Tb. 12. — The proviso in the act of congress of May 15, 1856 (11 Stat, at Large, 9), making a grant of lands to the state of Iowa, in alter- nate sections, to aid in the construction of certain railroads in said state, by which pro- viso it was provided " that any and all lands heretofore reserved to the United States, by an act of congress or in any other manner by competent authority, for the purpose of aid- ing in any object of internal improvement or any other object whatsoever, be, and the same are hereby reserved to the United States from the operation of this act," — operated in con- nection with certain subsequent legislation, to reserve for the purpose of aid in the im- provement in the navigation of the Des Moines River, an equal moiety, in alternate sections, of the public lands on and within five miles of the said river between the " Raccoon Fork " and the northern boundary of the state. Wol- cott v. Dei Moines Company, 5 Wallace, 681. 1866. 1 3. — The case of Wolcott v. Des Moines Co., 5 Wallace, 681, realBrmed. Cedar Bapida B. B. Co. V. Des Moines Nav. Co., 17 Wallace LAND GRANTS. 497 Illinois Centi-al R. R. Co. — Repeal of Act. (U. S.), 144, 1873 ; Homestead Go. v. Bes Moines YalleyR. R. Co., ib., 153, 1872. 14. Illinois Central R. R. Co. Land which is a part of the alternate sections granted to the state for the construction of the Illinois Central railroad, is not subject to preemption. WalTceri). Eedviek, 18 111., 570. 1857. 1 5. Location of. Under act of congress of June 10, 1353, giving lands to the state of Mis- souri for railroad purposes, and the act of that state of Sept. 20, 1853, accepting and making provision in regard to them, the location of the lands was not fixed until the company caused a map of the road to be recorded in the office of the recorder of deeds in the county where the land was situated. Baker v. Qee, 1 Wallace, 333. 1863. 16. Mandamns. The governor of Iowa will not be compelled by mandamus to issue any certificate to the Cedar Rapids and Missouri R. R. Co., which will enable that corporation to acquire any title to any of the lands em- braced in the grant of lands to the state, for railroad purposes, by act of congress of May 5, 1856, prior to a compliance by said com- pany with the conditions expressed in §§ 6 and 7 of ch. 87, Laws of 1860. State ex rel. v. KirkiDOod, 14 la., 163. 1863. 17. Minnesota. It was competent for the legislature of Minnesota to transfer its interest in the lands granted under act of congress of June 39, 1854, and the defendant acquired all . the rights of the territory under the act of the territorial legislature of March 4, 1854. These rights cannot be taken from defendant by sub- sequent act of congress. United States v. Min- nesota and Northwestern B. B. Co., 1 Minn., 127, 1854; see Minnesota and Northwestern B. B. Co. V. Bice, ib., 358. 1857. 18. Missouri. No title passes to the rail- way companies under the act of congress of June 10, 1852, and statute of Missouri of Dec. 25, 1852, until the plats of the location of the railroads are filed in the office of the secretary of state, and in the offices of the recorders of deeds of the counties in which the lands are situated. Pacifio B. B. Go. v. McGombs, 39 Mo., 339, 1866; Hannibal and St. Joseph B. B. Go. V. Smith, 41 ib., 310, 1867. 19. — In case of suit in ejectment by the Hannibal and St. Joseph R. R. Co., under the act of congress of June 10, 1853, and the Mis- souri statute of September 20, 1853, (R. R. 33 Laws, p. 117), where no question was made as to the location of the road, nor was it ques- tioned that the land sued for was included within the grant by congress, nor was it urged that the land had been sold by the United States, or that any right of preemption had at- tached to it, nor was it disputed that plaintiffs proof made out a. prima facie case — the mere nonrecording in a given county of the map of lands taken by the railroad company in that county, as directed by the act of September 30, would not be fatal to plaintiff's recovery. Hannibal and St. Joseph B. B. Co. v. Moore, 45 Mo., 443. 1870. 20. Pre-emption. Where congress gives lands to a state for railroad purposes and for " no other," and the state granting the great bulk of them to such purposes, allows settle- ments by pre-emption, whore improvements and occupancy had been made on the lands prior to the date of the grant by congress, and since continued; a purchaser from the rail- road company of a part which the state had thus opened to pre-emption cannot' object to the act of the state in having thus appropri- ated the part; the railroad company, having by formal acceptance of the bulk of the land under the same act which opened a fractional part to pre-emption, itself waived the right to do so. The United States not objecting, nobody can object. Baker v. Gee,! Wa\lace,333. 1863. 21. Repeal of act. An act of congress granting land to a territory for railroad pur. poses, by which a beneficial interest is ac- quired by the territory, is irrepealable. Bice J). Minnesota and Northwestern B. B. Co., 1 Black, 358. 1861. 22. — If the legislature of the territory in- corporate a company to build such railroad, congress cannot afterwards divest the com- pany of its title to the lands included in the grant. Ib. 23. — And where it appears that the act of incorporation was passed before the grant was made, and that after that grant, the act of in- corporation w^as reenacted, the reenactment gives to the railway company such title as the territory could confer. But no title would pass if the grant was revoked before the reen- actment of the charter. Ib. 24. — Legislative grants are not warranties, and pass no title save what was held by the grantor at the time. Ib. 498 LAND GRANTS. Reservations — Texas. 25. — A grant of land to a territory, to be held for the purpose of making or aiding to make, a public improvement of general in- terest, and restricting the use to that one pur- pose, does not pass to the territory a beneficial interest in presenti. lb. 26. — When the act making the grant pro- vided that it should not enure to the benefit of any company heretofore constituted and or- ganized, it is clear that the future legislation of the territory only could dispose of the lands. lb. 27. Reservations. By a resolution ap- proved March 23, 1864, the legislature directed the sale of certain timber and lumber upon state lands, for the benefit of a certain college. The sale was made by the land agent without strictly observing the law in relation thereto. In 1868, the state conveyed tlie lands to plaint- iflFs "subject to the reservations of the act of March 34, 1864," one of which reservations included all timber and lumber, and lands granted and voted by the present or any pre- ceding legislature. In an action against the defendant to recover the stumpage of the tim- ber in question, which was cut by him, held, that the timber was " voted " by the resolution of March 33, 1864, within the meaning of that term as used in the act of March 24, 1864, and was therefore excepted from the operation of the deed to the plaintifis. That the reserva- tion was absolute, and not dependent upon a valid sale by the land agent. European and North Am. S. B. Co. v. Dunn, 60 Me., 453. 1873. 28. Swamplands. In selecting the swamp lands of Fremont and Mills counties, there was no irregularity or departure from the instructions of the interior department. Fre- mont and Mills Counties v. Burlington and Mo. River B. B. Co., 22 la., 91. 1867. 29. — The effect of the act of congress of March 3, 1857, was to vest in the state the title to such swamp or overflowed lands as had been listed and reported at that time, whether the lands were swamp lands or not. lb. 30. — The title of the swamp and over- flowed lands in Mills and Fremont counties, (granted to the state, by act of congress of September 28, 1850), remaining vacant and unappropriated, that had been selected and reported to the general land office, was, by the act of congress of March 3, 1857, immedi- ately vested in the state. lb. 31. — The act of congress of May 15, 1856, granting lands in aid of railways, having reserved from its operation all lands that had been before appropriated for any other pur- pose, or which should have been granted when the lines of said roads should have been definitely fixed, did not disturb the title to the swamp lands In said counties, that had been confirmed to the state prior to the time when the final location of th'fe line of the Burling- ton and Mo. River R. R. was definitely deter- mined, lb. 32. — The act of the commissioner of the general land office, certifying these lands to the said railroad company, being in contra^ vention of vested rights, was void. lb. 33. — Where such officer, by his act, vio- lates vested rights, his acts can be attacked collaterally, lb. 34. — The proviso in the act of May 15, 1851, granting lands to the state of Iowa, for the aid of railroads, which excludes from the grant " all lands heretofore reserved by any act of congress, or in any manner by competent au- thority, for the purpose of aiding in any object of internal improvement, or for any purpose whatever," excludes the lands granted to that state, among others, by the act of September 28, 1850, known as " the swamp land grant." Bailroad Go. v. Fremont County, i) Wallace, 89 1869. 35. — In a suit to recover such lands by a railroad company, it is competent to prove by witnesses, who know the lands sued for, that they were swamp and overflowed within the meaning of the swamp land grant. Bailroad Co. V. Smith, ib., 95. 1869. 36. Taxation. Where the title to land, with- in an Indian reserve, remains either in the In- dians or in the United States, or in both, the land is not taxable. Douglas County v. Union Pacifis B. B. Co., 5 Kans., 615. 1870. 37. — Where a railway conditionally pur- chases such lands, subject to certain condi- tions, and no patents have been issued, and time appears to be an essential element in the contract^ no title passes to the company until the contract is fulfilled, and the lands are not taxable. Ib. 38. Texas. The acts of the legislature grant,- ing lands to certain railroad companies in the state of Texas — construed. Held, that the con- stitution of 1869 did not affect grants of land LANDLORD AND TENANT — LATERAL RAILROADS. 499 Miscellaneous. previously made. Houston and Great Western B. R. Go. V. Oommisioner of Land Office, 36 Tex., 382. 1871. 3 9. Union Pacific R. K. The land grant of the Union Pacific R. R. Co. excepts lands to which homestead claims had attached at the time the line of the road was definitely fixed — but such homestead rights must have been bona fide. Union Pacific B. JR. Co. v. Watts, 2 Dillon (U. S. CO.), 310. 1872. 40. United States laws. The laws of the United States, and not of the state, must gov- ern the primary disposal of government land. Douglas County «. Union Pacific S. R. Co., 5 'Kans., 615. 1870. LANDLORD AND TENANT. See Eminent Domain. 1. Eviction. The erection of a fence by a landlord in front of premises used and occu- pied by a tenant, in such manner that the lat- ter can only gain access to the premises by go, ing over land of a third person, will not amount, as matter of law, to an eviction, where the tenant still continues to use and occupy the premises ; but such act of the landlord will affect the amount of the rents of such premises. Boston and Worcester R. R. Co. v. Ripley, 13 Allen (Mass.), 421. 1866. 2. Presumption of title. Seizing of a rent for twenty-one years affords a legal presump- tion of title to it. It is for the tenant to show that it was not received under a claim of right. McMroy v. Railroad Co., 7 Penn. St., 536. 1848. 3. Termination by notice. To put an end ^o a tenancy from year to year, there must be three months' notice to quit, ending at the ex- piration of the year. Godard v. South Carolina B. B. Co., 2 Richardson'.s Law (So. Car.), 346. 1845. 4. Trespass. If a railway company, in vio- lation of a contract with the landlord, enter upon land held by a tenant, and commit a tres- pass upon the tenant's possession, by destroy- ing his vegetables, etc., said company is liable, in an action on the case, to the tenant for the damages sustained by him. Otherwise, if there is no contract with the company, by which the tenant is protected in his possession of the premises. Louismlle and Nashmlle B. R. Co. V. Faulkner, 2 Head (Tenn.), 65. 1858. LAND WARRANTS. 1. Maryland. Rules of practice in the land office of Maryland examined. BaiVroad Co. v. Hoye, 2 Bland's Ch. (Md.), 258. 1830. LARCENY. See Injujuxs to Fassenqbbs. 1. Tickets. If a servant of a railway cor- poration having custody of passenger tickets that had once been sold and taken up, fraud- ulently abstracts them and sells them for his own use, it will be larceny of such tickets. State ex rel. Eaton v. JFarmer, 46 N.' H., 200. 1865. LATERAL RAILROADS. See Cebtiobabi. 1. Appeal. Under the lateral railroad act, as amended April 20, 1858, the question of the necessity of the proposed road is, upon ap- peal, a question exclusively for the court, the appellate jury can only try the question of damages. Brouin v. Peten-son, 40 Penn. St., 373, 1861 ; Boyd v. Negley, ib., 377. 2. — Under the lateral railway act, an ap- peal does not lie to the supreme court from a decree of the common pleas overruling ex- ceptions to a report of viewers. Hall's Appeal, 56 Penn. St., 238. 1867. 3. — Exceptions were filed to the report of the viewers for a lateral railroad, and an ap- peal to the common pleas taken ; the excep- tions were overruled whilst the appeal was pending, there was no final judgment, and a certiorari from the supreme court was prema- ture. Ih. 4. — Where the court has passed upon all the issues of law and fact on the record, all, including the exceptions, can come upon a writ of error, the jurisdiction of the supreme court extending to them. 76. 5. — A decision of the common pleas on exceptions, pending an appeal, is to be re- garded as interlocutory. Ib. 6. Branch roads. The power of the Penn- 500 LATERAL EAILBOADS. Constitutional Law — Biglit of Way. sylvania R. R. Co. to make branch or lateral roads by the terms of its charter, is as large as the powers granted for the construction of the main line of its road, and authorizes the con- struction of a branch line tlirough Pittsburgli to connect with the SteubenYille R. R., in South Pittsburgh. Mayor, etc., of Pittsburgh v. Pennsylvania B. B. Co., 48 Penn. St., 355. 1864. 7. Constitutional law. The lateral railroad act is constitutional. Ha/rney v. Lloyd, 3 Penn. St., 331, 1846 ; Schcenberger v. Mullhollan, 8 ib., 134, 1848. 8. — The lateral railroad acts are consti- tutional. Hays V. SisTier, 33 Penn. St., 169. 1858. 9. Construction of statute. The act of March 39, 1840, is a supplement to the act of May 5, 1833, is in pari -materia with it, and should he so construed, and neither act au- thorizes tlie connection of a lateral road, ex- cept with a public improvement Griffin, 56 Penn. St., 305. 1867. 10. — The lateral railway act of Maj 1833, is intended to give to the petition right to open, construct and use a railway through the land of another. The fee re- mains in the owner of the land. Coal having been severed from the freehold in constructing a lateral railway, it became the property of the owner of the freehold, and trover lay against the owner of the railway for Belling it. Lymi •B. Oormley, 53 Penn. St., 361. 1866. 11. Len^h. The rule of strict construc- tion will be applied to railroad charters ; but where the legislature has given a company power to build lateral roads, without iixing any limits to their length, the court will not, as a general rule, fix any limit. Newhall v. Galena and Chicago Union B. B. Go., 14 111., 273. 1853. 12. Location. The line of a lateral railway was marked and surveyed on the ground, dif- fering somewhat from the location described in the petition, but the damages were assessed for it as located. Reld, that this was the true and authorized line. Boyd v. Negley, 53 Penn. St., 387. 1866. 13. — The difference was the omission, by mistake, of one section. This was amendable at any stage of the proceedings, and the su- preme court would treat it as amended. Ib. 14. — It is not necessary that the petition should describe the grade. Ih. 15. — When the petitioner adopts a grade before damages are assessed, and marks the grade along the route, it would be inequitable to permit him to change it after assessment, and adopt one more injurious to the land own- er. Ib. 1 6. Proceedings. In proceedings to open a railway from mines to the public works, a petition, signed by the lessee and agent of the owners of the mines on their behalf, is suffi- cient. Harvey v. Lloyd, 3 Penn. St., 331. 1846. 17. — A notice of the filing, signed by an attorney, is sufficient. Ib. 18. — It is for the jury to say whether the road is necessary and useful. Ib. 19. Right of way. Where a right is con- ferred to build lateral roads, the presumption follows tliat the company has the same author- ity to obtain tlie right of way for such road,* IS conferred for the main line. Newhall v. alena and Chicago Union B. B. Co., 14 111., '853. — In proceedings under the lateral rail- 'ts, it is not essential, though proper, the owners of land, over which the osed railroad is to pass, should be named petition ; and if a mistake be made as the real owner, the court may direct the damages assessed by the viewers to be paid over to the proper party on proof of the facts. Boyd V. Negley, 40 Penn. St., 377. 1861. 21. — Where one was named as a reputed joint owner in connection with the real own- ers, wlien she was not a joint owner, but only had an annuity issuing out of the land ; and her name was stricken out of the record, by leave of court, after the report of the viewers and before the final assessment of damages, it is not a fatal defect in the petition or proceed- ings. Ib. 22. — It is not necessary that the grades of the road should appear in the petition or plat. Ib. 23. — It is no objection that the petition represented that the owner desired to construct his road with a single or double track, as might be found most suitabla for carrying his own and the coal of other parties ; such peti- tion is not only authorized, but the owner may be required to carry coal for other parties. Ib. 24. — The fact that the petitioner already has a right of way by another route, is a proper fact to show upon the trial of the LEAKAGE— LEASE. 601 Assignment — Consolidation. question of the necessity of the road, hut it has nothing to do with the question of dam- ages, lb. 25. — It is no error for the court to permit an amendment pending an appeal, so as to in- clude other coal lands purchased since the commencement of the proceedings, as tlie amendment could not change or affect the matters in controversy between the parties. lb. 26. — Before an appeal ia sent to an appel- late jury for trial, the court should approve or disapprove of the findings of the viewers as to the necessity of the road. lb. 27 — damages. Under the lateral railroad law of May 35, 1833, the viewers, and in case of appeal, the court and jury, are to decide whether the proposed road is useful for public or private purposes, and to assess the damages to the intervening owner ; but they have noth- ing to do with the location of the road ; that is to he done by the petitioner. Hays v. BisJier, 33 Penn. St., 169. 1858. 28. — The court is bound to appoint view- ers, if the petitioner bring his case within the act. lb. 29. — A party cannot file exceptions to the report of the viewers and at the same time appeal from their report. lb. 30. — On the trial of the appeal, evidence cannot be introduced to show what was usu- ally paid for similar privileges ; the party is only entitled to compensation for the injury actually sustained. lb. 31. — The view for a lateral railroad is granted, and the damages assessed, on the plan proposed in the promoter's petition ; he • cannot adopt any other. Lance's Appeal, 55 Penn. St., 16. 1867. 32. Wharf. In a proceeding to obtain the use of a lauding or wharf for a lateral rail- road, under the act of April 34, 1843, an ap- peal lies from the action of the viewers to the court to which their report is to be made, there to be tried by a jury. On appeal in such cases, the amount of compensation is the only question for trial. Horner and Bobert]s Lat- eral Bailroad, 37 Penn. St., 333. 1860. LEAKAGE. See Caiqiiaqe or Ui^bciiaksise. LEASE. See Arbitration; Blbvatobs; Eminent DoaiAiN; FiKEs; Injuries to Domestic Animals; Injtinc- tion. 1. Asssignment. The P. & E. R. E. Co. leased to the C. R. R. Co. a portion of its road, with the proviso that in " case of an assign- ment for the benefit of creditors by the C. Co., a judicial sale or transfer of the road shall at any time take place," the lease should termi- nate without any act of the P. & E. Co. ; the C. Co. leased to another company the " whole of its road, etc.." with the " appurtenances of every nature whatsoever." Held, that the lease of the P. & E. R. R. Co.'s road passed ; that this lease was not an assignment for the bene- fit of creditors, judicial sale, or transfer, and was not forbidden by the agreement with the P. & E. Co. PMladeVpMa and Erie B.B. Oo. V. Oatawissa B. B Co., 53 Penn. St., 30. 1866. 2. — The act of April S3, 1861, applies to appurtenances as well as to the road itself, and made the lease to the Catawissa Co. assigna- ble without the consent of the lessor. lb. 3. Buildings. Where the lessee, with the permission of his landlord, erects a building on the leased premises, it does not become a part of the realty, but continues to be a personal chattel. Goodman v. Hannibal and St. Joseph B. B. Co., 45 Mo., 33. 1869. 4. — Where the landlord, before the expira^ tion of the term, enjoins the tenant from re- moving the chattels and fixtures, the tenant will be allowed a reasonable time after the dis- solution of the injunction, within which to de- mand and remove the same. lb. 5. Consolidation. The act of March' 17, 1870, authorizing the united railroad and canal companies of New Jersey " to consoli- date their respective capital stocks, or to con- solidate with any other railroad or canal com- pany or companies in New Jersey or otherwise with which they are or may be identified in in- terest, or whose work shall form with their own, continuous or connected lines, or to make such other arrangements for connection or consolidation of business with any such com- pany or companies by agreement, contract, lease, or otherwise, as to the directors of said united companies may seem expedient;" gives authority to the united companies to lease to a corporation of another state. Black 502 LEASE. Construction of Contract — Liability of Lessor. V. Delaware and Raritan Canal Co., 7 C. E. Green's Ch. (N. J.), 130. 1871. 6. Construction of contract. Under a grant from the legislature of New Hampshire to the Eastern Eailroad Company in that state, to lease the right to use its railroad " to such person or corporation, and upon such terms as it may deem proper," a lease of the right to use said road was executed to the Eastern K. B. Co., a corporation chartered in Massachusetts, which lease contained certain stipulations in relation to the payments of rents and the per- formance of other things therein specified to he done by both parties : lield, that although originally the parties to the lease might have fixed upon any terms and conditions they pleased, yet having fixed and agreed upon cer- tain terms and conditions by the assent of all the stockholders, the directors of both roads are bound, as are the majority of the stock- holders in both, to conduct and administer said roads accordingly, and their liability to the stockholders of each road is just the same as though they had been united by act of the legislature upon the same terms and conditions as those contained in the lease. March v. Eaatem R. B. Co., 43 N. H., 515. 1863. 7. — When two railways are united under a lease specifying the duties and liabilities of each, neither is restricted or limited in any particular not included in their conti-act with each other; each may obtain new legislative grants, and avail itself of additional powers in any way it may find advantageous to itself, provided, these new operations are kept so dis- tinct as not to interfere with the due operation of their agreement with each other. lb. 8. — Such lease between the companies must be construed with reference to the objects pro- posed by the existing charters of each at the time the lease or contract was made, and its construction or operation cannot be affected or changed by any change of the plans, pur- poses or objects of the corporation without or beyond the existing scope of their chartered powers- at the time of the making of such lease or contract. lb. 9. Conyeyance. Land cannot pass by a conveyance as appurtenant to land. A lease from the Buffalo, IT. T. and Erie E. R Co. to the N. T. and Erie B. B. Co. — construed. New York Central M. B. Co. v. Buffalo, N. T. anA Erie B. B. Co., 49 Barbour (N. Y)., 501. 1867. 10. Correspondence. The effect of a cor- respondence with reference to the lease of a railroad considered — and held insuflicient to constitute a contract. Brown v. New York Central B. B. Co., H N. Y., 79. 1870. 1 1. Eminent domain. A lease by one rail- road company of its railroad for a hundred years to another, does not vest in the lessee any power to exercise the right of eminent domain, but this power remains in the lessor, and the legislature may deal with the lessor exclusively in amending its charter. Mayor, etc., Of Wor- ceitor b. Norwich and Worcester B. B. Co., 109 Mass., 103. 1871. 12. — Every lease implies a covenant for quiet enjoyment. But it extends only to pos- session and its breach arises only from evic- tion by means of title. Schuylkill and Dauphin B. B. Co. V. Schmoele, 57 Penn. St., 271. 1868. 13. — A lease does not protect from entry and ouster by a tort feasor. lb. 14. — Even the entry of the state under her right of eminent domain incurs no breach of the covenant for quiet enjoyment. lb. 15. Eviction. Where the use of a railway, together with a rolling mill, furnace, etc., was leased to the defendant ; such use being neces- sary to the full enjoyment of the premises; and rent was to be jjaid for such railroad, as an appurtenance to the other demised pre- mises ; and after the defendant had taken pos- session thereof, the lessor tore up the rails of the railroad, it was 7ield, that this amounted to an eviction of the tenant, which barred an ac- tion for the recovery of the possession of the premises on the ground of nonpayment of the rent. Peck v.Siler, 24 Barbour (N. Y.), ' 178, 1857 ; See Same v. Same, 14 Howard's Pr. (N. Y.), 155, 1856. 16. Liability of lessee. A railway com- ' pany, running and operating a road under a lease from another company, cannot be held liable, either at common law or by virtue of the statute, for torts committed by the lessor, prior to the execution of the lease. Pittsburgh, Cincinnati and St. Louis B. B. Co. v. Kain, 35 Ind., 391. 1871. 17. — The liability of a lessee for the con- tinuance of the contracts of the lessor — con- sidered. Scott V. Grand Trunk B. B. Co., 51 N. Y., 655. 1873. 18. Liability of lessor. The company own- ing a railroad will be liable for the acts of its LEASE. 503 Mortgaged Premises — Pleadings. lessees who run the road. Nelson v. Vermont and Canada B. S. Co., 26 Vt., 717, 1854; 07iio and Mississippi B. B. Co. ■». Jkmbar, 30 111., 633, 1858. 19. Macon and Western R. E. Co. The Central B. R. Co. had the legal right to lease the Macon and Western R. R. Co. Central B. B. Co. V. Mayor and Council of Maeon, 43 Ga., 605. 1871. 20. Mortgaged premises. A railroad com- pany executed a mortgage of real estate to trust- ees, containing a provision authorizing the trustees, in case of failure to pay the principal or interest, or any part thereof, for ninety days from demand made after any of the bonds should .become due, to enter, at the request of the bondholder, and take possession of and use the premites, and apply the proceeds to the pro raid, payment of the unpaid bonds ; or, under circumstances therein expressed, to cause the premises, or so much thereof as might be necessary, to be sold at public auc- tion. The mortgage also contained the follow- ing provision: "And it is further mutually agreed that until breach of condition of the aforesaid mortgage, the party of the first part, etc., shall remain in undisturbed possession, etc., and nothing herein contained shall be so construed as to prevent said corporation from improving said real estate, or making leases of such parts thereof as it may desire and have opportunity to make." Seld, that under this provision, the validity of leases executed by the mortgagor subsequently to the execu- tion of the mortgage, and its authority to- execute leases, terminated upon breach of the condition of the mortgage ; and that the trust- ees could not, by an oral assent, confirm leases so as to give them validity thereafter. Haven V. Adams, 4 Allen (Mass.), 80. 1863. 21. Municipal corporation. If the charter of a city requires any sale or lease of the real estate of such city to be made at public auc- tion to the highest bidder, an ordinance of the council of the city making a lease of any por- tion of its I'ealty to a railway company, upon the payment of a rent reserved, is void, and passes no title to the corporation. San Fran- ciseo and Oakland B. B. Co. v. Oakland, 43 Cal., 503. 1873. 22. Newport and Fall River R. R. Co. The right of the Newport and Fall River R. R. Co. to lease its road is not impaired by ch. 156 of St. 1861. Durfee v. Old Colony and Fall Biver B. B. Co., 5 Allen (Mass.), 330. 1863. 23. Particular case. A lease from Hicks- ville, etc., R. R. Co. to Long Island R. R. Co., construed. Hicksvilleand Cold Spring Branch B. B. Co. V. Long Island B. B. Co., 48 Barbour (N. Y.), 355. 1867. 24. — One railway company leased its road to another, which agreed to equip it, and to give favorable accommodation to its business, and to run regular trains, and also extra trains when required, for which last the lessees should be allowed " the actual cost of running the same ; " and it was agreed that the lessees should collect the revenues of the road leased," and, before paying them to the lessors, take out a certain sum semiannually for the run- ning of the trains, and a certain proportion of the balance, for the use of the lessee's own road by such trains. Held, that the " actual cost " of the extra trains included only money actually paid out, and not a proportion of the expense of the lessee's road, or of the wear and tear of its track. Held, also, that the les- see was bound to transport, without extra charge, wood and coal intended for and used upon that part of a brick yard at the junction of the two roads, which bordered on the road leased, and which were drawn over the lessee's road, and over a side track built by agreement between the two* corporations and in part within the location of that road. Lexington and West Cambridge B. B. Co. v. FitcKburg B. B. Co., 9 Gray (Mass.), 336. 1857. 25. — Where a railway company leased its road and all its lands, upon or across which the road or any part thereof, or its machine shops, warehouses, freight or passenger depots or buildings are constructed, such lease was held to include all lands acquired for use in operating the road, and without which the use of the road or any part thereof will be less convenient and valuable. New York Central B. B. Co., In matter of, 49 N. Y., 414. 1873. 26. Pleadings. In an action founded on an act of the legislature, entitled " An act to lease certain lands of the state to the Newark and New York R. R. Co., and to enlarge the powers of said company," an averment that the defendant accepted the said act, necessarily implies that it accepted and agreed to the pro- visions of the lease embodied in the act. Stale 604 LEASE. Power to Lease — Repairs. v. Newwrk and New Jersey R. R. Co., 5 Vroom (]Sr.J.),301. 1870. 27. Power to lease. Where the power to take a lease of a railroad, built under the gen- eral railroad law, is derived solely from this law, the rights and liabilities under the lease are governed by it, and not by the charter of the company which becomes lessee. McMil- lan v. Michigan SoutTiern and Northern Indiana R. R. Co., 16 Mich., 79, 1867; Heffron v. Same, ib. ; King v. Same, ib. 28. Profits. Evidence as to the cost of operating most railroads, in the absence of any proof to show the rates of fare per mile on those roads, is no guide to ascertain the net profits of a particular road. West Jersey R. R. Co. t. Thomas, 8 C. E. Green's Ch. (N. J.), 431. 1873. 29. Public policy. The contract of lease and amendment thereto between the Vermont Central E. E. Co. and Vermont and Canada E. E. Co., was not unlawful in the sense of being in violation of some public law, or contrary to public policy. Those corporations and their stockholders having assented to the validity of said contracts, it is not competent for a bond- holder, under the first mortgage of the Ver- mont Centi'al E. E. Co., which mortgage was given in express recognition of, and subject to, those contracts, to object to their validity on account of the want of capacity of the cor- porations to make them. Vermont and Canada R. R. Co. V. Vermont Central R. R. Co., 84 Vt, 1. 1861. 30. — It is not enough, in order for the bond- holders to avoid the effect of a contract, to show that as between themselves and the Vermont Central R. E. Co., it would be prejudicial to give a certain effect to the contract, but they must also show that it would be inequitable on the part of the Vermont Central E. E. Co., as against them, to have such effect given to it. Ib. 3 1 . Rates of toll. The Pennsylvania E. E. Co. leased the road of the Philadelphia and Brie E. E. Co. with all its rights, powers, priv- ileges, etc. ; the lessee using tlie lessor's road was not subject to the charges fixed by its own charter as to toll, but to the regulations of the charter of the lessor. Pennsylvania R. R. Co. v. Sly, 65 Penn. St., 205. 1870. 32. — The lessee succeeds to all the rights subject to all the limitations' imposed on the lessor. Ib. 33. — The lessee is the assignee for a term or period of the lessor ; his bailiff to hold pos- session for him. Ib. 34. Record. The lease of a railway, reserv- ing rent, in trust for the benefit of the credi- tors of the lessors, is an assignment, and must be recorded within thirty days in the proper county. Act March 24, 1818. Lucas e. Sun- Ubry and ErieR. R. Co., 32 Penn. St., 458. 1859. 35. Renewal. It was stipulated in a lease that at the expiration of the term of three years from the 1st of July, 1837, or of any sub- sequent term of three years, the lessor, if dis- satisfied with the amount of rent agreed to be paid, might claim an increase ; and if the claim was not adjusted, that he might make applica- tion to " the chancellor of the state of New York, for the time being," for the appointment of three appraisers to fix the amount of the rent. One of the terms of three years ended on the first of June, 1855. Held, that the parties intended, by the term "chancellor," in the lease, to mean the court of chancery, and not the mere personal incumbent of the oiflce of chancellor. And the court of chancery having been abolished by the constitution of 1846, and the supreme court having succeeded to all its powers and duties, that the latter court was the proper tribunal to which to apply for the appointment of appraisers. New Tork Central R. R. Co. B. Saratoga and Schenectady R. R. Co., 39 Barbour (N. T.), 289. 1861. 36. Repairs. It is the duty of the court, in construing a written contract, to harmonize it, •if possible, so as to give effect to every part of it. Hydmille Go. ■». Eagle R. R. and Slate Co., 44Vt., 395. 1872. 37. — The plaintiff leased to the defendant certain premises by written lease, under seal, and therein agreed to make certain repairs upon the premises within one week from the date thereof. Meld, that the defendant was not bound to take possession of the premises and pay rent, unless the plaintiff made the stipu- lated repairs within a week from the execution of the lease ; and the defendant could maintain an action against the plaintiff, after the expi- ration of a week, for his failm-e to make the re- pairs. Ib. 38. — About six months after the lease was executed, the plaintiff having failed to make the stipulated repairs, the defendant, before he went into possession of the premises, in accept- LEGAL TENDER ACT 505 Act of Legislature — State Railway Stock. ance of a proposition made by the plaintiflF, indorsed upon the lease the following agree- ment and signed the same : " This may certify that in consideration of a discount of $50, 1 agree to put the said houses in repair, and de- liver them up at the expiration of this lease in like good repair, and pay to the Hydeville Co. $200, instead of the provisions, of said lease." Held, that this was an agreement to pay $300 for the remainder of the time the lease had to run, and not iperely to discount $50 from the rent reserved dn the lease. lb. 39. Seal! If a committee of three direct- ors has discretionary power to execute and de- liver a lease of the corporate property, two of the members may seal it with the corporate seal, where the third is absent, but has ap- proved its terms and concurred with the others in directing its engrossment for execu- tion. So held, one of tlie members executing being president of the corporation and custo- dian of its seal. Union Bridge Go. v. Troy and LansinghurgJi B. B. Co., 7 Lansing (N. Y.), 340. 1873. 40. Signals. The Rev. Sts., ch. 39, § 78, re- quiring every railroad corporation to carry a bell on eveiy engine passing upon "its road," etc., applies to a railroad corporation which has taken a lease of a railroad owned by an- other corporation, and is running its own en- gines upon it under such lease. Liniield v. Old Colony R. B. Oo., 10 Gushing (Mass.), 563. 1853. 41. Ultra vires. A contract of lease made by a railroad company for the purpose of ex- tending its road beyond the teitninus fixed by its charter, is ultra vires, and void as against public policy, and should be set aside by the courts on the application of one of the parties. Union Bridge Co. v. Troy and Lansingiurgh B. B. Co., 7 Lansing (N. Y.), 240. 1872. 42. Value of lease. The true method of calculating the value of an unexpired lease is by annuity tables ; by multiplying the clear annual value of the lease by the value of one dollar per annum for the unexpired term, at the rate of lawful interest. West Jersey B. B. Oo. V. Thomas, 8 C. E. Green's Ch. (N. J.), 431. 1873. LEGAL TENDER ACT. See Cohtbactb; Rates. 1. Act of legislature. The Pacific rail- road state bonds, issued under the act to ex- pedite the construction of the Pacific Rail- road and the Hannibal and St. Joseph Railroad, approved February 22, 1851, being payable on their face in gold and silver, can be met only by payment of the sum called for in gold and silver coin, and not by payment of the amount in legal tender currency. The legal tender act cannot aflEect this obligation. But where the legislature has determined to pay the bonds in legal tender currency, the supreme court has no power to interfere ; and mandamus to com- pel the fund commissioners to pay said bonds in gold and silver coin will not lie. State ex rel. «. Hays, 50 Mo., 34, 1872 ; Governor, Opinion in response to, 49 ib., 216, 1872. 2. Constitutional law. The act of con- gress known as the legal tender act is con- stitutional, and is valid as to debts contracted both before and after its passage. Bichmond V. Dubuque and Sioux City B. B. Co.. 33 la., 433. 1871. 3. Decree. There is no principle upon which the payment of gold bonds and coupons may be decreed to be made in currency to an amount equal to the currency value of the gold on the day when the bonds fall due, but the payment must be decreed in coin itself. Johnson V. Norwich and Worcester B. B. Co., 37 Conn., 433. 1870. 4. Goods lost. In a suit for the value of certain cotton lost by the defendant it was error to render judgment for gold coin. The judgment should have been for dollars and ceats only. Central B. B. Co. v. George, 32 Tex., 568. 1870. 5. Ground rent. The principal of ground rent is not a debt within the meaning of the legal tender act. Philadelphia and Beading B. B. Co. V. Morrison, 5 Philadelphia Rep. (Penn.), 515. 1864. 6. Passenger fares. A railroad company is bound to accept United States legal tender notes at the value expressed on their face in payment of fare upon its railroad. Lewis v. New York Central B. B. Co., 49 Barbour (N. Y.),330. 1867. 7. State railway stock. The dividends due the state on its stock in the Baltimore and Ohio R. R. Co., are not payable in gold, under the legal tender act. Baltimore and Ohio B. B. Co. V. The State, 36 Md., 519. 1872. 506 LESSEES -LIEN. Miscellaneous. LESSEES. Sae Injitbizs to Bomestic Aniuals ; Lease. LL^ILITY LIMITED BY CONTRACT. See Cabbuoe or Lite Stock; Cabbiags of Meb- chandise; Injubies to Employes; Injtjbies to Fasbenoebs. LIBEL. 1. Libel by corporation. A railway corpo- ration is responsible for the acts of its agents, either ex contractu or in delicto, in the course of its business and of their employment. It is therefore responsible in an action for the publication of a libel. PMladelpliia, Wil- mington and Baltimore B. B. Co. v. Qaigley, 21 Howard, 303. 1858. 2. — It is within the course of the business of the president and directors to report to the stockholders the result of their investigation into the conduct of their agents. Tb. •S. — But the publication of such report must be made under the responsibilities that attach to individuals under like circum- stances, lb. 4. — Such report is privileged, but cannot be published in a book for general distribu- tion, lb. 5. — The company could not be held re- sponsible for a publication that took place after the suit commenced. lb. 6. — An instruction allowing the jury to give exemplary damages was erroneous, there being no evidence of malice or wantonness. lb. LICENSE. See EsiNEirr Souaih. 1. Adverse possession. Unless there is evidence of a license, there must be an unin- terrupted use of a railroad switch for twenty- one years to entitled the company to claim a license. Meyl v. Bailroad Co., 6 Philadelphia Kep. (Penn.), 43. 1865. LIEN. See Gaenishmekt; Iw jusctioh ; Judgmest; Me- chanics Lien ; Vendob and Vendee. 1. Banli: bill holders. Section 11 of the charter of the Monroe R. R. and Banking Co. gives to bill holders a paramount lien for the payment of their bills upon that part of the road only which was built by the company. Collins T. Central J^ank of Georgia, 1 Ga., 435, 1846 ; but see Woodwa/rd v. Same, 4 ib., 333, 1848. 2. Factors. Where tbe consignor continues to be the owner of the goods consigned, no special property can exist in the factor, nor can any lien general or special attach, unless he have possession, either actual or construct- ive, of the goods. If the goods are in transitu, or if the factor has only a right of possession, no lien attaches. Woodvuff v. N'ashvUle and Chattanooga B. B. Co., 2 Head, (Tenn.), 87. 1858. 3. Freight charges. An implied agree- ment between a railway company and an owner of merchandise transported by such company, as a common carrier upon its road for a per diem compensation for the use of its cars, during any delay by such owner in remov- ing such merchandise after its arrival, does not give the company a lien upon the merchan- dise for such compensation during the time it may remain upon its cars in a public highway. Crommelin v. N. T. and Harlem B. B. Co., 10 Bosworth (N. Y.), 77. 1863. 4. — Several cargoes of coal, delivered by their owner upon the wharf of a railroad company, were successively carried over such railroad, and at the place of destination un- laden, and deposited by the owner's servants in bins on the land of the corporation, adjoin- ing the owner's land, and portions were carried away and delivered to purchiisers by the owner, from time to time, until he became insolvent, ffeld, that the corporation had a lien upon the coal which remained, for the wharfage and freight of all the cargoes. Lam,e ■D. Old Colony B. B. Co., 14 Gray, (Mass.), 143. 1859. 5. — damages. A common carrier has no lien upon goods carried by him for damages arising from the neglect of the consignee to take the goods away within a reasonable time after notice to him of their arrival. Orom- LIMITATIONS. 507 Absence from State — Carriage of Goods. melin i). New York and Harlem S. B. Co., 4 Keyes, (N. Y.), 90. 1868. 6. — Such damage constitutes a claim in the nature of demurrage. There is a breach of contract simply for which the party must seek his redress in the ordinary manner ; he cannot enforce it by a detention of the goods. lb. 7. Goods in transit. The fact that a con- signee has accepted bills drawn upon him by the consignors, based upon the understanding that the goods should be shipped to him to be sold to meet the bills, does not give the con- signee a lien upon the goods while in transitu, they not having come into his possession, either consti-uctively, by bill of lading, or by actual delivery. Lewis ■». Galena and Chicago Union B. B. Co., 40 111., 281. 1866. 8. Vessels. In an action against the owners for the value of certain services ren- dered to a steamer, the defendants may show, under the general issue, that the steamer was chartered to a third person. Ponteha/rtrain B. B. Go. V. Seirne, 2 La. An., 139. 1847. 9. — The owners in such case are not liable where the person rendering the services has knowledge of the facts. lb. 10. — The charter of the P. R. R. Co., giving a privilege on vessels or other property liable for warehousing, wharfage and transporta- tion imposes no personal liability on the owners of the vessel in this case. lb. LIMITATIONS. See Emisekt Soiuin'; Pebeies; Indictment; In- jtraoTioN; Mobtsage; Subbobiptioss bt Inmvid- TjALs; WatebooueseS. 1. Absence from state. The absence of the officers of a corporation from the state does not bring the corporation within the exception of § 32 of the statute of limitations ; the absence of the officers is not the absence of the corporation. Sherman v. Buffalo Bayo, Brazos and Colorado B. B. Co., 31 Tex., 349. 1858. 2. Adverse possession — title. A title ac- quired by twenty-one years adverse possession, under the statute of limitations, is an abso- lute one, and is not barred by a subsequent neglect to keep up the possession, as against a bona ^(Ze purchaser, without notice, of the adverse paper title. Sohall v. Williams Valley B. B. Co., 35 Penn. St., 191. 1860. 3. Assault and battery. In an action against a railway company for an assault and battery committed by one of its employes upon the plaintiff, held, that the action having been brought more than two years after the cause of action arose, was barred by the statute of limitations. Held, further, that it did not become a different action by being brought against the master. Priest v. Hudson Biver B. B. Co., ,2 Sweeney (N. Y.), 595. 1870. 4. Bills and notes. The admission of the execution of a note, accompanied by the as- sertion that it had been paid, is not such an acknowledgement as will interrupt prescrip- tion. New Orleans and Uarrollton B. B. Co. v. Harper, 11 La. An., 313. 1856. 5. Burden of proof. Where the defendant pleaded the statute of limitations, and the plaintiff, by way of replication, alleged that the defendant had been beyond the limits of the state for a portion of the time, it was Jield, that the affirmation of the issue was ufion the plaintiff; and he was entitled to the opening and closing. Thornton v. West Feliciana B. B. Co., 29 Miss., 14.3. 1855. 6. Canals. Where the grantee of a right to open a canal permitted thirty years to elapse without availing himself of the right, it was held, that the right was extinguished by lapse of time. Mariguy v. Ponteha/rtrain B. B. Co., 15 La. An., 437. 1860. 7. Carriage of Goods. An action founded upon a contract, was brought against a carrier for the value of goods delivered to him for transportation, but which he neglected to for- ward, and which were destroyed.in his hands'. Held, that such action was not barred by the statute of limitations until six years after their destruction. Finn v. Western B. B. Co., 103 Mass., 383. 1869. 8. — contract. A written contract entered into by a railway company for the transporta- tion and delivery of goods, is within the pur- view of the statute limiting actions on such contracts to sixteen years. Illinois Central B. B. Co. V. Johnson, 34 111., 389. 1864. 9. — The limitation of one year, prescribed by article 3499 of the (Tivil Code of Louisiana, does not apply where the plaintiffs were ship brokers only and not ship owners, and where 508 LIMITATIONS. Constitutional Law — Foreign Corporation. tlie contract was not one of aflEreightment. Railroad Co. v. Lindsay, 4 Wallace, 650. 1866. 10. Constitntionallaw. An action brought against a stockholder of the Lexington Bail- road and Coal Mining and Transportation Company (See Wagn. Stat., 391, g 13), more tlian a year after the debt was contracted, was barred by the limitation of the act touching Manufacturing and Business Companies (Wagn. Stat., 336, § IS). The one year limita- tion of time for commencing suit was not so short as to justify the supreme court in declar- ing it unreasonable, and the law for that rea- son invalid. The act was wholly prospective, and therefore constitutional. Adamson'B. Davis, 47 Mo., 368. 1871. 11. — Section 7 of an act to amend the charter of the Louisville & Frankfort B. E. Co., approved February 33, 1856, which pro- vided that actions for injuries to stock and other pi-operty on said road by the company or its agents, " must be hronigM within six months after such injv/ry,^^ is constitutional. O'Bannon •». Louisville, Cincinnati and Lexing- ton B. B. Co., 8 Bush (Ky.), 848. 1871. 1 2. Corporation. A corporation may plead the statute of limitations. Neui Orleans and CarrolUon B. B. Oo. ®. Harper, 11 La. An., 313. 1856. 13. Coupons. The same statute of limita^ tions applies to a coupon that applies to the bond. Lexington n. Butler, 14 Wallace, 383. 1871. See post, page 539. 14. Damages. A claim for damages ex de- licto is barred in one year. C. C. 3501. Harris J). Nem Orleans, Opelousas and Georgia B. B. Co., 16 La. An., 140, 1861 ; Meatier ®. Same, ib., 354. 15. — The statute of limitations may be pleaded in bar of the special statutory remedy provided for the recovery of damages caused in the construction of a railroad. Forster v. Cumberland TalUyB.B. Oo.,23 Penn. St., 371. 1854. 16. — Statutes of limitations are applied rather according to the substance of the claim than to the forin of the proceeding, and may be relied on in all courts, even though their letter may refer only to the proceedings in courts of common law form. Ib. 17. — A railway company was chartered by an act in 1833, and acted under that and subsequent acts, the last being in 1853, the first act providing for a mode of assessing damages and allowing an appeal. A claimant for dam- ages is not barred by the limitation against suits for penalties in § 14 of the Railroad Law of 1849. The assessment of damages is not a penalty. Delaware, Lackawanna and Western B. B. Co. V. Burson, 61 Penn. St., 369. 1869. 18. — The act of limitations of 1713 does not apply to the assessment of railroad dam- ages. Ib. 19. — The fifteen days limitation specified in the act of 1853-'4, defining the liability of railroad companies for damages to property only applies to demands under $30 in amount. Jones 11. Central B. B. Co., 18 Ga., 347. 1855. 20. Death. A suit to recover, under § 784 of the code, for the death of a person caused by the wrongful act or omission of another must be commenced within two years from such death. Hanna ii. Jeffersonnille B. B. Co., 33Ind.,113. 1869. 21. Dividends. The statute of limitations will not, in this state, run against the divi- dends of a stockholder, until after demand and refusal, or notice to the shareholder that his right to the dividends is denied. Whether it would in any event be a bar under act of 1847 is doubted. Philadelphia, Wilmington and Baltimore B. B. Co. v. Cowell, 38 Penn. St., 339. 1857. 22. Executors. The legislature may pass an act of limitations which shall apply to ex- isting causes of action, but some reasonable time should be allowed, within which suits may be brought; but if the act is silent as to any such intention, it cannot be construed to apply to cases where such construction would cut off all remedy. West Feliciana B. B. Co. «. Stockett, 13 Smedes and Marshall (Miss.), 395. 1850. 23. — The act of 1844, limiting the time of bringing actions against executors, etc., is therefore prospective. Ib. 24. Foreign corporation. A foreign cor- poration cannot avail itself of the statute of limitations as a defense to an action in the courts of New York. Mallory v. Tioga B. B. Co., 3 Abbott's Ct. of Ap. Dec. (N. Y.), 139, 1867; Oleott v. Tioga B. B. Co., 30 N. Y., 310, 1859 ; reversing Same v. Same, 36 Barbour (N. Y.), 147, 1857; see Sam^ v. Sams, 40 ib., 179, 1863; Thompson «. Tioga B. B. Co., 36 ib., 79, 1861 ; Blossburg and Coming B. B. Co. v. Same, 5 Blatchford (U. S. C. C), 387, 1867. LIMITATIONS. 509 Injuries to Domestic Animals — Subscriptions to Stock. 25. — Tliis rule is not changed by tlie fact that such corporation has, before the com- n^encement of the action for the time speci- fled in the statute, continuously operated and carried on a railroad in that state, having a large amount of property for all that time within tlie state, and having a inanaging agent resident therein. Bathbun v. Northern Central JB. S. Co., 50 N. Y., 656. 1872. 26. — The statute of limitations of Kansas does not run in favor of a foreign corporation having no existence under the laws of the state. North Missouri B. B. Co. v. Akers, 4 Kansas, 453. 1868. 27. — The statute of limtatlons does not commence running aganst a foreign corpora- tion until it has attachable property in this state, although, previous to that time there may be directors and stockholders of such corporation residing in the state. Sail v. Ver- mont and Massachusetts B. B. Co., 28 Vt., 401. 1856. 28. Injuries to domestic animals. The recovery authorized by statute without proof of negligence, for injuries done to animals by railroads, where the roads are not fenced, is not a " penalty given by statute," within the meaning of the first subdivision of § 211 of the code. The action is for an injury done to property, and the limitation of the action is regulated by the third clause of § 210. Jefer- sonnlle B. B. Co., v. Gaibart, 25 Ind., 431. 1865. 29. — Under ch. 169, Laws of 1863, § 6, mak- ing railway companies liable for double the value of stock killed, upon theii failure to pay the owner therefor, after thirty days' notice, the action is deemed to have accrued at, and the statute of limitations begins to run from, the date of the injury, rather than from the service of such notice. Koons v. Chicago and North- western B. B. Co., 23 la., 493. 1867. 30. — Such statute is not a penal statute, nor are the double damages a statute penalty, within the meaning of the statute of limi- tations, and the action is not barred in two years. lb. 31. Injury to passengers. Where the death of a passenger, a resident of another state, was occasioned by the negligence of a railway company in Connecticut, and action therefor was limited by statute to be " com- menced within one year after the cause of action shall have arisen," and the action was not commenced within one year after the death, but was commenced within one year after the appointment of an administrator in this state, Tield, that the action was not barred by the statute. Andrews v. Hartford and New Haven B. B. Co., 34 Conn., 57. 1867. 32. Judgment of county commissioners. To a judgment of county commissioners, fix- ing the damages for real estate taken for the location of a railroad, the statute of limita- tions is a bar after six years, the court of said commissioners not being a court of record. Mooera v. Kennebec and Portland B. B. Co., 58 Me, 279. 1870. 33. Mistake. To enable a complaining party to avoid the eflfect of the statute of limi- tations on the ground of failure to discover the mistake, which is made the grounds of recovery, he must show an exorcise of a proper degree of vigilance in the pursuit of his right. Lexington arid Ohio B. B. Co., v. Bridges, 7 B. Monroe, (Ky.), 556. 1847. 34. Private way. A road across one's own land is not a "private way" within the meaning of the Gen. Sts., ch. 63, § 28, requir- ing application to be made within a year for damages for the obstruction of a private way by a railroad corporation. Presbrky ■». Old Colony and Newport B. B. Co., 103 Mass., 1. 1869. 35. — In making an assessment, under the Gen. Sts., ch. 63, § 21, of the damages occa- sioned to land by the location of a railroad across it, they are to be assessed on the basis that the landowner has no right to cross tho railroad, unless the railroad corporation has secured him such a right under §§40, 64r-66. lb. 36. Receipt. A receipt given by a railway company, for freight to be transported, is not a bill of exchange, and the limitation of five years does not apply to it. It is not a bill of lading and the limitation of one year does not apply, C. C.,3501, 3505. Flash, Hartmll & Co. «. New Orleans, Jackson and Qreat Northern B. B. Co., 23 La. An., 353. 1871. 37. Subscriptions to stock. Where A. sub- scribed for railway stock, and when sued upon his subscription, he plead the statute of limi- tations, which was sustained as to a part of the subscription, it was held, that A. could not afterwards compel the railway company to issue to him the whole amount of the stock 510 LIS PENDENS - LIVE STOCK. Miscellaneous. subscribed for. Johnson v. Albany and Susque- Tierma R. R. Co., 54 N. T., 416. 1873. 38. — The lapse of six years is a bar to an action by a railroad company, for a subscrip- tion to its capital stock, if no call has been made within that period. Pittsburgh and Con- neUsville R. R. Go. v. Graham, 36 Penn. St., 77. 1859. 39. — Such subscription is an ordinary con- tract of purchase and sale. The subscriber does not become an integral part of the cor- poration, so as to be affected with an implied assent to its acts. lb. 40. — The silence of the subscriber, after six years have expired, and his standing by while large expenditures are being made, will not estop him from pleading the statute; it is a bar in equity, as well as at law. lb. 41. — Although the statute of limitations does not begin to run against a subscription until after calls are made for installments, yet, where no calls are made for installments for more than six years from the date of the sub- scription, the law will presume an abandon- ment of the enterprise, and, from analogy to the statute, bar recovery. Pittsburgh and Con- ndlsvitle R. R. Co. t>. Byers, '33 Penn. St., 22, 1858 ; McOully v. Pittsburgh and Oonnellsville R. R. Co., ib., 25. 42. — conditional. Subscriptions to the stock of a railway company were made on the 28th of April, 1858, conditional upon the adop- tion by the company of a certain route. This route was adopted by the company on the 31st of March, 1857. No calls were made for the payment of subscriptions until the 25th of June following. In an action brought by the company to recover the amount of the calls upon the stock subscribed for, it was held, that the statute of limitation did not begin to run until the several calls were due. Taggart ». Western Maryland R. R. Co., 24 Md., 563. 1866. 43. — Where a stockholder gives a mort- gage to secure his subscription to the com- pany, and his liability depends upon a future contingency, the statute of limitations com- mences to run from the happening of the con- tingency. Clinton and Port Hudson R. R. Co. V. Eason, 14 La. An., 828. 1859. 44. — A subscription conditioned for the prosecution of the construction of a railroad will be barred, unless the conditicm be per- formed, and a call made within six years. Pittsburg and Gonnellstille R. R. Co. v. Crrdham, 2 Grant's Cases (Penn.), 259. 1859. 45. — creditor's bill. Under the Ohio statute, actions on subscriptions for stock in a railway company may be commenced at any time within fifteen years, dating from the times fixed in the calls for payment; and where no circumstances interpose to render it inequitable, a creditor's bill may be main- tained to subject the amount due to the pay- ment of his claim within that period. War- ner V. Callmder, 20 Ohio St., 190. 1870. 46. Surface water — change of. The di- version of surface water from the land of another, by excavations on one's own land, and the backing of water by means of dams, etc., arc injuries for which an action will lie at common law, and hence the limitations of two years, under the internal improvement act of 1886, will not apply. See Trustees, etc. V. Spears, 16 Ind., 441 ; Jlfew Albany and Salem R. R. Co. V. Higman, 17 Ind., 594, 1861. 47. Trust. Where in a case of the misap- plication of a trust fund, the parties have a remedy at law, concurrent with their remedy in equity, the statute of limitations will apply. Lexington and Ohio R. R. Co. v. Bridges, 7 B. Monroe (Ky.), 556. 1847. 48. — The ti-ust confided to the trustees of a corporation is not a continuing trust, and terminates with their term of office, and this is the rule even though they be actually reap- apointed. The statute of limitations therefore applies to such trust. Ib. LIS PENDENS. 1. Interval between suits. The doctrine of lis pendens has no application to a case where there are three distinct and independent suits, with an interval of one year between the first and second, and two years between the second and third. Lee County Vi Rogers, 7 Wallace, 181. 1868. LIVE STOCK. Soe Cabkiags or Live Stock; Injubies to Soheb- TIC AinMAI.8. LOBBYING — LOCATION. 511 Miscellaneous. LOBBYING. 1. Lobby members. No action will lie on a contract for procuring legislation by means of what is termed " lobby members." Ma/rshall v. Baltimore and Ohio R. B. Oc, Taney's Dec, S04. 1853. 2. — Money may be properly used and im- properly, to influence legislation. It is used properly for the distribution of circulars or pamphlets, or otherwise for the collection or distribution of information, openly and pub- licly, among members. It is used improperly In bribing or working up a personal influence upon members, and conciliating them by sup- pers, presents, or any of that machineiy used by lobbyists to secure a member's vote, with- out reference to his judgment. Kansas Pacific E. B. Co. V. McOoy, 8 Kan., 538. 1871. LOCAL FREIGHTS. See Cabbiage of MsBcnAKBiBS. 1. Statute. Millers in Philadelphia bought grain west of Pennsylvania, not the product of her soil, shipped it to Pittsburgh and thence by railroad to Philadelphia. Held, that this was not "local freight " within the meaning of the " commutation act." Bowland ». Penn- syhania B. B. Co., 53 Penn. St., 350. 186G. LOCATION. See EMmxHT Domain. 1. Branch lines. A railway company was authorized to construct a railway, making S. and P. points on the main line. It proceeded to put under construction a line from S. to P., which lies thirty-eight degrees north of a direct line from S. to P., and which, if brought down to that line, would not be half way be- tween S. and P. The court considered that this was manifestly the main line, and could not be called a branch. Works v. Junction B. B. Co., 5 McLean, 425. 1853. 2. Change of location. Where a railway company has received from private individu- als donations of lands, subscription of stock, and payments in money, in consideration that it should locate its road at a particular place, and allow private side track and warehouse privileges in connection therewith, the com- pany will not be permitted to eflfectuate a change in fact, though not in name, of the line of its road away from such place, by get- ting up a new corporation and constructing a new road parallel with its old one, under a diflferent charter, and permitting its old line to go to decay, without compensating the parties with whom it has contracted as aforesaid. Chapman v. Mad Biver and Lake Erie B. R. Co., 6 Ohio St., 119. 1856. 3. — A railway company in the city of New Orleans, which has been authorized by the city to change the track of its railroad, can- not be enjoined from so doing by an individ- ual property holder situated on the line of the road, on the ground that such change would likely prove detrimental to the public health, and would therefore work an irreparable in- jury to him. Hoyle v. New Orleans City B. B. Co., 23 La. Ad., 535. 1871. 4. — A right to change location, "either for the difficulty of construction, or of procuring a right of way at a reasonable cost, or when- ever a better and cheaper route can be had," does not authorize a company to relocate, be- cause a particular town, on the selected route, will not contribute to the route. Woi-ksv. Junction B. B. Co., 5 McLean, 425. 1853. 5. — The 11th and 13th sections of the act incorporating the Little Miami R. R. Co., do not confer upon the company the right to re- locate its road, after completing it upon tJie first location, and to condemn other property for its uses. Moorhead v. Little Miami B. B. Co., 17 Ohio, 341, 1848 ; Atkinson v. Marietta and Cincinnati B. B. Co., 15 Ohio St., 31, 1864. 6. — Railway companies may make experi- mental surveys at pleasure, before finally locat- ing their route. Ifeal v. Pittsburgh and Con- nellsville B. B. Co., 2 Grant's Cases (Penn.), 137. 1856. 7. — But they cannot have experimental suits at law, as a means of chaffering with land owners for the cheapest route. lb. 8. — The power of taking any man's land by such company is exhausted by a location. It cannot be Indulged with another choice. lb. 9. Charter. Where, by the terms of the 512 LOCATION. Commissioners — Extension. charter, mucli is left to the discretion of the officers of a company in respect to the loca^ tion and route of the road, their selection should not he disturbed, unless they have clearly erred. Rents r>. Long Island B. B. Co., 13 Barbour (N. Y.), 646. 1852. 10. — All railroad charters that do not di- rectly express the contrary, must be taken to allow the exercise of such a discretion in the location of the route as is incident to an ordi- nary practical survey, but not deviating sub- stantially from the course and direction indi- cated by the charter. SoutJiem Minnesota B. B. Co. ». Stoddard, 6 Minn., 150. 1861. 11. Conuuissioners. No person is author- ized to apply to a justice of the supreme court, under § 33 of the general railroad act, of 1850, for the appointment of commissioners to examine the proposed route of a railroad, and affirm or alter the same, except one whose lands the company desires to take for its use, and after proceedings have been commenced for that purpose by the company. People ex rel. V. Tubbs, 59 Barbour (N. Y.), 401. 1871. 12. — The commissioners thus appointed are to examine the proposed route, and hear the parties before deciding; and the decision must be confined to the rights of the parties heard, and consistent with the rights of the public. Ih. 13. — Any person feeling aggreived may, within a certain time after written notice of the route, apply to a justice of the supreme coui't, for the appointment of commissioners ; who, on a hearing of the parties, are to affirm or alter the route. Norton v. WallMll Valley B. B. Co., 61 Barbour (N. Y.), 476. 1871. 14. — The determination is to be made by the commissioners ; one of whom must be a civil engineer. lb. 15. — Where, in a proceeding under the general railroad act of 1850, as amended by the act of 1870, on the petition of a land own- er for the appointment of commissioners to change the location of the route of a railroad as surveyed by the company, it appears that he has not given notice of the application for the appointment of commissioners, to an in- dividual whose land will be affected thereby, such proceeding is wholly void. Norton b. Wallkill Valley B. B. Co., 63 Barbour (N. Y.), 77. 1873. 16. — Although § 33 of the general railroad act does not, in terms, declare that the com- missioners shall have jurisdiction of the entire subject of the location of the route through the county in which the land of the person applying for their appointment is situated, still, that is the true intent and construction of the act. Long Island B. B. Co., In ths matter of, 45 N. Y., 364. 1871. 17. — Where commissioners are appointed under the provisions of § 33 of the general railroad law, their power over the proposed route is not restricted to that part of it which lies within the bounds of the land of the party procuring their appointment, but they may make any alteration of the proposed route within the county which may be necessary ; but they have no power to so change a portion of the proposed route as to leave it discon- nected at either end with the other portions. People ex rel. Erie and Oenessee Valley B. B. Co. V. Tubbs 49 N. Y., 356. 1872. 18. Connections. A road 34 miles long was authorized " from a point on the Pennsylvania Railroad, at or near Pai-kesburg." Seld, that a connection one mile and a half east of Parkes- burg was not a transgression of the aether se. Parkes' Appeal, 64 Penn. St., 137. 1870. 19. — The only question is, has the com- pany exceeded a discretion on the subject ap- parent on the face of the act of incorporation ? lb. 20. Dwelling house. Where according to the smallest estimate of the width required for the railroad, on the proposed route, it will take a portion of the land of an individual, and according to the largest estimate, it will take his dwelling house; it cannot be said that such owner is not " affected by the pro- posed alteration," merely because the center line of the proposed railroad does, not cross his land. Norton v. Wallkill Valley B. B. Co., 63 Barbour (N. Y.), 77. 1873. 21. Extension. Where a company is au- thorized to extend its road to a point named, beyond its original terminus, such authority will not justify the building of such extension from some point upon the original line other than the terminus. Works v. Junction B. B. Co., 5 McLean, 425. 1853. 22. — Where a company is authorized to build branch roads " in the several counties through which it passes," it will not thereby be permitted to build a branch road com- LOCATtON. 513 Filing — Terminus. mencing in one county and terminating in another. lb. 23. — The charter of a railway company required the road from N. to S. to be located as far north aa a certain point, and in the location, a curve was made in order to reach that point, and the road was thence continued towards 8. by an acute angle; held, that the subsequent continuation of the railroad for about a mile and one-half northerly from the point of the angle to the village of M., was unauthorized. BrigJiam v. Agricultural Branch B. B. Co., 1 Allen (Mass.), 316. 1861. 24. Filing. Where the time of filing the location with the county commissioners was fixed by statute to be February 8th, and it was deposited with their clerk on February 6th, it was seasonable, although a term of the com- missioners' court did not occur until the fol- lowing April. Eaton v. European and North American B. B. Co., 59 Me., 520. 1871. 25. — And where one year was given by statute for the alteration and amendment of the location, and the amended location was filed in the last day of the year, it was held that the filing was seasonable, although there was no session of the commissioners' court for several months after the filing. Ih. 26. Form of plan of location. A location filed by a railroad company with the county commissioners, by which alone the true loca- tion upon the ground cannot be fixed and ascertained, is nevertheless suflScient, if the location' can be determined by the plan filed therewith. Orand Junction B. B. Co. v. Comers of Middlesex, 14 Gray (Mass.), 553. 1860. 27. Injunction. Equity will not restrain the directors of a railroad company unless it is shown that they wantonly or capriciously disregard the rights of others. Antpach v. Ma- lumoy and Broad Mountain B. B. Co., 5 Phila- delphia Rep. (Penn.), 491. 1864. 28. Midland R. R. Co. By St. 1850, ch. 268, the Midland B. R. Co. was authorized to locate and construct a railroad " commencing at some convenient point on the Norfolk County Railroad ; thence through the south- erly part of Dedham ; thence through or near the westerly part , of the towns of Canton and Milton." Held, that a location, commencing at a point on the Norfolk County Railroad in South Dedham, and not departing from that road at once, but running northerly upon it 33 for more than two miles, and then approach- ing within two hundred rods of the north- westerly corner of Canton, and running near the westerly boundary of Milton, was author- ized by the statute. Boston and Providence B. B. Co. V. Midland B. B. Co., 1 Gray (Mass.), 340. 1854. 29. Navigable streams. An unrestricted grant authorizing the building of a railroad from one designated point to another carries with it the authority to cross a navigable stream, if the railroad cannot reasonably fee constructed without doing so. Fall Biier Iron Works Co. v. Old Colony and Eall Biver B. B. Co., 5 Allen (Mass.), 331. 1863. 30. Objections to location. No person has the right to object to the location of a railway, on the ground of damage to his property, un- less his title or possession extends back to the time when the land was taken by the compa^ ny. Sente «. Long Island B. B. Co., 13 Bar- bour (N. T.), 646. 1853. 31. Review. A company was authorized to locate its road by the most direct and cheapest route; after the location and con- struction had become complete, the exercise of the discretion of the company in the loca- tion could not be reviewed. Cleveland and Pittsburgh B. B. Co. v. Speer, 56 Penn. St. 335. 1867. 32. — If the act of location had been void- able, none but the Commonwealth could call the company to account. lb. 33. Rights of railway companies. A rail- way company, in determining upon its route, acts arbitrarily, and is not required to consult any one. Norton v. Wallkill Valley B. B. Co., 61 Barbour (N. Y.), 476. 1871. 34. — No one is entitled \o any notice, on the subject, until the route has been actually designated. lb. 35. — Under a charter which fixes one terminus of a railroad at or near a certain point, a lai'ge discretion is conferred upon the railroad company in locating its road, the exercise of which will not be revised by this court unless it has clearly exceeded its just limits or acted in bad faith. Eall Biver Iron Works Go. V. Old Colony and Eall Biver B. B. Co., 5 Allen, (Mass.), 331. 1862. 36. Terminus. The articles of association of the Brooklyn and Newtown R. R. Co., con- strued with reference to the terminus of the 514 LOSS OF BAGGAGE — MANDAMUS. Miscellaneous. road. Mason v. BrooMyn and Newtown R. R. Co., 35 Barbour (N. Y.), 373. 1861. LOSS OF BAGGAGE. See Bassage. LOSS OF GOODS. I Cabbiase ot Mebchakdise. LOST GOODS. 1. Rights of finder. A person finding money in a railroad car is entitled to tlie cus- tody and possession of the same as against the railroad company or its officers; if the finder places it in their custody for the purpose of finding the true owner, they hold it only as the bailee of the finder, and cannot dispute his title thereto. New Torh and Ha/rlem R. R. Co. V. Sams, 3 Jones & Spencer, (N. Y.), 373. 1873. LUNATICS. See Eminent Domain; Injdbies to Passengebs. MACHINERY. See Cabbiaqe op Mebohandise; Injitbieb to Em- ployes; iNJtIEIES to PASBENGEES. MAIL CATCHER. See INJUBIEB TO Emplotes. MALICIOUS MISCHIEF. 1. An indictment for " unlawfully, willfully, maliciously and mischievously driving the horses attached to a freight car, on the Fourtli Avenue railroad, against another railroad car, then and there being, and then and there injur- ing the last mentioned car, he so intending, etc.," does not allege or include the common law ofiEense of malicious mischief. The de- fendant can be considered as guilty of noth- ing beyond a hurtful trespass. Williams v. People, 34 Howard's Pr. (N. Y.), 350. 1863. MALICIOUS PROSECUTION. 1. Pleadings. An action of trespass for false imprisonment will lie against a corpora- tion, but an action on the case for a malicious prosecution will not. Owsley v. Montgomery and West Ft. R. R. Co., 37 Ala. N. S., 560. 1861. 2. — The sufficiency of pleadings determined in a particular case. lb. 3. — An action may be maintained for ma- licious prosecution against a corporation ag- gregate. Vance v. Erie R. R. Co., 3 Vroom (N.J.), 334. 1867. MANDAMUS. See Bkupges ; Eletatobs. 1. Adequate law remedy. A writ of man- darrms will not be issued where there' is a plain and adequate remedy at law. State oj Kansas ex rel. ». McCrillus et al., 4 Kans., 250. 1868. 2. Amendment of writ. A motion to amend and enlarge a peremptory writ of man- damus to conform to a judgment upon which it is based, should point out specifically the defects in the writ and the discrepancy be- tween it and such judgment. State ex rel. o. County Judge of Johnson County, 13 la., 337 1861. 3. — The rule is, that a peremptory writ oi mandamus must conform strictly to the alter- native, lb. 4. — Where the record does not set out the alternative writ, the supreme court will pre- sume that it was followed in the peremptory writ. lb. MANDAMUS. 515 Contempt — Judgments. , 5. Contempt. 'Wliena.mandamits is awarded, directed to a board of officers composed of several members, commanding the perform- ance of an official act, by them as a board, and they do not obey it, but one writ of at- tachment should go against them for this con- tempt. Dnrant v. Supeniiori of Washington Countg, 1 "Woolworth (U. S.'c. C), 377. 1869. 6. — If more than one writ is issued, and each is entered as a separate case, they will be consolidated. lb. 7. Continuance. The writ will not lie to compel a judge of the circuit court to set aside an order of continuance of a garnishment for further answer pending in that court, unless, perhaps, the jsower to continue the cause has been corruptly used. South and North Ala- bama B. S. Go. ex parte, 44 Ala. N. S., 654. 1870. 8. Courts of general sessions have no power to issue writs of mandamm, that power being by the constitution, vested in the courts of common pleas. Mclmr v. The State, 2 So. Car. (N. S.), 1. 1870. 9. Demurrer. A demurrer to a petition for mandamus, based on the ground that the pe- tition does not state facts sufficient to consti- tute a cause of action, is too indefinite. Mc- Gregor and Sioux City B. R. Go. v. Birdsall, 30 la., 355. 1870. 10. Federal courts. The chapter on the " action by mandamus," of the Revision of 1860 of the Laws of Iowa, changes the character of the writ to an action for the enforcing of any right to which it may be applicable; but this chapter has not been adopted by the federal courts. Busch v. Supervisors of Des Moines County, 1 Woolworth (U. S. C. C), 813. 1868. 11. — The act of congress of March 3, 1873, confers original jurisdiction on the proper circuit court of the United States of cases of mandamus to compel the Union Pacific R. R. Co. to operate its road according to law. Wmted States ex rel. v. Union Pacific B. B. Co., 2 Dillon (U. S. C. C), 537. 1873. 1 2. Governor of a state. Under an appli- cation for a mandamus to the governor, requir- ing him to issue the bonds of the state to a railroad company under a law alleged by him to have been passed by the general assembly over Uis veto without the observance of the forms prescribed by the constitution, a major- ity of the court concurred in sustaining juris- diction of the application, and passing upon the validity of the law, reserving the question of power to mandamus the governor for the final hearing upon the return to a conditional writ. Pacijio B. B. Go. v. The Governor, 33 Mo., 353. 1856. 13. Highway. Supervisors of a township may apply for a writ of mandamus command- ing a railroad company to make a road for public accommodation, required by its charter. Whitemarsh Tp. .«. Philadelphia, Germantovm, etc., B. B. Go., 8 Watts & Sergeant (Penn.), 365. 1845. 14. Iigunction. The court will not, by mandamus, compel a party to do what by a subsisting decree of injunction he is prohib- ited from doing, although the party seeking the remedy by mandamus is not a party to the decree of injunction. 07iio and Indiana B. B. Go. V. Gom^rs of Wyandot Gounty, 7 Ohio St., 378. 1857. 1 5. Judgments. After a return of an exe- cution on a judgment in the circuit court against a municipal corporation for interest on railroad bonds, issued under a state law in force prior to the issue of the bonds, and which madetheleTy of atax obligatory on the county, a mandamus frem the circuit court will lie against the county officers to levy a tax, even although prior to the application for the maTi- damus, a state court have perpetually enjoined Uie same officers from making such levy; the mandamus, when so issued, being regarded as a writ necessary to the jurisdiction of the cir- cuit court which had previously attached, and to enforce its judgment; and the state court therefore not being regarded as in prior pos- session of the case. Biggs v. Johnson Gounty, 6 Wallace, 166, 1867 ; Weber v. Lee County, ib., 310 ; United States v. Gouncil of KeoJcuk, ib., 514; Mayor v. Lord, 9 Wallace, 409, 1869; Su- pervisors V. Durant, ib., 736. 16. — The limit of taxation one per cent, in the charter does not apply to taxes levied to pay such judgments. Butz v. City of Muscatine, 8 Wallace, 575. 1869. 17. — A bill in equity is not the proper rem- edy. Walkley v. City of Muscatine, 6 Wallace, 481. 1867. 18. — Where a creditor has a judgment at law against a city on city bonds, the city can- not, in defense to the application for the writ, set up that the bonds were not authorized by a 516 MANDAMUS. Land G-rants — Becorit Entiy. requisite popular vote. Mayor v. Lord, 9 Wal- lace, 40^. 1869. 19. — On application by a creditor for man- damug against county officers to levy a tax to pay a judgment, tlie defendants cannot im- peach tlie judgment by setting up that interest was improperly given in it. The judgment cannot be impeached collaterally. Supervis- ors v. United States ex rel.,4:'Wa,\\iice,4:35. 1866. 20. — The Illinois statute, providing that when a judgment is rendered against a county, the supervisors shall draw a warrant therefor, " which shall be paid as other debts," cannot be taken advantage of on error, in case of an application for a mandamus to levy a tax to pay a judgment, where such warrant was applied for and refused, and where there were no funds in the county treasury wherewith to pay the judgments. lb. 21. Land grants. Mandamus against the commissioner of the land office is the proper remedy to enforce the issuance of certificates for lands to which a railway company has be- come entitled under the laws of Texas. Hous- ton and Cheat Nortliern B. M. Co. v. Commis- sioner of Land Offlee, 36 Tex., 382. 1871. 22. Slinisterial duty. Where the law re- quires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to perform that act, he may be compelled to respond in damages for his neglect. His mis- taken idea of duty will not excuse him. Amy V. The Supervisors, 11 Wallace, 136, 1870; Sa- leigh and Augusta It. H. Co. v. Jenkins, 68 N. C, 503, 1873. 23. Municipal corporations. A mandamus, directed to the mayor and aldermen of a city, is rightly enough directed, if it appears that they together constitute the city government, even although the charter provides that the city shall sue or be sued in its corporate name. 3Iayor v. Lord, 9 Wallace, 409. 1869. 24. — A mandamus will not lie to compel the county commissioners, or the mayor and aldermen of the city of Boston, to revise their decision upon the merits of the claim of an owner of land for damages sustained by the construction of a railroad. Smith v. Mayor, etc., o/BtfsSee BniDGES. MARRIAGE. 1. Eviilence. Marriage in Pennsylvania is a civil contract, and is provable in all civil actions by cohabitation, reputation, acknowl- edgement of the parties, reception of the family and any other circumstances from ■which it may be inferred. Lehigh Valley B. B. Co. «. Hall, 61 Penn. St., 361. 1869. MASTER AND SERVANT. See Emplotbs ; Fires ; Injubies to Employes ; .nmiEs TO Passengebs. IN- 1. Damages. Employers are answerable for the damage occasioned by their servants, in the exercise of the functions in which they are employed. Civil Code, 2399. CTioppin v. New Orleans and Oa/rrollton B. B. Co., 17 La. An., 19, 1865. 2. — Corporations are liable for damages occasioned by employes of their stewards. Thompson «. New Orleans and Carrollton B. B. Co., 10 La. An., 403. 1855. H. Torts. A master is liable in a civil ac- tion for the tortious act of his servant, com- mitted in the course of the latter's employ- ment, and it makes no difference that the act was done willfully and without the knowledge of the master, or even in disobedience to his orders. Bedding v. SoiUh Carolina B. B. Co., 3 So. Car., N. S., 1, 1871; but se« Winterson V. Eigth Avenue B. B. Co., 2 Hilton, (N. T.), 889. 1859. MASTER IN CHANCERY. 1. The fees of a master in chancery allowed under the facts of a particular case. Erie B. B. Co. V. Heath, 10 Blatchford, (U. S. C. C), 314. 1873. MECHANIC'S LIEN. See Construction of Eailwats. 1. Assignment, The lien given to a laborer by statute is personal and cannot be assigned. The statute giving such lien— construed. Dano V. Mississippi, Ouachita and Bed Biver B. B. Co., 27 Ai'k., 564. 1873. 2. Bridges. The law of mechanics' liens does not apply to railway bridges or tracks ; liuch bridge is not a " building " within the meaning of the statute. La Crosse and Mil- waukee B. B. Co. V. Vanderpool, 11 Wis., 119. 1860. 3. Coal cars are not subject of mechanics' liens under the act of 1845, ch. 176 ; the word " machine " used in that act applies only t* fixed or stationary machinery, and does not extend to movable machines. New England Car Spring Co. v. Baltimore and Ohio B. B. Co., llMd., 81. 1857. 4. Entire road must be included in lien. The doctrine, that a railroad is an entire thing, cannot be applied so as to cut off a mechanic's lien upon a depot building. The property to which such lien attaches does not become a part of the entirety for that purpose, until the lien is dischai-ged. Sill v. La Crosse and MiU wamkee B. B. Co., 11 Wis., 214. 1860. 5. — Contractors for the construction of depot building contracted for materials of a person who furnished them, and then filed his lien against the building and brought suit thereon; but before he obtained judgment the contractors obtained judgment by me- chanics' lien on the same building, for an amount including the subcontractor's judg- ment. Held, that these two judgments were not incompatible; the several judgments should remain, and the court should provide for the proper distribution of the funds arising from the sale of the property. lb. 6. — A lien for work or materials cannot be acquired on a portion of a railway, but 520 MECHANIC'S LIEN. Laborers — Underletting. must be filed on the entire road. The con- tractor -who grades a section only of the road, cannot file a lien on that section alone. Cox v. Western Pacific B. B. Co., 44 Cal., 18. 1873. 7. Laborers. A laborer employed in the construction of a railroad by a subcontractor is entitled to the benefit of the act of Feb. 24, 1853. Peters v. St. Louis and Iron Mountain B. B. Co., 24 Mo., 586. 1857. 8. — It is not necessaiy that the thirty days' labor, for which a railroad company may be held liable under said act, should be per- formed upon thirty consecutive days. lb. 9. — Demands against a railway company under said act were assigned to an assignee, in order that he might collect them either by suit in his own name or otherwise; for his services he was to receive twenty-five per cent, of the amount collected, and the remainder he was to pay over to the assignors; he was to pay all costs and charges that might accrue in the collection of the claims or in their attempted collection. Held, that the assignee might sue for such claims in his own name. lb. 10. — Where work and labor are performed upon, or materials furnished for, the construc- tion of bridges and culverts upon the line of a public railroad authorized by an act of .the legislature, no lien upon said bridges and culverts is conferred upon the material man or laborer by the act of Feb. 24, 1853. Ihinn V. North Missouri B. B. Co., 24 Mo., 493. 1857. 11. — Said act applies to railway companies in existence at the time of its passage as well as those subsequently incorporated. Peters v. St. Louis and Iron Mountain B. B. Co., 23 Mo., 107. 1856. 12. Materials. A party furnishing material under a contract with the president of a rail- way company is an original contractor, and as such, entitled to a mechanic's lien. Heame v. CMUicothe and Brunswick B. B. Co., 53 Mo., 324. 1873. 13. Mines. A railway constructed in the slope of a mine, by a lessee, is not an im- provement or fixture to which a mechanic's lien will attach under the act of 1858. Sster- ley's Appeal, 54 Penn. St., 192. 1867. 14. Record. Where a party claims a privi- lege for materials furnished which exceeds I in amount, to maintain his privilege, he must show that his claim was duly recorded. Civil Code, Art. 3239. State v. Mexican Gulf B. B. Co., 5 La. An., 333. 1850. 15. Street railways. A stable built by a street railway company is liable to a mechanic's lien. Mcllvain v. Hestonmlle and Mantua B. B. Co., 5 Philadelphia Rep. (Penn.), 13. 1862. 16. Subcontractors. Where a claim for a lien is filed by a subcontractor or a person who has furnished materials for a building, it is a proper practice to make the contractor, as well as the owner of the building, a defendant in the suit, so that the court may adjust all the equities between the parties. Carney v. La Crosse and Milwaukee B. B. Co., 15 Wis., 503. 1862. 17. — But if the contractor is a necessary party in such case, his omission must be ob- jected to by demurrer on answer; otherwise the objection is waived. lb. 18. — A party who since the enactment of the mechanic's lien law, applicable solely to the county of Onondaga (Laws of 1864, ch. 366), and the act amending the same (Laws of 1866, ch. 788), furnishes materials, and per- forms labor, upon a building, in that county, for a subcontractor, comes within the clear object and intent of those acts. I/ambwrd v. Syracuse, Binghamton and New York B. B. Co., 64 Barbom- (N. T.), 609. 1878. 19. Successive lien. Neither a contractor nor subcontractor can, from lime to time, as the work progresses, file successive liens for work done on an entire contract. In such case, but one lien can be acquired. Cox v. Western Pacific B. B. Co., 44 Cal., 18. 1872. 20. Underletting. While the act of 1853, securing to mechanics a lien on land and buildings, was in force, the defendant entered into a contract, which, among other things, provided for the erection of a passenger depot at the terminus of the defendant's road, and also provided that the contractor should not underlet any of the work except with the written assent of the defendant's engineer, upon the written application of the contractor therefor ; afterward the contractor entered into certain subcontracts, in pursuance of which the subcontractor erected the building speci- fied in the original contract, filed a lien for the balance due him for work upon such depot and assigned his claim to the plaintifis. On a bill in equity to enforce such lien, it ap- MEDICAL SERVICES — MISJOINDER. 521 Miscellaneous. pearecl that the engineer of the defendant drew the specifications for such passenger depot, delivered them to the subcontractor, superin- tended the building and gave directions to the subcontractor during the progress of the work. The defendant, by its directors, voted to advance to the contractor, to be paid to the subcontractor, certain amounts of money, and also paid him $3,200, on an order from the original contractor for $ and requested the subcontractor to cause such station house to be insured, and to assign the policy of in- surance to it. But such votes did not pur- port to assent to such subcontract, and there was no written assent of the defendant there- to, by its engineer or otherwise, nor was there any aiiplication to it for such assent. Meld, that the lien claimed by the plaintiflf was in- valid, and that the bill ought to be dismissed. Benedict v. Danhury and Norwalk B. B. Co., 24 Conn., 320. 1856. MEDICAL SERVICES. See InjUBiES to Ehplotes. 1. Agency. A physician attended, for sev- eral days, as his patient, a man who had been injured by an accident upon a railroad, and whilst this attendance was going on, the rail- road company, by its agent, requested him to continue his attendance and the company would pay him for his services; held, that this did not amount to an original undertaking or promise, on the part of the company to pay for future services, unless the jury should be- lieve they were rendered upon the credit of the company, and not upon that of the patient. Ni/rtliem Central B. B. Co. v. Prentiss, 11 Md., 119. 1857. 2. Contract. Where a physician attends upon persons injured by a railway collision the liability of the railway company for such services must depend upon the contract. Bllis v. Central Paeifie, B. B. Co., 5 Nev., 255. 1869. 3. Employes. When an employe has been disabled while in the service of a railroad company, and in the discharge of his hazard- ous duties, it is a suflBcient consideration to support a promise to pay for the nursing and medical attendance necessary to his cure. To- ledo, Wabash and Western B. B. Go. v. Bod- rigues, 47 111., 188. 1868. 4. — The general superintendent may, in the exercise of his powers as such, bind the company for the payment of such liabilities. lb. 5. — Station agents and conductors are not authorized, by virtue of their official positions, to employ a physician at the expense of the railroad to attend to one of its brakemen in- jured by its cars. Tucker v. St. Louis, Kansas City and Northern B. B. Co., 54 Mo., 177. 1873. MERCHANDISE. See Baqqage ; Casbiase op Hebchakcibb. MILLS. See EMrNENT Domain ; Injonction ; "Wateboouksbs. 1. A contract for the conveyance for the right of way for a railroad, over lands upon which was an embankment forming a part of a mill dam, etc. — construed, and the respect- ive rights of the parties determined. Valen- tine V. Central B. B. Co., 5 Dutcher (N. J.), 60, 1860; Central B. B. Co. ». Valentine, iti., 561, 1862. 2. Injunction. A bill for an injunction against a railway company to prevent it from cutting a certain channel that would injure complainant's water power and work an irre- parable injury was dismissed, there being no allegation that the corporation was insolvent. Chesapeake and Ohio B. B. Co. v. Bobbett, 5 W. Va., 138. 1872. MINES. SeeEuiNENT Douain; Hechanic's LtEH. MISJOINDER. See Parties to Actions. 522 MISNOMER — MORTGAOE. Power to Execute Mortgages. MISNOMER. 1. Appeal. An objection to the misnomer of defendant cannot for the first time be made on appeal to the court of appeals. Eeech v. Baltimore and Washington R. B. Co., 17 Md., S'i. 1860. MISTAKE. See Becobd. MONEY. SeeBAesAOE; Cakbiage of Mebchandise. MONOPOLIES. See Chabteb; Emineni Domais; Eletatobb; Ex- PBE8S Companies; Gbahts; Rates. 1. Bill in equity to prevent. In a suit in equity by citizens of New Hampshire against railroad corporations under the act of July 5, 1867, to prevent railroad monopolies, it is not necessary to allege or prove that the plaintiffs have any special interests or grievance to redress, beyond those which every citizen is supposed to have. Currier v. Concord B. B. (7o., 48 N. H., 321. 1869. 2. — In such a bill, the respondents are not bound to discover in their answers any matters that will expose them to penalties, and any provisions in the law of July 5, 1867, which require such discoveiy are in conflict with the constitution. lb. 3. Camden and Amboy R. R, Co. The acts of the Camden and Atlantic and Raritan and Delaware Bay B. E. Companies, in carry- ing freight and passengers between the cities of New Tork and Philadelphia, were in viola- tion of the chartered privileges of the Camden and Amboy R. B. Co., and an injunction was issued to restrain such acts in future. But it was 7ield, that the grant to the Camden and Amboy B. B. Co. did not affect the rights of the former companies to do a local business as carriers. Delaware, etc., B. B. Co., t). Gam- den and Atlantic B. B. Co., 1 C. E. Green's Ch. (N. J.), 331, 1863; see also ;8'aOTe v. Same, 1 Mc- Carter's Ch. (N. J.), 445, 1863; Same v. Same, 3 ib., 13, 1863. MORTGAGE. See Consolidation ; CoNSTrnmoNAij Law; Convet- ahce: Costs; Eminent Bomais; Equity or Be- demption; Executions; Income Bonds; Injtinc- TioNs; Mandamus; Fledge; Eedemption; Sbt- Opf; Specific Pebfobmance ; Wbit of Ebbob. I. POWEK TO EXECUTE MORTGAGES. II. FOKM AND CONSTHUCTIOlf. III. FuTtTKE AC(JDISITIONS OF PKOPEBTT. IV. Chattels. V. Assignment and negotiability op BONDS AND MORTGAGES. VI. Coupons and interest. VII. Records, notes and priority. VIII. Guaranty. IX. Collateral security. X. Foreclosuee. XI. Sales. XII. Bedemptions. XIII. Trustees. XIV. Receiver. XV. Injunction. XVI. Lease. XVII. General matters. I. Power to execute MORTGAGsa ' 1. Androscoggin R. R. Co. The statutes of 1860, ch. 450 and 475, authorizing the ex- tension of the Androscoggin Bailway, recog- nizes the extension and old road as separate and distinct roads for certain purposes. BatJi, City of, V. Miller, 51 Me., 341. 1963. 2. — Under said statutes, the whole road cannqt be mortgaged as a unit. Ib. 3. — Property purchased by the earnings of the whole road, after its completion, is not included in either of the mortgages authorized by the statutes. Ib. 4. Bonds. The bonds of a railway compa- ny are not rendered void in consequence of being secured by a mortgage, which the com- pany may have had no authority to execute. MORTGAGE. 523 Power to Execute Mortgages. Philadelphia and Suribury R. B. Co. v. Lewis, 33 Penn. St., 33. 1859. 5. — The statutes of New York give every railway company the power to borrow money for completing, furnishing and operating its road ; to issue bonds for any amount so bor- rowed, and to mortgage its property and fran- chises to secure such btyids, or for any debt contracted for the purposes aforementioned. Thompson v. Erie B. R. Co., 42 Howard's Pr. (N. Y.), 68. 1871. 6. — Where such a corporation has issued a mortgage in trust " to consolidate its funded debt, obtain the money and material necessary for perfecting its line of railway, enlarging its capacities, and extending the facilities thereof," it has the power to issue its bonds for the amount and for the purposes expressed in the mortgage. lb. 7. — A railroad company having by statute authority to borrow money may issue its bonds as evidence of such indebtedness. Miller V. New Torh and Erie B. B. Co., 18 Howard's Pr. (N. Y.), 374, 1859 ; Same v. Same, 8 Abbott's Pr. (N. Y.), 431, 1859. 8. Charter. The power of a railway com- pany to borrow money and mortgage its prop- erty is not limited by the usual clause con- tained in the charter of such a company, that shares shall not be assessed over $100, and if more money is necessary it shall be raised by creating new shares. Biehards «. Merrimack and Connecticut Biver B. B. Co., 44 N. H., 137. 1862. 9. — Although by a provision in its charter a corporation is empowered to mortgage its effects, for a particular purpose, this will not be construed as abridging its general power to execute a mortgage for the security of cred- itors. Allen i>. Montgomery B. B. Co., 11 Ala., N. S., 437, 1847; Mobile and Ceda/r Point B. B. Co. V. TaVman, 15 ib., 472, 1849. 10. Cincinnati, Logansport and Chicago E. R. Co. Proceedings were commenced to foreclose a mortgage executed by a railway company to a trustee, to secure the payment of certain bonds. The mortgage was condi- tioned that after default in the payment of the principal, or of any interest on the bonds, the trustee might lease the lands ; or at his option, he might, and upon request of the holders of one-half of the bonds he should cause the lands to be sold at public auction. The char- ter of the company contained no express grant of authority to acquire, hold, mortgage or dispose of real estate, and the lands in- cluded in this mortgage were not such as were needed or used in the operation of the road. The bonds were issued after the law of Janu- uary 20, 1852 (1 R. S., § 3, p. 427), authorizing railway companies to receive lands in pay- ment of subscripcions of stock, went into effect. Held, that a demand of the interest due upon the bonds by the holder thereof, at the place where they were payable, was sufB- cient, without any demand by the trustee. Held, also, that the power to mortgage, con- ferred by the act of 1851 (Local Laws, 1851, p. 43), had reference only to such lands and property as the company could lawfully ac- quire, and could not therefore have included such as were not necessary to the purposes of the road. Held, also, that a mortgage creating a lien in a manner, for a time, amount and purpose, not inconsistent with such statute, may be valid, as the power to mortgage is not inconsistent with the duty to sell. Meld, also, that as the sale of the lands by the trustee without judicial proceedings, as provided for in the mortgage, is forbidden by statute, it was his duty to pursue the remedy provided by law for the foreclosure of mortgages. Ta- ber V. Cincinnati, Logafkport and Chicago B. B. Co., 15 Ind., 459. 1860. 11. — Arailway is not an immovable, when the soil on which it is laid belongs to another; and it is not in consequence susceptible of be- ing mortgaged, unless authorized by a special act of the legislature. State v. Mexican Gulf B. B. Co., 3 Robinson (La.), 513, 1843 ; Com- monwealth V. Smith, 10 Allen (Mass.), 448, 1865. 12. — Corporations have the power by com- mon law to issue bonds. But since St. 1854, ch. 286, railroad corporations in Massachusetts have no power to issue bonds for the payment of money, except for the purposes and in the mode therein authorized ; and all bonds issued otherwise are void, and a mortgage to secure such bonds is also void. CommMi/wealth ». Smith, 10 Allen (Mass.), 448. 1865. 13. — Although a railroad company which has executed such mortgage does not seek to repudiate it, one who has taken a valid second mortgage which contains no covenants of war- ranty, but is not made expressly subject to the 524 MORTGAGE. Form and Construction. former mortgage, may take advantage of their invalidity. lb. 14. Delivery. An act authorized a com- pany, having power under the general rail- road law of 1849, to execute a mortgage on ita lands, franchises, etc. A mortgage executed to a trustee under the authority of the directors alone was valid. Oeitysburg M. H. Co. — Mc- Curdy's Appeal, 65 Penn. St., 290. 1870. 15. — The mortgage was duly executed, acknowledged and recorded, and the corpora- tion treated it as existing; this was sufficient evidence of its delivery, although never in the manual possession of the trustee. lb. 16. Grand Junction R. R. Co. Under spe- cial statutes of Massachusetts showing by rea- sonable implication the intention on the part of the legislature to authorize such a convey- ance, a mortgage executed in 1853 by tli' — -^^ Jtmction R. R. Co. to the Eastern R. R. Co., of a portion of the railroad and franchise of the former corporation, to secure bonds to be issued by it and guaranteed by the latter cor- poration, was held to be valid. Mast Boston P Freight B. B. Oo. v. Eastern M. B. Go., 13 Allen (Mass.), 433. 1866. 17. Kentucky railways. A mortgage, ex- ecuted by a railway company to secure money borrowed for the construction of its road, is not opposed to the puMic policy of Kentucky. This is indicated by the general course of leg- islation there upon the subject. Bardstown and Louisville B. B. Go. u. Metcalfe, 4 Metcalfe (Ky.), 199. 1863. 18. — A railway company, authorized by its charter to borrowmoney necessary to complete the road, but not expressly authorized to make a mortgage upon its property or franchises to secure the bonds issued therefor, has an im- plied power to do so; though it cannot mort- gage its corporate existence or any prerogative franchise confen-ed upon it. But the right to build and use a railroad is not a prerogative franchise. A purchaser under its mortgage would take the road, subject to the terms of the charter designed to protect the public, and would be bound thereby as fully as the corpo- ration, lb. 19. — An authority to mortgage a railroad and its property must design a transfer of the right to operate the road. lb. 20. New Orleans, etc., R. R. Co. The au- thority conferred upon the H.O.&'S.'R. R. Co., under act of 1837, to execute a mortgage to the state to secure a loan, does not apply to property acquired after the date of the mort- gage. State V. New Orleans and Nashville B. B. Go., 4 Robinson (La.), 381. 1843. 21. Ratiflcatioh. A mortgage authorized the trustees, in case of default, to take posses- sion and manage and control the mortgaged railway, and to apply the net proceeds to the payment of the mortgage. It was held, that the mortgage, having been ratified by statute, was valid. That this court had jurisdiction to decree a specific performance of the stipu- lation in the mortgage authorizing the trustees to take possession of the mortgaged property. Shepley v. Atlantic and St. Lawrence B. B. Go. and Grand Trunk B. B. Co., 55 Me., 395. 1868. 22. — An act of the legislature authorizing the trustees under a railroad mortgage to sell the road, is a ratification of the mortgage, so far as the state and public are concerned. Bichards v. Merrimack and Connecticut Bivev B. B. Co., 4A N. H., 137. 1863. II. FOEM AND CONSTEtrCTION. 23. Bonds. Where a mortgage is given by a railway company to secure the payment of its bonds, a bond issued by the company, and a certificate indorsed thereon, stating that such bond is included in the mortgage, are all to be construed together, as parts and parcels of the same security. Benjamin v. Mlmira, Jefferson and Ganandaigua B. B. Co., 49 Barbour (N. Y.),441. 1867. 24. — Under a conveyance to M., to secure certain bonds and a certain contract, it was held, that the conveyance was a mortgage and not a deed of trust. That the bonds had pri- ority over the contract. That one bondholder could maintain a bill in equity to enforce pay- ment of the bonds, in his own name, but for the benefit of all the bondholders. Mason o. Tork and Cumberland B. B. Co., 53 Me. 83 1861. Carroll v. Same, ib. 25. Charter. A company was authorized to hold so much land, not above five acres in any one place, and improvements neccessary for water stations, etc. The company pur- chased land which was not used for the road, and mortgaged all its property and franchises, with the right to maintain possession "accord ing to the eflfect and meaning " of the acta MORTGAGE. 525 Future Acquisition of Property. of incorporation. Tlie land purcliasecl was not included in the mortgage. Toungman, v. Elmira and Williamsport S. B. Oo., 65 Penn. St., 378. 1870. 26. Construction, etc. Tlie mortgage of a " railroad witli all its rights and privileges," is authorized by a resolution of its board of di- rectors, which authorized a mortgage of " the road aad its property, etc." As there was nothing to which the phrase " etc." could have been designated to apply, except the franchises, it must be regarded as having been used to embrace them. Bardstown and Louis- mile S. JR. Oo. V. Metea'fe, 4 Metcalfe (Ky.), 199. 1863. 27. Lands not used for railway purposes. A railroad company executed a mortgage to secure the payment of money borrowed to aid in its construction, by which it granted its railroad, with supei'structure, track and all other appurtenances made or tii be made, all rights in the land on which the road was con- structed, all rights of way to be acquired, de- pots, engine houses, shops, and the parcels of ground on which the same should be con- structed, all lands used for depot purposes and appurtenances, all embankments, bridges, fences and structures thereon, and all other appurtenances belonging thereto, and all fran- chises, privileges and rights of the company to and concerning the same. Seld, that this mortgage did not, as against a subsequent mortgagee, create any lien on 385 acres of woodland afterwards acquired by the com- pany, and situated seven miles from the road, although such land was purchased and used for the purpose of supplying said road with timber and fuel. Dinsmore v. Racine and Mii- sissippi B. B. Go., 13 Wis,', 649. 1860. 28. Signature. "Where a first mortgage, otherwise regular, was signed by the presi- dent of the company with his own name sim- ply, but the m»rtgage recited his authority to make the same, it was held, that the convey- ance was not the deed of the corporation ; but that said transaction was to be treated as an equitable mortgage, and the trustees named in the subsequent mortgages having actual no- tice of the first mortgage, the bondholders of the second and third mortgages took their bonds subject to the lien of the first mortgage. Miller V. Butland and Washington B. B. Co., 36Vt.,452. 1863. III. Future acquisition of prop- erty. 29. Cincinnati and Marietta R. R. Co.' The power of the Cincinnati and Marietta R. Co., under § 13 of the act of February 11, 1848, regulating railway companies, to borrow money on the security of its property and in. come, includes the authority to mortgage sub- sequently acquired property, and embraces eveiy species of property, owned by the com- pany, necessary to the operation of the road. Ludlow V. Hurd, 1 Disney (Ohio), 553. 1857. 30. Machinery. The first mortgage of the Vermont Central R. R. Co. and its appurte- nances contained the following words : " And all other personal proj)erty belonging to said company, as the same now is in use by said company, or as the same may be hereafter changed or renewed by said company." Held, that these words did not embrace certain ma- chinery for burnetizing ties and timber so as to render them more durable, which machin- ery was not in existence at the time of the mortgage and took the place of nothing that was therein specified, but was constructed by the company as a new experiment after the execution of the mortgage. Brainerd v. Peck and Oolhy, 34 Vt., 496. 1861. 31. Other liens. A mortgage by a railroad company covering all future acquired propr erty, attaches only to such interest therein as the company acquires, subject to any liens under which it comes into the company's pos- session. United States v. New Orleans B. B. Oo., 13 Wallace, 363. 1870. 32. — If the company give a mortgage for the purchase money of a part of its road, at time of the purchase, such mortgage, whether registered or not, takes precedence of the gen- eral mortgage. /J. 33. — This rule does not apply where the property purchased is annexed to a subject al- ready covered by the general mortgage, and becomes a part thereof; as where iron rails are laid down and become a part of the rail- road. Lb. 34. — Such a mortgage will hold the after- acquired property as against judgment credit- ors. Pennock v. Goe, 23 Howard, 117. 1859. 35. — A mortgage, conveying property that may be purchased after its execution, takes precedence of another mortgage subsequently 526 MORTGAGE. Future Acquisitions of Property. executed, upon such after acquired property. Morrill v. Noyes, 56 Me., 458. 1863. 36. — Where possession in such a case is taken by the prior mortgagee, the holder of the second mortgage cannot maintain trover. His proper method to try the title is by a suit for possession. lb. 37. — A railway company having executed such a mortgage, it was held, that the plaintiff, who afterwards sold to the company certain land for its roadbed, could not, as against the mortgage, set np a vendor's lien for purchase money ; especially after the mortgage had been foreclosed and the road had passed into the hands of innocent purchasers. Pierce v. Mil. and St. Paul R. B. Co., 24 Wis., 551. 1869. 38. — If a coiporation, after the execution of a mortgage covering future acquisition of property, become owner of a cargo of railroad iron, subject to the lien of the United States for duties, the mortgage will attach to the iron as soon as it becomes a part of the projjerty of the road, subject to the lien of the government ; and if an agreement is made by which certain persons pay the duties and are to have a lien on the iron as security for the money ad- vanced until the same is paid, and the iron has been delivered to the company, the claim of the persons advancing money under the agree- ment cannot be asserted as against the mort- gage unless the trustees had notice of this agreement and gave their assent, express or implied, to the arrangement. Pierce v. Emery, 33 N. H., 485. 1856. 39. — Where it was agreed that such rails should be laid upon a certain portion of the track and that they should not become the property of the company until the payment of a specified price, but that until such payment, they should remain the property of plaintiflTs ; held, that plaintiflfs were entitled to hold such rails as against subsequent mortgagees of the road who had notice of the plaintiffs' interest when they took their mortgage. Haven v. Emmery, 33 ib., 66. 1856. 40. — Notice to the trustees under the mort- gage would be sufficient to charge the bond- holders with notice. Ih. 41. Power to mortgage future aeqnisi- tions. Future property can never be the sub- ject of conventional mortgage. Civ. Code, 3276. State ti. Mexican Oulf R. R. Co., 3 Rob- inson (La.), 513. 1843. 42.- A mortgage of real property, to be sub- sequently acquired, will operate as effectually as a lien tliereon as one upon property owned at the time of its execution. Seymour v. Can- andaigua and Niagara Falls R. R. Co., 25 Bar- bour (N. Y.), 284, 1857 ; see Sam^ v. Same, 14 Howard's Pr. (N. Y.), 531. 1857. 43. — A company mortgaged " all its road, property, rights, liberties, privileges, corpo- rate franchises, income, tolls and receipts then held or thereafter to be acquired." Held, that the mortgage was a lien on engines, rolling stock, etc., in actual use by the company and required for the transaction of its business, whether owned at the date of the mortgage or afterwards acquired. Philadelphia, Wilming- ton and Baltimore R. R. Co. v. Woelpper, 64 Penn. St., 366. 1870. 44. — One may grant the future accretions of any subject he owns at the time of the grant. Jb. 4.5. — Equity will treat a mortgage of prop- erty, real or personal, to be subsequently ac- quired, as a binding contract. Ib. 46. — At common law nothing can be mort- gaged that does not belong to the mortgager at the time of the mortgage. But a mortgage executed by a railway company of all its rights, franchises, powers and privileges, with power to the trustees to sell, on breach of con- dition, all such rights, etc., for the same pur- poses and to the same extent that the corpor:v tion could use the same, will operate as a mortgage of subsequently acquired property. The mortgage being for the entire road, etc., subsequently acquired property becomes a part of the subject of the original mortgage by ac- cession. Pierce v. Emery, 82 N. H., 485. 1856. 47. — A railroad company empowered' tn borrow money, and to execute " such securi- ties, in amount and kind " as it might deem expedient, may execute a mortgage on all" fu- ture acquired real or personal property. Pierce V. Milwaukee and St. Paul R. R. Co., .24 Wis., 551, 1869 ; Pcnnock v. Coe, 23 Howard, 117, 1859 ; Jetaup 10. Bridge, 11 la., 572, 1861 ; Dunliam v. Iseit, 15 ib., 284, 1863. 48. —The C. P. and I. R. R. Co. was author- ized to pledge "by mortgage or otherwise, the entire road, fi.\lurcs, and equipments, with all the iipijurtenances, income and- resources thereof." Held, that the company could not mortgage the friuichise to be a corporation, MORTGAGE. 527 Chattels. but could mortgage the franchise of the cor- poration to maintain a railway, and could also mortgage its real and personal property to be subsequently acquired. The right to exercise the power of condemning private property is not ti-ansferable, and cannot b^ conveyed in a mortgage. Ooe ®. Columbus, Piqua and Ind. S. S. Go., 10 Ohio St., 372. 1859. 49. — But the existence of such mortgage on such subsequently acquired personal prop- erty will not exempt it from levy by other creditors of the company. lb,; Ooe v. Peacock, 14 ib., 187, 1863. 60. Repairs. Where a mortgage upon a railway, following the statute, contains apt language to that effect, it will cover future acquisitions of property. Coopers and Clark 0. Wolf, 15 Ohio St., 533. 1864. 61. — Cast off articles, such as iron, etc., once forming a part of the road, will continue to be embraced in the mortgage, if they are required, under a judicious management of the road. Ib. 52. Unfinished road. A railway company mortgaged its "road, built and to be built " — apart was built at date of the mortgage — a contractor finished the road afterwards and held possession under a subsequent agreenient that he should finish the road and retain pos- session until he was paid out of the earnings. ffeld, that the mortgage had precedence as against the claim of the contractor even as to that part built by him. Dunham «. Cincinnati, Peru, etc., B. B. Co., 1 "Wallace, 254. 1863. 63. "Wood. A deed of trust, executed by a railway company to a trustee, to secure the payment of certain bonds, and giving certain powers to the trustee touching the operation of the road, in the granting clause of which tlie following words are used : " the road, railways, bridges, locomotives, engines, cars, depots, right of way and land, with all buildings, shops, tools and machinery then in use, owned by them, or which they might thereafter ac- quire, with the superstructure, rails, and other materials used thereon," must be construed to embrace wood provided for the use of the road from time to time. Coe «. McBrown, 23 Ind., 253. 1864. IV. Chattels. 54. Affidavit. A mortgage of the personal property of a railroad company is not invalid, if sworn to by the agents who executed it, be- cause they did not sign the oath in behalf of the corporation. Bicharde v. Merrimack and Connecticut BiverB. B. Co., 44 N. H., 127. 1862. 56. Constrnction of mortgage. A mort- gage of the entire line of a railway, with all its tolls and revenue, covers not only the line of the road, but all the rolling stock and fixtures, whether movable or immovable, essential to the production of tolls and revenue. State v. Northern Central B. B. Co., 18 Md., 193. 1861. 56. Execution. The personal property of a railroad company in the possession of a mort- gagee, is not liabls to be taken in execution for the general debts of the road. Palmer v. Forbes, 33 111., 301. 1860. 67. Possession. The mortgage of personal property of a railway company is valid with- out delivery of possession of the property to the mortgagee, as respects property necessary to maintain the business of the road. Cotiey «. Pittsburgh, Fort Wayne and Chicago B. B. Co., 3 Phila. Kep. (Penn.), 173. 1858. 58. Redemption. The mortgagee of a chat- tel may, it seems, purchase at public sale and hold it for his own benefit, and free from any equity of redemption. Olcott v. Tioga B. B. Co., 27 N. T., 546, 1863; Same v. Same, 40 Barbour (N. Y.), 179, 1862. 59. "What constitutes personal or real property. The rolling stock of a railroad is personal property, and a mortgage upon such property must be filed and recorded as a chat- tel mortgage. Hoyle v. Plattsburgh and Mon- treal B. B. Co., 54 N. Y., 314. 1873. 60. — Actual notice of such mortgage would be suflScient to charge subsequent cred- itors and lienholders. Benjamin v. Elmira, etc. B. B. Co., 54 N. Y., 675, 1873 ; Bement t. Platts- burgh and, Montreal B. B. Co., 47 Barbour (N. Y.), 104, 1866; Same v. Same, 51 ib., 45, 1868. 61. — Rolling stock of a railroad will not pass by a deed or mortgage of the railroad track or way, by metes and bounds, as parts or fixtures thereof, or as constructively an- nexed thereto. Ib. 62. — Such rolling stock will not pass by a mortgage of the railroad track or way, and a foreclosure and sale, unless the terms of the mortgage are such as to include or carry such rolling stock as personal property. Ib. 63. — A mortgage of a railroad, and the rolling stock on it, is not, so far as it relates 528 MORTGAGE. Assignment and Negotiability of Bonds and Mortgages — Coupons and Interest. to the rolling stock, witliin the purview or in- tent of the act of 1833 (Laws of 1838, ch. 279), requiring chattel mortgages to be filed in the town or city where the mortgagor, if a resi- dent of this state, resides, and if not a resi- dent, then in the town or city where the mort- gaged property is, at the time of the execu- tion of the mortgage. lb. 64. — The fuel, oil, and property of that description, belonging to a railroad company and intended for daily consumption, is per- sonal property. Palmer v. Forbes, 23 111., 301. 1860. 65. — The rolling stock and material for repairs of the track, designed to be attached to the realty, is real estate. . lb. 66. — As between mortgages and judgment creditors of the mortgagors, the rolling stock of a railroad company — such as locomotive engines, passenger, baggage and freight cars, hand cars, snow plows, etc. — are to be deemed fixtures, and will pass under a mortgage of the track, and the lands occupied by the com- pany. Fanners' Loan and Trust Co. v. Hen- drickson, 25 Barbour (N. T.), 484. 1857. Di- rectly the contrary doctrine is held and this case overruled in Stevens v. Buffalo and New TorTi R. JR. Co., 31 ib., 590, 1858; Beao'dsley v. Ontario Bank, 31 ib., 619, 1859. 67. — A railway tank house, locomotive and cars, are presumed to be annexed to the realty, and in fact are a part of it, and are not liable to be sold by a constable on an execu- tion from a justice of the peace. Titus v. Oin- TieiTner, 27 111., 462. 1861. Y. Assignment and negotiability OF BONDS AND MORTGAGES. 68. Bonds. The bonds of a railroad com- pany are not, it seems, exactly governed by the law merchant. But they will pass by delivery, like bank notes, so as to vest a complete title in the bona fide possessor; and they are enti- tled to all the privileges of commercial paper. Junction B. B. Co. v. Oleneay, 13 Ind., 161. 1859. 69. — It is no defense to an action on the bonds of a railway company, that the defend- ant's books do not show that any value had been received for them, and that the bonds had been delivered to the president, who had made no return of the proceeds. The bonds being in form to pass by delivery, a bona fide purchaser had nothing to do with the .applica- tion of the money paid for them. PMladel- phia and Sunbwry B. B. Co. v. Lewis, 33 Penn. St., 33. 1859. 70. — One who purchases railroad bonds in the open market, supposing them to be valid, and having no notice to the contraiy, will be deemed a bona fide holder. Galveston B. B. Co. V. Oowdrey, 11 Wallace, 459. 1870. 71. — It is no defense to such bonds that the mortgage given to secure the same was executed out of the state. Ib. 72. Note and mortgage. In an action on a note and mortgage of land made to a railroad company, and transferred to plaintiff with the company's bond, in a form which constituted an indorsement of the note within the law merchant, parol evidence that the company, in making the transfer, intended it to have a different effect, is inadmissible. Callanan v. Judd, 23 Wis., 343. 1868. 73. — An instrument assigning a note and mortgage issued by the president and secre- tary of a railroad company, purporting to bo by order of the board of directors, is prima facie evidence of the power of such officers to transfer the note and mortgage. City Bank oj Kenosha v. McClellan, 31 Wis., 112. 1866. 74. — The transfer of a note and mortgage, attached to a negotiable bond of a railway company, which recites that said note and mortgage are ti-ansferred as security for such bond, and are transferable only in connection with it, is an indorsement within the meaning of the law merchant. Murphy v. Dunning, 30 Wis., 296, 1873; Crosby v. Boub, 16 ib., 616; Banger v. Flint, 25 ib., 544, 1870. VL Coupons and interest. (See subdivision X, post, 533.) 75. Assignment. Without some statutory provision, no action can be maintained in the name of the assignee, upon interest coupons, which contain no negotiable words. Jackson v. Toj-k and Cumberland B. B. Co., 48 Me 147. 1858. '' 76. Contract for debt to matnre on fail- ure to pay interest. A corporation issued bonds payable at a distant date with interest coupons payable semi-annually, and agreed that upon three successive defaults in pay- MORTGAGli. 52& Coupons and Interest. ment of intei-est, the principal should become due. The bonds were secured by a mortgage in which it was provided that the trustees in it should sell the mortgaged property at the request of the holders of $100,000 in the bonds. Held, that this provision in the mortgage was no defense to a suit on the bonds after a breach of their condition. Philadelphia and Balti- more Central B. S. Co. v. Johnson, 54 Penn. St., 127. 1867. 77. — The bond was the principal debt, the mortgage the incidental security. lb. 78. — Where the mortgnge of a railroad contained a stipulation that the principal should become due in case the interest on the bonds should remain unpaid for four months, and no such provision appeared in the bonds, and the bonds did not refer to the mortgage, it was held, that the trustees of the mortgage alone could sue upon such condition, and that the bondholders could not recover the prin- cipal of the bonds, although an indorse- ment referring to such condition had been placed upon the bonds by the trustees and signed by them. Mallory v. West Shore Hud- son River R. B. Go., 3 Jones & Spencer (N. Y.), 174. 1873. 79. — A resolution of the board of directors, authorizing the president to mortgage the road, but not indicating any conditions be- yond saying that it was to secure bonds " run- ning fifteen years with semi-annual interest," did not authorize him to make any covenants jinuaual in such mortgages, and did not au- thorize him to insert a stipulation that the principal sum should become due at the option of the holder on default of payment of the interest. Jegup v. City Bank of Racine, 14 Wis., 881. 1861. 80. — Such bonds were held valid, except as to the clause inserted without authority. Ih. 81. — Such bonds would have been valid as to all their conditions if they had been subse- quently ratified by the board. IT). 82. Demand. Where the company has no money at the place at which its coupons are to be presented for payment, interest is payable on the coupons after maturity with- out presentation. North Pennsylvania R. R. Co. V. Adams, 54 Penn. St., 94. 1867. 83. In blank. A coupon, having no payee designated therein, is not a promissory note, 34 nor negotiable m law. Wright v. Ohio and Mississippi R. R. Co., 1 Disney (Ohio), 465. 1857. 84. — Where a deed of trust provided that the payment of certain bonds and interest should be secured to the holders thereof, and that the holders of the bonds should have the first lien on the road, and the bonds should be payable to bearer, with interest coupons attached in which a payee was not mentioned, it was held that the bondholder might enforce his lien on behalf of his own interest in the bonds and interest coupons, or on behalf of any person to whom he had transferred certain of his interest coupons. Wright V. Ohio and Mississigpi R. R. Co., 1 Disney (Ohio), 465. 1857. 85. Lien. To acquire, as against all mort- gages and incumbrances, a lien by statute on the corpus of a railroad, in virtue of credit advanced, it is necessary that the statute express in terms not doubtful the intention to give a lien. Cincinnati City v. Morgan, 3 Wallace, 275. 1865. 86. Coupons. The same statute of limita- tions applies to a coupon that applies to the bond. Lexington v. Butler, 14 Wallace, 282. 1871. See ante, page 508. 87. Payable at a partictilar place. The coupons being payable at a particular place, it is necessary to a complete defense to allege that the company was ready at that place to pay, but they had never been pre- sented. Philadelphia and Baltimore Central R. R. Co. ■». Johnson, 54 Penn. St., 137. 1867. 88. — Where there is no allegation of a readiness to pay, a want of demand is no defense. lb. 89. Pleadings. Bonds being specialties, the remedy for breaches thereof is by an action of debt or covenant broken. Jackson V. Tork and Cuniberland R. R. Co., 48 Maine, 147. 1858. 90. Bates of interest. A railway com- pany, by legislative authority, issued bonds payable at a future time, with interest payable semi-annually, at the rate of seven per cent. The bonds became due and were not paid. Held, that the damages to which the holders were entitled for the detention of the princi- pal after it became due, were to be estimated at the contract rate of seven per cent., and 530 MORTGAGE. Coupons and Interest. not at the legal rate of interest, six per cent. Beckwith v. Hartford, Providence and FishkiU B. B. Co., 29 Conn., 268. 1860. 91. Release. Where the liability upon coupons results solely from, and is embraced in, the liability for the bonds of which they ■were a part when issued, a release of the bonds includes the liability for the coupons. State v. North La. and Texas B. B. Co., 25 La. An., 65. 1873. 92. Severed coupons. The Vt. and Canada R. R. Co., leased its road to the Vt. Cent. R. R. Co., for a certain rent upon certain conditions, securing the payment thereof. The latter company then issued bonds to a large amount, ■with interest payable semi-annually, upon presentation of the coupons attached to the bonds, and secured the bonds by a mortgage to trustees of its franchises and property. Sub- sequently, the former company brought a bill in chancery against the latter company, the trustees and some of the bondholders, to secure its lien, claiming possession of both roads for the nonpayment of rent. The trus- tees were appointed receivers under directions to hold possession and operate both roads, and before final decree of the court, the former company and the great body of the first mort- gage bondholders entered into an agreement compromising all matters of controversy. The arrangement was made binding by an act of the legislature, and a petition brought to the court of chancery, and a decree obtained in pursuance of the agreement, by consent of both railroad companies and the bondholders. Among other things, the decree provided that the trustees and receivers should pay for a cer- tain extension of the Vt. and Canada road to an amount not exceeding $250,000, and as often as $70,000 should be so expended, said com- pany should issue shares of its stock to said trustees and receivers at par, to be ratably distributed by them among said bondholders, in liquidation of their respective claims as such. After providing for other payments, including said rents, the decree provided for the application of the payment of the net income on the first mortgage bonds. The receivers having given notice that they were ready to pay 3J^ per cent, of the first mortgage bonds, which was the first $70,000, in Vt. and Canada R. R. 'Co., stock mentioned in the decree, and having refused to pay the same to | the holders of the coupons which had been severed from the bonds by the bondholders and sold, said coupon holders petitioned the chancellor, who made the decree, to' direct the receivers to make the payment to them under the decree, or if necessary to so modify the decree as to give them the dividend. Rdd, that the decree does not decide to which class this payment shall be made, but if it did, since no such question was presented to the chancellor, he may modify his decree on this petition. Bewail v. Braimrd, 33 Vt., 364 1865. 93. — That the coupon holders have the right in equity, to have payment made to them in the order in which the coupons fall due, whether negotiable or not separate from the bonds. Ih. 94. — On a final distribution of the pro- ceeds of the whole of mortgaged property, a pro rata distribution would probably be the rule. lb. .93. — A coupon, payable to bearer, de- tached from a bond, and owned by one party, while the bond is owned by another, is still a lien under the mortgage given to secure the bond, and the holder is entitled to a pro rata distribution. Miller v. Butland and Washing- ton B. B. Co., 40 Vt., 399. 1867. 96. — The coupons of railroad bonds are negotiable instruments, and may be sued ou by the holders separate from the bonds ; and interest from date of demand and refusal of payment may be recovered. Beaver County v. Armstrong, 44 Penn. St., 63. 1862. 97. — The owner of matured interest cou- pons may sue thereon, although he no longer owns the original bond. City of Kenotha v. Lamson, 9 Wallace, 477. 1869. 98. — The facts with relation to the bonds may properly be recited by way of induce- ment in the pleading, but such recital does not make it a suit upon the bond ; it is still a suit upon the coupons. lb. 99. —A coupon in this form, detached from a mortgage bond of a railroad company, viz.: " Interest Warrant No. 13. Ou the first day of July, 1856, the X. R. R. Co. will pay to bearer $30 for interest on its bond No. 342. J. S., Treasurer," is negotiable by delivery and may be enforced against the corporation by any holder in good faith. Hamen v. Grand Junc- tion B. B. Co., 109 Mass., 88. 1871. 100. Special contract. B. advanced money MORTGAGE. 531 Kecords, Notice and Priority. and toolc up certain coupons on the faitli of an agreement with the directors of tlie corpo- ration that he should have the benefit of tlie mortgage. Reld, tliiit he should be protected, as no superior equity forbids it. Miller v. Butland and Washington B. JR. Go., 40 Vt., 399. 1867. 101. Time of payment of interest. The general authority to issue bonds drawing a certain rate of interest per annum will author- ize the agreement to pay interest on such bonds annually or semi-annually. Ooe v. Oo- lumJius, Piqua and Indiana R. R. Co., 10 Ohio St., 373. 1859. 102. Usury. The reservation of an illegal rate of interest, does not prevent a recovery of tlie sum actually loaned, with legal interest. Philad.elphia and Sunbury R. R. Oo. ». Lewis, 33 Penn. St., 33. 1859. VII. Records, notice and priority. 103. Attachments. A trust deed of the property of a railway company is paramount to a subseqiient attachment, notwithstanding the fact that the company has been permitted to retain and use the property included in the deed. Woodman v. York and Cumberland B. R. Co., 45 Me., 307. 1858. 104. Creditor. The consideration of the debt, for which a creditor recovered judg- ment, was for moneys advanced in payment of interest for a railway company, and for taxes assessed against it, and for rights of way. Held, these facts did not entitle the creditor to an equitable lien as against mort gages of the road. Coe v. Columbut, Piqua and Indiana B. B. Co., 10 Oliio St., 373. 1859. 105. Decree. The issue of priority having been made and decided in a federal court, is conclusive upon the defendants therein in another suit in a state court. Board of Super- visors of lotoa County v. Mineral Point B. B. Co., 24 Wis., 93. 1869. 106. — It seems that in a mortgage fore- closure suit, it is error to determine a claim of title hostile to the mortgagor, though liti- gated; but whether the judgment is void, qufere ? lb. 107. — But priority of liens between two mortgages, by the same mortgagor, may be litigated in a foreclosure of one of them. lb. 108. — A decree of foreclosure which ad- judged that the defendants named, including one who held a mortgage of prior date, but which is distinctly charged in the bill to con- stitute a subordinate lieu, should be barred and foreclosed, etc., lield, to determine the question of priority thus raised, although it does'not expressly state that such defendant's mortgage is subordinate to the one in suit. lb. 109. — The holders of negotiable bonds are bound by a decree of foreclosure of another mortgage, in which the trustee of the mort- gage securing their bonds is made a party. lb. 110. Injunction. The trustees in a rail- way mbrtgage for the benefit of numerous and widely scattered bondholders secured thereby, have suflicient authority and interest to enable them to bring a bill in equity to enjoin all alleged illegal proceedings which will injure the value of the bonds and oast a cloud upon the security, or a bill to have a controverted priority of lien settled before an irredeemable sale is made under another^ mortgage, which is claimed to be ijrior to that made to tlie trustees. Murdoch v. Wood- son, Governor, 3 Dillou (U. S. C. C), 188. 1873. 111. Possession. Where a vendor put his vendee into possession, and executed and placed in his hands a deed of conveyance for the land sold, with an understanding between them that the deed should not be considered as delivered, or become effectual, until the purchase money should be paid ; and the ven- dee afterwards put the deed upon record, and, without paying the purchase money, mort- gaged the land to bona fide mortgagees for value, and without notice, 7ield, that such vendor is estopped, as between hiiu and the mortgagees, from denying the delivery of the deed, or asserting any claim to the land. Besor v. Ohio and Mississippi B. R. Co., 17 Ohio St., 139. 1866. 112. Receiver. Where a receiver was ap- pointed for the benefit of the 3d, 4th and 5th mortgage bondholders of the defendant, and a motion was made on behalf of the 4th mortgage bondholders for an order directing the re- ceiver to pay the interest coming due upon their bonds, out of the receipts of the road, to the exclusion of other indebtedness and against the consent of prior mortgagees, upon the ground that the bonds secured by the 4th mortgage were so drawn tha.t the principal became due and payable if the interest is not 532 MORTGAGE. Guaranty. paid, hdd, tbat the motion slionld be denied. Brown «. Nefw York and Erie R. R. Co., 22 Howard's Pr. (N. T.), 451, 1859. 113. JEtecitals in mortgage. Where three mortgages were made on a railway, and the second in point of time was defective in only having one witness, but the third stipulated that it was subject to the first and second; held, that the second mortgage was prior to the third. Coe v. Oolumbus. Pigua arid Indi- ana R. R. Co., 10 Ohio St., 372. 1859. 114. — Where a mortgage was, in express terms, made junior to another mortgage, the bonds secured by the prior mortgage being negotiable, the junior mortgagees are estopped from questioning the validity of such bonds in the hands of icnocent holders. Bronnon v. La Oroise R. R. Go., 2 Wallace, 283. 1863. 115. Record. A mortgage of land in Michigan conveys no title, either legal or equitable, to the mortgagee, but the title re- • mains in the mortgagor until foreclosure and sale, and the mortgage is but a secm-ity in the nature of a specific lien for the debt or obli- gation to which it was collateral. Ladite «. Detroit and Milwaukee R. R. Co., 13 Mich., 380. 1865. 116. — Where a mortgage is made to secure the mortgagee against a liabilty to be incur- red in the future, at the option of the mort- gagee, and the mortgagor conveys the land by deed, which is recorded before such liabilities are incurred, such deed is entitled to prece- dence, lb. 117. — The record is only notice to the purchaser to the extent of the liabilities in- curred at the time of the purchase. lb. 118. — Where an act by which a mortgage is retained is passed in the office of a parish judge, acting ex officio as a notary public, in relation to property within his parish, no further registry is necessary to give such mortgage effect against third persons. New Orleans and GarrolUon R. R. Co. v. Grain, 6 Robinson (La.), 61. 1843. 119. Sale. A railroad company in Texas made four successive mortgages in 1853, 1855 1857 and 1859. The road and its appendages were sold under judgments in 1860 ; the pur- ,chasers operated the road and realized large receipts thereupon. In 1867, after the making of the first three mortgages, the legislature passed a law subjecting the road and char- tered rights of all railroad companies to sale for their debts, either under mortgages, deeds of trust or judgments. Held: 1. That the law enured to the benefit of the three first mort- gages, as well as to the mortgage made and judgment recovered thereafter. 3. The sale did not disturb the priority of the mortgages. 3. The purchasers were not liable for the profits under the circumstances of this case. 4. Although the money raised on the fourth mortgage principally built the road, that fact did not give it priority over the first three. 5. A railroad mortgage as against the com- pany and its privies, although given before the road is built, attaches itself thereto as fast as it is constructed. 6. The principle, appli- cable to maritime cases, which gives priority of lien to the last creditor furnishing repairs and supplies for the conservation of the ship and voyage, does not apply to railroads. Oal- vegton R. R. Co. v. Cowdrey, 11 Wallace, 459. 1870. YIII. GUABANTT, 120. The Martinsville and Franklin R.R. Co. issued certain railroad bonds, payable to the order of the Madison and Indianapolis R. R. Co., for the purpose of borrowing money to complete the road of the former company. The bonds were delivered to the Madison Co., and were indorsed and guaranteed by that company, and sent to its agent at New York for sale. The agent, in a circular offering the bonds for sale, represented that they were owned by the Madison Co. Suit was brought by the holders of the bonds against the Madi- son and Indianapolis R. R. Co., upon its guar- anty. Held, that it is within the corporate powers of the Madison and Indianapolis R. R. Co. to sell and guarantee bonds held by it in the usual course of business. Held, also, that as the contract of guaranty upon the bonds was, upon its face, such a contract as the company had power to make, the fact that the guaranty was in this case, made for a pur- pose not autliorized by the charter (as for the accommodation of another road), could not affect the right of a bona fide holder, without notice, to recover upon it. Maditon and In- dianapolis R. R. Go. V. Norwich Savingg Society, 34Ind.,457. 1865. MORTGAGE. 533 Collateral Security — Foreclosure. IX Collateral security. 121. A holder of bonds as collateral, may press a sale of the mortgage. Qettysibwrg R. R. Go. — MeOurdy's Appeal, 65 Penn. St., 390. 1870. 122. Conversion. The pledge of a bond, and as incident thereto of collaterals, is not y»r S6 a conversion of the collaterals. If the principal bond and the collaterals are redeemed by the obligee of the bond, before maturity, and before suit brought, and ai-e in the hands pf the obligee ready to be restored upon the payment of the bond, the obligor has no cause for complaint. Shelton v. French, .33 Conn., 489. 1866. 123. Recovery on bonds pledged. Wliere the bonds of a company are pledged by it as collateral security for its own indebtedness, in a smaller amount than the par value of the bonds, and the pledgee still holds them, he is entitled to recover from the company no more than the amount secured by the pledge. Jesup o City Bank of Bacme,U Wis., ZZl. 1861. X. Foreclosure. (See eubdivieion YII, ante, 531.) 24. Appeal. A bidder at a marshal's sale made on foreclosure of a mortgage, in the district court, may by his bid, though not a party to the original suit, so far be made a party to the proceedings in the court below as to entitle him to appeal. Blossom v. Milwau- kee and Chicago B. B. Co., 1 "Wallace, 655. 1863. 125. — An appeal lies from a decree of fore- closure. Branson e. Bailroad Co., 3 Black, 524. 1863. 126. — Such right of the mortgagee to ap- peal cannot be suspended by cross bills be- tween other parties, contesting matters with which the mortgagee has no concern. lb. 127. — Where the mortgagees had com- menced a foreclosure suit, and at the same time had obtained an order for a receiver, and an appeal was taken from the order appointing a receiver, and after the appeal, the plaintiffs dis- continued the suit at their costs, and notified the defendants that the order appointing a re- ceiver might be rescinded, and offered to pay all costs. Held, that even if the circuit court still retained jurisdiction of this cause so that it might make such orders as were necessary to protect the rights of all the parties, still the plaintiffs could claim no further benefit from such suit, but must go out of court on such terms as the court might impose. Spaulding ». Milwaukee and Soricon B. B. Co., 13 "Wis., C07. 1860. 128. — That the appeal to the supreme court would fall upon the discontinuance in the cir- cuit court, and an injunctional order would not be issued by the former court restraining certain persons from operating the road, who had obtained possession by virtue of certain proceedings in the federal courts. lb. 129. Conflicting rights of bondholders. The rights of bondholders, as between them- selves, where one claims to have advanced bonds to the other to assist in making a pur- chase of the property, will not be determined on a motion made by one of said bondholders. Euston V. Pendleton Street B. B. Co., 2 Cincin- nati Sup. Ct. Rep., 64. 1870. 130. Coupons. A bond issued by a railway company for the payment of $1,000 at a future time, acknowledged an indebtedness in that amount for money borrowed, naming certain trustees, payable to bearer, with semi-annual interest thereon, payable at the office of the company on delivery of certain interest war- rants annexed. An interest warrant annexe d was as follows : " Interest warrant, for $30, be- ing half yearly interest on bond No. 30, of the N. L., "W. & P. R. R. Co., payable on the 1st of February, 1856. J. D., Treasurer." A holder of the bond and warrant, having presented the latter when due at the time and place of pay- ment, brought an action of debt on a general indebitatus count for the recovery of the inter- est represented by the warrant. Meld,l. That the warrant did not import a promise, but was a mere acknowledgment of indebtedness for interest on the bond Itself, and therefore could not be made the ground of an action. II. That if the plaintiff relied upon the bond itself, on which alone his right to the interest was found- ed, he should have declared specially upon it. III. That the omission to do so was not a mere defect of form, of which advantage could be taken only by special demurrer, but was a fatal variance, inasmuch as the declaration, as it stood, imported only a parol promise. Crosby V. Neuo London, WilUmantic and Palmer B. B. Co., 36 Conn., 131. 1857. 534 MORTGAGE. Foreclosure. 131. Decree. One of the defendants in a foreclosure decree, who had a residuary inter- est in the mortgage foreclosed after the com- plainant's demand should be satisfied, filed a bill, the object of which was to have the bene- fit of that decree, and also to foreclose the mortgage against the defendants, who were not, but should have been, parties to the first suit. Seld, not objectionable; such bill is an origi- nal bill as to those who were not parties to the first bill, and a supplemental bill as to those who were. Griggs ■». Detroit and Mihi>aulcee R. R. Co., 10 Mich., 117. 1862. 132. — It is no objection to such decree that it is in the ordinary form of foreclosure decrees — it appeai'ing that payments have become due on the mortgage since the decree in the origi- nal suit, as well as on complainant's debts which the mortgage was assigned to secure. lb.' 133. Distribution. In distributing the pro- ceeds of a sale of a railroad, the master is lim- ited to distributing the fund to the parties en- titled under the decree ; he cannot go behind the decree. McMrath v. Pittsburgh and Steu- benville R. R. Co., 08 Penn. St., 37. 1671. 134. — In the distribution, it was competent for one to claim that he owned bonds entitled to a dividend, which were presented ■ and claimed by anotlier. lb. 1 35. Exchange of bonds for stock. Where there had been a foreclosure and sale under a mortgage, the exceptions of bondholders who had exchanged their bonds for stock in a new association, were refused to be enter- tained. Grawshay v. Boutter et al, 6 Wallace, 739. 1867. 136. — And a bondholder who has not sur- rendered his bonds could not complain if the decree required the full payment of his bonds. lb. 137. Federal conrts. Where during the pendency of an action in this' court, the trustee acting with certain bondholders, but without notice to or permission from this court, filed a bill in the state court to foreclose the same mortgages, and making no reference to the case in this court, upon which a receiver was appointed, foreclosure was ordered, and sale made by the sheriff, who under order of the court delivered the road to the purchasers; such an interference on the part of the state court with property at the time within the jurisdiction of this court was unauthorized. Bill 1). Nm Albany, etc., R. R. Co., 3 Bissell (U. S. 0. C), 390. 1870. 138. Fraud. A sale of a railroad under a foreclosure expedited by an arrangement be- tween the mortgagees and the stockholders was held fraudulent as against other creditors, although the road was mortgaged above its value, and did not on an open sale L)ring enough to pay even the mortgage debts. Rail- road Co. V. Howard, 7 Wallace, 392. 1868. 139. Installments. Whenever a debt is payable in installments, the failure to pay any one of them, will authorize a foreclosure and sale. Goodman n. Cincinnati and Chicago R. R. Co., 3 Disney (Ohio), 176. 1858. 140. — Where a decree of foreclosure and sale for a sum due authorized the complain- ants, on petition, to have an order of sale in case of default as to any future installment, successive orders of sale upon such summary proceeding were held regular. Fleming v. Boutter, 6 Wallace, 747. 1867. . 141. Interest. A mortgage provided that in case of sale or other proceedings to coerce payment of interest or principal, all the bonds secured by the mortgage and interest accrued thereon should be a lien in common there- with ; and the interest accrued thereon should be equally due and payable, and entitled to a pro rata dividend of the pi'oceeds of the sale ; with this proviso, " in no case shall the prin- cipal of any bond be considered due until twenty years from the date thereof" — it was held error, after a sale, under the mortgage, within twenty years, to give precedence to the overdue interest warrants. The above clause was held only to exclude the bondholder from bringing an action for the principal before it became due by its terms. Dunham v. Cincin- nati, Peru, etc., R. R. Co., 1 Wallace, 354. 1863. 142. Interest unpaid. In an action brought to foreclose a mortgage upon a rail- way and its franchises, which authorized a sale upon failure to pay either the interest or principal, to pay the amount claimed and due, but contained no provision that the principal should become due upon failure to pay inter. est, and the principal is not due, the bond- holders have a right to a sale for the interest due. If the property was divisible, a sale should be ordered of so much as might satisfy the amount due. If not susceptible of divis- ion, it must be sold or leased as an entirety. MORTGAGE. 535 Foreclosure. Bardstown and Louismlle B. B. Co. v. Metcalfe, 4 Metcalfe (Ky.), 199. 1863. 143. — In such a case, where the property is worth much more than the debt and inter- est, it should be leased by public auction for the shortest term that will bring the amount due, and the accruing interest and principal as the same shall become due. If no one will take it for a term of year's, then to be sold ab- solutely; the company to elect whether the property should be first offered for a term of years. lb. 1 44. Judgment. If an absolute judgment of foreclosure of a mortgage given to trustees has been rendered, and the mortgagees there- upon bring a suit in equity for the purpose of having their title declared valid, and of ob- taining authority to sell the premises for the benefit of the eestuia que trust, the mortgagors and their privies in estate cannot be heard to object that the mortgage was not properly sealed, or that on a true construction of its terms, an absolute judgment of foreclosure should not have been entered. Haven v. Grand Junction B. B. Go., 13 Allen (Mass.), 337. 1866. 145. — at law on bond. A bondholder of a class, covered by a mortgage to secure the class of bonds issued, in case of insolvency of the obligors cannot, by getting a judgment at law, be permitted to sell a portion of the property devoted to the common security, as this would disturb the equitable distribution among the bondholders. Pennoch v. Goe, 23 Howard, 117. 1859. 146. Judgment lien. Judgment liens against a corporation in Wisconsin, subse- quent to the date of a mortgage by such cor- poration, are discharged by a foreclosure of the mortgage. Branson v. Jm Orosse B. B. Co., 2 Wallace, 388. 1864. 147. Junior incumbrancers. Persons made parties to a foreclosure suit as junior incum- brancers by judgment or mortgage, whose rights were already acquired, and existed at the commencement of the suit, are bound to set up their claims in that action. Benjamin V. Elmira, Jefferson and Canandaigua B. B. Co., 49 Barbour (N. Y.), 441. 1867. ] 48. — If individuals are made parties de- fendants to a foreclosure suit as subsequent incumbrancers, that is sufficient, whatever may be the nature of their liens. It makes no difference if the plaintiff has made them par- ties as judgment creditors, when they hold a chattel mortgage upon the properly. lb. 149. — A subsequent incumbrancer cannot contest the propriety of a judgment against the mortgagor who did not appeal, without showing that he was, or probably might be, aggrieved if it was allowed to stand. Jesup V. City Bank of Bacine, 14 Wis., 331. 1861. 150. J^onresident corporation. A railroad company constructed pai-t of its road through another state, and mortgaged all its rights, etc., in the whole road ; the trustee in the mortgage being within the jurisdiction of the court, can be authorized and compelled to sell whatever interest of the company will pass under the terms of the mortgage. McEVrath v. Pitts- ' burgh and Steubenville B. B. Go., 55 Penn. St., 189. 1867. 151. Notice and sale. The K. and P. B. R. Co., on the 15th of Oct., 1853, mortgaged its road, etc., to trustees for the benefit of the holders of a certain class of bonds, said bonds drawing interest payable semi-annually. The company having made default in the payment of interest, the trustees, upon due application of the holders of the bonds to an amount ex- ceeding one-third of the amount of the mort- gage, in accordance with the public laws of 1857, ch. 57, gave the public notice, and caused the same to be published and a copy of the printed notice recorded at the time and place, and in the manner prescribed in said statute, for the purpose of obtaining a foreclosure of the mortgage for the breach cf its condition. In a bill to redeem, Tield, by a majority of the court that the mortgage was legally foreclosed. Kennebec and Portland B. B. Go. v. Portland and Kennebec B. B. Go., 59 Me., 9. 1871. 152. Parties — abatement. A railway company, in pursuance of votes of its stock- holders and directors, conveyed all its property and frtochises to three trustees, their survivors and successors, in fee, by deed conditioned to be void upon payment of certain bonds of the corporation, and stipulating that the trustees and their successors might, upon any breach of condition, if they should see proper, take possession and apply the net proceeds to the purposes of the trust; or, upon nonpayment of interest or principal of the bonds for six months, and the written request of two-thirds in amount of the bondholders, sell the prem- ises at auction, and apply the proceeds to 536 MORTGAGE. Foreclosure. tlie payment of the bonds ; and that any va- cancy occurring in the board of trustees should be immediately filled by the remain- ing trvistees by appointment from among the bondholders. Held, that none of the bond- holders need be made parties to a bill in equity brought by the trustees for a foreclos- ure of the mortgage. BJtaw v. Norfolk County R. R. Co., 5 Gray (Mass.), 162. 1855. 153. — Held, also, that such suit did not abate by the death of one of the trustees, but must be postponed until the vacancy was filled. J6. 1 54. — bondholders. A trustee, to whom a mortgage is made by a railway company for the benefit of bondholders, and who has no Interest except as trustee, is not authorized by § 37 of the civil code to bring an action in his own name for its foreclosure ; but where the mortgage makes it his duty^to sue, he may do so, without making the bondholders parties, upon showing that they are numerous, and that it is impracticable to bring them before the court within a reasonable time. Bards- town and Louisville R. R. Co. v. Metcalfe, 4 Metcalfe (Ky.), 199. 1862. 155. — decree. A decree is not void as be- tween the parties before the court, by reason of the absence of a " necessary party." Board of Supervisors of Iowa County v. Mineral Point R. R. Co., 34 Wis., 93. 1869. 156. — defect of. A majority of the stock- holders and creditors of a railway company which had several mortgages on its road, agreed to sell it for a price offered, and to di- vide the proceeds among all the stockholders and creditors in a way settled on by those agreeing to the plan. Other stockholders and creditors refusing to agree, in order to avoid their opposition, a sale was effected through the action of the majority, by an amicable foreclosure of mortgage, the trustees in one of the mortgages being complainants, and those in other mortgages, with the corporation whose road was intended to be sold, the de- fendants. The dissatisfied stockholders and bondholders then filed a bill against the pur- chaser and the railroad company whose road had been sold, but not making any of the trustees or any of the consenting stockholders parties, charging collusion in this sale, and praying that it might be set aside, a resale made, and the money arising from the sale be applied primarily to their benefit. Held, that the bill was fatally defective for want of proper parties. Ribon v. Railroad Cos., 16 "Wallace, 446. 1873. 157. — lis pendens. Those becoming pur- chasers pendente lite, on a mortgage, are not necessary parties to a bill to foreclose. Young- man V. Elmira and Williamsport R. R. Co., 65 Penn. St., 378. 1870. 158. — mortgages on distinctly separate property. Where a railway company, at dif- ferent times, executes two mortgages on dis- tinct portions of its road, to secure the debts of separate creditors, one mortgagee is not necessai-ily a party to a suit which the other may bring against the company to foreclose his mortgage. Bronson v. Railroad Co., 2 Black, 524. 1863. 159. — If any portion of the company's property is claimed to be covered by both mortgages, that raises a question that cannot be determined in a foreclosure suit brought by one of them. lb. 160. — stockholders. Stockholders iu a corporation are not necessary parties to the foreclosure of a mortgage, where their interest is fully represented both by the company and a committee chosen and appointed by the stockholders. Railroad Co. *. Howard, 7 Wal- lace, 393. 1868. 161. Payment of proceeds to bondholders. Upon foreclosure of a mortgage upon a rail- way, the holders of bonds should be required to produce them before payment of the pro- portions to which the holders of the bonds are entitled. An order requiring the bondholders to prove their claims, and state the amount paid for the bonds, is erroneous. Coe v. Co- lumbus, Piqua and Indiana R. R. Co., 10 Ohio St., 373. 1859. 162. Pleadings. The sufiBciency of plead- ings in a particular case — determined. Mo- bile and Cedar Pt. R. R. Co. v. Talman, 15 Ala., 473. 1849. 163. — joinder. After the repeal of the act authorizing it, the legal cause of action on a note or bond could not be properly joined with the equitable one to foreclose the mort- gage, unless both causes of action affected all the parties, according to the provisions of the Code on that subject. Jesup v. City Bank of Racine, 14 Wis., 331. 1861. 164. — multifarious. Where two mort- MORTGAGE. 537 Foreclosure. gageeg, one of whom has a mortgage on a part only, and the other on the whole, of the prop- erty named in the bill, join as complainants, the bill is not multifarious. Mobile and Cedar Ft. B. B. Co. v. Talnian, 15 Ala., N. S., 472. 1849. 165. — name of mortgagee. In an action upon a note and mortgage running to the Ke- nosha and Rockford R. R. Go. one defense was that at the date of execution no such corpora- tion existed; the act changing the name of the Kenosha and Beloit R. R. Co., to that named in the instruments not having yet been published although it had been passed. Held, that the complaint would have been good if it had averred that the instruments were made to the K. & B. Co. in the name of the K. & R. Co.; and the complaint should have been amended even after judgment to meet the proof. City Bank of JCeaosJia v. McClellan, 31 Wis., 113. 1866. 166. Possession. A trustee may waive his rights to take possession of the mortgaged property and file a bill to foreclose instead. Williamson v. Neu Albany, etc., B. B. Co., 1 Bissell (U. S. C. C), 198. 1857. 167. — A power of sale in a mortgage, to be exercised in case of breach of any of its conditions, is valid and binding on the parties, and is to be executed according to the terms of the appointment. Bradley v. Chester Val- ley B. B. Co., 36 Penn. St., 141. 1860. 168. — If the mortgage create a trust and provide that the power of sale is to be exe- cuted by the trustee in certain contingencies, lie may be controlled, restrained and directed by a court of equity, at the suit of a party standing in the relation of a cestui que trust; the rule for his guidance being derived from the instrument itself. lb. 169. — But where there is no trust to be ad- ministered as the immediate object of the suit, or the contingency has not happened which was to bring it into exercise, courts of equity have no jurisdiction in this state, over mortgages ; mortgagees are left to their com- mon law and statutory remedies. lb. 170. Priority. If two parties holding mortgages upon the same property, file a bill to foreclose, a subsequent assignee of the prop- erty has no right to object that the senior mortgagee yields his priority of lien to the j unior mortgagee. Mobile and Cedar Ft. B. B. Co. «. Talman, 15 Ala. N. S., 473. 1849. 171. Real and personal property. Under a foreclosure of a mortgage of a railway and all its real and personal property, it was held that the real and personal property should each be sold according to the requirements of the statute as to the sales of each kind of prop- erty. That the road and franchises should be sold as an indivisible tract, and should all be sold in the county where the action was brought. Coe v. Columbus, Fiqua and Indi- ana B. B. Co., 10 Ohio St., 373. 1859. 172. Receiver. A creditor having levied upon personal property of a railroad company which had been acquired subsequently to cer- tain mortgages, the levy having been made after a suit had been commenced for the fore- closure of the same, and after the appoint- ment of a receiver, it was held, that the credi- tor was not entitled to a preference, although one of the mortgages was defective for the want of a sufficient number of attesting wit- nesses. Coe ■». Coluwhus, Fiqua and Indiana B. B. Co., 10 Ohio St., 373. 1859. 173. — The ground on which courts of equity intervene, either by injunction or by the appointment of a receiver, is the preserva- tion of the property and securities, either or both, which constitute the subject matter of the litigation pending the controversy. Oheever and Hart v. Butland and Burlington B. B. Co., 39 Vt., 653. 1863. (Co. Ct. of Chanceiy.) 174. — The court will not, pending litiga- tion, transfer the possession of mortgaged property to the mortgagee, but will at most only appoint a receiver for the purpose of preserving the property, and its rents and profits, from waste and diversion. lb. 175. Review. There were a first and sec- ond mortgage on a railway. The trustee un- der the first filed a bill for foreclosure making the trustee under the second a party. A de- cree having been made, postponing the sec- ond, a bondholder under it alleging error should ask for a review or rehearing. McBl- rath ». Pittsburgh and Steubenville B. B. Co., 68 Penn. St., 37. 1871. 176. — The bondholder is not as a creditor cl3im.ing a right to attack the decree of an opposing creditor for collusion or fraud be- tween the plaintiff and defendant, but is affect- ed by the decree against his own trustee. lb. 538 MOETGAGE. Sales. 1 77. Scire facias. Tinder the statutes of Illinois, a scire facias does not lie to foreclose a mortgage not duly acknowledged. Kenosha and Roehford B. B. Co. v. Sperry, 3 Bissell (U. S. C. C), 309. 1873. 178. Stocliholder. Stockholders, who have been permitted to put in answers in the name of the corporation, cannot be regarded as an- swering for the corporation itself The court lias discretion to permit a stockholder to be- come a defendant, where he alleges that the directors fraudulently refuse to attend to the interests of the company. Bronson v. La Crosse B. B. Co., 3 Wallace, 383. 1864. 179. The supreme court may, under the Act of April 11, 1863, decree a sale under a corporation mortgage. GettysJmrg B. B. Co. — McCurdfs Appeal, 65 Penn. St., 290. 1870. 180. — The act is constitutional, falling witliin the express terms of art. 1, § 6 of the constitution. Jb. 181. — The act being passed after the date of the mortgage does not affect the contract, it only pertains to the remedy. Jb. 182. — jurisdiction. A railroad company executed a mortgage of all its real property, franchises, etc. ; under a de_cree of the supreme court, the mortgaged property was sold and conveyed by the trustees in the mortgage to W. This was effectual to W. at least as an assignment of the mortgage. From that time, W. and his assignors stood in the shoes of the mortgagee. Toungman «. Elmira and Wil- Uamsport'B. B. Co., 65 Penn. St., 378. 1870. 183. — If a mortgagee ijroceed by scire facias in a court having no jurisdiction, a purchaser having paid his money under such proceedings would be entitled to be subro- gated to the mortgage. lb. 184. — The legislature, after the decree of sale in equity, passed a law to carry the decree into effect. Held, that this cured any defect in the jurisdiction of the court. lb. 185. — No one could object to the decree and sale except the mortgagors and stockhold- ers, lb. XL Sales. 186. Adjournment. An adjournment of a marshal's sale was made for a short time, to enable the mortgagers to pay off the debt, which they did. Before the adjournment a bid was made but the property was not sold. Held, that the bidder could not insist on hav- ing a confirmation of the sale to him ; that the marshal had discretion to make the adjourn- ment. Blossom V. Milwaukee and Chicago B. B. Co., 3 "Wallace, 197. 1865. 187. Appeal. A motion to set aside a sale made under a judgment cannot be made after the term, so as to make the motion perform the ofSce of an appeal. Hartshorn v. Milwau- kee and St. Paul B. B. Co., 33 Wis., 693. 1868. 188. Appurtenant property. Town lots held by a railway company do not pass by a sheriffs sale, upon a mortgage of the road, " with its corporate privileges and appurte- nances," unless directly appurtenant to the railroad and indispensably necessary to the enjoyment of its franchises. Shamokin 'Val- ley/ B. B. Co. V. Livermore, 47 Penn. St., 465. 1864. 189. — Where the question of such appur- tenancy arose as to certain lots, held by a rail- way company ostensibly for a basin to con- nect with river navigation, and the jury were instructed, that if the lots were not appurte- nant to the road and essential and indispensa- bly necessary to the enjoyment of its fran- chises, and as such included in the mortgage, the plaintiffs, claiming adversely to the mort- gage, were entitled to recover, referring the question of appurtenancy and necessity to the jury as matters of fact; the instruction was not error, lb. 190. Commissioner. An act confirming or setting aside a sale of a commissioner in chancery, involving, as it often does, tne ex- ercise of a very delicate discretion and Judg- ment, cannot be regarded as a mere control of the ministerial duties of an officer in the exe- cution of final process. Milwaukee B. B. Co. V. Soutter et al., 5 Wallace, 660. 1866. 191. — Such an act belonged to the circuit court and not to the district court. The case of Bronson a. La Crosse B. B. Co., 1 Wallace, 405, approved. lb. ' 192. Confirmation of inTalid sale. A marshal's sale is not valid where made under the marshal's wrong interpretation of an or- der which the court did not in fact make. Such sale is not valid even after being con- firmed by the court, the court's attention not having been directed to such mistake. Min- nesota Co. V. St. Paul Co., 3 Wallace, 609. 1864. MOETGAGE. 539 Bedemption. 193. Franchise. The cliarter of the Mari- etta and Cincinnati R. R. Co., did not author- ize it to mortgage or sell its corporate fran- chise to be a corporation ; and a judicial sale upon mortgages executed by it, would not in- vest the purchasers with any corporate ca^ pacity whatever. Atkinson v. Marietta and Cincinnati B. S. Co., 15 Ohio St., 21. 1864. 194. — A "special act" of tlie general assembly undertaking to give such an effect to the sale, and authorizing the purchasers to re- organize, create a new stock, and elect another board of directors, is, in substance and legal effect, an attempt to create a corporation and confer corporate powers by a special act; and is in conflict with the first and second sections of the thirteenth article of the constitution of the state. lb. 195. Fraud. The legislature has no power to confirm a fraudulent sale of the mortgaged property of a corporation. White Mountains B. B. Go. IS. White Mountains N. E. B. B. Co., 80 N. H., 50. 1870. 196. — Where the notice of the sale of a railroad under a mortgage to secure bonds, set forth that the sum of |2,000,000 principal and $70,000 interest was due thereon, when, in fact, less than $200,000 was outstanding in hands of lonajide holders, the remainder be- ing in the hands of the directors, or under their control, such notice was held fraudulent and the sale void. James et al. e. Bailroad Co., C Wallace, 753. 1867. 197. Power of sale. A power inserted in a mortgage authorizing the mortgagee upon default of payment, to take possession of the railroad and other property connected there- with, and use and sell the same, must be ex- erted upon all the property mortgaged ; and does not authorize the mortgagee to detach portions thereof, either from the possession of the company, or an ofiicer succeeding to its rights, by a valid levy thereon. Coe v. Pea- cock, 14 Ohio St., 187. 1863. 198. Reorganization after sale. An act of assembly provided that if the railroad of the P., F. W. & C. Railroad Company should be sold under mortgages, etc., the purchaser should become a corporation. The property, etc., of the railroad company were sold ; the purchasers, who were bondholders under the mortgage, were organized as the P., F. W. & C. Railway Company. Held, that they were not liable, under the facts in the case, for the obligations of the Railroad Company. Stew- art's Appeal, 72 Penn. St., 291. 1872. 199. — Where the property and franchises of a railroad company have been sold under a mortgage, and a new company organized in pursuance of ch. 121, laws of 1856, the new company is not liable for the debts of the old. Smith i>. Chicago and W. W. B. B. Co., 18 Wis., 17. 1864. 200. — There might be a valid agi-eement between a railroad company, the mortgagees in trust of its road and the bondholders, that after a sale under the mortgage, the company should be so reorganized that the stockholders and unsecured creditors of the old company should become stockholders in the new; and such agreement would to that extent modify the effect of the mortgage sale. lb. 201. Surplus. Where the immovable prop- erty of a railway company is sold at the in- stance and suit of the owner of a mortgage bond, the interest coupons of which are due, the purchaser at sheriff's sale must apply the surplus to the payment pro rato of all the ma- tured interest coupons of other bonds of the same grade as the one on which the seizure and sale was made which are presented and demanded; if he refuses, it is the duty of the sheriff to re-offer the property for sale the same day. Branner v. Hardy, 18 La. An , 537. Cordon v. Vicksburg, Shreveport and Texas B. B. Co., ib., 550. 1866. 202. — Where the debt is not all due, the sale must be for the whole debt, on such terms of credit as are granted by the original mort- gage. Ib. XII. Eedemptiojst. 203. Road in two states. When a railway company, owning a road lying in two states, under charters from each of those states, mort- gages the whole road, and its right to redeem in one state is sold on execution, the pur- chaser of the equity is entitled to redeem the whole road from the mortgage. Wood v. Goodwin, 49 Me., 260. 1861. 204. — The owner of the equity may pay the mortgagee the amount then due on the mortgage, the mortgagee being in possession, and thus prevent foreclosure, but he cannot obtain possession without securing the bal- ance of the debt not yet due. 16. 540 MORTGAGE. Trustees. 205. Special act. The vested right of a mortgagor to redeem, under the general law, cannot be destroyed or impaired by a special statute enacted that the mortgage has been foreclosed, or that it sliall be foreclosed in case the debt be not paid within one year from the jiassage of the act. Ashuelot B. S. Go. v. Elliot, 52 N. H., 387. 1873. XIII. Teustees. 206. Compensation of trustees. If a mort- gage of real estate, executed by a railroad company to trustees to secure the payment of certain bonds therein described, provides that in default of payment, the trustees may enter into and take possession of the premises, etc., and apply the earnings of the road to the pay- ment of the principal and interest of said bonds, and that the trustees " shall be entitled to receive proper compensation for every labor or service performed in the discharge of said trust, in case they shall be compelled to take possession of said premises, or any part thereof, or to manage the same," the trustees, having taken possession for breach of condi- tion, may, on a bill to redeem, be allowed any sum which is reasonable for their own ser- vices, and expenditures authorized by the mortgage, but not for counsel fees in suits be- tween them and the mortgagors, or for insur- ance procured by them without the request of the mortgagors. Boston and Worcester B. B. Co. V. Haven, 8 Allen (Mass.), 359. 1864. 207. Constitutional law. The act of 1857, No. 16, so far as it provides for the appoint- ment of trustees annually, in case a railroad is in the hands of trustees under a mortgage, is lidd to impair the obligations contained in the second mortgage of the Rutland and Bur- lington R. R. Co., in which deed the trusts are specified and the manner of perpetuating the same, and in this respect is repugnant to that provision in the constitution of the United States, which prohibits the legislature of a state from passing any law impairing the obligation of a contract. Fletcher v. Butland and BwUngton B. B. Co., 39 Vt., 633. 1858. (Co. Ct. of chancery.) 208. Death of trustees. Where the trustees of a railway mortgage are dead, an action may be brought on the mortgage in the name of one or more of the bondholders. Galveston B. B. Co. V. Cowdrey, 11 Wallace, 459. 1870. 209. — So likewise if there be several suc- cessive mortgages, the trustees of which are dead. lb. 210. Operation of railway by trustees. The trustees of a mortgage, having taken possession of a railway, and having under, taken to operate the same are liable as com- mon carriers. Ba/rter and Go. v. Wheeler, 49 N. H., 9. 1869. 2H. Qualifications of trustees. The title of the trustee in a mortgage given by a rail- way company to secure its bonds is not invali- dated by tlie fact that he is an officer of the corporation. JEllis v. Boston, Hartford and Erie B. B. Go., 107 Mass., 1. 1871. 212. Removal of trustee. A trustee under two railway mortgages, will not be removed from his trusteeship upon the application of a majority in interest of the bondholders under the first of such mortgages, on the ground that he declines to employ counsel for the foreclosure of the first mortgage, selected by such majority, and declines to elect to act as trustee only under one of the mortgages, and to resign his trusteeship under the other. 8o held, in a case where it was not clear, but that the action of the trustee was the result of sound judgment, and not against the interest of any bondholders. Beadleston v. Knapp, 13 Abbott's Pr., N. S. (N. T.), 335. 1872. 213. Sale. The trustee cannot at a fore- closure sale become a purchaser of the trust property. Bacine and Mississippi B. B. Co. i>. Farmers^ Loan and Trust Co., 49 111., 831. 1868. 214. Vacancies. Wliere vacancies in the board of trustees, under a mortgage, are to be filled from the bondholders, the election of persons who have procured bonds for tlie purpose of qualifying themselves, will not be invalidated, if no fraud is intended. Bichards V. Merrimack and Connecticut Biver B. B. Co., 44 N. H., 127. 1862. 215. — A trustee does not cease to be chargeable, as such, because he has parted with the bonds required as a qualification. lb. 216. - R. 8. of 1857, ch. 51, § 51, and the nine following sections, and ch. 30, Acts of 1858, relative to " trustees of railroads," only apply to cases where the trust, the trustees, and the cestui que trust are all created by tho MORTGAGE. 541 Recp.iver — Lease. same deed, and not to a case where a mort- gage is made to an individual to secm'e liim and his assignees who may subsequently be- come holders of bonds to be issued by him. In re Bondholders of Torh and Cumberland R. B. Co., 50 Me., 553. 1861. 217. — And in case of such a mortgage, the bondholders cannot elect trustees in place of the original mortgagee. lb. 218. — The A. and W. E. R. Co. made a deed on its property to secure certain bonds ; and it provides that if the trustee should be- come incapable of acting, any court of record of A. county, upon the application of three- fifths of the holders of the bonds, upon notice to tlie president or any director of the com- pany, may appoint another trustee. The trustees, president and directors went into the enemies' lines and remained there during the war. An order of the court of A. county, sub- stituting another person as trustee, without notice, was without law, and null and void, and a sale by such substituted trustee, is utterly void. Washington, Alexandria, etc., B. B. Co. V. Alexandria, etc., B. B. Co., 19 Grattan (Va.), 593. 1870. XIV. Eeceiver. (See subdivision X, ante 533.) 219. Appointment. The appointment of a receiver, in the foreclosure of a mortgage upon a railroad, is not a matter of course, but is in the discretion of the court Williamson v. New Albany, etc., B. B. Co., 1 Bissell (U. S. C. C), 198. 1857. 220. — A railway ninety-five miles long, be- ing a link in an important route, whose gross annual earnings are $800,000, in good con- dition, is ample security for mortgage debts thereon, amounting to $2,300,000; and a re- ceiver of such road, appointed at the suit of a party on whose debt $300,000 is offered to be paid, and who has a decree which provides for sale in case of a default of payment, as therein provided, will be discharged. Howa/rd V. La Crosse and Milwaukee B. B. Co., 1 Wool- worth (U. S. 0. C), 49. 1864. 221. Land in custody of receiver. A company owning land and having power to mortgage gave a mortgage of all its estate and property, real and personal; the mortgage covered land whether it was necessary to the enjoyment of its franchises or not. Bolinson V. Atlantic and Great Western B. B. Co., 66 Penn. St., 160. 1870. 222. — A receiver having been appointed, the land was in legal custody and could not be levied on. lb. 223. — Whether the land should pass into the hands of a receiver could be determined only by the court that appointed him. lb. XV. InJUNCTIOjST. 224. Judgment creditors. An injunction may be allowed to restrain the removal and sale on execution, of portions of the mort- gaged property of a railway company, on the application of the mortgagees, when the whole of the property mortgaged is admitted to be inadequate security for the payment of the mortgage debts. Lane v. Banighmam and San- dusky, Dayton and Cincinnati B B. Co., 17 Ohio St., 643. 1867. 225. — The remedy of the judgment cred- itor, in such case, is, in equity, to subject the interest of the mortgagor to the payment of his judgment; or, where the nature of his claim is such as to entitle him to have it paid out of the earnings of the company, by proceedings to appropriate so much thereof as may be necessary to the payment of the judgment. lb. 226. — A railway company executed a mortgage for bon-owed money upon its road and equipments. The loan was for a long period, but the interest was to be paid semi- annually. The corporation had, by the terms of the mortgage, the possession and use of tlie road until default in payment of interest. There had been no default, and a creditor re- covered judgment and levied an execution upon a part of the equipments of the road. The rnortgagee filed a petition to obtain a per- petual injunction, upon the ground that the use and possession of the road were indispens- able to enable the corporation to raise money wherewith to pay the interest as it became due. Held, that such an averment d id not show a sufficient ground' for an injunction. Ooe v. Central Ohio B. B. Co., 10 Ohio St., 413. 1859. XVI. Lease. 227. Improvements by lessee. If the mortgagor of real estate leases the same for a 542 MORTGAGE. General Matters. term of years, and for a certain rent, to a third person, from whom he receives. an advance- ment of money under an agreement that he will expend it in buildings and improvements upon the land, which is accordingly done, the lessee, after judgment has been rendered against him in a writ of entry brought by the mortgagee, cannot be allowed compensation for the buildings and improvements, although he had reason to believe that, under the terms of the mortgage, the mortgagor had a right to ■execute such a lease, which would be valid as against the mortgage. Haven v. Boston and Worcester M. R. Co., 8 Allen (Mass.), 369. 1864. 228. Right of mortgagor to lease. Until entry by a mortgagee for condition broken, or until foreclosure, the mortgagor is the owner of the mortgaged estate, and may lease the same, or otherwise deal with it as owner. Keri- nett i>. Plummer, 28 Mo., 143. 1859. XVII. GrENERAL MATTERS. 229. Attorney fees. Where a mortgage authorizes the payment of the expenses of the mortgagee, the costs and proper counsel fees may be paid out of the funds realized from the sale of the mortgaged property. Bronson v. LaOrosse S. R. Co., 3 Wallace, 283. 1863. 230. Canal boats. A railway company mort- gaged its engines, cars, etc., etc., " and all other personal property in anyway belonging or ap- pertaining to the railroad of said company." Under this description, canal boats, purchased with the funds of the corporation, and used and run by it in connection with the railroad, but beyond its terminus, are not included. Parish v. Wheeler, 22 N. Y.. 494. 1860. 231. — Though the corporation exceeded its legal powers in the purchase of such boats, it cannot, nor can one claiming under it, set up such violation of duty to defeat the title of a mortgagee. lb. 232. Compromise. Several of the different classes of the creditors of a corporation entered mto a compromise agreement, the object of which was to wipe out all the debts and secu- rities of the corporation, and to substitute therefor a third mortgage. Held, that a sub- stantial departure from the terms of this agree- ment in carrying it out, absolved the signers thereof, and left them to stand upon their origi- nal rights. Miller e. Rutland and Washington R. R. Co., 40 Vt., 399. 1867. 233. Damages for right of way. Where a railway company executes a mortgage on its road and franchises, and afterwards occupies land for its uses, and damages are assessed, it has no interest in such land on which the mort- gage can operate, and a sale under the mort- gage would not convey the title nor extinguish the lien for the damages. WesteTm Pennsylvania R. R. Co. V. Johnston, 59 Penn. St., 390. 1868. 234. — The land owner's title to damages is paramount to the lien of the mortgage. li. 23.5. Depot grounds. A railroad company mortgaged all its road, etc., and all parcels of land on which depots were or should be erect- ed, together with all the franchises of the com- pany. Afterwards, F. and G. purchased certain lands for the use of the comp£,ny for depot grounds, and took a written contract of sale, and for a deed upon payment of the purchase money, and assigned the contract to the com- pany, which took possession of the land and used it for depot purposes, and paid a part of the purchase aioney. Held, that the land was subject to the mortgage; that the mortgagee, having taken possession of the road to protect his lien, was entitled to a conveyance by the vendor to the railroad company on payment of the balance of the purchase money ; that a deed having been deposited as an escrow, the mortgagee was entitled to have it delivered and recorded upon such payment. Farmers' Loan and Timst Co. «. Fislier, 17 Wis., 114. 1863. 236. Discount. The act of March 3, 1851, authorized the sale of railway bonds at a dis- count, and such authority having been given, the C. P. and I. R. B. Co. had the authority to exchange its bonds for iron rails, and such ex- change did not invalidate the bonds or mort- gage. Ooe V. Oolumbits, Piqua and Indiana R. R. Co., 10 Ohio St., 372. 1859. 237. — A mortgage of $4,000,000 was given to trustees to secure bonds of like amount. Many of the bonds had been issued at a large discount, and it had been judicially decreed that the holders were entitled to no more than what had actually been given for them so that margin remained of the security. A party who took some of the bonds at 80 per cent., with an agreement that if the company should at any time sell bonds at a less rate, he should have as many bonds as would pay him the discount, MORTGAGE. 513 General Matters. estimating the bonds already given and those to he given at the lov»'est rate at which any had been sold, which was 40 per cent. — was held, not entitled to have his outstanding equity ad- justed on a foreclosure of the mortgage and his demand attached to the mortgage ; bonds to the whole extent of $4,000,000 having been actually issued. Voae v. Branson, 6 Wallace, 453. 1867. 238. Division of roads. A railway com- pany may divide its line and rolling stock in- to divisions, and mortgage the same by sepa- rate divisions. Minnesota Co. o. St. Paul Go., 2 Wallace, 609. 1864. 239. — But, in the absence of any specific apportionment in fact of the rolling stock be- tween the separate divisions, the mortgages thereon took precedence in the order of their dates. Same v. Same, 6 ib., 743. 1867. 240. — Where a railway company mort- gaged separately, and at different times, the two divisions of which its road consisted, for the purpose of raising money to complete the road, and neither of the mortgages contained any language purporting to convey materials acquired subsequently to its execution, any further than they became appurtenant to the road, or were not used in operating it: Held, that there was nothing in the general nature and object of the mortgages to give them a more enlarged meaning. Farmers'' Loan and Trust Co. v. The Commercial Bank ofJRacine, 15 Wis., 434. 1863. 241. Escrow. Where a note and mortgage had been delivered to the agent of a railway company as an escrow, to be delivered on the fulfillment of certain parol conditions, and the possession was obtained by the company without the performance of the conditions, and without the consent of the agent or maker ; and it appeared that the maker knew that the company had obtained possession of them, and knew that they were in the posses- sion of plaintiff under a claim of ownership, and made no objection until after he had known of plaintiff's possession for two years. Held, that the defendant must be regarded as having assented to the delivery of the secur- ities to the company. Truman v. McGollum, SO Wis., 360. 1866. 242. Exchange of bonds. A railroad com- pany having become insolvent, certain of the bondholders and other creditors agreed that they would purchase the road, etc., and would organize a new company; that the new com- pany should execute a first mortgage on the road to the amount of the then existing first mortgage on the old road to secure bonds of the new company; the bonds under the old mortgage to be exchanged for the new bonds. The subscribers to the agreement agreed to surrender their bonds whenever they should be required so to do, and to receive the new bonds in exchange. The plaintiff, a bond- holder, signed this agreement, and received notice to surrender his bonds, but failed to do so until after the purchase of the road and the formation of the new compan)"^. Held, that not having complied with the terms of tlie contract, he had no right to claim any bene- fits under it, or to insist on the delivery of the new bonds. Carpenter «. Catlin, 44 Barbour (N. T.), 75. 1865. 243. Future advances. A mortgage of a railroad to secure bonds to be issued to raise money to pay the debts of the corporation, is not invalid, as given to secure future advances. Riohards v. Merrimack and Connecticut B. B. Co.,U N. H., 137. 1863. 244. — A mortgage made to secure a future loan does not take effect from the date of the registry, but only from the date, and for the amount of the loan. Meeker v. Com'ri Clinton and Port Hudson B. B. Co., 2 La. An., 971. 1847. 245. Income. Where a mortgage does not in terms cover the income or earnings of a road, a subsequent deed of surrender to the trustee of the property named in the mortgage will not operate to convey the earnings of the road accrued prior to the deed of surrender. Farmers' Loan and Trust Co. v. Carey, 13 Wis., 110. 1860. 246. — By deed executed in the state of Pennsylvania, the Pittsburgh, Ft. Wayne & Chicago R. R. Co., mortgaged the entire works and effects of the company, including all its tolls, income, rents, issues and profits, and alienable franchises, to secure its entire debt, providing that if the interest or principal of its bonds should not be paid as they became due, then the trustees under said deed were to take possession, work the road, and apply the net income to the payment of the bonds, interest and principal ; but that until default in the payment of the interest or principal of 5M MORTGAGE. General Matters. said bonds, the mortgagors should continue in the management of the granted premises. Held, that the mortgagors conveyed only the net income of the railroad, after payment of all expenses, while they remained in no default in paying the interest, and providing a sinking fund. Parklmrat «. NortJieiii Cen- tral R. R. Co., 19 Md., 473. 1863. 247. — Where a corporation had given a mortgage or trust deed of all its property, tolls, incomes, franchises, etc., to secure its bonds, its revenues so pledged are not liable to a garnishee process by its judgment credi- tors. Oalena and Chicago Union S. R. Co. e. Mmsies, 26 111., 121. 1861. 248. Iternal revenue. A proviso in a mortgage, that the interest and debt should be paid " without any deduction, defalcation or abatement to be made of anything for or in respect of any taxes, charges or assessments whatsoever, does not prevent the company from retaining for the government, the Ave per cent, tax provided for in the 122d section of the Kevenue Act of 1864. MaigU v. Rail- road Co., 6 Wallace, 15. 1867. Haight ». Pittsburgh, Ft. Wayne and Chieago.R. R. Co., 1 Abbott (U. S. C. C), 81. 1867. 249. Intervention. The purchaser of a part of a road including stock, machinery, franchises, etc., of the entire I'oad, under a senior mortgage cannot intervene for the pur- pose of reducing the amount of the decree in a suit brought by a junior mortgagee against the company. Bronson u. Railroad Co., 2 Black, 534. 1862. 250. — Nor will he be permitted to inter- vene to show that an agreement for the in- crease of such decree was fraudulent — the amount of the decree does not concern him. lb. 251. — General creditors having no lien cannot interfere in the contest. lb. 252. Jurisdiction. In 1852, the R. and M. R. R. Co., an Indiana corporation, and the E. and H. R. R. Co., an Ohio corporation, con- solidated under the name of the E. and H. R. R. Co. The law in neither state surrendered to the other any jurisdiction over the property of said companies, the property being in both states. Seld, that a mortgage executed in In- diana by the R. and M. R. R. Co., prior to thp consolidation, should be foreclosed in Indi- ana. That the courts of Ohio had no juris- diction to enforce such mortgage. Satan and Hamilton R. R. Co. v. Hunt, 20 Ind., 457. 1863. 253. — A prior suit commenced in Ohio, and prosecuted to judgment for other bond- holders under the same mortgage, by the same trustee, cannot be set up in bar against such foreclosure suit in Indiana. lb. 254. Lost bond. The loss of a bond is no objection to its being paid, provided an in- demnity is furnished against its being en- forced in the hands of others. Miller v. Rut- land and Washington R. R. Co., 40 Vt., 399. 1867. 255. Payment. Where the sheriff holds an execution for the sale of mortgaged prop- erty, nothing short of payment into his hands will satisfy the mortgage. Clinton atid Port Hudson R. R. Co. v. Brown, 21 La. An., 248, 1869 ; Haynes v. The SJieriff, ib. 256. Place of execution. The place of the delivery of a bond or note, and not the place where it is dated or signed, is the place of its execution. Butler v. Myer, 17 Ind., 77. 1861. 257. Removal of track. A railway com- pany cannot be permitted to take up a portion of its mortgaged track without the consent of the mortgagees. Watt v. Passenger R. R. Co., 6 Philadelphia Rep. (Penn.), 386, 1867; Watt V. Hestonville, etc., R. R. Co., 1 Brewster's Eq. (Penn.), 418, 1867. 258. Seal. An impression of the seal of a railroad company, made upon the paper of the instruments issued by it as bonds, and pur- porting to be under seal, is a suflHcient seal to make the instruments specialties on which debt may be maintained. Allen v. Sullivan R. R. Co., 32 N. H., 446. 1855. 259. State liens. The legislature of Mis- souri was not prohibited from dischargino- its mortgage lien on the Pacific Railroad, on re- ceiving full value of its security, and of that value the legislature was the judge ; so held, as to third persons whose rights accrued in good faith. Murdoch «. Woodson, 3 Dillon (U S C C), 188. 1873. 260. — The Northern Central R. R. Co. ex- ecuted a mortgage to the state for an annuity of $90,000, payable in quarterly installments with the condition that until default made in the payment of the annuity, or some part thereof, " and until three months subsequent to a default of the company to pay the who'.e MUNICIPAL AID AND BONDS — MUNICIPAL CORPORATIONS. 545 Miscellaneous. amount of said annuity ■which may fall due in any one year," tlie company shall enjoy the road, etc. Held, that the failure to pay any installment entitled the state to an action, and that it was not necessary that the whole of a year's annuity should have become delinquent. NoHhern Central B. R. Oo. v. The State, 17 Md., 8. 1860. 261. — Under the act of March 3, 1857, bonds issued by the state to the several rail- road companies receiving them, " constituted a first lien or mortgage upon the road and property " of said companies. Held, that the lien of the state under this statutory mort- gage extended to lands which had before that time been granted by congress to aid in the construction of the road, and by the state to the railroad company, and that the lien of the sti-te was not confined to the road, and such property immediately connected with the i-oad as was necessary for its operation. Wilson v. Boyee, 3 Dillon (U. S. C. C), 539. 1873. 262. Statute. The statute of December 15, 1853, relating to the sale of bonds of railroad companies, 3 Curwin, 3098, authorizing the sale of such bonds, at such prices as the di- rectors may choose to take, does not apply to foreign corporations. McGregor ®. Oovington and Lexington R. B. Co., 1 Disney (Ohio), 509. 1857. 263. Subrogation. A railway, then under a first and second mortgage, was sold on exe- cution and bought in by certain bondholders,, whom the second or junior mortgage was given to secure. These purchasers organized themselves into anew corporation and worked the road themselves, and for their own profit. After a certain time, the mortgagees under the first or senior mortgage obtained a decree of foreclosure, and to prevent a sale of the road, the new corporation paid the mortgage debt. Subsequently, on a creditor's bill, the sale made to the creditors under the second mort- gage was set aside as fraudulent and void, as against other creditors of the corporation originally owning the road. Seld, that no bill in equity would lie by the new corporation against the mortgagees under tlie first mort- gage, to be paid back (as paid under a mistake of fact), what had thus been paid to them by the new corporation, or to be subrogated to their decree of foreclosure. Railroad Oo. v. Smtter, 13 Wallace, 517. 1871. 35 MUNICIPAL AID AND BONDS. [The decisione in relation to such aid and hands are to be found under the titles of Snhscriptlons by Cities and Towns and Suhscriptions by Counties.] MUNICIPAL CORPORATIONS. See Federal Courts; Hishwat; Ikjubies to Peb- soNS on the Tkack; Sewebb; Scbsceiptiok ex 'Cities and Towns; Subsobiptions by Counties; Whabtes. 1. By-laws. A record by a town clerk of the proceedings of a town meeting in enact- ing a by-law, authorized by statute to be en- acted by towns at meetings specially called for that purpose, stating that, at a special meeting of the inhabitants of the town, le- gally warned and held for the purpose of making the by-law in question, it was voted, etc., is prjma./aci« evidence that such meeting was specially warned for the purpose of mak- ing such by-law. Isbellv.New York and New Haven R. R. Co., 35 Conn., 556. 1857. 2. Charter. The charter of the city of Baltimore construed. Northern Central R. R. Co. V. Mayor of Baltimore, 31 Md., 93, 1863. 3. — The acts incorporating cities are made public acts, and will be judicially noticed by the courts. Janesville v. Milwaukee and Miss- issippi R. R. Co., 7 Wis., 484. 1859. 4. Contract. The properly constituted au- thorities of a municipal corporation may bind the corporation whenever they have power to act in the premises. Cincinnati City i>. Mor- gan, 3 Wallace, 375. 1865. 5. Conveyance of real estate to a railway company. The statute authorizing and em- powering the board in which the corporate authority of a city is vested, to convey to a railway company " not to exceed five thousand acres of the land of the city, or such parcels thereof as they may deem advisable, and upon such terms and conditions as they may deter- mine, even if mandatory, so far as the act of conveyance is concerned, vests the board with discretionary power as to the quantity to be conveyed, and the terms of the conveyance. San Diego «. San Diego and Los Angeles R. R. Co., 44 Cal., 106. 1873. 6. — Such board is entrusted with such property in a fiduciary capacity, and its mem- 546 MUNICIPAL CORPORATIONS. Highways and Streets — Railway Stock. bers cannot bargain with reference to it, with a corporation in which they hold stock. lb. 7. Highways and streets. Where an in- jury is received by any person wholly by reason of a defect caused by the alteration of a highway by a railway company or its con- tractors, the town is liabla for the injury. Veazie v. Penobscot B. S. Co., 49 Me., 119. 1860. 8. — The railway company is liable to the town for such damages as it may be compelled to pay for such injury. lb. 9. — Where the company received notice of an action against the town, and was requested by the town to appear and assume the defense, any judgment recovered against the town is conclusive against the company. lb. 10. — Although an action must be brought by a town against a railway company for ex- penditures required to repair streets obstructed by the company, such limitation does not ap- ply to cases where suits are brought against the town for injuries to individuals. The town has one year from time of the recovery against it in which to sue the railway com- pany, lb. 1 1. — Thciugh a change in the law regulat- ing the mode in which railways shall cross streets is a remedial act, still it cannot be con- strued to apply to railways already in process of construction, where the line is located and under contract. Veazie v. Mayo, 49 Me., 156. 1861. 12. — A provision, therefore, making such a railway a nuisance where it has not con- formed to the statute, and holding the d irectors personally responsible, does not apply. lb. 13. — Ths charter of the city of Portland docs not authorize the city council to license an individual to use a street exclusively for his own benefit by putting down a railway for the transportation of rocks and gravel. areen v. City of Portland, 33 Me., 431. 1851. 14. — In such a case, the city was held not liable for damages to the comfort or business of citizens occasioned by sucli railway, and its liabilitj'- was not increased by taking an indemnifying bond from the person building the railway. lb. 15. Operation of railways. That clause of the charter of Jersey City, giving to the common council power, by general law, to declare nuisances, and provide for their re- moval, does not give the right to regulate the running of locomotive engines and cars ; the power to regulate the speed and running of locomotive engines and railroad cars is given by a separate section of the charter. State v. Jersey City, 5 Butcher, (N. J.), 170. 1861. 1 6. The city authorities of New York have the power to prohibit the use of steam, within the city, upon the New York and Harlem Railroad. New York and New Haven R. B. Co. «. Mayor of New York, 4 Blatchford (U. S. C. C), 193. 1858. 17. A statute giving power to the common council of a city, to regulate the running of railway cars within the corporate limits, authorizes the adoption of an ordinance en- tirely prohibiting the propelling of cars by steam through any part of the city. Buffalo and Niagan-a Falls B. B. Co. v. Buffalo, 5 Hill (N. Y.), 209. 1843. 18. Pleading. It is not necessary to aver the capacity of a municipal corporation to sue. Janesville v. Milwaukee and Mississippi B. B. Co., 7 Wis., 484. 1859. 19. Railway built by a city. The com- monwealth determined to build a railway from 0. to the intersection of Broad and Vine streets in P.; with the proviso, that before any part of the railway between the west bank of the S. river and the intersection of said streets should be contracted for, the city should engage to construct and continue the railway to Cedar street; the city constructed the latter road; Jield, that the city had the complete ownership of the road so constructed; the city road was a portion of the line of the state road, but not a. portion of the road. Phila- delphia V. Philadelphia and Beading B. B. Co., 58 Penn. St., 253. 1868. 20. — The city was only bound to main- tain its Broad street road as long as it was needed and used for the purposes of its origi- nal construction. lb. 21. — A conveyance of the state road and "appurtenances" was not sufficient to con- vey any interest in the city road. lb. 22. — Property built by municipal cor. porations for their corporate use may be removed when the interests of the commu- nity demand it. lb. 23. Railway stock— excliange. Where a special statute constitutes certain persons commissioners for a municipal corporation, MURDER — NEGLIGENCE. 547 Miscellaneous. and confers on them certain specific powers enumerated therein, a following clause au- thorizing them " to do whatever else may be necessary to secure and advance the interests of the city in the premises," does not work an enlargement of the powers specifically granted, but the phrase, " in the premises," limits the discretion conferred to the manner of the execution of the special grants of power. Such city authorities cannot ex- change railway stocl? belonging to the city, for stock of some other company without special authority. Cleveland «. The State Bank o/07«o, ICOhioSt, 230. 1805. MURDER. 1. Breaking into a ticket office. Break- ing and entering a railroad ticket office in the day time, with an Intent to steal therein, but not actually stealing, is, under Rev. Sts., ch. 130, § 13, but a misdemeanor; and an arrest by an officer without a warrant for such an offense previously committed, is illegal; and killing the officer by the person so arrested is not murder, but manslaughter. Commonwealth v. Gary, 13 Gushing (Mass.), 340. 1853. NAVIGATION. 1. Piles. Where a railway company em- ployed contractors to build a bridge, and for that purpose to drive piles in a river, and, ow- ing to the abandonment of the contract, the piles were left in the river in such a condition as to injure a vessel when sailing on her course, the railroad company were held responsible for the injury. Philadelphia, Wilmington and Baltimore B. B. Co. i). Philadelphia and Saore de Crace Steam Towboat Co., 23 Howard, 209. 1859. NEGLIGENCE. [Most of the decisions upon questions of negligence will be found under other heads. Nearly every title contains some decision In which qnestions of negli- gence are considered.] 1. Agreed statement of facts. Where the issue in a. case presents a question of negli- gence as the foundation of the plaintiff's right of recovery, and the intervention of a jury be- ing waived, the court has fotind for the plaint- iff, on the issue made, and judgment has been entered thereon, 'and the cause comes up on a petition in error, founded on an agreed state- ment of the facts, but omitting a statement, whether there was negligence or not, this court cannot find that fact contrary to the find- ing of the court below, the question, whether there was negligence or not, being not a ques- tion of law merely, but a question of fact, to be found from the testimony. Cleveland and To- ledo B. B. Co. V. Johnson and Kellogg, lO.Ohio St., 1591. 1857. 2. By whom the question of negligence is to be determined. The question of negligence is a mixed one of law and fact, anci it is the duty of the court to instruct the jury, whether the facts, which the testimony tends to prove;, will, if found true, constitute that negligence which will defeat the action. Trow v. Vermont Central B. B. Co., 24 Vt., 187, 1853; Filer v. New Toric Central B. B. Co., 49 N. Y., 47, 1873 ; Johnson v. Winona and St. Peter B. B. Co., 11 Minn., 290, 1866. 3. — The question of negl igpnce is generally one of fact, to be decided by the jury, under all the circumstances of the case. Marquette 4. Chicago and Northwestern B. B. Co.,S3 la., 562, 1871 ; Louisville, Cincinnati and Lexington B. B. Co. V. Mahonefs Adm'r, 7 Bush. (Ky.), 235, 1870 ; Carroll v. Minnesota Valley B. B. Co., 14 Mi nn., 57, 1869 ; ' Kennedy v. North Missouri B. B. C')., 36 Mo., 351, 1865 ; WrigU v. Georgia B. B. Co., 34 Ga.. 330, 1866 ; Baltimore and Ohio B. B. Co. V. Shipley, 31 Md., 368, 1869 ; Balti- more and Ohio B. B. Co. v. Fitzpatrick, 35 Md., 83, 1871; Cumberland and Pennsylvania- B. B. Co. V. The State, 37 Md., 156, 1873.^ 4. — Negligence and unskillfulness are mat- ters of fact. for the jury to determine. Huelsen- kamp V. Citizens' B. B. Co., 34 Mo., 45, 1863. 5. — Though the facts may so clearly prove negligence, as to render it the duty of the court to pronounce upon them as a matter of law; yet, in cases of controverted facts, the existence or nonexistence of which may fairly be presumed to effect the mind in a given ex- igency, the question of the character of the acts, whether negligent or otherwise, is neces- 548 NEGLIGENCE. Burden of Proof— Comparative Negligence. sarily for the jury. Pennsylvania B. R. Co. V. Ogier, 35 Peun. St., 60, 1860; Louisville and Nashville B. R. Oo. v. Collins, % Duvall (Ky.), 114, 1865; Oreenleaf v. Illinois Central R. R. Co., 39 la., 14, 1870; Greenleafv. Dubuque and Sioux City R. R. Co., 33 ib., 52, 1871 ; Barton V. St. Louis and Iron Mountain R. R. Co., 52 Mo., 253, 1873 ; Cook v. Nm Torh Central R. B. Co., 3 Keyes (N. Y.), 476, 1867; Maloy v. Neijo York Central B. B. Co., 40 Howard's Pr. (N. Y.), 274, 1870 ; Bernhard v. Bensselaer and Saratoga B. B. Co., 1 Abbott's Ct. of Ap. Dec. (N. Y.), 131, 1860; Cook v. New Tork Central B. B. Co., ib., 432, 1867; Dickens v. Same, ib., 504, 1864 ; Jenkins v. Little Miami B. B. Co., 2 Disney (Ohio), 49, 1858. 6. — It is error to submit the question of negligence to tlie jury where there is no proof of it. Bailroad Co. v. Skinner, 19 Penn. St., 298. 1852. 7. — The court in charging upon the question of negligence should say what neg- iligence would and what would not make the party liable. A failure to do this is error. Pittsburgh, Pt. Wayne and Chicago B. B. Co. v. Evans, 53 Penn. St., 250. 1866. 8. — The question of negligence may be answered by reference to a great variety of incidents and circumstances proper for the jury to consider, and in respect to which they may exercise a judicious discretion. Dickens v. New Tork Central B. B. Co., 1 Keyes (N. Y;, 23, 1864; see Same t>. Same, 28 Barbour (N. Y.), 41, 1858. 9. Burden of proof. In an action for neg- ligence, the burden is upon the plaintiff to show affirmatively that he is not guilty of any negligence proximately contributing to the injury. Button v. Hudson Biver B. B. Co., 18 N.Y., 248. 1858. 10. — Such negligence is not to be pre- sumed, and, therefore, direct evidence to dis- prove it is not required from the plaintiff in the first instance ; but where there is conflict- ing testimony as to the fact, the preponderance must be with the plaintiff to enable him to recover. Ib. 1 1. Children. There is no absolute rule as to what constitutes negligence, and in cases where it is concurrent, the same rule will not apply to adults and children. It is, therefore, always a question of fact for the jury, under the instructions of the court, as to the relative degree of care, or the want of it, growing out of the circumstances and conduct of the parties. Philadelphia amd Beading B. B. Co. V. Spearen, 47 Penn. St., 300. 1864. la. — The same rigid rule in determining what would be a bar to an action on the ground of contributory negligence, would not be applied to an infant, an idiot, or an insane person, as to one who had arrived at an age to possess ordinary judgment and discretion. O'FlaMrty v. Union B. R. Co., 45 Mo., 70. 1869. 13. — To constitute negligence on the part of the parents, there must be an omission of such care as persons of ordinary prudence exercise and deem adequate in the care of their children. Ib. 14. That which would be but ordinary neg- ligence toward grown persons may be gross negligence as respects a child. Schierhold «. North Beach and Mission R. R. Co., 40 Cal., 447. 1871. 1 5. Coaches. "What evidence of negligence of a carrier, running coaches, is sufficient to go to the jury, decided with reference to a particular case. Oeddes v. Metropolitan R. R. Co., 103 Mass., 391. 1869. 16. Comparative Negligence. Although the plaintiff may have himself been guilty of sime degree of negligence, yet if it be but slight in comparison with that of the defend- ant, it should be no bar to his recovery. Chi- cago, Burlington and Quincy R. R. Co. «. Trip- left, 38 111., 482. 1865. 17. — The doctrine of comparative negli- gence as established in Illinois is, that there must be fault on the part of the defendant, and no want of ordinary care on the part of the plaintiff; and when both parties are at fault, the plaintiff may in some cases recover, as, where it appears that his negligence is slight and that of the defendant gross. Chi- cago and Alton R. R. Co. «. Oretzner, 46 111., 74. 1867. 18. — Although the plaintiff may have been at fault, he may still recover if the defendant was guilty of gross negligence and might have prevented the injury by the use of ordi- nary care. Augusta and Savanah R. R. Co. V. McElmurry, 34 Ga., 75. 1858. 19. — The doctrine of " comparative negli- gence " does not prevail in Iowa. It is only recognized in Georgia and Illinois. O'Keefe NEGLIGENCE. 549 Concurrent Negligence — Contributory Negligence. e. Ghieago, Rook Island, and Pacific B. B. Go., 33 la., 467. 1871. 20. Concurrenf negligence. Wliere tlie party inflicting the injury, by proper care, might avoid the consequences of the negli- gence of the party injured, or where the lat- ter could not avoid the consequences of the former's negligence, an action will lie. North em Central B. B. Go. «. Tlie State, 31 Md., 357. 1869. 21. — But where, from the proof of the na- ture of the accident, it appears that the neg- ligence of the parties was concurrent, and co- operated to produce the injury, no action will lie — the law refusing to apportion the fault, and regarding the negligence of each party as equally proximate. Ih. 22. — The question of concurrent negli- gence is to be determined by the particular circumstances of the case. Pennsylvania B. B. Go. v. Kilgore, 32 Penn. St., 392. 1858. 23. Contract. In an actisn against a rail- way company for a breach of a contract to leave freight cars on a side, track for the pur- pose of receiving and taking away freight, the defendant alleged in one count of its answer that the plaintiff had negligently permitted freight cai's to stand upon the said side track so near the main one that one or two collis- ions had taken place, and there was danger of others, and that defendant was unwilling to become responsible for the injuries that might result from such negligence. Held, that this defense was not a counterclaim or setoff, and was not stated as a defense in bar, and it was properly stricken from the answer. Amsden «. Bulmque and Sioux City B. B. Co., 13 la., 132. 1863. 24. Contractor. Where an employe of a contractor engaged in furnishing wood to a railway company, received an injury, which was occasioned by the negligence of the em- ployes of the railway company and by the negligence Of the contractor, the negligence of the latter being the proximate cause, the court below refused to instruct the jury that the company was not liable unless the acts of its servants were wanton and willful. Tlie supreme court being equally divided, the ac- tion of the lower court was affirmed. Micliigan Central B. B. Go. ». Leahy, 10 Mich., 193. 1862. 25. Contributory negligence. Contrib- utory negligence on the part of the injured party will defeat a recovery. Louisville and Nashville B. B. Go. «. Burke, 6 Coldwell (Tenn.), 45, 1868; Owen c. Hudson Biver B. B. Co., 35 N. Y., 516, 1866; Same v. Same, 3 Bos- worth (N. Y.), 374, 1858; Same v. Same, 7 ib., 339, 1860; McKeon v. Citizens' B. B. Co., 43 Mo., 405, 1869 ; Toledo and Wabash B. B. Co. v. Qodda/rd, 25 Ind., 185, 1865 ; Gatawissa B. B. Go. V. Armstrong, 49 Penn. St., 186. 1865. 26. — Hence, in case of the injury by a backing train, of a person on a hand car on the track, though the jilry were instructed that if the injured party Was guilty of negligence, which contributed to the accident, the defend- ant was not liable, yet it was error to add in connection that very slight negligence on the part of the injured party would not prevent a recovery. Gatawissa B. B. Co. v. Armstrong, 49 Penn. St., 186. 1865. 27. — The negligence which disables the plaintiff from recovering must be negligence which directly or by natural consequence con- duces to the injury. The question of negli- gence in a particular case is one of fact for the jury. Bichmond v. Saoramento Valley B. B. Co., 18 Cai:, 351, 1861; Oeniral B. B. Go. v. Moore, 4 Zabriskie (N. J.), 834, 1854. ' 28. — Where there is mutual negligence and the negligence of both the company and the owner of the cattle was the proximate cause of the injury, no action can be sustained. Stucke V. Milwaukee and Mississippi B. B. Co., 9 Wis., 303, 1859; Indianapolis and Cincinnati B. B. Co. V. Caldwell, 9 Ind., 397, 1857. 29. — And where the negligence of the plaintiff is proximate, and that of the defend- ant is remote, no action can be sustained. Ib. 30. — But where the negligence of the de- fendant is proximate and that of the plaintiff is remote, the defendant will be held liable if the injury could have been prevented by the exercise of reasonable care. Ib. 31. — Any negligence, however slight, on the part of the injured person, if proximate, or contributing to the injury, would prevent a recovery in an action therefor. Potter v. Chi- cago and Northwestern B. B. Co., 21 Wis., 372. 1867. 32. — Wliere the i^pjury complained of by the plaintiff is the result of his own negli- gence or fault, or of the negligence or fault of both parties, without intentional wrong on the part of the defendant, no action can be main- 550 NEGLiaENCE. Degrees of Care — Evidence. tained. Williams v. Michigan Central B. B. Co., 2 Mich., 259, 1851 ; Memphis and Charles- ton B. B. Co. V. Whitfield, 44 Miss., 466, 1870. 33. — The question of contributory negli- gence is one of fact for the jury under projier instructions from the court. lb. 34. — Where both parties are at fault, neither can'recover. Beeves v. Delaware, Lackawanna and Western B. B. Co., 30 Penn. St., 454. 1858. 35. — The judge's charge that no fault of the plaintiflf could excuse the defendant un- less it had some effect to produce the collision, disapproved. Colegrove v. New York and New Haven B. B. Co., 20 N. Y.,' 492, 1859 ; Same v. ' Harlem and New Haven B. B. Co., 6 Duer (N. Y.), 383. 1857. 36. — damages. Upon a hearing in dam- ages after a demurrer to a declaration charg- ing an injmy by the negligence of the defend- ant, the defendant may show, for the purpose of reducing the damages to a nominal sum, that the plaintiff was guilty of negligence di- rectly contributing to the injury. Daily v. N. T. and New Hamn B. B. Co., 32 Conn., 356. 1365. 37. — death. It is not necessary in the first instance to disprove contributory negligence in the deceased. Cleveland and Pittsburgh B. B. Co. V. Bowan, 66 Penn. St., 39S. 1870. 38. — If negligence appears from the plaint iff's testimony, the defendant may rest upon it. lb. 39. — Love of life and the instinct of pres- ervation being the highest motive for care, they will stand for proof of it till the contrary ap- pear, lb. 40. — In actions under the statute, against a railroad company, for damages for the death of a person caused by the negligence of defend- ant, the negligence of the deceased, in order to defeat the action, must have been the direct and proximate, and not the indirect and remote, cause of the death. Meyer v. People's B. B. Co., 43 Mo., 523. 1869. 41. Degrees of care. It is error to charge the jury that if the plaintiff, by his own fault, has contributed to his injury, the defendant must then show that he was without fault him- self, and that no man can be shown without fault, unless he has done all in his power to avoid the injury. Pendleton Street B. B. Co. v. Stallmun, 22 Ohio St., 1. 1871. 42. — The different degrees of negligence ccmmented upon. S'renehv. Buffalo, Neuo York and Erie B. B. Co., 4 Keyes (N. Y.), 108. 1868. 43. — When there is such an obvious disre- gard of duty and safety as amounts to miscon- duct, the court may declare it to be negligence. Westchester and Philadelphia B. B. Co. v. Mc- Blwee, 67 Penn. St., 311. 1871. 44.. — Negligence consists in the absence of that ordinary care which a party ought to observe under the particular circumstances in which he is placed. A different degree of care is required where there is reason to apprehend danger, from that which is necessary where none is to be expected. Pennsylvania, B. B. Co. V. Ogier, 35 Penn. St., 60. 1800. 45. — Ordinary care is that degree of care which a person of ordinary prudence is pre- sumed to use, under particular circumstances, to avoid injury, and should be in propor- tion to the danger to be avoided, and the fatal consequences involved in the neglect. Toledo and Wabash B. B. Co. v. Qoddard, 25 Ind., 185. 1865. 46. — '' Ordinary care " has relation to the situation of the parties and the business in which they are engaged, and varies according to the particular circumstances under which it is to be exercised. Fletcher «. Boston and Maine B. B. Co., 1 Allen (Mass.), 9. 1861. 47. Employes. In an action against a rail- road company for damages sustained by the negligence of an engineer, who is alleged by the plaintiff to have been employed by the de- fendant at low wages because of his want of skill, the defendant may prove by its president that he employed him as a competent and safe engineer. Bobinson v. Fitchburg and Worcester B. B. Co., 1 Gr.ay (Mass.), 92. 1856. 48. Evidence. In actions for injuries com- mitted by immediate force, proof of the for- cible act and the resulting injury is prima facie evidence that the act was willful or negligent. Galpin i>. Chicago and- Northwest- ern B. B. Co., 19 Wis., 604. 1865. 49. — Where the gist of the action is negli- gence it is not error to admit testimony of all surrounding circumstances that may tend to show the degree of care necessary in the case. Pacific B. B. Co. v. Nash, 7 Kans., 280. 1871. 50. — In an action against a railroad cor- poration for damages sustained by the negli- gence of its engineer, his statements as to the accident, made a . few days afterwards, are NEGLIGE2sCE. 551 Explosion of Boiler of Locomotive — Presumption. inadmissible in evidence against the corpora- tion. Bobinaon v. Pitehburg and Worcester S. R. Co., 7 Gray, (Mass.), 93. 1856. 51. Explosion of boiler of locomotive. The mere fact that a boiler had exploded, is prima facie evidence of negligence. Illinois Central JR. JR. Go. v. Phillips. 49 111., 234. 1868 ; Same «. Same, 55 ib., 194. 1870. 52. Gross negligence. Semble, that in law there is no difference between negligence and gross negligence, the latter being nothing more than the former, with the addition of a vituperative epithet. MePheeters i>. Hannibal and St. Joseph B. B. Oo., 45 Mo., 23. 1869. 53. Inference of care. Where evidence is conflicting, as to whether an injured person contributed by negligence to his own injuiy, the jury may, in connection with all the facts and circumstances of the case, infer the absence of fault from the known disposition of men to avoid injury to themselves. Nortli- ern Central B. B. Go. v. State, 31 Md., 357. 1869. 54. — To sustain an action for an injury received by the plaintiff through the defend- ant's negligence, it is not necessary for the plaintiff to prove due care on his part by directly afflrojative evidence, but such care may be inferred from the absence of all ap- pearance of fault. Jlfayo v. Boston and Maine B. B. Go., 104 Mass., 137. 1870. 55. Neglect of injured party after the injury. In an action brought by the plaint- iff for a personal injury received through the negligence of the defendant, the defendant claimed that the injury was originally slight and was aggravated by his neglect to take care of himself and to follow the advice of his physician, and prayed the court to instruct the jury, that if the plaintiff did not regard the advice of his physician, they had a right to infer that the injury was thereby aggrava- ted, and that the plaintiff could recover for nothing after his own imprudence. The court did not so instruct the jury, but directed them that, if they should find a verdict for the plaintiff, he was entitled to recover full com- pensation for all the mental and physical injury which they should find on the evidence /that he had sustained by reason of the defend- ant's negligence. On a motion of the defend- ants for a new trial, it was held that this course was proper. Lawrence v. Sousatonic B. B. Co., 29 Conn., 390. 1860. 56. — The question of negligence on dis- puted facts is for the jury. The rule applied to a case where, among other defenses founded on negligence, it was claimed by defendant that the injury to the arm of plaintiff, which was the subject of the action, was aggravated by the negligence of plaintiff" in omitting remedies which he ought to have applied to relieve himself. Maloy v. JNew York Central B. B. Co., 40 Howard's Pr. (N. Y.), 374. 1870. 57. Nonsuit. Negligence is generally in- ferred from facts and circumstances, which it is the province of the jury to find, and in an action for an injury caused by negligence, a nonsuit, upon the ground of contributoiy neg- ligence, should only be granted, when, giving the plaintiff the benefit of all controverted questions, it is apparent to the court that a verdict in his favor must be set aside. Schier- hold 1). North Beach and Mission B. B. Co., 40 Cal., 447. 1871. 58. Pleas in bar. Where A. and his wife were injured at the same time, in consequence of the insufficiency of a highway, which in- sufficiency was occasioned by the neglect of the defendant; and A. recovered against the town for an injury to himself and carriage, and the town recovered the same of defend- ant, and subsequently A. brought his action against the town and recovered for the injury to his wife, it was lield, in an action by the town against defendant to recover the amount paid A., by reason of the recovery for the in- jvuy to his wife, that the first recovery against defendant, although for the same neglect, was no bar to the second suit. Newbury v. Connect- icut and Paasumpsia Bivers B. B. Co., 25 Vt, 377. 1853. 59. — Each injury constitutes, when the town is legally fixed with the burden, a dis- tinct, complete and independent cause of ac- tion. Ib. 60. Presumption. Negligence on the part of a servant will not be presumed, where the fact of such negligence is not found by the jury or referee before whom the cause was tried. Keegan v. Western B. B. Co., 8 N. Y., 175. 1853. 61. — Negligence cannot be presumed with- out any evidence. Lyndsay v. Connecticut and Pasmmpsic Bivers B. B. Co., 27 Vt. 648. 1855. 62. Trespasser. A person is bound to con- duct himself with reasonable care and pru- 552 NEW PROMISE — NEW TRIALS. Miscellaneous. deuce towards a wrongdoer. The act of the ■wrongdoer will not excuse an injury done to him, unless his wrongful act was a proximate cause of the injury. Proximate cause means negligence at the time the injury happened. Needham v. San Francisco and Sun Jose B. S. Co., 37 Cal., 409. 1869. 63. Two companies using the same track or train. Where a declaration averred that the defendant and the R. & W. R. R. Co. had made a contract and an arrangement, by which the latter company had the right to rim its trains over a section of the defendant's road, and that defendant had a switch and side- track under its exclusive control on said sec- tion, and that by the gross negligence of de- fendant's employes in the management of said switch, a locomotive of the R. & W. R. R. Co. was thrown from the track, and the plaintiff, who was an employ^ of the latter company, and engineer on said engine, was injured. ffeld, that the obligation under which the plaintiff was entitled to recover was one cre- ated by law, irrespective of the contract, and that the averments as to the contract were only material for the purpose of showing that tlie plaintiff w^as rightfully on defendant's rail- way. The duty of defendant was of a general and public character, and for its nonperform- ance any one who might be injured thereby while engaged in the lawful nse of the road, could sustain his action. Sawyer v. Sufland and Burlington B. B. Co., 27 Vt., 370. 1855. 64. — A railroad company is responsible for an injury occasioned by want of proper care and prudence on the part of its servants in the management of a train which is under its ex- clusive care, direction and control, although the train belongs to another company. Fletcher v. Boston and Maine B. B. Co., 1 Allen (Mass.), 9. 1861. 65. — If such injury results from the negli- gence of another railroad company, which has a joint right with the defendant to use the de- fendant's track, under a lease from the defend- ant, and which is accordingly running trains over the defendant's road on its own account, the defendant is not responsible. 76. 66. Warning of danger. A warning of danger to the deceased was but evidence of negligence, and as such for the jury; and where the court charged that knowledge of the danger would be proof of negligence, giv- ing the legal consequences, and leaving the jury to apply the law to the facts, but declined to instruct them that the warning constituted negligence, it was not error. North Pennsyl- vania B. B. Go. V. Boiinson, 44 Penn. St., 175. 1863. NEW PROMISE. I. Reorganization of company. Where the property and franchises of a railroad com- pany have been sold and conveyed under a deed of trust given to secure a debt of the company, and the purchasers reorganize; to prove a new promise by the reorganized com- pany to pay a debt owing by the company as originally organized, there must be shown some action on the part of the directors of the new company from which the promise can be cleai'ly inferred. American C-entral B. B. Co. V. Miles, 53 111., 174. 1869. NEWSPAPERS. See Etisesce. NEW TRIALS. See CoBTs; Eminkht Doium. 1. Abolition of court. After verdict, and before judgment, the court, in which an action was pending, was abolished, and the business transferred to an appellate court, by which the appeal was lost. Held, on motion, that the court had no power to set aside the verdict to give anotlier trial. Gummings v. White Moun- tains B. B. Go., 43 N. H., 114. 1861. 2. Accident and misfortune. Where it distinctly appears that a trial has not been had, by reason of accident, mistake or misfortune, the court will generally grant a review, with- out inquiring into the merits of the conti'o- versy between the parties, if satisfied that a matter of controversy actually exists, which the party claiming the review desires and in- tends to try, and would have tried but for ac- cident, mistake, or misfortune shown. R. S« NEW TRIALS. 553 Assessment of Damages — Evidence. cli. 193. Nashua and Lowell H. H. Go. i). Stimpson, 35 N. H., 386. 1857. 3. Amendment of pleadings. The fact that new counts, wliich vary the form but do not change the cause of action, have been added to the declaration after two new ti'ials have been granted, will not aflFect the opera- tion of the act of 1801, ch. 6, § 59, which pro- vides that not more than two new trials shall be granted to the same party in the same cause at law, or ujDon a trial of an issue of fact in equity. Hast Tennessee and Georgia R. B. Go. V. Hackney, 1 Head (Tenn.), 169. 1858. 4. Appeal. "Where the court below may have granted a new trial upon questions of fact, the decision is not reviewable on appeal. JJjcA^ son v. Broadway and Seventh Avenue M. R. Go., 47 N. Y., 507. 1873. 5. — A sti'onger showing is required to reverse an order granting a new trial than to reverse an order refusing one. This rule applies where the district court has denied the new trial and the general term has granted it. Jenkins v. Ghicago and Northwestern B. R. Co., 33 la., 97. 1871. 6. Assessment of damages. Where in an assessment for damages for the taking of land for railway purposes, it appears that there has been injustice done, through the mistake of the jury, the verdict will be set aside. Gadmus v. Gentral R. R. Go., 3 Vroom (N.J.), 179. 1865. 7. Bill of exceptions. The evidence should all be preserved in the bill of exceptions, in order to justify a claim that the court below erred in refusing to grant a new trial, asked for on the ground that the evidence was in- sufficient to sustain the verdict. Midland Pacific R. R. Go. v. McGartney, 1 Neb., 398, 1870; Same v. Williamson, ib., 406; Same v. Day, ib., 407; Sam^ v. Newman, ib., 408; Me- Goal v. Galena and Ghicago Union R. R. Go., 17 la., 461, 1864. 8. — Only two new trials can be granted, under the statute, to the same party; and where exceptions are taken to the overruling of a motion for a new trial, as a means of reversing points alleged to have been decided erroneously during the trial, the supreme court will not consider the points raised. If such questions are to be presented, they must be set out in bills of exceptions presented during the trial in the court below. Thorn- ton v. West Feliciana B. R. Go., 39 Miss., 143. 1855. 9. Discretion. An order made upon a mo- tion to dismiss an application for a new trial, on the ground that the same has not been prose- cuted with due diligence, is very much in the discretion of the court or judge making it; and unless it is apparent that such discretion has been abused, the order will not be reversed. Hopkins v. Western Pacific B. B. Go., 44 Cal., 389. 1873. 10. Error of law. If a legal charge, per- tinent to the issue, be asked in writing, it should be given to the jury. But if, from all the evidence in the cause, it appears that the verdict is right, and the jury should have found the same if the charge requested had been given, a new trial will not be granted on account of such refusal. Georgia B. B. Go. v. Scott, SI Ga..9i. 1867. 11. Evidence. A new trial will not be granted on the ground that the verdict is against the evidence when the evidence sup- ports the verdict. Toledo, Peoria and Warsaw B.B. Go. V. Firth, GO in, i51. 1871. 12. — A verdict supported by the evidence will not be disturbed. Toledo, Peoria and Warsaw R. B. Go. v. Hogle, 55 111., 313. 1870. 13. — Where the evidence justifies a ver- dict, a case will not be disturbed upon the facts alone. Illinois Gentral R. R. Co. ■». Hays, 19 111., 166, 1857. 14. — A verdict must be clearly against the the weight of the evidence in order to justify the court in setting it aside. Weibb v. Portland and Kennebec R. B. Co., 57 Me., 117. 1869. 15. — A verdict will not be set aside when there is evidence reasonably tending to sus- tain it. Hinkle v. Lake Superior and Missis- sippi B. B. Go., 18 Minn., 397, 1873; Ghicago and Northwestern B. B. Go. v. Williams, 44 111., 176, 1867. 16. — To justify a new trial on the ground that the verdict is against the evidence, the mind should be brought irresistibly to the conclusion that the verdict was not the result of a free, sound, unbiased exercise of judg- ment on the part of the jury, and that mani- fest injustice would result if the verdict were permitted to stand. Bergert and Brother v. Davemport Gity B. B. Go., 34 la., 571. 1873. 17. — If the verdict of the jury is manifest- ly against the weight of tlie evidence, the 554 NEW TRIALS. Excessive Damages — Motion. judgment -will be reversed. Oolnmhus, Chicago and Indiana Central B. S. Co. v. Troeseh, 57 111., 155, 1870 ; Chicago and Alton S. B. Co. «. Purvines, 58 111., 38, 1871. 18. — A verdict which has no evidence to sustain it will be set aside. McNair v. South Carolina B. B. Co., 10 Richardson's Law (So. Car.), 284, 1856; Union Pacific B. B. Co. v. C-onvers, 4 Kans., 206, 1867. 19. — Upon a slight jsreponderance of evi- dence against a verdict, the court will not disturb it. Chicago and Bock Island B. B. Co. V. Crandall, 41 111., 234. 1866. 20. — This court will not disturb the judg- ment of the court below overruling a motion for a new trial where the evidence is conflict- ing. Union Pacific B. B. Co. «. Coldwell, 5 Kans., 82, 1869 ; Donaldson v. Mississippi and Missouri B. B. Co., 18 la., 280, 186,i. 21. — The rule that the supreme court will not disturb a verdict, where the evidence is conflicting, does not apply to district or circuit courts. Such courts should grant new trials whenever they believe that substantial justice has not been done between the parties. Dmoey i>. Chicago and Northwestern B. B. Co., 31 Iowa, 373. 1871. 22. — A new trial will not be granted to enable a party to introduce new evidence which was known to him at the first trial and withheld. Wright «. Central B. B. Co., 21 Ga., 845. 1857. 23. — A new trial will not be granted upon the ground of newly discovered evidence, where such evidence is merely cumulative. Toledo, Wabash and Western B. B. Co. v, Seitz, 53 111., 452. 1870. 24. Excessive damages. In a case where extrinsic circumstances may properly be intro- duced to aid in the construction of a deed, a new trial should be granted when it appears such circumstances were not, fully before the court and jury, and the damages awarded by the jury were excessive. Morris and Essex B. B. Co. •». Bonnell, 5 Vroom, (N. J.), 474. 1871. 25. — When the verdict is set aside on the ground of excessive damage, the court, instead of simply ordering a new trial, will give the plaintitt' the option of reducing the verdict to the sum which the court considers reasonable, and ujjon his remitting the excess, will give him judgment for the residue, and deny the motion for a new trial, and this in actions of tort as well as upon contract. Belknap v. Boa- ton and Maine B. B. Co., 49 N. H., 358. 1870. 26. — Where a verdict of a juiy rests in calculation, and they find excessive damages, a new trial may be granted, if asked for, for such cause, and no remittitur is ofl'ereil. Nutter V. Junction B. B. Co., 13 Ind., 479. 1859. 27. Excusable neglect. One member of a law firm, who had the sole management of a cause on defendant's part after being informed, in New York city, where he had been unavoidably detained by business, that the cause was to be tried during the last week in the term, started promptly for the place of trial, but was prevented from reaching it in time by a disarrangement of the trains ; and his partner, who was not familiar with the case, after objecting to hearing on the ground that the term was legally at an end, took no part in the trial; and a verdict was found against the defendant. Held, that this was a case of " excusable " neglect under the statute, and an order refusing a new trial was revers- ed. Stoppelfeldt v. Milwaukee, Manitowoc and Qreen Bay B. B. Co., 29 Wis., 688. 1872'. 28. Interest of juryman. It is no ground for a new trial that a juryman had an interest in the case unknown to the party. Josey v. Wilmington and Manchester B. B. Co., 13 Richardson's Law, (So. Car.), 134. 1859. 29. — A party, seeking a new trial on the ground of interest in a juror, should negative his knowledge of such interest by aflidavit. Jameson v. Androscoggin B. B. Co., 52 Maine, 412. 18S4 ; Merrill v. Same, ib ; White v. Same, ib. 30. Jurisdiction. That a court had no ju- risdiction of the defendant is not a ground for a new trial. North Missouri B. B. Co. v. Akers, 4 Kans., 453. 1868. 31. Misconduct of attorney. The action of the court in granting a new trial, on the ground of misconduct of an attorney in pre- senting his case to the jury, will not be dis- turbed, unless an abuse of discretion is clearly shown. Boardman v. Chicago and Northwest- em B. B. Co., 33 la., 391. 1871. 32. Motion. A statement on motion for a new trial must contain a specification of the particular errors upon which the party mov- ing for a new trial will rely; if one of the grounds is that the evidence is insuflScient, it NITRO GLYCERINE — KONSUIT. 555 Demurrer — Evidence. must specify in what particulars, or it will' be disregarded by the court. Butterfield'o. Central Pacific li. S. Co., 37 Cal., 381. 1869. 33. — Tlie errors relied upon must be con- tained in the statement. An assignment of er- rors appended to the transcrip, is insufficient. n. 34. — Errors in the refusal or admission of testimony, or in refusing or' giving instruc- tions, will be deemed waived, unless complaint thereof be made in the motion for a new trial. Midland Pacific R. R. Co. v. McCartney, 1 Neb., 398, 1870; Same v. Williainson, ib., 406; Same ®, Da;/, ib., 407 ; Same v. Newman, ib., 408. 35. — Where exceptions are properly saved in the court of common pleas, errors of such court may be alleged in the district court with- out a motion for a new trial being filed. Barp ®. Pittsburgh, Fort Wayne and Chicago R. R. Co., 12 Ohio St., 621. 1861. 36. — The truth of facts set forth in an affi- davit in support of a motion for a new trial, may be controverted by the adverse party. Newcastle and Richmond R. R. Co. «. Chambers, 6 Ind., 346. 1855. 37. — Unless the judge of the superior court is of opinion that a verdict is against the evi- dence, he ought not, in the exercise of the dis- cretion given him by the statute, to allow a motion for a new trial for a verdict against evidence; and as a matter of practice, it will be understood that the allowance of such a motion imports the judge's dissatisfaction with the verdict, whether the motion states such dissatisfaction or not. Daley v. Norwich and Worcester R. R. Co., 30 Conn., 591. 1858. NITRO-GLYCERINE. See CONSTBUCTION OF Kailwatb. NONSUIT. See NBSuaENoB ; Whit or Ebbob. 1. Demurrer. Where a demurrer to a pe- tition is improperly sustained in part and over- ruled in part, and the court improperly strikes out a portion of the petition, and the plaintiff takes a nonsuit, he will be entitled to have the nonsuit set aside. Leimer v. Pacific R. R. Co., 26 Mo., 26. 1857. 2. Evidence. A nonsuit should not be or- dered where there is evidence tending to es- tablish the plaintiff's cause of action. Mul- downey v. Illinois Central R. R. Co., 33 la.j 176, 1871 ; Bryan «. Southwestern R. R. Co., 37 Ga., 36, 1867. 3. — Where the defense to an action for wages was, that the defendant, with the plaint- iff's knowledge and consent, had made an ar- rangement with third parties by which it was liable to them for defendant's board, the court charged the jury "that there was no satisfac- tory evidence in the case that any such ar- rangement had been made," and that " under the law, no liability existed on the part of the company to pay " defendant's board bill. Meld, that this was equivalent to taking the question of fact from the jury; and there be- ing evidence from which the jury might have found the fact differently, the judgment for the plaintiff was reversed. Hunkins v. Milwau- kee and St. Paul R. R. Co., 30 Wis., 559. 1873. 4. — In actions for injuries caused by neg- ligence, it is only where there is an entire absence of evidence tending to establish the cause, or where the negligence of the party injui'ed is affirmatively and clearly proved by the plaintiff, so as to admit of no doubt or controversy, that a nonsuit may properly be ordered. Langhoff v. Milwaukee and Prairie du Chien R. R. Co., 19 Wis., 489, 1865; Imhoff V. Chicago and Milwaukee R. R. Co., 32 ib., 682, 1868. 5. — In case of a conflict of plaintiff's evi- dence. The court will, on motion for a nonsuit, credit that part which tends to sustain his ac- tion. Ib. 6. — If on the whole of plaintiff 's evidence being submitted to the jury, they would not be justified in finding a verdict against the defendant, a nonsuit should be entered. Act March 11, 1836, § 7. Pittsburgh and Steubcn- ville R. R. Co. v. Gazzam, 32 Penn. St., 340. 1858. 7. — Where the facts are not controverted, a nonsuit may be properly granted if a ver- dict in favor of the plaintiff would "be set aside as against the evidence. Brown v. European and North American R. R. Co., 58 Me., 384. 1870. 556 NOTARY PUBLIC — NUISANCE. Miscellaneous. 8. Judgment. Where au action has been pending more than three years, and plaintiflFs have had ample time to procure testimony to cstahlish their demand, but have not done so ; and, on motion for a new trial, it was not urged that there was surprise or any expecta- tion of obtaining any further evidence, a final judgment, and not one of nonsuit, will be ren- dered in favor of defendant. New Orleans and Carrollton S. S. Co. ■». Chaney, 3 La. An., 262. 1848. 9. Plaintiff may take nonsuit. At anytime before trial, a plaintiff may take a voluntary nonsuit, so far as his claim is concerned. And when he takes such nonsuit, he is liable to pay all costs. Burlington and Missouri B. S. Co. V. Safer, 1 la., 421. 1855. NOTARY PUBLIC. 1. Acknowledgments. Outside of the coun- ty in ■which a notary resides, his official char- acter in the acknowledgment of a deed must be attested by the proper county clerk. Utiea and Black Siver B. R. Co. v. Stewart, 33 How- ai-d'sPr (N. Y.),812. 1867. NOTICE. See Jurisdiction; Mortgage. 1. Possession. Staking out the line of a railroad and setting posts for fences is not such possession as will amount to notice to purchasers or incumbrancers of a grant of a right of way to a railway company. Merritt V. Northm-nB. B. Co., 13 Barbour (N. Y.), 605. 1862. NUISANCE. See BiUDOEs; Eminbnt Domain; Highwats; Ik- junctions; Fires. 1 . Arm of the sea. Where a bill in equity was brought by an individual against a rail- way company, alleging that the defendant was engag'id in extending its road across a certain cove, which is an ai'ra of the sea, in which the tide ebbs and flows, communicating with the ocean through a navigable river; but the waters of the cove are navigable, and from lime immemorial have been used and enjoyed as such ; and that the plaintiff, and all other persons, have been accustomed to pass and re- pass, at their pleasure, up and down the cove, into the river; to the ocean or elsewhere, in boats, schooners or other vessels, without mo- lestation or obstruction; and that by means of the road so extendod, the navigation of the cove will be greatly obstructed and rendered almost wholly useless ; it was held, that Hie case stated by the bill was that of a public nuisance. O'Brien ». Norwich and Worcester B. B. Co., 17 Conn., 372. 1845. 2. — Where the plaintiff in such bill stated also, that he resided near the head of the cove ; that the right to navigate the cove was a com- mon right, the enjoyment of which was valu- able to him, in respect to trade and commerce, the building and launching of vessels, and for agricultural purposes and fisheries; and that he was in danger of being deprived of his lawful right to navigate the cove; it was held, that the injury complained of was not one pe- culiar to the plaintiff, but common to him and all others having occasion to use the cove for such purposes. lb. 3. Backwater. A person who has a judg- ment against another for consequential dam- ages to his lands, resulting from the erection of a public work, not touching his said lands, which was carefully and skillfully erected, in accordance with authority duly confen-ed by the state, can not have such work declared a nuisance, subject to abatement. New Albany and Salem B. B. Co. «. Higman, 18 Ind., 77. 1862. 4. Cattle pens. Where a railroad company has erected cattle pens upon its right of way, for purposes of shipping, it should exercise such a supervision over them as will insure their cleanliness, so that they will not become a nuisance. Illinois Central B. B. Co. v. Grabill, 50 111., 241. 1869. 5. — In estimating the damages resulting from a nuisance caused by cattle pens, it is proper to consider the depreciation in the value of the plaintiff's property, occasioned thereby, and the injury and annoyance to the plaintiff while occupying the premises. lb. 6. — The noise made by the cattle and stock NUISANCE. 557 Damages— Highways and Streets. bands, being beyond the control of the com- pany, is not a gi'ound for damages against the company. 8wrm o. (Same, ib., 248. 1869. 7. Damages. lu a suit for damages for creating a nuisance in the vicinity of a dwell- ing house, the difference between its rental value during the existence of the nuisance and prior to it is not excessive. Illinoii Central B. R. Oo. v. Gh-abiil, 50 111., 248. 1869. 8.^— The decisions in actions for damages resulting from nuisances collated. ConUocton Stone Road v. Buffalo, New York and Erie B. B. Co., 51 N. Y., 573. 1873. 9. — In case for a nuisance, if the act done is necessarily injurious, and is of a permanent nature, the party injured may at once recover his damages for the whole injury. Troy, Town of, v. OJmMre R. B. Co., 3 Foster (N. H.), 83. 1851. 10. — If the act done is not necessarily in- jurious, or if it is contingent whether further injury may arise, the plaintiff can recover damages only to the date of the writ. Ib. 11. — No person can maintain an action for nuisance unless he has sustained special damage from it. Hatch v. Vermont Central B. iJ. Co., 28 Vt., 142. 1855. 12. Equity. Where damages will compen- sate either the benefit derived, or the loss suf- fered from a nuisance, equity will not inter- fere. Qrey v. Ohio and Pennsylvania B. B. Co., 1 Grant's Cases (Penn.), 413i 1856. 13. — Although a court of equity has juris- diction in cases of public nuisance, it ought not to interfere when the desired end can be obtained in a court of law. Attorney General V. New Jersey B.B.Co., 2 Green's Ch. (JM. J.), 136, 1834; Morris and Essex B.B. Co. v. Brad- den, 5 C. E. Green's Ch. (N. J.), 530, 1869. 14. — The extent of an injury resulting from a nuisance cannot be ascertained with precision. It is permanent; consequently suits at law for relief must be endless, and adequate relief can only be obtained by in- junction. Works V. Junction B. B. Co., 5 Mc- Lean, 425. 1?53. 15. — A private person cannot apply to a court of chancery to prevent or remove a pub- lic nuisance which does him no special in- jury. But he may, if the nuisance is imme- diately injurious to himself, although it may also affect the public. Ib. 16. — A public nuisance may be abated by a proceeding in equity brought by a private party, who has suffered special damage. Mis- sissippi and Missouri B. B. Co. v. Ward, 2 Black, 485. 1862. 17. — But it is necessary in such bill for the plaintiff to show that he has sustained and is still sustaining damage by the nuisance. Ib. 18. — But where the bill is filed in a federal court, it is not necessary to show that the amount of the damage is equal to the sum re- quired to give said court jurisdiction. The jurisdiction is tested by the value of the ob- ject to be gained, and that object is the re- moval of the nuisance. Ib. 19. — The private party, though nominally suing on his own account, acts rather as a public prosecutor on behalf of all who may be injured. Ib. 20. — It is not necessary that he should join his partners in business as plaintiffs. Ib. 21 . — Such bill is a local suit, and must be brought in the district where the nuisance is situated. Ib. 22. — Where the nuisance is caused by sev- eral persons or corporations, those not within the jurisdiction of the court need not be joined as defendants. Ib. 23. — In a bill for abatement of a nuisance brought in the district court of Iowa, that court cannot exercise local jurisdiction be- yond what might have been exercised by a state court. Ib. 24. — The nuisance, being a bridge over the Mississippi River, the district court has no power to abate it beyond the state line. Ib. 25. — If the removal of that part of the bridge within the jurisdiction of the court would not improve the navigation of the river, so far as plaintiff is concerned, he is not en- titled to a decree in his favor. Ib. 26. — In such case, the same rule as to juris- diction applies as upon an indictment. Ib. 27. — Where a bridge erected for public purposes over a navigable stream leaves a rea- sonable space for the passage of vessels, it is not indictable. Ib. 28. — In a proceeding by bill in equity to abate a nuisance, the rule of criminal law, that the defendant is entitled to the benefit of all reasonable doubts, applies. Ib. 29. Highways and streets. Railway com- panies may be indicted and fined for obstruct- 558 NUISANCE. Indii^tment — Quo Warranto. ing a public highway contrary to the powers granted in their charters. Louisville and Nash- ville JR. R. Co. V. State, 3 Head (Tenn.), 533. 1859. 30. — An incorporated railway company is indictable for a nuisance for erecting and con- tinuing a building, and placing and leaving its cars in the public highway. State v. Morris and Essex R. R. Co., 3 Zabriskie (N. J.), 360. 1853. 31. — A railway, constructed over a high- way in such a manner as to obstruct public travel, is liable to indictment as a nuisance, notwithstanding St. 1849, ch. 333, § 4, confer- ring on county commissioners " the original jurisdiction of all questions touching obstruc- tions to turnpikes, highways or town ways, caused by the construction or operation of railroads." Commonwealth v. Nashua and Lowell R. R. Co., 2 Gray (Mass.), 54. 1854. 32. — The South Carolina Canal and R. R. Co. is not authorized to use steam in propel- ling its cars on that part of its line which ex- tends from Line street to Mary street on Charles- ton Neck. A charter to construct a railway does not necessarily authorize the use of steam in its operation. And when the use of such motive power becomes a nuisance on any por- tion of its line, the parties operating the road are liable to indictment. State v. Tupper et al., Dudley (So. Car.), 135. 1838. 33. Indictment. An indictment for nui- sance described the venue as in Cecil county. In the indictment, the crime was alleged to have been committed in the "county afore- said," the county of Cecil being the only countj' named in the indictment. Seld, that the Indictment was suflBcient. Philadelphia, Wilmington, etc., R. R. Co. v. State, 20 Md., 157. 1863. 34. — The suit to recover a penalty provided for by section 25 of ch. 102, 1 R. S., 1853, is a civil suit and is no bar to a criminal prose- cution. Indiana, Central R. R. Co. v. Potts, 7 Ind., 681. 1856. 35 Lease. Although a corporation caus- ing or continuing a nuisance had leased tlie premises on which the same was evected to another, and given possession prior to the •happening of the injury complained of, it is liable for the damages sustained. Conhocion Stone Co. o. Bvffalo, New York and Brie R. R. Co., 52 Barbour (N. Y.), 390. 1868. 36. Municipal corporations. The power to abate a nuisance in a town or city is vested in the town or city government, and is not within the jurisdiction of a justice of the peace. South Carolina R. R. Co. ■». Mis, 40 Ga., 87. 1869. 37. — An action brought to recover money expended from the treasury of a city or town by its board of health to remove a nuisance, may be maintained in the name of the city or town. Salem v. Eastern R. R. Co., 98 Mass., 431. 1868. 38. Pleading. The suflSciency of the plead- ings in a particular case — determined. Ohio and Mississippi R. R. Co. v. Simon, 40 Ind., 378. 1873. 39. — When a declaration charges a rail- way company with obstructing a public street adjoining the residence of plaintiff, and there- by preventing a free jjassage to and from his dwelling house, that the company kept up dangerous fires, generated and deposited about his premises noxious vapors and smoke, jarred and disjointed his house, made his residence unwholesome and uncomfortable, and that the railroad company did tliese things unlawfully and with intent to injure the plaintiff, a good cause of action is shown. Pan-ott v. Cincin- nati, Hamilton and Dayton R. R. Co., 3 Ohio St., 330. 1854. 40. Ponds and surface water. If an order of a board of healih, under the Gen. Sts., ch. 36, § 8, to a railway company for the removal of a nuisance, recites that the company, by filling up parts of a ci-rtain pond without sup- plying suitable culverts or other means of drainage, has created and is maintaining a nuisance at said pond, it sufficiently informs the company of the nature and locality of tlie nuisance to be removed. Salem i). Eastern R. R. Co., 98 Mass., 431. 1868. 41. — The formation of an embankment upon the land of a railway company by debris, so that the water is prevented from flowing in its natural course, and is diverted upon the land of another person, is a nuisance. Citif cinnati, Hamilton, etc. R. R. Co. v. Ahr, 3 Cin- cinnati Superior Ct. Rep., 504. 1873. 42. Quo warranto. The remedy by an in- formation in the nature of a quo warranto against a corporation, as provided by the stat- ute, does not prevent a proceeding in equity in case of a private nuisance. Fall Rioer OBSTRUCTING RAILWAY TRACKS — OFFICERS. 559 Miscellaneous. Iron Worlcs Co. v. Old Colony and fall River R. R. Co., 5 Allen (Mass.), 321. 1863. 43. Squares. The defendant in this case, having executed a covenant to the city of Rochester, not to erect any buildings uiaon the square, nor to suffer any trains of cars to stand or remain thereon ; Mid, that the incon- veniences affecting the rights of the plaintiffs, by running the defendant's road on the side of the square — such as the obstruction of light, air, prospect, and of a public prome- nade, etc. — could not be considered such an- noyance as to amount to a private nuisance. Anderson «. Rochester, Loekport and Niagara I'alls R. R. Co., 9 Howard's Pr. (N. T.), 553. 1854. OBSTRUCTING RAILWAY TRACKS. 1. Evidence. Upon an indictment for mali- ciously placing obstructions upon the tracis of a railroad, evidence showing that the pris- oner placed on the track other obstructions than those mentioned in the indictment is competent, provided the acts are so connected that they may be regarded as a part of the same transaction. State v. Wentworth, 37 N. H., 19*5. 1858. 2. Former acqnittal. A former acquittal upon an indictment on the Gen. Sts., ch. 63, § 107, for obstructing an engine passing upon a railroad by putting a rail across the track, will not bar the prosecution of another indict- ment against the same defendant, on § 108, for putting the rail across the track with in- tent to obstruct the passage of the engine. Commonwealth v. Bakeman. 105 Mass., 53. 1870. 3. Indictment. An 'indictment under the Gen. Sts., ch. 63, § 108, charging that the de- fendant, on one day, intending to obstruct an engine passing upon a railroad, did on another day put a rail across the track, is bad for want of averment that the act charged was done with a criminal intent, or the intent charged was accompanied by any act. lb. 4. — The indictment need not aver that the road was a corporation, or carrier, or a way, or road used for travel. State v. Wentworth, 37 N. H., 196. 1858. 5. — An averment that the road obstructed was the B. and M. R. R. is not an averment of property, but merely of description. lb. 6. — In such an indictment, it is not neces- sary to set out the names of the persons whose lives were imperiled by the act of the defend- ant, n. 7. Intent. On the trial of an indictment under the statute, for placing obstructions upon a railroad, with intent to endanger the safety of persona conveyed on such road, the defendant has no ground of exception to a ruling that if he did the act, and the ordinary and usual consequences of so doing would be to cause such danger, it is competent for the jury to infer that he did it with such intent, even if he designed to injure no particular person. Commonwealth ». Bake- man, 105 Mass., 53. 1870. ^. Owner of land. A breach of contract by which a railroad company has secured the right of way over certain lauds, does not justify the owner in placing obstructions on the track of the railroad where it crosses his land. State v' HessenJcamp, 17 la., 25. 1864. OFFER TO COMPROMISE. 1. Evidence. It is a question of law for the court to decide, and not of fact for the jury, whether an offer of a certain sum for land was by way of compromise, and, there- fore, not competent testimony. Da/cis v. Charles River Branch R. R. Co., 11 Gushing (Mass.), 506. 1853. OFFICERS. 'See CoMPEJfs ATioN ; Dikbctors; Election of Cor- POKATE Ofpiceks; Opficiai. Bonds. 1. Action to test rights of individuals to corporate offices. Persons who are not the de facto officers of a corporation cannot main- tain an action in the name of the company, without authority of the corporation, for the purpose of indirectly trying the title to the offices by means of an action ostensibly brought to enforce an obligation in favor of the company, Hudson River West Shore R. R. Co. V. Kay, 14 Abbott's Pr., N. S. (N. Y.), 191. 1873. 2. Assignment. Where the board of di- rectors of a railway company have ordered 560 OFFICERS. De Facto OflBcers — Ratification. the assignment of a claim, which is done by the president and secretary, it will be rep- sumed, as to third persons, that they are the proper officers to make the assignment. Car- roll V. Cone, 40 Barbour (N. Y.), 220, 1862 ; see 41 N. Y, 216. 3. De facto officers. There can be no such officer as an officer de facto, as against the peo- ple, in an action at the suit of the people, to try the title of office. People v. Albany cmd Sus- quehanna B. S. Go., 55 Barbour (N. Y.), 344, 1869; Same v. Same, 38 Howard's Pr. (N. Y.), 238, 1869; 7 Abbott's Pr., N. S. (N. Y.), 265, 1869. 4. — To constitute a person an officer de fac- to, there must be color for the claim, and a col- orable title t6 the office, liochester and Gene- see Valley R. B. Co. v. Clarke National Bank, 60 Barbour (N. Y.), 234 1871. 5. Eyidence of authority. "Where individ- uals, as president and secretary of a railwaj' company, acting for the company, contracted with the plaintiff for the construction of de- pot buildings for the company, and assigned to him, in part payment, an agreement between the company and the defendant; and the com- pany, after the buildings were erected, occu- pied the same, thereby recognizing the author- ity of their officers ; held, that the official char- acter of those persons and their authority to assign the agreement, in behalf of the com- pany, were sufficiently proved. Kennedy ii. Cotton, 28 Barbour (N. Y.), 59. 1858. 6. Powers of officers. The acting president of a railway company being empowered to sell certain iron, it was competent for him to en- gage the services of a broker in finding a pur- chaser and effecting the sale. Such an act, in absence of proof to the contrary, was within the scope of his agency, as a reasonable and proper means of accomplishing the business intrusted to his charge. NortTiem Central B. B. Co. V. Bastian, 15 Md., 494. 1859. 7. — Under the principles which usually govern such corporations, neither a director nor vice president of a railway company is em- powered to bind it by his acts, such as appoint- ing agents to protect its lands, or to sell the lands or timber. Chicago and Norihioestem B. B. Go. «. James, 22 Wis., 194. 1867. 8. — A president of a railway company ha,s no authority merely by virtue of his office to make a sale of railroad ties belonging to the company. Waheortli County Bank v. Furmers'' Loan and Trust Co., 14 Wis., 325. 1861. 9. — Nor would he be permitted to make such sale by virtue of a previous resolution of the board of directors, appointing him the fis- cal agent of the company, and authorizing him " to purchase such equipments for the road as the board might direct, to purchase all neces- sary materials for the car shops, and to con- tjact for all necessary transportation by the company." lb. 10. — Where the president and vice presi- dent of a railway company were authorized jointly to sell and dispose of the property of the company in payment of its debts, and the president sold to a bank to which it was indebted, with the assent of the vice presi- dent, who was also president of the bank and acted for it in making the purchase, a quanti- ty of railroad ties in part payment of the debt, it was held, that such assent of the vice presi- dent was not a due execution of the power, and that he could not act as agent both for the bank and the railroad company in making such sale, and that it stood as if made by the presi dent alone. Walworth County Bank v. Farm ers' Loan and Trust Co., 16 Wis., 629. 1863. 11. — If the fact of such sale had been com- municated to the board of directors, who had authority to manage the affairs of the com- pany, and wag openly talked of in one of their meetings, and they did nothing to disaffirm it, this would be deemed a ratification of the sale. lb. 12.^- Neither the charter nor by-laws of the C. & P. H. R. R. Co., conferred any author- ity upon the cashier to release one debtor by substituting another. ConCrs of Clinton and Port Hudson B. B. Co. v. Keman, 10 Robinson (La.), 174, 176. 1845. 1 3. Ratiflcation. The president of a rail- way company was allowed for three years to purchase locomotives, giving bills for them purporting to bind the companj^, and to run them upon the road, which he managed in his discretion. Afterwards, the directors resumed the charge of the road and of the property thus obtained, and for several years, though they did not settle, did not question the accounts rendered by the president of these transactions. This acquiescence is such a ratification as to be evidence of the president's original author- ity to bind the corporation by bills given for OFFICIAL BONDS. 561 Acceptance of Bond — Station Agent. the locomotives. Oleott v. Tioga S. B. Co., 37 N. Y., 546, 1863 ; Same v. Same, 40 Barbour (N.Y), 179. 1862. 14. Suspension. An oflScer of a corpora- tion should not be suspended from exercising his office, except upon clear and positive proof. Bamaey v. Erie B. B. Oo., 38 Howard's Pr. (N. Y.), 193. 1869. OFFICIAL BONDS. 1. Acceptance of bond. The formal vote of a corporation accepting its treasurer's bond needs to be shown, in order to entitle it to maintain an action thereon. Lexington and West Cambridge B. B. Oo. ■». Elwell, 8 Allen (Mass.), 371. 1864. 2. Estoppel. A corporation is not estopped from maintaining an action upon its treas- urer's bond by having accepted a report of an auditing committee who had approved his ac- counts, nor by making a report founded there- on to the legislature. lb. 3. Evidence. The indorsement by the treasurer of a corporation upon notes signed by himself, and running to the corporation, is sufficient evidence to render the sureties upon his bond liable for the amount indorsed, as for moneys received by him in his official capacity. lb. 4. Freight agent. The sureties on a gen- eral freight agent's bond are not liable for a deficit in his accounts, arising from the default of his subordinates, under a general clause in the bond that " such agent shall well and ti-uly perform and execute the duties of freight agent, and shall render a just and true account of all moneys, goods and chattels, which shall come into his charge or possession," where the subordinates are appointed by the company, although appointed with the approval of the general agent, and acting under his direction. Chicago and Alton B. B. Co. v. Eiggins, 58 111., 138. 1871. 5. Liability of sureties. The sureties upon the bond of the treasurer of a railroad com- pany, the condition of which provided for the faithful discharge of the duties of the office " during his continuance in office during the present year, and for such further periods as he may from time to time be elected to said 86 office," were held not liable for defaults which occurred after an omission to reelect him at a regular meeting for that purpose, and after such further time as might be considered riJa- sonably sufficient for the election and qualifi- cation of his successor, although he continued to act as treasurer, and was reelected at the next regular meeting thereafter ; but they were not discharged from their liability by a vote of the corporation postponing for five weeks the time of the regular meeting for the elec- tion of officers, and the consequent postpone- ment of an election for that period, nor by the corporation's assuming the entire manage- ment of the railroad, after having leased it to another corporation. Lexington and West Cambridge B. B. Co. v. Elwell, 8 Allen (Mass.), 871. 1864. 6. — Mere forbearance by the creditors to the principal, however prejudicial to the surety, will not discharge the surety. Pitts- burgh, Ft. Wayne and Chicago B. B. Co. v. Schaeffer, 59 Penn. St., 350. 1868. 7. — The same rule applies to sureties for officers of corporations. lb. 8. — The rules of a company required from the cashier monthly reports and payments; his bond was conditioned that he should faith- fully discharge his duties as required by the rules, " a copy of which he acknowledged to have received;" the cashier neglected to ac- count and pay over for six months, when he was dismissed, and the sureties were not noti- fied of his default for three months afterwards. Held, that they were not discharged. lb. 9. Pleading and practice. Where an action was brought upon the bond of a railroad offi- cial, dated in 1857, and it was alleged in the declaration that the bond had been broken by the failure of the official to account before and up to the time of his death, which it was al- leged took place in 1868. And on the calling of the case, tlie defendant moved to dismiss the case, because the affidavit was not filed as to the payment of the taxes. Held, that it did not appear that the debt sued on was contract- ed or implied before the 1st of June, 1865 Simne v. Southwestern B. B. Co., 43 Ga., 380 1871. 10. Station agent. A bond to the Balti more and Ohio R. R. Co., in the penalty of $3,000, recited that the principal had been "appointed by the said company, as ticket 562 ORDERS — PARENT AND CHILD. Miscellaneous. , and freight agent, at EUicott's Mills," and was conditioned for the faithful performance of the duties of such ofl5ce so long as he should hold the same. At the date and deliv- ery of the bond, EUicott's Mills was a second class station, but the company subsequently made it a first class station. At first class stations a greater amount of freight is paid than at second class stations, but the duties of the ticket and freight agent are the same at both, viz.: to receive all sums payable at his station, both for freight and passengers. Seld, that the change in the regulations of the com- pany, by which this was made a first class station, did not discharge the sureties on this bond. Strawbridge v. Baltimore and Ohio S. B. Co., 14 Md., 360. 1859. 11. Time of default. Where the treasurer of a corporation has appropriated to his own use sums of money received from a certain source during the time covered by his official bond, and other sums received from the same source after the bond has expired, and he has afterwards entered upon the books a sum as received from that source, and such sum was not in fact received at the date of the entry, and there is nothing to show when the same, or the items of which it is composed should have been entered, it is proper, in an action upon the bond, to apply one half of it to the time covered by the bond. Lexington and West Cambridge M. R. Co. v. Elwell, 8 Allen (Mass.), 371. 1864. ORDERS. 1. Demand. "Where an order is drawn by the secretary of the company upon the treas- urer thereof for a sum of money actually due from the corporation to the payee, it is not necessary to make a demand before bringing suit upon it. Indi(ma and Illinois Central B. S. Co. V. Vomit, 20 Ind., 6. 1863. ORDINANCES. See Etidbnob. ORGANIZATION OF CORPORATION. See Chabteb; Sdbscriptions by cities and towns; Subscriptions by counxieb ; StrBscMPTioN& by in- DITIDrALS. 1. The existence of a railroad corporation, and the right to make an appropriation of land for its roadway, under the statute author- izing and regulating such corporations, passed May 1st, 1852, depend on the legal validity of the certificate and public record of its organ- ization. Atlantic and Ohio R. R. Co. v. Sulli- vant, 5 Ohio St., 376. 1855. OVERRULED CASES. See Table at end ov this volume. PARENT AND CHILD. See Injuries to Employes; iNtTURiEs to Fassen* gers ; Injuries to Persons on the track. 1. Damages. The plaintiff's son, a boy of fourteen, while riding in defendant's cars, had both his legs broken by the upsetting of a car. The accident was caused by the neglect of a servant of the company. Meld, that the jury might consider not only the expense of nurs- ing, medical attendance, and loss of service both present and future, but they might also consider the plaintiff's loss in business while attending his son during his sickness. Slack v Oatrollton R. R. Co., 10 La. An., 33. 1855. 2. — Under Art. 1928, Civil Code, the jury is not confined to the actual pecuniary loss in such cases. lb. 3. — But the shock to the feelings of the father cannot be considered in estimating the damages. lb. 4. Evidence. The deceased was on his way to consummate an arrangement to go as a substitute for a drafted man, with the expressed intention of giving his bounty to his parents Held, that these facts were proper evidence oa the question of the continuaace of the family relation. Pennsylvania R. R. Co. v. Adams 55 Penn. St., 499. 1867. PAKTIES TO ACTIONS. 563 Miscellaneous. 5. — The rule is that if there be a reason- able expectation of pecuniary advantage from a person bearing such relation, it will sustain the action. lb: 6. Injuries to child. Where a father sues for damages resulting from the injury of his child, he can only recover compensatory dam- ages ; to be measured by the loss of the child's services, and his expenses in nursing and cur- ing him; be cannot recover for his lacerated feelings or his disappointed hopes. Pennsyl- mnia R. B. Go. v. Kdley, 31 Penn. St., 373. 1858. 7. — The loss of limb and personal suflfer- ings of the child are a subject of an action by the child himself, and should not enter into a computation of the father's damages. lb. 8. — It is error in such an action to instruct the jury that " there is no absolute measure of damages, and that they might give such dam- ages as they believed to be right, to compen- sate the plaintiff for the loss and injury sus- stained." lb. 9. Mothers. An action by a mother may be maintained where the son is above age, if the family relation existed between them at time of his death, and there was reasonable ground for expecting pecuniary advantage from the continuance of the relation. Pmn- sylmnia R. R. Co. v. Keller, 67 Penn. St., 300. 1871. 10. — The evidence must show that she has sustained pecuniary loss by his death, but it is not necessary that the precise amount of dam - ages in dollars and cents should be shown lb. 1 1. — The sound sense of the jury must as- certain the pecuniary value from the evidence in the case as best they may. lb. 1 2. — At law, a mother has no implied right to the services of her minor son, she not being bound for his maintenance. Fair- mount and Arch Street R R. Co. v. Stutler, 54 Penn. St., 375. 1867. 13. — The relation of mistress and servant can be constituted between them only as it may be done between strangers in blood, ex- cept that less evidence might establish it. 76. 14. — The mother's right of action cannot be rested on her liability for his support under the poor laws. lb. 1 5. — For torts springing from contract •which consist in a mere omission of a contract duty, no legal remedy exists except by an ac- tion on the case, which must be by the party injured, and cannot be by the master. lb. 16. — The contracts of a minor are limited to his necessities and advantages, and cannot enure to the benefit of another. lb. 17. — Where a minor, having no father, was a passenger on a railway, and was injured by the negligence of the company's servants, and was nursed, supported and medical attendance supplied, by the mother, Jteld, that the con- tract to carry safely was with the minor; that the mother was a stranger to it, and could not recover. lb. 18. — A mother may recover damages for injuries accruing to her infant son by reason of negligence of a railway company. Stetler V. Railroad Co., 6 Philadelphia Rep. (Penn.), 178. 1866. 19. Statute. The words "parents" and " children," in the act of April 26, 1855, relat- ing to actions for personal injuries by negli- gence, are used to indicate the family relation in point of fact as the foundation of the right of action, without regard to age. Pennsyl- vania R. R. Co. ». Adams, 55 Penn. St., 499. 1867. 20. — Under age, the relation is presumed to exist until the contrary appears ; over age it must be shown to exist. lb. PARTIES TO ACTIONS. SeeAcTioss; Husband and 'Wipe; Paktition; Fleadinqs. 1 . Agents. Where one has deposited secur- ities with agents, who have, in violation of their trust, disposed of them in different trans- actions to different parties, such various trans- ferees and agents cannot be joined in one and the same action brought for relief by the owner. Lexington and Big Sandy R. R. Co. v. Goodman, 2o Barbour (N. Y.), 469, 1857; See Same v. Same, 15 Howard's Pr. (N. T.), 85, 1857; 5 Abbott's Pr. (N. T.), 493, 1857. 2. Annulling corporation. A corporation being a defendant to a suit in equity, which seeks to have it declared null, the holders of its stock are not proper parties to defend the suit. Washington, Alexandria, etc. R. R. Co. 564 PAETIES TO ACTIONS. Attorney — Real Party in Interest. V. Alexandria, etc. B. B. Co., 19 Grattan (Va.), 592. 1870. 3. — In sucli a suit the stockholders claim- ing that if the corporation is annulled, they have equitable interests in the property, may be admitted as parties defendants to protect their interests. lb. 4. Attorney. An attorney, who is to re- ceive a contingent fee out of the amount of the recovery, is not a necessary parly plaintiff. McDonald v. Clticago and Northwestern B. B. Co., 26 Iowa, 124. 1868. 5. Bills ami notes. An action was brought by A. against B. upon a promissory note. C, upon his own application, and upon motion of B., was made a party defendant, and filed his answer, alleging that the note was given by B. to A., solely for the accommodation of 0., and for the balance of the price charged by A. for making certainrepairsupon a steam engine for C. ; that the materials used in such repairs were defective, and the work was not skillfully done, and that such work and ma- terials were worth no more than the money already paid ; that 0. had no opportunity to examine such work and materials before, etc. B. adopted the answer filed by 0. Held, that as C. disputed the consideration of the note, B. had a right to notify him to appear and de- fend the act'on. Sinex v. Toledo, Logansport and Burlington, S. B. Co., 27 Ind., 365. 1866. 6. — Under the plea of an entire failure of consideration, the defendant was entitled to the benefit of such evidence as he could pro- duce, showing a partial want or failure of consideration. 7ft. 7. — If the court erred in making C. a party defendant, the error was not available to the plaintiff, as he was not prejudiced. Tb. 8. Carriage of goods. A written contract for the transportation of goods, entered into by the real owner of the property in the name of those from whom he purchased — they hav- ing been the original shippers by another line, from which the defendants received them, and required by the defendants to be thus made in the name of such original shippers — may be sued upon by said real owner of the property in their names. Siason ». Cleveland and Toledo B. B. Co., 14 Mich., 489. 1866. 9. — The consignors and owners of goods conveyed by common carriers, are the proper parties to sue for negligence in the transporta- tion. Sanford v. Sousatonic B. S. Co., 11 Cush- ing (Mass.), 155. 1853. 10. Contract. Where the record shows that all the persons who originally entered into a contract with the defendants are plaint- iffs, it will be no objection that others, who became subsequently interested in the con- tract, without the privity of the defendants, are not made parties to the suit. McOordv. West Feliciana B. B. Co., 1 Robinson (La.), 519. 1842. 11. Injunction. Persons or corporations interested must be made parties, especially where the object of the bill cannot be attain- ed, without seriously affecting the interests of such persons or corporations. Northern In- diana B. B. Co. v. Michigan Central B. B. Co., 5 McLean, 444. 1853. 1 2. Judgment. The remedy of parties to a judgment alleging matters in pais, against one not a party to the record, is by an action in the ordinary form and not by rule. New Orleans and Carrollton B. B. Co. v. Bosworth, 8 La. An., 80. 1653. 13. — An infant may either sue by his guar- dian or by his next friend. Hurt v. Southern B. B. Co., 40 Miss., 391. 1866. t4. Misjoinder. Where a petition alleges that one defendant erected an obstruction in an alley and transferred it to another, who maintained it, it was held, that both such par- ties could not be made defendants to the same action. Sess v. Buffalo and Niagara Falls B. B. Co. et al., 29 Barbour (N. Y.), 391. 1859. 15. Order in writing. On a written order, made for a consideration, moving from the Eastern R. R. Co. to deliver property to " J. S., president of the Eastern R. R. Co.," the company may sue in its own name. Eastern B. B. Go. v. Benedict, 5 Gray (Mass.), 561. 1856. 16. Real party in interest. The provision in the new practice act, that suits shall be brought in the name of the real party in in- terest, does not apply where part of a cause of action only is assigned. In such case, the suit for the whole must be brought in the name of the original owner. Cable ■». 8t. Louii Marine B. B. and Dock Co., 21 Mo., 133. 1855, 1 7. — Where, by the requirement of the laws of a state, a suit is prosecuted in the name of the real party in interest, and by tlie common law, it would have been prosecuted in the name Of one person for the use of another, the plaint- PARTITION — PARTNERSHIP. 565 Assignment of Coirtraci. — Purchase of Partner's Interest. iff in tlxe state court will be permitted to re- main as plaintiflf in the federal courts. Thomp- son V. Railroad Companies, 6 Wallace, 134. 1867. PARTITION. 1. Parties. A railway company is not a ne- cessary or proper party to a process for parti- tion in consequence merely of having laid out and constructed its road over lands owned by tenants in common. Weston v. Foster, 7 Met- calf (Mass.), 297. 1843. PARTNERSHIP. See EmraENT Domain ; Evidbkoe; Subscbiptions bt Individuals. 1. Assignment of contract. A. and B. con- tracted with a railway company to build its road, and afterwards sold and assigned to C. and D. a part of the contract, so that C. and J), should be equally interested with A. and B. in the profits of the contract, ffeld, that C. and D. became partners and jointly liable with A. and B. for work done on the road ; and where a note was given for labor or materials, signed A. and B., C. and D. were liable on such note as partners. Voorhees v. Jones, 5 Dutcher (N. J.), 370. 1861. 2. Connecting lines. An agreement be- tween certain individuals and a railway com- pany to make connections at certain points and carry goods, the company carrying over a certain part of the line, and the other parties carrying over a certain other portion of the lino, the freight charges to be divided in pro- portion to the distance, does not constitute the parties to such contract partners. Mohawk and Hudson R. R. Co. v. Niles, 3 Hill (N. Y.), 163. 1843. 3. Hotel. Arailroad company which leases to an individual a house owned by it, he pay- ing a certain rental and " half the net proceeds arising from keeping said house as a hotel," and keeping an account open to the inspection of the company, and giving his own time and attention, and having free passage over the rail- road for himself and all persons employed and all ai'ticles used by him in carrying on the house, does not thereby become a partner, even as to third persons, in the business of keeping the house. Holmes v. Old Colony R. R. Co., 5 Gray (Mass.), 58. 1855. 4. Payment to partner. N., one of two partners to whom large sums of money were due from a railway company on an unsettled account, gave notice to the company not to make a settlement unless both partners were present. E., the other partner, was endeavor- ing to obtain the money due for the purpose of applyingit to his own private use, and of de- frauding N., and the railway company, know- ing of this intention, and for the purpose of aiding him in accomplishing it, as well as for the purpose of getting a more favorable settle- ment of the account, made a secret settlement with E., and paid him a sum agreed to by him as the balance due, and took a discharge of the partnership debt. N. had no knowledge of the settlement until B. had left the state with the money, when he gave immediate notice to the company that he should not i-ecognize the settlement. In an action of assumpsit brought in the name of the partnership against the company to recover the amount of the account, it was held, that whatever remedy N. might have in any other form, yet that no action could be sustained in the name of the partnership to recover again the money so paid. Noyes v. New Haven, New London and Stonington R. R. Co., 30 Conn., 1. 1861. 5. — A payment to a partner is a good pay- ment to the firm, although the other partner or partners have given notice to the debtor not to pay to such partner. The debtor has a right to pay his debt, and cannot be aflfected by the disagreement of the partners as to who shall receive the money. Any partner wishing to prevent such payment must seek the aid of a court of chanceiy. lb. 6. Purchase of partner's interest. A par- ty purchasing the right of a partner comes into nothing more than an interest in the partnership which can only be made available by an accounting between the partnership and the partner. Bank ». Carrollton R. R. Co., 11 Wallace, 634. 1870. 7. — A bill for settlement will not lie in such case unless all the parties are made defendants. lb. 8. — Hence this bill was dismissed, for the reason that if an amendment was permitted, 566 PASSENGERS. Carriage beyond destination — Delays. and proper parties brought in, the court, from the character of its jurisdiction, would have had no jurisdiction of the controversy, owing to the residence of one of the necessary parties. /6. PASSENGERS. See Baqgase ; Damages ; Injtiedss to Empiotes ; IN- jCBiss TO Passesgees. For expulsion of passengers, see Injubies to Emflotes; Street Eailwats; Bates. 1. Carriage beyond destination. In ac- tions sounding in damages, where the law furnishes no legal rule of measurement, save the discretion of the jury, upon the evidence before them, courts will not disturb the ver- dict upon the ground of excessive damages, unless it be so flagrantly improper as to evince passion, prejudice, or corruption in the jury. And the court refused to disturb the verdict in this case, although four thousand five hundred dollars damages were allowed for carrying a passenger four hundred yards beyond the proper station, and compelling him to alight there. Nem Orleans, Jackson and- Oreat Northern S. B. Co. v. Hurst, 30 Miss., 660. 1859. 2. — Railway companies, furnishing rea- sonable means for the carriage of passengers to all their stations, have the right to run trains that only stop at designated or princi- pal stations on their roads. And when a per- son purchases a 'ticket, he should ascertain, before getting on a train, whether such train will only stop at the principal stations, or at all of them. OMcago and Alton R. R. Co. v. Ran- dolph, 53 111., 510. 1870. 3. — If a railway passenger, holding a ticket entitling him to alight at a particular station, is carried past such station without being allowed a reasonable opportunity of leaving the train, the company is liable for the damages. Illinois Central R. R. Co. v. Mle, 59 111., 131. 1871. 4. Change of cars. A railway company does its duty with reference to giving notice of the necessity of changing cars, when it gives such notice in the trains at any particu- lar station, that any traveler by the use of reasonable prudence would obtain all requis- ite infonnation as to the route to be traveled. Page v. New York Central R. B. Co., 6 Duer., (N. T.),523. 1857. 5. Colored persons. No one can be exclu- ded from can-iage by a public carrier on ac- count of color, religious belief or political rela- tions or prejudices. Westchester and Philadel- phia R. R. Co. V. Miles, 55 Penn., St., 209. 1867. 6. — It is not an unreasonable regulation to seat passengers so as to perserve order and decorum and prevent contacts and collisions arising from natural and well known repug- nances, which are liable to breed distvurbances by promiscuous sitting. lb. 7. — Before the act of March 33, 1867, the separation of black and white passengers in a public conveyance was the subject of a sound regulation to secure order. lb. (See Street Eailwats.) 8. Delays. It is no defense to an action against a railway company for its failure to carry a passenger with proper despatch, that the detention was the willful act of the con- ductor in charge of the train. Weed v. Panama R. R. Co., 17 N. Y., 363, 1858; Same v. Same, 5 Duer, (N. Y.), 193. 1856. 9. — It is immaterial whether a breach of contract result from the negligence or the willfulness of the defendant's agent, if his act is within the scope of his employment. lb. 10. — In an action brought against a com- mon carrier of passengers, to recover damages for a failure to carry the plaintiff within the appointed time, to the place for which he had taken passage, by reason of which he did not perform his errand there, and was detained at expense, and to the injury of his business at home, he must produce some evidence that if he had arrived at the appointed time, he might have done his errand and would have prompt- ly returned, or that he could not, with due effort, accomplish his errand by reason of his delay in arriving. Benson v. New Jersey R. B. and Trans. Co., 9 Bosworth (N. Y.), 412. 1863. 11. — A passenger was pointed by an ageu» of the carrier to a train then standing in his sight as one which would convey him to Ly- ons. That train, after running one hundred and fifty miles, deflected to a branch road not passing through Lyons, but was followed an hour afterwards by another train which passed PASTURAGE — PATENTS. 567 Miscellaneous. through Lyons. Held, that the passenger was in fault for being miscarried, if, at or before reaching the point of divergence, the carrier used such means as would have conveyed to a traveler of ordinary intelligence, using reas- onable care and attention, information of the necessity of his transferring himself to the second train. Barker e. New York Central R. R. Co., 24 N. y., 599. 1862. 12. — The publication of a time table, in the common form, imposes upon a railway company the obligation to use due care and skill to have the trains arrive and depart at the precise moments specified in the table; but it does not import an absolute and uucon. ditional engagement for such arrival and de- parture, and does not make the company lia- ble for want of punctuality which is not at- tributable to its negligence. Gordon o. Man- chester and Lawrence R. R. Co., 52 N. H., 596. 1873. 13. — An extraordinary, unusual and unex- pected number of passengers having taken passage upon defendant's train, this fact was held to be a sufficient excuse for the failure of the train to stop at a certain station, there be- ing no room on the train for more passengers. Ih. 14. Duty of carrier. If a common carrier have reasonable ground for refusing to carry passengers and goods, he must insist upon it at the time the transportation is applied for. If not thus insisting, he receives the passen- gers and their baggage, his liability is the same as though no ground for refusal existed. Hannibal R. R. Co. d. Swift, 12 Wallace, 262. 1870. 15. Payment of fare. Common carriers have the right to demand payment of fare in advance; if payment in advance is not de- manded, they must rely on the responsibillity of tlie passengers or their lien on the baggage. Hurt V. Southern R. R. Co., 40 Miss., 891. 1866. 16. Pleading. The character of the action, whether ex contractu or in tort, depends on the character of the grievance instead of the form of the pleading, and the courts are inclined to consider actions for the breach of duty in not putting passengers oflf at the proper station as actions founded in tort. New Orleans, Jack- son and Great Northern R. R. Co. v. Hurst, 36 Miss., 660. 1859. 17. Steamboat lines. Railway companies have the right to own and control steamboats, for the purpose of transporting their freight and passengers across navigable waters on the line and constituting a part of their route, and those lying at the end of them and separating them from the ostensible and substantial ter- mini of their routes. Wheeler v. San Fran- cisco and Alameda R. R. Co., 31 Cal., 46. 1866. IS. — But if they use and own such vessels, they must convey all persons who apply and tender the usual price. lb. PASTUEAGE. See Eminekt Dohain; Injubies to Domestic Ani- UAI.S. PATENTS. See EviDEHCE. 1. Assignment. The eflFect of an assign- ment of letters patent for a car brake — deter- mined. Mowry v. Grand Street and Newtown R. R. Co., 10 Blatchford (U. S. C. C), 89. 1872. 2. — Where an agreement was made for the sale of an interest in an invention in consid- eration of certain payments to be made to third parties, which payments are never made, and the grantee in his lifetime made no claim under the grant but recognized the exclusive rights of the grantor: Jieid, after the grantee's death, that the agreement did not prevent the grantor's bringing suit for an infringement without naming the grantee. Railroad Co v. Trimble, 10 Wallace, 367. 1870. 3. Consolidation of railways. Where two corporations are consolidated, with all the powers of both the old corporations, the new corporation may use any patented invention tliat the old corporations had been licensed to use. Liglitner v. Boston and Albany R. R. Co., 1 Lowell (U. S. C. C), 338. 1869. 4. Construction. Patents are not to be treated as monopolies, and therefore odious in law, but are to receive a liberal construction. Turrill b. Michigan Southern, etc., R. R. Co., 1 Wallace, 491. 1868. 5. — Hence the " claim " following the des- cription may be construed in connection with 568 PATENTS. Damages — License. the explanations contained in the specifica- tion, lb. 6. Damages. A person using a patent right •without authority will be compelled to pay- therefor. And the use of such invention is evidence of its utility. Simpson v. Mad River B. R. Co., 6 McLean, 603. 1855. 7. — Counsel fees are not to be considered in estimating the damages in a patent case. Stimpson v. Railroad Companies, 1 Wallace, Jr., 164. 1847. 8. Estoppel. It is no bar to an action for the infringement of a patent that, before mak- ing his application to the patent office, the patentee had orally explained his invention to several persons, and that subsequently, the de- fendant had perfected the same thing, and des- cribed it in the presence of the patentee, with- out his making a claim to it. Silence of a party works no estoppel unless he has misled another to his hurt. Railroad Co. v. Dubois, 12 Wallace, 47. 1870. 9. Evidence. The burden of proof is on the defendant, in a patent cause, to show that he gave the notice required by the statute to enable him to examine a witness as to the novelty of an invention. A party, offering evidence for one purpose, must sustain his right to introduce it for that purpose; he can- not prevail in a court of errors by showing that the evidence was admissible for some other purpose. Philadelphia and Trenton R. B. Go. V. Stimpsm, 14 Peters, 457. 1840. 10. — The novelty of a patented invention cannot be assailed by any other evidence than that of which the plaintiff has received the notice provided by the patent "act of 1836. Railroad Co. v. Ihlbois, 12 Wallace, 47. 1870. 11. — A patent is prima facie evidence that the ijatentee is the first inventor of the im- pro-N ement. Knight v. Baltimore and Ohio B. B.Co., Taney's Dec, 106. 1840. 12. — The patent act of 1836 does not re- quire notice of the names and places of resi- dence of the witnesses by whom it is intro- duced to prove prior knowledge of the use of the invention. Wilton v. Railroad Companies, 1 Wallace, Jr., 192. 1847. 13. — Though the declarations of the pat- entee that, at some prior date, he had made the invention, is not admissible to prove that fact, yet his conversation in which he describ- ed the invention, is evidence that he had then invented the thing he described. Phila- ielphia and Trenton R. R. Go. d. Btimpson, 14 Peters, 457. 1840. 14. Extensions. The assignee of a patent holding at the expiration of the first term a right during that terra to " make, construct and use" the article patented, may, during the term of its subsequent extension, continue to use it, and even repair it, but is not entitled to make it for use, or for any other purpose. Wood V. Michigan Sovihem and Northern In- diana R. R. Co., 2 Bissell (U. S. C. C), 62. 1868. 15. — A grant by a patentee of a patent or an extension thereof, before any extension is issued, will cany, if the terms of the grant be proper ones, the legal as well as the equitable intetest in the patent. Railroad Co. t. Trimble, 10 Wallace, 367. 1870. 16. Jnrisdiction. Where proofs are to be laid before a public officer, and he is to do an act on being satisfied of certain facts, his do- ing the act is prima facie evidence that the proceeding was regular, nor can a reexamina- tion be had before another tribunal, if the law has made him their proper judge. Phila- delphia and Trenton R. R. Co. n. Stimpson, 14 Peters, 457. 1840. 1 7. Liability for nse of patented articles. A railway company Incorporated under the laws of Pennsylvania, which has built and owns a railway in that state, is liable for the use of a patented improvement on cars run on that road, though another corporation, created by the laws of the state of Maryland, held all of its stock, provided the cars and worked the road for the Pennsylvania corporation. York and Maryland Line R. R. Go. ■». Wirtans, 17 Howard, 30. 1854. 18. License. A license granted under letters patent for a railroad car brake, to a railroad company, to construct and use the in- vention " on any and all cars belonging to said company, and to use the same improvement upon the entire length of the road, and upon all parts thereof * * * for and during the term for which said letters patent are or may be granted," covers the use of brakes belong- ing to the company, attached to trucks and running gear belonging to it, even though the superstructures which are borne upon the trucks do not belong to the company. Sodg& ■e. Hudson River R. R. Co., 6 Blatchford (XJ. 8. CO.), 85. 1868. PAYMENT. 569 Miscellaneous. 19. — extension of railways. A license to a railway company extends no further than the road which is used or it was authorized to construct at the time of the license ; it cannot use the patent on lines afterward built or leased. Emigh ti. Chicago, Burlington and Quincy JR. JS. Go., 1 Bissell (U. S. C. C), 400. 1863. 20. Novelty. No one can claim a patent upon an invention that has been before used, although its use may not have been contin- uous. Sayles v. Chicago and Northwestern R. R. Co., 1 Bissell (U. S. C. 0.), 468. 1865. 21. — A patent for an apiDliance to " railway and other carriages " is not good if it appears that the invention was not new as to such "other carriages." Winans v. Boston and Providence R. R. Co., 3 Story (U. S. C. C), 413. 1843. 22. Re-issne. Under patent act of July 3, 1833, § 3 (4 Stat, at lar., 559), as well as under that of July 4, 1836, § 18 (5 stat. at lar., 123), no use of the thing patented prior to a sur- render on account of defective specification, can confer a right to continue the use after the reissue of the letters in a corrected form. Stimpgon v. West OJtester R. R. Co., 4 Howard, 380. 1845. 23. — The seventh section of the act of March 3, 1889 (5 stat. at lar., 854), has reference to an original application for a patent, not to its reissue. lb. 24. — It is not necessary to recite in a re- issued patent for an invention that the pre- requisites of a reissue have been comiilied with. Philadelphia and Trenton R. R. Co. v. Stimpson, 14 Peters., 448. 1840. 25. Special cases — Cawood's patent. The patent of Cawood for an improvement in re- pairing railroad bars ?ield valid. Turrill v. Illinois Central R. R. Co., 3 Bissell fTJ. S. C. C), 66, 1867 ; Bame v. Same, ib., 72, 1871. 26. — Goodyear patent. The patent of Goodyear for the preparation of " vulcanized India rubber " — examined. Qoodyewr v. Rail- road Co., 3 Wallace, Jr., 356. 1853. 27. — Imlay's patent. The patent of Imlay for an improvement in the support of railway cars — examined. Imlay v. Norwich and Wor- cester R. R. Co., 4 Blatchford (U. S. C. C), 227. 1858. 28. — Smith's patent. The effect of the letters patent of Alba F. Smith for an im- provement in locomotive trucks — determined Locomotive Co. v. Brie R. R. Co., 10 ib., 293. 1872. 29. — Stevens' patent. Stevens' patent for an improved car brake — examined. Emigh V. Chicago, Burlington and Quincy R. R. Co., 1 Bissell (U. S. C. C), 400. 1863. 30. — Tanner's patent. The Tanner car brake patent — examined. Sayles v. Chicago and Northwestern R. R. Co., 3 ib., 53. 1871. 31. — Whitney's patent. Asa Whitney's patent of April 35, 1848, for an " improvement in the process of manufacturing cast iron wheels," was for a process, not for a combina- tion. Mowry v.. Whitney, liWa-Uaxie, 620. 1871. 32. — Winans' patent. The legality of Winans' patent of Oct., 1, 1834, upon railway cars — determined. Winans v. Schenectady and Troy R. R. Co., 3 Blatchford (V. S. C. C), 279. 1851. 33. — It was proper to instruct the jury that if they found from the evidence, that be- fore the time when Winans claimed to have made the discovery, carriages arranged in sub- stantially the same manner and on the same mechanical principles as his, were used pub- licly, then Winans could not recover. Winans V. New YorTi and Erie R. R. Co., 31 Howard, 88. 1858. PAYMENT. 1. Agent. Receiving the note of an agent in settlement by him of his principal's in- debtedness is not in itself payment, even though the agent was at the time largely in- debted to the principal, and had charged the the principal on account of that indebtedness, with the amount of the note. Mighy v. New York and Harlem R. R. Co., 7 Abbott's Pr. (N. Y.), 359, 1858 ; see Same v. Same, 3 Bos- worth (N. Y.), 497. 1858. 2. Applicatiou. The party making a pay- ment has the right to say where it shall be applied, but if he fails to do so, the creditor may make the application. Hemffleld R. R. Co. V. Thorrilmrg, 1 W. Va., 261. 1866. 3. Mistake. During the period from July, 1864, to March, 1871, the P. Ooal Co. paid to the C. and P. K. B. Co. a large sum of money as freight for carrying coal. Afterwards, the Coal Co. sued the R. R. Co. in indebitatus as- 670 PENALTIES. Illegal Notes — (Jul tarn. sumpsit to recover back a portion of this freight, on the ground that the rate of freight charged the Coal Co. was illegal, and that it exceeded the rates paid by other shippers. Held, that the money having been voluntarily paid u-ider no mistake of facts, and there be- ing no circumstances of duress, fraud or ex- tortion, the plaintiflf was not entitled to re- cover. Potomac Coal Co. o. Cumberland and Pennsylvania JR. JR. Co., 38 Md., 226. 1873. 4. — Where the agent of a railroad com- pany agreed to pay only what the engineer of the company certified, and supposed he was paying no more, while in fact he did pay more to the contractor, Iield, that the company might recover back the money erroneously paid. Saliimore and SiuqueJianna JR. JR. Co. V. Faunae, 6 Gill (Md.), 68. 1847. PENALTIES. See Chabteb; Febbies; Injuiues to Domestic Ani- mals; LnMlTATION S ; SUBSCHIPnONS BT INDIVIDU- ALs; Bates. 1. Illegal notes. When a conductor on a railway pays out an illegal note in change to a passenger, the penalty cannot be recovered from the company, without proof that he had the authority from the officers of the company to do so ; but this authority may be inferred from circumstances. Commonwealth v. Ohio and PennayUania B. JR. Co., 1 Grant's Cases (Penn.), 329. 1856. 2. — An open and notorious custom of all the ticket agents and conductors employed by a railroad company, to pay out illegal notes in making change to passengers, is evidence that should be left to a jury to enable them to determine whether the custom was authorized by the company. lb. 3. Injunction. Where seventy-seven diiier- ent suits for penalties were commenced by defendant against a railway company, an in- junction was granted to prevent the prosecu- tion of all but one until that one should be determined. Third Avenue R. R. Go. v. JUfew York, 54 N . Y., 159. 1873. 4. Judgment. The judgment for the pen- alty under act of 1869, so far as it is to go to the state, is properly rendered in favor of " the people of the state of Illinois," and should pot be entered, in terms, in favor of " the state." lUinoii Central B. B. Co. v. Herr, 54 111., 356. 1870. 5. — Where a judgment for several penal- ties and interest is reversed as to part of the penalties, it must be deemed reversed as to the interest on such part. Mann v. New York Central B. B. Co., 12 Abotts' Pr., N. S., (N. T.), 080. 1872. 6. Pleading. In an action brought against a railway company to recover several penal- ties incurred by it for running its locomotives in violation of the statute, the first count set forth the statutes under which the penalties were claimed, and in the other counts the statutes were only referred to in the introduc- tory part of each count held, that all the counts, except the first one, were insufficient. Crawford v. JNeui Jersey B. B. Co., 4 Butcher, N.J.),479. 1860. 7. — Where an action is brought to recover penalties, the manner in which they were in- curred must be explicitly stated. 76. 8. Proceedings. An action to recover a penalty given by statute is an action on con- tract, within the meaning of § 129 of the code, and the summons should be in the form pre- scribed by subdivision 1 of that section. McCoun V. JHfeiD York Central, etc.,R. R. Co., 7 Lansing (N. T.), 75. 1873. 9. — A suit brought to recover a statute penalty is not an action upon a contract with- in the meaning of § 129 of the code, and the summons in such an action should be in the form prescribed by the second subdivision of that section. McCoun v. JNew York Central and BarUm B. B. Co., 50 N. T., 176. 1873. 10. — If an action brought to recover, a statute penalty can, under the code, be deemed an action on contract, the proper way of objecting to the use, in such an action; of a summons "for relief," instead of a summons " on contract," is not by setting aside the sum- mons or complaint, but by an application for relief after judgment, if the judgment obtain- ed be one to which the plaintiflf is not entitled. Mbott V. JSew York Central B. B. Co., 13 Abbott's Pr., N. S., (N. Y.), 465. 1872. 1 1. Qui tam. A person suing qui tarn has no vested title in a penalty until he, by a recovery, reduces the claim to a judgment. Chicago and Alton B. B. Go. v. Adler, 56 111., 344. 1870. PERSONAL INJURIES — PLANKRO ADS. 571 Miscellaneous. 12. — Tbie legislature may remit a penalty, even after verdict and before judgment. lb. ] 3. Rate of fare. Where a penalty is pre- scribed for charging an excess of fare, and the law provides tliat suit for the penalty shall be brought in a justice's court, no other court has jurisdiction. Where there is a statute penalty prescribed and a process provided for its enforcement, that process must be pursued. Reed v. Omnibm B. B. Co., 33 Cal., 213. 1867 ; Smith V. Same, 86 Cal., 381. 1868. 14. — Tlie legislature may establish rates of toll for passengers and freights and enforce the same by penalties. State n. Winona and St. Peter B. B. Co., 19 Minn., 434. 1873. 15. — The power of a railway company to demand fare of a passenger is not an implied or incidental power, but is derived solely from the statute. Johnson v. Hudson BiverB. B. Co., 2 Sweeny (N. T.), 298. 1870. 16. — Where such a corporation (created before the passage of the general incorporat- ing act of 1850) was limited as to fare by its charter, such limitation is not, by any fair con- struction of § 49 of such general act, removed. Therefore, held, that the defendant, having de- manded and received an amount of fare iu ex- cess of the amount limited by its charter, al- though not in excess of the amount authorized by the general ac% had incurred the penalty provided in the act of 1857 for the prevention of extortion by railroad companies. lb. 17. — If certain rates of toll and fare be fixed by the charter of a company, a subsequent act, inflicting severe penalties on the company for exceeding the charter rates, is no violation of the contract of the charter, and is not uncon- stitutional. Camden and Amboy B. B. Co. v. Briggs, 3 Zabrisliie (N. J.), 633. 1850. 1 8. Remission. The proviso in the act of 1835, that if the B. & O. R. R. Co. shall not " locate the road in the manner provided by this act, then it shall forfeit $1,000,000 to the state for the use of Washington county," al- though assented to by the company, is a pen- alty and not a contract, subject as to its enforce- ment to the will of the legislature. The release of such penalty by the legislature is no viola- tion of the provision of the constitution of the United States prohibiting the passage of laws that will impair the obligation of contracts. State V. Baltimore and Ohio B. B. Co., 12 Gill & Johnson (Md.), 899. 1843. 19. Signals. In such cases, evidence that a road was there, used by the public, and re- cognized and repaired, so far as lepairs were needed, by the oflBcers having charge of high- ways, yfould, prima facie, ijrove its existence as a highway. Chicago and Alton B. B. Co. v. ^dfer, 56 111., 344. 1870. 20. — Under the statute imposing a penalty of |50 on railway companies for failure to sound a whistle or ring a bell at a crossing, the action may be brought either by the pros- ecuting attorney in the name of the people, or qui tarn by an informer. Toledo, Peoria and Warsaw B. B. Co. v. Foster, 43 111., 480. 1867. 21. — Under the statute of 1869, which pro- vides that one-half the penalty to be recovered against a railroad company for an omission to ring the bell or sound the whistle on the ap- proach of a train to a crossing of a public high- way, shall go to the " prosecuting witness," it is not essential, to entitle the person in whose name the suit is brought, to recover, that he should actually have testified in the case. Illinois Central B. B. Co. v. Eerr, 54 111., 356. 1870. 22. — An act which exempts a railway com- pany from the duty of ringing a bell or blow- ing a whistle, as required by § 88 of the gene- ral railway act of 1849, may be repealed by an- other act, in amendment of the charter of the company so exempted, and rejected by such company, so as to render the company liable for a breach of such duty. Galena and Chica- go Union B. B. Co.v.Appleby,'^ 111., 383. 1862. PERSONAL INJURIES. See CoNTBACTOBs ; Damages ; Injxtbies to Emplotbs ; Ikjubies to Fassengebs ; Injubies to Febsohs oir THE tback; IifjuBiBs TO Febsoks Gbnebaiit; Mu- nicipal Coepobations ; Fabties to Actions ; Plead- ing; Kelease, PLANKROADS. 1. Charter. The grant of a charter for a' road, a bridge or a ferry, does not estop the legislature from granting a subsequent charter for a road, a bridge or ferry, which may com- pete with the former in the transportation of 572 PLEADING. General Principles and some General Matters. freight and passengers between given points ; and the mere fact that tlie two run parallel, and mutually diminish the business of each other, is no ground for a claim by either for damages. Lafayette Planhroad Go. v. New Al- bany JR. R. Co., 13 Ind., 90. 1859. 2. — The ground occupied by an existing company, or its franchise, may be taken, if authorized by the legislature, by a subsequent- ly chartered company, upon making compen- sation, lb. 3. — Where any part of the road bed or track of an existing company, or the property of an individual is taken so that a proceeding under the statute may be had for the assessment of damages, all the damages occasioned by the taking, both to the ground and franchise, must be assessed and recovered in the statu- tory proceeding. lb. 4. Taking for railway purposes. Since the act of 1851, in relation to railroad com- panies, such companies have no right to enter upon, occupy or cross a turnpike or plank- road, without the consent of the owners, ex- cept upon the payment of the damages sus- stained. EUicottville and Great Valley Planlc- road Co. i>. Buffalo and Pittsburgh R. R. Co., 20 Barbour (N. Y.), 644. 1855. 5. — Although by the general railroad act, a railroad company is empowered to construct its road across, along or upon any plankroad or turnpike, which the route of its road shall intersect or touch, this provision is to be con- strued as granting only the right which the public had in such plankroads, turnpikes, etc. lb. PLEADING. See Amendment; Abkbst of Judgment; Baggage; Constitutional Law; Construction op Bail- ways; Eminent Domain; Evidence; Fedebal CouBTS ; Injunctions ; Injubies to Bomestio Ani- mals; Injuries to Employes; Injubies to Pasb- ENSEBs; Injuries to Pebsons on the Tback; Par- ties to Actions; Penalties. [Questions of pleading will be found nnaer nearly every Important title.] I. GeNBHAL PBINCIPLK8 AND SOME GEN- GBAL MATTEBS. II. Declarations, bills, complaints Aur PETITION. III. Pleas and answers. IV. Bbplication and keplt. V. Demxtrbeks. VI. Vabiance and Evidence. VII. Amendments. VIII. Verification. IX. Vebdict. I. General pbincipliIs and somij GENEEAL MATTERS. 1. Administrators. Suit was brought bj one who was widow and administrix of an in- testate, to recover damages against the pro- prietor of a railroad, for the carelessness, neg- ligence and unfitness of the employes and agents of the company in running an engine over and killing her husband, and the style o) the action in the petition was " B. L., plaintiflE administrix of M. L., deceased, against R. B B., defendants." Meld, that this shows conclu- sively the character in which she sues, and an amended petition in which it is distinctly averred that the action is brought as adminis- tratrix does not therefore change the char- acter of the action. Bowler v. Lane, 3 Met- calfe (Ky.), 311. 1860. 2. — An administrator under the statute is not bound to plead specially, but may make all proper defenses under the general issue. Hawkins v. Mississippi and Tenn. R. R. Co., 35 Miss., 688. 1858. 3. Assignment. A cause of action cannot be served and assigned, so as to be made the foundation of several suits, so held in an ac- tion on a contract for the manufacture ol railway cars. Chicago and Northwestern R. R Co. V. Nichols, 57 111., -464. 1870. 4. Cross bill. A cross bill which makes nobody defendant, which prays for no pro- cess, and under which no process is issued is a nullity. Washington R. R. Co. b. Bradleys, 10 Wallace, 299. 1869. 5. — A decree on such bill is fatally erron- eous, lb. 6. Default. Upon a failui-e to plead, the plaintiff may have a default entered in vaca tion, under the statute and rules of the courts Woosley «. Memphis and Charleston R. R. Co. 28 Ala. N. S., 536. 1856. PLEADING. 573 General Principles and some General Matters. 7. Dates. A plaintiff by limiting his claim to services performed between certain dates, may make those dates material, so that he cannot claim for services before or after. Mancliester and Lawrence li. R. Co. ti. FuTc, 33 N. H., 297. 1856. 8. Exhibits. The revision of 1860, § 3964, does not contemplate that instruments of evi- dence merely, -which do not constitute the basis of the action, should be copied in, or an- nexed to, the pleading in order to render them admissible in evidence. Tjylor v. Cedar Rap- ids and St. Paul R. R. Co., 35 la., 371. 1868. 9. Highways. The sufl3ciency of the plead- ings in an action against a railway company for failing to restore certain highways to their formur state — determined. Sipperly v. Troy and Boston R. R. Co., 9 Howard's Pr. (N. Y.), 83. 1853. 10. Immaterial facts. The object of plead- ing is to ascertain the truth of the mate- rial facts in controversy between the parties ; and if it judicially appear by the record that the matter pleaded is false or immaterial, no .issue is raised thereby, and the matters thus pleaded will not be submitted to the jury. Thigpen v. Mississippi Central R. R. Co., 33 Miss., 347. 1856. 11. Judgments. A general denial, as an answer to an action brought upon a judgment, does not put in issue the regularity of the pro- ceedings on which the judgment was based, or the correctness of the judgment. The only inquiry that can be made on such an issue when the judgment is offered in evidence is, was such a judgment rendered, and had the court rendering it jurisdiction of the parties and the subject matter? Union Pacific R. R. Co. V. McCarty, 8 Kans., 125. 1871. 12. — In a proceeding to restrain the col- lection of, and vacate a judgment, and have an execution set aside, the execation is not the foundation of the action in that sense which is contemplated by the section of the code requiring a copy to be filed with the complaint. Fuller v. Indianapolis and Cin- cinnati R. R. Co., 18 Ind., 91. 1863. 13. — A judgment rendered upon the same cause of action by a foreign court which had jurisdiction of the subject matter and the par- ties, may be set up in bar of a suit in Indiana. Cincinnati, Union and Ft. Fayne R. R. Go. v. Wynne, 14 Ind., 885. 1860. 14. Minors. A minor may sue by his next friend, and in such action, it is proper to prove infancy. Byers v. Lessees of JDes Moines Val- ley R. R. Co., 21 la., 54. 1866. 1 6. Personal injuries. An action against n railroad company for negligence in causing the death of a father is properly brought in the name of all the children ; the recovery is for the benefit of all, the amount to be distrib- uted as in case of intestacy. Mm'th, Pennsyl- vania R. R. Co. V. RdbinKon, 44 Penn. St., 175 1863. 16. — The value of the life lost, estimated by a pecuniai-y standard, is what is to be re- covered, to be divided among all the chil- dren alike ; though the action is in tort, yet under the statute, there can be a joint recovery without showing that a joint damage has been sustained, lb. 17. — In an action against a common car- rier, it is not necessary to allege that the de- fendant was authorized by its charter to be- come a common carrier — where a company has made a contract pertaining to the business of such pursuit, it will not be permitted to de- ny its power to make such contract. Fuller V. Naugatuck R. R. Co., 31 Conn., 557. 1853. 18. — In an action under the statute for neg- ligently causing the death of the plaintiff's intestate, the injury was alleged to have been received " in the city of Janesville," the words " in this state " being omitted. Meld, that the court takes judicial notice of the existence of such a city in this state, and does not take notice of the existence of a city of the same came in any other state; and the averment is sufficient. Woodward v. Chicago and North- western R. R. Co., 21 Wis., 309. 1867. 19. — In an action for personal injuries, it is not necessaiy to aver that the plaintiff was free from fault. Loyd «. Hannibal and St. Joseph R. R. Co., 53 Mo., 509. 1873. 20. — In an action brought to recover dam- ages for an injury to the person, it was held that an answer alleging that the injury re- sulted from the negligence of the plaintiff was properly stricken out on motion, as evidence of the fact pleaded was admissible under the general denial, which was also pleaded. In- dianapolis and Cincinnati R. R. Co. v. Ruther- ford, 29 Ind., 82. 1867. 21. — In such cases, an omission in plead- ing, which it may be fairly presumed was 574 PLEADING. Declarations, Bills, Complaints and Petitions. covered by the proof, is cured by verdict. Illinois Central R. R. Go. v. Simmons, 38 111., 242, 1865 ; overruling Chicago, Burlington and Quincy R. R. Co. v. Hazzard, 26 ib., 373. 1861. 22. Private carriers. When the liability of a common carrier is changed to that of a private carrier by contract, the company can- not be declared against as a common carrier, but the action must be on contract, for a breach of duty arising out of the contract. Kimball v. Rutland and Burlington R. R. Co., 26Vt., 247. 1854. 23. Redundant matter. Irrelevant and re- dundant matter in a pleading should be struck out on motion, and will not invalidate matters of substance properly stated. Hurt e. SoutTiem R. R. Co., 40 Miss., 391. 1866. 24. Replevin. Where the petition in an action of replevin alleges the right of posses- sion as in the plaintiflF, an answer which does not specifically deny this in words, but states facts which under the law would defeat the plaintiflF's action, is sufficient. Skinner ti. Chicago and Rock Island R. R. Co., 12 Iowa, 191. 1861. 25. Rule of court. A rule of court provided that upon a claim with affidavit being filed, items not denied by the affidavit of defense should be taken as admitted. The rule was held not to apply to a claim of items on a con- struction contract and items of loss by having been stopped in the work by the company. Howard v. Allegheny Valley R. R. Co., 69 Penn. St., 489. 1871. 26. Setoff. A claim arising out of tort can not be set off against a demand arising out of a contract. Indianapolis and Cincin- nati R. R. Co. v. Ballard, 22 Ind., 448. 1864. 27. Statute. The act of 1852 (13 Stat., 212), incorporating the bank of Newberry, is a public act which the court will take judicial notice of, and need not be specially pleaded. Bank of Newberry v. Greenville and Columbia R. R. Co., 9 Richardson's Law (So. Car.), 495. 1855. 28. — Where a party claims damages under a foreign statute, he must set out said statute and the facts entitling him to damages under it in his declaration. Oreat Western R. R. Co. V. Miller, 19 Mich., 305. 1869. 29. Supplemental complaint. Under the code of procedure, leave to file a supplemental complaint may be granted ex parte. Fisk v. Albany and Susquehanna R. R. Co., 8 Abbott's Pr. N. S. (N. Y.), 309. 1870. 30. Torts of employes. That principle of law which renders the employer liable for the tortious act of his servant in the performance of the employer's business, within the scope of the general authority, is the same as that which subjects him for the act of his servant, done by his express direction ; but the remedy for the injury in the former case is by an ac- tion on the case; in the latter, by an action of trespass. TItames Steamboat Co. v. Housatonie, R. R. Co., 24 Conn., 40. 1855. 31. — The liability of the employer, in an action of trespass for the act of his servant done by his express direction, does not rest upon the relationship of master and servant, but upon the fact that the act was done by the master's express direction. Ib. 32. — In an action of trespass ut et armis, it was proved that the plaintifTs steamboat took fire in the night season, while it was fast- ened by the plaintiflF's cable to the defendanfa wharf, upon which stood an old wooden freight house; but before endangeiing said freight house, and while the fire could have been extinguished, the cable was cut by the defendant's watchman, and the boat drifted away and was burned. No evidence of any authority for the act of the watcliman was in- troduced, other than such as might have been implied from the watchman's general emplov- ment as such, in the business of the defend- ant. The court rendered judgment as in case of nonsuit Held, tliat such nonsuit w;»s properly granted. Ib. 33. — An action on the case is an appropri- ate remedy for injuries caused by the wrong- ful acts of a servant of the defendant, even though such acts have been acts of force, and such that trespass would have been the only proper remedy against the servant. Havens v. Hartford and New Haven R. R. Co., 28 Conn.. 69. 1859. II. Declarations, bills, complaints AND PETITIONS. 34. Agent. A petition for the value of ser vices rendered must state a promise of de. fendant to pay, or facts from which the law will imply a promise. An averment that the services were rendered at the request of an PLEADING. 675 Declarations, Bills, Complaints and Petitions. agent of defendant is not an averment that they were rendered at the request of the de- fendant. Welk V. Pacific B. B. Co., 35 Mo., 164. 1864. 35. Assmnpsit. An action on the case in- cludes assumpsit as well as tort. Hathorn v. Caief, 53 Me., 471. 1866. 36. — Where the time of performance of a contract under seal is extended by a parol agreement, a recovery may be had on such contract in assumpsit. Barker v. Troy and Butland B. B. Co.. 27 Vt., 766. 1855. 37. — "Where one enters upon the land of another, under an agreement of purchase, which he subsequently fails to carry out, the owner cannot maintain an action of assump- sit for use and occupation against him. To support such an action, the relation of land- lord and tenant must have existed between the parties, either under an express or implied contract. Stacy v. Vermont Central B. B. Co., 32 Vt., 551. I860. 38. — Where the plaintiflF in assumpsit re- lies upon a liability implied bj' law from facts and circumstances, he must prove such facts and circumstances as alleged, as fully as he would be required to prove a special con- tract as declared upon. Therefore, where the plaintiff relies upon the common law liability of common carriers, all the circumstances necessary to show such liability must be proved. Michigan Southern and Northern In- diana B. B. Co. t. McDonough, 21 Mich., 165. 1870. 39. Bills and notes. The sufficiency of a complaint upon promissory notes not due, in connection with a contemporaneous agree- ment in writing, that they should mature upon certain conditions, determined. Brown ■«. SoiUJiern Michigan B. B. Co., 6 Abbott's Pr. (JT. T.), 237. 1858. 40. Bonds. Where it is averred in the com- plaint that one of the defendants, a railway company, issued certain bonds for the sum of $1,000 each, with interest coupons attached, and that default had been made in not paying the coupons according to the condition of said bonds, by reason of which the bonds be- came due and payable; and that the plaintiff owns a certain number of said bonds and coupons, which have long since become due and payable, such complaint shows an exist- ing obligation to pay money, a default in its payment and a right of action for its recov- ery. Bangs v. Blue Bidge B. B. Co., 45 How- ard's Pr. (N. Y.), 169. 1873. 41. — A railway bond, payable to bearer, is a negotiable instrument, and may be declared upon and described in an action of assumpsit as a bond; and a count thereon describing the cause of action as a " bond," .ind setting up the promise contained in the bond, need not aver a consideration, and may be joined with the common counts in indebitatus assumpsit. Ide V. Pagsfwmpsic and Connecticut Bivers B. B. Co., 33 Vt., 297. 1859. 42. Carriage of goods. Where the plaint- iff, in an action brought against a railway, company, to recover damages for the nonde- livery of goods intrusted to it, does not allege in his complaint that the defendant was a common carrier, it cannot be held responsible in that character. Bristol v. Bensselaer and Saratoga B. B. Co., 9 Barbour (N. Y.), 158. . 1850. 43. Assumpsit. Where the plaintiff de- clared on a special contract with defendant, to furnish a car to carry certain sheep of the plaintiff's, and the contract was fairly sus- ceptible of the interpretation that defendant's contract was upon the consideration of plaint- iff's promise to pay a reasonable freight at the end of the carriage, and the plaintiff in his declaration alleged, that " for a certain reason- able hire or reward to be thereupim paid by the plaintiff to the defendant in that behalf, " etc., it was held, on a motion in arrest, after verdict, for the want of an allegation of readi- ness to pay the freight to the defendant, at the time of demanding the car, that the decla- ration was sufficient. Waterman u. Vermont Central B. B. Co., 25 Vt., 707. 1853. 44. — Where the plaintiff cannot, before the evidence is taken, know whether the defend- ant is liable as a carrier or warehouseman, he may state his cause of action variously, and should not be compelled to elect upon which he will proceed. Whitney v. Chicago and NoHhwesUrn B. B. Co., 27 Wis., 327. 1870. 45. — Where the plaintiff has alleged the carrier's negligence, which is denied, the mere proof of the loss of the goods is not sufficient, where there is rebutting proof. Childa v. Lit- tle Miami B. B. Co., 1 Cincinnati Superior Ct. Rep., 480. 1871. 46. — A declaration was against defendant 576 PLEADING. , Declarations, Bills, Complaints and Petitions. for loss of goods as a carrier; after verdict it was to be presumed that this was made out. Aronaoti v. Cleveland and Pittsburgh R. B. Co., 70 Penn. St., 68. 1871. 47. — In another action for the loss of the same goods against the defendant as a ware- houseman, the plaintiff would be estopped by his allegation that it was a carrier. lb. 48. Code system. The same cause of action under the code cannot be set out in two differ- ent modes, as was the practice by courts un- der the common law system. But all the facts upon which the action is based may be set out in a narrative method. Fox v. Pennsylva- nia M. R. Co., 2 Handy (Ohio), 169. 1856. 49. Contract. An action to recover dam- ages for the breach of a special contract, comes within subdiv. 1, § 129 of the code, and is essentially an action for the recovery of money only. Trapp v. New York and Erie R. R. Co., 6 Howard's Pr. (N. T.), 237. 1851. 50. Corporation. It need not be averred in the complaint of a railway company that it is a corporation. Emery v. Evansville, Indian- apolis and Cleveland R. R. Co., 13 Ind., 143, 1859; Seaston v. Cincinnati and Ft. Wayne R. R. Co., 16 Ind., 275, 1861 ; Kennedy v. Cotton, 28 Barbour (N. T.), 59, 1858; Henderson, and Nashville R. R. Co. v. Leavell, 16 B. Monroe (Ky.), 358, 1855. 51. Where the name of the plaintiff is such as might be probably adopted by a corpora- tion, and the complaint does not show that it is not a corporation, it will be presumed to be a corporation with capacity to sue. 0' Donald V. Evansville, Indianapolis and Cleveland R. R. Co., 14 Ind., 259, 1860 ; Baker v. Same, ib., 863 ; Anderson v. Same, ib., 388 ; Williams v. Same, ib., 428; MeDaniel v. Same, ib., 464. 52. — In an action before a justice of the peace, an averment that the defendant is "a company doing business in this state under the laws thereof," is a suflBcient averment of the corporate capacity of defendant. Root v. Illinois Central R. R. Co., 29 la., 102. 1870. 53. — A domestic corporation, created by a private act, in bringing suit must aver and prove its corporate existence. Hollowayv. Mem- phis, El Paso and Pacific R. R. Co., 23 Tex., 465. 1859. 54. — In an action of trespass against a rail- road company, it should be alleged in the pe- tition that it is a corporation or copartnership. or that it acts as such. Byington v. Mississippi and Missouri R. R. Co., 11 la., 502. 1861. 55. — An averment that certain railroad companies, authorized by law to consolidate, did consolidate and become one corporation, under a certain name, is a sufficient averment of consolidation, without setting forth in detail the steps taKen to effect such consolidation. Collins V. Chicago, St. Paul and Fond du'Lae R. R. Co., 14 Wis., 493. 1861. 56. Covenant. Where a declaration in cov- enant alleged full performance upon the part of the plaintiff, and a breach upon the part of the defendants, evidence was admissible to show that the plaintiff was prevented from performing his covenants in full by the default of the defendants, as an excuse for, and as equivalent to, ijerformance on his part. Hunt- ington and Broad Top R. R. Co. v. McGovern, 29 Penn. St., 78. 1857. 57. — Where one covenants to pay an exist- ing debt due from another — the creditor be- ing no party to the agreement, and the sole consideration being between the covenantor and the covenantee — the action for a breach must be brought by the covenantee. The cred- itor cannot sue in the name of the cove- nantee to his use without authority of the covenantee. Mississippi Central R. R. Co. v. Southern R. R. Association, 4 Brewster (Penn.), 79. 1869. 58. — W^here two parties bring an action of assumpsit against a company and issue is joined upon it, and afterwards a new party is introduced upon the record by leave of the court, and a declaration in covenant is filed, and issue also joined thereon, it will be pre- sumed, after a trial upon the merits and ver- dict, that such new party and declaration were introduced by their consent. Huntington and Broad Top R. R. Co. v. McGovern, 29 Penn. St., 78. 1857. 59. — Though two persons are named in an indenture as " party of the first part," if only one seals the deed, he alone is that party, and he may sue alone on the covenants. Philadel- phia, Wilmington and Baltimore R. R. Co. v. Howard, 13 Howard, 307. 1851. 60. — Where plaintiffs contracted under seal to perform certain labor upon defendant's road by a specified time, which was subse- quently enlarged by parol, it was held, that plaintiffs could not sue in covenant. Sheruin PLEADING. 677 Declarations, Bills, Complaints and Petitions. V. Rutland and Burlington R. R. Co., 34 Vt., 347. 1852. 61. — A written contract under seal cannot be varied by a parol contract, though a writ- ten contract not under seal may. lb. 62. Draft. Action was brought upon cer- tain drafts drawn by the president of a rail- way company upon the treasurer, for the pay- ment of certain sums of money, etc. The par- agraphs upon the drafts did not allege that the drafts had been presented for payment, nor show any excuse for not presenting them. Seld, that they were bad. Marion and Missis- ginewa R. R. Co. v. Billon, 7 Ind., 404, 1856 ; Same n. Spence, 8 ib., 415 ; Same v. Lomax, ib., 459. 63. — Where a debt is due from a corpora- tion, and it is the duty of one officer, or set of officers, to allow demands, and draw upon another officer who has the custody and is charged with the duty of disbursing the funds, for payment, the order must, as a general rule, be presented, in a reasonable time, for pay- ment. Ib. 64. Ejectment. Where a complaint in ejectment avers possession by the defendant as a corporation, and the answer admits pos- session as alleged, there is substantial admis- sion of the defendant's corporate existence. Clmpman v. Delaware, etc. R. R. Go., 3 Lansing (ISr.Y.),361. 1870. 65. — The sufficiency of the pleadings de- termined in a particular case. Northern Cen- tral R. R. Co. V. Canton Co., 24 Md., 493. 1866. 66. Equity. Where a bill in equity is filed by a third party to set aside as fraudulent completed judicial proceedings, regular on their face, the plaintiff in those proceedings should be brought in as a party. Harwood v. . Railroad Company, 17 Wallace, 78. 1873. 67. — To obtain a decree that will decide the respective rights of codefendants, as well as the rights of plaintiffs and defendants, the pleadings must be specially framed for that purpose. Minnesota Co. v. Chamberlain; Cra- ham V. Same, 3 Wallace, 704. 1865. 68. — In New Jei'sey, exceptions may be filed to a bill for impertinence or scandal. Camden and AM)oy R. R. Co. v. Stewart, 4 C. E. Green's Ch. (N. J.), 343, 1868; see Same d. Same, 6 ib., 484, 1870. 69. Friyolonsness. Whether a pai-ty who writes his name on the back of a promissory note before delivery is liable to the payee as indorser, is not so well settled that a demurrer to a complaint showing such a state of facts will be deemed frivolous. Cahoon v. Wiscon- sin Central R. R. Co., 10 Wis., 290. 1860. 70. — To constitute a pleading frivolous, it must be apparent on a mere inspection, with- out examination or research, that it is invalid. Ib. 71. — Where judgment has been ordered on motion, for the frivolousness of a demurrer, no assessment by the cleris of the amount due is necessary, if the complaint be verified. Code, § 158. Ib. 72. Iitjaries to domestic animals. The sufficiency of the pleadings determined in an action against a railway company for killin" cattle. Colwell v. New York and Erie R. R. Co., 9 Howard's Pr. (N. T.), 311. 1854. 73. — Although a declaration is objection- able for duplicity, where it avers in one count that certain animals were injured by reason of the neglect of a railway company to fence ita road and carelessness in its operation, yet the general issue having been pleaded, the plaint- iff may recover upon either ground. Chicago, Burlington and Quincy R. R. Co. o. Magee, 60 III., 539. 1871. 74. Joinder of causes. A count in assump- sit cannot be joined with a count for deceit. Pennsylvania R. R. Co. v. Zug, 47 Penn. St., 480. 1864. 75. — A count in tort against a railroad company for not building a wagon way over its road where it crosses a farm, as required by its charter, cannot be joined with a count to recover the cost of a wagon way which the plaintiff had erected over the road. One count is founded on tort, the other on contract. Green v. Morris and Essex R. R. Co., 4 Zabris- kie (N. J.), 486. 1854. 76. — Several causes of action for injuries to person or property, whether real or person- al, direct or consequential, and w^hether the damages are given by statute or by common law, single or double, may be included in the same petition. Clark v. ffannibal and St. Jo- seph R. R. Co., 36 Mo., 303. 1865. 77. — A cause of action for damages for the detention of property cannot be united in the same petition with causes of action founded upon contracts. Hoagland v. Hannibal and St. Joseph R. R. Co., 39 Mo., 451. 1867. 578 PLEADING. Declarations, Bills, Complaints and Petitions. 78. — Where personal injuries and injury to personal property are sustained by the same ■wrongful act, such injuries may all be united in one count. Baltimore and Ohio R. JR. Go. v. Ritchie, 31 Md., 191. 1869. 79. — A claim for damages done to land oc- cupied adversely by the defendant cannot be sued for and recovered until after the plaintiff has recovered possession. A claim for in- juries of that nature cannot be united -with a claim to recover the possession of the land. Sotchhiss v. Auburn and Rochester R. R. Co., 36 Barbour (N. T.), 600. 1862. 80. — Separate causes of action, all arising out of the same class, may be united in the same complaint, provided they are separately stated. Dwrkee ». Saratoga and Washington R. R. Co., 4 Howard'3 Pr. (N. Y.), 236. 1849. 81. Joinder of parties. Two of several parties to a joint and several agreement, they being the only ones entitled to recover, may sue without joining all the other parties to the contract. Titut v. Railroad Co., 5 Philadelphia Kep. (Penn.}, 360. 1864. 82. — In an action against two railroad cor- porations, if the judgment is against both, vfithout any proof to justify a finding as to one of them, it will be reversed. Chicago, Burlington and Quincy R. R. Co. v. Coleinan, 18 111., 297. 1857. 83. — Where an injury is done to the free- hold of a married woman, as in the erection of a nuisance adjacent thereto, and the married woman acquired the title to the premises prior to the passage of the act of Feb., 1861, and the land was in the joint occupancy of the hus- band and wife, then, in an action on the case for such injury, the husband and wife must join. Illinois Central R. R. Co. «. Grable, 46 111., 445. 1868. 84. — An action for the loss of a child, killed by the negligence or misconduct of a railway company, was held properly brought in the name of both parents, and that the joinder of the mother was not error. Pennsyl- vania R. R. Co. V. Zebe, 37 Penn. St., 420. 1860. 85. —The code (§§ 17, 18, 19, 3 R S., pp. 30, 31) substantially reenacts the old equity rules for the joinder of parties. Tate v. Ohio and Mississippi R. R. Co., 10 Ind., 174. 1858. 86. — But two or mere persons having sep- arate causes of action against the same de- fendant, though arising out of the same trans- action, cannot unite; nor can several plaint- iffs, in one complaint, demand several distinct matters of relief; nor can they enforce joint and separate demands against the same de- fendant, lb. 87. — Four joint owners of a vessel having leased her, two of them, afterwards, brought suit for the hire. Held, that a legal action could only be sustained by all four, suing to- gether. Coster v. New York and, Erie R. R. Co., 3 Abbott's Pr. (N. Y.), 332, 1856; Same «. Same, 5 Duer (N. Y.), 677, 1856; Same ». Same, 6ib., 43, 1856; 88. Misjoinder. A misjoinder of causes of action must be objected to by demurrer or an- swer in the court below, or it will be waived. Jesup XI. City Bank of Racine, 14 Wis., 331. 1861. 89. — A cause cannot be reversed for error in ©verruling a demm'rer for misjoinder of causes in action. Jeffersonville, Madison and Indianapolis R. R. Co. v. Cent, 35 Ind., 39. 1871. 90. Misnomer. The commencement of an action, in the maiden name of a female, after her marriage, is a misnomer merely, amend- able by the court, and not a ground for non- suit upon the trial. The mistake should be met by answer. Traver v. Eighth Avenue R. R. Co., 3 Keyes (N. Y.), 497. 1867. 91. Multifariousness. A bill in chancery was filed by the C. P. R. E. Co., against the defendants, alleging that the defendants claim- ed title to distinct parcels of land adversely to the corporation, that the description of the lands was unknown to the company, but that the company had a prior right, under Act of Congress of July 1, 1862, to the right of de- fendants. Held, that the bill was not subject to the objection of multifariousness, because it averred the ownership of defendants to be in distinct parcels. The determination of the principal question involved concerned all the defendants. Central Pacific R. R. Co. v. Dyer et al, 1 Sawyer (9 U. S. Cir. Ct.), 641. 1871. 92. — When the object of a bill is to reach equitable assets of a corporation in satisfac- tion of a judgment at law, and tlie assets are supposed to consist of the unpaid subscrip- tions to the capital stock, as well as the pro- ceeds which may be produced upon setting aside an alleged fraudulent deed executed by the corporation, the bill is not multifai-ious PLEADINC}. 579 Declarations, Bills, Complaints and Petitions. because individual stockholders are joined as defendant with the trustees and purchasers under the alleged fraudulent deed. Allen v. Montgomery/ R. R. Co., 11 Ala. N. S., 437. 1347. 93. — A bill is not multifarious in joining two causes of complaint growing out of the same transaction, where all the defendants are interested in the same right, or the relief sought is of the same general nature. Gum- berland Valley R. R. Co.'s Appeal, 62 Penn. St., 218. 1869. 94. — To constitute multifariousness as respects the subject matter of a bill, the differ- ent grounds of suit must be wholly distinct, and each must be sufficient as stated to sustain a bill. Kennebec and Portland R. R. Co. v. Portland and Kennebec R. R. Co., 54 Me., 173. 1866. 95. Negligence. In case for an injury re- sulting from the alleged negligence of the de- fendant,, it is not necessary to allege that the plaintiff was without fault. Smith v. Eastern R. R. Co., 35 N. H., 356. 1867. 96. — It is enough for a complaint to allege that the injury complained of happened through the negligence of the defendant, with- out alleging that the plaintiff was free from negligence. Potter r>. Chicago and Northwest- em R. R. Co., 20 "Wis., 533. 1866. 97. Nonjoinder. In action ex-ddicto, the nonjoinder of.a party who ought to have been made plaintiff, can be taken advantage of only by plea in abatement, or by way of apportion- ment of damages. Cooper v. Grand Trunk R. R. Co., 49 N. H., 209. 1870. 98. Several causes. The several causes of action upon which the plaintiff relies should be set out with precision and the amount due upon each cause should be separately stated. Watson V. San Francisco and Bumholdt R. R. Co., 41 Cal., 17. 1871. 99. Subscriptions to stock. Where, in a petition, it is averred that directors of a rail- way company had been duly elected by the stockholders, in pursuance of notice, it is to be presumed that the requisite amount of stock had been subscribed to authorize such election, and also to authorize the location of the road and the making of assessments by the directors so elected. Ashtabula and New Lisbon R. R. Go. «. Smith, 15 Ohio St., 328. 1864. 100. — A subscription by A. as executor and one made by him at the same time as an individual are independent contracts. An ac- tion pending upon one of these subscriptions cannot be pleaded in abatement of an action upon the other. Erie and New York R. R. Co. V. Patrick, 2 Keyes, (N. Y.), 256. 1865. 101. — It is the settled law of Vermont that a person beneficially interested in a sim- ple contract, or in a promissory note, may sue and sustain an action in his own name, upon the same. Rutland and Burlington R. R. Co. V. Cole, 24 Vt., 33. 1851. 102. — Where C, for assessments upon stock in a railway company, gave his note payable to the order of S. H., treasurer, etc., it was held, that the plaintiff" might, by parol evidence, show that the note was in fact given to it. lb. 103. — Assumpsit lies for unpaid install- ments of a subscription to the stock of an incorporated company. Bavington v. Pitts- burgh and Steubenville R. R. Co., 34 Penn. St., 358. 1859. 104. — An allegation that calls for unpaid installments were " duly made," is a sufficient averment that they were made in compliance with the law. lb. 105. — An averment in a declaration, that the defendant had subscribed for stock in a railway company "according to the statute incorporating the company," will be held, on general demurrer, to mean that he had done everything required by the charter in order to become a subscriber. Piser v. Mississippi and Tennessee R. R. Co., 32 Miss., 359. 1856. 106. — A declaration alleging that the plaintiff, at the request of the defendant, a rail- way company, had conveyed his stock therein to a third person, to be held, in trust for certain purposes, and that the defendant, in consideration thereof, agreed with such trustee not to issue any additional stock without the consent of the contractors who were construct- ing the road, but the defendant, without such consent, has issued other stock whereby the value of that conveyed in trust for the plain- tiff had been materially diminished, — dis- closes no ground of an action either ex con- tractu or ex delicto. Poor v. European and North American R. R. Co., 59 Me., 271. 1871 . 107. — The sufficiency of the pleadings determined, in a case where the complainants are seeking to enforce a claim upon specific 580 PLEADINa. Pleas and Answers. stock subscriptions. Dunham ■». Eaton and Hamilton R. B. Co., 1 Bond, (U. S. C. C), 492. 1861. 108. Trespass. A count, purporting to be in case, and alleging negligent wrongful acts of the defendant is not to be regarded as a. count in trespass, simply because it alleges, among such negligent acts, other acts of force, and which in themselves would have been proper matter for a count in trespass. Havens 1). Hartford and New Haven B. R. Co. 28 Conn., 69. 1859. III. Pleas and answers. 109. Answer. The answer to a petition must specifically and separately deny the matters intended to be put in issue. Hare v. Pacific R. R. Go., 31 Mo., 480. 1862. 110. — The answer of a corporation ag^re. gate, should be under seal, but not under oath. If a sworn, answer is desired, some managing officer should be made a party, who can an- swer under oath. Supervisors of Fulton County V. Mississippi and Wabash B. R. Co., 21 111., 338. 1859. 111. Bill of exceptions. Where a para- graph of an answer is struck out upon mo- tion, the ruling can only be presented in the supreme court for review by a bill of excep- tions. Indianapolis, Cincinnati and La Fay- ette R. R. Co. -v. Dunden, 39 Ind., 359. 1872. 112. Bonds. A plea that the plaintiff was neither owner, holder or bearer of the bonds sued upon, was Tield good on a general demur- rer. Pendleton Co. v. Amy, 13 Wallace, 297. 1871. 113. — And also a plea that the bonds were the property of A. R., who was a citizen of the same state with the defendant, was held good. lb. 1 14. — And also the plea that the bonds and coupons were not signed, sealed and de- livered as alleged in the declaration, and " so the alleged acts and coupons are not its acts and deeds," was held good. lb. 115. Corporation. A plea of the general issue, to an action by a corporation, admits its legal organization under its charter, so far as to maintain suits at law. Penobscot and Kennebec R. R. Co. v. Dunn, 39 Me., 587, 1855 ; Dunning v. Neu> Albany and Salem R. B. Co., 2 Carter (Ind.), 437, 1850; Harrison v. Martins- ville and Franklin R. R. Co., 16 Ind., 505, 1861. 1 16. — The existence of a corporation be- ing denied in the answer, must be proven. Village of Jamaica v. Long Island R. R. Co., 37 Howard's Pr. (N. Y.), 379. 1869. 117. — An answer denying the corporate capacity of the defendant must set out a spe- cific statement of the facts relied upon as a denial ; and must deny such capacity as exist- ing at the time the action was commenced. Coates V. Galena and Chicago Union R. R. Co., 18 la., 277. 1865. 118. — bills and notes. Since the adop- tion of the Code of 1852, an objection to an averment in a complaint against a corpora- tion, that the defendant indorsed a bill of ex- change by its president, A. S., involving a de- nial of the execution of, or want of authority to bind by, the indorsement, can only be taken advantage of by plea verified by aflidavit. Montgomery and Eufaula R. R. Co. v. Trebles, 44 Ala., N. S., 255. 1870. 119. — consolidation. In an action against a railway company, an allegation that it was consolidated with another company before the commencement of the action, need not be specifically denied, as provided in § 2925 of the revision of 1860, but a general denial of each and every allegation makes it incumbent on the plaintifl" to prove the •consolidation. Koons V. Chicago and Northwestern R. B. Co., 23 la.. 493. 1867. 120. — misuser. In a suit by a corpora- tion, it cannot be shown, by way of defense, that the plaintiff has, by misuser or non- user, forfeited its corporate rights. Hammett V. Little Rock and Napoleon R. R. Co., 20 Ark., 204, 1859 ; Mississippi, Ouachita and Red River R. R. Co. V. Cross, ib., 443. 121. — name. When the name and de- scription of the plaintiff corporation leaves no doubt of its identity, as the corporation enti- tled to sue the cause of action, the objection that it has not sued by its proper corporate name, cannot be taken under the general issue, or by plea otnul tiel corporation, but only by plea in abatement for the misnomer. Woon- socket Union R. R. Co. v. Sherman, 8 R. I., 564. 1867. 122. Nul tiel. Where the plea of nul tiel corporation is filed to an action brought by a railway company, it must appear that the char- PLEADING. 581 Pleas aud Answers. ter was accepted by the company, or that its intention to accept it had heen manifested by its acts, or the company cannot recover. Wliea- don B, Peoria, Pekin and Jacksonville R. B. Go., 43 111., 494. 1867. 123. — To an action brought by a corpora- tion, there may, at its commencement, be an answer of nul tiel corporation, but such answer is in abatement, and must precede an answer to the merits; and on the trial of the issue formed on such answer, the proof is limited to the question of tlie existence, de facto, of a corporation, under an authority sanctioning such a corporation, dejure. Seaston v. Cincin- nati and Fort Wayne B. B. Go., 16 Ind., 275. 1861. 124. — If the answer denies the existence, at the c )mmencement of the suit, of a corpora- tion which is shown to have once existed, it must particularly set forth the manner in which the corporate powers ceased. Morgan «. The Lawreruieburgh Insurance Gompany, 3 Ind., 285, overruled on this point. lb. 125. — An answer alleging want of proper parties is the correct mode of raising the ques- tion of fact, where a plaintiflF, suing in a name importing, prima facie, a corporation, in fact, is not assuming to act as such, but only as a partnership. lb. 126. — proceedings to condemn land. In an action to condemn land, the defendant de- nied that the plaintiff was a corporation, and also presented issues as to the valun of the land, and the amount of resulting damages. Held, that these issues could not be tried together. The defendant declined to elect, and the denial of the plaintiff's corporate capacity was struck out, on motion of the plaintiff. Oregon Central B. B. Co. V. Wait, 3 Or., 91, 1869; Samev. Same, ib., 428. 127. — Adenial of the plaintiff's corporate existence may, in some instances, be a plea in bar; but when establishing the ti-uth of the plea, will not authorize a judgment that will bar a future action, but will abate the present action, the plea is in abatement. Ib. 1 28. — statute. The act of the legislature of 1886, which declares that " all pleas to the action shall be deemed and adjudged as ad- mitting the parties and the character of the parties suing," applies to corporations. Beed V. Benton and MancJiester B. B. and Banking Co., 4 Howard (Miss.), 257. 1840. 129. — The proviso of § 6 of the general in- corporation act, concerning a collateral inquiiy into the existence of a corporation, does not preclude a private person from denying the existence dejure or de facto of an alleged cor poration. Oroville and Virginia B. B. Co. v. Plumas Co., 37 Cal., 854. 1869. 130. — The allegation in a pleading, that a party is a corporation, does not put its exist- ence beyond the reach of inquiry. Ib. 131. — When the right to act as a corpora- tion is denied, the company must show that it claims in good faith to be a corporation, and is doing business aa such. Ib. 132. Failure of consideration. Where a defendant, by way of defense to a note, pleads, in general terms, that it is wholly without con- sideration and void, and the plaintiff, without requiring a statementof the facts on which the defense is based, joins issue, any evidence is ad- missible, on the trial, which tends to Impeach or sustain the consideration. Oliamberlain v. Painesville and Hudson B. B. Co., 15 Ohio St., 225. 1863. 133. Frivolons answer. In an action on a bond payable to bearer, in the possession of the plaintiff, an answer denying any knowl- edge or information, sufficient to form a be- lief that the plaintiff is or is not the owner and holder thereof, is frivolous. Bronson ». Chica- go, Bock Island, etc., B. B. Co., 40 Howard's Pr. (N. Y.),48. 1870. 134. General issue. Where the general de- nial is pleaded in bar, the defendant is not in a position to plead in abatement to the juris- diction of the court over his person ; and such a plea is bad on demurrer. New Albany and Salem B.B. Co. v. Wilson, 16 Ind., 402. 1861. 1 35. — Under the general issue, plea no question could be raised as to the capacity of the parties to sue in the circuit court. Phila- delphia, Wilmington and Baltimore B. B. Co. v. Quigley. 21 Howard, 202. 1858. 136. Injuries to property. In an action for an injury to property, alleged in the com- plaint to have been caused by the negligence of the defendant's agents, an answer denying every allegation in the complaint puts in issue the defendant's liability; and it is unnecessary to aver that the injury was done by other per- sons, who were responsible therefor, and not the defendant. Schula/r v. Hudson BiverB. B. Co., 38 Barbour (N. T.), 653. 1862. 582 PLEADING. Replication — Demurrer. 137. Payment. Suit upon a subscription of stock. Tlie complaint set forth the articl,e subscribed to, alleged performance on the part of the company, and a subsequent promise to pay, by defendant. Answer, 1. The general denial. 3. Payment. Held, that the latter ■svas new matter, not provable under the gen- eral denial, and the paragraph setting it up was not demurrable. Ensey v. Cleveland and St. Lmiis R. B. Co., 10 Ind., 178. 1858. 138. Pleas in bar. A plea which states facts in bar to the plaintiflf's demand, is not good, if the facts so stated do not constitute a bar. Curtis v. Central B. B. Co., 6 McLean, 401. 1855. 139. Special plea. A special plea which amounts to the general issue is demurrable. n. 1 40. Written instrument. A denial under oath of the delivery of an instrument which is the foundation of an action, is, in effect, a denial of its execution. Keteham v. New Al- bany and Salem B. B. Co., 7 Ind., 391. 1856. IV. Eeplication and reply. 141. Defective replication. A defective declaration may be cured by sufiScient aver- ments in a replication demurred to. Bailroad Co. o. Harris, 12 Wallace, 65. 1870. 142. Subscriptions to stock. A declaration averred that at the time the defendant sub- scribed for stock in a railway company, he paid the per centum required by the charter ; the defendant by his plea denied this; the plaintiff then, by replication, alleged that the per centum was subsequently paid. Held, that the replication was a departure from the dec- laration, and therefore bad on demurrer. Fiser v. Mississippi and Tennessee B. ij. Co., 32 Miss., 359. 1856. 143. Substituted replication. When the plaintiff replies to a plea, and his replication being demurred to, is held insufficient, and he withdraws it and files a new and substituted one complete in itself with no reference to the one which preceded, he waives the right to question on appeal the ruling of the court on the sufficiency of the first. Clearwater v. Mere- dith et at, 1 Wallace, 25. 1863. Y. Demueker. 144. Abandoned demurrer. A demurrer which the party has abandoned, like a plead- ing which has been amended, is no longer a part of the record, and will be stricken from the case upon motion. Brawn v. Saratoga B. B. Co., 18 K. T., 495. 1859. 145. After several pleadings. The prin- ciple that a demurrer, after several pleadings, reaches back to a defective declaration, has no application where the defect is simply one of form. Bailroad Co. ■». Harris, 13 Wallace, 65, 1870. 146. Amended declaration. An amended declaration is not demurrable for the reason that it may require a change in the defendant's pleas. Bavington v. Pittsburgh and Stfi'—n- ville B. B. Co., 34 Penn. St., 358. 1859. 147. Answer. When an answer presents several distinct and separate defenses to the action, any one of them may be assailed by demurrer. Rev. 1860, § 2880. Skinner v. Chi- cago and Bock Island B. B. Co., 12 la., 191. 1861. 148. Effect of demurrer. A demurrer ad- mits the truth of the facts well pleaded, but does not admit the conclusions of law set out to be correct. Smith v. Henry County, 15 la., 385, 1863 ; Havens v. Hartford and Neui Haven B. B. Co., 28 Conn., 69, 1859. 149. — The admissions of a demurrer can- not be used against the party demurring, upon a hearing in damages as evidence of the par- ticular matter alleged. Havens v. Hartford and New Haven B. B. Co., 28 Conn., 69. 1859. 150. — Upon a hearing in damages, after the overruling of a demurrer, the case stands, with reference to the evidence necessary for the plaintiff and admissible for the defendant, precisely as it would have stood upon a de- fault, lb. 151. Error without prejudice. Where a plea is erroneously overruled on demurrer, and issue is joined on another plea, under which the same defense might be made, the court will not disturb the verdict. Junction B. B. Co. v. Bank of Ashland, 12 Wallace, 226. 1870. 152. Form. It is unnecessary to assign special cause, in a demurrer to a pleading which is so defective, that judgment according to law and the right of the case, cannot be rendered on it. Hawkins v. Mississippi and Tennessee B. B. Co., 35 Miss., 688. 1858. 153. General demurrer. A party having the option to reply or demur, in demurring, PLEADINU. 583 Variance and Evidence. admits that he has no ground for denial. Commonwealth «. Gross Out JR. B. Co., 53 Penn. St., 63. 1866. 1 54. — A general demurrer is only for de- fects of substance ; a special demurrer for de- fects of form, which must be especially as- signed, lb. 155. — Where a pleading contains one good paragraph, a demuiTer to the ■whole complaint should be oven-uled. Jeg'ersonville, Madison and Indianapolis B. B. Co. v. Cox, 37 Ind., 325; 1871 ; Wright v. Indianapolis and Cincinnati B. B. Co., 18 ib., 168, 1863; Vail v. Central B. B. Co., 8 C. E. Green's Ch. (N. J.), 466, 1873. 156. Judgment on. On demurrer to any pleadings, whi'>h are in bar of the action, the judgment for either party is the same as it would have been on an issue of fact joined in the same pleading and found in favor of the same party. Clearwater v. Meredith et^ al., 1 Wallace, 35. 1868. 157. — A demurrer, whether general or special, puts the whole record before the court, and judgment must be rendered against the party who has first failed in pleading. Com- monwealth ex rel. v. Pittsburgh and Connellsville B. B. Co., 58 Penn. St., 26. 1868. 158. Justice of the peace. On appeal to the supreme court from the court of common pleas, in an action commenced before a justice of the peace, no notice will be taken of the ruling of the justice upon a demurrer. Jtf- fersonville, Madison and Indianapolis B. B. Co. V. ParWmrst, 34 Ind., 501. 1870. 159. Statute. Under R. S., ch. 125, a gen- eral allegation of performance upon the part of the plaintiff, of the things necessary for him to do, is sufficient. Smith v. Chicago and Northwestern B. B. Co., 19 Wis., 336. 1865. 160. — A demurrer to a complaint, for any other cause than the six specified by the code, should be overruled. Sutton ■». Indiana Cen- tral B. B. Co., 7 Ind., 533. 1856. 161. Municipal bonds. A municipal corpo- ration, on a suit against it for bonds issued to a railroad, set up that the plaintiff had notice of certain proceedings, which, as the plea al- leged, destroyed the plaintiff's right to sue. The plaintiff replied denying the notice. The city demurred to the replication. Held, that the city thus admitted that he had no notice. Lexington ». BiUler, 14 Wallace, 283. 1871. 162. Waiver. An erroneous ruling in sus- taining a demurrer is waived by amendment of the pleading demurred to. Smith v. Cedar Falls and Minnesota B. B. Co., 30 la., 344. 1870. 163. — An objection to the form of the ac- tion is waived unless presented by demurrer. Mississippi Central B. B. Go. v. Whitehead, 41 Miss., 335. 1866. 1 64. — Pleas in abatement and demurrers are waived by going to trial upon a plea to the merits. Bell b. Mobile and Ohio B. B. Co., 4 Wallace, 598. 1866. 165. Writ of error. Where a demurrer to a declaration in the circuit court is improper- ly sustained, and judgment is rendered accord- ingly, the case may be reexamined in the su- preme court upon writ of error without any formal bill of exceptions. Bogers v. Burling- ton, 3 Wallace, 654. ' 1865. VI. Variance and evidence. 166. Code. The rule requiring the proof to conform to the pleading is not materially changed by the code, but the pleading may be amended to conform to the proof. Hoben V. Burlington and Missouri Biver B. B. Co., 20 la., 562. 1866. 167. Engineer's certificate. In an action against a railway company, on a certificate issued by its engineer for work done by a contractor, there being no sworn plea denying the execution of the certificate — the instru- ment itself is evidence of the existence of the debt (Code, §§ 2238, 3378-79), and that it was made on sufficient consideration. Alabama and Mississippi Bivers B. B. Co. u. Sanford, 36 Ala. N. S., 703. 1860. 168. Eflect of variance. A party cannot declare upon one cause of action and recover upon another. Harris n. Hannibal and St. Joseph B. B. Co., 37 Mo., 307. 1866. 169. — An allegation of variance between the averments of a petition and the findings of the court, where there is no allegation that the findings were unwarranted by the proofs, or that the judgment does not conform to the law and justice of the case as presented by the findings, will not be sustained. Such case comes within the thirty-second section of the judiciary act. BaiVroad Co. ■». Lindsay, 4 Wallace, 650. 1866. 170. — A variance between the proof and 584 PLEADING. Amendment tlie pleadings may be taken advantage of on the trial, if a good cause of action be stated or implied in the declaration. It comes too late upon a motion in arrest of judgment. Smith V. Eastern R. S. Co., 35 N. H., 356. 1857. 171. — In assumpsit against a common carrier, alleging that plaintiffs delivered to defendant a large quantity of wool, to wit: 7,837 pounds, which it promised to transport, and the proof was of a smaller quantity; lield, it was no variance. Deming v. &rand Trunk B. S. Co., 48 N. H., 455. 1869. 172. — A declaration alleged a contract for unusual dispatch in transporting goods. The evidence did not tend to prove that there was any contract for unusual dispatch. Hdd, that the vai'iance was fatal, whether the action was ex contractu or et delicto. Mann v. Birehard, 40Vt.,326. 1867. 173. — Though there be a variance between the allegations of a petition and the facts proved on the trial, yet if it be a case where an amendment of the petition ought to be allowed to conform it to the facts proved, the judgment will not be reversed on account of such variance. Missouri Valley R. R. Co. v. Caldwell, 8 Kans., 244. 1371. 174. — A variance from the corporate name in a petition filed in an action instituted by a corporation, which cannot mislead the defend- ant, is immaterial, as where the plaintiif was termed the "New Orleans and CarroUton Bailroad and Banking Co.," instead of the " New Orleans and CarroUton R. R. Co." New Orleans and CarroUton R. R. Co. x. McKelvey, 2 La. An., 359. 1847. 175. — A contract was declared upon as having been made with Isaac McCord & Co., the proof showed the name to have been Mc- Cord & Co. ; held, that the variance was imma- terial. McCord V. West Feliciana R. R. Co., 1 Robinson (La.), 519. 1841. 176. — It is a general rule that the supreme court will not revise any questions, except such as appeal' to have been raised in the court below; and this rule applies with pe- culiar propriety to questions of variance, un- less the variance appears of record, as such questions, if raised below, can generally be met by ftirther proof or by amendment. Brint- nall V. Saratoga and Whitehall R. R. Co., 32 7t.,665. 1860. VII. Amendment. 177. Amendment without leave. It is gross irregularity to hear a case without some terms imposed, on an amended bill filed after replication, without leave of court. Washing- ton R. R. Co. T. BradUys, 10 "Wallace, 299. 1869. 178. Appeal. The pleadings inequitable causes pending on appeal are not amendable as a matter of right, but only by leave of court upon special cause shown. Georgia R. R. Co. v. Milnor, 8 Ga., 313. 1850. 179. Bills and notes. Where a party, on the trial of an action upon a not«, amends his declaration by inserting that the note " is with- out defalcation, payable and negotiable at," etc., it is such a material amendment as enti- tles the defendant to a continuance. Ohio and Mississippi R. R. Co. v. Palm, 18 111., 23. 1856. 180. Discretion. The amending of the pleadings at the trial is a matter within the discretion of the court, and its judgment will not be reviewed unless such discretion has been manifestly abused, ferguion v. Hanni- hal and St. Joseph R. B. Co., -35 Mo., 452, 1865 ; Milwaukee and Mississippi R. B. Go. t. Fitir ney, 10 Wis., 388, 1860. 181. Effect of amendment. An objection to a pleading must be taken before trial ; but where an objection is made after trial, and the adverse party asks leave to amend, and does amend, he Cannot afterwards insist that such amendment is unnecessary. Coates ti. Galena and Chicago Union R. R. Co., 18 la., 277. 1865. 182. Guardian. Where the original sum- mons and complaint are in the name of " C. L. F., guardian of R. H. F.," the complaint cannot be so amended as to make the plaint- iff " B. H. F., by his next firiend, C. L. F." Code, §2403. Pmclkes v. Memphis and Charles- ton R. R. Co., 38 Ala., 310. 1862. 183. Judgments. Misdescription of judg- ments and contracts in a declaration , may be amended at the discretion of the court as to terms. Cummings v. Buckfield Branch R. R. Co., 35 Maine, 478. .1853. 184. Limitations. An amendment of an answer will not be permitted for the purpose merely of setting up the statute of limitations as a defense. Saffory t. New York and New Haven R. R. Co., 21 Howard's Pr. (N. T.), 455. 1861. 185. Name. A change of names may be PLEADING AND PRACTICE — POULTRY. 585 Miscellaneous. made, if it be made apparent to tlie court tliat there was a mistake in instituting the suit. Act of March 4, 1852. Pennsylvania B. B. Go. V. Keller, 67 Penn. St., 300. 1871. 186. Particular case. The right of a plaintiff to amend his declaration — consid- ered. Sullivan v. Borne B. B. Co., 38 Ga., 29. 1859. 187. Service. The service of an amended answer which is in fact a copy of the original answer, does not require the service of an ad- ditional reply, if the original answer has been replied to. Howard v. Michigan Southern B. B. Co., 5 Howard's Pr. (N. T.), 206. 1850. 189. Statute. In case of variance, it is error to nonsuit the plaintiff. He has 'the right under the Code to amend, and it is only a question of terms. Code §§ 74, 77 and 78. Fox Biver Valley B. B. Co. v. Shoyer, 7 Wis., 365. 1859.- 188. Time of amendment. An immate- rial amendment of the pleadings may be per- mitted after a cause has been submitted to the jury, and a portion of the testimony offered. Mississippi Ventral B. B. Co. v. Whitehead, 41 Miss., 225. 1866. 190. — Trespass. Where the plaintiff sues in trespass instead of in case, the mistake is amendable. Price «. New Jersey B. B. Co., 3 Vroom. (N. J.), 229, 1865 ; Same v. Same, 3 ib., 19, 1866. 191. "Waiver of ruling on demurrer. A party by amending his plea, after a demurrer has been sustained to it, waives his right to complain of the sustaining of the demurrer. Jay V. Indianapolis, Pittsburgh and Cleveland B. B. Co., 17 Ind., 263. 1861. VIII. Veeification. 192. Verification. The power of an attor- ney to verify pleadings — determined. Imlay V. New York and Ha/rlem B. B. Co., 1 Sandford, (N. Y.), 732. 1848. IX. Verdict. 193. — Where no valid cause of action, either at common law, or by virtue of any statute, is set up in the complaint, the plaint- iff is not entitled to judgment, though a ver- dict be found in his favor. Indianapolis and Cincinnati B. B. Co. v. Davis, 10 Ind., 398. 1858. PLEADING AND PRACTICE. See Fbdekai Cottbts ; Pleadikg ; Pbactiob. PLEDGE, See COLLATEBAl. SEClTRITrES; MOBTGAGE. 1. Bonds and stocks. When the stocks and bonds of a corporation are pledged, they may, upon default, be sold for the debt ; but such sale must be at public auction, and can only be made upon demand of payment, and a notice to the pledgor of the time and place of sale. But if the pledgor cannot be found, so as to have a personal demand made upon him, then the pledgee must resort to his bill, and have a judicial sale. Indiana and Illi- nois Central B. B. Co. v. McKeman, 24 Ind., 63. 1865. 2. Coupons. Where a railway company, to secure a debt, pledged its own bonds, to which were attached interest bearing coupons, it was held that the pledgee, before the maturity of his own demand, had a right to collect the interest on the bonds as it fell due. Andros- coggin B. B. Co. V. Auburn Bank, 48 Maine, 335. 1861. 3. Redemption. A bill in equity may be maintained to redeem a pledge, if an account is wanted, or if there has been an assignment of the pledge. White Mountain B. B. Co. v. Bay State Iron Co, 50 N. H., 57. 1870. 4. — The pledgors of bonds secured by mortgages may redeem the bonds after the lapse of fifteen years, notwithstanding the pledgee has foreclosed the mortgages. Ib. POLICE REGULATIONS. See Chabteb; Constitutiokai. Laiv. POST ROUTE. See BmsGES, POULTRY. See Cabbiags of Live Stoce; Cabbiase of Meb- CHANDISS. 586 POWDER — PRACTICE. Account — Discontinuance. POWDER. See CoNSTRDonoif or Railways. 1. Explosion. One wlio knowingly deliv- ers an apparently harmless package, contain- ing a dangerous and explosive substance, to a common carrier for transportation, witliout giving notice of its contents, is liable for damages caused by its explosion while the carrier is transporting it in ignorance of its contents and with care duly adapted to its apparent nature. Boston and Albany B. B. Co.. V. Shanley, 107 Mass., 568. 1871. PRACTICE. See Fedekat, Cocbts ; Pleading. 1. Acconnt. The supi-eme court may ap- point an auditor to investigate matters of account. Sirrine u. South Western B. B. Go., 47Ga.,586. 1873. 2. Accounts. In an action brought to re- cover the amount named in certain certificates of indebtedness, where the petition, instead of declaring directly upon the certificates as notes, set forth a cause of action in account for work and labor done and performed, and referred to the certificates merely as evidence and as exhibits, plaintiff would have no right, answer having been filed, to take judgment at the return term. Co»grove t). Tebo and Neosho B. B. Co., 50 Mo., 370. 1872. 3. Agreement in one suit to abide event of another. Where the same defendant in several causes, sued by different plaintiffs claiming for labor and team work done on de- fendant's railroad for subcontractors, entered into a written stipulation in all of the causes, providing that all proceedings should be stayed in the above entitled causes, and that they should " abide the result of the final judgment rendered in the case of D. v. The S. H. & S. R. R. Co., defendant in these causes, in which verdict is to be taken on written stipulation as to facts, subject to the opinion of the general term," it was held, that the plaintiff in the D. case having subsequently obtained final judgment against the defendant, the plaintiffs in each of these cases were, on a reference for that pur- pose, simply to prove the amount of their damages, respectively, allowing the defendant to controvert their proof on that single point only. Sonldhan ii. Sachett's Harbor and Sara- toga B. B. Co., 24 Howard's Pr. (N. T.), 155. 1858. 4. Code practice. Points of practice de- cided under the code of Kansas. Missouri Biver, Fort Scott and Chilf B. B. Co. v. Wilson, lOKans., 105. 1873. 5. — Points of practice under the New Tork Code — decided. Unger v. Forty-second Street B. B. Co., 4 Robertson (N.T.), 682, 1866; Bam- sey V. Erie B. B. Co., 3 Lansing (N. T.), 181, 1870; Lester v. Borne, etc., B. B. Co., 3 N. Y. Sup. Ct., 673, 1874; Hodgskin v. Atlantic and Pacific B. B. Co., 3 Daly (N. T.), 70, 1869; Ward v. Central Park, etc., B.B. Co., 3 Sweeney (N. T.), 701, 1870; White v. Delaware, Lacka- wanna and Western B. B. Co., 39 Howard's Pr. (N. T.), 479, 1869; Eggleston v. Orange, etc.. B. B. Co., 1 Code Rep. N. S. (N. T.), 313, 1851; Ball V. Syra^Mse B. B. Co., 1 ib., 410 ; Trapp v. Erie B. B. Co., 1 ib., 384; Vermont B. B. Co. v. Northern B. B. Co., 1 ib., 401. 6. Contempt: appeal. A preliminary order before judgment, requiring a party to do a cer- tain thing or be liable for contempt, is not ap- pealable to the court of appeals. New Tork and New Haven B. B. Co. o. Ketchum, 3 Ab- bott's Ct. of Ap. Dec. (N. T.), 347. 1866. 7. County courts. It is requisite that a case, marked on the county court docket as one in which some question of law is to be settled, should be transferred to the next law term. If it is not so done, the judge presid- ing at the county court may enter such judg- ment as to law and justice may appertain Farrin v. Kennebec and Portland B. B. Co., 36 Me., 34. 1853. 8. Cross biU. The filing of a cross bill on a petition, without leave of court, is irregular and such cross bill may be properly set aside Bronson v. La Crosse B. B. Co., 2 Wallace, 383 1864. 9. Discontinuance. Where the United States as plaintiffs in error brought up a casf to the supreme court, and the attorney general moved for a discontinuance upon the ground that he wished other questions to be presented upon the record which he deemed necessary for a full elucidation of the case, the court without an expression of opinion upon these other questions, granted the motion. UniUxi PRINCIPAL AND AGENT— PRIVATE WATS AND CROSSINGS. 587 Miscellaneous. States V. Minneiota and Norfliwestei'n B. B. Co., 18 Howard, 241. 1855. 10. — The right of the plaintiff to discon- tinue an action on payment of costs has not been abrogated by the code. Seaboard and Boanoke B. B. Co. v.Ward, 1 Abbott's Pr. (N. T.), 46, 1854; Same v. Same, 18 Barbour (N. T.), 595; 13 Howard's Pr. (N. Y.), 405. 11. Discretion. After the jury is impan- eled to try a cause, the court may hold the trial open for a reasonable time to enable a party to procure testimony; and it was held to be no abuse of discretion to hold a trial open for several days, there being no pretense that appellant was prejudiced thereby. Bigelow v. West Wisconsin B. B. Co., 27 Wis., 478. 1871. 12. Dismissal. After a cause had been en- tered on the docket of the county court, the plaintiflf 's attorney, during vacation, wrote to the defendant's attorney that he should dis- continue it at the next term, at the call of the docket, and subsequently directed the clerk to do so. Later in the term, the plaintiff's attor- ney in the absence of defendant's attorney moved that the discontinuance be stricken off and the cause continued, which was done. At the next term, defendant moved to dismiss the cause by reason of the foregoing facts. neld, that the cause was not so discontinued as to put it beyond the discretion of the court to reinstate it. Connecticut and Passumpsic Bivers B. B. Go. ■». Nmell, 31 Vt., 364. 1858. 1 3. Equity. A complainant in equity can- not compel a hearing, unless his case has been " marked at the law term ' law ' on the docket of the county where pending," as provided in R. S. of 1857, ch. 77, § 17; or unless he has given the notice provided in rule IX. Shepley V. Atlantic and St. Lawrence B. B. Co., 57 Me., 22. 1869. 14. — Where a court of equity orders an action at law, an appeal lies from the circuit court at law to the law court of appeals. South Carolina B. B. Go. v. Toonwr, 9 Rich- ardson's Eq. (So. Car.), 370. 1857. 15. — Where an issue is ordered, no appeal lies from the decision at law to any court; but, on the return of the issue to the court from which it emanated, a motion may be made for another issue, or for a new trial. Ih. 16. — Points of practice —determined. Shaw V. Baritan, etc. B. B. Co., 3 Vroom (N. J.), 293. 1867. 17. Rnles. Where a rule has been contin- ued indefinitely by the district judge, it can- not be subsequently heard without notice to the opposite party. Hennen v. New Orleans and Carrollton B. B. Co., 20 La. An., 544. 1868. 18. Supreme court. A judgment of a cir- cuit court on an agreed statement of facts may be reexamined in the supreme court on a writ of error. Stimpson v. Baltimore and Susque- hanna B. B. Co., 10 Howard, 341. 1850. 19. Two issues. When two issues are pre- sented, one for the court and one for the jury, the verdict of the latter will not be set aside because the court neglected to determine the former; but the judgment will be reversed on appeal tlierefrom, and the cause remanded with directions to try the other issue, ffegar V. Chicago and Northwestern B. B. Co., 26 Wis., 634. 1870. PRINCIPAL AND AGENT. SeeAsENCT; Whabteb. PRINCIPAL AND SURETIES. See Surety. PRIVATE RAILROAD. See Ghabteb ; Latbbai. Railwats. PRIVATE WAYS AND CROSSINGS. See Ehdtent Dohaik; Injuries to Domestic Ani- mals. 1 . Bridges. A requirement that a railway company shall erect suitable bridges across its road where crossed by roads, does not re- quire it to erect a bridge at a farm crossing. Cfrem ». Morris and Essex B. B. Co., 4 Zabris- kie (N. J.), 486. 1854. 2. Central R. R. Co. of N. Y. Under the charter of the 8. and E. R. R. Co. (applied to the C. R. R. Co.), the corporation is required 588 PRIVATE WATS AND CROSSINGS. Deed — Pleading. to construct suitable wagon ways over or un- der the road, " when the road shall intersect any farms or lands of any individual;" held, that the passage way was not necessarily to be constructed at the point of intersection of such laijds. Ellsworth v. Central R. B. Co., 5 Vroom (N. J.), 93. 1869. 3. Deed. In a conveyance to a railroad company of a strip of land for its location, across which exists an open passage way, a reservation in the deed of " a right of way for carts, teams and cattle, within the location aforesaid, where the said way now exists, the same to be made and kept by the grantees in a convenient state of use for the purposes aforesaid," implies that the corporation is to keep the way open, and unobstructed by gates or other barriers ; and no obligation to erect and maintain such barriers across it is neces- sarily implied by the St, of 1846, ch. 371, by reason of its being a private way. Eame» v. Worcester and Nashua B.B. Co., 105 Mass., 193. 1870. 4. — In a deed to a railway company of land covering only a portion of the width of its location, a reservation to the grantor and his assigns of the right to make a crossing over the land conveyed, to a new street on the opposite side of the railroad, creates an ease- ment in the land conveyed, but does not con- fer a right of way over the other land of the company to the street referred to. Boston and Maine B. B. Co. d. County of Middlesex, 1 Allen (Mass.), 324. 1861. 5. — A railway company having accepted Jind availed itself of a conveyance of land for its right of way, the deed containing certain conditions as to farm crossings, is bound to comply with such conditions. Aiken v. Albany, Vei-mont and Canada B. B. Co., 26 Barbour (N. T.), 289. 1857. 6. Defective crossing. Plaintiff, owning land on both sides of a railroad, brought an action to compel the company to construct a suitable farm crossing, also claiming damages. The court which tried the cause found that the crossing actually built by defendant was inconvenient for plaintiff, and that the proper place for a crossing was where plaintiff de- sired. Seld, that this established a cause of action. Wademan v. Albany and Susquehanna B. B. Co., 51 N. T., 568. 1873. 7. — Instead, however, of directing a spe- cific performance by defendant of its obliga- tion, the court gave plaintiff a pecuniary com- pensation, ffeld, not to be error. lb. 8. Depot bnildings. A railway company may lawfully erect a building within the limits of the location of its road, for depot or station purposes, although it thereby obstructs a private way over the land upon which the building stands; and the Gren. Sts^ ch. 63, § 46, providing that if a railroad is laid out across a turnpike road or other way, it shall be so made as not to obstruct the same, does not apply to private ways. Boston Gas Light Co. •0. Old Colony and Newport B. B. Co., 14 Allen (Mass.), 444. 1867. 9. Farm crossings — charter. "Where, by the terms of the charter of a railway com- pany, it is required to place a sufficient cause- way on each farm through which its road runs, it may make such causeway upon any part of the fsrm which the company finds most convenient. Holmes v. Philadelphia and Beading B. B. Co., 1 Penn. Law Jour. Rep., 387. 1843. 10. Inclined plane. Neither a public nor a private road or way can, under the provis- ions of the revised statutes, be laid out across the fixtures and erections upon the inclined plane of a railroad which are used for the drawing up or letting down of cars, for the con- veyance of merchandise or passengers. Mo- hawk and Hudson B. B. Co. v. Artcher, 6 Paige Ch. (N. Y.), 83. 1S36. 11. Necessity. Where the only way of ac- cess to the plaintiff's land was across a tract called " the Factory Field," which was the property of those under whom the plaintiff held his land, and which was owned by them when his land was conveyed to him, or over the land of strangers, it was held, that he had a -way, of necessity, over the Factory Field. Kimball t. Cocheco B. B. Co., 37 N. H., 448. 1853. 12. Pleading. A count at common law for obstructing a private way may be joined with a count under a statute which forbids an action against a railroad corporation, until after six- ty days' notice has been given of the obstruc- tion. Lamphier v. Worcester and Nashua B. B. Co., 33 N. H., 495. 1856. 13. — An action cannot be maintained by an individual for the obstruction of a public way, unless in case of special damage. Spe- PROCESS. 589 Administrators — Agency. cial damage must be alleged, or that the way is private. Ih. 14. — In case for obstructing a private way, " a certain lot of land in N." is an insufficient description, whether the way is set forth as ap- pendant to the land, or the land is intended as a terminus of the way. lb. 15. — A private way should be described as extending from one place to another, or the declaration will be insufficient. lb. 1 6. Proceedings to lay out private road. The owner of lands through which a private road or way is proposed to be laid out, is en- titled to a wi'itten notice of the time and place of meeting of the jury of freeholders to de- termine the question as to the necessity of sucli road or way. But such notice may be waived by an appearance. Mohawk and Hud- son R. B. Go. V. Artcher, 6 Paige Ch. (N. Y.), 83. 1836. 17. Statute. The sections of the general railway act, providing that the corporations subject to that act shall construct " farm cross- ings," make no distinction in terms, in respect to this duty to make crossings, between cases in which the lands of the corporation, occu- pied by the road, were obtained by agreement with, and conveyance from, the owners, and those in which title was acquired by the com- pulsory proceedings authorized by the act; and none was intended by the legislature. Clarke V. Bochegter, Lockport and Niagara Falls B. B. Co., 18 Barbour (N. Y.), 350. 1854, 18. — The provision of the general railway act of 1848, requiring railway companies to erect farm crossings, is not applicable to cor- porations existing before the passage of that act, and who had previously obtained the right of way for their road, and paid the landown- ers the damages sustained by them. Milli- man v. Oswego and Syracuse B. B. Co., 10 Bar- bour (N.Y.), 87. 1850. PROCESS. See Gaknishmknt; Hiohwat; Subscriptions btIn- DrVIDUAiS. 1. Administrators. Service on one of two administrators of an estate, of the presentation of a claim against the decedent's estate in the probate court, is sufficient. Clark's AdmCr v. Parkville and Grand Biver B. B. Co., 5 Kans., 655. 1865. 2. Agency. The service of a process upon an agent, other than the law agent of a corpo- ration, is sufficient, if properly made and re. turned. Chicago and Bock Island B. B. Co. v. Fell, 33 111., 333. 1859. a. — depot agent. A summons served upon a depot agent of a railway company is suffl cient to confer jurisdiction. Hudson v. St. Louis, Kansas City and Northern B. B.Co., 53 Mo., 525. 1873. 4. — managing agent. Unless a foreign corporation has a managing agent within the state of Ohio, it cannot be held liable by any proceeding in personam in that state. Barney V. New Albany and Salem B. B. Co., 1 Handy (Ohio), 571. 1855. 5. — Personal sei-vice upon the managing agent of a railway company is personal serv- ice upon the corporation. Neio York and Erie B. B. Co. V. Purdy, 18 Barbour (N. Y.), 574. 1854. 6. — An agent, invested with the general conduct and control, at a particular place, of the business of a corporation, is a managing agent within the 75th section of the code, and summons may be served on him. It is im- material where he resides. Porter v. Chicago and Northwestern B. B. Co., 1 Neb., 14. 1870. 7. — To authorize legal service upon a for- eign corporation, where it is made upon its managing agent in New York (under § 134 of the Code), the managing agent must be one whose agency extends to all the transactions of the corporation. Brewster i>. Michigan Cen- tral B. B. Co., 5 Howard's Pr. (N. Y.), 183. 1850. 8. — return. Under the act of 1853, in or- der that return of service upon an agent may be held good, the return must show that the president of the company did not reside in, or was absent from the country. St. Louis, Alton and Terre Haute B. B. Co. v. Dorsey, 47 111., 288. 1868. 9. — station agent. In an action against a railway company under the statute (§ 38, p. 310, "W. S.), for failure to ring a bell or sound a whistle before its train reached a crossing, service of summons made upon a station agent of the company would be sufficient. The direction given in the statute (W. S., p. 310, § 43), viz : " that suit may be commenced 690 PROCESS. Amendment — Summons. by serving the summons on any director," etc., is permissive and additional to the common mode of service, and not mandatory or exclu- sive of the methods named in the law. State, to use of, etc., v. Hannibal and St. Joseph B. R. Co., 51 Mo., 532. 1873. 10. — ticket agent. Sei-vice of a summons on a railway company by the sheriff leaving a copy thereof with a ticket agent of the company, and the railway company having designated no person in said county upon whom summons should be served, is good, without specifying in express terms that tlie road of the company runs into that county, or that the company transacts its business there- in. Missouri, Kansas and Texas JR. B. Co. v. Crowe, 9 Kans., 496. 1872. 11. Amendment— of return. Where judg- ment is entered by default, and it is assigned for error that the sheriff's return was insuffi- cient, the return may be amended in the court below. Toledo, Peoria and Warsaw B. B. Oo. ■B. Butler, 53 111., 323. 1870. 12. — Objection was made in the court be- low to the return of the service of the sum- mons, because the return " showed service upon Bush." The objection was obvi- ated by amendment. Held, on appeal, that there was an implied admission in the form of the objection made, that tlie manner of the service of the summons was not questioned. Evansville and Crawfordsville B. B. Co. v. Law- rence, 29 Ind., 622. 1868. 13. — An officer should be permitted, on leave asked of the court, to so amend his re- turn as to show the real manner of service of process. Jackson v. Ohio and Mississippi B. B. Co., 15 Ind., 192. 1860. 14. — of process. A misnomer of the real party intended to be sued, upon whom process has been served, may be corrected by amend- ment. Jfew Albany and Salem B. B. Co. v. Laiman, 8 Ind., 212, 1856 ; Same v. Chamber- lain, ib., 278. 15. — Such an amendment does not amount to a substitution of a defendant. Ib. 16. Appearance. "Where there is an ap- pearance to an action, the summons and re- turn are no part of the record, unless made so by a bill of exceptions. Jeff'ersonville, Madi- son and Indianapolis B. B. Co. v. Boss, 35 Ind., 108. 1871. 17. — Where there is no appearance to an action, the summons and return are pi'operly a part of the record. Ib. 18. — waiver. The general appearance of an attorney, without reasonable objection, is a waiver of any defect or want of service of the writ. SzicJcfield Branch B. B. Co. t). Benson, 43 Me., 374. 1857. 19. — A voluntaiy appearance of a defend- ant is equivalent to personal service of the summons upon him. Carpenter v. New York and New Haven B. B. Co., 11 Howard's Pr. (N. Y.),481. 1855. 20. Baggage master. An action cannot be legally commenced against a railway com- pany (for loss of baggage or anything else), by the service of a summons upon a " baggage master" in its employ. Flynn u. Hudson Biver B. B. Co., 6 ib., 308. 1851. 21. Conductor. Service of process upon a conductor of a railroad train is sufficient to compel the appearance of the company, under the laws of Indiana. New Albany and Salem B. B. Co. «. Tilton, 12 Ind., 3, 1859 ; Same v. Mead, 13 ib., 258; Same v. Grooms, 9 ib., 343, 1857; Same v. Powell. 13 ib., 373, 1859. 22. — The conductor is at least a special agent of the company. Same v. Grooms, 9 ib., 243. 1857. 23. — In an action brought against a rail- way company, before a justice of the peace for the recovery of damages occasioned by the killing of the plaintiff's horse by tlie cars of the company, service of process upon a con- ductor on the road, ten days before the day set for trial, is sufficient. Same v. McNamara, 11 ib., 543. 1858. 24. — In actions against railroad compa- nies for the killing of stock by their trains, the summons may, under § 2 of the act of 1863 (acts 1863, p. 187), be nerved upon a conductor, but the statute does not require such service, and service upon any agent of the corporation, as authorized by § 86 of the code, or by the act of March 4, 1853, is good. Jefersonville, Madison and Indianapolis B. B. Co. V. Hunlap, 29 Ind., 426. 1868. 2.5. — The act of March 28, 1849 (Comp. L., § 4846), authorizing the service of process against railway companies upon conductors, etc., is not repealed as respects justices' courts, by § 49 of the justices' act of 1855. Fowler v. Detroit and Milwaukee B. B. Co., 7 Mich., 79. 1859. PROCESS. 691 Constitutional Law — Justice of the Peace. 26. Consolidated corporations. Where two corporations, one foreign and one resident, are consolidated, having resident officers in the state of Rhode Island, suit against such corporation should he commenced by sum- mons and not by attachment. , Sprague v. Sartford, Providence and FtsJikill B. S. Co., 5 R. I., 233. 1858. 27. Constitutional law. The legislature may prescribe a different rule for the service of process against a corporation, from that in force at the time of its creation ; because such rules relate only to the remedy. Ifew Albany and Salem S, R. Go. v. McNamara, 11 Ind., 543. 1858. 28. Coroner. Where a notice was served by a coroner, who it was said was not quali- fied to act, as proof of service would have made the service good, it was presumed that such proof had been made. Ooleman v. Mis- sissippi and Alabama B. B. Co., 5 Howard (Miss.), 419. 1841. 29. Defective. A warrant against a rail- way company for the nonpayment of a certain sum " due by damage sustained," there being nothing in any other part of the proceedings to make it more certain, is fatally defective. Wagoner v. North Carolina B. B. Co., 5 Jones' Law (N. C), 867. 1858. 30. Director. Service on a director of a corporation is regular, and will give the court complete jurisdiction of the parties. Curtis v. Avon, ffeneseo and Mt. Morris B. B. Co., 49 Barbour (N. Y.), 148. 1867. 31. — A director of a railway company is not such a head or managing agent thereof, as upon whom a summons and complaint may be served. Alabama and Tennessee Bivers B. B. Co. V. Rums, 43 Ala., 169. 1869. 32. Form. An original notice commenc- ing suit need not be as full and specific as the petition. Code, ch. 135. Des Moines 2f. & B. B. Go. V. Doran, 4 Iowa, 553. 1857. 33. — Where the defects, sought to be taken advantage of, are in the form of the authority, or in the service of the writ, it should be by plea in abatement. Bliss v. Connecticut and Passumpsic Bivers B. B. Co., 34 Vt., 438. 1S53. 34. — But when the defect complained of is a total want of an essential ingredient, either in the writ, or service of the writ, and that apparent upon the record, it may be taken ad- vantage of upon a motion to dismiss. lb. 35. — The following return and service were Jield sufEcient against a foreign corporation : " Served by leaving a true and attested copy of the within writ with an agent of the defend- ant, December 33, etc., and leaving a certified copy in the office attached to the depot, Jan- uary 7, 1850." Kennwrd v. Bail/road Co., 1 Philadelphia Rep. (Penn.), 41. 1850. 36. Jurisdiction. There is no way of bringing a party into court and within its jurisdiction against his will but by service of process. Akin v. Albany Northern B. B. Co., 14 Howard's Pr. (N. T.), 337. 1856. 37. Justice of the peace. The court will take notice of a summons issued by a justice of the peace, and of the indorsements thereon, if set out in a bill of exceptions. Chicago, Burlington and Quincy B. B. Co. v Minard, 20111., 9. 1858. 38. — Railroad companies cannot be sued by a short summons before a justice of the peace of a town through which their railroads pass. They are to be treated as inhabitants and freeholders in each county where their tracks are laid ; consequently, entitled to the privilege of a long summons. Belden v. New York and Harlem B. B. Co., 15 Howard's Pr. (N. T.), 17. 1857. 39. — Where service upon a railway com- pany, having its principal office out of the state, in an action before a justice for killing stock, had been made ten days, and nothing appeared showing the justice that the case was not ready for judgment, and judgment was rendered upon such insufficient notice, it was held, that the defendant might have the judg- ment opened on application, in ten days, or might have it vacated in a direct proceeding at any time after ten days and before payment, or might appeal. But it was h^ld, also, that the case could not be dismissed on appeal; be- cause the insufficient service was not ground of dismissal, but only of continuance, before the justice ; nor would the fact be ground of continuance on appeal, for a continuance in that court would be granted or not, as cause might be shown then and there to exist. Michigan Southern and Northern Indiana B. B. Co. V. Shannon, 13 Ind.. 171, 1859; Ohio and Mississippi B. B. Co. v. Quier, 16 ib., 440, 1861 ; Same v. Clement, ib., 473 ; Toledo and Wabath B. B. Co. r>. Talbert, 23 Ind., 438, 1864. 40. — A railway company whose road 592 PROCESS. Lost Writ — President. passes through two or more counties, may be sued before a justice in either county, pro- vided the process can be served on the proper ofScer in such county. Sherwood v. Saratoga and Washington, B. M. Co., 15 Barbour (N. T.), 650. 1852. 41. Lost writ. An original writ has ful- filled its functions when it has brought the de- fendant into court. Its loss may be supplied by a copy under the orders of the court. York and Cumberland ij. JR. Co. v. Myers, 18 Howard, 346. 1855. 42. Name — amendment. "Where a corpo- ration has been brought into court under a wrong name, the court has power to amend the process by striking out that name and in- serting the right one. Lane v. Seaboard and Roanoke R. R. Co., 5 Jones' Law (N. C), 25. 1857. 43. Non-resident corporation. If railway companies, having their oflScers and offices, do business and have agents and property in Illi- nois, service of process may be made there in the same manner as upon local corporations. Mineral Point R. B. Co. v. Keep, 23 111., 9. 1859. 44. — The law of 1861 (spec, sess., p. 78), which required fifteen days' service of process upon a railroad company where the principal office of the company was without the state, is repealed by the acts of 1863 (Acts 1863, p. 25). Toledo, Logansport and Burlington B. B. Co. o. SMveley, 26 Ind., 181. 1866. 45. — In actions against a railroad corpora- tion whose principal office is not within the state, the summons must be served thirty days before the term to which it is returnable, or the cause must be continued. Ohio and Miss- issippi B. B. Co. v. Boyd, 16 Ind., 438. 1861. 46. -^ Perhaps, where process has been served ten days before court, the defendant should be deemed to be properly in court, un- less it is made to appear that the principal office of the company is not in this state. lb. 47. — The sufficiency of service upon a for- eign railway company — determined. Wheel- ing, etc.. Transportation Co. v. Baltimore and Ohio B. B. Co., 1 Cincinnati Superior Ct. Rep., 311, 1871 ; Caples v. Central Pacific B. B. Co., 6 Nev., 265, 1871. 48. Penalty. The object of the section of the revised statutes (2 R. S., 481, § 7), requiring in actions for the recovery of a penalty of for- feiture, a reference to the statute by which tlie action is given to be indorsed upon the process issued, was to inform the defendant of tlie nature and cause of the action against him. If the complaint is annexed to the summons, that is sufficient. Cox v. New York Central and Hudson Biver B. B. Co., 61 Barbour (N. y.), 615. 1872. 49. Place of service. Process may be served on a railroad company in any county ■where there is any office or place of business of the company, although the president or chief officer may not be found in the county or reside tlierein. Dixon v. Hannibal and St. Joseph B. R. Co., 31 Mo., 409. 1861. 50. Residence of oflteere. Actions against corporations can be brought, as provided by the statute (W. S., 394, § 28), either in the county where the cause of .action accrued, or in the county where such corporations have or usually keep an office or agent for the transac- tion of their usual or customaiy business, at the option of tlie plaintiff. Section 26 (W. S. 294) provides for an enlargement or extension of service, by issuing process to a different county from where the suit is brought when the officers of the company do not reside tliere. Mikel o. St. Louis, Kansas City and Nortliem R. B. Co., 54 Mo., 145. 1873. 51. — The So. Car. R. R. Co. may be made a party to a suit by service of a writ on its president in any district where the plaintiff resides or the cause of action accrues. Olaize V. South Carolina B. B. Co., 1 Strobhart's Law (So. Car.), 70. 1846. 52. — Under the act of assembly (Rev. Stat., ch. 26), directing how service of process shall be made on a corporation, the service on the president or other officer of a corporation may be in the county in which he actually re- sides, or in the one which is his official resi- dence, and where he carries on and attends to the business of the corporation. Oowmor v. Baleigh and Gaston B. B. Co., 3 Iredell's Ch. (N. C.),471. 1845. 53. President. Where process against a railway company is returned as served upon one being president of the corporation, it is necessary that proof of his official character should Ibe made to the court, and so appear on the record, to sustain a judgment by default. Wetumpka and Coosa B. B. Co. v. Cole, 6 Ala., N. S., 655. 1844. PKOCHEIN AMI — PROTEST. .593 Principal Officer — Trackmaster — Certificate of Notary. 54. — Tlie service of process upon the president of a corporation is sufficient ser- vice on the corporation. Galveston and Bed Biver B. B. Co. v. Shepherd, 21 Tex., 374. 1858. 55. — In an action against a railroad com- pany, a service of process on the president is, by R. S. 1853, sufficient. Branham v. Ft. Wayne and Southern B. B. Co., 7 Ind., 524. 1856. 56. Principal officer. Wliere a foreign cor- poration held in trust a railroad in Wisconsin, its principal agent in managing the road was held not to be a " principal officer " of such corporation for the service of summons, under the provisions of ch. 130, R 8. Farmers' Loan and Trust Go. «. Warring, 30 Wis,, 390. 1866. 57. Privilege. The mere service of sum- mons upon a defendant, without arrest, while he was attending court as a party or witness in another cause, is not to be set aside on the ground that he is privileged from such ser- vice. Pollard V. Union Paeifie B. B. Co., 7 Abbott's Pr., K. S. (N. Y.), 70. 1869. 58. Return. An officer's return cannot be collaterally questioned. New Yorh and Erie B. B. Co. V. Purdy, 18 Barbour (N. Y), 574. 1854. 59. — If the fact of the agency is denied, the return of the officer as to that is not con- clusive ; this should be put in issue by a plea in abatement. Mineral Point B. B. Co. v. A'eep, 22 111., 9. 1859. 60. — Where the statute designates one or more officers of a corporation upon whom process against it may be served, the return of the constable is evidence as to the official character of the person served with such pro- cess, and of the facts which justify such ser- vice. Wheeler v. Nm> York and Harlem, B. B. Co., 24 Barbour (N. Y.), 414. 1857. 61. Service upon a state. In proceedings where the commonwealth is a party or inter- ested, and no other special mode of summons is provided by law, notice to the governor, as the chief executive officer, would, it seems, be considered as sufficient. Commonwealth v. Bos- ton and Maine B. B. Co., 3 Gushing (Mass.), 25. 1849. 62. Short summons. Suit may be com- menced in a district or justice's court against a resident corporation by a short sum- mons, when the plaintiff is a nonresident and furnishes the requisite bond and affidavit. 38 Wilde V. New Ynrlc and Harlem B. B. Co., 1 Hilton (N. Y.), 302. 1857. ' 63. Statute. Notice can be served on cor- porations only in the mode pointed out by statute. Cosgrove v. Tela and Neosho B. B. Co., 54 Mo., 495. 1874. 64. Superior court. The clerk of the supe- rior court of one county has no right to issue a summons returnable to the superior court of another county. Moore v. North Carolina B. B. Co., 67 N. C, 309. 1872. 65. Supreme court. Where the subject matter is before the supreme court, it may issue process to other parties interested. Eirst D. Lehigh, etc. B. B. Co., 6 Philadelphia Rep. (Penn.), 93. 1865. 66. Trackmaster. The service of an origi- nal notice against a railway company on a trackmaster, where it appears that the corpo- ration has officers, is not sufficient to give the court jurisdiction of the company (Code, § 1737. Act of January 18, 1853, § 17). Bich- ardson «. Burlington and Missouri Biver B. B. Co., 8 la., 260. 1859. 67. Venue. A railway company resides, in legal contemplation, in the counties through which its road passes, and in which it does business, and may be sued in any county through which its road runs. 76. PKOCHEIN AMI. See Attobnbts; PLEADiHa. PROTEST. 1. Certificate of notary. The certificate of the notary who presented certain acceptances for payment, recited that he presented an original draft to a person in the office adjoin- ing the one in which they were made payable, and enquired of him for the treasurer of the company to whom it should be presented, and was told, that the company had removed its office to parts unknown, and that he made dil- igent inquiries for such office and officer, but could not find the same. Held, that it was the duty of the notary to present the bill to the person in charge of such office ; or if the office 594 PROXY — QUORUM. Miscellaneous. was closed, he should have so found and recit- ed upon his own knowledge, and not upon the statement of another; that the indorsers were discharged. Oage, Dater and Sloan, v. Dubuque and Pacific B. B. Co., 11 la., 310. 1860. 2. — An answer verified, denying the re- ceipt of notice of protest, will not render the notary's certificate inadmissible in evidence ; to produce such result, an affidavit must be annexed to the answer. Arnold v. Bock Biver I B. B. Co., 5 Duer (N. T.), 207. 1856. PROXY. I Election of ConrosATE Ofi^cebs. PUBLICATION OF LAWS. 1. Presumption. As the secretary of state was directed by a joint resolution of the legis- lature of June 9, 1852 (Acts of 1852, p. 178), to publish the "general railroad law," with four other laws, as soon as convenient, it will be presumed that he acted in accordance with this instruction; and, as, by reasonable dili- gence, the secretary could have caused their legal distribution before February 25, 1853, it will be presumed the acts mentioned were in ■ force before that time. State ex rel. v. Bailey, 16Ind.,46. 1861. PUBLIC ENEMY. See Cabbiase of Mebosansise ; Ihjubies to Fas- SEirOEBS. PUBLIC LANDS. See Ehikeht Domain; Land Grants, 1. Land warrant. A location of a mili- tary land warrant on public land, made be- fore the passage of the act of congress, ap- proved July 1, 1862, granting to the Central Pacific R. R. Co. alternate odd sections on each side of the road, gave the locator or his grantee, such an interest in the land as, coupled with possession, enables him to main- tain trespass against the company for injury done to the same in constructing the road over the land. Butterfkldv. Central Pacific B. B. Co., 81 Cal., 204. 1866. 2. — The location of such warrant is a pay. ment for the land, and a certificate of loca- tion, signed by the register of the land oflice where the location is made, is prima facie evi- dence that the land is the property of the lo- cator. J6. PUBLIC ROADS, See BAaGA6E; Dedication; HioffWAT. QUESTIONS PROPOUNDED BY THE LEGISLATURE. 1. Constitutional law. The judges of the supreme court have the right to decide for themselves, whether questions presented for their determination by the legislature, and the occasions on which the questions are so pre- sented, are such as to authorize the rendition of opinions as contemplated by the constitu- tion (Art. VI, § 11.) In matUr of North Mia- souri B. B. Co., 51 Mo., 586, 1878 ; Governor, opinion in response to, 49 ib., 216, 1872. 2. — The question as to the constitutionality of the sale of the North Missouri and that of the Missouri Pacific Railroads under the re- spective acts of March 17, 1868, and March 31, 1868, concerns the property rights of the state, and the vested rights of individuals and cor- porations, and cannot be passed upon by the supreme court in response to resolutions relat- ing thereto by the legislature. Ib. QUORUM. See CONBTITVTIOHAI, Latt. QUO WARRANTO, 595 Constitutional Law — Proceedings. QUO WARRANTO. See AasisNMENT por Benefit op Ckebitobs; Man- DAMITS. t. Constitutional law. In an information in the nature of a quo warranto against a cor- poration, calling upon it to show by what warrant it uses certain franchises alleged to have been usurped, it is a sufficient answer to say that such franchises were granted by an act of the legislature ; it is not competent to the attorney general, in behalf of the people, to allege that the act of the legislature is re- pugnant to the constitution of the United States and the laws of congress, and therefore void. People v. Benssalaer and Saratoga M. B. Co., 15 Wendell (N. Y), 113. 1836. 2. Exclusive remedy. The remedies given by statute (Code of Pro., § 482 ; 1 Rev. Stat., 603, § 5) for testing, by direct action for the purpose, or by a summary inquiry, the title of officers of a corporation, are exclusive. - Hvd- son Biter West Shore B. B. Go. t. Kay, 14 Ab- bott's Pr. N. S. (N. Y.), 191. 1873. 3. Insolvency. Present insolvency, alone, is not sufficient to support an information in the nature of a quo wan-ranto against a corpora- tion. State ex. rel. c. Bailey, 16 Ind., 46. 1861. 4. Parties. A proceeding by quo warranto is a prosecution which must be carried on in the name of the people. People v. Mississippi and Atlantic B. B Co., 18 111., 66. 1851. 5. — It is the attorney general's duty, under § 405 of the code, whenever he shall have rea- son to believe that any of the acts or omissions specified in that section can be established by proof, to apply to the courtfor leave, and, upon leave granted, to bring an action in the name of the people of the state, for the purpose of vacating or annulling the existence of a cor- poration, other than municipal, in every case of public interest. People v. Erie B. B. Co,. 36 Howard's Pr. (N. Y.), 139. 1S68. 6. — An action cannot he maintained under the Revised Statutes relative to proceedings against corporations in equity, by a; stock- holder against the corporation and its trustees, to restrain the trustees from exercising any powers as trustees, and for tlie appointment of a receiver of the property and effects of the corporation. 76. 7. — A stranger, who has no other interest in a corporation than that wliich is common to every citizen, is not entitled to a judgment of ouster in a writ of quo warranto. Common- wealth ex rel. ii. Philadelphia G. and if. B. B. Co., 20 Penn. St., 518. 1853. 8. Pleadings. A plea to a quo warranto that the defendants have a riglit to exercise the franchise, accompanied by a negation of the allegations of the writ, is not a plea of non usurpavit or a disclaimer, but is a valid plea. Commomoealth v. Cross Cut B. B. Co., 53 Penn. St., 63. 1866. 9. — The sufficiency of the pleadings in a particular case determined. People c. Northern B. B. Co., 43 N. Y., 217, 1870; Same v. Same, 53 Barbour (N. Y.), 98, 1869. 10. Proceedings. A question of usurpa- tion, intrusion, or unlawful holding or exer- cising a corporate office, must be treated as a legal, not as an equitable cause of action. Peo- ple V. Albany and Susquehanna B. B. Co., 5 Lan- sing (N. Y), 25. 1871. 11. — In lieu of proceedings by quowarranto under the provisions of the Code of Procedure, an action may be brought by the attorney gen- eral, in the name of the people, upon his own information, against several persons, consist- ing of two distinct classes, each "claiming, by virtue of separate elections, to be the board of directors of a corporation, for the purpose of tiying their respective rights to such office. People v. Albany and Susqueh/inna B. B. Co., 55 Barbour (N. Y.), 344, 1869 ; see Same v. Same, 38 Howard's Pr. (N. Y.), 228, 1869; 7 Abbott's Pr. N. S. (N. Y.), 265, 1869. 12. — Such action must be commenced and prosecuted like oOier civil actions, and is to be governed, in respect to the pleadings and proceedings, by the same rules. Jb. 13. — In an information in the nature of a quo warranto, it is not necessary to set forth the franchises and privileges alleged to be usurped, except in general terms. It is always the right of the government to call upon those who assume corporate powers to show by wliat warrant they do so ; and when the defendants set forth their claims by plea, the attorney general may show by replication the special grounds he relies on. People v. Biver Baisin and Lake Erie B. B. Co., 13 Mich., 389. 1864. 1 4. — But a replication which, to show that defendants usurp tiie franchise of banking, avers tliat certificates issued by them are in the 596 KATES. Oamden and Amboy R. R. Co. — Constitutional Law. form and similitude of bank bills, and also that they are issued with intent to be put in circulation as money, is open to objection for duplicity. lb. 15. — The plea set forth a charter as a rail- way corporation, which gave them no author- ity to issue circulating notes ; and stated the issue by defendants of certain certificates which, as described, might or might not be within the statute against unlawful banking, and then denied that defendants have exercised the franchises charged " except as aforesaid." Held, that as the plea neither confessed nor denied the exercise of banking powers, the issue tendered by it was immaterial. lb. 16. Supreme court. The right of the su- preme court to issue the writ of quo warranto is recognized by the statutes of Vermont; the occasions are left to be determined by common law rules. And by those rules, it is apparent this writ is the proper mode in which to try any alleged usurpation of ofllces or fran- chises, inconsistent with the state sovereignty. State V. Boston, Concord and Montreal B. B. C7o., 25 Vt., 433. 1853. 17. — The judges of the supreme court in their private capacity have no power to direct proceedings in the nature of a quo warranto. Ohio B. B. Co. V. State of Ohio, 10 Ohio, 360. 1841. 18. Trustee. It is only where a corpora- tion is dissolved that the court will appoint a trustee, and where a corporation has both banking and railroad franchises, and the former has been forfeited but the latter fi'an- chise still remains, a trustee will not be ap- pointed. State V. Commercial and Bailroad Bank of Vicksburgh, 34 Miss., 144. 1853. RATES. See CoNNBOTUjG Lines; Injunction; Pbnaltt. 1. Camden and Amboy R. R. Co. The re- striction of rates in § 16 of the charter of the Camden and Amboy R. R. Co. extends to the whole route from Philadelphia to New York, as well upon the water as the railroad. Cam^ den and Amboy B. B. Co. v. Briggs, 1 Zabriskie (N. J.), 406, 1848; Same v. Same, 2 ib., 633, 1850. 2. Connecting lines. A provision in the charter of a railway company that proprietors of certain wharves and lands should have the right to construct upon sucli lands railways connecting with the main road, and of enter- ing upon that road with their cars and ve- hicles, " and that the owners and conductors of said cars and vehicles shall be liable to pay the same and no other rates of toll, and be subject to the same rules, regulations and pro- visions as the owners and conductors of other cars and vehicles traveling upon said main road," does not, since the passage of the St. of 1845, ch. 191, limiting the rights of connecting roads to use a railway, give the proprietors of those wharves and lands the . i-ight to have goods transported in the cars of the corpora- tion owning the railroad at the same rate and no higher than those charged to others for the same and similar kinds of goods. Fitchburg B. B. Co. t. Gage, 13 Gray (Mass.), 393. 1859. 3. — The St. 1845, ch. 191, which provides for the appointment of commissioners to fix the compensation which shall be paid by one railway company for the drawing of its pas- sengers, merchandise and cars over the railroad of another company, does not infringe upon any rights which the latter company may have under its charter to regulate tolls on its own road. Vermont and Massachusetts B. B. Oo. «. FitcMmrg B. B. Co., 9 Cushiug (Mass.), 369. 1853. 4. Constitutional law. The legislature has a constitutional right to regulate the rates of toll for freight and passengers upon railways. Blake ti. Winona and St. Peter B. B. Co., 19 Minn., 418, 1873; Beekman v. Sa/i-atoga and Schenectady B. B. Co., 3 Paige Ch. (N. Y.), 45 1831. 6. — Such regulations may be enforced by penalties. State v. Winona and St. Peter B. B. Co., 19 Minn., 434. 1873. 6. — Ch. 169, Laws of 1863, § 3, requiring railway companies to fix rates of fare and freight, and to post up the same, and fixing a penalty for over charges, is not in conflict with Art. 1, § 8, of the Constitution of the the United States. Such laws do not regulate commerce between the states, but are in the nature of police regulations. Fuller v. Chicago and Northwestern B. B. Co., 31 Iowa, 188, 1871; Sanev. Same, ib., 311. 7. — A requirement of a state law, that rail KATES. 597 Discrimination — Leased Lines. road companies shall annually fix their rates of transportation and post up the same in their depot buildings, is a police regulation only, and not a regulation of commerce. Bail- road Company v. Fuller, 17 Wallace, 560. 1873. 8. — The regulation of tolls on bridges and turnpike roads, and fares on railways and ferries, which are used for communication and commerce between states, is part of the powers reserved to the states, and is not delegated to the general government. Hudson County c. The State, 4 Zabriskie (N. J.), 718. 1853. 9. Contract. Upon a contract by a rail- way company to carry freight for the owner at so much per ton, it is not liable to refund to tlie freightor the amount paid by him for weighing the freight; in the absence of any evidence of an agreement to the contrary. Johnson v. Cayuga and Susquehanna B. B. Co., 11 Barbour (N. Y.), 631. 1852. 10. Discrimination. Three plaintiifs filed a joint bill against a railroad company, averring injury to their business in charg- ing improper tolls, making discrimination against them, etc. A community of interest in the plaintiffs is necessary to sustain the bill. Cumberland Valley B. B. Go's Appeal, 63 Penn. St., 218. 1869. 11.^ One plaintiff was not especially in- jured in the matters charged; he had no status in court, and could not complain that the company had exceeded its franchises. lb. 12. — Unless it appears upon the face of the bill that there is a private injury, it is de- murrable as to that. lb. IS. — A charge against a railway company for violating a public franchise, being an in- jury common to the whole public, is a matter for the public and not for an individual to re- dress, lb. 14. — The rule is that where the injury is not greater to the individual than to the whole public, the remedy is with the public. lb. 15. — A railroad company had authority to place cars on its road, to permit individuals to place cars thereon, and to charge " on all goods, etc., transported on its road not exceed- ing four cents a mile per ton for toll and three cents for transportation." Held, that these were two subjects of charge, one for the use of the road and the other for power. lb. 16. — On a railroad, equality must exist at the same rates of transportation and, as far as possible, in accommodation. lb. 17. — A railroad company cannot discrim- inate in favor of itself or any of its em- ployes as against other transporters. lb. 18. Erie R. R. Co. The Erie R. R. Co., as it uses the roads and franchises of the Paterson and Rumapo R. R. Co. and Paterson and Hud- son R. R. Co., is bound by the rates fixed by law upon such roads. McQregor v. Erie B. B. Co., 6 Vroom (N. J.), 89. 1871. 19. Evidence. Where a printed tariff of freights is established, any printed copy may be regarded as an original. Manchester and Lawrence B. B. Go. v. Fisk, 33 N. H., 397. 1856. 20. — Where copies of such tariff are re- quired by law to be posted at the depots of the railroad, that is a sufficient account of the absence of those copies to render secondary evidence admissible. lb. ' 2 1 . Foreign corporation. Although the Erie R. R. Co. is a foreign corporation, it is, at the same time domestic to the full extent of the powers and franchises confirmed and invested in it, in New Jersey. McQregor v. Erie B. B. Co., 6 Vroom (K. J.), 115. 1871. 22. — An action qui tarn, etc., against the Erie R. R. Co., for taking unlawful tolls on parts of its lines in Kew Jersey, the company may properly be considered as a corporation of that state, and amenable as such to the provisions of the act of March 17, 1870, re- specting unlawful tolls. lb. 23. How established. Rates for transporta- tion of freight, upon railroad, may be estab- lished by the directors, or by their agents, un- der their authority. The assent of the direct- ors may be presumed, if nothing appears to the contrary. Manchester and Lawrence B. B. Co. V. Fi'sk, 33 N. H., 397, 1856 ; Jefersomille R. B. Co. V. Rogers, 38 Ind., 1, 1867. 24. — Where the president of a railway com- pany establishes and puts up tariffs of rates of fare and freight, the legal presumption is that he has acted by the authority of the cor- poration. Hilliard o. Ooold, 34 N. H., 330. 1856. 25. Leased lines. The N. Y. C. Co. having by a contract, which was construed to be a lease, run and operated the railway of another company, it had the right to charge such rates as were legal for the company owning the 59S BATES, Legal Tender Act— Statute. leased line. FUluir v. Neva York Central and Hudson Jiiver E. B. Co., 40 N. Y. G44. 1871. 26. Legal tendtH' act. The Sixth Avenue E. R. Co., iu the city of New York, notwith- standing the restriction in its grant to fares of five cents, had the right to increase fares to six cents when paid in paper upon the suspen- sion of specie payments. Mone.ypenny v. Sixth- Avenue B. B. Co., 4 Abbott's Pr., K. S. (N. Y.), 857, 1806 ; Same v. Same, 85 Howard's Pr. (N Y.), 453, 1868 ; Same v. Same, 7 Robertson (N. Y.), 838, 1865. 27. Monopoly. It is competent for a rail- way company, if not restrained by its charter, to enter, in good faith, into contracts with other companies for the transportation of through freight. Stewart v. Erie and Western Transportation Co., 17 Minn., 873. 1871. 28. Penalty. The act of 1863, ch. 160, making railroad companies liable to a penalty for violations of its provisions, in failing to fix and post rates of fare and freight, and for overcharging, was not intended to deprive a person from whom overcharges were collect- ed, from recovering the amount paid by him in excess of the rates fixed. He may recover the same in an action against the company, and also the penalty provided, by the act. Ful- ler V. Chicago and Northwestern B. B. Co., 81 la., 187. 1871. 29. — Whether the plaintiff could recover if he knew of the over charge at the time of payment, qumre? lb. 30. — The word " willfully," as used in the said act, does not imply the idea of malice ; if the company designedly omitted to comply with the act, it will be liable for the penalty. lb. 31. — Evidence of plaintiff's declarations to the drayman who delivered the goods to him, to the effect that he thought the charges too high, was held admissible on the part of the plaintiff, as showing a fact connected with the payment of the overcharge. lb. 32. — In an action to recover such penalty, it is not necessary to show that the over- charges were willful. Same v. Same, ib., 311. 33. — The penalty imposed by ch. 185, Laws of 1857, upon a railway company for exacting a greater rate of fare than is allowed by law, is incurred where its conductor ille- gally required five cents in addition to tlie legal fare, because the passenger had no ticket. Chase v. New Torh Central B. B. Co., 30 N. Y., 538. 1868. 34. — The penalty of $'50, imposed by cli. 183, Laws of 1857, for charging an excess of fare, was not intended as a compensation to the injured parly, but to defray his expenses iu prosecuting the corporation for violating the law. Fisher v. Neva York Central and Hudson Biver B. B. Co., 40 N. Y., 044. 1871. 3.5. — And this penalty can bo recovered by one who paid the excessive fare simply for the purpose of obtaining the penalty, lb. 30. Pleading — overcharges. Assumpsit for money had and received will not lie to re- cover from a railroad company an amount paid by the plaintiff for freight in excess of lawful rates, the payment having been made after the jjoods had been carried and deliver- ed, and without objection. Jienneth and Gib- son V. South Carolina B. B. Co., 15 Richard- son's Law (So. Car.), 384. 1868. 37. Power to take tolls. Railway com- panies have no power to take toll by implica- tion, but only by express grant in their char- ters, and the right granted will not be extend- ed by implication; and on questions of tolls, freight and fares, courts uniformly construe such charters most in favor of the public and against the company. Camden and Amboy B. B. Co. V. Brigga, 2 Zabriskio (N. J.), 038. 1850. 38. Raising charges. In a suit brought to recover for the transportation of merchandise over a railway, in the absence of a special contract, evidence is admissible that the plaint- iff raised its charges without giving notice thereof to the defendant, and without his knowing that they wore diil'urent from what he had been accustomed to pay. Fitehburg B. B. Co. V. Gage, 13 Gray (Mass.), 808. 1850. 39. Rights of the public. The privilege of making a railway and taking lolls thereon, when granted to an individual or a company, is a franchise. The public have an interest iu the use of the road, and tlie owners of the franchise are liable to respond in damages, if they refuse to transport an Individual or his property upon such road, without any reason- able excuse, upon being paid the usual rate of fare. Beelcman v. Saratoga and Schenectady B. B. Co., 8 Paige Ch. (N. Y.), 45. 1881. 40. Statute, Under § 40 of the general railroad act of 1850, companies where rates of fare are fixed by their charters may, whore EEAL ESTATE — RECEIPT. 599 Miscellaneous. such rates are lower than those provided for hy the said act, increase their rates to a sum not exceeding those prescribed by such law. Johnson v. Hudson Biv&r B. B. Oo., 49 N. Y., 455. 1872. 41. Toll defined. By the charter of the P. & R. K. B. Co. it was provided that the " toll on any property transported should not exceed four cents per ton per mile, and on each pas- senger two cents." Held, that " toll " does not mean carriage, but that it is a tribute paid for passage. That the company might charge for transportation in addition to the toll. Boyle V. Philadelphia and Beading II. B. Oo., 54 Penn. St., 310. 1867. KEAL ESTATE. See Cohvbyakob; Cobpobate Povrans. 1. Powers of company to hold land in fee. Common law corporations generally have the tight to take and hold real property in fee. Page v. Heineberg, 40 Vt, 81. 1868. 2. — The Vermont Central R. R. Co. acquired real estate by warranty deeds in the usual form, which land the company subsequently abandoned. Seld, that the land did not revert bv reason of such abandonment. lb. REAL ESTATE AGENTS. 1. Commissions. W. & D. contracted with a railway company at the close of the war to obtain for the company a release from the United States authorities of a certain tract of land, and to sell or procure a purcliaser at a given price, for a five per cent, commission, or a two and one-half per cent, commission if they failed to find a purchaser. They ob- tained the release of the property and were paid two and one-half per cent, commission. Alter several months' delay they failed to make a sale and the property was taken out of their hands and sold by other agents. Held, that they were not entitled to commission on the sale, although the property was subse- quently sold by other agents at a lower price to the same purchaser with whom they had been negotiating. Walton and Deslonde v. New, Orleans, Jackson and Great Nortlwrn B. B. Co., 33 La. An., 398. 1871. REBELLION. See Wae or 1861. RECEIPT, Ses CAnBUOB or Kebchahcise ; Evidence. 1. Connecting lines. The language of a re- ceipt for goods delivered to a carrier for ship- ment construed not to render him liable for losses occurring beyond his own line. WrigU v. Boughton, 23 Barbour (N. Y.), 561. 1856. 2. Evidence. Although a receipt in full is subject to explanation, yet it is admissible in the first instance to prove payment of all de- mands existing at its date. Bmithv. Oedar Falls and Minnesota B. B. Co., 30 la., 244. 1870. 3. — A receipt for goods in " apparent good order," does not prevent the company from showing that the goods most probably had been injured before they came into the posses- sion of the company. Blade v. Chicago, 8t. Pa/al and Fond du Laa B. B. Co., 10 Wis., 4. 1859. 4. — Where a receipt is given by a railroad company for goods before they were actually examined, it is prima facie evidence only of what it contains. The receiptor is not con- cluded from showing the actual condition of the property. Porter v. Chicago and Northwest- ern B. B. Co., 30 la., 73. 1865. 5. Negotiability. A receipt by which a person acknowledges that he has received from another so many shares of certain stock, enti. tling the bearer to a certain amount of bqnds to be issued, is not a negotiable instrument so as to bo fi-ee, in the hands of a transferee, from equities originally attaching to it. Bail/road Co..e.a'oMCM-fl!, 7 Wallace, 393. 1868. 600 EECEIVER. Appeal — Ejectment. RECEIVER. See Appeals ; Fkaud ; Hioiiwats ; In joribs to Do- UESTIO AKIHAIiS; iNJDIUEil TO FASSENaEBS; MOBT- gaqe; Stock. 1 . Appeal. An order appointing a receiver to receive tlie revenues, etc., of a railway com- pany, and bring the same into court, subject to its order, etc., and without any application of the funds, except to certain costs accrued, is not a iSinal order from wliich an appeal can be taken to the district court. Baton and Hamil- ton B. R. Go. V. Variium, 10 Ohio St., 623. 1858. 2. — No appeal lies to the court of appeals from an order of the circuit court appointing a receiver to take charge of property conveyed in trust during the pendency of a suit to en- force the trust. Maysville and Lexington S. B. Co. «. Pwnnett, IS B. Monroe (Ky.), 47. 1854. 3. Appointment. The appointment of a re- ceiver is ordinarily, though not always, wholly discretionary with the court below. Milwau- kee and Minneeota v. Sautter, 2 Wallace, 440. 1864. 4. — "Where, in a proceeding to foreclose a mortgage, and the amount due is undetermined, the appointment of a receiver is discretionary with the court where the suit is pending. lb. 5. — But where the amount due is settled by the supreme court, and the right of the mortgagor to pay the sum thijs settled isclear, the court below has no discretion to withhold restoration. lb. 6. — Where other small liens are claimed, the court will, however, before discharging the receiver, require security foi' their payment, if established as liens. lb. 7. — Such appointment ought not to be made, unless in a case of necessity to protect the stockholders or creditors from loss, or to prevent an alDuse of the corporate franchises. Oitj/ of Bochester v. Bronson, 41 Howard's Pi: (N.Y.), 78. 1871. 8. — A receiver will be appointed to take charge of corporate property to protect the rights of stockholders from impending danger. i'isher v. Ooneord B. B. Co., 50 N. H., 200. 1870. 9. — Under the facts in this cause the court refused to appoint a receiver, it appear- ing that the corporation had not kept separate the funds arising from the sale of alleged ille- gal shares of stock. Whelpley i>. Erie B. B. Co., 6 Blatchford (U. 8. C. C), 271. 1868. 10. — The court refused to appoint a re- ceiver under the facts as alleged in this par- ticular case. Ward v. Salem Street B. B. Co., 108 Mass., 832. 1871. 11. — The court will not grant a sequestra- tion, or appoint a receiver of a corporation against whom an execution has been returned unsatisfied, upon an ex parte application of the judgment creditor. But upon filing a pe- tition, the hearing may be set for a future day upon notice; and an injunction will be al- lowed, restraining tlie company from selling, assigning, transferring or incumbering its property. I>evoe v. Ithaca and Oswego B. B. Co., 5 Paige Ch. (N. Y.), 521, 1835; Morgan v. New Tork and Albany B. B. Co., 10 ib., 290. 1843. 12. — In general where personal property, or the rents and profits of real estate in dis- pute, are in imminent danger of being wasted, a receiver may be appointed to take care of it for the benefit of all concerned, during the controversy. State v. Nortltern Central B. B. Co., 18 Md., 198. 1861. 13. — It is now pretty well settled, that a receiver of a railway company cannot be properly appointed in an action brought by a stockholder or a creditor who has no judg- ment. Bamsey v. Erie B. B. Co., 88 Howard's Pr. (N. Y.), 193, 1869; Same v. Same, 7 Ab- bott's Pr. N. S. (N. Y.), 156. 1869. 14. Appointed by foreign state. Receiv- ers operating a railway under appointment of a court of chancery in another state, who act as common carriers and are there held liable as such to actions at law, may be sued as common carriers in Massachusetts. Paige « SmitJi, 99 Mass., 895. 1868. 15. Ejectment. Where, in an action of ejectment, the defendant claims title and pos- session under and by virtue of a deed execut- ed to him as receiver, by a corporation, in pursuance of an order of court, the deed, on production, will suflJco to show that the de- fendant is in the possession of the premises and claiming title thereto, under the corpora- tion. The proceedings under which the re- ceiver was appointed, need not be produced. SoliAiyler v. Marsh, 37 Barbour (N. Y.), 850. 1862. 16. Failure to operate a railroad. Where RECEIVER. 601 Highways — Misconduct of Directors. a railway has ceased to operate for many weelis, and a receiver has been appointed un- der the " act for the relief of citizens on the line of any railroad that has or may hereafter fail or neglect to operate," the proceedings of the receiver will not be stayed to allow an in- quiry into the causes of the failure of the company to operate. Long Branch and Sea Shore B. R. Go., in matter of, 9 C. E Green's Ch. (N. J.), 398. 1874. 17. — On application by claimants for the delivery of possession of a railroad which has under that act been placed in the hands of a receiver, they must show not only that they are able and willing to operate the road, but also that they are entitled to possession. lb. 18. Generalliability. Receivers, operating a railway under the orders of a court of equity, are liable as common carriers. Blumenthall «. Brainerd, 38 Vt., 403. 1866. 19. Highways. Where a railroad company iS^ authorized by its charter to divert the loca- tion of a highway, the right must be exercised with due regard to the public safety ; and the company will be held liable for all injuries sustained by travelers on the highway by rea- son of its negligence in not erecting proper barriers to guard them from driving into cuts or excavations made in the highway by the company, where such travelers are not in fault themselves. The same principles apply where the road is operated by a receiver. Potter, Re- eener, v. Bunnell, 20 Ohio St., 151. 1870. 20. Injuries to domestic animals — plead- ing. Where a railway company, in its answer to an action to recover the value of animals killed by its machinery, desires to set up tlie fact that its road is in the possession of, and being operated by, a receiver appointed by a federal court, the answer should be accompa- nied by the original or a copy of the order of the latter court for the appointment of a re- ceiver. Ohio and Mississippi R. R. Co. v. Fitch, 20Ind., 498. 1863. 21. — The mere appointment of a receiver, with the usual powers, does not relieve the railway company from liability to suiti The receiver operates the road subject to that lia- bility, lb. 22. — The act of March 4, 1863, (Sess. Acts 1863, p. 25), is probably valid where it operates alone on persons and rights under the laws of the state of Indiana, but, so far as it undertakes to empower the state courts to control the earnings of railroads which have been placed in the care and management of receivers, by orders of federal courts, it is inoperative and void. lb. 23. Injuries to employe.?. Where a receiv- er operates a railroad under the orders of a court, he incurs the same liabilities that would have been incurred by the company if it had been operated by the company. Meara's Adm'r V. Holbrook, Receiver, 20 Ohio St., 137. 1870. 24. — Satisfaction of a judgment obtained against such receiver can only be obtained out of the fund in his hands. lb. 25. Injuries to persons on the track. Where a railway is operated by a receiver ap- pointed by a court, the company is not liable for any act of the servant of such receiver. Ohio and Mississippi B. R. Oo. v. Davis, 28 Ind., 553. 1864. 26. — The possession of the receiver can- not be regarded as the possession of the com- pany, lb. 27. Land grant. To prevent a valuable land grant in favor of a railroad company from lapsing, a receiver was appointed at the in- stance of the bondholders of the company, whose principal security was the said lands, and the receiver was empowered to borrow money to complete the unfinished portions of . the road. Kennedy v. St. Paul and Pacifle R. R. Co., 2 Dillon (U. S. C. C), 448. 1873. 28.- Misconduct of directors. An action will not lie in behalf of a stockholder to re- move the directors and appoint a receiver of all the corporate property, upon allegations of misconduct on a part of the directors only, in which the others are not charged with partici- pating, except that they are under the influ- ence of the former. Belmont v. Erie R. R. Co., 53 Barbour (N. T.), 637, 1869 ; see Same v. Same, 6 Abbott's Pr. (N. S.), 442, 1868. 29. — The misconduct of some, or even of all the directors, affords no ground for taking away the rights of the stockholders who con- stitute the company, either by dissolving the corporation, or taking away its management and placing it in the hands of an ofiBcer of the court. lb. 3 0. Operation of road ; repairs, etc. Where the order appointing a receiver of the property of a railway company authorizes him "tc pay the amount due and maturing for mate eo2 RECONSTRUCTION OF STATES — RECORD ENTRIES. Miscellaneous. rials and supplies about the operation and for the use of said road;" held, that it could not properly be construed to include the payment of a renewed promissory note, originally made by the company in payment of a claim for rerolling iron for the use of the road a few years previous. Brown, «. New York and ErieB. B.Go., 19 Howard's Pr. (N.Y.), 84. 1859. 31. Powers of Receivers. A receiver of a corporation, displaces the directors or other body that by its charter are authorized to manage Its aflfairs, and under the direction of the court by whom he is appointed, has the sole control of its property and effects; and when authorized so to do, the exclusive power to use, its franchises. Oity of Bochester v. Bronson, 41 Howard's Pr. (N. Y.), 78. 1871. 32. Subscription to stock. The provision of the revised statutes authorizing the receiv- ers of insolvent corporations to sue for and re- cover any sum remaining due upon any share of its capital stock, is merely a cumulative remedy. Munn v. Ourrie, 3 Barbour (N. Y.), 294. 1848., 33. — A creditor of a railway company re- covered judgment at law, issued execution, had it returned unsatisfied, and filed his bill in chancery, under § 36 of the statute relating to " proceedings against corporations in equi- ty " (2 R. S., 463), for a sequestration^of the effects of the corporation and the appointment of a receiver. The receiver appointed in that suit then instituted a suit in equity against a stockholder to recover the unpaid balance of his subscription. The stockholder sued had paid all the calls made by the corporation, pursuant to the terms of his subscription, and other stockholders who had not paid their subscriptions were not made parties, ffeld, that the bill could not be sustained. Mann, Beoeiver, etc., v. Peutz, 3 N. Y., 415. 1850. 34. Summary process. The United States circuit court has power to compel, by sum- mary process, the restoration of any property abstracted from its custody, whether the party abstracting it be or be not a party to the suit concerning such property. JSJrie B. B. Oo. v. Heath, 8 Blatchford (U. S. C. C }, 586. 1871. RECONSTRUCTION OP STATES. 1. Georgia. The reconstruction of the state of Georgia and the various acts relating there- to — considered. Macon and Augusta B. B. Oo. V. Little, 45 Ga., 370. 1873. 2. Virginia. The judges of the court of appeals, who were in ofiBce under military ap- pointment when the state was restored to the Union, holding over and continuing to exer- cise their ofiice, their judgments and decrees are valid and binding. Washington, Aletmn- dria, etc., B. B. Oo. v. Alexandria, etc., B. B. Co., 20 Graltan (Va.), 31. 1870. RECORD ARI. 1. Laches. Where the president of a rail- way company was informed that an actioa was about to be commenced against his com- pany, before a justice of the peace, and gave instruction to the most convenient station agent to attend the trial, and in case of a re- covery against the company to appeal to court, and such agent was a diligent and faithful officer, but from ignorance of the law failed to procure security for the appeal, it was held, that there was no such laches as deprived the company of a right to a recordari. Norfh Oa/roUna R. B. Oo. v. Vinson, 8 Jones' Law (N. C), 119. 1860. RECORD. See Eminent Domain; Moktgaoe. RECORD ENTRIES. 1 . Docket. Where a formal record is not required by law to be made up, those entries which are permitted to stand in its place are admissible in evidence. Philadelphia, Wil- mington and Baltimore B. B. Oo. «. Howard, 13 Howard, 307. 1851. 2. — The docket entiy of an action is ad- missible evidence of its pendency in court. lb. 3. — A case having been marked "settled " on the docket by mistake, it was ordered, on appeal, that the cause be restored to the docket. Huffman v. Oreemille and OolumUa B. B. Oo 9 Richardson's Law (So. Car.), 404. 1856. KECORDING ACTS — EEHE ARING. 603 Miscellaneous. RECORDING ACTS. 1. Contract. TUe act of 1828, requiring " all deeds and conveyauces " of real or per- sonal property in trust to secure debts to be recorded, does not include an agreement, not under seal, by whicli an incorporated railway company, in consideration of an engagement by the other party to act as its agents in the purchase and shipment of iron, " pledges the real and personal estate of said company " to secure the said agents. Fash v. JRavesies, 33 Ala. N. 8.451. 1858. RECORDS OF CORPORATIONS. 1. Stockholders. After the organization of the corporation, its records are competent and sufficient evidence of who are the corporators, and the number of their shares, unless proof to destroy their effect be introduced. Penoi- scot B. B. Co. V. White, 41 Me., 512. 1856. 2. The secretary of a corporation cannot hold possession of the books of record of the company after his term of office has expired, notwithstanding that he has purchased the blank books with his own funds. Neither can he claim a lien upon the books for any debt due him from the company. State ex rel. V. Goll, 3 Vroom (N. J.), 385. 1867. REDEMPTION. See MOBTGAGE. 1. Equity of redemption. Sections 29 to 87 of ch. 76 of R. S., do not permit the sale of au equity of redemption upon two or more exe- cutions jointly in favor of different creditors. Clw/pman e. Androsc-oggin B. B. Go., 54 Me., 160. 1866. 2. — A railroad corporation and a portion of its stockholders cannot join as complain- ants in a bill to redeem the road from a mort- gage, there being no allegation that the cor- poration has been guilty of a violation of its trust. Kennebeo and Portland B. B. Go. v. Portland and Kennebec .B. B. Go., 54 Me., 173. 1866. 3. — All persons so connected with the mortgages of a railroad as to be liable for in- come under it should be made parties defend- ant, lb. 4. — Such bill must also allege a formal offer to pay such an amount as may be found due on the mortgage. lb. REFERENCE. See Costs. 1. An order directing a reference in a case in which a reference is not authorized is an appealable order. St. Paul and Sioux City B. B. Go. v. Gardner, 19 Minn., 132. 1872. 2. Exceptions. Under the Referee Act (Laws of 1861, p. 157); the court will not set aside the judgment rendered upon the report of a referee unless exceptions have been taken thereto. Arriboy, Lansing and Tra/oerse Bay B. B. Co. V. Byerly, 13 Mich., 439. 1865. 3. The report of a referee will be set aside when contrary to the evidence. Sackett v. New YorTt, and New Haven B. B. Go., 8 Bosworth (N. Y.), 338, 1861 ; see also Morrii v. Second Avenue B. B. Go., ib., 679. 4. — Where the report of a referee is so de- fective that the court is unable to ascertain the merits of the case, the judgment will be reversed and a new trial granted. Garroll v. Grand Trunk B. B. Go., 19 Mich., 94. 1869. 5. — It is improper to move for an order referring a cause back to a referee to make a supplemental report, where it appears from tie report that he has passed upon all the facts necessary to a decision of the cause. Lakin v. New York and Erie B. B. Co., 11 Howard's Pr. (N. Y.), 413. 1855. REHEARING. See Eqcitt. . 1. When to be granted. A rehearing will not be granted, unless the court sees some reason to apprehend that a mistake in law or in fact has been made in the decision. Attor- ney General v. New York and Long Branch B. B. Go., 9 C. E. Green's Ch. (N. J.), 49. 1873. 604 RELEASE — REPLEVIN. Miscellaneous. RELEASE. 1. Damages for personal injury. If the plaintiflF was induced to sign a release of his claim for damages by representations that it covered merely a month's wages, or if he signed it under such a belief, induced by the words or acts of defendant's agents, it would not operate as a bar. Illinois Central B. H- Co. «. Welch, 52 111., 183. 1869. REMITTITUR. 1. Excessive damages. Inactions of tort, the same practice is proper which is pursued in actions of contract, so far as to allow the party in whose favor the verdict has been giv- en, to remit a portion of the damages, instead of the court awarding a new trial, absolutely. Collins V. Albany and Solieneotady B. B. Co., 12 Barbour (N. Y.), 492. 1852. 2. — Where the damages assessed by the iury are excessive, but not in a degree to necessarily imply the influence of passion or prejudice in their finding, the court, in the exercise of a sound discretion, may make the remittitur of the excess the condition of re- fusing to grant a new trial. Pendleton Street B. B. Co. V. Bahman, 32 Ohio St., 446. 1872. 3. — Where the recovery was reduced to an amount satisfactory to the judge below, the supreme court will not interfere. Zoyd «. Hannibal and 8t. Joseph B. B. Co., 53 Mo., 509. 1873. 4. Improper evidence. Where upon tlie return of a verdict the plaintiff enters a re- mittitur for such portion of the verdict as was the result of the admission of improper evi- dence, the error in admitting such evidence will be cured thereby. Toledo, Wabash and Western B. B. Co. v. Beats, 50 111., 150. 1869. REMOVAL OP CAUSES. See FEDsnAi. Codbts. REORGANIZATION. 1. Former iebtu. The Somerville and Easton R. R. Co. executed a mortgage undei which its road was' sold and the purchasers reorganized a company under the same name. Seld, that the new company could not be sued at law for a debt arising under the old organi- zation. Central B. B. Co. v. Bunn, 3 Stock- ton's Ch. (N. J.), 336. 1857. 2. — Where a railway company reorganizes under the act of April 11, 1861, and in the agreement therefor, it is stipulated that certain bonds of the original corporation shall be as- sumed by the new company, and the holder thereof entitled to vote at all mpetings of stockholders, upon conditions specified, which he performs, the new company becomes liable to pay the bonds, and the holder thereof en- titled to vote without further action on the part of the new company. State ex rel. v. Me- Daniel, 32 Ohio St., 354. 1872. REPEAL. See Chaktbb. 1 . Construction. To give effect to a statute repealing a former statute, the repealed statute must be so pointed to as to leave no doubt what statute was intended. CommamOealth v. Central Passenger B. B. Co., 52 Penn. St., 506. 1866. 2. — A statute which refers to and adopts the provisions of another statute, is not re- pealed by the subsequent repeal of such other statute. Sifca v. Chicago and Northwestei-n B. B. Co., 21 Wis., 370. 1867. 3. Implication. Repeals by implication are not favored, and the incorporation of a portion of a public law into a private statute cannot be treated as the repeal of the pro- visions omitted. Pratt «. Atlantic and St. Lawrence B. B. Co., 4Si Me., 579, 1866; see People V. San Francisco and San Josi B. B. Co., 28 Cal., 254, 1865. REPLEVIN. See PLBADiuaj Taxation. 1. Bond. A replevin bond, the penalty of which is " double the value of the property RESCISSION — RIGHT OF WAY. 605 Miscellaneous. hereinafter named to be replevied," is invalid, for want of expressing the amount of the pen- alty; and if the objection be taken at the re- turn term of the action of replevin, that action must be dismissed. Clarh v. Connecticut River E. B. Co., 6 Gray (Mass.), 363. 1856. 2. Carrier's lien. Where a common car- rier has become liable to the owner of goods for damages in their transportation, to an amount larger than the carrier's charges, and the carrier has refused to deliver the goods un- til the charges are paid, replevin is maintain- able. Dffer V. Grand Trunk JR. M. Co., 42 Vt., 441. 1869. 3. — The question as to the carrier's right to freight, and of his liability for damages, can be as well tried in this action as in any other. lb. 4. — The goods in question were bought by the plajntiflf in Vermont of a dealer in Detroit, who, to make out a car load, put in forty-three dollars' worth more than the plaintifif had or- dered or sent money to pay for, and the de- fendant voluntarily advanced that amount when they took the goods, without the knowl- edge or request of the plaintiff. The defend- ant claimed freight for the whole, and for the money advanced, and the plaintiff replevied the whole without repudiating the acts of de- fendant in making such advances. Held, that the conduct of the plaintiff was a ratification of the act of defendant in making such ad- vances, and that replevin for the whole of the goods is maintainable. lb. 5. — A common carrier, from whom a por- tion of a consignment of goods is replevied after the delivery of another part, and before the arrival of a third part, may recover freight on the goods already delivered, and also on those which arrive and are taken by the oflScer and delivered to the consignee after the beginning of the service of the replevin ; but not on the goods replevied, and for which judgment is afterwards given on the replevin for the con- signee. Boston and Maine B. B. Co. v. Brown, 15 Gray (Mass.), 328. 1860. 6. Demand. The action of replevin under the statute of Michigan is in the detinet whether the taking be wrongful or not. A demand is annecessary where the taking ia wrongful. Leroy v. Bast Saginaw B. B. Co., 18 Mich., 233. 1869. 7. Title. The plaintiff must recover, if at all, on the strength of his own right of posses- sion or title. McKinsie v. Baltimore and Ohio B. B. Co., 28 Md., 161. 1867. RESCISSION. 1. Interest. Where a purchaser at a credit sale availed himself of the privilege of paying cash, on being allowed a deduction at the rate of eight per cent, per annum from the price of such advance, this circumstance will not en- title him, on obtaining a rescission of the sale, to claim intei'est at that rate. Dowlin ■». N'eiD Orleans and Nashville B. B. Co., 5 Robin son (La.), 5. 1843. REVIEW. 1. Bill of review. To justify a bill of re- view for newly discovered matter, it must be shown that it first came to the knowledge of the party after the time when he could have used it in the former hearing of the case. West Feliciana B. B. Co. ■». Stockett, 37 Miss., 739. 1854. 2. Exceptions. No exceptions lie to the re- fusal of the judge at nisi prius, to grant a re- view. York and Cumberland B. B. Co. v. Clark, 45 Me., 151. 1858. RIGHT OP ENTRY. See Eminent Domaik. RIGHT OF WAY. See CoNTBTANOB ; CoKPOBATB PoWEES ; Eminent Do- main; FiBEs; Pbaschisbs; Injunction. 1. Change of location. A company, after making a survey, and staking out the same, tlirough the plaintiff's land, purchased of him a strip of land, six rods in width, and took a deed for the same, in which it was described " covered by the location of their railroad, or 606 RIGHT OF WAY. Constitutional Conveyance — Contracts, etc. that may he finally covered by such location." Afterwards the location was changed. Held, that the company obtained no rights in the new location under the deed. Hall v. Pickering et at, 40 Me., 548. 1855. 2. — When a release is obtained from the owner of land for the right of way, with a proviso calculated to confine the line of such road to a particular portion of the land, the release will not be operative, if the company afterwards construct its road across the land by a substantially different route. Douglas v. New Fork and Brie B. B. Co., Clarke's Oh. (N. Y.), 174. 1840. 3. Conditional conveyance. Where a per- son conveys the right of way for a railway, upon condition that crossings and cattle guards should be constructed, it was held, that the grantor held an equitable lien upon the land conveyed, not only for the purchase money, but also for the damages in not con- structing the road in the manner provided by the contract. Dayton, Xenia and Belpre B. B. Go. V. Lewton, 20 Ohio St., 401. 1870. 4. — The grantor retaining the legal title is a fact sufficient to put subsequent grantees and mortgages upon their guard as to his legal rights. II. 5. — The grantor in such case can either enforce specific performance of the contract or enforce his specific lien. lb. Q. — A conveyance to a railway company of land for the right of way of such road, up- on condition that the company should erect and maintain a certain dam or embankment, conveys the title to the land subject to be de- feated by the failure of the company to com- ply with the condition, the condition being a condition subsequent. Underhill v. Saratoga and Washington B. B. Co., 30 Barbour (N. Y.), 455. 1855, 7. — Tlie defendantobtained from the plaint- iff a deed in fee, of a strip of land for the ex- tension of its railroad; and covenanted to make and maintain the fences, etc. ; and the deed was to be void, unless the railroad was completed through the premises granted on or before a certain day therein named. The road was not completed at the time specified, but the plaintiff made no effort to assert his right to the estate. During a period of two years, he saw the defendant make large expen- ditures over the premises in question ; plaint- iff gave notice to make the fences which was done about a year before the suit commenced. Held, that the plaintiff had waived the forfeit- ure, and could not recover the premises, in an action of ejectment. Ludlow v. New York and Harlem B. B. Co., 12 Barbour (N. Y.), 440. 1852. 8. — Where a conveyance of a right of way is made on condition that the depot of the company shall be located within a certain dis- tance of a given place, a breach of this condi- tion will defeat the title conveyed by the deed, and the grantor may have his damages as- sessed as if no deed had ever been made. And the estate conveyed, being less than a free- hold, no formal act of entry on his part is necessary in order to avail himself of the right to proceed in this manner. Taylor n. Cedar Bapids and St. Paul B. B. Co., 25 la., 371. 1868. 9. — A condition in the deed, that certain portions of tlie land conveyed shall be kept open as public streets, is not void as imposing a duty or trust upon the corporation iucon sistent with its business, and outside of the objects for which it was formed. Tinkliam v. Erie B. B. Co., 53 Barbour (K. Y.), 393. 1800. 10. Con-sideration. The grant of the right of way in consideration of the location of a railway is not revocable after it is acted on. Macon and Augusta B. B. Co. v. Bmoen, 45 Ga., 581. 1872. 11. Contracts and Conveyances. A rail- way company may dispense with the assess- ment of damages by commissioners for pass- ing over the land of a proprietor, by promis- ing to settle and pay it without assessment, and the land owner may recover upon the special promise. Plott is. Western North Car- olina B. B. Co., 65 N. C, 74. 1871. 12. — An action will not lie to recover the price of land sold for right of way to a rail- way company, where no written contract has been made and subscribed by the vendor and assented to by the purchaser. Beynolda t. Dunkirk and State Line B. B. Co., 17 Barbour (N.Y.), 013. 1854. 1 3.— Where the petitioner for damages has convoyed the right of way to the company, he is not entitled to damages in this proceeJiug, and an award giving him damages will be set aside. Western Pacific B. B. Co. v. Beed, 05 Cal., 621. 1868. RIGHT OF WAY. 607 Crossings — Fences. 14. — Where a tract of land is deeded to a railway company, it is to be presumed that all the contingent damages -which would have been included in an assessment of damages by commissioners, were considered in determ- ining the price. Norris v. Vermont Central B. B. Co., 28 Vt., 99. 1855. 15. — Proof of a written contract to sell land to a railway company for an agreed price within a certain time, and of a tender of the amount within the time and a refusal to ac- cept it, will not authorize the company to enter upon the land afterwards and locate its road upon the same, or defeat a petition for the damagfis sustained by reason of such locsw tion. Whitman v. Boston and Maine B. B. Go., 3 Allen (Mass.), 133. 1861. 16. — A conveyance of a right of way will not be held void for uncertainty of descrip- tion on the ground that it is a deed in fee, when it appears from the instrument that it was only intended as a. conveyance of a right of way. Barlow i). Chicago, Bock Island and Pacific B. B. Co., 29 la., 376. 1870. 17. — Delivery of a deed or contract is es- sential to its validity. Stephens v. Buffalo and New York B. B. Co., 20 Barbour (N. Y.), 332. 1855. 18. Crossings. Where the owner of land, incumbered by a mortgage, sold to a railway company a portion of it, to be used for a track, and there was at the time of sale a road over the part conveyed, the right to which had been reserved in the agreement of sale, but was omitted in the conveyance; in an ac- tion by one who subsequently purchased the land at a sheriff's sale under the mortgage, against the company and for obstructing this way, it was held, that the right of way did not originate in the reservation in the agreement, but existed previous thereto and was merely recognized therein; that the purchaser under the mortgage was entitled to the road and might maintain an action on the case against the company for obstructing it. Pennsylvania B. B. Co. 0. Jones, 50 Penn. St., 417. 1865. 19. Culverts and ditclies. A grant of the right of way carries with it the right to con- struct suitable culverts, and the right to con- struct such culverts includes the power to cut the necessary ditches to carry the water into such culverts, although such ditches may ex- tend beyond the limits of the right of way. Babcock v. Western B. B. Co., 9 Metcalf (Mass.), 553. 1845. 20. Cuts and embankments. Wliere the right of way is granted to a railroad com- pany, and it is necessary to make cuts through the ground to the proper enjoyment of the right of way, it is not incumbent on the grantee to build walls to prevent the falling of the banks. Hortsman v. Covington and Lexington B. B. Co., 18 B. Monroe (Ky.), 318. 1857. 21. Drains. Where land was granted to a railroad company, and, after the usual cove- nants, the deed contained this clause, " said corporation to make us a culvert or pass for cattle to pass under said road ;" held, that such a grant and provision did not justify the com- pany in digging a ditch in the adjoining land of the grantor to drain the passway. Mills v. Boston and Maine B. B. Co., 18 N. H., 179. 1846. 22. Fences. Where a party granted the right of way across his land, by deed, upon condition that the company should fence the road within a reasonable time, which it neg- lected to do ; held, that an action on the case will lie to recover damages sustained by the failure to build the fence. Conger v. Chicago and Bock Island B. B. Co., 15 111., 866. 1854. 23. — A railroad company, in consideration of an amicable settlement of his damages by the owner of land, agreed with him to fence the land taken ; and, failing to do so within a reasonable time, was sued by him for breach of the agreement. It was held, that a subse- quent erection of the fences by the company without the plaintiff's consent or approval did not affect his right to recover; and that the measure of his damages was the sum which it would fairly cost to erect the fences according to the agreement. Lawton v. FitcKburg B. B. Co., 8 Gushing (Mass.), 380. 1851. 24. — Where the land owner, by a written contract, agreed to give to a railroad company the perpetual right of way through the same, at a stipulated price which was paid to him, with a provision in the contract that when the road should be completed, the company should fence the same, held, that after the road is completed, the owner of the land cannot, upon failure to put up the fence, eject the company from the land. Hornback v. Cincinnati and Zanesville B. B. Co., 30 Ohio St., 81. 1870. 25. — Neither a railway company, nor the 608 RIGHT OF WAY, Harbors — Boleaso. owner of land adjacent to the railway, is re- quired by law to fence the line between thorn. Each is left by the law lo fence or not, as the interest of each shall require. Oregon Central li. n. Co. V. Wait, 8 Or., 01. 1860. 26. lltirbors. In Connecticut, the owners of land bounded on a harbor own only to high water mark, and whatever rights such owners have of reclaiming the shore are niei'e franchises. Loclcwood v. New York aiid Nm Uami B. R. Co., 87 Conn., 887. 1870. 27. — When, however, such reclamations are made, the reclaimed portions in general become integral parts of the owner's adjoining lands. Ih. 18. — The principles governing the case are the same as those which prevail where the sea recedes gradually through accession of soil to the land. Ih. 29. — AVhere there is a right of way to and from a harbor, such right continues over all accessions of soil which accrue between high and low water mark, whether the line of Iiigli water mark is changed by natural or artificial causes. Ih. 30. — Where a right of way, granted by a deed to a railroad company across certain lana bounded upon a harbor, was described in the deed as " being in length about 23 chains, and extending from said harbor on the west to the land of N. on the east, and four rods in width," •with a reference to the survey of the road for a more particular description, it was held, that the right of way extended across the mud flats lying between the west line of the land at high water mark and low water mark. Ih. 31. Incumbrance. A right of way for a railroad is an incumbrance for which a grantee may recover under a covenant against incum- brances, though he had full knowledge of such incumbrance at the time he accepted the deed. The case of Van Wagner v. Van Noitrand, 19 la., 122, followed. Barlow v. McKinley, 24 la., 69., 1887. 32. License. Whether the proceedings of the railroad company wore sufficient to divest the title of the owner of the land upon which the road was located, or whether he thereby had any notice of an intention on the part of the company to fake any portion of his land, is immaterial, if for a number of years after the initiatory steps taken for the location and construction of the road, there was no attempt on his part to prevent the execution of the work. In such case, it must be assumed that the occupation of his land by the company for the purpose to which it was applied was as- sented to by him. Being thus permitted to occupy the land, the law would protect the company in the enjoyment of any property used in connection with such occupation, and if compelled to leave the premises by proper procpedings, would permit such property to be removed. Dietrich v. Murdoch 42 Mo., 279, 18U8. 83. Release. A mere release, if founded upon a consideration, may bo valid without a seal. Zeviaton ii. Junction R. li. Co., 7 Ind., 697. 1850, 34, — But a release intended to operate as a grant of an easement in land must be executed under seal. lb. 86. — A release of all damages on account of the laying out or construction of a railroad through and over the land of the releasor, docs not cover damages occasioned to the remain- ing land of the releasor by the construction of the railroad over the land of other persons. Eaton V. Boston, Concord and Montreal B. B 0-)., 51 N. H., 504. 1872. 36. — The delivery by the releasor of an other, wise perfectly executed deed of release, to a known agent of a railway company is, in law, a delivery to the company, and it will bo ope- rative, according to ils terms, from the time of such delivery, no matter what verbal stipu- lations or conditions may have accompanied its delivery in respect to the operation of the deed after delivery. Cincinnati, Wilmington, and Zanesville R. R. Co. v. Iliff, 10 Ohio St., 286. 1862. 37. — In a suit brought against a railway company to recover damages done to the plaint- iff by the construction of the railway through his farm, to which the company answered, sot- ting up a release of such damages, and the plaintiff replied, alleging that the release was obtained from him by fraudulent representa- tions in regard to the location of the road through his lands, mere oral testimony of wit- nesses in regard to what their opinion had been in reference to the permanent location of the road, provlous to the execution of the release, is only matter of opinion, and is not sufficient *.o establish fraud in its procurement. Ofiio and Mississippi R. B. Co, v. Bath, 11 Ind., 588. 1858. RIPARIAN RIGHTS. 609 Specific Performance — Verbal Consent — Boundaries. 38. Specific performance. The owner of land, through which a railroad company was authorized to make its road, gave it a bond to convey to it by a certain day, on payment of a specified sum of money, so much of his land as should be taken by the company by author- ity of law ; and the company, within the time allowed by law, entered upon and took the land for the purposes of its road ; but, on the owner's tendering, on the day named in the bond, a deed of the land so taken, refused to piiy him the stipulated price. It was held, that the agreement, not having been signed by the company, could not be specifically enforced against it in equity. Jacobs v. PeterhorougU and Shirley B. B. Co., 8 Gushing (Mass.), 233. 1851. .49. Subsequent grantee. Where a railway was built in 1853, and thereby a pond was formed on certain land, and, in 1853, the own- er of the land granted to the company the right of way over it, and in 1854 conveyed the same land to A., excepting the right of way ; held, that A. could not recover for loss of land covered by the pond, it being an injury to the former owner, and not to A. Illinois Central B. B. Oo. ■». Allen, 39 111., 305. 1866. 40. Title of railway company. Where a land owner has granted a right of way to a railway company organized under a charter in perpetuity, and the grant contains no limit as to time, the easement will be perpetual, un- less terminated by release or abandonment. Junction B. B. Oo. v. Buggies, ^ Ohio St., 1. 1857. 41. — Where such railroad, with its appur- tenances, is subsequently pledged to the state in security for a loan, and, the pledge being forfeited, is sold by the state, the easement passes by the sale, and is vested in the pur- chaser, lb. 42. — Where a grant of the right of way was made with the proviso that " if said road shall hereafter be abandoned, said ground to revest to my heirs again ;" it was held, that no revestiture takes place until a forfeiture is de- clared by a judicial decision. Harrison v. Lexington and Ohio B. B. Oo., 9 B. Monroe (Ky.), 470. 1849. 43. ■— Such right of way may be transferred to another company for the same uses, and as long as the land is used for railway purposes, it cannot be considered " abandoned, " within 39 the meaning of the proviso in such convej'- ance. lb. 44. — A right of way conveyed by deed is an interest in land, and not a mere chose in action, and will pass by a conveyance of all the rights, titles, interests and franchises of the company owning the same. Ba/rlow v. Ohicago, Bock Island and Pacific B. B. Co., 39 la., 376. 1870. 45. — When the owner of real estate volun- tarily conveys it, without restrictions, the pur- chaser can use it for the purpose of a railroad, without subjecting himself to damages to his grantor. ITiica, Ohenango and Susquehanna B. B. Oo., in matter of, 56 Barbour (N. Y.), 456. 1868. 46. Verbal consent. Where the charter of a railway company gives power to take lands for the purposes of its road, and to take pos- session of and hold the lands with the con- sent of the owner, or without consent, upon payment or tender of damages, if no particu- lar mode of consent is prescribed by the char- ter, it is not necessary to have the consent in writing ; a verbal consent is sufficient, Oen- tral B. B. Oo. v. Hetfield, 5 Dutcher (N. J.), 306. 1861. 47. — A land owner said to the president of a railway company, when endeavoring to settle for damages, that if they would run the road "further over" from his house and spring he would give the right of way for nothing. The president said that " he would try to accommodate." Held, that this was too slight to prove the grant of a right of way, or release of damages, for there was no designa- tion of the land. The promise, to try to accom- modate, was not an acceptance of the offer East Pennsylvania B. B. Oo. v. Schollenberger 54 Penn. St., 144. 1867. RIPARIAN RIGHTS. See Eminent Domain ; Wateeooubses. 1. Boundaries. Riparian owners on navi gable streams only own to the stream, and no* to the middle thereof. 1 St. at Lar., 446; ? ib., 73 ; Bailroad Oo. v. ScJmrmeir, 7 Wallace 373. 1868. 2, — The rights of riparian owners extenfi to low water mark. Philadelphia and Beadini 610 ■RIP RAP— ROUTE. Approaoli to Buildings and Bridges — Charter. H, B. Oo. V. Morris, 7 Philadelphia Rep. (Penn.), 286. 1869. 8. Public lands. The meander lines, run in surveying public lands along the margin of streams, are intended for the purpose of com- puting the quantity of land, and not as boundaries. The stream is the true boundary. A grant of land in Minnesota of 9.28 acres ■was therefore held to include a small tract of 2.78 acres of low land separated from the former tract by a channel t-wenty-eigUt feet wide, which at a medium stage of water made an island of the tract. Bailroad Oo. v. Schur- ineir, 7 Wallace, 273. 1868. RIP RAP. See COHTBAOT. RIVERS. See BniDSEe; Eipabias Eights; Watehcodbsbs. ROADS. See HionirAys. ROLLING STOCK. See MosTaAOE, ROUTE. See CHABTBIli COBPOBATB PoWEBS ; KlHIIT OTWAy; Stbebt Kailtvatts; Scbbcbiptiohs by Inditid- UALS. 1. Approach 'to building» and bridges. There being in the charter of a railroad com- pany no precise limit of approach towards buildings and bridges, the company may lo- cate its road and stations on such route and at such points as will be beneficial to the com- pany's and the public interest. Frankford and BrUtol Turnpilce Oo. v. PMlaMpMa and Tren- ton B. B. Co., 54 Penn. Bt, 345. 1867, 2. Change of I'oute. A railroad company may, at least before actual construction of the road, in accordance with its discretion, change its line or route after the same has been fixed by it. MalimlM County B. B. Oo. v. Dee Moines Valley B. B. Oo., 28 la., 437. 1870. 3. Charter. The charter of the W. R. R. Co. authorized the construction of the road " beginning at any point on the C. R. R. be- tween S. river and the junction of said C. R. R. and the N. and L. R. R. j thence running to Amherst Village and through Milford to some point in East ■Wilton, or any point on the N. and L. R. R. in the village of Nashville; thence to some point in East 'Wilton ; thence to Greenfield, or to the centre village of Peterborough, and thence to Marlow ; or, be- ginning at any point on the south line of the state within one mile of W. river, thence run- ning to some point in East 'Wilton, thence to Greenfield or to the centre village of Peter- borough, and thence to Marlow as aforesaid." The company applied to the railroad commis- sioners who reported that the public good would bo promoted by laying out the road on the following route: "Commencing at the village of East 'Wilton, thence passing through the village in Milford to Amherst Plain, and thence through the southwesterly part of the town of Merrimack to the depot of the N. and L. R. R. in Nashville." Held, that the report was authorized by the charter ; that any route with one terminus in the village of Nashville and the other at East 'Wilton, having no inter, mediate bound, might or might not go to the Amherst village. 8tate n. Wilton B. B. Co., 19 N. H., 521. 1849. 4. — The charters of the Baltimore and Ohio R. R. Co. and Chesapeake and Ohio Canal Co. — construed. /7«M, that the Canal Co. has the priority of right In the selection of its route in the valley of the Potomac. Olieaapealce and Ohio Canal Oo. «. Baltimore and Ohio B. B. Co., 4 Gill & Johnson (Md.), 1. 1832. 6. — The words, from a town or city, used in a charter granted to a railroad company, are to be taken inclusively | and in the con- struction of its road, it has the riglit to enter the corporate limits of such town or city. Tennessee and Alabama B. B. Oo. v. Adams, 3 Head (Tenn,), 506. 1859. 6. Choice of routes. A railway company, RULES— SA.LES. 611 MiscelUmeous. by its charter, having a riglit to one railroad i only, hut the choice of three routes, cannot complain that one of those routes, which it did not adopt, was used by another company. Louisville and Portland S. li. Go. v. Louimlle City B. R. Go., 3 Duvall (Ky.), 175. 1865. 7. Conflict of the locations of two rail- ways. Two railway companies were incor- porated to complete two independent lines of road across the state. The termini were desig- nated but no route was prescribed. Held, that the prior right attached to the company that first surveyed and adopted a line, and filed the survey in the office of the secretary of state. Morris and Essex R. R. Go. o. Blair, 1 Stockton's Ch. (N. J.), 635. 1854. 8. Constitutional law. By the act of March 36, 1860, and the act of congress of June 3, 1864, and an amendment of its articles of incorporation, the Cedar Rapids and Mis- souri River R. R. Co. is authorized to build a railroad from Lyons to a point of intersec- 'tion with the Chicago, Iowa and Nebraska Railroad within the corporate limits of the city of Clinton. The act of the legislature of March 20, 1860, authorizing the building of said railroad from Lyons to Clinton, is not one of the cases where the law must be general and uniform in its operation as contemplated by the constitution. Clinton City «. Cedar Rapids and Missouri River R. R. Co., 34 la., 455. 1868. 9. Contract. An agreement by a railway company, to cross a stream north of a certain street, requires it to cross the stream where a northerly line from such street would intersect it. JHfew Albany and Salem R. R. Go. v. MeCor- micJc, 10 Ind., 499. 1858. 10. Filing survey. The mere filing in the office of the secretary of state, of the survey of a railroad, is no notice to parties purchasing lands included in the survey. Such filing gives the railroad company neither title nor possession. Central R. R. Go. v. Hetfield, 3 C. E. Green's Ch. (N. J.), 333. 1867. RULES. See Depot; Inj-ueies toPassbnoers; Passengers; Tickets. 1. Passengers. Passengers must take no- tice of and conform to established usage and custom, and such regulations as are necessary for the convenience of both parties, and the proper government of the business of the car- rier, not contrary to law and the contract of the parties. Sovthern R. R. Go. v. Eend/rick, 40 Miss., 374. 1866. 2. Reasonableness. It is error for a court to submit to the jury the question, whether a rule adopted by a railroad company for the government of its business is a reasonable one or not. Such question is one purely of law, and must be determined by the court. Illinois Central R. R. Co. v. Whittemore, 43 111., 430. 1667. 3. Usage. In an action brought against a rail- way company, where it relies upon a rule es- tablished by it for the regulation of business, which the court instructs a jury is a legal and valid rule, the rejection of evidence, that the uniform usage of ofher companies is the same, is not error. Tracy v. New York and Harlem R. R. Co., 9 Bosworth (N. Y.), 896. 1863. RUNNING SWITCH. See Injuries to Persons on the track. SALARY. See CoufENSATioN; Sibectobb. SALES. See Eminent Domain, page 201; Evidence; Fraud. 1. Sale of personal property— acceptance. To constitute an acceptance of goods, there must be some act amounting to a change of possession, so that the seller no longer retains a lien for the price. Edwards v. Grand Trunk B. R. Co., 54 Me., 105. 1866. 2. — appraisement ; award. An action on an award, although on a parol submission, is not within the statute of limitations. Oreen and Coates Streets R. R. Go. «. Moore, 64 Penn. St., 79. 1870. a. — A railway company accepted a charter 612 SALES. Sale of Personal Property. on the condition that it should purchase at the option of the owners, the horses, etc., of an omnibus line, at a price to be assessed by appraisers. Held, that the valuation of the appraisers was not an award. lb. 4. — Where parties agree to buy or sell at a sum fixed by appraisement, the cause of ac- tion is on the contract, not on the appraise- ment, lb. 5. — The statute of limitations is a good plea to such appraisement. lb. 6. — The appraisers need not decide on evidence heard in the presence of the parties; they would be expected to decide on their own knowledge, but may seek information else- where, lb. 7. — An appraisement was made by two of three appraisers; under proceedings in equi- ty to restrain the company from exercising its franchise before paying the appraisement, the court ordered the company, among other things, forthwith to enter an amicablp action at law to try the legal and binding efiect of the finding. Held, that this was not an issue of fact sent by the chancellor to a jury to in- form his conscience, but a remission of the plaintiflEs to a court of law, to decide contested facts and also to establish the legal and bind- ing effect of the finding in all respects. lb. 8. — In the action at law, the defendants pleaded the Statutes of Limitations, which was decided in its favor, on the ground that the finding was not an award but an appraise- ment. Held, that this was a judgment on the effect of the appraisement, and final in this ac- tion, lb. 9. — cars. A railroad being a public high- way, every owner of cars on it is in possession of his own cars on what part soever of the track they may be ; such cars are not in the possession of the company. Tmniclc v. Smith, 63 Penn. St., 18. 1869. 10. — McCormick owned a car, which was on a siding in charge of an agent of the com- pany ; he sold it to Trunick, who requested the agent to take charge of it for him, which the agent did, the car remaining on the siding as before. Held, not to be such a change of pos- session as to protect the car from McCormick's creditors. lb. 11. — The agent of the company did not become the bailee of Trunick. lb. 1 2. — conditional sales. Railroad iron to the value of upwards of $60,000 was purchased by S. for the use of a railroad company, with its note, secured by its mortgage bonds for $30,000 and the personal guaranty of eight of the friends of the road, including 8., to the amount of $5,000 each, and was by S. loaned to the company to be laid down and used on its track ; the title not to pass until the compa- ny had paid for the same ; and, in default of payment, S. to have the right to take up the iron and hold the same for the indemnity, amongst other things, of the guarantors. Un- der this contract, S. delivered the iron to the railroad company, and it was laid down on its track in Massachusetts. Upon garnishee pro- cess served in Bhode Island upon S. by the creditors of two of the guarantors, for the pur- pose of attaching the iron as in his hands, for their use, it was ^ZtZ, notwithstanding the com- pany was in default to the injury of the de- fendants, that S. was not chargeable as gar- nishee for the iron, because it was not in his possession, and because the defendants had no attachable interest in it. Olwrke v. Famum, 7 R. I., 174. 1862. 13. — A sale and delivery of goods, on con- dition that the title shall not vest in the ven- dee until payment of the price, passes no title until the condition is performed. Ooggill v. Hartford and New Haven S. H. Co., 3 Gray (Mass.), 545. 1855. 14. — delivery. In a suit brought to re- cover the price of goods sold and delivered on credit, there was no evidence introduced to show any agreement about the delivery of the property by the vendors to the purchaser, or as to the manner orthe time of delivery, or that the purchaser ever received the goods, or that he knew that they had been, or were to be, de- livered to a railroad company for him. Held, that in the absence of some order or agreement on the part of the purchaser to have the prop- erty sent to him by railroad, or of some evi- dence in regard to usage, or the course of trade, from which an agreement to have it so sent might be inferred, a delivery to the railroad company was no delivery to the purchaser. Everett v. Parks, 63 Barbour (N. Y.), 9. 1873. 1 5. — H. bought ten tons of railroad iron upon a siding of the old Portage road, from the vendees of the state, for which he paid, and received a written order on the state agent for the delivery of the iron, but never present- SALVAGE — SEAL. 613 Miscellaneous. ed it, and, in consequence, the iron purchased was not separated and set apart from a larger quantity of railroad iron witli which it was mixed. The Pennsylvania R. R. Co. afterwai'ds bought and removed the whole amount of the iron. H. brought an action of trover against the company. Meld, that the failure of H. tq present the order, and have the iron separated, left the sale incomplete, and no title passed to him. Where he failed to show title in himself, it is immaterial what notice the company had of his claim. Pennsylvania B. R. Go. «. Hughes, 39 Penn. St., 531. 1861. 16. — A quantity of pig iron, lying in piles at a furnace and on the road, was sold, and the parcels constituting the whole were pointed out and shown by the agent of the vendor to the agent of the vendees, and the whole was charged in the books of the vendor to the ven- dees by their agent, under the direction of the vendor. Held, that these acts being done with the intent and for the purpose of making de- livery, constituted such a constructive delivery as would pass the title to the vendees. Tlwmp- son 11. Baltimore and Ohio B. B. Co., 28 Md., 396. 1867. 17. — Where A. shipped goods to B., and mailed B. an invoice containing this language, " We deliver you this load on our indebted- ness," it was held, that the title vested in B. as against the attaching creditors of A. Wessel V. Weber, 2 Cincinnati Superior Ct. Rep., 183. 1873. 18. — evidence. In an action for the price of personal property alleged to have been sold and delivered to the defendant, proof of an agreement to sell and deliver, witliout further evidence of an actual sale and delivery, will not entitle the plaintiff to recover. Brink v. Chicago and Northwestern B. B. Co., 28 la., 473. 1867. 19. — executory contract. If, pursuant to an executory contract of sale, the owners of goods send a quantity of them to tlie place named for the delivery, and notify the pur- chaser thereof, and furnish him with an order entitling him to obtain them of the carrier, and receive pay therefor, this is sutBcient to vest the title in the purchaser. Olaflin v. Boston and Lowell B. B. Co., 7 Allen (Mass.), 341. 1868. 20. — property not in existence. In the case of an executorv contract for the sale of an article not in existence, but to be manufac tured, and where the contract price is paid in advance, no title passes until the thing is com pletely finished, and is either delivered to the orderer, or is appropriated to his benefit or set apart for him, or is accepted by him. West Jersey B. B. Co. ». Trenton Car Works Co., 3 Vroom (N. J.), 517. 1866. 21. Sale of a pailroad. The proposal oi the president of the Upson County Railroad to sell the road either as a whole or the iron separately, was held to be a violation of the charter of the company, and such sale was properly enjoined. Upson County B. B. Co. ■». Sharman, 37 Ga., 644. 1868. 22. — A majority of the stockholders of a prosperous corporation cannot at their own caprice sell out the whole source of their emoluments and invest their capital in other enterprises, where the minority desire to con- tinue in the original business. The business must, unless in cases of clear loss, be continued until the end of the charter. Kean v. Johnson, 1 Stockton's Ch. (N. J.), 401. 1858. SALVAGE. 1. BargeS. A railway company agreed to carry goods from New York City into New Jersey, the shipper agreeing to assume the risk of transportation across Bast River. The barge upon which the freight was being car- ried across the river became endangered by the ice and was saved by a steam tug. Held, that the railway company was liable for the salvage. Seaman v. JErie B. B. Co., 8 Benedic* (U. S. D. C), 128. 1868. SCIRE FACIAS. See HoBTSASE. SEAL. See Cohtbtanoe; Evidence. 1. Adoption. A corporation may adopt any seal it chooses for the time being, as well 614 SECURITY FOR COSTS — SERVICE. Miscellaneous. as an individual. Bank of Middlebury v. Hut- land and Washington R. H. Co., 30 Vt., 159. 1858. 2. Commissioner's seal. The seal of a com- missioner of Iowa residing out of the state should have engraved upon it the name of the state, and it is not sufficient if the name of the state is written with a pen. Oage, Daier and Sloan V. Dubuque and Pacific B. B. Co., 11 la., 310. 1860. 3. Evidence. Though it may be shown that at the time of the sealing of an indenture, it was agreed that the instrument should not be the deed of a corporation until a condition should be complied with, such an understand- ing prior to the sealing, and in no way con- nected with that act, cannot be shown. Phila- delpMa^ Wilmington and BaZtimore B. B. Co. v. Howard, 13 Howard, 807. 1851. 4. Presumption. A seal will be presumed to have been affixed by authority, although it is not referred to in the usual way in the in. strument. Conine v. Junction and Brealewater B. B. Co., 3 Houston (Del.), 288. 1866. 5. Printed seal. A fac-simile of the seal of a corporation, printed upon blank forms of obligations prepared to be executed by the corporation at the same time when the blank is printed, and by the same agency, is not a seal, at common law. Bates ®. Boston and New York Central B. B. Co., 10 Allen (Mass.), 251. 1865. 6. — The St. of 1855, ch. 223, providing that the mere impression of the seal of a corpora- tion upon any legal instrument executed by such corporation shall thenceforth be valid, is not retrospective in its operation. J6. 7. — At common law, " the impression of a seal is not a seal," but under the statutes of Maine, a printed seal is a sufficient seal, and covenant may be maintained upon an instru- ment thus sealed. Woodman v. York and Cum- berland B. B. Co., 50 Me., 549. 1861. SECURITY FOR COSTS. See Costs. 1. Appeal. On appeal from a justice, appel- lant asked that respondent be ruled to give pecurity for costs, on the ground that he had. pending the appeal, become a nonresident; rule not granted. Wagn. St., 342-3. Button v. Hannibal and St. Joseiplh B. B. Co., 51 Mo., 153. 1873. SEQUESTRATION. 1. Appointment of sequestrator. In a se- questration suit where the preservation of the property sequestered is provided for by the defendant giving a bond, the appointment of a judicial sequestrator is illegal, and the order appointing a sequestrator in such a case, with the order homologating his account, will be annulled and set aside on appeal. Young xi. Magazine Street B. B. Co., 34 La. An., 40. 1872. 2. Statute. In awarding a writ of seques- tration under § 73 of the act of June 10, 1836, the court will not declare what are the powers of the sequestrator until it becomes necessary. Belts V. Harrisburg B. B. Co., 3 Penn. La.v Jour. Rep., 524. 1845. 3. — A writ of sequestration under act of June 16, 1836, may issue on a judgment trans- ferred to another county under act of April 16, 1840. Such writ, under the act of 1836, is process of execution, and may issue without previous notice. Beid v. Northwestern B. B. Co., 82 Penn. St., 257. 1858. 4. — The return of the previous execution unsatisfied is sufficient to warrant the issuing of a sequestration. lb. 5. — The act of April 22, 1858, providing that a sequestration shall not issue against an unfinished railroad, is not retroactive in its operation. lb. 6. — It is no ground for refusing the writ that the corporation may have no assets that are subject to such writ. Ih. 7. Tolls received on a railway after a judg- inent rendered against the company, and after tlie appointment of a sequestrator, are not bound by such judgment so as to give it a preference of payment out of them. Leedom V. Plymouth B. B. Co., 5 "Watts & Sergeant (Penn.), 265. 1843. SERVICE. See FnooESs. SETOFF — SEWERS. 615 Assignment — Municipal Corporations. SETOFF. See Bonds of BailwAt Compahibs; Cabbiaos of Mbbchakdiss; Gabnishheht; Flbadiho. 1. Assignment. R. being indebted, upon an open account, to a railway company, the latter assigned the debt to one 8., to whom the company was largely indebted, and by whom suit was brought against R., in the name of the company, and a judgment obtained there- on. Pending the suit against him, E. paid for the company a large debt, as its surety, which debt existed previous to the assign- ment, by the company, to S. Held, that as the company was insolvent, at the time of the as- signment to S. of the debt of E., the latter could set off in equity, the money he had paid for the company, against the judgment ob- tained by S. Tuseumbia, Courtland and De- ciitur B. R. Co. -B. modes, 8 Ala. N. S., 206. 1845. 2. Drafts. The defendant, in an action upon a draft, cannot set off damages in a different transaction sustained by a firm of which he was a member, such damages aris- ing out of tlie tort of plaintiff's agents in the shipment of live stock for such firm. Central Ohio B. B. Co. «. Thompson, 3 Bond, (U. S. C. C), 396. , 1869. 3. Joint contracts. In an action on a joint contract under the code of practice, the indi- vidual debt of one joint contractor may be pleaded in compensation of his share in the joint contract. Langjitt v. Clinton and Port Hudson B. B. Co., 3 Eobinson (La.), 317. 1843. 4. Mortgage. In an action upon a mort- gage in favor of the state, the defendant corporation set up that it had sustained dama- ges by reason of the destruction of certain'of its bridges, by the mayor and police commis- sioners of the city of Baltimore, under the sanction of the governor. Held, that there is no principle of setoff or recouper by which the court could recognize such a claim. State V. Northern, Central B. B. Co., 18 Md., 193. 1861. 5. — Where a mortgage was given by a rail- way company to trustees for the bondholders, and these trustees purchased, on the foreclo- sure of a prior mortgage, a parcel of land which had been conveyed to the company, and the purchase was made by them in their own right, and not as trustees, it was held, that the purchase could not be treated as a payment of the mortgage by them as trustee mortgagees, so as to entitle the amount to be set off against a mortgage given by the railway company for the purchase price of the land. Griggs a. Detroit and Milwaukee B. B. Co., 10 Mich., 117. 18C3. 6. Mutuality. Where Gt. & W. each sub- scribed for four shares of the stock of the V. C. E. E. Co., and the same sum was due from each, as a separate and individual debt, it was held, that there was an entire want of that mutuality that renders this a proper item for adjustment, in an action on book account, between Gr. & W. and the railway company. Gleason and Whipple v. Vermont Central B. B. Co., 35 Vt, 37. 1853. 7. Stock Subscriptions. The defendant, who was sued for his subscription toward making the Louisville and Nashville railroad, alleged that it was agreed by the agent of the company, when defendant subscribed, that any damage that might accrue to the defendant should be set off against and extinguish so much of his subscription ; that the road was located through his land greatly to his damage, etc. ; on demurrer to tlie plea, it was Iield, that the claim for damages was a valid counterclaim under the § 136 of the Civil Code. Louisville and Nashville B. B. Co. v. Thompson, 18 B. Monroe, (Ky.), 735. 1857. 8. Unliquidated damages. The defendant cannot set up a claim against the adverse party for unliquidated damages, as against a liquidated demand. Hoffman v. Pontchartrain B. B. Co., 9 La., (0. S.), 20. 1835. 9. Where plaintiif has no cause of action. Where there is a finding by the jury that the plaintiff has no cause of action, there can be no setoff allowed the defendant. Mast Tenn- essee and Virginia B. B. Co. v. Galbraith, 1 Heiskell, (Tenn.), 483, 1870 ; Brazelton v. Nash- ville and Chattanooga B. B. Co., 3 Head, (Tenn.), 570. 1859. SEWERS. See Watehcouusms. 1. Municipal corporations. While a city will not be liable for injury resulting from defective sewers constructed for tiie exclusive 616 SHERIFF— SLAVES. Miscellaneuus. use of a railroad company, still such city cannot delegate its general power and adopt the work of the company as part of it own general system, without responsibility for defects in the work. Indianapolis v. Lavryer, 38Ind., 348. 1871. SHERIFF. See OAltinsnitiENi;. 1. A sheriffs deputy or bailiflT, may em- power another to do a particular act which he may himself do ; and if the act be performed pursuant to the authority, it is valid. Nm Albany and Salem, B. B. Co. v. Qrooms, 9 Ind., 243. 1857. 2. — Thus an infant may be deputed to serve a particular writ, though he cannot act as a general deputy. /6. SHERIFF'S SALE. See Judicial Sale; Mobtoage, SHORTAGE. See CABBuaE op Mebohansibie. SIDE TRACK. See CoNTBAore; Bmihent Domain; Stbebts. 1. Right to lay side tracks. If no public or private interest is affected, a railway com- pany may lay side tracks over any lands that it may own, or over the lands of individuals with their consent. Bangor, Oldtoion and Mil- ford B. B. Co. V. Smith, 47 Maine, 84. 1859. SIGNALS. See iNTOBiEB TO DoMESTiQ Akimalb; ImmiaiSB to Dhflotes; iHjmiiEs to Febsons Cbobsins the Tbaok; Ihtubies to Pasbenoebs ; Penalties. 1. Frightened teams. In the trial of an action for a personal injury to the plaintiff, caused by being thrown from his carriage in consequence of his horse becoming frightened at the sound of a locomotive whistle at a rail- road crossing near a station, it is competent for the plaintiff to show that the sound of the whistle produced a similar effect upou other horses at the same time and place. Hill v, Portland and BooJiester B. B. Oo., 54 Maine, 438. 1867. 2. Right to use signals. A railway com- pany has the right to establish reasonable sig- nals to be given for the starting of trains from its stations, ffill v. Portland and Boeheater B. B. Co., 55 Me., 438. 1807. 3. — Whether the use of a steam whistle as a signal for such piu-pose is proper and rea- sonable, is a question for the jury, taking into consideration all the circumstances of the case. n. 4. — It is not proper to ask a witness wlio has had charge of another railroad for sixteen years, if the signals in question were reason- able or not. lb. SLAVES. See Pbaud; Injueies to Peesons on the Tiuok. 1 . Bailment. The bailee of a slave is bound to use the ordinary care of a humane master. Tallahassee B. B. Oo. v. Macon, 8 Fla., 299. 1859. 2. — The borrower of a slave, who had him in possession for ten years, using him as his own, let him to hire for his own benefit, with- out the owner's knowledge, to the defendant, and the slave was killed while in defendant's service. Meld, that if the owner permitted the borrower to deal with the slave so as to induce others to believe he had authority to let him for hire, the defendant, if misled by such show of authority, was not liable. James v.Wilminff- ton and Manchester B. B. Co., 9 Richardson's Law (So. Car.), 416. 1856. 3. Conversion. Taking a slave upon a rail- way where such slave has only a general pass, is a conversion of the slave, and the carrier becomes liable for any injury resulting to such slave without regard to the question of negli- gence. Macon and Western B. B. Co. v. Holt, 8Ga., 157. 1850. 4. — A railway company is liable in trover for transporting a slave under a false pass. SLAVES. 617, Emancipation — Hire of Slaves. Western and Atlantic B. R. Go. v. Fulton, 4 Smeed (Tenn.), 589. 1857. 5. Emancipation. The emancipation pro- clamation of President Lincoln was operative alone in that portion of the seceded states which the armies of the United States had oc- cupied, or might occupy, after the proclama- tion should by its terms go into effect. Vicks- l)urg and Meridian R. B. Oo. v. Cfreen, 43 Miss., 436. 18G9. 6. — In an action for the hire of slaves, un- der a plea of the general issue, evidence that the slaves were freed by the president's pro- clamation is admissible. lb. 7. — One who hired from their owner, be- tween July 1, 1864, and April 30, 1865, certain persons claimed to be slaves, and received the benefit of their services, must pay to the own- er the hire agreed upon ; and this whether the slaves were emancipated by the proclamation of 1863 or not. Bailey v. Oreenmlle and Colum- hia B. B. Go., 3 South Caiolina (N. S.), 313. 1870. 8. Escape of slaves. A ticket agent of a railway company in Pennsylvania having knowingly sold a ticket to a runaway slave, by which the escape of the slave was facili- tated, the company was held liable for the value of the slave. Nortliem Gentral B. B. Go. V. Selwll, 16 Md., 331. 1860. 9. — A railroad company was responsible for the wanton and negligent transportation of slaves so that they thereby escaped from, and' were lost to the owner, and was liable to the owner for the value of slaves so escap- ing. But if the slave returned again to his home, the company was only liable to his owner for the Value of his services while gone. Louisville and Nashville B. B. Go. v. Tonng, 1 Bush. (Ky.), 401. 1866. 10. — Although ahii'h degree of caution is required in dealing with slaves, yet to make a railway company liable to the owner for the loss of a slave carried as a passenger on its cars, there must be evidence of actual negli- gence on the part of the company, unless in- tentional wrong is shown. Sill v. South Gar- olina B. B. Co., 4 Richardson's Law (So. Car.), 154. 1850. 1 1. Hire of slaves. The hirer of a slave is responsible only for ordinary care, and if he rehires the slave to another, he is equally re- sponsible for the same degree of care on the part of his bailee. Alabama and Tennessee Bivers B. B. Go. v. Burke, 37 Ala. N. S., 585 1855. 12. — personal iivjuries. Whilst a slave was in the employment of a railway company as a section hand, he was directed by an agent of the company, to sleep in a certain house, which had (unknown to the company and to himself) an open keg of powder standing un- der one of the beds, placed there a day or two before, for temporary purposes, by a servant of a bridge contractor with such company ; the slave was killed by an explosion of the powder, caused as was supposed, by flre from a torch whilst he was searching for his hat ; ?ield, that the company was chargeable with the negligence of the person who placed, and left the powder in such a position. Allison v. Western B. B. Go., 64 N. C, 383. 1870. 13. — A contract for hiring a slave to a railway company provided, that he should not be employed on the cars, but might be carried on the cars from place to place where his services were required. He went upon the cars without the knowledge of the conductor, and jumped off and was killed. Held, that the company was liable for the loss. Duncan V. South Carolina B. B. Co., 3 Richardson's Law (So. Car.), 613. 1846. 14. — Railway companies are legally re- sponsible for injuries to slaves hired to aid in conducting trains where the injury is the re- sult of the carelessness of their agents. Louis- ville and Nashville B. B. Co. v. Yandell, 17 B. Monroe (Ky.), 586. 1856. 15. — Such companies, by their agents, are fcound to exercise the same care and prudence to preserve from injury, slaves hired to aid ih conducting trains, as an ordinarily careful man would observe in regard to his own property. lb. 16. — A contract for hiring slaves to a rail- road company provided that no liability for accidents, etc., should exist against the com- pany. Seld, that this contract did not excuse the company from liability for injuries result- ing from willful wrong or gross negligence. Memphis and Charleston B. B. Go. v. Jones, 3 Head (Tenn.), 517. 1859. 17. — A railway company, having hired a slave for one purpose, has no right to use him for' another purpose, and will be held liable in case of his death while engaged in such 618 SLEEPING CARS. Miscellaneous. unauthorized employment. Lewis «. McAfee, S3Ga., 465. 1861. 18. — "Where a slave was injured in tlie act of performing the improper order of the hirer, or his agents, the hirer is liable for the dam- ages. Pensacola and Georgia R. R. Co. v. If ash, 12 Fla., 497. 1868. 19. — The liability of the hirer of a slave for injuries to the slave — considered. Knox V. North Carolina R. R. Co., 6 Jones' Law (N. C), 415. 1858. 20. — pleadings. In an action for damages for want of care in the treatment of a hired slave, during the sickness of such slave, the defendant will only be required to meet the allegation made in the pleadings. Southern Pacific R. R. Go. v. Dial, 25 Tex., 681. 1860. 21. — title. The remainderman of an es- tate in a slave is not entitled to sue on a con- tract made by the tenant for life, with a hirer, for the ijroteetion of the slave's life, he not being privy thereto, and no part of theconsid. eratiou having moved from him. Bogle v. North Carolina R. R. Co., 6 Jones' Law (N. C), 419. 1859. 22. Illinois constitution. The constitution of Illinois prohibits slavery ; therefore, negroes •within its jurisdiction are presumed to be free. Rodney «. Illinois Central R. R. Co., 19 111., 42. 1857. 23. Loss in transportation. In an action on the case against defendant for negligence in transporting plaintiff's slave, so that he es- caped, the jury is not bound, as in cases where property has been destroyed, to give damages for the full value of the slave. CNeall and Chanibers v. South Carolina R. R. Co., 9 Richardson's Law (So. Car.), 465. 1856. 24. Negligent treatment of a slave con- sidered. Saden v. North Carolina R. R. Co., 8 Jones' Law (N. C), 863. 1861. 25. Passes. To give a slave a pass to travel by a railroad, as an indulgence, does not amount to a breach of an agreement to work the slave only as a turpentine hand. Oeorge v. Smith, 6 Jones' Law (N. C), 273. 1859. 26. Slaves asleep on the track. In an ac. tion on the case brought against a railway company for the negligence of its agent in running over and killing a slave where it ap- peared that the slave was asleep on the track, that the cars were going at their usual speed, and at the usual hour, and the engineer, when a short distance of the slave, attempted to stop the engine by letting off tlie steam and revers- ing the wheels, it was field, that the company was not liable. Herring v. Wilmington and Raleigh R. R. Co., 10 Iredell's Law (N. C), 403. 1849. See iNJUiuEa to Febsons on tds Track. 27. Statute. The act of 1846, making rail- way companies liable for killing stock, etc., does not apply to slaves. Scaggs v. Baltimore and Washington R. R. Co., 10 Md., 268. ' 1856. 28. — In a suit brought against a railway company for the ti'ansportation of a slave without the consent of his owner, it must be averred in the petition that the defendant is a railroad corporation in this state. Local Acts, 1855, p. 169. Welton v. Pacific R. R. Co., 84 Mo., 358, 1864; McGlurev. Same, 85 ib., 189, 1864. 29. — The repeal of the act of February 27, 1855 (Sess. Acts 1855, p. 169), concerning the transportation of slaves, etc., by the act of February 4, 1864 (Sess. Acts 1864, p. 41), did not affect actions already commenced (R. C. 1855, p. 1021-2, § 1). Rogers v. Pacific R. R. Co., 35 Mo., 153. 1864. 30. — If a railway company allows a slave to go off on its cars witliout a ticket or permit ft'om tlw master, overseer or person controlling the slave, the company is liable under the statute to the owner for damages. Soiith West- ern R. R. Co. V. Pickett, 36 Ga., 85, 1867; see Brown v. South Western R. R. Co., ib., 377, 1867. 31. — In case against a railway company for carrying off the plaintiff 's slave without his knowledge or consent, mere proof of trans- portation is itself suflScient evidence of negli- gence to throw the onus on tlie defendant. Josey V. Wilmington and MancHmster R. R. Co., 11 Richardson's Law (So. Car.), 399. 1858. 32. — The value of the slave is the highest measure of damages in such a case. lb. SLEEPING CARS. 1. Contract for exclusive right. Three railway companies, of which one owned ai.1 operated a road extending from Cleveland to Columbus, and the other two owned and oper- ated roads extending from Columbus to Cin. SPECIE — SPECIFIC PERFORMANCE. 619 Contract to Build Railroad — Forfeiture. cinuati, made running arrangements by which the same cars and trains might pass over the ■whole line from Cleveland to Cincinnati. Afterward, the three companies, by joint con- tract, granted to A., for a limited term, the ex- clusive right to run sleeping cars over their roads "for the purpose of accommodating passengers traveling on said roads, which said cars may be run each way, every night over the line of said roads, between Cleveland and Cincinnati, in connection with the night pas- senger express through trains between said cities." Eeld, that the exclusive right thus granted to A. is limited to the through trans- portation upon both sections of the line, and does not prevent the companies owning the southern section of the line from furnishing and running other sleeping cars for the accom- modation of passengers carried over their sec- tion only, and not over any part of the north- ern section. Stanley v. Cleveland, Columbwi and Cincinnati B. B. Co., 18 Ohio St., 553. 1869. SPECIE. See Baogage. SPECIFIC PERFORMANCE. See Convbtanob; BianT of Wat. 1 . A contract to build a railroad will not be enforced in equity. Boss v. Union Pacific B. B. Co., 1 "Woolworth (U. S. C. C), 26. 1863. 2. Carriage of goods. A court of equity will not enforce a specific performance of a contract with a railway company to take freights, from a certain platform. There is an adequate law remedy in an action for dama- ges. Atlanta and West Point B. B. Co. v. 8pem; 33 Ga., 550. 1861. 3. Contract by letters. The C. Co., in February 1853, proposed by letter to grant certain lands and right of way to the S. R. R. Co. To this proposition, in Angust 1853, the president of the latter company replied. "By resolution, etc. * * * passed yesterday I am instructed to accept vour proposition. etc. * * *. I beg therefore to state my readiness to concur with you in such steps as may be necessary to give effect to the arrange- ment. If you will have the kindness to have prepared the proper conveyance, etc., and proper obligation on the part of this company I will submit them to the counsel of the com- pany for his approval, and then execute them so far as to me may belong." Held, that these two letters did not constitute such a defined mutual contract as to justify a court of equity in decreeing a specific performance. Canton Co. V. Northm-n Central B. B. Co., 31 Md., 383. 1863. 4. Contract for purchase of land. The defendant having contracted to sell the B. and M. R. R. Co., "the land they take on the northerly side of the M. turnpike, adjoining T's. land, at twenty cents per square foot, for each and every foot so taken by said com- pany," and the plaintiff having brought a bill in equity for a specific performance; it was held, that the agreement was not for a sale of the land generally, but for the sale of such a part of the land described, as the plaintiff might take, in the exercise of the authority conferred on it by law. Boston and Maine B. B. Co. V. Bdbcoch, 3 Cushing, (Mass.), 328. 1849. 5. Contract for purchase of gravel land. A railway company may maintain a bill in equity for the specific performance of a con- tract to purchase of it land which it has pur- chased for the purpose of having gravel dug therefrom, and transported at a certain freight over its road, to be delivered to and used by a third party. Old Colony B. B. Co. ii. Evans, 6 Gray, (Mass.), 25. 1856. 6. Forfeiture. A bill for specific perform- ance of a contract is an appeal to the chan- cellor's conscience, on which he exercises a sound discretion, under all the circumstances, for the most part untrammeled by rule or precedent. Oil Creek B. B. Co. v. Atlantic and Great Western B. B. Co., 57 Penn. St., 65. 1868. 7. — He will not interfere if the bargain is hard or unconscionable, or the complainant is seeking an undue advantage. lb. 8. — Equity will not generally relieve against a forfeiture, but never aids in enforc- ing one, especially when the contract has been substantially carried out, but its literal fulfill- 620 SPRINGS OF WA.TER — STAMPS. Lease of Railway — Time — Appeals, ment prevented by uucontroUable circum- stances, lb. 9. Lease of railway — operation. If it would be competent for a court to decree the specific performance of a contract to operate a railroad, requiring, as it would, personal acts, involving the continuous exercise of skill and judgment under vaiying circumstances and emergencies, it would only be in a case where the demand for the exercise of such a power was stringent, and the circumstances such as to authorize the court in making an order to limit its duration as to time, and to define, to some proper and reasonable extent, the mode and manner in which it should be obeyed. Port Clinton R. S. Co. v. Cleveland and Toledo B. B. Co., 13 Ohio St., 544. 1862. 1 0. — The P. C. R. R. Co. lea;sed its fran- chises and road for the term of ninety-nine years, renewable forever, to the C. & T. R. R. Co., which was a company created by the con- solidation of the T. N. and C. R. R. Co., and the Junction R. R. Co. The consideration was in the form of covenants to pay taxes, to assume debts, to finish the road and operate and manage it in such a manner as would not forfeit or endanger the franchise and corporate .rights of the lessor. It appeared that only a small sum of money had ever been paid in by the stockholders of the V. C. Company, which had never been expended; that the cost of any work on the road previous to the lease had been defrayed by the Junction Company, and that this work had been done, and the organization of the P. C. Company made under the general law of the state, to enable the Junction Company to extend its line in a manner its charter did not permit. Held, that the P. C. Company was not entitled to a specific performance of the covenant in the lease, to operate the road. lb. 11. Pleading. An action was brought against a railway company uport a contract by which the company agreed, in considera- tion of the right of way, to fence the road through the lands of plaintiflF, to pay him fifty dollars in freight bonds, and to release him from a subscription to the stock of the com- pany. The complaint alleged a failure to perform on the part of the company, and that a judgment for damages would be unavailing, by reason of the insolvency of the company, and prayed for specific performance and other proper relief Held, that the complaint made a case for damages, but not for specific per- formance. Cincinnati and Chicago B. B. Co. V. Washburn, 35 lud., 259. 1865. 12. Public works — pledge. The judici- ary have no authority to enforce a pledge by the legislature, of the public faith, and of the public works and their income, to secure the payment of money borrowed to construct the works. Sunbury cfnd Erie B. B. Co. v. Cooper, 33 Penn. St., 278. 1859. 13. Railway bonds. A bill in equity will not be sustained to enforce the specific per- formance of a contract for the purchase of the bonds of a corporation. lb. 14. — But if the court in which the suit is brought have jurisdiction of the cause of ac- tion, both at law and equity, it may proceed to grant relief, unless the bill be demurred to, on the ground that the proper remedy is at law. lb. 15. Time. Specific performance of an agreement to convey land to a railway com- pany will not be decreed on a bill in equity filed by it more than three years after the oth- er party has refused to perform it, and after it has located its road over other land includ- ing a small portion of this, and after this land has greatly increased in value, without any steps taken by the corporation meantime to enforce the agreement. Boston and Maine B. B. Co. V. Ba/rtlett, 10 Gray (Mass.), 384. 1858. SPRINGS OF WATER. Soe EumnNT Domain; lN,nrN0TiON. STAGE COACHES, See IHJCBIES TO PASBBHOEne; Ikjtikieb to Psbbohb Chobsino tub Tback. STAMPS, 1. Appeals, The act of congress does not require that a stamp shall be affixed to thf certificate of a justice of the peace certifying STATE AID— STATE RAILWAYS. 621 Connecting Lines — Jurisdiction. an appeal to the circuit covirt. Tiie appeal is not an original process under our statute. Norris V. Hannibal and St. Joseph R. R. Co., 37 Mo., 286. 1866. 2. Subscriptions by .individuals. Where several persons have entered subscriptions on the same page of a subscription book, and the company was authorized to stamp the same, it was held, that the affixing and cancelling of one stamp in the aggregate sufHcient to cover all the subscriptions was sufficient. St. Louis and Oedar Rapids R. R. Co. v. Eakins, 30 la., 279. 1870. 3. Unstamped instruments. Where the party offering in evidence an instrument re- quired by act of congress to be stamped, upon objection made for want of a stamp, offers then to affix the requisite stamp, it is error to refuse permission to stamp ,it and read it in evidence. New Orleans, Jackson and Great Northern R. R. Co. v. Preaaley, 45 Miss., 66. 1871. STATE AID. See Gramts; SuBaoEiPTioss by States. STATE BOUNDARIES. 1. New York and New Jersey. The boundary line between the states of New York and New Jersey, and the jurisdiction of each of those states — discussed and determined. People V. Central R. R. Co. of New Jersey, 48 N. Y. 383, 1870; reversing Same v. Same, 48 Barbour (N. Y.), 479, 1867; and 33 Howard's Pr. (N. Y.), 407, 1867. STATES. 1. Statutes. Where general rights are de- clared, or remedies given, by law, the common- wealth is included therein, though not named. Commonwealth «. Boston and Maine R. R. Co., 8 Gushing (Mass.), 35. 1849. STATE RAILWAYS. Seo iNjmiiEs TO Fassengebs; Injuries to Persons SEHEBALLY ; INJURIES TO PEHSONS ON THE TbAOK. 1. Connecting lines. The right of the West- ern and Atlantic R. R. Co. to make a contract for the carriage of goods beyond its terminus — doubted. Baugh v. McDaniel, 42 Ga., 642. 1871. 2. — The Pennsylvania R. R. Co. by its act of incorporation has no rights upon the state works. The act of March 18, 1847, authorizes any company to run cars over another road connected witli its own. The Pennsylvania Railroad, not being so connected with the state road, cannot run its cars over the latter road. Pennsylvania R. R. Co. c. Canal Commission- ers, 21 Fenn. St., 9. 1852. 3. — Though the word " individuals," in the act of April 15, 1834, authorizing individuals to place cars upon the Columbia road, may in elude corporations, yet as such privilege is withheld in the act of incorporation of the Pennsylvania R. R. Co., it is not authorized by that act to use the said state road. lb. 4. — But an individual cannot run a car thereon which has been condemned and was at the time unfit for service. Miller v. Canal Commissioners, ib., 23. 5. — The Pernsylvania R. R. Co., having no right in itself to place oars thereon, cannot do so in connection with an individual. Ib. 6. Injuries to eihploy^s. In July, 1862, an engineer, while employed on the Western and Atlantic Railroad, was killed by a collision of two trains. In March, 1863, his widow brought suit for the injury. Held, that under the pro- visions of the declaratory act of April, 1863, the action was maintainable. Cannon v. Row- land, 34 Ga., 423, 1866; see Leuiis v. Turner, 40 Ga., 416, 1869. 7. — The act of March 5, 1856, does not ap- ply to a railway operated by the state, and hence an action for the killing of an employe cannot be maintained against the superintend- ent of such railway. Ifalkcr v. Spullock, 33 Ga., 486, 1857 ; but see contra. Cannon v. Row- land, 34 ib., 422, 1866. 8. Jurisdiction. A suit against the Western and Atlantic R. B. Co., for the loss of goods shipped on such road should be brought against the superintendent in Tulton county, 622 STATION AGENT — STATION GROUNDS AND BUILDINGS. Liability of States — Abandonment. where tlie office of the road is located, and not in the county where the goods were received. 'Wallace t. Thomas, 34 Ga., 543 1866.' 9. Liability of states. When the state en- gaged in the business of carrying on the West- ern and Atlantic railroad, it assumed the obli- g.itions of an -individual engaged in sucli business. Western and Atlantic R. B. Co. v. Carlton, 38 Ga., 180. 1859. 10. Precedence of debts. The Western and Atlantic railroad is the proi^erly of the state of Georgia, and its incomes are a part of the revenue of the state. A debt due the road is a debt due the public, and is to be paid before " any other debt, lien or claim whatsoever," except funeral expenses, etc., as specified by the code. State v. Dickson, 38 Ga., 171. 1868. 11. Sale by governor; rescission. Where, pending a bill in equity for rescission of the sale of a railway by the governor, and also for an account and for damages, an act was passed by the legislature confirming the sale, although the act is a complete bar to that part of the petition which demanded rescission, yet the court is not thereby deprived of all jurisdic- tion of the cause, but jurisdiction will be re- tained and justice administered as to the re- maining portion of the petition. State v. Mc- Kay, 43 Mo., 594. 1869. 12. — After sale of a railway by the gover- nor, under an act of the legislature, his seizure of the same, under and by virtue of a claus j of forfeiture contained in the act and deed of conveyance, was not an admission by the state that the sale and transfer were legal, nor did the seizure amount to a ratification of the sale. In the sale, the governor was not acting in his political or executive capacity but merely as a special agent ; and the duty might have devolved upon any other person as well. And if he proceeded beside the law or outside the law, the state would not be bound by his tortious acts or trespasses. lb. 13. — Where, after the sale of a railroad by the governor, seizure was made on account of a noncompliance with the terms of the con- tract, for the purpose of foreclosing the state's lien or mortgage, the clause of forfeiture was not distinguishable in principle from one of reentry by a landlord for condition broken ; and such seizure, even if in all respects legal and regular, did not deprive the state of any previous existing right. lb. 14. — If commissioners for the sale of a railroad combined and confederated with other, persons in the purchase of the property, the state will be entitled to whatever specula^ tions they made out of the sale ; and the other persons, by entering into the league with the full knowledge of the facts, will also be amen- able, lb. STATION AGENT. See Gabnishmbnt. STATION GROUNDS AND BUILDINGS. See Depot ; Eminent Domain. 1. Abandonment. The act nf 1866 provides that no railway company shall abandon any depot or station on its road, after such depot or station lias been established for twelve months, except by approval of the railway commissioners after public notice and a hear- ing had. The New Haven and Northampton Co., in 1848, constructed a railway which, in 1849, it leased for twenty years to the New York and New Haven R. R. Co. The latter company, soon after taking possession of the road, built a platform for the accommodation of passengers at a place on the road which was thereafter called "Brooks' Station," and placed upon it an old baggage car which ser\e.l as a shelter for passengers waiting at the station. No agent was ever placed at the station and no tickets were sold there, nor was freight waybillcd to or from that station, but to and from another station in the same town. But tickets were sold at other stations to passengers for that station, and trains were stopped to take up passengers, and trains car- rying the mail stopped regularly. Held, I. That Brooks' Station was a " depot or station " within the meaning of the statute. II. That upon the expiration of the lease to the New York and New Haven R. R. Co., the road re- vested to the New Haven and Northampton Co. in the condition in which it then was, and that the lessor was concluded by the establish- ment by the lessee of the station in question during the term of the lease. III. That a STATUTE OF LIMITATIONS — STATUTES. 623 General Principles. mandamus would lie at the instance of the at- torney for the state to compel the New Haven and Northampton Co. to reestablish the sta- tion, it having been abandoned without the consent of the railroad commissioners. Btate v. New Haven and Northampton B. B. Co., 37 Conn., 153. 1870. 2. — Where land is granted in fee simple to be occupied for railway purposes only, and to revert to the grantor or his heirs if used for any other purposes, or no longer needed for such uses, the reversion does not take effect un til actual abandonment; hence until that time, the company may remove the machineiT- in its shops erected on the land granted. Penn- sylvania B. B. Co. V. Parke, 43 Penn. St., 31. 1863. 3. — A notice of the intention to abandon is not equivalent to abandonment. lb. 4. Rights of the public to use station houses. A raih'oad company, by erecting sta- tion houses and opening them to the public, impliedly licenses everybody to enter them. But this license is revocable as to all persons who have no legitimate business there, grow- ing out of the operation of the road, or with the ofBcers or employes of the company. The corporation has the right to direct all other persons to depart therefrom, and, on their re- fusal to do so, may remove them. Harris v. Stevens, 31 Vt., 79. 1858. 5. — One who desires to go on the cars must exercise his right to enter the station house in conformity with the due and reason- able regulations of the company as to his conduct while there ; and he cannot exercise it until a reasonable time next prior to the de- parture of the train on which he intends to go. lb. 6. — Therefore, where, in an action for tres- pass to the person, the defendant pleaded that he was station agent of a railway company, and that the alleged assault was necessarily committed in removing the plaintiff from the station house, where he persisted in remaining after the defendant had requested him to leave, and the plaintiff replied, setting forth the ob- ligation of the railway company as a common carrier, and alleging that the plaintiff went to the stati(m house and there purchased a ticket to another station, and that while he was wait- ing for the train on which he was intending to go by virtue of such ticket, the defendant committed the assault. Held, on special de- murrer, that this replication was bad because it did not allege that the train was expected soon to leave. lb. 7. Water stations. "Where a railway was constructed as, a horse road only, and so used for five years, and no land taken for engine or water stations, ground cannot thereafter be ap- propriated for such purpose, where the charter required that the rqad should be finished in five years. Plymouth B. E. Co. ». Cohoell, 39 Penn. St., 337. 1861. STATUTE OF LIMITATIONS. See Limitations. STATUTES. [The various statutes in relation to railways will te found construed under different titles throughout this book.] I. General principles. II. Construction. I. General peinciples. 1. Authentication. Courts can never re- ceive oral proof that a law has been passed, or that any act essential to its validity has been performed. Wabash B. B. Co. v. Hughes, 38 111., 174. 1865. 2. — Where it is claimed that a bill has bo- come a law by reason of not having been re- turned in proper time by the governor, it must be authenticated in the mode prescribed by the statute, or it will not be regarded loy the courts. lb. 3. — The laws duly certified by the secretary of state, and published under the authority of the state, should be received as having passed the legislature in the manner required by the constitution, unless the contrary appears. Illinois Central B. B. Co. v. Wren, 43 111., 77. 1867. 4. Evidence. The governor of the state cannot be examined as to his reasons for not signing an act of the legislature, nor as to his action in any respect regarding it. But he is 624 STATUTES. Constvuction. bound to appear and testify as to the time an act was delivered to liim. Thompson v. Oei-man Valley B. B. Co., 7 C. E. Green's Ch. (N. J.), 111. 1871. 5. Judicial notice. The courts of one state do not take judicial notice of the statutes of another state. Carey u. Cincinnati and Chi- cago B, B.Co,5 la., 357. 1857. 6. — Such statutes must be pleaded as any other facts, and it Will not do to refer to them by their title and date of approval, nor by stating their general provisions. lb. 7. Promulgation of law. Where it is clearly the purpose of the legislature to give a company time in which it would have an opportunity to accept certain conditions im- posed by that body, it cannot be contended that official negligence in promulgating the law should make it impossible for such time to transpire, and thus deprive the company of the right and opportunity to accept; it would enable such official negligence to defeat the legislator's will. State v. North Louisiana and Texas B. B. Co., 35 La. An., 65. 1873. 8. Time of taking effect. Where an act of the legislature was silent as to the time it should take eflEect (the constitution in such case requiring the lapse of sixty days), but a supplementary act passed at the same session provided that the supplement should take effect from the time of its passage ; held, to re- late back so as to embrace the time of the operation of the original act. West Feliciana B. B. Co. V. Johnson, 5 Howard (Miss.), 273. 1840. 9. Title of act. Since the amendments to constitution in 1864, the title to an act is a part of it. Pennsylvania B. B. Co. v. Biblet, 66 Penn. St., 164. 1870. 11. Construction. 10. Amendments. When two acts are in pari materia, or one is an amendment to an- other, it will be presumed that a word used in a certain sense in the first act was used in the same sense in the subsequent one. Bobbins v. Omnibus B. B. Co., 33 Cal., 473. 1867. 11. Conflict of statutes. If two statutes are inconsistent, the latest must prevail. Com- monwealth v. Cross Out B. B. Co., 53 Penn. St., 63. 1866. 12. Construction of railways. Ch. 86, laws of 1855, provided that railway companies shall be liable for work performed by labor- ers on the construction of their roads, upon the laborer giving thirty days' notice, etc. This act was afterwards repealed. A right of action having accrued under it, it was held, that such right was not affected by the repeal, although the suit was not actually commenced at the time of the repeal. Streubel v. Mihoau- kee and Mississippi B. B. Co., 13 Wis., 67. 1860. 13. Federal courts. In construing state laws, the federal courts will follow the con- struction put upon such laws by the supreme ourt of such state. Paine et al. v. Wright and the Indianapolis and Bellefontaine B. B. Co., 6 McLean, (U. S. C. C), 395. 1855. 14. Municipal corporations. It is a well settled rule in the construction of statutes, that a subsequent statute, treating a subject in gen- eral terms, and not expressly contradicting the provisions of a prior act, shall not be con- sidei-ed as intended to affect more particular and positive provisions of the prior act, unless it be absolutely necessary to do so in order to give its words any meaning. State ex rel. v. PKrrysburg, 14 Ohio St., 473. 1863. 15. — The general act of May 3, 1853, did not annihilate and recreate the preexisting municipal corporations of the state, but re- orgnized and continued them, leaving their corporate identity unaffected, lb. ] 6. Reenactment of statute. In general the studied omission of a word in the reen- actment or revision of a statute indicates an intent to restrict or change its operation. But this rule loses its force when the act is wholly recast with a studied regard for brevity, and the language of the new act is susceptible of the same interpretation as the fuller language of the old. Mundt v. Sheboygan and Fond du Lac B. B. Co., 31 Wis., 451. 1872. 17. Rules of construction. The main ob- ject is to ascertain the true meaning of the legislature, and where, upon due considera- tion of the subject matter of the statute, and the object intended to be accomplished by its enactment, such intention is manifest, courts will give it effect, although it be not sanction- ed by the literal interpretation; but courts , will not abandon the literal interpretation to carry out the alleged intention of the legisla- ture, if such construction is doubtful. Nevt STATUTE OF FRAUDS. 625 Contract for keeping Live Stock — Promise to pay tlie debt of another. Orleans, Jaekson and Great Nortliern B. B. Co. V. Hemphill, 35 Miss., 17. 1858. 18. — It is only where a statute is capable of two or more tneanings, that interpretations or any latitude of construction is allowable. Mundt V. Slieboygan and Fond du Lac B. B. Co., 31 Wis.. 451. 1872. 19. — And where the construction of a stat- ute !« doubtful, the title may be considered. lb. 20. — In construing a statute, the courts will not inquire into the motives of its au- thors. Stockton and Visalia B. B. Co. v. Stock- ton, 41 Cal., 147. 1871. 21. — A statute must receive such construc- tion as will, if possible, make all its parts harmonize with each other, and render them consistent with its general scope and object. Ellison t). Mobile and Ohio B. B. Co., 36 Miss., 572. 1858. 22. — The courts will construe statutes as all written instruments are construed, by the surrounding circumstances, the condition of things, the evils to be remedied, and the objects to be attained. Clark v. City of Janestille, 10 Wis., 136. 1859. 23. — common law rules. In construing acts of congress, the rules of interpretation fur- nished by the common law are the true guides, and have been uniformly followed. Bice v. Minnesota and Northwestern B. B. Co., J Black, 358. 1861. 24. — The same rules are held to apply to the construction of a state statute unless other- wise determined" by the state courts. lb. 25 — word "may." The word "may," in a statute, is to be construed " must " or " shall" where the public interest or rights are con- cerned, and the public or third persons have a claim dejure that the power should be exer- cised. Blake 1). Portsmouth and Concord B. B. Co., 89 N. H., 435. 1859. 26. — Where power is given to public offi- cers, in permissive language, — as where " they may, if they deem advisable," do a certain thing — the language used will be regarded as peremptory where public interest and individ- ual rights require that it should be. Super- visors V. United States ex rel., 4 Wallace, 435. 1866. 2 7. — word " person." Under the Kansas law (compiled L., 887), the word "person" ex- tends to corporations. North Missouri B. B. Co. V. AJcers, 4 Kans., 458. 1868. 40 STATUTE OF FRAUDS. 1. Contract for keeping live stock. The plaintiff conveyed to the defendant a certain tract of land, with right of ingress and egress to and from plaintiff's land. In consideration thereof, defendant agreed by parol to deliver to plaintiff, for temporary keeping, all the stock transported on its road eastward from the K. river. Defendant performed its agree- ment for a little more than a year, and then re- pudiated it. In an action to recover the value of the land conveyed, Md, that plaintiff was entitled to recover the value, deducting there- from the profits realized by him from the bus- iness during the time of the performance of the agreement on the part of defendant. Day V. New York Central B. B. Co., 51 N. T., 583. 1873. 2. Delivery, A delivery of a part of the property sold takes the contract out of the op- eration of the statute of frauds. Van Woert v. Albany and Susquehann-a B. B. Co., 1 N.Y. Sup. Ct., 256. 1873. 3. — What delivery will take a case out of the statute of frauds — determined. Wade v. New York and Oswego B. B. Co., 52 K. Y., 637. 1878. 4. Executory contracts of sale are within the statute of frauds. Edwards v. Grand Trunk B. B. Co., 48 Me., 379. 1860. 5. Partnership debt. The firm of K., S. & Co., being indebted to the plaintiffs in the sum of $8,207.75, E., one of the firm, orally agreed with the plaintifts, that in consideration that the latter would receive $10,000 of the bonds of a railway company, in payment of such in- debtedness of the firm, he, E., would at a fu- ture day, at the plaintiff's request, purchase the same bonds of them, and pay them there- for Uie said sum of $8,207.75. Held, that the agreement was within the statute of frauds. Eagar v. King, 38 Barbour (N. Y.), 200. 1362. 6. Promise to pay the debt of another. An oral promise by the defendant to pay the plaintiff a debt due him from a railroad com- pany, if he would procure the passage of a resolution by said company requesting such payment, not being founded upon any new consideration of benefit to the promissor, is void by the statute of frauds. Osborne v. Farmers' Loan and Trust Co., 16 Wis., 35. 1863. 626 STATUTE OF LIMITATIONS — STEAMSHIPS, ETC. Miscellaneous. 7. Sale of lands. A parol contract by •which A. was to grant a certain strip of land to a railway company, and in consideration of which the company was to grant certain privi- leges on its road to A., was held to be within the statute of frauds, and therefore void. Day V. New York Central S. M. Co., 31 Barbour (N. Y.), 548, 1860; see Same v. Samu, 58 ib., 250, 1867. 8. — But upon the refusal of the company to grant such privileges as were agreed upon, plaintiff would be entitled to recover the value of the lands conveyed by him to the company. Ih. 9. — Where the charter of a railway com- pany provides that the company may obtain land by consent of the owner, it means a legal consent; and it can only obtain it in such manner as existing laws provide for acquiring title to or the right to occupy real estate. Such a clause in a railroad charter does not affect the statute of frauds. Hetfteld v. Central a. B. Co., 5 Dutcher (N. J.), 571. 1863. 10. Sale of wood. A contract for the sale and delivery of a quantity of wood, though the same be at the time in standing trees, is not a contract for work and labor, so as to take the transaction out of the statute of frauds. Smith v. New York Central It. B. Co., 4 Keyes (N. T.), 180. 1808. 11. — A parol agreement by a railway com- pany to take all the wood the plaintiff would put on that season, at the same price paid him for that purchased before, and more, if the wood was better, is within the statute of frauds. Edwards v. Grand Trunk B. B. Co., 54 Me., 105. 1866. 12. — The wood must be accepted to take the case out of the statute. Ib. 13. — "Where, under the contract, the wood was to be measured and inspected, such meas- uring and inspecting are essential to accept- ance. Ib. STATUTE OF LIMITATIONS. See Limitations; Sales. STATUTORY REGULATIONS. [For statntory reciuirements, see the various other titles.] 1. Control of the courts. Under a statute requiring the owners of a railway to run a certain number of trains daily " so as to fur- nish reasonable accommodation to the public generally, and the business along the line of said road," and declaring that this court " upon application of any person interested in the transportation of freight or passengers " may appoint commissioners to settle any disagree- ment as to what may be considered such rea- sonable accommodation, and that " said court is hereby invested with full equity powers to enforce the provisions of this act," the court has no jurisdiction in equity, upon the petition of such persons, to compel the running of such trains. Shackley d. Bastern B. B. Co., 98 Mass., 93. 1867. STEAMBOATS. See CABiiiAQE or Mekcuansise ; Mandaiuub. 1. Connecting lines. Where a steamboat carried freights from the terminus of a railway and delivered them to the different consignees thereof, under a contract with the railroad company, and the officers of the boat under the direction of the company collected from the consignees of such freight the charges due thereon for transportation over the railway, it was Jield, that the amount thus collected could be recovered in an action against the boat, under § 3116 of the Code of 1831. Chicago, Burlington and Quiney B. B. Co. «. Woodsidet, 10 la., 465. 1860. 2. Lookout. The rules of law for the gov- ernment of steamers in respect to a lookout are well settled, and are of stern necessity. Beed V. New York and Erie B. B. Co., 18 Howard's Pr. (N. Y.), 483. 1859. 3. 'Steamboat lines — corporate iwwers. A corporation, chartered with power to build a railway from one point to another, and to transport passengers and freight, has no au- thority to run a line of steamboats in connec- tion with the road, and all conti-acts beyond the authority given in the charter are void. Hoagland v. Hannibal and St. Joseph B. h. Go., 89 Mo., 451. 1867. STEAMSHIPS AND STEAMSHIP- i^iNES. See CoHBTiTVTioHAi. Law. STOCK AND STOCKHOLDERS. 627 General Matters — Rights of Stockholders. STOCK AND STOCKHOLDERS. Sec CoNsouDATioN ; CoNSTEUCTioN OF Eailways; CoNTBAoTs; Dividends; Bibction op Coepohatb Officebs; Estoppel; Bvidencs; Bxeoutions ; Fkaud; GrABDiAN and Wakd ; Inbolvbnot; Man- damus; Setoff; STocKnoLDEiis ; Subsckiptons bt Cities and Towns; Subscriptions by Counties; Subscriptions bt Individuals. I. General matters. II. Rights of stockholders. III. Contracts. IV. Transfers and assignments. V. Dividends and interest. 1. Dividends. 2. Interest. VI. Personal liability of stockholders and assessments. 1. Assessments. 2. Personal liability. VII. Preferred, stock. VIIL Illegal and spurious stock. Over- issues. IX. Increase of stock. X. Actions by stockholders. I. Gexeral matters. 1. Consolidation of stock. A contract be- tween the officers of a corporation and a stock- holder, to consolidate his stock, will not affect the rights of creditors of the corporation, or of the stockholders who were not parties to the arrangement. Mann v. Cvbrrie, 2 Barbour (N. T.), 294, 1848. 2. Conversion. The measure of damages, in case of a conversion of stock, is the value of the stock at the time of the conversion, with interest from that date until the time of the trial. Sturges v. Keith, 57 111., 451. 1870. 3. Convei'tible bonds. The directors of a railway company, acting in good faith, have power to issue convertible bonds in the name of the corporation, for the amounts they maj' borrow to complete and finish, or to operate the road, with the right to authorize their con- version into stock ; although it increases the amount of capital stock beyond that fixed by the charter. Behnont v. Evie R. li. Oo., 53 Barbour (N. Y.), 637.- 1869. 4. — If the court were satisfied, however, that bonds were about to be issued as a part of a fraudulent device to increase tlie stock, the issuing of them will be restrained by in- junction, lb. 5. Dower. Shares in railroad companies are personal property, whether the companies are, or are not, subject to the provisions of the "act regulating raih'oad companies," passed February 11, 1848. JoTms v. Johns, 1 Ohio St., 350. 1853. 6. — Shares of railway stock are real estate of the class called incorporeal hereditaments, and of which a widow may be endowed. They will descend as realty. Price v. Price's Heirs, 6 Dana (Ky.), 107. 1838. 7. Issue of certificates. To issue certifi- cates of stock to the appointees of the pur- chasers of a railway is an iss'UO to the pur- chasers themselves. Commonwealth v. Cenfrdl Passenger JS. B. Co., 53 Penn. St., 506. 1866. 8. Liability of corporation to stockholder. Stockholders cannot call the corporation to account for an error in judgment in the choice between remedies deemed equally ef- fective. Newby V. Oregon Central B. li. Co., 1 Sawyer (9 U. S. C. C), 63. 1870. 9. Stock in hands of court. The prayer of the petition of Jay Gould, for the delivery of certain certificates for shares of railway stock in the hands of the court, disallowed under the facts of the case. Erie B. B. Co. d. Heat?),, 9 Blatchford (U. 8. C. C), 326. 1871. 1 0. Stock may be exchanged for land by corporation. In the absence of any express statute, an organized corporation has the same power of disposition over its unsub- scribed capital stock, as any ordinary owner; and it may b"e exchanged for land, to be sold again when it has general power to purchase real estate. If it be an abuse of its corporate power, it furnishes no ground on which the vendor of the land can object. Dayton and Cincinnati B. B. Co. v. Hatch, 1 Disney (Ohio), 84 1855. 1 1 . What is included in the term, stock. Stock in a railroad company is embraced in the term property. Adams v. Jones, 6 Jones' Eq. (N. C), 231. 1861. 12. — Railroad stock is personal assets un- der the laws of Georgia. SoutJmestern B. B. Co. «. Thomason, 40 Ga., 408. 1869. IL Eights of stookholdees. 13. Distribution of stock. Where an act 628 STOCK AND STOCKHOLDERS. Contracts. of incorporation of a railroad company ap- points a certain number of commissioners to open books to receive subscriptions to tlie capital stock of the corporation, and to dis- tribute the stock among the several subscrib- ers in such manner as they shall deem most conducive to the interests of the corporation, making no provision that a majority shall constitute a quorum for the discharge of the duties entrusted to them, all must be present to hear and consult when they come to dis- tribute the stock. Oroeker v. Crane, 21 Wen- dell (N. Y.), 211. 1839. 14. Rights of subscriber to take stock. Defendant negoti!%ted a loan upon its bonds with a privilege to the bondholders to sub- scribe to the capital stock of the company, to an amount equal to one-half of the bonds. The plaintiff subscribed for bonds, and re- ceived provisional certificates, entitling him, after a certain date, to certificates of the capital stock. Below the signatures of the officers to the certificate was the following : " N. B. The exchange of the provisional certificates for scrip certificates is limited to the 1st of Janu- ary, 185 — By subsequent resolution of the directors, the memorandum was filled out, 1855." Held, that, ujjon paying all the install- ments on his subscription to the bonds, the plaintiff's right of the shares to the capital stock was absolute, and could not be limited to an election to take the stock on or before a specified date. Van Allen v. Illinois Central B. B. Co., 2 Keyos (N. Y.), 673, 1866; Same v. Bcme, 7 Bosworth (N. Y.;, 515, 1861. 1 5. Elections. The right to vote, at meet- ings of the stockholders of a corporation, on shares in its capital stock held on a trust "to hold for the benefit of the corporation," is sus- pended while they aie so held. American Bailway Frog Co. v. Hamn, 101 Mass., 398. 1869. III. CONTBACTS. 16. Contract payable in stock. Where persons contracting with a railway company to perform certain work, agreed to receive a portion of their compensation in railway stock at its par value, to be paid at a time fixed in the contract, it was held, that the com- pany was not bound to seek the contractors and tender the stock, on that day. Moore v. Hudson Biver B. B. Co., 12 Barbour (N. Y.), 156, 1851 ; see Pusey v. New Jersey West Line B. B. Co., 14 Abbott's Pr. N. S. (N. Y.;, 434, 1873. 17. — Such a contract is an agreement to re- ceive payment in depreciated currency, and not an agreement to pay a certain sum in spe- cific articles. Hence the rule ■ requiring a tender does not apply. lb. 18. — It is no excuse for refusing to receive such stock, that the railroad company has, since the making of the contract,, procured from the legislature an alteration of its charter by which the stock and debt of the company is increased; where it appears that the right to alter the charter was reserved by the legis- lature, in the act of incorporation, and there is nothing to show that such alteration depre- ciated the value of the stock. Tb. 19. — A contract to pay a specified amount in the capital stock of a corporation, without naming any price, per share, or otherwise, is an agreement to pay stock to that amount in value, according to its market price, at the time. Hart «. Lwwman, 29 Barbour (N. Y.), 410. 1859. 20. — The defendants having agreed to pay ten per cent, of the contract price for certain work in the stock of a railroad company, and having failed to tender such stock until after it had become depreciated and utterly value- less ; it was Tield, that they had forfeited their right to pay the ten per cent, in stock. lb. 21. Guaranty. Where it appeared that a party sold land to a railway company, the price of which was paid in the stock of the company, guarantied by certain persons to be worth par after a certain time, and suit was brought on this contract, lield, that the plaint, iff was entitled to recover. Hill v. Smith, 21 Howard, 283. 1858. 22. Liability of purchaser. Where prop- erty, encumbered by a mortgage to secure the subscription of a shareholder to the capital stock of a corporation, was sold, together with shares of the stock, without warranty against the mortgage, but subject thereto, and the com- pany collected the subscription off of the original stockholder, no transfer having been made of the stock on the books of the com- pany; it was held, that the purchaser was liable to the original stockholder for the amount collected from him by the company. STOCK AND STOCKHOLDERS. 629 Transfers and Assignments. Clinton and Port Hudson B. R. Co. v. Eaion, 14 La. An., 816. 1859. 23. Sale of stock. The defendant executed the following contract: " For value received, the bearer may call on me for one thousand shares of tlie •stock of the Cleveland and Pittsburgh R. R. Co., at 117 per cent, any time in six months from date, without interest. The bearer is entitled to all the dividends, or surplus dividends declared during the time, to half past one p. m. each day." Meld, that the holder of the contract was not entitled tt) a dividend which had been declared and an- nounced previous to tlie date of the contract ; although at the time of its execution, tlie stock was selling " dividend oh." Lomba/rdo v. Case, 45 Barbour (N. Y.), 95. 1865. 24. — A contract, upon the sale of a certain number of shares of railroad stock, for the transfer by the vendee to the vendor of the same number of shares, at a future day, for a specified price, does not, witliout a stipulation to that effect, require the vendee to keep and transfer the same identical stock wliich was conveyed to him. Nor will such a contract be affected by the new issue of additional stock at a lower nominal price. Noyes v. Spaulding, 27 Vt., 430. 1855. 25. — delivery. Upon a contract to deliver stock, the damages for the failure to deliver it is the value of tlie stock at the time it ouglit to be delivered. Orange and Alexandria li. B. Co. V. Fulvey, 17 Grattan (Va.), 366. 1867. 26. — A court of law cannot render a judg- ment that defendant shall deliver to plaintiff so many shares of stock. Upon a contract to deliver stock in payment of a debt or other- wise, a court can only award damages for the failure to deliver it. lb. 27. — sale by administrator. When an ad- ministrator sells railroad stock, the property of the estate which he represents, at private sale, and his vendee sells to a bona fide pur- chaser without notice, the title of such person will be -protected against the heirs of said es- tate. Nutting v. Thomason, 46 G-a. , 34. 1873. 28. Wagering contract. The contract to sell and transfer at a future day, and for a specified prioe, a given number of shares of railway stock, which the vendor actually has at the time the contract is made, is not a stock jobbing or wagering contract. Noyes v. Spaulding, 37 Vt., 420. 1855. IV. Transfers and assignments. 29. Attorney in fact. A person who holds certificates of stock issued to other persons, with letters of attorney authorizing the trans- fer of such shares to him, is not a stockholder. Heath v. Erie B. B. Co., 8 Blatchford (U. S. 0. C), 347. 1871. 30. Judicial sale. Where, upon the sale on execution of shares in a corporation, a certi- ficate is demanded of the corporation by the purchaser, and a suit is brought for refusing to give such certificate, the measure of dam- ages is the value of the stock at the time of the demand, with interest, and not the value at the time of the trial, or at any intermediate period. Pinherton v. Manchester and Lawrence B. B. Co., 43 N. H., 424. 1861. 31. Transfer. Where the stock of a corpo- ration is, by the terms of its charter or by-laws, transferable only on its books, the purchaser .receiving certificate witli power of attorney, etc., gets the entire interest of the seller with all his rights. New York and. New Haven B. B. Co. V. achuyler, 34 N. Y., 30, 1865 ; Same v. Ketchum, 3 Keyes (N. Y.), 363, 1867 ; see Same v.Same, 38 Barbour (N. Y.), 534, 1860; see Underwood v. New York and New Haven B. B. Co., 17 Howard's Pr. (N. Y.), 537, 1859. 32. — Such purchaser, neglecting to have the transfer made on the books of tlie corpo- ration until after such .stock is transferred to a iona fide holder without notice, loses his right to a transfer. lb. 33. — The corporation, however, would be liable to tlie holder of such certificate, for per- mitting the stock to which he was entitled to be transferred to anotlier, it having construc- tive notice of these outstanding certificates. lb. 34. — The transfer of stock from the as- signor, though not made on the books of the company, is sufficient to pass the title to the assignee. Baltimore, etc., B. B. Co. v. Sewell, 85 Md., 338. 1871. 85. — The transfer of a certificate of rail- way stock in a Massachusetts corporation, with an assignment upon its back, of the stocic thereby represented, and a power to the trans- feree to effect a transfer of the same on the books of the company, is a valid transfer of the stocic itself, and vests the title to it in the transferee; and the tender of such a cortifi- 630 STOCK AND STOCKHOLDERS. Transfcra and Assignments. cate, assignment and power is a sufficient compliance with a contract to furnisli, or cause to be furnished, the number of shares indicated. Noyes «. Spaulding, 27 Vt., 420. 1855. 36. — The plaintiff was the equitable owner of forty shares of the capital stock of the de- fendant. Certificates of stoclc for those shares were outstanding in the name and possession of a third person, who claimed to be the abso- lute owner thereof. The books of the com- pany showed the certificates to be in the name of such third person. Ttie plaintifi", without returning the certificates, made demand of the defendant for tlie transfer and delivery to it of the stock, and, upon defendant's refusal, brought its action against the defendant for the value of the stock, making the holder of the certificates a party defendant. Held, that the plaintiff was not entitled to a judgment for the value of the stock. National Bank of New London v. Lake Shore and Michigan Southern R. B. Co., 21 Ohio St., 231. 1871. 37. — The holder of certificates of stock either for value paid or as collateral security, has the equitable title to the stock, and on sur- rendering the same to the corporation in which the stock is held, may compel the company to issue new certificates to him, in his own name. Maldeman v. nUlaborough and Cincinnati U. li. Co., 2 Handy (Ohio), 101. 1855. 38. — attachment. Upon a pledge of rail- way stock in New Hampshire, there should be such a delivery as the nature of the thing is capable of; and, to be good against a subse- quent attaching creditor, the pledgee must be Clothed with all the usual muniments and in- dicia of ownership. Pfnkerton v. Manchester and LoAJorence B. B. Co., 42 N. H., 424. 1861. 39. — On thCj transfer of stock, the delivery will not be complete until an entry of such transfer is made upon the 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 fraud- ulent and void as to creditors. lb. 40. — Where the transfer was made at a dis- tance from the office, and the old certificates surrendered and new ones given by a transfer agent appointed for that purpose and residing in a neighboring state, proof that the evidence of the transfer had been forwarded for record by the earliest mail communication, although not received until an attachment had inter- vened, would be a sufficient explanation of the want of delivery, and such transfer would be good against creditors. lb. 4t. — But where there was a delay from July 8th until in August following, before taking any mea,sures to have the transfer re- corded, the transfer was held invalid as against a subsequent attaching creditor. lb. 42. — Whether by the by-laws of a corpo- ration, authorized by the charter, which require transfers of its stock to be made on the books of the company, a separate written assign- ment of stock conveys the legal title or only an equitable one: -quoere? Colt v. Ives, 31 Conn., 35. 1802. 43. — Even if it conveys an equitable title only, yet tliis title is good in equity against an attachment subsequently made by a creditor of the vendor, where the assignment is made in good faith, and the parties have done what they could under the circumstances to perfect the title of the vendee. lb. 44. — Where stock of the vendor had been attached by a prior attaching creditor, and the secretary of the company refused, on the ap- plication of the vendor, to allow a transfer on the books of the company of the stock so at- tached, and the vendor thereupon, in good faith, made a written assignment of the stock by a separate instrument, and lodged it with the secretary, it was Jield, that the title of the vendee was good against later attachments of the stock by the creditors of the vendor. lb. 45. — Where the by-laws of a corporation required that all transfers of shares should be made in a book to be kept by the treasurer, it was held, that an assignment of shares by the deed of tho vendor, accompanied by a delivery of the certificates to the vendee, was valid without any transfer on the books of the cor- poration, not only between the vendor and vendee, but against a, creditor of the former, who attached the shares before any notice of the sale had been given to himself or to the treasurer of the corporation. Sargent v. Essex Marine B. B. Co., 9 Pickering (Mass.)., 201. 1829. 46. — fraud. The plaintiff, in May, 1849, received from R. & G. L. Schuyler, as collate- ral security, 90 shares in the N. Y. and N. H. R. R. Co., of which R. Schuyler was transfer agent. The certificates had shortly before been STOCK AND STOCKHOLDERS. 631 Dividends and Interest. issued bj' R. Schuyler to the firm. In 1854, it was discovered that Schuyler liad fraudulently issued to the firm certificates of stock to a large amount beyond the capital limited by the com- pany's charter. The firm owned at the time of the deliveiy of the certificates to plaintiffs 160 shares of genuine stock. The certificates were assigned in blank by Schuyler, under seal, in the name of the firm. Of the 480 shares overissued at the time, the plaintiff took its certificates, the certificates of over 350 were, witliin the next two years, surrendered by the firm, and the stock which they purported to represent was transferred on the books of the company to other parties. The plaintiff held its certificates without calling for a transfer of the stock, and without giving notice to the company until the discovery of Schuyler's fraud in 1854, when plaintiff rnade a demand for the transfer of the stock, and the defendant refused. Plaintiff then brought an action on the case for damages. Held, that the 90 shares would be presumed to be a part of the 160 gen- uine shares, in the absence of proof to the con- trary. If the shares were genuine, plaintiff was entitled to have the transfer made, not withstanding more than 160 of the Schuyler's shares had already been transferred upon the company's books. That, however, at the time of the demand, the company's books were in such confusion, growing out of said frauds, that the company was justified in refusing to allow the transfer at that time. Bridgeport Bank v. New York and New Haven S. B:Oo., 30 Conn., 331. 1861. 47. — Where another demand was made, five years afterwards, by B., an attorney, who had made an agreement with the plaintiff to bring and conduct this suit for the plaintiff at his own expense and risk, for a certain share of the sum recovered ; Md, that the unlawful- ness of the agreement between the attorney and plaintiff did not make the demand insufficient. lb. 48. — refusal to transfer. A railroad com- pany cannot refuse to enter a transfer of stock upon its books, on the ground that the assign- or of the stock is indebted to the company, un- less the company had a lien upon the stock at the date of the transfer. A by-law passed by the company two days after the transfer, providing that no transfer should be made in such cases until the debt to the company was paid, would not, in this case, give a lien or right to refuse to enter the transfer. People ex rel. V. CroeJcett, 9 Cal., 113. 1858. 49. — Where the stock of a corporation was usually transferred on two distinct books, to the stock transferred on one of which share- brokers attached a greater value than to that on the other ; and a creditor agreed to exchange his debt for stock, on the officers stating that such stock could be transferred on the former ; and after completing such an exchange, the officers refused to allow a transfer of it to be entered on such book ; it was Jield, the creditor could not for that cause rescind the exchange, but that his remedy was in an action for dam- ages. Lokman v. New York and Erie B.B. Co., 3 Sandford (N. Y.), 39. 1848. 50. — In an action at law, brought against a corporation for refusing to issue or transfer stock, the plaintifi may claim in the same suit the value of the stock together with the divid- ends due thereon, and in such case, the meas- ure of damages is the value of the stock at the time of the demand, together with the divi- dends accrued thereon at that time, with inter- est to the day of trial. Baltimore City B. B. Co. V. SeiDeli;Z5 Md., 338. 1871. ' 51. — liability of assignee. Where a per- son becomes a stockholder in a corporation, by the transfer to him of the stock of an origi- nal subscriber, he adopts the contract of the assignor with the company, and becomes sub- stituted in his place, as regards his rights and his liabilities. Mann i>. Currie, 3 Barbour CS Y.), 294. 1848. Y. Dividends and interest. 1. Dividends. 52. Action for dividends. An action can- not be brought against a corporation for a div- idend declared without first making a demand. State «. Baltimore and Ohio B. B. Co., 6 Gill (Md.), 363. 1847. 53. — In an action brought by a stockhold- er against a corporation, to recover a dividend declared by resolution of the directors, in gen- eral terms, of so ranch money per share, evi- dence that the earnings of the corporation were received in property is incompetent, as it alters the legal effect of the resolution. Scott 632 STOCK AND STOCKHOLDERS. Dividends and Interest. V. Central B. B. Oo. of Georgia, 53 Barbour (N. y.),45. 1868. 54. Consolidation of railways. By an act of consolidation, between certain railway companies, it was agreed that the preferred stock should be entitled first to seven per cent, from the income of the consolidated road; then the common stock was to have seven per cent. | then the preferred stock was to have three per cent, further ; nnd afterwards the common stock could share in the balance. A dividend was afterwards declared by which ten per cent, on the amount of the capital was awarded to both classes of the stock, but such dividend was made payable in preferred stock to the holders of preferred stock, and in com- mon stock to the holders of stock in that class. The holder of a share of preferred stock re- ceived stock to the market value of about $8, and the holder of a share of common stock re- ceived stock to the value of about $7. Meld, that this gave to the holder of the common stock all he had a right to claim, and all that he was entitled to until the dividend of the pre- ferred stock amounted to tea per cent. Howell «. Chicago and Nortlmestern B. B. Co., 51 Bai'- bour (N. Y.), 378. 1868. 55. Dividends payable in future. Unless the charter gives to the directors the power to discriminate between the stockholders at dif- ferent periods, in the distribution of profits, they are all entitled to share therein. Jones v. Terre Hamie and Bielimond B. B. Co., 29 Bar- bour (N. y.), 353, 1859 ; see Same i). Same, 17 Howard's Pr, (N. Y.), 539, 1859. 56. — Where a dividend was declared to the persons then holding stock, without any discrimination, out cf the surplus earnings of the corporation for a given period, payable at a future day, it was held that all who were stockholders on the books of the company, at the time the dividend was declared, were en- titled to share therein. lb. 67. Failure of agent to pay dividend. When a dividend is declared, it becomes a debt due from the corporation to the individ- ual stockholder. If a dividend is declared payable elsewhere than at the offlcc of the corporation, the party through whom It is paid becomes the agent of the corporation, S.nd if such agent fail to pay the dividend to the stockholder, the loss must fall on the corporation. King v. Paterson and Hudson Biver B. B. Co., 5 Dutcher (N. J.), 504, 1861 ; overruling Same v. Same, ib., 83, 1860. 58. Failure to declare dividends. No ac- tion can be maintained by a stockholder to compel a corporation to declare and pay a dividend, from funds on hand. Karnes v. BocJieeter and Genesaee Valley B. B. Co., 4 Ab- bott's Pr. N. S. (N. Y.), 107. 1867. 59. — {guarantee. A certificate of shares of the guaranteed capital stock of a corpora- tion contained the following provision: "Said stock is entitled to dividends at the rate of ten per cent, per annum, payable semi-annually in New York, on the first days of June and December in each year, out of the net earn- ings of said company, and is also entitled to share pro rata with the other stock of the company in any excess of earnings over ten per cent, per annum ; and the payment of div- idends as aforesaid is hereby guaranteed." Held, that the holder of such certificate could not maintain an action at law against the cor- .jjoration for a failure to declare and pay div- idends as therein mentioned. Williston x. Michigan Southern B. B. Co., 15 Allen (Mass.), 400. 1866. 60. Foreign corporations. The court will not enjoin the directors of a foreign corpora- tion from paying a dividend, where no debt is due to the plaintiff, and his only ground for the injunction is a supposed error on the part of the directors in making the dividend. Howell 11. Chicago and Northwestern B. B. Co., 51 Bar- bour (N. Y.), 878. 1868. 61. Forfeited stock. Capital stock paid in for the purpose of carrying into effect the ob- ject of the company does not, on becoming for- feited, become profit and liable to distribution before the object of its payment has been ac- complished. Gratz v. Bedd, 4 B. Monroe (Ky.), 178. 1843. 62. Misapplication; injunction. An action may be maintained by a stockholder to enjoin the payment of a dividend, where the direct- ors are about to misapply the funds of the corporation in paying such dividend, there being in fact no money earned for such pur- pose. Carpenter v. New York and Neuo Ea/een B. B. Co., 5 Abbott's Pr. (N. Y.), 377. 1857. 68.— After a dividend has been declared, the right of each shareholder in the dividend payable to him is separate and independent of that coming to other shareholders, and he STOCK AND STOCKHOLDERS. 633 Dividends and Interest. cannot file a bill in belialf of such others to restrain the payment of the dividend. li. 64. Notice of place of payment. Adver- tisements, in a newspaper circulating daily in the vicinity of men of business, are presump- tive evidence of notice, but may be overcome by positive proof by the stockholder that such notice did not come to his knowledge. King v. Paterson and Hudson B. S. Co., 5 Dutcher (N. J.), 83. 1860. 65. Rights of stockholders to declared dividends. The dividends which are divisi- ble among the shareholders of a corporation must be considered as their own property, and cannot be applied by the directors to any pur- pose not included in their charter or funda- mental contract, without the consent of such shareholders. March v. ^Eastern B. B. Co., 43 N. H., 515. 1863. 66. — Wiiere a corporation makes divi- dends, payable in money, no inquiry can be made into the means out of which it deter- mined to make the dividends. The corpora- tion is concluded by the declaration of the dividend. Scott v. Oeiitrai B. B. Go. of Georgia, 53 Barbour (N. T.), 45, 1868; see Ehle o. CUt- tenango Bank, 34 N. Y., 548. 67. Sale of stock. A sale of shares of stock in a railway company carries with it the divi- dends declared by the company, when they are to be paid at a day subsequent to the trans- fer of the stock. Burroughs v. North Carolina B. S. Co., 67 N. C, 376. 1873. 6S. Stock dividends. Although the issue of stock dividends may appear to be objec- tionable, such considerations are more prop- erly addressed to the board of directors tlian to the court, on a motion to continue an in- junction. Howell V. Chicago and NorthweMern B. B. Co., 51 Barbour (N. Y.), 378. 1868. 69. — If a corporation has the power to in- crease its capital stock, it is immaterial wheth- er such increase is made by awarding the stock to the stockholders as dividends, or by paying the stockholders the dividends in cash from the earnings of the company and selling the stock in the market, to raise money for the use of the corporation, li. 70. Who are entitled to dividends. The funds of a corporation, whenever they accrued, are to be distributed among such as are its stockholders when the dividend is declared. Goodwin V. Hardy, 57 Me., 143. 2. Interest. 71. Certificates. A certificate issued by a corporation in the ordinary form of certifi- cates of stock, but containing a promise on the part of the corporation to pay interest thereon until the happening of a certain event, constitutes the person to whom it is issued a stockholder and member of the company. McLaughlin v. Detroit and Milwaukes B. B. Co., 8 Mich., 100. 1860. 72. — Nor can the corporation, without the consent of such stockholder, oblige him to re- ceive its bond, instead of money, for the inter- est upon such certificate. lb. 73. — If the corporation can issue such a certificate, it can ratify one already issued without authority. A resolution to pay the interest on such certificate in bonds, is sufli- cient evidence of ratification. lb. 74. Interest declared payable in stock. Where the directors of a railway company, under the authority of the act "regulating railroad comisanies," pass and enter on their journal a resolution "that the treasurer is di- rected to allow interest on installments as paid, payable in stock, and carry to the ac- count of each stockholder the interest annu- ally, and, when the amount is sufficient, to is- sue stock certificates in payment; " and actu- ally do pay such interest to persons making payment of their stock subscriptions subse- quent to the passage of the resolution, such resolution accrues to the benefit of parties who had paid their stock subscriptions prior to the passage oC the resolution, and constitutes a binding obligation to pay such interest. City of Ohio i>. Cleveland and Toledo B. B. Co., 6 OhioSt., 4S9. 1856. 75. — Interest follows the principal as an incident to it, so long as it remains an inci- dent; but where it is separated and set apart from the principal by actual payment, or by being carried, when due, to the credit of the owner of the principal, in his account with the debtor, and this in pursuance of a provis- ion in the contract creating and defining the principal debt, it is so separated and dis- joined from the principal as to cease to be an incident to, and does not follow it. lb. 76. — "Where a stockholder assigns his stock in such a case, after two years' interest 634 STQCK AND 8TOCKHOLDEB8. Personal Liability of Stockholders, and Assessments. has accrued under such resolution, the interest does not pass to the assignee. lb. 77. Particular case. Under the particular facts of this case, it was lield, that plaintiff could not recover interest upon shares of stock held by him. WrigM 11. Vermont and MassaelmaetU JR. B. Co., 13 Gushing (Mass.), 68. 1853. 78. Scrip. The stockholders of a railway company voted to pay interest on subscrip- tions for stock until the completion of the road ; and after payment of such interest for some time, and the completion of the road, passed another vote authorizing the issue of certificates therefor, payable at a future day named, " with the express understanding and agreement that if there is not sufficient money in the treasury on the day that it falls due," the holders of such scrip should recover pro rata so much as the treasurer should be able to pay, and that as soon afterwards as he should be able to pay it, he should give notice by advertisement. J£eld, that so long as the treasurer had no funds, the holders of scrip could maintain no action. Cunningham v. Vrntnoht and Maasachusetta £. li. Co., 13 Gray (Mass.), 411. 1859. 79. Vote of stockholders. If the stock- holders of a corporation have passed a vote instructing the dii-ectors to adjust an interest dividend by issuing certificates therefor, pay- able at a future time named, with a condition that, if there should not then be money enough in the treasury to pay the whole amount, the holders of the certificates should receive as much pro rata as the treasurer should be able to pay, and the directors have accordingly is- sued such certificates, the holder of one of them, if under any circumstances, he can maintain an action upon it, can only do so by proof that the company was able to pay the full amount of interest covered by the vote, either at the specified time, or at the commencement of the action. Barnard v. Vermoni and Maasachuaetta B. B. Co., 7 Allen (Mass.), 513. 1863. Yl. Personal liability of stock- holders, AND ASSESSMENTS. See SiTBsoBiFiioirB by Individuals. 1. Assessments. 80. Amount of assessments. Where the conditions of tlie subscription provided, that not more than five dollars on a share should be assessed at one time, and the directors laid more than that amount at the same time, but required not more than five dollars per sliare at one payment, it was held that the as- sessments were binding. Penobacot and Ken- nebec B. B. Co. V. Dunn, 39 Me., 587, 1855; Penobacot B. B. Co. v. Dumnw, 40 ib., 173, 1855. 81. By-laws. An agreement to subscribe shares of stock is not a promise to pay tliem, and a railway company cannot, in the absence of such a provision in its charter, recover as- sessments upon stock from the stockholder by an action. Kennebec, etc., B. B. Go. v. Kendall, 31 Me., 470 1850. 82. — In the absence of a legislative enact- ment or contract, a personal liability cannot be created against a shareholder by a by-law of the company. Jb. 83. — A by-law, therefore, providing for the sale of the delinquent stockholder's shares, and holding him personally liable for any defi- ciency, was held insufficient to sustain an ac- tion at law for the deficiency. Ib. 84. Demand. No demand of assessments is necessary other than that prescribed in the by-laws of the corporation. Penobacot B. B. Co. V. Bummer, 40 Me., 173. 1855. 85. Forfeiture. The power given to a cor- poration to declare stock forfeited must be strictly pursued. Equity will not relieve against a forfeiture, if regular. A stockholder is presumed to know the terms of his sub- scription. Germantown Pasaenger B. B. Co. V. Fitler, 60 Penn. St., 134. 1869. 86. — As a forfeiture extinguishes the lia- bility of a stockholder, the creditors of the corporation can invoke the aid of equity to prevent it, or set it aside. Ib. 87. — To maintain an action under special statute authority, its terms must have been strictly complied with. York and Cumberland B. B. Co. V. BitcMe, 40 Maine, 435. 1853. 88. — Thus, the sale of the stock of share- holders to pay assessments, where the statute required the same to be done under an order from the directors to the treasurer, cannot be made on an order of a committee appointed by the directors. Ih. 89. — An alternative order is insufBcient. It must be absolute. Ib. STOCK AND STOCKHOLDERS. 885 Personal Liability of Stockholders, and Assessments. 90. Number of shares fixed by charter. Where the number of sbares are not fixed lu the charter the stockholders or directors may fix the number. But the number must be de- termined before an assessment is made. Som- erset and Kennebec B. B. Co. v. Gushing, 45 Maine, 524. 1858. 91. — The number may be afterwards chaiiged, but the assessment must be on all the shares. An assessment upon a part is void. Tb. 92. — "Where the charter of a railway com- pany provides that the capital stock shall con- sist of not more than a certain number of shares, " the number of which shall be deter- termined from time to time by the directors thereof," the directors h ave no power to levy assessments upon subscribers for stock before determining the whole number of shares. Worcester and, Naihua B. B. Go. v. Hinds, 8 Gushing, (Mass.), 110. 1851. 93. Responsibility of subscribers. Where according to the by-laws of the company, no assessment is to be made until the estim ated cost of the road is subscribed by responsible parties; and it appeared that the estimated cost had been subscribed; and the directors in good faith decided that the estimated cost had been subscribed by responsible parties, and proceeded to make assessments; it vtasheld, that the assessments were valid and could not be defeated by showing that, as a matter of fact, some of the subscribers were not respon- sible. Belfast and Moosehead Lake B. B. Co. v. Brooks, 60 Me., 568. 1873. 2. Personal liability. 94. Change of laws. The legislature has the right to modify and change existing laws so as to afiect the liabilities of stockholders for the debts of the corporation, having a due regard to existing contracts, and making such modifications prospective. Rathorn v. Galef, 53 Maine, 471. 1866. 95. — The legislature may change and re- strict this remedy as to preexisting debts. Cummings v. Maxwell, 45 Me., 190. 1858. 96. — There is no privity of contract be- tween the creditors and stockholders, and the repeal of the statute making the stockholders liable does not impair the obligation of any contract. Gojin v. Bich, 45 Maine, 507, 1858; Carroll v. EinUey, 46 ib., 81. 1858. 97. — The creditor has no vested rights against the stockholder till after judgment. Ib. 98. Demand. No demand of a stockhold- er is necessaiy before bringing suit agaiiist him, further than the demand of the officer holding an execution against the compaiiy, on the stockholder to show property of the corporation to satisfy the debt. Ingalls v. Cole, 47 Me., 530. 1860. 99. Double liability. A stockholder, who becomes such, after the repeal of the double liability clause in the state constitution of 1865 (see Art. VIII, § 6), is not liable in double the amount of his stock, for debts owing by the corporation jjrior to the repeal. Ochiltree V. Iowa B. B. Contracting Co., 54 Mo/, 113. 1878. 100. Equitable proceedings. Since the passage of ch. 1962, Pamphlet Laws, assump. sit, debt or other action at law, cannot be maintained against an individual stockholder in a railway corporation, for a debt of the company, even though demand has been legally made upon the corporation, and proper notice given to such individual stock- holder. Sadley v. Bussell, 40 N. H., 109. 1860. 101. — And where there were other stock- holders, at the time the debt was contracted, a bill in chancery cannot be maintained against such individual stockholder alone, but those against whom the stockholder would have a remedy for conti-ibution must be made parties with him. Ib. 102. Execution — usury. An execution against a railway company may be levied upon the property of an owner of shares, to the amount of his stock, for debts contracted during his ownership. To establish the valid- ity of the levy, it must appear: 1. That he was a shareholder to the amount levied. 3. That the levying officer, forty-eight hours be- fore the levy, gave him notice of the amount of the debt, and of the intention to make tlie levy. 3. That there was no attachable prop- erty of the corporatio;i. Chaffin v. Cummings, 37 Me., 76. 1853. 103. — In such case, the return of the officer, that he can find no property of the corporation, is conclusive evidence that there was none. Ib. 636 STOOK AND STOCKHOLDERS. Preferred Stock. 104. — Ill a controversy as to the validity of such levy, the question of usury, as between the creditor and the corporation, cannot be raised. lb. 105. Foreign corporation. Where the act of another state in the Union makes the pri- vate property of stockholders in a corporation liable for the fulfillment of the contracts of the company, but points out no mode in -which this liability may be marie available, if the courts of other states are bound to notice and give effect to this remedial provision, the cour.c of proceeding must be regulated by the lawr of the state where the contract is sought to be enforced. Drinkwater v. Port- land Marine Railway, 18 Me., 35. 1841. 106. —Under act of Feb. 16, 1836, the creditor must obtain judgment against the corporation before he can have his remedy against the stockholders, li. 107. Judgment. On the trial of a mo:ion for an execution against a railway company, with a clause directing its levy upon the pri- vate property of one of the stockholders, the judgment against the company is conclusive as to the indebtedness of the company to the plaintiff at the time at which it was rendered, but it is competent for the defendant to show that it has been paid or discharged. Corse Brothers v. Sanford, 14 la., 235. 1883. 108. Laborer's claims. Where a laborer, who has done work for a contractor upon a railroad, has given notice of his claim under the § 13 of the general railroad act, and has sued and recovered judgment against the company, and issued execution thereon, and the same has been returned unsatfsfied, a stockholder of the company, who has paid for his stock in full, cannot be compelled to pay the amount of such judgment under § 10 of said act. Oal- lagha/r v. Ashby, 26 Barbour (N. Y.), 143. 1857. 109. Priority of claims. The first person proceeding against a stockholder for a corpo- rate debt has the prior right, and his right cannot be defeated by the stockholder or other creditor who may first obtain execution. In- gallB 1). Oolrt, 47 Maine, 530. 1860. 110. — But the stockholder cannot plead in defense that there is another proceeding al- ready pending against him, without evidence that his liability has already been establised to a sufficient amount to exhaust it. lb. 111. Statutes. The liability of the stock- holders of a railway company, for the debts of the company, under § 10 of the general rail- road act of 1850, was an original responsibil- ty, and was that of general partners. Oonant V. Van Schainh, 24 Barbour (N. Y.), 87. 1857. 112. But it was the intention of the legisla- ture, by the act of April 15, 1854, to repeal the provisions providing for such liability. lb. 113. — Under R. 8., ch. 46, § 26, assumpsit may be maintained by a creditor of a corpora- tion against a stockholder. Eatlwrn v. Oalef, 53 Me., 471. 1866. 114. — The return of the officer that he cannot find corporate property is all that is required to maintain such an action. lb. 115, — Demand and notice, both made at the same time, forty-eight hours before suit, are sufiicientto satify the requirement of the statute. lb. 116. — By ch. 46, § 36, R. S. of 1857, the remedy of a creditor of a corporation against the individual stockholders was, by an action, to be commenced within six months after the rendition of judgment against the corpora, tion. Oumminga ■». Maxwell, 45 Me., 190. 1858. 117. — This act is remedial only, and there- fore not unconstitutional. lb. 118.— Under the provisions of the statute of New Hampshire, making stockholders liable for the debts of private corporations, stockholders are, in general, liable only for debts of the corporations contracted while they were stockholders. Ohesley v. Pierce, 33 N. H., 389. 1855. YII. Pbefeered stock. 119, Action; parties. In an action brought by preferred stockholders against a corporation to compel the payment of a divi- dend alleged to be due, and charging that the funds applicable thereto have been diverted to the permanent improvements and additions of the road, the common stockholders may be proper, but are not necessary parties. Thomp- son V. Erie B. R. Co., 45 N. Y., 468. 1871. 120. Condition. A railway company is- sued preferred stock on the following condi- tion : " So much of the net earnings of the road as may be necessary, after paying interest to the bondholders, shall be applied to the pay- ment of twelve per cent., in semi-annual divi- STOCK AND STOCKHOLDERS. Illegal and Spurious Stock; Overissues. dends of six per cent., each, to the holders of stock hereby created, until the net earnings shall be sufficient to pay an interest of six per cent., on the stock and all the bonds issued on the first and second loans." Held, That these payments depended on no contingency, ex- cept that the net earnings of the road, after pay- ing the interest on the bonded debt, should be sufficient for paying them. That in estimat- ing the time when the earnings had reached that amount, an entire year should be consid- ered, and not six months. That the plaintiff Could not recover any part of such dividends accruing after he has transferred his istock, al- though the transfer was not recorded. Bates V. Androscoggin and Kennebee R. B. Co., 49 Me., 491. 1860. 121. Earnings only to be applied. The holder of " preferred and guaranteed stock," being entitled to " preferred and guaranteed dividends, at the ra'e of ten per cent, per an num, payable semi-annually, before any divi- dend shall be paid on other stock of said company," is entitled to that sum, payable only out of the earnings of the company which are legally applicable to the payment of dividends. Taft «. Hartford, Providence and Fishhill R. R. Co., 8 R. I., 310. 1866. 122. — net earnings. The meaning of the words, " net earnings," defined. St.JoTm v. Erie R. R. Co., 10 Blatchford (U. S. C. C), 871. 1873. 123. Hannibal and St. Joseph R. R. Co. Preferred stock certificates of the H. and St. J. R. R. Co. are held to give the holders a preferable right to the first seven per cent, of the net earnings each year, after which the holders of common stock are entitled to the next seven per cent., and if there be a surplus, it is to go to holders of the common stock and preferred stock equally. Bailey v. Hannibal and St. Joseph R. R. Co., 1 Dillon (8 U. S. Cir. Ct.), 174. 1871. 124. — An agreement for preferred stock of the Hannibal and St. Joseph R. R. Co., con- strued. Bailey i>. Railroad Co., 17 Wallace, 96. 1872. 125. Power to issue such stock. It is not ultra vires for a railroad company to contract to issue to contractors for the completion of the road preferred stock; provided, the whole number of shares does not exceed the amount authorized by the charter. Hazlehurst v. Sa- vannah, &c. R. R. Co., 43 Ga., 13. 1871. VIII. Illegal and spurious stock ; OVER-ISSUES. 126. False certificates; legalizing act. The act of the diiectors in issuing false certifi- cates of slock of a railway company incor- porated by two states, cannot be ratified by a subsequent statute, passed by one of the states from which the corporation derives its exist- ence, alone; neither state having exclusive jurisdiction over the corporation. Fisk v. Chicago, Rock Island and Pacific R. R. Co., 53 Barbour (N. Y.), 513, 1868; see O'Brien v. Same, lb., 568 : Fisk v. Same, 36 Howard's Pr. (N. Y.), 20, 1868; 4 Abbott's Pr. N. S. (N. Y.), 378, 1868 ; see O'Brien «. Same, 36 Howard's Pr. (N. Y.), 24, 1868; 4 Abbott's Pr. K. S. (N. Y.), 381, 1868. 127. — Schuyler fraud. Spurious stock, attempted to be created in excess of the legal capital of an incorporated company, forms no part of the capital stock, and is void. Nern York and New Haven R. B. Co. v. Schuyler, 34 N. Y., 30, 1865 ; see Same v. Same, 17 Howard's Pr. (N. Y.), 464. 1859; see Same v. Same, 17 N. Y., 592, 1858; Same d. Ketchum, 3 Keyes (N. Y.), 363, 1867 ; see Same o. Same, 38 Barbour risr. Y.). 534,1860; see New York and New Ha- ven R. R. Co. V. Schuyler, 28 Howard's Pr. (N. Y.), 187, 1855 ; 39 ib., 89, 1 865 ; Same v. Ketchtm, 34 ib., 303, 1867 ; Same v. Schuyler, 1 Abbott's Pr. (N. Y.), 417, 1855; 7 ib., 41, 1858;. 8 ib., 339, 1859. 128. — Spurious certificates of stock in a railroad corporation, issued by the officer hav- ing apparent authority to do so, undistinguish- able upon their face from the certificates of genuine stock, and outstanding in the hands of numerous holders as evidences of interests in the property of the corporation, are clouds upon the title of the genuine stockholders which a court of equity will remove. New , York and New Haven R. R. Co. v. Schuyler, 17 N. Y., 593. 1858. 129. — The corporation may institute a suit for this purpose, as the representative of the genuine stockholders and in their behalf. Ib. 130. Illegal issues. The supreme court has jurisdiction, in actions brought by citizens of New York as holders of stock of a railroad company created by the states of Illinois and Iowa, for the purpose of restraining, by injunc- tion, the use of the proceeds of an issue ot 638 STOCK AND STOCKPIOLDERS. Increase of Stock — Actions by Stockholders. stock alleged to be illegal and void, and ap- pointing a receiver of such proceeds. Fisk v. Chicago, Bock Island and Pacific B. B. Co., 53 Barbour (N. Y.), 513, 1868; Same ii. Same, 86 Howard's Pr. (N. Y.), 20, 1808; 4 Abbott's Pr. N. S. (N. Y.), 378, 1868. 13 1. Overissues. The assignee of stock illegally issued is in no better situation than the party to whom such stock was originally issued. Mechanic's Bank «. New York and Ifew Haven B. B. Co., 13 N. Y., 599. 1856. 132. — A corporation whose capital is lim- ited by law cannot issue shares in amount be- yond such limit; veYersiugMechame'sBankv, New York, etc., B. B. Co., 4 Duer (N. Y.), 480. 1855. Meelumic's Bank v. New York and New Hamen B. B. Co., 13 N. Y., 599, 1856 ; see Wood- ruff V. New York and New Haven B. B. Co., 18 Howard's Pr. (N. Y.), 419, 1860. IX. Inokease of stock. 133. Boston and Maine R. R. Co. The in- crease of the stock of the Boston and Maine R. R. Co. held valid. The statutes of Maine and Massachusetts in relation to said corpora- tion — construed. Attqmey General v. Boston, and Maine B. B. Co., 109 Mass., 99. 1871. 134. Contract. A contract for tlie pur- chase of railway stock construed with refer- ence to the rights of the purchaser to take new stock subsequently issued. Miller «. Illinois Central B. B. Co., 24 Barbour (N. Y.), 812. 1857. 135. Hudson River R. R. Co. The act au- thorizing an increase of the capital stock of the Hudson River R. R. Co. — construed. Act of May 12, 1846. Manice ii. Hudson Biter B. B. Co., 3 Duer (K. Y.), 426. 1854. 136. Payment of indebtedness in stock. A corporation having power to issue further capital stock may issue the same for an equal amount of indebtedness. Lohmdm v. New York and Erie B. B. Co., 2 Sandford (N. Y.), 39. 1848. 137. Subscriptions. The Act of March 24, 1865, authorized any railway company to issue such additional shares of stock as might be necessary to equip its road, etc., the stock to be the same as the original stock and stand on the same footing. By the Act of April 10, 1867, the directors of any railroad company authorized to increase its stock, when the in- crease shall have been authorized by the stockholders, may determine in what manner the same may be subscribed and sold, the amounts of the installments and the manner of their payment. The stockholders of a cer- tain road resolved that the directors should have power to increase the stock, and dispose of the same as they may deem advisable. The directors accepted a subscription for the pur- pose of extending their road to the Delaware, and stipulated that interest at the rate of six per cent, upon the installments on the stock should be paid until the completion of the ex- tension, with a proviso that the new stock- holders should not participate in any of the profits theretofore made. Held, that such sub- scription was unauthorized by the .aforesaid acts and the resolution of the stockholders. McManus v. Philadelphia and Beading B. B. Co., 58 Penn. St., 830. 1868. X. Actions by stockholders. 138. Action against corporation by stocli- holder. In an action brought by one claim- ing to be a stockholder and creditor of a cor- poration, suing on his own behalf and that of others similarly situated, to compel its officers to account, etc., proof that he is not a creditor, or of a tender of his demand, is not ground for a perpetual stay of proceedings. Bamsey V. Erie B. B. Co., 8 Abbott's Pr. N. S. (N. Y.), 174. 1870. 1 39. — Neither is the fact that the demand which he claims to constitute him a creditor, and the stock which constitutes him a stock- holder, were purchased with the intent of bringing suit thereon. lb. 140. — The ca.ses reviewed, on the question as to when a stockholder will be allowed to file a bill in his own name, on behalf of him- self and all others standing in the same situa- tion, making the corporation a party defend- ant, to compel the ministerial ofBcers of the corporation to account for breach of official duty or misapplication of corporate funds. Heath v. Erie B. B. Co., 8 Blatchford (U. S. C. C), 847. 1871. 141. Bondholders. The owner of corpo- ration bonds secured by a lien upon lands has the same right as a stockholder to maintain a suit to prevent another corporation from ob- taining such lands, by the wrongful use of the name of his cprporation. Newby v. Oregon STOCK, LIVE — STREETS. 639 Miscellanuous. Cmtral B. B. Oo., 1 Sawyer (U. 8. C. C), 63. 1870. 142. Redress of injury to corporate rights. A. stockholder cannot maintain a suit for an injury to corporate rights, unless it appears from the bill that the corporation refused to take proper measures to protect or redress the same. J6. STOCK— LIVE. See CAraiiAQE op live Stock ; Injubies to Domestic AmMALB. STOPPAGE IN TRANSITU. 1. Right of stoppage. It is not necessary for the party stopping goods in, transitu, to show that the consignee failed after the con- tract. It is sufl3.cient if his failure becomes known after the sale. Beynolds v. Boston and Maine B. B. Oo., 43 N. H., 5S0. 1862. 2. — Any agent, authorized to act for the consignor, either generally or in relation to the consignment in question, may stop goods in transitu, without any authority to adopt that particlar measure. Ih. 3. — The right of stoppage only terminates with an actual delivery, unless the carrier con- sents to hold the goods for the consignee, or wrongfully refuses to deliver them. lb. 4. — A notice to the carrier not to deliver the goods is enough ; a demand of delivery is not necessary. lb. 5. — Direct proof of insolvency is not neces- sary; itmay be proved by circumstances. lb. 6. — A. sold to B. in Boston, a lot of whis- ky, then in a government bonded warehouse in Indiana. B. gave his acceptance for the price, and a certificate for the whisky was obtained for B. in his name from the govern- ment storekeeper. The seller was to ship the whisky ' from time to time, and was to pay the storehouse charges, etc., drawing on B. therefor. The seller at various times made shipments, and when the last lot was on the way, B. became insolvent. Held, that the seller still had the right of stoppage in tran- situ, Mohr V. Boston and Albany B. B. Co., 106 Mass., 67. 1870. STREETS. See Eminent Domain; Hiohwats; Injcbies to Do- mestic Animals ; Injunction ; Stbeet Eailttays. 1. Bridges over track of railway. Wliere a railway company is required by statute to erect and maintain a bridge over its track upon a certain street, it will not be relieved from such duty by the subsequent order of the county commissioners requiring certain towns to perform it. Oambridge, Inlmbitants of t>. Oha/rlestown Branch B. B. Co., 7 Metcalf (Mass.), 70. 1843. 2. — The defendant was a corporation, with a charter subject to amendment or repeal, and which empowered it to construct and use a railroad terminating in the city of New Hav- en, and provided that the construoti(m and use of that part of the road within the limits of Uie city should be subject to such regulation as the common council of the city should pre- scribe. After the defendant had constructed its road and built bridges over the same with- in the city to the acceptance of the city, an act was passed empowering the common council to order them widened in such manner as public convenience might require, and to en- force the order. Held, that the act was not unconstitutional as impairing the obligation of the contract of the state with the defendant, or as taking its property without compensa- tion. English i). New Haven and Northampton B. B. Oo., 33 Conn., 340. 1864. 3. — The entire duty of erecting and main- taining the bridges having been imposed by the charter, and, by the act in question upon the defendant, the common council in determin- ing when and in what manner the bridges should be altered, would not be an interested tribunal, even if regarded as acting as the agents of the city. lb. 4. — But the common council were acting as the agents of the law and not of the city. lb. 5. Conveyance. As between grantor and grantee, the conveyance of a lot bounded upon a street in a city conveys the land to the cen- ter of thi street. There is no distinction, in his respect, between the streets of a city and country highways. Bissell v.Nefw Torlc Cen- tral B. B. Co., 33 N. Y., 61. 1861. 6. Crossing. Where a dedicated street is 640 STREETS. Culverts — Easements and Servitudes. opened over a railroad obliquely, the court will not interfere with, the discretion of the common council in accepting the same, and ordering work to be done thereon, where they are acting within the city charter, and it does not appear that the crossing is unnecessary, and a dangerous obstruction to the company's right to travel. State ». City of Mlimheth, 6 Vroom (N. J.), 359. 1873. 7. Culverts. The city of Philadelphia has, by statute, the right to build a culvert over Cohocksink creok. A subsequent act author- izing the North Penn. R. R. Co. to build a railroad from any point north of Vine St., etc., gave no exclusive right to the street, and the city may remove the railway in order to build the culvert. North Pennsylvania B. B. Co. V. 5i!o)ie,3 Philadelphia Rep. (Penn.), 431. 1859. 8. Dedication; conveyance. As between the grantor and the grantees of certain lots in a city, it is immaterial whether the dedication of the streets along said lolts has been accept- ed by the public or not. Bisaell v. New York Cerdral B. B. Co:, 23 N. T., 61, 1861 ; reversing Same v. Same, 26 Barbour (N. Y.), 630, 1858. 9. — One who grants land as bounding on a street, and owns the strip of land so describ- ed as a street, cannot be compelled in equity, at the suit of the grantee, to open and main- tain the strip as a street fit for travel. Sen- nessey v. Old Colony and Newport B. B. Co., 101 Mass., S40. 1869. 10. — Under the Spanish Law, servitudes were divided into two classes, urban, or those which one house enjoys on another, and rustic, or those which one estate enjoys on another. The servitude of view is ex- clusively wban and cannot be acquired by unimproved lands. Where a proprietor of lands dedicates to public use two streets, reserving a strip of land between them, the use made by him of the land so reserved, at the time of the dedication, will not deprive him or hia assigns of the right of applying it afterwards to other uses. French v. New Or- leans and Carrollton B. B. Co., 2 La. An., 80. 1847. 11. — If the owners of urban property lay off a street through the same, and set it apart as a highway, and it is so used by the public, it is a dedication of the street for the public use. New Orleans, Jackson and Great Northern B. B. Co. V. Moye, 89 Miss., 374. 1860. 12. — A dedication will not be presumed from use, for a period of less than ten years, but the jury may say, under proper instruc- tions by the court, whether there has been a dedication or not. Ih. 1 •^. — A dedication may be inferred from the acts of the owner, but in such cases, the in- tention of the owner must clearly appear. But it is not proof of dedication that a piece of ground was left open by the owner for a spe- cific purpose, and used by him in the usual course of his business, and that other persons were not excluded from passing through it, or that he has represented it as unenclosed upon a plat on which he has sold other town lots not necessarily connected with that open space. Nev> Orleans and Carrollton B. B. Co. V. Carrollton, 3 La. An., 283. 1848. 14. — plat. Upon a village plat, there was a small, triangular space between three streets, not platted as a lot or block, and the court Jield upon an inspection of the plat, that the whole space was dedicated as a highway, and the supreme courfrefused to disturb the ruling of the court below. Sanborn v. Chicago and Northwestern B. B. Co., 16 Wis., 19. 1862. 15. — The plat of M.'s addition to a city showed a street on the east side, 40 feet wide. The plat of C.'s addition, afterwards recorded, showed a street on the west side, 40 feet wide. The two together were represented as making one street, 80 feet wide. There was nothing on the plat and no monument on the land to in- dicate that there was any space between the two, but there was in fact a space of 27 feet be- tween them, belonging to M. The whole space had been used as a street, and lots had been sold with reference to the plats. The additions were platted in 1847 and 1848. Held, that M. and his grantees were estopped from setting up title beyond the actual centi-e of the street, as against persons who purchased lots on the opposite side of the street, after the recording of the plats, without actual notice of M.'s title to the strip. Weisbrod o. Chicago and North- western B. B. Co., 18 Wis., 35, 1864; 20 ib., 419, 1866; 21 ib., 602, 1867. 16. — The owners of a farm, along the edge of which a railroad company owns a strip of said farm fifty feet wide, holding title to it as a right of way, occupying it with its track, cannot dedicate to the public as a street any portion of such strip by any plat that they STREETS. 641 Depot Building. make, nor can tliey in any way affect the right of such company by any attempted dedication. Detroit o. Detroit dnd Milwaulcee B S. Co., 23 Mich., 173. 1871. 17. — A plat which purports to have been made for the administratrix upon the estate of the deceased owner of a farm, which lays out no streets, and does not subdivide the pro- perty into blocks or city lots, but only into parcels of several acres each, and which was never acknowledged at all, and was apparently made with reference to a contemplated ad- ministrator's sale, cannot be a basis of a statu- tory dedication. (Sess. L. 1839, pp. 163 et seq.) lb. 18. — When lands are laid out by the own- er in blocks and lots, with streets, either upon a map or by opening and marking out streets upon the ground, purchasers of lots from such owner, by deeds bounding them upon such Streets, acquire an easement or right in them, and are entitled to pass over them, and to have them kept open for passage to and from their lots, at least as far as the next open street on each side, and when the streets are taken for public highways, are entitled to have them taken for that purpose without compensa- tion. Attorney General v. Morris and Essex B. B. Co., 4 C. E. Green's Ch. fN. J.), 386, 1869; ib., 575. 19. — The South Cove Corporation, by St. 1833, ch. 17, was not authorized by its charter to establish public highways across its land without the assent of the municipal authori- ties, by laying out streets not required for con- venient access to then existing streets from the railroad stations authorized by that statute to be placed upon its land ; and did not create a public street by merely marking it on a plan, and covenanting with owners of adjacent land to lay it out over a place which was covered with tide water until 1850. Attorney General v. Old Volony and Newport B. B. Co., 12 Allen (Mass.), 404. 1866. 20. — The plaintiff, a railway company, in- corporated with reservation to the legislature of the right to alter, modify or repeal its char- ter, laid its track upon lands in an incorporat- ed village, which it had purchased, and for which it had takeij a deed in fee simple abso- lute from the owners. After this, a map was made and filed in a partition suit between third parties, of lands in the village, laying 41 out, numbering and naming certain streets over the tracks. Held, that an act of the legis- lature which declared that such streets should be recognized as the streets of the village, without a provision for compensating the plaintiff, was not in conflict with the prohibi- tion of the constitution as to taking private property for public use without just compen- sation. Boston and Albany B. B. Co. ■». Vil- lage of Qreenbush, 5 Lansing (N. Y.), 461. 1873. 21. — condition; user. Where a street was dedicated to the public with a condition that a certain railway company using the same should comply with all the stipulations of a certain article of agreement, " and that in the event of a breach thereof, said street should instantly revert to " said dedicator. Held, that this language clearly withdraws said street from the operation of the dedication intended to be effected as to other streets upon the same plat. Detroit «. Detroit and Milwaukee B. B. Co., 23 Mich., 173. 1871. 22. — To render a dedication in pais effect- ual, there must be an intent to dedicate and an acceptance of the dedication. Jb. 23. — User of the street is evidence tending to prove acceptance, but does not constitute it of itself. Ib. 24. — User which would warrant the infer- ence of the acceptance of a dedication so pe- culiar must be very extensive, continuous and general. Ib. 25. — Whether such condition had been violated by the company or not, it would have been competent for the grantor or his heirs or assigns, to put an end to the unaccepted dedi- cation. Ib. 26. — The fact that the grantor and his as- signs had sold lots according to the plat, has no effect upon the rights of the public to Vie street. Ib. 27. — Whatever rights the lot owners might have, were private rights and could not enure to the public. Ib. 28. — prescription. An open and notori- ous public use of land as a street for more than ten years, will give the public a right of way without any dedication. New Orleans and Garrollton B. B. Go. i>. Carrollton, 3 La. An., 283. 1848. 29. Depot building ; adverse possession of street. Where, for a period of twenty years, a railroad company had been permitted 642 STREETS. Grants to Railway Companies. to occupy the street of a city in front of tlie complainant's premises, for a railroad track, under a claim of right without remonstrance or complaint by the complainants, or those under whom they claim, and the railroad com- IJany, by such acquiescence, was induced to enter into a lease with the city, binding itself to build a depot and platform, of a width that could add but little to the inconvenience to which the complainants were subjected by the occupation of the street by the track, and from which the company cannot be released, equity will not interfere to prevent the erec- tion. Stgbee v. Camden and Amboy S. R. Co., 5 C. E. Green's Ch. (N. J.), 435. 1870. 30. Drainage. A railway was carried through a densely populated village by a deep cut running under the principal street, which crossed it by a bridge, the station being locat- ed on the side of the street and supported by the walls of the excavation. The town under- took to construct a drain, which was to dis- charge the water of the street into the cut un- der the bridge, to the injury of the wall and railroad. The railroad, in its location and construction, intercepted the natural course of the drainage of the locality, and it was indispensable that a drain be constructed for the street, but it appeared that, at a greater but not unreasonable expense, one could be constructed that would not injure the railroad company. EM, that the town ought to be en- joined against the construction of the drain in the manner proposed. Banhury and No-rwaVc R. R. Co. V. Tmon of Norwalli, 37 Conn., 109. 1870. 31. Grant to railway company. Streets and roads are public highways under the con- trol of cities and towns, subject to the para- mount authority of the commonwealth. Souili- warh R. R. Co. «. Philadelphia, 47 Penn. St., 314. 1804. 32. — A mere license, without considera- tion for the use of a portion of a street by a railway company, may be revoked and the track removed. lb. 33. — The rights of the state under act of March 31, 1831, and the ordinance of the councils of Philadelphia of April 28, 1831, relative to the construction and continuance of a railway through certain streets in said city, were transferred to the Philadelphia and Beading R. R. Co. by the canal commission- er's deed of Dec. 27, 1850, and the act of the assembly authorizing the sale ; the rights of the company, therefore, cannot be defeated ex- cept by the exercise of the right of eminent domain accompanied by compensation. Pfiil- adelphia and Reading R. R. Co. v. Philadelphia, ib., 825. 34. — The only limitation upon the legis- lative authority and control of the corpora- tion of New York city over the streets within its limits is, that they shall not be appropri- ated to any use or purpose which is not alike free and common to all travelers. This power cannot be surrendered, either in whole or in part, into the hands of any person or persons, without previous legislative -sanction. Jfew York and Harlem R. R. Co. v. Mayor, etc., cf Nm York, 1 Hilton (N. Y.), 563. 1858. 35. — A municipal corporation cannot make any valid contract which will interfere with its legislative control over the streets. Such corporations have the right to iDrohibit the use of steam power upon railways in the streets. Ih. 36. — The use of steam engines in fiie streets of Augusta upon the raihvay of the Augusta and Summerville R. R. Co. is author- ized by the statutes. VaBon ®. South Carolina R. R. Co., 4a, Ga., 631. 1871. 37. — The legislature has power to author- ize the building of a railroad within a town or city, or upon a street or other public high- way. Tennessee and Alabama R. R. Co. n. Adams, 3 Head (Tenn.), 596. 1859. 38. Improyement of streets. Commission- ers who have been appointed under the char- ter of the city of Hudson to make assessments for regulating and improving streets, etc., should ascertain the whole amount of lands benefited, and should report to the coramcm council the amount that each lot assessed is benefited by the improvement. State v. City of Hudson, 8 Dutcher (N. J.), 214. 1858. 39. — A council of an incorporated city may, under a general power to cause the streets thereof to be " paved, graded or macadam- ized," cause sidewalks of plank or other ma- terial to be constructed. Burlington and Mis- souri River R. R. Co. v. Mt. Pleasant, 13 la., 112. 1861. 40. — A municipal claim cannot be sup. ported against a railway company for paving a street running side by side with the defend- STREETS. 643 Lines of Streets — Obstructions. aal's railway. Philadelphia v. Philadelphia, Wilmington and Baltimore B. B. Co., 33 Penn. St., 41. 1859. 41. — Section 116 of tlie act for tlie organi- zation of cities, etc. (Swan's R. Stat., 985), au- tliorizing tlie city council to assess the expense of improving a street upon the lots or lands abutting thereon, in proportion to the feet front of said lots or lands, is not unconstitu- tional. Northern Indiana B. B. Co. v. Con- nelly, 10 Ohio St., 159, 1859; Baltimore and Ohio B. B. Go. v. ComnCrs Belmont County, 19 ib., 589. 1869. 42. — Lands appropriated by a railroad company for its track through a city, and crossing the improved street at right angles, and upon which the track was constructed after the work had been completed, is liable to such assessment. Ib. 4.S. — As between the railroad company and the person performing the work (whatever may be the rights of bona fide mortgagees of said railroad), the lands so appropriated may be rold to pay such assessment. Ib. 44. — By a supplement to the city charter, commissioners are authorized to assess such portion of the damages and expenses of alter- ing or widening a street used by the track of any railroad company, upon the corporation owning or using such track, as to the said commissioners shall seem equitable and just. An assessment made, under this provision of the city charter, against the New Jersey R. R. Co., is a violation of the exemption from tax- ation contained in § 18 of its act of incorpo- ration. State 0. Newark, 3 Dutcher (N. J.), 185. 1858. 45. — But an assessment, made under this provision of the city charter, upon houses and lots owned by that company, is not a tax with- in the meaning of the exemption from taxa^ tion contained in the act of incorporation. Ib. 46. — The ordinance for improving Clark street, in the city of Chicago, is void, as it confers powers upon the board of public works which could only be exercised by the council. Ijoke Sliare and Michigan Soutltern B. B. Co. V. Chicago, 56 111., 454. 1870. 47. — Special authority delegated by legis- lative enactment to particular persons, or sum- mary proceedings without personal service, to take away a man's property and estate against his consent, must be strictly pursued. Chicago v. Bock Island B. B. Co., 20 111., 286. 1858. ■ 48. — Upon an appeal from the judgment of the county court, confirming the report of the commissioners apportioning expenses for widening a street among the lot owners and railroad corporations, unless the record shows a different state of facts, the presumption is that the expenses were apportioned according to the benefits received by each. North Beach and Mission B. B. Co., appeal of, 83 Cal., 499. 1867. 49. — In considering such appeal, it is un- necessary to consider questions arising upon the proceedings for collecting the assessment made for such expenses, or whether the amount assessed is properly made a lien on property, or whether the mode of enforcing payment of the assessment is unconstitutional . Ib. 50. — The act of April 4, 1864, giving power to the board of supervisors of San Francisco to widen streets, does not prescribe a rule for the apportionment of the expenses amongst the lot owners different from that prescribed for railroad corporations, and is not therefore, in this respect unconstitutional. Ib. 51. Lines of streets. Where, under an act of assembly and an ordinance of the city council of Pittsburgh, the footway or pave- ment of a street was surrendered to a railroad company, for a specific use, with a proviso for a reversion to the city when the use ceased ; and the company conveyed a lot, described as bounded by the line of the street, the grantee covenanting in the deed to locate and erect a building twelve feet from the street line; on an application for an injunction to restrain the erection commenced at the distance of twelve feet from the curb line, field, that the line of the street had not been changed by the ordinance and act of assembly; that the house line and not the curb line was the boundary or line of the street; that the erec- tion of the building as proposed could be re- strained by injunction. Pennsylvania B. B. Co. V. Pittsburgh Grain Elevator Co., oO Penn. St., 499. 1865. 52. Obstructions. The remedy against an engineer or agent of a railway company for obstructing the crossings of a public street or road with its locomotives and cars, is exclu- sively under the act of March 20, 1845 ; he is 644 STREET RAILWAYS. Miscellaneous. uot liable to indictment at common law. Com- monwealth V. Gapp, 48 Penn. St., 53. 1864. 63. — If a railway company unnecessarily obstructs the streets of a town with its cars, contrary to an ordinance of the town, it will be liable for the penalty prescribed for so do- ing. Illinois Central JR. B. Co. ». Galena, 40 111., 344. 1866. 54. — The town of Chenoa has the right to prohibit the obstruction of its streets by stand- ing railway trains. Toledo, Peoria and War- saw B. B. Co. V. Town of Chenoa, 43 111., 309. 1867. 66. — A mandate will lie to require a rail- way company having its track upon, along, or across the streets and alleys of a city, to so build and erect the same, and level and grade the said streets and alleys, their full width, as to render their use and the crossing of the track convenient for the public. Indianapolis and Cincinnati B. B. Co. v. The State, 37 Ind., 489. 1871. 66. — An injunction to prevent the N. J. Midland B. R. Co. from constructing a rail- road so as to obstruct Central Avenue in Hack- ensack, refused under the facts of the case. Hackensacle Oommissionv. New Jersey Midland B. B. Co., 7 C. B. Green's Ch. (N. J.), 94. 1871. 57. — Plaintiff filed a bill to compel defend- ant to open and not to obstruct certain streets alleged to have been dedicated by defendant's vendors. The alleged obstruction was in 1845, and the bill was filed in 1851 : Held, that if plaintiff had a remedy, it was at law ; and that if he was at one time entitled to equitable re- lief, he had been too tardy in presenting his claim. Brooke v. South Carolina B. B. Co., 8 Richardson's Eq. (So. Car.), 30. 1855. 58. — The owner of a lot situated upon a public street may recover damages resulting to his property for the digging and obstruct- ing of the street by a railway company. New OrleoMS, Jackson and Great Northern B. B. Co, 1). Moye, 39 Miss., 374. 1860. 59. — To leave cars standing on each side of a public street, so that a space of only twelve feet was left for a passage way for teams, was lield to be an obstruction of the street. Qreat Western B. B. Co. v. City of De- catur, 33 111., 381. 1864. 60. — The rules prescribed by the canal commissioners, the general railroad law and public policy, are alike opposed to railway carriers using their roads so as to obstruct streets and highways. Banich «. Lloyd (& Uill, 31 Penn. St., 358. 1858. 61. — It is error to submit the question to the jury, as to whether an obstruction to tlia street was inevitable, when the evidence shows that it could have been avoided by the use of proper care. In such case, it is the duty of the court to tell the jury that the obstruction is illegal. Ih. 62. — The opening of a street, under the charter, is treated as a distinct proceeding from the laying out of the street. State v. City ofBwyonne, 6 Vroom (N. J.), 383. 1873. < 3. Proceedings for establishment. No petition by the properly holders is required by the charter of the city of Hannibal, in or- der to authorize proceedings for the establish- ment of streets in that city. Hannibal v. Han- nibal and St. Joseph B. B. Co., 49 Mo., 480. 1873. 64. Turnout. In respect to the care, regu- lation and control of highways within its cor- porate limits, the city of Philadelphia exer- cises a portion of the power of eminent do- main, subject only to the higher control of the state and the use of the public, and therefore a written license, granted by the city for a val- uable consideration, authorizing the holder to connect his property with the city railroad by a turnout and track, is not such a contract as will prevent the city from abandoning or re- moving said railroad, whenever in the opin- ion of its authorized authorities such action will tend to benefit the public. Branson «. Philadelphia, 47 Penn. St., 839. 1864. STREET RAILWAYS. See BniDGEs; Cbabter; Contracts; Coepobatb PffWEBs; Dogs; Eminent Domain; Evidbnoe; In- junction; iNjriUEs TO Persons on the Traoiv; Injuries TO Passenqebb ; iNSOLVENor; Mboiianic's Liens; Passengers; Sunday Laws; Taxation. I. Chartkb and qbants. II. Eminent domain. III. StBEBTS — BKPAIK8 AND IMPKOVK- MENT8. IV. Ab cabeikbs of baggage ob freight STREET RAILWAYS. 645 Charter and Grants. V. Omnibus lines. VI. Evidence. VII. Collisions. VIII. Injcries to peksons on the track. IX. Injukies to passengers. X. Expulsion of passengers. XI. Rates op fare. XII. Miscellaneous. 1. Charter and grants. 1 . Assignment of a part of franchise. If the grantee of a franchise to construct a street railway assigns a portion of his francliise, and the assignee enters into ijossession, the ques- tion wliether the grantee can thus divide liis francliise, is one which concerns the public alone. OaMand B. B. Go. v. Oakland, Brook- tyn, etc. M.S. Co., 45 Oal., 365. 1873. 2. Charter. A proviso in the charter of a city railway company that its railways shall not " affect the legal right of any other com- panies," only protects the latter in the use of their roads and the exclusive right to rail- road profits, and does not prohibit the con- struction of a street railway. Louisville and Portland S. M. Co. v. Louisville Gity B. B. Go., 2 Duvall (Ky.), 175. 1865. 3. — route. A provision in a railroad char- ter that no other railroad should be con- structed between two named points in a city, cannot be construed as prohibiting the con- struction of street railways anywhere within the city for the convenience of its inhabitants. Ih. 4. — definition. In a technical sense, a street railway is not a T&iXroad, and in such contradistinctive sense, the term railroac^ was used in the charter. lb. 5. Conflicting grants. A grant of an op- tional circuit over another road, not having been exercised for eleven years, will be pre- sumed to have been abandoned. Qirard Col- lege B. B. Go. V. Thirteenth St. etc. B. B. Co., 7 Philadelphia Rep. (Penn.), 620. 1869. 6. Exclusive right. A franchise or exclu- sive privilege must come from the legislature. A municipal corporation cannot, by contract, confer upon individuals the rightof construct- ing and operating street railways for their own individual use or benefit. Memphis City B. B. Go. V. Mayor of Memphis, 4 Coldwell (Tenn.), 406. 1867. 7. — A street railway track is private prop- erty and cannot be used by persons other than the railroad company by adapting carriages to use upon such track. Jersey City and Ber- gen B. B. Go. V. Jersey City a/nd Hohoken B. B. Go., 5 C. E. Green's Ch. (N. J.), 61. 1869. 8. — A condition in a city ordinance, grant- ing permission to a street car company to lay a track in a street, on condition that another company might also use the track, is not a contract with such other company. The city has power to release such a contract, and if it does so, the condition cannot again be reen- acted without the consent of the company. lb. 9. — If one street railway company, being duly autuorized by law, has entered upon and used the tracks of another such corporation, commissioners appointed under St. 1864, ch. 329, to determine the rate of compensation to be paid therefor, to fix the manner and sta^ ted period of such use, and the mode of con- nection of the tracks, may prescribe a rate of compensation founded upon the amount of business of the first corporation over the tracks of the second corporation, and may require accounts to be kept so as to exhibit the amount of such business. Metropolitan B. B. Co. v. Quincy B. B. Co., 12 Allen (Mass.), 262. 1866. 10. — The construction of another railroad through the same streets, embraced in a pre- vious grant to another company, is not in it- self an infringement of the franchise of the prior grantees, or an encroachment upon their rights. Brooklyn Gity and Newtown B. B. Go. V. Coney Island B. B. Co., 35 Barbour (N. Y.), 364, 1861 ; see Brooklyn Central B. B. Go. v. Brooklyn City B. B. Co., 32 ib., 358. 1860. 11. — After a railway company has obtain- ed permission from the common council of New York to lay a railroad through certain streets of the city, and such grant is subse- quently confirmed by the legislature, the legislature has the power to grant similar privileges to another company, and to author- ize the latter to run upon, intersect or use any portion of the tracks already laid, on condi- tion of making compensation. Sixth Avenue B. B. Go. ■». Kerr, 45 Barbour (N. Y.), 138, 1864; Same v. Same; 28 Howard's Pr. (N. Y.). 382, 1864. 12. — One street railway corporation has no right to use the track of another such cor STREET RAILWAYS. .Charter and Grants. poration for the transportation of passengers in cars, witliout the autliority of sucli second corporation or of the legislature. Metropoli- tan B. B. Co. V. Quiney B. B. Co., 12 Allen (Mass.), 262. 1866. 13. — When a railway has been laid down in a public street of a city pursuant to a grant from the legislature and the assent of the mu- nicipal authorities, it does not become a part of the street, so as to authorize the public at large, and other railroad corporations, with , the consent of the common council, to use the road with the appropriate cars or carriages for the transit of passengers, in common with the owners, of the franchise. Brooklyn Central B. B. Co. V. Brooklyn City B. B. Co., 32 Bar- bour (N. Y.), 358, 1860; saa Brooklyn City and Newtown B. B. Co. v. Coney Island B. B. Co., 35 ib., 364, 1861. 14. — The grant to the Brooklyn City R. R. Co., and its acceptance with the duties and obligations and large expenditures resulting therefrom, invested the company with the right of property in the franchise, of which it could not be deprived without its consent, or against its will. Ib. 15. — The Jersey City and Hobolsen R. R. Co., under the ordinances of Jersey City, is au- thorized to use the track of the Jersey City and Bergen R. R. Co. through certain streets in Jersey City. Jersey City and Soboken B. B. Co. V. Jersey City and Bergen U. B. Co., 6 C. E. Green's Ch. (N. J.), 550. 1870. 16. — The act of 1870 (Stats. 186^70, p. 786), granting to city councils the power to authorize street railways to be laid down in streets in a city, does not prohibit such coun- cils, when there is one railway track in a street, from granting the right to construct another in the same street. Oakland B. B. Co. V. Oakland, Brooklyn, etc., B. B. Co., 45 Cal., 365. 1873. 17. Extension. The common council of New York City has no power to authorize an extension of a city railroad, unless possibly where such extension is really necessary to the enjoyment of a previous valid grant. People V. Third Aienue B. B. Co., 45 Barbour (N. Y.), 63, 1865 ; Same i). Same, 30 Howard's Pr. (N. Y.), 121, 1865 ; Same v. Same, 81 ib,, 637, n. 18. — If it be claimed that such extension is a necessary incident to the principal subject of the gi-ant, that is a question of fact, and the burden of proving it rests upon the rail- road company., Ib. 19. Forfeiture. If a franchise is granted by the legislature to construct a street railway within a certain time, with a condition that if the provisions of tlie act are not complied witli, the franchise shall be forfeited, a failure to lay the track within the time limited works a forfeiture of the right to lay the.same with- out a judgment at the suit of the state, declar- ing a forfeiture. Oakland B. B. Co. v. Oakland, Brooklyn, etc., B. B. Co., 45 Cal., 365. 1873. 20. — A railway company was authorized, by grant from the legislature, to construct and operate a railway through the streets of a city ; the common council of the city gave its assent to the construction of the road by the com- pany, upon the route designated in its charter, on certain conditions ; held, that the common council had no power to annul or impair the grant to the company on account of its failure to complete the road within the time limited by the conditions annexed to the assent of the common council. Brooklyn Central B. B. Co. V Brooklyn City B. B. Co., 33 Barbour (N. Y.), 858, 1860 ; see Brooklyn City and Newtown B. B. Co. V. Coney Island B. B. Co., 85 ib., 364, 1861. 21. — The contract between the city of Jef- ferson and Joseph Kaiser in reference to street railways — construed. Toung v. Magazine Street B. B. Co., 24 La. An., 53. 1873. 22. License. A grant to a corporation to carry passengers in cars over the streets of a city does not necessarily involve exemption from liability to municipal regulation. The right is neitlier greater nor less than a natural person possesses. Frankford and Philadelphia B. B. Co. V. Philadelphia, 58 Penn. St., 119. 1S68. 23. — An ordiniince of Philadelphia requir- ing passenger cars to be numbered, and to be licensed on paying a stipulated sura for each car, is a police regulation. Ib. 24. —Such ordinance may be passed under an act authorizing the passage of an ordinance for the regulation of omnibuses, etc. Ib. 25. — Corporations chartered to doTsusiness in a city are- to be regarded as inhabitants of the city and subject-to its ordinances. Ib. 26. — Ordinances of the city of Hoboken, prescribing the manner and times of running horse cars through the streets of said city by STREET RAILWAYS. 647 Charters and Grants. any corporation ■which has laid rails for the purpose of running horse cars thereon, and also that a license shall he first taken out un- der certain penalties therein mentioned; held, invalid against the prosecutor holding under its charter, and also under anterior rights de- rived from the Bergen Turnpike Co., such company having the right to lay rails through the city without the consent of the city coun- cil. Statev. City of Eohokm, 1 Vroom (N. J.), 235. 1863. 27. Municipal corporation. The board of aldermen of the year 1833 could not take up and pass a resolution of the board of assistants of the year 1853, authorizing the construction of a railroad in the streets of a city, and give it effect as a law, without consulting the newly elected body. Wetmore «. 8tory, 33 Barbour (N. Y.), 414. 1856. 28. — A railroad, constructed in the streets of the city of How York under such a resolution, is unauthorized, and is a public nuisance. lb. 29. — The corporation of New York city is not, by virtue of its general power over the streets of the city, authorized to grant to an as- sociation of persons the right to construct and meiintain, for a term of years, a railway in one of the streets for the transportation of passen- gers for private gain ; and a resolution of the common council granting such right is void. Overruling Drake v. Muclson, River R. R. Co., 7 Barbour (N. Y.), 508, 1849; Davig v. Mayor, etc., of Nm York, 14 N. Y., 506, 1856; and re- versing Same «. Same, 3 Duer (IS". Y.), 663, 1853 ; see Same v. Same, 1 Duer, 451 ; Coleman v. Sec- ond Avenue R. R. Co., 88 N. Y., 301, 1868; Same V. Sams, 48 Barbour (N. Y.), 371, 1867. 30. — An action does not lie in favor of a resident and taxpayer of the city who does not own real estate on the street where the railway is proposed to be laid, and to whom it will not be specially injurious, to prevent its construc- tion, lb. 31. — notice. Notice of the intention to occupy a street for a railway must be shown to have been given to the city council before the approval or disapproval of the city coun- cil can be inferred. Hestoncille, etc., R. R. Co. •B. Schuylkill R. R. Co., 6 Phila. Rep. (Penn.), 141. 1866. 32. — consent of city. Where the charter of a railway company requires the consent of the city to be obtained before the road is con- structed, such requirement will be enforced by an injunction. Philadelphia v. Lombard and. South Street R. R. Co., 5 Phila. Rep. (Penn.;, 348. 1863. 33. — Where a charter was granted to a street railway company for the purijose of building and using a railway in certain streets, subject " to all the ordinances of the councils of the said city," the company, by accepting its charter in the terms in which it was grant- ed, agree to obtain the consent of the coun- cils to its work, agreeably to the ordinances of the city. Philadelphia v. Lombard, etc., R. R. Co., 3 Grant's Cases (Penn.), 403. 1868. 34. — Where-an act of the legislature incor- porated a street railway company and gave it the power to use the streets, provided the con- sent of the city should first be obtained, and the city refused its consent, it was held, that no subsequent ordinance of the city could re- vive the privilege nullified by the ordinance of disapproval. Musserv.Fairmountand Areli Street R. R. Co., 5 Penn. Law Jour. Rep., 466. 1858. 35. — A proviso in an act prohibited a company from using any railroad, turnpike or artificial road without obtaining the con- sent of the " parties owning the same." Reld, that it could not use the paved streets of Phil- adelphia without the consent of the councils. Graded and paved streets are artificial roads. Commonwealth v. Central Passenger R. R. Co., 53 Penn. St., 506. 1866. 36. — The charter of a street railway com- ' pany authorized it to lay its track in the streets of a city, upon first obtaining the con- sent of the common council. By a supple- ment, it was positively authorized to con- struct several tracks specified in the supple- ment, without any condition or reference to the consent of the common council. Seld, that as to such tracks, the consent of the coun- cil was not necessary. Mayor of Jersey City V. Jersey City and Bergen R. R. Co., 5 C. E. Green's Ch. (N. J.), 360. 1869. 37. — villages. A village, incorporated for the special purpose of being a road district, is not one of the municipal corporations whose consent to the construction of a street railway is required by § 5 of the street railway actof April 10, 1861. 58 0. L., 66. Cincinnati and Spring Grove Avenue R. R. Co. v. Cum- minsville, 14 Ohio St., 533. 1863. 648 STREET RAILWAYS. Eminent Domain, II. Eminent domain. 38. Bridges. If county commissioners are authorized by statute to determine the amount of compensation to be paid by a street railway company for extending its track over a bridge, without any provision whether they should fix upon an annual or gross sum, their deter- mination fixing upon an annual sum will not be quashed, by a writ of certiorari; especially if it appears to this court to have been a just determination. Balem arid South Sanvers M. S. Co., V. County Com'rs of Msaex, 9 Allen (Mass.), 563. 1865. 39. Compensation. The legislature posses- ses the power to confer upon a corporation the privilege of building and using a horse rail- road in the streets of a city, without the con- sent of the owners of the soil over which the streets are laid out, and without compensation in damages to such owners. Brooklyn, City and Newtown, R. R. Go. v. Coney Island R. R. Co., 35 Barbour (N. Y.), 364, 1861 ; see Brook- lyn Central R. R. Co. ®. Brooklyn City R. B. Co., 33 ib., 858, 1860 ; Bame v. Same, 83 ib., 430, 1861. 40. — The federal courts have followed the decisions of the state courts on this question in New York. Van Bokelen v. Brooklyn City R. R. Co., 5 Blatchford (U. S. C. C). 879. 1866. 41. — Such use, under proper restriction, is not the imposition of an additional easement upon the soil, and compensation need not- be made to the adjoining lot owners. Hinchman ■0. Paterson R. R. Co., 3 C. E. Green's Ch. (N. J.), 75, 1864 ; Hogenmmp v. Same, ib., 83, 1864 ; Paterscm and Passaic R. R. Co. v. Paterson, 9 ib., 158, 1873; Elliott v. Fair Ha^en and West- mile R. R. Co., 33 Conn., 579, 1860. 42. — The construction and operation of a street railway is no such additional burden upon the owners of the fee of the land as to entitle them to compensation therefor, except ■where some private right of such owner, as free access to his land or buildings, has been materially impaired thereby. Hohart v. Mil- waukee City R. R. Co., 37 Wis., 194. 1870. 43. — The owner of a store has no such a right to the use of the street in front thereof by leaving drays and wagons, with teams at- tached, standing transversely on the street while discharging goods, as will entitle him to damages against a street railway company for so constructing its track as to interfere with such use. Ib.; see also Cincinnati and Spring Orove Street Railway Co. •». Cumminsville, 14 Ohio St., 533, 1863. 44. — This interest of adjoining lot owners is properly protected by the constitution, and subject to be taken or appropriated only upon the condition that compensation is made. Crawford v. Delaware, 7 Ohio St. Rep., 459, followed and approved. Cincinnati and Spring Grove Street R. R. Co. v. Cumminsville, 14 Ohio St., 533, 1863. 45. — When the public authorities have taken possession of a street or highway, and regularly defined the interests and improve- ments necessary for the use of the public, by establishing gi-ades, etc., lot owners have the right to make their improvements ia reference thereto, and no subsequent change, which ob- structs or impairs access to such improve, ments, can be lawfully made without compen- sating for the injury. Ib. 46. Consent of adjoining owners. Wliere a city council grants permission to construc- a street railway without the consent of the owners of property on the street being ob- tained as required by the statute, the con. struction of the railroad may be enjoined al the suit of the property owners on the stiects in which it is about to be constructed. Roberts v. Maston, .19 Ohio St., 78. 1869. 47. — Where a single track railroad has been lawfully constructed with the requisite consent of the owners of property on the street, and it is afterwards proposed to con struct another track on the same street, the consent of any of the property owners to the construction of the first ti'ack cannot be counted as an assent to the construction of the second, against those who remonstrate against the additional track. Ib. 48. — Where it is necessary that a majority of the property holders on the street shall con- sent to the construction of the road, it will not be presumed in an application for an in- junction by a lot owner, that such consent had not been obtained. Cincinnati College v. Nes- mitli, 3 Cincinnati Superior Ct. Rep., 34. 1870. 49. Constitutional law. The act of April 14, 1860, to confirm a grant or resolution of the common council of the city of New York, passed in 1858, authorizing the construction of a railway in certain streets and avenues in said STREET BA.ILWAYS. 649 Streets — Repairs and Improvements. city, was a legal and constitutional exercise of legislative power. Wetmrn-e v. Law, 34 Bar- bour (N. T.), 515, 1860; see Same v. Same, 22 Howard's Pr. (N. Y.), 130, 1860. 50. Extent of rights acquired. The in- terest which a street railway company has, in the streets through which its track is laid, is a right of way. It has no rights in parts of the street not occupied by its own road, except that common to the rest of the community. New York and Harlem B. R. Co. V. Forty-second Street B. B. Co., 50 Bar- bour (N. Y.), 285, 1864 ; see Same v. Sam£, ib., 309 ; see Same v. Same, 26 Howard's Pr. (N. Y.), 68, 1863. 51. Joint use of tracks. Where one street railway company uses the track of another, under a municipal regulation, the company owning the track has the right of way as against the other company. Jersey City and Bergen B. B. Co. e. Jersey City and Hoioken B. B. Co., 5 C. E. Green's Ch. (N. J.), 61. 1869. 52. Nuisance. Laying rails upon a street is not a nuisance. Peterson v. Navy Yard, etc., B. B. Co., 5 Philadelphia Rep. (Penn.), 199. 1863. 53. Turnpike. The construction of a track for a horse railway over a turnpike road, un- der an agreement with the turnpike company, by a corporation whose charter contains a re- striction, making it "void so far as it relates to the right to construct the said road in any town until the act has been accepted by the selectmen," will not be restrained by injunc- tion as a nuisance in a town traversed by the turnpike road, merely because the selectmen of the town have not accepted the charter. Dis- trict Attorney v. Lynn and Boston B.B. Co., 16 Gray (Mass.), 242. 1860. III. Streets- -EEFAIES AND IMPROVE- MENTS. 64. Control by cities. The city of Louis- ville can require the tram rail to be substituted for the crescent rail, used in the street railway tracks constructed by the Louisville City R. B. Co., under a contract with the city for the right of way, etc., in which it was stipulated that the most approved rail should be used. Louisville Citjf B. B. Co. v. Louisville, 8 Bush. (Ky.;, 415'. 1871. 55. — The council could not by contract deprive itself of the power to regulate the re- construction of railways made necessary by the changes in the character of pavement used upon the streets of the city. Ib. 56. — The city government has the general power to so regulate the use and enjoyment of private property in the city as to prevent its proving pernicious to the citizens generally. Ib. 57. — A city, duly authorized to make or- dinances for the purpose of regulating city railroad cars, prohibiting nuisances, and pre- venting and removing obstructions on the streets, is not thereby authorized to interfere, at a specific point, with the tracks or business of a railroad which is established and con- ducted under a legislative grant. Brooklyn City B. B. Co. v. Furey, 4 Abbott's Pr. N. 8. (N. Y.), 864. 1867. 58. Gutters — obstructions. A street rail- way company accepts its charter with an im- plied condition that it will not injure others b}' its construction or maintenance, and if in- jury results therefrom, it must be held respon- sible for the damages. Alton and Upper Alton B. B. Co. V. Deitz, 50 111., 210. 1869. 59. Repairs. Street railway companies in San Francisco are only required to keep in re- pair that part of the street lying between the rails along which the cars run, and betw^een which the horses travel. They are not required to repair that part of the public street lying be- tween a double track. Bobbins v. Omnibus B. B. Co., 32 Cal., 472. 1867. 60. — bridg^es. A street railway company whose charter requires it to repair such por- tions of all bridges in a city as are occupied by its tracks, is bound to repair such a portion of a bridge which the owner of a canal has built over the canal, and which, as against the city, he is bound to repair; and if, on his re- fusal, the city makes such repairs, and recov- ers judgment against him for the expense thereof, and costs, he can recover from the company the amount of tlie damages recov- ered by the city against him, but not the costs, unless he defended the suit at the request of the company or for its benefit, or after notice to it to come in and defend. Proprietors of Locks and Canals v. Lowell B. B. Co., 10'9 Mass., 221. 1872. 61. — contracts. Where one contracts with a city to keep a certain portion of its streets 650 STREET RAILWAYS. Streets — Repairs and ImproTements. in repair in consideration of a license to use in them a street railway, and the streets are not kept in proper repair, and an injury en- sues, the city may recover over from the con- ti-actor all damages tliat it may be compelled to pay through such neglect. Brooklyn v. Brook- lyn City R. B. Oo., 47 N. Y., 475, 1872; Barm v. Same, H Abbott's Pr., N. S. (N. Y.), 356, 1870. 62. — The condition of a bond, executed by a railroad company, to a city, in consideration of the privilege of laying its track upon cer- tain specified streets, was that the company should keep the pavements of such streets in thorough repair within the tracks, and three feet on each side thereof. Held, that in such ac- tion, the proper measure of damages was the amount of a judgment recovered against the plaintiff, by an individual, for personal inju- ries sustained by him in. consequence of the neglect of the company to keep a street in re- pair, and which judgment the city had been compelled to pay. That the city corpcJi'ation having notified the company to defend the suit brought against the city, and the compa- ny having failed to do so, the expenses of de- fending such suit were also a proper item in the recovery upon the bond. Same v. Same, 57 Barbour (N. Y.), 497. 1870. 63. — By the charter of a passenger railway company, it was not to occupy any of certain streets without the consent of the city coun- cils, and was required to keep so much of the streets as it should use in perpetual good re- pair. The borough of Birmingham, in an ordinance giving consent to lay the road, re- quired that the street in which it was laid should be kept " in perpetual good order and repair from curb to curb its whole length." Held, that under the charter and ordinance, the railroad company was bound to keep the street cleansed from the dirt and filth neces- sarily or casually accumulating thereon from its ordinary use as a public thoroughfare. Pittsburgh and Birmingham R. R. Oo. v. Birm- ingham, 51 Penn. St., 41. 1865. 64. Pavements. The city council of St. Louis cannot delegate, to the mayor their powers with reference to repaying the streets of the city. St. Louis ii. People's R. R. Co., 43 Mo., 379. 1869. 65. — The rails, sleepers, ties and spikes of a street railway so laid into and attached to the rail as to become a part of the realty, are real estate, and become liable as other real es- tate, for an assessment made for the purposes of paying the expenses of paving streets. Ifew Haven v. Fair Haven and Westville R. R. Co., 38 Conn., 422. 1871. 66. — A street railway company occupying a portion of a street with its track and in the use thereof, under a charter, and a contract with the city authorities, has a franchise which is a property of a character to be sub- stantially benefited by the paving of such street, and is liable to assessment therefor. Chicago v. Baer, 41 III., 306. 1866. 67. — A street railway company in the city of Mobile cannot be compelled to pay any sum as a contribution or assessment to defray the expenses of paving the streets on which its road is built, under § 2 of the act autlior- izing the construction of street railroads (Acts 1859-60, pp. 261, 262), unless said company has incurred fines to the amount of such as- sessment under sucli act. Mayor of Mobile v. Royal Street R. R. Co., 45 Ala., N. 8 , 322. 1871 68. — A clause in the ordinance of May 23, 1859, by which the city of Chicago granted to the North Chicago City R. R. Co. the right to construct a railway, the company agreeing to keep certain portions of the streets in good re- pair, does noi make the company liable for an entirely new pavement. The obligation of the company extends to repairs only. Chicago v. Sheldon, 9 Wallace, 50. 1861). 69. — A statute directing that a street rail- way company shall repave the streets, etc., will not authorize a city to require that the pavement shall be made of wood. City v. Em- pire Passenger Co., 7 Philadelphia Rep. (Penn.), 321, 1869 ; City of Philadelphia v. Empire Pass. R. R. Co., 3 Brewster's Eq. (Penn.), 570, 1869. 70. Sewers, etc. The contract for the right of way, etc., between the city and the Louis- ville City R. E. Co. provided that the city shall not be liable for any damage " from any delay in the transportation of passengers that may be incurred by the laying of sewers, water or gas pipes," etc. The company refused to take up its track to enable the city to construct a sewer, and thereupon the city caused the track to be taken up and refused to replace it. For thus taking up and refusing to replace the track, the city did not become liable in dam- ages to the railway company. Louisville City B. R. Oo. V. Louisville, 8 Bush (Ky.), 415. 1871. STREET KAILTVAYS. 651 As Carriers of Baggage or Freight — Omnibus Lines. 71. — The city did not and could not sur- render its right to construct sewers in such portions of its limits as might require them. Ih. 72. — The provision contained in plaintiff's charter, -which prohibits the mayor, etc., of the city of New York from doing " any act to hinder, delay or obstruct the operation " of the railroad authorized by said act to be con- structed, is to be so consti-ued as to prohibit the city corporation from obstructing the operation of the railroad by any act, the sole purpose of which is thus to obstruct it; but not so as to prevent the city from completing a general plan for sewerage. Dry Dock, etc., R. S. Co. V. Mayor, etc., of New York, 55 Bar- bour (N. Y.), 398. 1869. 73. Sno"w. The power of making regula- tions providing for the removal of snow from the tracks of street railways is given by law exclusively to the mayor and aldermen of the cities, and the selectmen of the towns, in which such ti-acks are located ; and in the exercise of this power they may prohibit the removal ' of snow by the railway company at any and all times and places, when, in their judgment, the public interests involved may require it. Union B. B. Oc. ®. Cambridge, 11 Allen (Mass.), 287. 1865. 74. — Where a street railway company agreed to hold a city harmless from all damages aris- ing from the neglect of the company to keep certain portions of the street in repair, and an action was brought against the city for dam- ages arising from the neglect of the company to keep such portion of the streets clear of snow, and in such suit, ,the city notified the railway company to appearand defend; lield, that the railway company was liable for the amount recovered against the city in such ac- tion. Mayor, etc., v. Troy and Lamingiurg B. B. Go., 3 Lansing (N. Y.), 270. 1870. 7.5. Two railways using the same street. Under § 3 of the act of March 3, 1869, regulat- ing the amount of taxes to be paid by street railways of the city of St. Louis (Sess. Acts 1869, p. 307), corporations having parallel tracks on the same street are not liable for the expenses of repairing the street between the bracks. St. Louis v. St. Louis B. B. Co., 50 Mo., 94. 1872. 76. Widening. The right of way of a street • railway company is property, and is capable of being enhanced iij, value by the widening of the street, and the company is liable for its just proportion of the expenses of such widen- ing. North Beach and Mission B. B. Co., Ap- peal of, 82 Cal., 499. 1867. IV. As CARRIERS OF BAGGAGE OR FREIGHT. 77. Merchandise. In an action against a street railway company to recover for the loaa of a box of merchandise delivered to it to bo carried for hire, on the front platform of one its cars, the plaintifif, for the purpose of show- ing it to be a common carrier of goods, may prove that other persons had paid money to its conductors, with the knowledge of its su- perintendent, for the carriage of merchandise. Levi V. Lynn and Boston B. B. Co., 11 Allen (MasL.), 800, 1865.. 78. Satchel. The plaintiff left her satchel in the defendant's street car, containing arti- cles valued at $100. The conductor's attention was called to the fact, and he took charge of it, and upon the return trip placed it in the care of the receiver of the road, by whom it was delivered to a person who had no right or claim to it. Held, that the defendant was a bailee for hire while the property remained in its custody. Morris v. Third Avenue B. B. Co., 23 Howard's Pr. (N. Y.), 345, 1863; Same v. Same, 1 Daly (N.Y.), 203, 1862. V. Omnibus lines. 79. Compensation to owners of omnibus lines. The statute providing for compensation to the owners of omnibus lines by the pm'chase of their stock where the streets are to be occu- pied by street railways, construed to render the railway companies liable, without it first appearing that the entire line of streets had been occupied by such railways. Desehamps V. Second and Third Street B. B. Co., 3 Phila- delphia Eep. (Penn.), 279,1858; see Whitson V. Philadelphia, etc., B. B. Co., ib., 284. 80. — On the refusal of a street railway com- pany to purchase the property of an omnibus line, as required by statute, the owners of the omnibvis line neither tendered the property or resorted to a resale within a reasonable time, but sued for damages, and refused to join in 652 STREET RAILWAYS. Evidence — Collision — Injuries to Persons on the Track. the appraisement. Held, that the damages should be strictly commensurate to the injury sustained. Moore «. Oreen and Ooatea' Street R. B. Co., 4 Philadelphia Rep. (Penn.), 261. 1861. 81. — The award of a majority of the ap- praisers to assess such property is valid. Moore v. Oreen and Ooate» Street B. B. Co., 3 Philadelphia Rep. (Penn.), 417. 1859. 71. Evidence. 82. Construction of street railways ; ex- perts. A question as to the usual method of constructing street railways, prefaced by an inquiry whether the witness had observed the manner of construction, is not one calling for the special knowledge or skill of an ex- pert. Carpenter i). Central Park, North and East River B. B. Co., 11 Abbott's Pr., N. S. (N. Y.),416. 1872. 83. Declarations. In an action brought under the statute to recover damages for a willful injury inflicted by a driver of a street car, the declarations of the driver are not proper evidence against the defendant unless it appear affirmatively that they were made at the time the injury was inflicted. Whitalcer V. Eighth Avenue B. B. Co., 51 N. Y., 295. 1873. 84. — The statute in relation to such cases, R. 8., 695, does not apply to sti'eet railways. lb. VII. Collisions. 85. Collision with team. Where the driver of a cart, driving along a track immediately in front of the horses attached to a car, sud- denly turns oflf the track at a right angle, and the car collides with the cart, the owner of the cart cannot recover for the injury. Adolph «. Central Park, etc., B. B. Co., 1 Jones and Spencer (N. Y.), 186. 1871. 86. — The liability of a street railway com- pany for a collision with a team decided with reference to the facts of a particular case. Cook V. Metropolitan B. B. Co., 98 Mass., 861. 1867. 87. — presumption. It being clearly evi- dent that when a cartman's cart and a railway car are progressing side by side in the same direction, with a space of 16 or 24 inches be- tween them, there can be no collision if each adheres to the track which the law assigns to it, in case a collision does occur, the presump- tion of negligence is altogether against the driver of the cart. Suydam v. Grand Street and Newtown B. B. Co., 41 Barbour (N. Y.), 375, 1864; Same v. Same, 17 Abbott's Pr. (N. Y.), 304, 1884. 88. Rights of railway companies. A street railway company has only an equal right with the traveling public to the use of the street where its track is laid, with a few exceptions, such as, that the cars run on a track, and when a vehicle meets a car it must give way. S/iea V. Potrero and Bay View R. B. Co., 4A Cal., 414. 1872. VIII. Injuries to persons on the TRACK. 89. Accidental fall. A person in crossing the track is not required to anticipate the pos- sibility of an accidental fall at an ordinary crossing. Mentz v. Second Avenue B. B. Co., 3 Abbott's Ct. of Ap. Dec. (N. Y.), 274. 1869. 90. — The plaintiff in the exercise of ordi- nary care was passing across a public street. She had sufficient time to cross defendant's railway before the cars would reach her, but by an accident slipped and fell upon the track and was run over by the horses and car. Held, that the company was liable for the damages. Baxter v. Secoad Avenne B.B. Co, 30 Howard's Pr. (N. Y.), 219, 1865 ; Same v. Same, 3 Robert- son (N. Y.), 510, 1865 ; see also Aa/ron v. Second Avenue B. B. Co., 2 Daly (N. Y.), 127, 1867. 9 1 . Children. In operating a street railway, care should be taken to avoid injury to chil- dren and those persons whose age and inflrm- ities commend them to consideration and care. Pendril v. Second Avenue B. B. Co., 43 Howard's Pr. (N. Y.), 399. 1872. 92. — To enable a party to recover for in- juries inflicted by a street car to a child in the street, it must appear affirmatively that the injury was the result of the fault or negli- gence of the driver. Klein v. Cretcent City B. B. Co., 23 La. An., 729. 1871. 93. — A street railroad company is liable for damages, if through the negligence of tlie driver, a boy is run over and iiyured. The fact that the child failed to get out of the way will not be considered in mitigation of dam- ages if the car was, at the time, being driven at an unlawful or unusual rate of speed. STRE-ET RAILWAYS. 653 Injuries to Persons on the Track. BarkaduU v. New OHeang and Oa/rroUton JR. B. Co., 33 La. An., 180. 1871. 94. — It is no defense that the boy was in the streets alone, if the evidence shows that he was physically and mentally capable of tak- ing care of himself. lb. 95. — In an action for damages for a per- sonal injury it is not an immaterial allegation that the defendant had no lawful right to run its cars on that portion of the street where the injury was done. Schierhold v. North Beach and Misiion B. B. Go., 40 Cal., 447. 1871. 96. — Evidence to prove that it was the cus- tom of the inhabitants of the locality to allow boys to play in the street, does not tend to prove that such use of the street is lawful. lb. 97. — Evidence that the cars of another company were driven down the same grade at a less rate of speed is inadmissible. lb. 98. — It is not actionable negligence for those in charge of a street car to fail to pre vent a child of tender years from approach- ing, unseen by them, the side of the car (after the horses and front part of the car had passed), and so to fall under the car and receive an in- jury. Bulger v. Albany B. B. Go., 42 N. Y., 459. 1870, 99. — The escape of a child into the street, through an open window coming to within four feet of the floor, this being his only means of egress, the doors being locked, will not warrant the conclusion, as a matter of law, that the parent was guilty of negligence. Man- gam V. Brooklyn B. B. Go., 38 N. Y., 455, 1868 ; Same v. Same, 36 Barbour (N. Y.), 230, 1862. 100. — Whether it is negligence for parents to permit a child of seven years old to play in the streets unattended is a question to be prop- erly left to the jury. Schierlu)ld v. North Beach and Mission B. B. Go., 40 Cal., 447. 1871. 101. — If such act be negligence, it does not relieve the defendant from liability for an injury occasioned by the gross negligence of its employe. lb. 102. — The fact that a street is made for travel does not justify a trespass upon the per- son of one who is there for other purposes. lb. 1 03. — The fact that a child of two years old is crossing a public street unattended in a city, traversed by a horse railway, is, in and of itself, necessarily, prima facie evidence of neglect in those who have it in charge. Wright v. Maiden and Melrose B. B. Go., 4 Al- len (Mass.), 283. 1862. 104. — The negligence of a parent or other person who has the care of a child of tender years has the same effect in preventing the maintenance of an action by the child for an injury occasioned by the negligence of other;, that his own want of due care would have if the plaintiff were an adult. lb. 10.5. Contributory negligence. Though the driver be at fault, the party injured cannot recover if he failed to exercise a reasonable degree of prudence and caution. Mercier v. New Orleans and GarroUton B. B. Go., 23 La. An., 364. 1871. 106. — Where an adult is injured by a street car while crossing the street, it is not incumbent on him to show the use of due care and caution. Contributory negligence is a defense to be proved by the company. Bail- road Go. V. Gladmon, 15 Wallace, 401. 1872. • 107. The caution required by the employes of the company depends upoa the circum- stances of each case ; and a different degree of care on the other hand is required from an adult from what is required from a child, lb. 108. — In an action brought to recover damages for personal injuries sustained by the plaintiff by reason of the negligence of the driver of a street car belonging to the defend ant, held, that the judge was justified in refus- ing to charge that the failure of the plaintifl to look up and down the street before attempt- ing to cross the track to see if a car was ap- proaching, was negligence on his part, pre- cluding his I'ecovery. Mentz v. Second Avenue B. B. Go., 2 Robertson (N. Y.), 356. 1864. 109. Crossing with teams. Although the public have the right to drive upon the track of a street railway, more care should be exer Cised in such a locality than in other portions of the street. Wilbrand v. Eighth Avenue B- B. Go., 3 Bosworth (N. Y.), 314. 1858. 110. — The fact that a traveler upon a high way sees that an obstacle therein is dangerous to persons attempting to pass it, is not conclu sive that he does not use diie care in making the attempt. Mahoney v. Metropolitan B. B Co., 104 Mass., 73. 1870. 111. Defects in laying track. A street railwaj' company is responsible for an acci- dent which could not have occurred except from the improper laying of a rail, even 654 STREET RAILWAYS. Injuries to Passengers. though the municipal authorities were also negligent to the same extent in improperly paving the street. Carpenter v. Central Park, etc., R. R. Co., 4 Daly (N. Y.), 550, 1872; ib., 11 Abbott's Pr., N. 8., 416. 112. — A street railway company is liable for injuries to persons or animals, caused by laying its track in a defective manner so as to leave holes or projecting spikes. Fash «. Third Avenue R. B. Co., 1 Daly (N. Y.), 148, 1861 ; Worster v. Forty-second Street B. B. Co., 3 ib., 278, 1870. 113. Degree of care required. While the employes of a street railway company are bound to the highest degree of care and pru- dence, in the management of the teams at- tached to their cars, with a view to secure the safety of their passengers, a different rule pre- Viiils in respect to members of the general public, between whom and the company no relation arising out of contract, express or Implied, exists. As to such persons, the em-" ployes of the company are only bound to exercise what amounts, under all the circum- stances of the case, to ordinary care and pru- dence. Pendleton Street B. B. Go. ■». Shires, 18 Ohio St., 255. 1868. 114. Driving on the track. The plaintiff's cart was struck by the car of the defendant, as the plaintiff was turning off from the track to the left. iToid, that this of itself did not put him in the wrong; the statute requiring car- riages, when meeting in the highway, to turn to the right, has no application to the meet- ing of railroad cars witli common vehicles in the streets of a city. Began v. Eighth Avenue B. B. Co., 15 N. Y., 380. 1857. 115. Particular case. Pacts upon which a city railroad company was held liable for in- juries to a passenger, in a collision witli a car of another company at a crossing, the defend- ant's driver having quickened his speed, to get by first, when he had not the right of way. Barrett v. Third Avenue B. B. Co., 8 Abbott's Pr. N. 8. (N. Y.), 205, 1869 ; Same v. Same, 1 Sweeny (N. Y.) 568, 1869. 116. Pleading. In an action against a street railway company, to recover damages for a personal injury, the plaintiff may set forth his case in different ways in different counts, charging the defendant with running upon him while he was in the highway, with com- mitting an assault and battery upon him, and with compelling him to leap from the cai while it was in motion, whereby he was thrown down and injured. Lovett v. Salem, and South Darners B. B. Co., 9 Allen (Mass.), 557. 1865. 117. Rate of speed — city ordinance. In such action, the plaintiff may introduce in ev- idence a city ordinance, regulating and limit- ing the speed of cars upon horse railroads, which has been served upon the defendants, with proof tliat, at the time of the injury com- plained of, the defendant's servant was driving at a greater rate of speed. Wright v. Maiden and Melrose R. R. Co., 4 Allen (Mass.), 263. 1862. 118. Runaway team. If a street railway company uses the method in general use, and which has been found usually adequate and safe, its duty is discharged. Unger o. FoHy- Second Street R. B. Co., 51 IST. Y., 497. 1873. 119. — In an action brought against a rail- way company, to recover damages for injuries to the plaintiff, caused by a pair Of horses be- longing to the defendant, which had got de- tached from one of its cars, running away and knocking down and running over the plaint- iff, through the alleged negligence of the de- fendant and its servants, the question is, not whether a particular attachment (if used) would have prevented the accident, but wheth- er the attachment actually used was without apparent defect, and adequate, in the ordinary employment of the vehicle, considering the dispositions of horses used. Unger v. Forty- Second Street, etc., B. R. Co., 6 Robertson (K. Y.), 237. 1868. 1 20. Walking on the track. A person is entitled to walk upon a street railway in a public street, using usual care and TDrudence to avoid injuries; but he is not required to abandon the track in order to avoid possible injuries which may result from the careless- ness of the company, and if he is injured by the carelessness of the company while walking on the track, the fact that he might have walked by the side of the track is not contributory negligence on his part. Shea v. Potrero and Bay View R. B. Co., 44 Cal., 414. 1872. IX. Ix JURIES TO PASSENGERS. 121. Children. The facts with relation to in- juries sustained by a child — considered. Less care is required of a child than an adult. Mow- rey v. Central CityR. B. Co., 51 K. Y., 666. 1873. STREET RAILWAYS. 655 Injuries to Passengers. 1 22. — The passenger being a boy of eight years, it is not, as matter of law, negligence in his parent to send him out without a pro- tector. Drew «. Sixth Avenue B. S. Co., 26 N. Y., 49. 1863. 123. Collision. In an action brought against a street railway company for injuries sustained by the plaintiff while a passenger upon one of its cars, it appeared that, on the arrival of the car at the crossing of a steam railroad, it stopped to allow a train of the latter company to pass by, and that, after said train had passed, the flagman of the latter company signaled the driver of the street car to go ahead, which he did, but before he had crossed with his car, the other train backed up, and a collision occurred, whereby plaintiff was injured. Held, that proof of the fact that the driver had been directed by his superiors to obey the signals of such flagman, did not convert the flagman into an agent of the de- fendant. Chicago B. B. Co. v. Volk, 45 111., 175. 1867. i2't. — The tracks of two street railroad companies crossed each other at an acute angle ; a car upon each track was approach- ing the intersection from opposite directions; and a collision occurred. Ileld, that if the acts of the defendant's servants contributed to the injury, the defendant was liable, although the negligent acts of the persons in charge of the other car also were contributory., Bar- reit V. TUr3: Avenue B. B. Co., 45 N. Y., 628. 1871. 125. Contributory negligence. In an ac- tion against a carrier, under the statute for the better security of life, etc. (1 R. C, 647), if the deceased was killed by reason of his taking voluntarily a dangerous and improper position, the carrier is not liable. HueUenkamp v. Citi- seres' B. B. Co., 34 Mo.,' 45. 1863. 126. — It is negligence on the part of a pas- senger to get upon a street car that is already too crowded to allow him to ride safely. Tregear v. Dry Dock, etc., B. B. Co., 14 Abbott's Pr., N. S. (N. Y.), 49. 1873. 127. Defective construction. A street rail- way company is responsible for an accident which could not have occurred except for the improper laying of a rail, even though the municipal authorities were also negligent to the same extent in improperly paving the street. Carpenter v. Central Park, North and East Biver B. B. Co., 11 Abbott's Pr., N. S. (N. Y.), 416, 1872; 4 Daly, 550. 128. Getting oflf the car. Where hoop skirts are worn by such passengers as a rait- way company is in the habit of conveying, the company is bound to provide for the safety of passengers wearing such garments. So Jietd in a case where the plaintiff was in- jured by her hoops catchiiig upon a nail pro- jecting from the platform of the car as she was about to alight. Poulin v. Broadway, etc., B. B. Co., 3 Jones & Spencer (N. Y.), 396. 1873. ] 29. — While passengers have no right to jump off the car while in motion, or to make an attempt to do so, yet they are authorized to prepare to leave, when there is evidence of an intention to stop the car. Nichols v. Sixth Avenue B. B. Co., 38 N. Y., 131. 1868. 130. — A driver is acting in the line of his duty in helping a child or infirm person on or off the car, and the company is liable for the negligence of a driver in this respect. Drew V. Sixth Avenue B. B. Co., 1 Abbott's Ct. of Ap. Dec. (N. Y.), 556. 1867. 131. — Crippled persons are entitled to more consideration on account of their in- firmities, and should be given a reasonable time to alight from the cars. Colt v. Sixth Avenue B. B. Co., 1 Jones and Spencer (N. Y.), 190. 1871. 132. — The effect and intention of the act concerning street railways, approved January 16, 1860, is that when the injury to the passen- ger is occasioned by his getting on or off the car at the forward platform, it shall be pre- sumed as a matter of law that tlie negligence of the passenger himself contributed to pro- duce the injuiy. McKeon v. Citizen's B.B. Co., 43 Mo., 79. 1867. 133. — It is negligence on the part of a passenger to attempt to get off of a street car as the driver is about to start the car, without first attracting the driver's attention. Dicksbn V. Broadway, etc., B. B. Co., 1 Jones and Spen- cer (N. Y.), 330. 1871. 134. — The refusal or neglect of the driver of a street car to stop the same, so as to enable a passenger to descend safely, will not justify the latter in incurring an extra hazard, by de- scending from the car while it is in rapid motion. Qinnon v. New York and Harlem B. B. Co., 3 Robertson (N. Y.), 35, 1864; Solomon 656 STREET RAILWArS. Injuries to Passengers. ». Central Park B. R. Co., 1 Sweeny (N. Y.), 298, 1869. 135. — Where the driver is notified by a passenger to stop the car, and does so partial- ly, and then starts on again without notice, he is chargeable with negligence. Nichols ■». Sixth Avenue B. B. Co., 38 N. T., 131,1868; see Same v. Same, 10 Bosworth (N. Y.), 360, 18,63. 136. — It cannot be stated as a general rule that a passenger who leavea a street car while in motion, and is thereby injured, is guilty of negligence as a matter of law. Mettlestadt e. Ninth Avenue B. B. Co., 32 Howard's Pr. (N. Y.), 438. 1866. 137. — Carriers are bound to carry those whom they take into their coaches with the utmost care and diligence of very cautious persons. Maverick v. Eighth Avenue B. B. Co., 36K.Y., 378. 1867. 138. — Persons running a street car are bound to know where, under the circumstan- ces, it is prudent to stop the car, and to bring a passenger upon the platform to get off the same. lb. 139. Getting on the car. The act of the driver or brakeman of a street car in assisting a passenger to get on board is in the course of his employment, and the principal is liable for negligence in its performance. Drew v. Sixth Avenue B. B. Co., 36 K. Y., 49. 1863. 140. — The sufficiency of the pleadings determined in a particular case. Winterson V. Eighth Avenue B. B. Co., 3 Hilton (N. Y.), 389. 1859. 141. Negligence. The question of negli- gence of a driver of a street railway car, dis- cussed with reference to the circumstances of a particular case. Mulhado v. Brooklyn City B. B. Co., 30 N. Y., 370. 1864. 142. Oversetting of car. Where a car, propelled by horse power on a street railway, was upset and thrown from the track over an embankment, whereby the pbiintiff, who was one of the passengers, was injured — in an action against the company to recover dam- ages for such injury, the burden of proof is on the defendant to show that the accident was not occasioned by its fault or the fault of its agent. Louisville and Portland B. B. Co. v. Smith, 3 Dnvall (Ky.), 556. 1866. 143. Particular case. In this cause, the judgment was reversed and a new trial grant- ed upon the facts of the case. Dickson v. Broadway and Seventh Avenue B. B. Co., 41 Howard's Pr. (N. Y.), 151. 1870. 144. Passengers standing on the track. The fact that no one, without some previous knowledge, can be expected to provide against the contingency of a car, with the railway upon which it stands, coming upon him by a side movement, imposes upon a railway com- pany great care in moving its cars from one track to another in that unusual manner. Gordon v. Grand Street and Newtown B. B. Co., 40 Barbour (K. Y ), 546. 1863. 145. Persons riding free. If a person rid- ing with due care on the platform, of the horse- car of a street railway, not as a passenger for hire, but by invitation of the driver, and with- out collusion v,'ith him to defraud the corpo- ration, is injured through his negligence in driving the car, the corporation is liable. Wil- ton V. Middlesex B. B. Co., 107 Mass., 108. 1871. 146. Pusliing a passenger off the car. To entitle a passenger to recover against the carrier for being pushed off the platform of a street car, it must appear that an employg of the railway company did the wrongful act. Pixley V. Third Avenue B. B. Co., 1 Jones & Spencer (N. Y.), 406. 1871. 147. Rules and regulations. A regulation of a city passenger railway company, prohib- iting passengers from getting on or off at the front end of any car, and requiring them to enter and descend by the rear platform only, is a reasonable regulation, and knowingly to violate it, without the compulsion of some existing necessity, is conclusive evidence of negligence on the part of the passenger ; so that, should he sustain an injury in conse- quence thereof, he will have no right of action against the company, notwithstanding the driver may also have been negligent. The circumstance, that a driver or conductor may have given permission thus to use the front platform, is immaterial; for the company cannot be bound by the act of its servant in attempting to dispense with a known and posi- tive regulation. Baltimore City B. B. Co. v. Wilkinson, 30 Md., 234. 1868. 148. Runaway team. Plaintiff, while rid- ing in one of defendant's street cars, was in- jured in consequence of a runaway team of horses belonging to defendant, running into the rear of the car in which she was sitting. STEEET RAILWAYS. 657 Injuries to Passengers. It was proved that t]ie runaway horses had been worked together every day for more than six weeks previous to the accident, had given entire satisfaction, and were considered per- fectly safe. It appeared that the driver of them, was not in good liealth, but there was nothing to show that his disease was such a one as prevented him from performing his duties as driver. Held, that tliere was no evi- dence of negligence on the part of the defend- ant. Quinlan v. Sixth Avenue B. It. Go., 4 Daly (N. Y.), 487. 1873. 149. Standing on the platform. When a passenger is received and his fare taken, it is not negligence pm- se for such person to stand upon the front platform of a street car, pro- vided there is no room for him elsewhere. Madeneamp i>. Second Avenue B. S. Go., 1 Sweeny (N. Y.), 400. 1869. 150. — The court cannot say, on a bill of exceptions, that riding upon the outside plat- form of a street car is such a want of ordinary care as to prevent a recovery for an injury sus- tained by being thrown therefrom. Megsel v. Lynn and Boston B. B. Go., 8 Allen (Mass.), 334. 1864. 151. — Where the deceased was compelled by the defendant's conductor to stand upon the platform of a crowded car, and, while there, was thrown from the car by the hasty and careless departure of another passenger ; held, that the wrongful act of such passenger did not relieve the defendant from the conse- quences of the wrongful act of placing de- ceased upon the platform. Sheridan v. Brook- lyn City and Newtown B. B. Go., 36 N. Y., 39, 1867; Same v. Same, 34 Howard's Pr. (N. Y.), 217. 1867. 152.— A passenger stood upon the edge of the platform of a street car, without holding on to anything, and with knowledge of the bad condition of the street and track, and maintained such position after an opportunity had been given him to exchange it for a safer place, and was injured by being thrown off the car. Held, that the railway company was not liable for the injury. Ward v. Gentral Park, etc., B. B. Co., 11 Abbott's Pr., N. S. (N. Y.),411. 1871. 153. — It seems, that when it appears that a passenger is riding upon the platform of a car in a place of danger, his negligence is prima facie established. Glaa-k v. EigMh Ave- nue B. B. Go., 30 N. Y., 135, 1867; Same v. Same, 34 Howard's Pr. (JST. Y.), 315, 1867 ; Same V. Same, 32 Barbour (N. Y.), 657, 1860. 154. — Cut upon showing that the car and platform were full of passengers, with no room for more, and that the conductor called for, and received the fare from such passen- ger, the presumption is rebutted. 15. 155. — The front platform of a street car is a place of danger. The occupation of such platform by a passenger is prima facie evi- dence of negligence on his part, and the onus is on him to rebut the presumption. Solomon V. Gentral Park, etc., B. B. Go., 1 Sweeny (K. Y.), 298. 1869. 156. — It is negligence for a passenger to stand on the edge of the platform of a street car, without holding on to anything, when the streets are icy. Wa^d v. Same, 1 Jones and Spencer (N. Y.), 392. 1871. 157. — Under the common law, the fact that a street railway passenger voluntarily puts himself on the front platform of tlie car, when tliere is room inside, will not absolve the company from liability for injuries there received by him. Burns v. Bellefontaine R. B. Go., 50 Mo., 139. 1872. 158. Willful act of driver. A female pas- senger, desiring to alight, passed out upon the platform and requested the conductor to stop the car, and refused to get out until the car had come to a full stop; whereupon, and while the car was in motion, the conductor threw her from the car with great violence, whereby she was seriously injured. Held, that the act was a wanton and willful trespass, not in the performance of any duty to, or of any act authorized by defendant, and that de- fendant was not liable. Isaacs v. TAird Ave- nue B. B. Go., 47 N. Y., 122. 1871. 159. — The conductor of a street car is not the driver of a " carriage," within the mean- ing of § 6, 1 R. S., 696, which makes the own- ers of carriages running upon the highway for the conveyance of passengers, liable for all injuries or damages done by a driver while driving such carriage, whether the act was willful or negligent. lb. 160. — A boy riding on a street car was willfully and wantonly struck by the driver, and thereby thrown ofT the car, the car wheel passed over him. Held, that the company was not liable for the act of the driver in sti-iking 658 STREET RAILWAYS. Expulsion of Passengers. the boy but it was liable for negligently driv- ing over him. Pittsburgh, AUcglmny and Man- eJiesier R. B. Co. v. Donahue, 70 Penu. St., 119. 1871. 161. — A master is liable for the willful conduct of his servant within the scope of his authority. Ih. 162. — Street railway companies ara not responsible for the crimes of an employfi; nor liable for his acts of willful and malicious trespass. They are only answerable for his negligence, or incapacity, or unskillfulnoss, In the performance of the duties assigned to him. McKeon «. Oitizent,' R. R. Co., 42 Mo., 79. 1867. 163. — The driver of a street car having the right to put a person ofl' the cai-, the company will be liable for his acts In doing so, even if his act should be malicious and willful. Mey- er V. Second Avenue R. R. Co., 8 Bosworth (N. y.),305. 1861. X. Expulsion of passe;ngers. 164. Colored persons. The plaintiff, a col- ored person, was ejected with some force from the car of defendant, but suffered no appreci- able damage. Immediately after, she was conveyed -upon another of defendant's cars to her place of destination. No evidence of ill will or malice was shown upon the part of the company, nor was there any proof that the defendant approved of tli e act of the conductor in advance, or afterwards. Plaintiff obtained a verdict of seven hundred and fifty dollars. Held, that the company was liable in any event for all actual damages sustained; that the company was not liable for the willful or ma- licious acts of the conductor, done without its authority or subsequent approval ; that to re- cover punitive damages, it should appear that the act was authorized, or subsequently ap- proved; that the damages were excessive. Tur- ner V. North Beach and M. B. R. Co., 34 Cal., 594. 1868. 1 65.— The plaintiff, a colored person, hailed the conductor of a street car, requesting him to take her on board. The conductor refused to admit her on account of her color. The plaintiff was ready and willing to pay her fare, and there was ample room in the car. There was no proof of special damage. The plaint- iff obtained a verdict for five hundred dollars. Held, that as there was no evidence of malice, ill will or wantonness, there was no ground for exemplary damages, and that the verdict was excessive; that tlie plaintiff was entitled to nominal damages in the absence of proof of actual damage. Pleasants v. North Beach and M. R. R. Co., 34 Cal., 586. 1868. 166. Children not paying- fiiro. If a boy ton years of age wrongfully gets upon a street car while it is in motion, w it houttlie intention or means of paying fare, and is not at once re- moved, but is wrongfully allowed by the serv- ants of the railway company to remain there for a time, and the driver afterwards, while driving at such a rate of speed as to make it dangerous for the boy to leave the car, orders him to jump off, and the boy does so, using reasonable care, and is injured, he may maintain an action against the com- pany to recover damages. Lovctt «. Salem and South Danvers R. R. Co., 9 Allen (Mass.), 557. 1865. 167. — This court cannot decide, on a bill of exceptions, that permitting a boy of ten years old to be in the street with other boys after dark is such negligence as to prevent him from recovering damages for a personal injury sustained by him from being wrongful- ly compelled to leave a street railway car while the same was in motion, although he had wrongfully got upon the same. lb. 168. Right of expulsion. Tlie conductor of a street car may exclude or expel thereft'om a person who, by reason of intoxication or from other cause, is in such a condition as to render it reasonably certain that by act or speech ho will become offensive or annoying to other passengers therein, although he has not com- mitted any act of offense or annoyance. Vin- ton ®. Middlesex R. R. Co., 11 Allen (Mass.), 804. 1865. 169. Wrongful expulsion. A street rail- way company is liable for the wrongful act of one of its conductors in ejecting a passenger from its cars. Passenger R. R. Co. v. Young, 21 Ohio St.,. 518. 1871. 170. — Wliere a passenger on a streetcar, enters the car near one end of the route and pays full through fare, he is entitled to gn through without any further payment of fare, Hamilton v. Third Avenue R. R. Co., 44 How ard's Pr. (N. Y.), 394. 1872. SUBCONTRACTOR. 659 Miscellaneous. XI. Rates of fare. 171. Charter. A provision in the charter of a street railway company tliat^ at any time after the expiration of ten years from the opening of any part of the road for use, a city may purchase of the corporation so much of the corporate property as lies Tvithin its own limits, at a specified price, does not give to the city any such interest or right as to enable it to maintain a bill in equity to restrain the cor- poration from raising passenger fares upon its road, in violation of conditions expressly as- sented to by the corporation, although the value of the franchise and property will be thereby diminished. Nor can the mayor and aldermen of the city maintain" such bill. Cambridge v. Cambridge R. S. Co., 10 Allen (Mass.), 50. 1865. 172. The statute fixing the rates of fare for passengers and baggage does not apply to street railways. Ho^t v. Sixth Aoenue B. R. Co., 1 Daly (N. Y.), 528. 1866. XII. Miscellaneous. 173. Contributions in aid of; damages. Where contributions are made to secure the building of a street railway, and the regular running of cars thereon a specified number of daily trips, the company receiving such con- tributions may stipulate that the damages for a failure to comply with these conditions shall be the sum contributed and interest thereon from the date of failure. Crown Hill R. R. Co. V. Armstrong, 39 Ind., 418. 1873. 174. In,jury to horses. A person on horse- back or on foot, moving on the track of a street railway, should look out for the cars and turn off in time to avoid a collision. Jatho 1). Green and C'oates Street R. R. Co., 4 Philadelphia Rep. (Penn.), 24. 1860. 175. Landlord and tenant. The defend- ant, a horse railway companj', leased the plaintiff's premises, located in a city and on a public street, on which street, by permission of the municipality, and subject to the latter's right to repair, alter, etc., it had placed tracks communicating with the premises. After- ward, under a city ordinance, the grade of the street was changed and the communication removed and rendered impracticable, materi- ally impairing the value of the plaintiff's oc- cupancy. Held, that the plaintiff's damages were not a defense to an action for rent. Seld, also, that they did not arise out of the same conti'act or transaction, as the claim for rent. Gallup V. Albany R. R. Co., 7 Lansing (N. Y.}, 471. 1873. 176. Obstruction of track. Wliere a city ordinance gives street cars precedence over other vehicles, and provides that if any person shall unnecessarily obstruct or impede the running of the cars, "he shall be liable to a fine for sucli offense," it is the duty of a team- ster who has obstructed the track by backing his team across it for the purpose of unload- ing some goods, to remove at once on the ap- proach of the cars, and a delay on his part, even for a short time, for the purpose of re- moving a box which is the last of his load, thereby causing a stopping of the cars during such delay, is an unnecessary obstruction, within the meaning of the ordinance. State V. Foley, 31 Iowa, 537. 1871. 177. Public buildings. Under the act of 1846, an injunction cannot issue to restrain commissioners for the erection of a public building from taking up the rails of a passen- ger railway company occu2iying the proposed site of the building. Market Street R. R. Co. V. Building Ccmmisnoners, 4 Brewster (Penn.), 173. 1873. 178. Transfer of property; assumption of liabilities. A transfer was made by a part- nership to the defendant, of their road, fran- chises, etc., "subject to the payment of all the money which the partnership was bound to pay on account of sewers,-' etc., which trans- fer was accepted by the defendant in writing. Held, that the party, having a claim on ac- count of sewers, as specified, could maintain an action against the defendant for the amount due him from the partnership. Dingeldein v. Third Avenue, R. R. Co., 37 N. Y., 575, 1868; reversing Same ®. Same, d Bosworth (N. Y.), 79. 1861. SUBCONTRACTOR. See CoNSTEUOTiox ot Eailwats. 1 . Laborers. Sec. 57, Tay. Stats., 1051, pro- vides that whenever any laborer upon any railroad shall have a just claim or demarjd SUBSCRIPTIONS BY CITIES AND TOWNS. Miscellaneous. for labor performed on such railroad, against any person being contractor on such railroad with the railroad company, such railroad company shall be liable to the laborer, etc. Held, that the words " contractor with the railroad company " do not necessarily restrict the remedy to claims against persons who have contracted directly and immediately with the company; but they may be under- stood as describing all persons who, by means of laborers in their employ, prosecute work upon the railroad under the primary direction and authority of the company, by virtue of any contract which connects them with the company, though indirectly, mediately and remotely. Mundt v. Sheboygan and Fond du Lao B. li. Co., 81 Wis., 451. 1873. 2. — The language of the act must be con- strued to include subcontractors since the act taken as a whole indicates that intenticm, and a narrower interpretation would defeat its object. lb. 3. — A notice of such claim under the stat- ute was held sufBcient, although it did not name the contractor by whom the plaintiff was employed. lb. 4. — The statute requires such notice to be given " within thirty days after the claim or demand shall have accrued." Where it was customary for laborers upon a road to receive payment on a certain day of each month for the whole of the previous month ; 7ield, that the claim did not accrue until the usual day of payment, and notice within thirty days thereafter was sufficient. lb. SUBROGATION. 1. Bond. L. and others entered into a bond to a railway company to pay all damages that might arise from the location of a certain de- pot. The damages were assessed at $1,081 against the company, but could not be collect- ed. The judgment for damages was assigned to M. Held, that M. could enforce the collec- tion from the obligors in the bond. Miller v. Lmeaster, 5 Coldwell (Teun.), 514. 1868. SUBSCRIPTIONS TO STOCK. 1. Compensation for obtaining subscrip- tions. Charges for services of the plaintiff, who was one of the corporators mimed in defendant's act of incorporation, in procuring the stock subscriptions necessary for a full oi'ganization of tlic company were allowed, though there was no express promise for their payment. The services being necessary, a promise for their payment would be implied. Hall v. Vermont and MassacliuaetU B. B. Co., S8Vt., 401. 1856. 2. — And also an allowance was held proper for procuring additional stock, authorized by a vote of the corporators, the corporators hav- ing provided by their vote for the payment of " all reasonable expenses." It was Jield, that the term " reasonable expenses " extended to personal services as well as to cash expendi- tures, lb. 3. — But the court refused to allow compen- sation for services rendered after the rescission of said vote. lb. 4. — Where the value of plaintiff's services in obtaining subscriptions to the capital stock, and arousing public attention to the enterprise, was drawn in question, lield, that correspond- ence between him and others, interested in the subject, was admissible as bearing upon the extent of his services, and also that evidence of his having previously conducted success- fully, business requiring qualifications similar to such as would be needed for the business in question, was admissible. Low v. Oonnecti- cut and Paaaum/psic Biv&ra M. B. Co., 45 N. 11., 370. 1864. 6. — Held, also, that parol evidence that subscriptions to stock to a largo amount were solicited and obtained by him, was admissible, there being no controversy that such subscrip- tions were made. lb. SUBSCRIPTIONS BY CITIES AND TOWNS. Soo B0ND8 or Railway Companies ; Fhdbbal Courts j Flbadinos; Subsokiptionsdy Counties; Suusokip- TioNs EY Townships. I. AUTUORITT TO SUBSCRIBE. II. Pbocebdingb. III. Pbookedings to trevent the issu- ANCE OF BONDS. SUBSCRIPTIONS BY CITIES AND TOWNS. 661 Authority to Subscribe. IV. Conditional subscbiptions. V. Bonds. VI. Location op railways. VII. Taxation. VIII. Miscellaneous. I. AUTHOEITT TO SUBSCEIBE. [For a full citation of all of the authorities on the subject of the pow^r of municipal corporations to sub- scribe to the aid of railways, see Subscriptions by Counties.] 1. Change of decisions of supreme court. Where a railway company was by statute per- mitted to proceed witli the construction of the road when the sum of $6,000 per mile had been subscribed, and a part of the subscrip- tion was made by municipalities, the subse- quent decision of the supreme court, holding such municipal aid unconstitutional, will not aflfect the construction of the statute. The mu- nicipal aid was intended to be considered in reckoning the $6,000 per mile. Swartwout v. Michigan Air Line S. £. Co., 24 Mich., 389. 1872. 2. Commissioners. Commissioners, appoint- ed by a town to make a subscription of rail- road stock under an act of the legislature pro- viding the manner in which the town may , give its assent to such subscriiDtion, are agents of the town and of no other party in that bus- iness, and are responsible to no other yiarty for the manner in which it is executed, even thou^ thej' incorporate conditions in their contract of subscription beyond what was required in the instrument of assent by which they re- ceived their appointment and authority. Dan- mile ». Montpelier and Bt. Jolmsbwy B. B. Co., 43 Vt., 144. 1870. 3. — The insertion of the condition, though unauthorized, was not a void act, unless the town chose to avoid it. lb. 4. — No other party could repudiate such conditions. lb. 5. — Having made the subscription, and having delivered it to the president of the com- pany, they had exhausted their powers. lb. 6. — The authority of the -commissioners was joint to the three, and a majority only could not act. lb. 7. — Therefore a second subscription, made on different terms by two of the commission- ers, was of no validity. lb. 8. — And as it appeared that the officers of the town were about to deliver the bonds of the town in accordance with the second sub- scription, it was held, that an injunction to re- strain such act was properly issued. lb. 9. Consent of city. A municipal corpora- tion cannot be compelled, without its consent, or that of its taxable inhabitants, to become a stockliolder in a railway company. People ex rel. ■o.Batchellor, 53 N. T., 128, 1873; see con- ti-a, Napa Valley B. B. Co. v. Napa County, 30 Cal., 485, 1866. 10. Constitutional law — subscriptions sustained. By a series of decisions of the su- preme court of Iowa, prior to that in 1859, of State of Iowa v. County of Wapello, 13 la., 388, the right of the legislature of that state to authorize municipal corporations to subscribe aid to railroads and to issue bonds therefor was settled in favor of the right. Those de- cisions therefore are held to apply to all bonds issued during the time they were in force. The subsequent decision of the state court overruling its former decisions will not affect bonds negotiated before the latter decis- ion was made. Oelpcke ». City of Dubuque, 1 Wallace, 175. 1863. (See SuBsoKiPTioNS BT Counties.) 11. — Although it is the rule of this court to follow the latest decisions of the state courts construing state laws and constitutions, it will not follow decisions which may prove but oscillations in the course of such judicial settlement. lb. 12. — Subscriptions by municipal corpora- tions to aid railways are not unconstitutional. Meyer v. City of Muscatine, 1 Wallace, 384, 1863 ; Bissell v. City of Jeff'ersonville, 24 How- ard 287, 1860; Bogers v. Burlington, 3 Wallace, 654, 1865. 13. — To render an act void, it must be clearly not an exercise of legislative author- ity, or else forbidden so plainly, as to leave the case free from all doubt. Bailroads are not private affairs. They are public improve- ments, and it is the right and duty of the state to advance the commerce and promote the welfare of the people by making or causing them to be made at the public expense. The right of the legislature, with the consent of the local authorities to tax a particular city for a local improvement, is as clear as the 662 SUBSCRIPTIONS BY CITIES AND TOWNS. Authority to Subscribe. liglit to lay a general tax for any public pur- pose whatsoever. A city or district may be authorized to aid the construction of a railway by the issue of bonds. Sharplen «. Mayur of PhiladelpMa, 21 Penn. St., 147, 1853; Moei'S v. Heading, ib., 188. 14. — By the act of assembly of April 4, 1837, (he Pittsburgh, Kittaning and Warren R. R. Co. was incorporated, and under it any incorporated company, borough or city had authority to subscribe for the stock " as fully as any individual;" the charter was to be null and void if the road was not commenced within Ave and completed in ten years from the passage of tlie act. Before tlie expiration of the time, the act of March 16, 1847, was passed, extending the time of completion till June 1, 1863. In April, 1851, the time was again extended till June 1, 1665. In April, 1852, the name of the company was changed to the Allegheny Valley R. R. Co., certain counties were authorized to subscribe, the counties and cities subscribing to pay by transfer of stocks held in other companies, and removing the disabilities of tiie acts lim- iting the corporate debt of the cities of Allo- g'heny and Pittsburgh, so that neither city should be prevented from subscribing. In 1852, the city of Pittsburgh subscribed for 8,000 shares, and issued bonds for payment of subscriptions. On application of a bond- holder for a mandamus to compel the payment of interest, etc., an answer was filed denying the right of the city to subscribe or to issue the bonds. Held, tliat the right to subscribe under the act of 1837 did not expire, as it had been waived by the legislature. Oommonwealth ^.Councils of Pittsburgh, 41 Penn. St., 278. 1801. I 15. — The change of the name of the com- pany did not affect its identity. And the authorized change of the termini by the act of 1853, did not invalidate subscriptions after- wards made. Ib. 16. — The power to subscribe carried with it the power to execute bonds as evidence of the indebtedness. The power to issue bonds belongs to all corporations, and is inseparable from their existence; it is for this they hold a common seal. Ib. 17. — Such bonds if invalid are so for the want of power in the city to make the sub- scription, and not for the want of power to i.'isue bonds. Ib. 18. — Cities and towns have the conslitu. tional right to loan their credit to aid in the construction of railroads. Hngan v. City of Watertown, SO Wis,, 269, 1872 ; Lawion v. Mil- waukee and Northern 11, U. Co., ib., 597. 19. — Where an act authorized the loaning of the credit of a city " upon such terms as may be agreed upon by tlie parties," it was held, that this should not bo construed as au- thorizing a donation of its bonds, which would render the act invalid, but merely as giving the city officials unlimited authority as to the terms upon which the bonds should be given as a loan of credit, lb. 20. — The power of the legislature to au- thorize municipal corporations to subscribe for railway stock is settled in favor of the right, although the majority of the court would be disposed to deny it if it were a new question. Phillips v. Town of Albany, 28 Wis., 840. 1871. 21. — The words "general law " used in tlie constitution have the same signification as public act in the ordinary acceptation. Clark •0. City of Janesville, 10 Wis., 106. 1850. 22. — The charter of the city of Janesville is a general law, and was not in force until publislied under and by authority of Jaw. Art. 7, § 21, Const. Ib. 2.'l. — The charter of said city authorizing the subscription for stock in railway com- panies was not published autlioritativcly until after bonds had been issued. Held, that the purchasers of such bonds were bound to know of this want of authority. Ib. 24. — A donation of money or bonds may be lawfully given by a city for the purpose of aiding in the construction of a railway. Da- vidson V. Ramsey County, 18 Minn., 483. 1873. 25. -The fact that the road is owned and operated for private profit does not prevent it being also of " public use." Stockton and Vi- salia B. E. Co. v. Stockton, 41 Cal., 147. 1871. 26. — Legislative action to tlie effect that railways are a public use, is not open to re- view by the courts. The case of Napa VaVey n. R. Co. ». Nava Co., 80 Cal., 487, cited and approved. Ib. 27. — The acts authorizing the bonding of towns are not unconstitutional, on the ground that the legislature has no power to pass them. And the acts of 1866 (ch. 898), and 1871 (ch. 298), are not so on the ground that they SUBSCRIPTIONS BY CITIES AND TOWNS. 663 Authorily to Subscribe. each embrace more than one subject, and that not expressed in its title. People ex rel. v. Morgan, 1 N. Y. Sup. Ct., 101, 1873; Same i). Same, 65 Barbour (N. Y.), 473, 1878. 28. — The act of the legislature, authorizing the towns in the counties through wliich the Albany and Susquehanna Railroad is located, to borrow money and subscribe for tlie stock of the company, witli the view of aiding in the completion of the work, is not unconsti- tutional. Orant V. Courier, 34 Barbour (N. Y.), 233. 1857. 29. — The act to amend the charter of the city of Rochester, passed July 5, 1851, includ- ing sections 385 to 291 inclusive, which au- thorize the city of Rochester, upon certain conditions, to subscribe for, and become the purchaser of stock in the Rochester and Gen- esee Valley R. R. Co., is unconstitutional. Clarke v. City of RoeTieater, 28 N Y., 605, 1864; see Same v. Same, 26 N. Y., 471, note, 1863 ; Same v. Same, 14 Howard's Pr. (N.Y.), 198, 1857; Same v. Same, 13 ib., 204, 1856. 30. — The act, notwithstanding the provis- ion that the above mentioned sections should not take effect until they had been submitted to the electors, for the purpose of determining whether or not it was expedient for the city to borrow money for the purpose specified there- in, was enacted by the legislature, and not by the peofie of Rochester. Ib. 31. — The act of March 18, 1854, authoriz- ing the loan of the credit of the city of Albany to the Northern R. R. Co., was an exercise of the legitimate power of legislation. Benson «. Mayor of Albanj/,ZiBa.T:ho\ii(iif.Y.), 248. 1857. 32. — The city of Bvansville had power un- der its charter to subscribe for " stock in any chartered company to make roads to said city." Held, that the term "roads" embraced rail- roads. Bvansville, Indianapolis and Cleveland B. B. Co. V. Bmnsville, 15 Ind., 395. 1860. 33. — The constitutional prohibition against loaning credit, to aid in the construction of railways, applies to the state but not to coun- ties or cities. Bohertson v. City of Bockford, 21 111., 451. 1859. 34. — Though the state is prohibited by the constitution from subscribing to such objects, this limitation was not intended to apply to municipal corporations. Clark v. City of Janes- mile, 10 "Wis., 136, 1859; Bushnell v. Beloit, ib., 195. 35. — An act which authorized a town to subscribe for such stock is sufiicient authority to the railway company to receive the sub- scription, and to take the bonds of the city in payment. Ib. 36. — The acts authorizing the city of Mo- bile to subscribe for the aid of a railway — construed, and held to be constitutional. Gib- bons V. Mobile and Great Northern B. B. Co., 36 Ala. N. S., 410. 1860. 37. — A municipal subscription is not valid unless authorized by legislative authority. Mississippi, Ouachita and Bed Biver B. B. Co. V. Camden, 28 Ark., 300, 1861; City of Aurora D. West, 23 Ind., 88, 1864; Bmnesburgh v. Jen- kins, 40 Barbour (N. Y.), 574, 1863 ; see Same v. Same, 46 ib., 394, 1866. 38. — The fact that the question of taxation is submitted to the voters of the city sought to be taxed for such purpose, is not a delegation of legislative power to the citizens of the mu- nicipality. Moers v. Beading, 31 Penn. St., 188. 1853. 39. — The question of legislative power to authorize municipal corporations to subscribe for stock in railway companies, discussed, and decided that such power exists. San Antonio V. Jones, 28 Tex., 19, 1866 ; Same v. Lane,fS2 ib., 405, 1869 ; Same v. Gould, 34 ib., 49, 1870. 40. — The subscription by .the city of San Antonio to the San Antonio R. R. Co., held in- valid, for the reason that the act under which it was made embraced more than one subject. San Antonio B. B. Co. v. Gould, 34 Tex., 49. 1870. 41. — The legislature cannot confer upon a municipal corporation unlimited power to levy taxes and raise money beyond what may be needed for legitimate municipal purijoses. Art. 11, § 3, Const. Foster v. City of Kenosha, 12 "Wis., 616. 1860. 42. — A tax levied to pay scrip, issued by such city in aid of a railway, will be re- strained ; but whetlier such scrip is void or not is not decided. Ib. 43. — The question as to the power of a city to bind a municipality by the execution and issuance of its bonds to aid in the construc- tion of railroads, has never been discussed and decided directly by this court. The case of Gelpcke v. City of Dubuque, 1 "Wallace, 175, considered and commented on. Chamberlain V. City of Burlington, 19 Iowa, 395. 1805. 664 SUBSCRIPTIONS BY CITIES AND TOWNS.. Authority to Subscribe. 44. — Tlie power granted to a city to borrow money for any public purpose, a vote of the people first being had, does not authorize the borrowing of money to aid in the construction of a raih'oad. lb. 45. — The power to borrow money conferred upon the city, does not authorize the loan of the credit of the city. lb. 46. — The legislature cannot confer the power upon a municipal corporation to levy a tax, or loan its credit in aid of the construction of a railway. The fact that the state may exercise the power of eminent domain, in be- half of associated p.arties who propose to ac- commodate a public need, does not determine its right to exercise the power of taxation in behalf of the same parties, in aid of the same object. People v. Salem, 20 Mich., 452. 1870. 47. — A railroad in the hands of a private corporation is no more a public purpose than !'. manufactory or a newspaper, or any other private enterprise supplying a public need. Hence the legislature cannot compel or em- power a municipal corporation to give aid to a railway company by taxation, or to contract an indebtedness for such purpose which must be paid by taxation. Bay Gity v. State Treas- urer, 23 Mich., 499. 1871. 48. — Such taxation is a confiscation of private property without duo process of law, and is in conflict with Art. 6, g 32, of the state constitution. lb. 49. — Such power of taxation receives no additional aid by the municipal votes. The legislature has the same power to tax without the assent of the municipal authorities that it has with their assent; the permission granted to the municipalities to vote upon the question is one of favor and not of right. lb. 50. — There is no mode in which aid to a railway running through many municipalities can be given by taxation at all, consistent with any recognized theory of taxation, without an apportionment by some rule among them all ; and this would be impossible under a system by which one township might tax itself ten per cent, upon its valuation, and another equally benefited refuse to pay but one per cent., while a third might decline altogether. lb. 51. — The state cannot aid a railway by its credit, and what it cannot do directly it cannot require townships and villages to do for it (Art. 14, §§ 7, 8, and 9, Const.) lb. Sco Mandamus. 52. Corporation must have power to re- ceive subscriptions. There must be a corpo- ration capable and having power to receive tlie aid, in the manner offered, as well as a corporation to bestow the aid. People ex rel. V. Adirondack Co., 57 Barbour (N. Y.), 656. 1870. 53. — Although the statutes contemplated that the railway company shall be incorpo- rated, before proceedings can be taken, they do not require that to be proved, as a fact, be- fore the county judge. People ex rel. v. Peek, 63 Barbour CN. Y.), 545. 1872. 54. — Under the act of 1869, the legal exist- ence of the corporation is a jurisdictional fact. People ex rel. v. Van Valkenburgh, 63 ib., 105. 1873. 55. Discount of bonds. The statute of Iowa, of January 25, 1855 (cli. 128), antliorizes cities to give their bonds in payment of sub- scriptions to railroad stock, and authorizes them to be sold at a heavy discount. Meyer v. City of Muscatine, 1 Wallace, 384. 1863. 56. Legalizing acts. No subsequent statute can legalize bonds and make them binding, where they have been issued without tlie statute authorizing such issue being accepted by the town, and without compliance with the conditions precedent provided by the statute. Duanesburgli « Jenkins, 46 Barbour (N. Y.), 294, 1866; see Same v. Some, 40 lb., 674, 1863. 57. — A debt for a specified sum contracted by a city and invalid because a statute which authorized the city to conti'act a debt did not also limit the extent of it, is made valid by a subsequent statute recognizing the v.ilidity of the debt as conti'aoted. Oity of Eenosha i). Lamson, 9 Wallace, 477. 1869. 68. — The legislature, having authorized the subscription by a city of a limited amount ol stock ($150,000) in a railroad company, and having afterwards authorized the subscription of an unlimited amount (which laltor act was unconstitutional), and the city, professing to act under the latter law, subscribed $150,000 a subsequent recognition by the legislature ol the subscription, as legal, renders it valid. And such recognition may be by implication. Campbell «. Oity of Kenoslia, 5 Wallace, 194- 1866. SUBSCRIPTIONS BY CITIES AND TOWNS. 665 Authority to Subscribe. 59. — The city of B. was created out of a part of tbe town of B. by a statute wliich pro- vided that " all principal and interest upon all bonds heretofore issued by the town of B. shall be paid, etc., by the city and town " in certain proportions. ZTeW, that this statute made the bonds of the town valid, if they were not previously so. Beloit v. Morgan, 7 Wallace, 619. 1868. 60. — Bonds illegally issued could not be ratified by the city in the absence of authority in the charter to make such ratification. City of Atchison v. Butcher, 3 Kan., 104. 1865. 61. — But an amendment to the charter, au- thorizing the payment of interest on such bonds, authorized a ratification by the pay- ment of interest thereon in the manner pre- scribed, lb. 62. -- The act of May, 1838, rendered valid the issue of bonds made by the city of Bridge- port prior to that date, whether they were originally valid or not; such legalizing act is not unconstitutional. Bridgeport v. Mouaatonic B. B. Co., 15 Conn., 475. 1843. 63. — The subscription made by the city of Macon to the Monroe R. R. Co., was ratified and recognized by the act of 1838. Winn V. City Oouncil of Macon, 31 Ga., 375. 1857. 64. Limitation of debt. In 1850, the legis- lature passed an act limiting the debt of Alle- gheny city to $500,000, exclusive of the first of two subscriptions to the stock of the Ohio and Pennsylvania R. R. Co. The debt of the city had reached that limit prior to the second subscription. The second subscription was authorized by an act passed in 1853. Held, that the limitation was binding on the coun- cil but not on the legislature, and the legisla- ture, having authorized the second subscrip- tiou, it was therefore valid. Amey v. Allegheny City, 34 Howard, 364. 1860. 65. — The fact that the ordinance making the second subscription was not recorded or published did not invalidate the bonds. This ordinance did not belong to the class required by the city charter to be published and re- corded, lb. 66. — The provisions of ch. 100, P. and L. laws of 1853, authorizing the city of Kenosha to borrow money and issue bonds or scrip therefor, being void for want of any limitation upon the amount of such indebtedness (Foster V. Kenosha, 13 Wis., 616), the scrip issued un- der that provision, and disclosing on its face the purpose of the issue, is also void. Fisk v. City of Kenosha, 26 Wis., 33. 1870. 67. — A subsequent act of the legislature recognizing the right of a city to redeem such scrip must fix a definite sum, or it will not comply with the constitutional provision re- quiring the legislature to limit such amount. lb. 68. New York and Oswego Midland R. R. Co. The statutes in relation to municipal aid to the New York and Oswego Midland R. R. Co. — construed. People ex rel. v. Morgan, 1 N. Y. Sup. Ct., 101, 1873; Samie v. Same, 65 Barbour (N. Y.), 473, 1873. 69. Partial construction of another road. A town is not deprived of the power to in- vest its bonds in a railway named in the peti- tion by reason of the incorporation and par- tial construction of any railway which is not constructed in such town, and not in opera- tion within its limits, and not taxed or upon the assessment roll. People ex rel. v. Peck, 4. Lansing (N. Y.), 528. 1871. 70. Renewal of bonds. Where a city has once lawfully contracted a debt and issued its bonds, it may, like any other debtor, have them taken up and canceled and new ones issued in their stead, without any special authority therefor. Bogan v. City of Water- town, 30 Wis., 359. 1873. 71. St. Louis. The act of incorporation of the city of St. Louis, as amended in 1843, con- tained the provision, "The city shall not at any time become a subscriber for any stock in any corporation." While the above prohibi- tion was in force, the city was authorized, by the act of March 1, 1851, to subscribe stock in the 0. & M. R. R. Co. An amended city charter of March 3, 1851, contained said pro- vision, and also the following, that " all acts and parts of acts contrary to and inconsistent with the provisions of this act, or within the purview thereof, etc., are hereby repealed." These provisions took effect from their pas- sage. Held, that the act of March 8, 1851, did not repeal the enabling act of March 1, 1851, and that a subscription made under said en- abling act was valid. St. Louis v. Alexander, 33 Mo., 483. 1856. SUBSCRIPTIONS BY CITIES AND TOWNS. Proceedings. II. Pboceedings. V2. Certiorari. Proceetlings having been had to authorize the issue of bonds of a mu- nicipal corporation to aid in the construction of a railroad, under tlie act of 1869, requiring the county judge to determine certain facts and render judgment thereon, a writ of certi- orari may properly issue to such county judge, for the purpose of a review of liis pro- ceedings by the supreme court, notwithstand- ing his determination has been entered of record. People ex rel. «. Smith, 45 N. Y., 773. 1871. 73. — Upon the return to such writ, the court is not limited to the inquiry whetlier jurisdic- tion to tlie parties and subject matter was ac- quired, but should examine the evidence and determine wliethor there was any competent proof of the facts necessary to autliorizc the adjudication made. Ih. 74. Change of corporation. A subscrip- tion to a different corporation than that desig- nated by the petition, or for a larger amount of stock than that autiiorized thereliy, is void. Held, accordingly, that commissioners ap- pointed to subscribe to the stocli of a certain railroad company had no power, and the court would not compel them to subscribe for stoclt of a company formed by the consolidation of that company witli anotlier under a different name and having different termini. Soclicster, etc., a. li. Oo. V. CuyUr, 7 Lansing (N. Y.}, 481. 1872. 75. Comihissioners. "Where, upon an ap- plication by twelve resident freeholders, to tlie county judge, and proof to him, he found, as facts, that commissioners liad made a contract to sell stoclt subscribed for by them in the name of a town, on credit; and the county judge thereupon adjudged and determined that this was a viblation of their duty; and that for their neglect to perform that duty, their offices had become vacant ; and that the defendants should be appointed to fill their places ; held, that the findings were legitimate, and the adjudication right. People ex rel. v. Bddy, 67 Barbour (N. Y.), 508. 1870. 76. Elections. An act of the legislature passed in May, 1847, empowered the city of New London to issue bonds to the amount of $100,000, to be loaned, on proper security, to the N. L., W. and B. R. R. Co., a corporation chartered at the same session, to aid in the constj'uction and completion of its road; the act containing a proviso tliat it should not take effect until approved by two-tliirds of tlio electors present at a city meeting lield for that purpose. Different meetings of the city wero holden for the purpose of acting on the sub- ject, and a vote was taken at each, and less than two-thirds of the votes wore cast in its favor. Another meeting was stibsequontly called and holden, at whicli a vote of more than two-thirds was obtained in favor of tlio approval. Held, that the power of tlie city on the subject was not exliausted by its first ac- tion, and that the action of the last meeting was a valid acceptance of the power to issue tlie bonds. Society for Savings . City of New London, 39 Conn., 174. 1860. 77. — Under ch. 273, P. and L. Laws of 1870, a vote of a town in reference to the sub- scription of stock sliall be held by ballot at a town meeting, and it is proper to keep the polls open till sundown according to the gen- eral rule for elections, instead of till 5 P. M., the hours prescribed for closing the polls at a town meeting. Phillips v. Town ofAlbanj/, 28 Wis., 340. 1871. 78. — Where notice of election is to be given by the board of supervisors of a town, it may be given by order of the board, signed only by tlieir clci-k. Laioson v. Milwaukee and Nm-thern P. P. Co., 80 Wis,, 697. 1873. 79. — Wlierc a statute requires notice of a town meeting to be posted in " three of the most public places in the town," if tliey were posted in three public places, the officer charged with the duty acting fairly according to his best judgment, the court will not inquire whether the places selected were in fact the most public. Sauerhering v. Iron Pidge and Mayville P. P. Co., 35 Wis., 447. 1870. 80. — The charter of the city of Janesville provided that the common council might sub- mit to a vote of the people of the city tlio question of subscribing stock in aid of a rail- way company. The election was had and tlie subscription was made, and bonds issued bo- fore the cliarter had been published so as to become operative. Held, that after such char- ter took effect, the council was not authorized either to make such a subscription without again submitting the question to the people in accordance with the charter, or to ratify SUBSCRIPTIONS BY CITIES AND TOWNS. G67 Proceedings. and confirm the subscription previously made and tlie bonds previously issued. Glark v. City of Janeamlle, 13 Wis., 414. 1861. 81. — The bonds issued under such cir- cumstances without any subsequent vote of the people ratifying their issue are void, even in the hands of third persons having no no- tice of the facts further than appeared upon the face of the bonds. Town of Bochesier v. Alfred Banh, ib., 432 ; Berliner v. Town of Wa- terloo, 14 Wis., 378, 1861. 82. — The supervisors could not, by any subsequent act of theirs, render the bonds valid. II). 83. —^ Where the statute requires that no- tice of an election shall be posted by the town clerk or supervisors, they need not do it in person, but may have it done by others. Phil- lips V. Town of Albany, 38 Wis., 340. 1871. 84. — If the legislature confers the power, directly and exclusively upon the mayor and city council to subscribe for stock, it is not necessary that the projiosition should be sub- mitted to a vote of the inhabitants. McCallie v. Mayor of Ghattanooga, 3 Head (Tenn.), 317. 1859. 85. — town meeting. An article in a war- rant for a town meeting is sulHcient, if it gives notice, with reasonable certainty, of the sub- ject matter to be acted upon. Thus an article in a warrant for a town meetingj " to see if the town will loan its credit to aid in the con- struction " of a, certain road, was hell suffi- cient. Belfast and Moosehead Lake U. U. Co. V. Brooks, 60 Me., 568. 1873. 86. — Where in such meeting, a subscrip- tion was authorized without designating the kind of stock, and the selectmen subscribed for nonpreferred stock, the town is bound. J6. 87. — In the absence of any evidence to the contrary, the persons subscribing for such stock as selectmen will be presumed to be lawfully chosen selectmen. Ib. 88. — Under § 16 of ch. 34, Gen. Stat., a two-thirds vote at a legal meeting is necessary to appropriate the money raised, as much as it is to raise the money to aid in the construc- tion of a railroad. Monadnock B. B. Co. ». Peterborough, 49 N. H., 281. 1870. 89. — The appropriation of the money is the selecting and designating of the particu- lar road, tliat is to receive the benefit of the money thus raised to aid in its construction. Ib. 90. — What the statute requires to be done by a town at a legal meeting, ca;mot be done by a committee. Ib. 91. — A town cannot delegate its power to any committee to elect which of two or more railroads shall be aided by the town, by the appropriation of money raised to aid in the construction of a railroad under this statute. Ib. 92. Irregularities. A court of equity ■r ill not cancel the bonds of a town, at the instance of a taxpayer, for a mere technical irregularity in calling the town meeting which directed their ;ssue, but will leave the parties to their legal rights. iSauerliering s. Iron Bidge and Mayville B. B. Co., 25 Wis., 447. 1870. 93. Petition. A petition of the majority of the resident freeliolders of a city is necessary to authorize a donation to a railroad, but is not necessary to authorize a subscription of stock Thompson v. City of -Peru, 29 Ind., 305. 1868. 94. — In proceedings to bond a municipal corporation in aid of a railroad (L. 1869, , p. 2803), a petition must be presented to the county judge, signed by tlie requisite number of taxpayers (§ 1), before he is authorized to make an order for notice of a hearing. People ex rel. v. Hughitt, 5 Lansing (N. Y.), 89. 1871. 95. — Several petitions may be signed, and they may be presented to the judge at different limes. Ib. 96. — In ascertaining whether a majority of the iDorsons whose names are upon the tax roll have consented to bonding a town for railroad purposes, on application under the statute (Laws 1869, ch. 907, p. 2803, etc.), joint owners of property are to be counted sepa- rately. People ex rel. v. Franklin, 5 Lansing (N. Y.), 129. 1871. 97. — A partnership is to be counted as one taxpayer, under the amendment of 1871 (ch. 925) to ch. 907 of 1869 ; it was otherwise un- der the law of 1869 before the amendment. Ib. 98. — The statute makes nonresident own- ers of land, taxpayers, and when their names appear on the assessment roll, although not properly taxed, they must be included in esti- mating the number necessary to unite in a petition for bonding a town. People ex rel. v. Oliver, 1 N. Y. Sup. Ct., 570. 1873. 99. — The right to appoint commissioners to issue bonds, under the act of the legislature 668 SUBSCRIPTIONS BY CITIES AND TOWNS. Proceedings. of May, 1809, depends upon the fact of a ma- jority in number of tlie taxpayers of the town, owning or rep'esenting a majority in amount of taxable property within tlie limits of the town, petitioning the county judge for that purpose. The last assessment roll of the town is made the criterion for ascertaining that fact. Peojile ex rel. «. Hulbert, 59 Barbour (N. y.),446. 1871. J 00. — It is not necessary that the petition- ers should be the owners of the property for which they are taxed. If they represent it, in any capacity, and are assessed on the tax list as so representing it, then they are taxpayers, and may become petitioners. lb. 101. — It is not sufficient that the signa- tures to the petition be proved, unless such petitions are in some way identified as the persons named on the " last preceding tax list or assessment roll." If the names upon both are identical, this is prima fade evidence that the persons are the same. People ex rel. v. Smith, 45 N. Y., 772. 1871. 102. — The authority conferred by the act must be exercised in strict conformity to and by a rigid compliance with the letter and spirit of the statute. lb. 103. — The petition required is that of the taxpayers, and the act is not satisfied by the petition of an agent. lb.; see also People ex rel V. Peek, 02 Barbour (N. Y.), 545, 1873 ; 4 Lansing, 529. 1 04. — Whore it was the duty of the com- mon council of a city to determine whether the requisite number of the freeholders of the city had petitioned for the subscription (no other tribunal having been provided for the purpose), and having passed upon that ques- tion, their determination is conclusive, unless it may be set aside in some direct proceeding for that purpose. Uvansville, Indianapolis and Cleveland Ji. if. Co. «. Mvansville, 15 Ind., 395. 1860. 105. — In proceedings under the act of 1869, to issue bonds in aid of the construction of a railroad, the petition must direct whether it is in stocJc, or in bonds, that the money to be raised shall be invested. People ex rel. v. Van ValJcenburff, 68 Barbour (N. Y.), 105. 1873. 106. — The common council of JefTerson- ville, Indiana, had authority to subscribe for stock in a railway company, and to issue bonds therefor, upon the petition of three. fourths of the legal voters of the city. Tlis dl «. City of Jeffersomille, 24 Howard, 287. 18(!0. 107. — The common council were the tri. bunal to decide the question as to %vhetlicr tliroe-fourths of the legal voters had signed the petition. lb. 108. — When sued upon these bonds by innocent holders for value, parol evidence cannot bo introduced to show that such re- quirement had not been complied with. lb. 109. — bribery. Signatures to the petition of tax payers appearing on the proper roll, in- duced by payments in the nature of a bribe, arc nevertheless valid. People ex rel. v. Frank- lin, 5 Lansing (N. Y.), 139. 1871. 110. — withdrawal of signature. The signers may withdraw their names from the petition before the city council has finally acted upon it, and if there is an insufllcient number of names after such withdrawal, the subscription cannot bo made. Noble v. Vin- cennes, 43 Ind., 125. 1873. 111. — When the consent of the tax pay- ers is lawfully given, such consent is irrevoca- ble. People ex rel. v. Henshrm, 61 Barbour (N. Y.), 409, 1870; People ex rel. v. Peek, 62 ib., 545. 1872. 112. — After the hearing before the county judge, signers will not be permitted to with- draw their names from the petition. People ex rel. v. natch, 1 N. Y. Sup. Ct., 118. 1878. 113. — Such withdrawal will be permitted at or before the hearing. People ex rel. v. Wag- ner, 1 N. Y. Sup. Ct., 331, 1878 ; People ex rel. v. Deyoe, 2 ib., 142. 1878. 114. Philadelphia. The county commis- sioners of Philadelphia have no power without the sanction of the county board, to subscribe for stock in the Sunbuiy and Erie R. R. Co. Brown v. County Commissioners, 21 Pcnn. St., 87. 1858, 115. Presumptions. Unless the party en- deavoring to maintain such proceedings is able to show that the terms of the statutes have been, in all essential particulars, com- plied with, they are to be held invalid. People ex rel. ■». Peck, 62 Barbour (N. Y.), 045. 1872. 116. — There is no presumption to be in- dulged, that public officers have done their duty; but every step in the proceeding must be proved to be within the powers conferred by the statute. People ex rel. v. Van Valken- bargh, 63 Barbour (N. Y.), 105. 1873. SUBSCRIPTIONS BY CITIES AND TOAVNS. G69 Proceedings to Prevent the Issuance of Bonds — Conditional Subscriptions. 117. !B'^tification. Altliough tlie mayor of a city may have, in some particulars, deviated from the directions of the common council in malsing the subscription, yet the subsequent issue of a portion of the bonds under the or- der of the council is a ratification of his act. BvansviUe, Indianapolis and Olemland R. B. Co. «. BvansviUe, 15 Ind., 395. 1860. 118. Statute. The validity of a proceed- ing for bonding a town to aid in the construc- tion of a railway must be determined by the law existing at the time the application is made. People ex rel. v. Peak, 62 Barbour (N. Y.),5.15. 1873. 119. — The validity of an application to bond a municipal corporation for railway purposes, under the act of 1869 (ch. 907, p. 2303), must be determined by the state of the law at the time it was made. People ex rel. v. Peek, 4 Lansing N. Y.), 538. 1871. 120. Supreme court. Errors in the deter- mination of the county judge, in regard to matters which he has the right to adjudicate upon, cannot be corrected by the supreme court, in an action brought by tax payers s.gainst the commissioners appointed by him and the railroad company, to restrain and pre- vent the issue of tlie bonds of the town. Ayres V. Lawrence, 63 Barbour (N. Y.), 454. 1872. III. Proceedings to prevent the ISSUANCE OF BONDS. 121. Form of proceeedings. In an action brought in the name of the people, against the commissioners appointed under the act of 1866, to subscribe for the stock of a rail- way company, on behalf of a town, to re- strain such commissioners from issuing the bonds of said town, in payment for stock sub- scriptions, the railway company is a necessary party. People ex rel. v. Clark, 53 Barbour (N. Y.), 171. 1869. 122. — Such an action cannot be maintain- ed in the name of the people by the attorney general, it seems; the people of the state not Ijeiug interested in the question. lb. 123. Injunction; attorney general.— Neither § 430, nor § 432 of the code, confers upon the attorney general the power to prose- cute an action in the name of the people, against the commissioners appointed under an act of the legislature, to restrain them from issuing, etc., town bonds provided for by such act, without performance of the conditions precedent required thereby ; nor has he such power at common law. People v. Miner, 3 Lansing (N. Y.), 396. 1868. IV. Conditional subscriptions. (See ante 661, aubdiviaion I of this title.) 1 24. Condition requiring other subscrip- tions. If subscriptions are made on condi- tion that certain other towns shall subscribe, the fact that the other towns cannot legally do so will invalidate the subscription. Phillips V. Town of Albany, 38 Wis., 340. 1871. 125. Connection of railway. Provisions of an act requiring that the vote of a town shall be based on a written proposition from the company, defining the amount and kind of stock to be subscribed for, the mode and times of payment, the kind of security given, etc., and which may contain stipulations as to the location of tlie road, depot grounds, etc., in said town. Mid, to be valid and salutary. Law- son V. Milwaukee and Northern R. R. Co., 30 Wis., 597. 1873. 126. — A stipulation that the company should connect its road by a side track in the town of M., and would not connect its road within three miles of the town of M. with any other railway, so as to permit the passage of cars from one road to the other, except in a certain locality, without the consent of the town, was held to be valid, and not contrary to public policy. lb. 127. Depot and route. Where a town sub- scribed for stock upon condition that the road " shall be built through the town on the line as run by the engineer, with a suitable depot for the convenience of the public;" held, that this was a condition subsequent, and will not defeat the right to collect the assessments be- fore the performance of the contract. Belfast and Mooseliead Lake R. R. Co. v. Brooks, 60 Me., 668. 1873. 128. Failure to comply with conditions. A town authorized the issue of its bonds to the relator, in exchange for his stock, upon certain specified conditions. Three commis- sioners were appointed, and two of them made a subscription for relator's stock, absolute in form, but upon the representation of relator, and their belief that they could not be com- 670 SUBSCRIPTIONS BY CITIES AND TOWNS. Bonds. ' pelled to deliver tho bonds of the town until tliey could make an agreement with tho re- lator, in pursuance of laws of 1870, ch. 507. The relator did not perform the conditions upon which the bonds were to be issued to it. Held, that the commissioners were not es- topped by their subscription, and that relator was not entitled to a peremptory mandamus for the delivery of the bonds. People ex rcl. ■0. HiUlwock, 2 N. Y. Sup. Ct, 184. 187.S. 129. Legalizing act. In case of subscrip- tions in aid of the N. Y., Oswego and Mid- land R. R. Co., it was ^cM, that the condition- al consent of tax payers of certain towns, au- thorizing municipal subscriptions for such railway stock, if invalid under the law of 1866, was rendered valid by the subsequent enactment of ch. 01 of the laws of 1868. People ex rel. v. Olark, 53 Barbour (N. Y.), 171. 1869. 130. Time as a condition: A town, by a two-thirds vote, issued bonds in aid of a rail- way, on condition that by a given time, the road should be completed to C, and the cars running and transporting freight and passen- gers over the road from M. to C. Held, that the road must be completed within the speci- fied time, before the aid could be demanded. Portland and Oxford Central S. B. Oo. v. Irt- liaUtants of Hartford, 58 Me., 33. 1870. 131. — A subsequent majority vote could not modify the conditions in the original vote, the statute requiring a two-thirds vote. lb. V. Bonds. 1S2. Charter. A city charter authorizing a city to borrow money " for any object in its diseretion," authorizes tho issue of bonds in aid of the .construction of a railway. Meyer V. The OUy of Muscatine, 1 Wallace, 884. 1863. 133. — A city, having power to borrow money, may make the place of payment of the principal and interest where it pleases, lb. 134. Collateral security. A note and mortgage to a railroad company, procured by fraudulent representations, having been trans- ferred to a city to secure it against liability on its bonds issued in aid of tho railroad, and it being claimed that the bonds are invalid for want of authority in the city to issue them^ that question will not be determined, and tho city required to deliver up the note And mort- gage to iho maker to be canceled, unless tlie holders of the bonds are not only made parties to the action for that purpose, but so subjected to the jurisdiction of the court that it may compel the surrender of the bonds. Bwlwp •0. Roosevelt, 20 Wis., 338. 1866. 135. Guaranty. The city of Watertuwii issued its bonds in aid of tlie Milwaukee and Watertown R. R. Co., which guarantied their payment. Subsequently that company became consolidated, in pursuance of law, with the Milwaukee and La Crosse R. R. Co., which subsequently sold tho Watertown division of its road (including what had previously been owned by the Milwaukee and Watertiwn Co.), to a third corporation, which sold it to the de- fendant. Held, that while the guaranty of said bonds became part of the general indebt- edness of the Milwaukee and La Crosse Co., after the consolidation, defendant, aspurchaser of the Watertown division of its road, is not liable for any part of such indebtedness. Wright v. Milwaukee and St. Paul R. R. Co., 25 Wis., 46. 1869. 136. Interest. Where money has been col- lected and placed in the hands of town officers, for the purpose of paying the interest upon bonds issued by the town, in pursuance of tho provisions of a statute, and tlio statute makes it tho duty of such officers to apply the money in satisfaction of such interest, a bondholder may maintain an action against such officers, to recover the interest due upon his bonds. Murdoch «. Aikiti, 29 Barbour (N. Y.), 59. 1858. 137. — Calls were made by the directors, for installments amounting in the aggregate to the precise sura subscribed, which were all paid, but not at tho times designated for pay. mont in the respective calls, and receipts given. Nothing was said about interest, and no claim made for it, until several months after the whole principal had been paid. Held, that an action would not lie to recover interest on the several amounts specified in the calls, during the time they wore delinquent. Southern Central B. R. Co. v. Moravia, 01 Bar- bour (N. Y.), 180. 1871. 138. Misnomer. Tho issuing of bonds in the name of " the town of Pci'rysburg," instead of in tho name of " tho incorporated village of Perrysburg," when tho latter would have been its proper legal designation, is merely a mis nomer, which does not affect the validity oi SUBSCRIPTIONS BY CITIES AND TOWNS. 671 Bonds. obligation of such bonds. State ex ret. «. Per- ryshurg, 14 Ohio St., 473. 1863. 139. Negotiability. An instrument of writing in the form following, with interest coupon attached is, in legal effect, a promis- sory note, and governed by the law merchant: " The citj' of A. acknowledges itself indebted to the 0. and M. R. R. Co., or bearer, in the sum of $1,000, negotiable and payable at the N. R. Bank, in the city of N. Y., twenty-flve years from date hereof, upon the presentation and delivery of this certificate, bearing an in- terest of six per cent, per annum, payable an- nually on the first day of January, at said bank, in the city of N. Y., upon presentation and delivery of the proper coupon hereto at- tached, signed by the clerk of said city ; and at all times the holder shall have a lien on the stock of said city in said company, for which this is recei\ ed in payment, and may exchange the same for a like amount of said stock at any time before the first declaration of cash dividends, and be substituted as stockholder in place of said city, upon surrender of this bond. This bond is issued in part payment of a subscription of $50,000 by the said city of A. to the capital stock of the said railroad company, by order of the common council of the city of A., on the 28th of September, 1850, in pursuance of § 18 of the charter of said city." City of Aurora v. West, 33 Ind., 88. 1864. 140. — Certain city bonds were in the fol- lowing form : " This certifies that the mayor, aldermen, common council, and freemen of the city of New London are indebted to the N. L. "W. and P. R. R. Co., or bearer, in the principal sum of $1,000, payable to said com- pany or bearer, at the end of fifteen years from the 1st day of July, 1853, with six per cent, interest thereon, payable semiannually on presentation of the annexed interest war- rants." (Signed by the mayor and treasurer of the city and sealed with the corporate seal.) ffeld, that the bonds were negotiable, and tliat suit could be brought on them in the name of the holder. Society for Savings ii. City of New London, 29 Conn., 174. 1860. 141. — City bonds " payable to the N. R. R. Co. or bearer " are negotiable, and suit may be brouglit thereon in the name of the holder. lb. 142. — Municipal bonds, with coupons pay- able to " bearer," have all the qualities of com- mercial paper. Oelpake v. City of Dubuque, 1 Wallace, 175, 1863 ; San Antonio v. Lane, 33 Tex., 405, 1869. 143. — Town bonds are negotiable instru- ments in such a sense as to exempt them in the hands of a bona fide holder from a defense which might be available against the railroad company. Bank of Some «. Village of Some, 19 N. Y., 20, 1859; affirming Sajne v. Same. 37 Barbour (N. Y.), 65, 1858. 144. — Tlie certificate of the commissioners is conclusive in behalf of the bona fide holder, of the facts therein stated. lb. 14.5. — notice of extent of powers. Per- sons receiving bonds issued by towns are bound at their peril to ascertain whether the statute,^ authorizing their issue, has been complied with. Duanesburgh v. Jenkins, 40 Barbour (N- Y.), 574, 1863 ; see Same v. Same, 46 ib., 394, 1866. 146. — If bonds are issued by a town with- out the consent required by the statute having been obtained, they are void, at least in the hands of the railway company to which they are issued, if not in the hands of every subse- quent holder. Ib. 147. — Mercantile paper made void ab initio, by statute, is void in the hands of a bona fide holder. City of Aurora v. West, 33 Ind., 88. 1864. 148. — The purchasers of the bonds of the city of Janesville were bound to know that there was no law authorizing their issue. Clark e. City of Janesville, 13 Wis., 414. 1861. 149. — When bonds, issued by a municipal corporation, show upon their face the author- ity under which they are executed, and such authority is insufficient, they are void in the hands of any parties. Chamberlain v. City of Burlington, 19 la., 395. 1865. 150. — The company to whom the bonds were originally sold is bound to know the ex- tent of the authority of the agent of the city in transferring and issuing bonds. City of At- chison V. Butcher, 3 Kans., 104, 1865 ; City of Aurora v. West, 32 Ind., 88, 1864. 151. — One who has purchased municipal bonds of a railroad company at a discount, with knowledge that the company had ob- tained them in exchange for its stock, is not a bona fide holder, and takes them subject to all equities which would exist as against the com- 672 SUBSCRIPTIONS BY CITIES AND TOWNS. Location of Bail-ways. pany. Starin ». Genoa, 23 N. Y., 430, 1861 ; reversing Same v. Same, aucl Gould v. Teniae, 29 Barbour (N. Y.), 442, 1859. 152. — Where cities issue bonds witli coupons attaclied, whicli have passed into the hands of lona fide purchasers for value, the city cannot defeat an action on the coupons, by showing that the election authorizing their issue was not regular. Olark v. City of Janes- ville, 10 Wis., 136. 1859. 153. — The purchaser of such bonds is bound to see that there is a law authorizing their issue, but he is not bound to inquire as to whether the proceedings under tlie law have been regular. Ih. 154. — presumptions. The holder of city bonds, when the city has a right to issue them, has a right to presume that they were issued under the circumstances which give the requi- site authority. Lexington v. Butler, 14 Wal- lace, 282, 1871; Moran v. Miami Oounty, 2 Black, 722, 1862; City of Atchison v. Butelier, 8 Kaus., 104, 1865; Mercer County v. Haclcet, 1 Wallace, 83, 1863 ; Meyer v. City of Muscatine, 1 ib., 384, 1863. 155. — Where authority was given to a city to take stock in a road, provided the act be " on the petition of two-thirds of the citizens," this proviso will be presumed to have been complied with where the bonds show, on their face, that they were issued by virtue of an or- dinance of the council of the city making the subscriptions; the bonds being in hands of innocent holders. Van Eostrup v. Madison City, 1 Wallace, 291. 1863. 156. — Power to issue the bonds being shown, the municipal corporation, as against bona fide holders for value, is estopped to deny that the power was properly executed. Bogers «. Burlington, 3 Wallace, 654. 1865. 157. — purchase by pre-existing creditor. Bonds were issued, not payable to bearer, and transferred to the plaintiff on a preexisting debt. Seld, that he was not an innocent holder. City of Atchison v. Butcher, 3 Kans., 104. 1865. 158. Power to issue bonds. Under § 60 of the act for the incorporation of cities, of March 14, 1867, express authority is given to sub- scribe to the stock of railroads running into or through the city, and to borrow money to pay such subscriptions. Thompson v. City of Perw, 29 Ind., 305. 1868. 159. — Where a city is empowered to make a subscription for stock in a railway corpora- tion, the power to determine the time of pay- ment and to issue bonds and other evidences of indebtedness is manifestly implied. JSvans- ville, Indianapolis and Cleveland B. B. Co. v. EmnsiDille, 15 Ind., 395. 1860. 1 60. — Such power also carries with it the power to borrow money wherever it can be procured on the best terms and the right to agree to pay where borrowed. li. 161. — An authority given by act of legis- lature to a city corporation to subscribe for stock in a railway company, " as fully as any individual," authorizes the issue of bonds in payment of the stock. Seyhert v. City of Pitts- burgh, 1 Wallace, 272. 1863. 162. — The issuing and sale of bonds being the usual method adopted by corporations to borrow money, cities may exorcise the power thus given to borrow by issuing and selling bonds. Thompson «. City of Peru, 29 Ind., 305. 1868. 163. Power to sell bonds. Power "to is- sue bonds for the stock, or for the loan of the money to pay for the same " gave no authority to sell the bonds to raise money in pay for stock, especially below par. City of Atchison V. Butcher, 3 Kans., 104. 1865. 164. — discount. Where an act authorized the town officers to borrow money at a rate of interest not exceeding seven per cent., and pay it over to the railroad corporation, taking the railway stock at par, it was not in their power to exchange the bonds of the town for an equal nominal amount of stock, leaving it in their power to sell such stock at a discount. Starin v. Genoa, 23 N. Y., 439, 1861 ; see Gould v. Town of Venice, 29 Barbour (N. Y.), 442, 1859 ; Venice v. Breed, 1 N. Y. Sup. Ct., 130, 1873. 165. Recitals in bonds. The town is not bound by the recitals of its officers upon the face of the bonds that the requisite assent of the taxpayers had been obtained. Starin v. Genoa, 23 N. Y., 439, 1861 ; see Bank of Borne V. Village of Borne, 19 ib., 20 ; see Gould v. Venice, 29 Barbour (N. Y.), 442, reversed. VI. Location" of eailway. 166. Judicial notice. The courts cannot take judicial knowledge tliat a railroad com- pany, in locating its road between two points, SUBSCRIPTIONS BY CITIES AND TOWNS. 673 Taxation — Miscellaneous. ■will not run the same to or near certain otlier places from -which it receives subscriptions of stock. Phillips v. Town of Albany, 28 Wis., 340. 1871. 167. Road between other cities. An au- thority to a city to subscribe for stock in a company, chartered for making " a road or roads to said city," authorizes the taking of stock between other cities, from the nearest of which to the city subscribing there is a direct, i-oad, the road being in fact an exten- sion of one leading into the city. Van Sos- irup V. Madison Gity, 1 Wallace, 391. 1863. 168. Road Running through a city. A railway running through, is a railway running to a city; and if a city is authorized to sub- scribe stock to a railway running to it, and it is not made a point in the charter of such road, it can only be made so by subsequent action of the directors of the railway com- pany, and until such action has been had, no absolute subscription of stock in such corpo- ration can be made by such city. Gity of Aurora v. West, 33 Ind., 88. 1865. 169. Validity of law. The objection to an act authorizing subscriptions by cities to aid in the construction of a railway, tliat it author- ized subscriptions to be made by cities through which such road will not run, will not be con- sidered when made by a city through which the road is required to run, either by its char- ter or by the terms of its subscription. Law- son V. Milwaukee and Northern B. M. Co., 30 Wis., 597, 1872; Phillips v. Town of Albany, 28 ib., 340, 1871. VII. Taxation. 1 70. Levy. By the law of Wisconsin, a provision in a statute under which a town issued its bonds to a railroad, that a tax re- quisite to pay the interest on these bonds should be levied by the supervisors of tho town, is not exclusive of a right in the town clerk to levy a tax under a general statute making it his duty to lay a tax to pay all the debts of the town ; a mandamus having issued under the first act, but after efforts to make it productive, having produced nothing. Morgan V. Town Glerk, 7 Wallace, GIO. 1868. 171. Power of taxation. Where a muni- cipal corporation has had power to issue bonds and to levy taxes to pay them, and the bonds 43 have been negotiated for value, the power of taxation cannot subsequently be withdrawn until the contract ia satisfied. Von Eoffman V. Oity of Quincy, 4 Wallace, 535, 1866; Butz v. Gity of Muscatine, 8 ib., 575, 1869. VIII. Miscellaneous. 172. Fees for collecting subscriptions. A person, authorized by a railroad company to collect calls made upon subscriptions of stock, and entitled to receive as compensation a cer- tain rate per cent, of the amount collected, would not be entitled to charge such commis- sions for receiving and delivering to the treas- urer of the company bonds of a city a.nd county, with which, in lieu of money, said city and county were allowed to pay the calls on their subscriptions of stock. Lakenan v. Hannibal and St. 'Joseph S. JR. Co., 24 Mo., 505. 1857. 173. Aldermen as stockholders. The fact that several of the aldermen and common council w;ere, at the time a contract with a railway company was entered into, stockhold- ers in the railroad company, does not, per se, invalidate such contract. Oibbons v. Mobile and Great .Northern JR. B. Go., 36 Ala., N. 8., 410. 1860. 174. Charter. The act of April 4, 1837, to incorporate the P. K. and F.R. R. Co., provides that any " city or borough shall have authority to subscribe to the stock of that company as fully as any individual." Held, that the act only authorizes the making of the subscription and not the issuing of bonds or levying of a tax to carry the same into effect. (Ebriche i>. Pittsburgh, 5 Penn. Law. Jour. Rep., 485. 1858. 175. Compromise. A contest arose between taxpayers of the city of New Albany and a railway company, in reference to bonds issued by the city in aid of the road. The bonds had not all been issued, and the suits were com- promised by the release of the city from the further issue of bonds. The arrangement was in good faith and for the interest of the com- pany as well as the city. A party holding a judgment against the company filed a bill in equity against the city, alleging that the com- promise was illegal, and praying an ascertain- ment of the balance due from the city on its, subscription. Held, that the transaction was valid. New Albany v. Burke, 11 Wallace, 96. 1870. 674 SUBSCRIPTIONS BY COUNTIES. Authority to Subscribe. 1 76. — Tlie city of New Albany having made a subscription to tlie stock of tlie New Albany and Sandusky City Junction K. R. Co., and issued its bonds therefor, an action was brought by B. and T. against the city and the company to enjoin the collection of taxes as- sessed to pay the interest on said bonds. A compromise was agreed upon between the city and the company, by which the bonds were to be surrendered and tlie subscription canceled ; in consideration of which the city, by an ordi- nance of the common council, agreed, among other things, to pay all costs of the suit brought by B. and T., as agreed between them and their said attorneys, and said city and attorneys of said railroad company. Held, that the ordi- nance did not bind the city to pay the fees of the atlorneys of the railroad company. N'ew Albany v. Smith, 16 Ind., 315. 1861. 177. De facto officers of corporation. A taxpayer of a town, that has issued its bonds for the stock of a railroad company, cannot have them declared void, or their delivery to de facto officers of the company restrained, on the ground that such ofHcers were not legally elected. Saurehering v. Iron Bidge and May- ville R. B. Co., 25 Wis., 447. 1870. 178. Estoppel. If a municipal corporation has taken a subscription upon more favorable terms than other subscribers, such fact cannot be urged by it to defeat its liability on such subscription. Svansville, Indianapolis and Cleveland B. B. Co. v. Evansville, 15 Ind., 395. 1860. 179. — There is nothing against public pol- icy in an agreement by such company to allow the city interest on the stock subscribed by it. lb. 1 80. Instalments. The law for the incor- poration of railway companies (1 R. S., p. 413), which provides that the directors may make calls, etc., provided that such subscriptions shall not be required to be paid except in equal instalments of not more than ten per cent, a month, has no application to cases where the times of payment are agreed on in the contract of subscription. lb. 181. Mortgage upon land of city. The United States ceded to the mayor and alder- men of Memphis, seventy-five acres of land lying within the corporate limits, for the ben- efit of that city. The mayor and aldermen mortgaged the land to aid in the construction of a railroad, one of whose termini was on the bank of the Mississippi, opposite to the city of Memphis. Held, that this was a proper purpose, and " for the benefit of said city." Adams v. Memphis and Little Bock B. B. Co., 2 Coldwell (Tenn.), 645. 1866. 182. Res adjndicata. A judgment in favor of a bondliolder upon certain municipal bonds, part of a larger issue, against the town issuing them, is conclusive on the question of the validity of the other bonds of the same issue, in a suit between the same parties where the same objections were urged in the second suit as in the former one. Beloit v. Morgan, 7 Wallace, 619. 1868; Aurora v. West, ib.. 88. SUBSCRIPTIONS BY COUNTIES. See BoWDS or Railway Compahibs; Cbbtiobamj COLLATEBAL 9EOUBIT1E8 ; FeDSBAL COUBTB; IN- JUNCTION; Mandamcis; Scbscciiptions bt Citibs AND Towns; Taxation. I. AtJTHOBITY TO SUBSCRIBE. II. PBOCEEDIlirGS. III. COKDITIOITAL SUBSCRIPTION. IV. Bonds. V. Charter. VI. Swamp lands. VII. Mandamus. VIII. Taxation. IX. M1SCEL1.ANEOU8. I. Authority to subscribe. 1. Bonds. The power to subscribe the in- ternal improvement fund of a county to the stock of a railway company does not author- ize the county to issue bonds, and become liable in its political capacity for such sub. scription. English v. Chicot County, 26 Ark., 454. 1871. 2. — The bonds of Butler county having been signed by two out of three of the county commissioners, and the 'requirements of the act authorizing the subscription having been complied with, the bonds were held valid. Curtis V. County of Butler, 34 Howard, 435. 1800. 3. Change of ruling by state courts. If a contract, when made, was valid under the con- SUBSCRIPTIONS BY COUNTIES. 67a Authority to Subscribe. Stitation and laws of a state, as they hsid been previously expounded by its judicial tribunals, and as they were understood at the time, no subsequent action by the legislature or the ju- diciary will be regarded by this court as estab- lishing its invalidity. Olcott v. The Supenis- ors, 16 Wallace, 678, 1873; Gelpcke «. C% of Dubuque, 1 ib., 175, 1863. 4. Charter. The charter of the St. Joseph and Iowa R. R. Co. (Sess. Acts, 1856-7,, pp. 107, 108) authorized it to establish branches and receive county subscriptions, although the counties subscribing had not been em- powered to do so by a vote of the people. Ar^ tide 11, section 14 of the present constitution, was not intended to retroact so as to have any controlling application to laws in existence when that instrument was adopted. State ex rel. V. Sullivan County Court, 51 Mo., 522. 1873. 5. — The board of supervisors of Schuyler county is not authorized to issue bonds under the act incorporating the Rock Island and Alton R. R. Co. Supervisors of ■ Schuyler County v. People ex rel, 35 III., 181. 1860. 6. Consent of county. The legislature may compel a county to become a subscriber for stoclc in a railway already built, and may com- pel it to issue its bonds for the stock and raise money by taxation to, pay the bonds. Wapa Valley B. B. Co. v. Napa County, 30 Cal., 435, 1866 ; contra, see People ex rel. v. Batchellor, 53 N. T., 128, 1873. 7. Constitutional law. The authority of municipal corporations to subscribe for the aid of railway companies has been sustained in the following cases, or recognized in them. Mitchell V. Burlington, 4 Wallace, 370, 1866 ; Von Hoffman v. Quiney, 4 ib., 535, 1866 ; Biggs V. Johnson County, 6 ib., 166, 1867; Vnited Slates V. Lee County, ib., 210, 1867 ; Same v. Keokuk, ib., 514; Bissellv. City of Jefferson-ville, 24 Howard, 287, 1860; Amey v. Allegheny City, ib., 364, 1860; Curtis v. Butler County, ib., 435, 1860; Supervisors v. SeJtenek, 5 ib., 773, 1866; Galena v. Amey, 5 ib., 705, 1866 ; Gelpcke v. City of Dubuque, 1 Wallace, 175, 1863; see a] so Seybert -0. City of Pittsburgh, ib., 373, 1863 ; Van Hostrup v. Madison City, ib., 391, 1803; Meyer v. City of Muscatine, ib., 884, 1863; Savemeyer e. Iowa County, 3 ib., 294; 1864; Thompson v. Lee County, ib., 337, 1865; Sogers v. Burlington, ib., 654, 1864 ; Campbell ■». City of Kenosha, 5 ib., 194, 1866 ; Lee Coun- ty V. Bogirs, 7 ib., 181, 1868 ; Beloit «. Morgan, ib., 619, 1868; City of Kenosha v. Lamson, 9 ib., 477, 1869; Bailroad Co. v. County of Otoe, 10 ib., 667, 1872; Oleott v. Supervisors, ib., 678, 1872 ; Gilman v. Sheboygan, 2 Black, 510, 1863 ; Woods V. Lawrence County, 1 ib., 386, 1861 ; Selma and GulfB. B. Co., exparte, 45 Ala., N. S., 696, 1871 ; Gibbons v. Mobile and Great North- ern B. B. Co., 36 ib., 410, 1860; see also Mis- sissippi, Ouachita and Bed Biver B. B. Co. V. Camden, 33 Ark., 300, 1861; English V. Chicot County, 26 ib., 454, 1871 ; Napa Val- ley B. B. Go. V. Napa County, 30 Cal., 435, 1866 ; Stockton and Visalia B B. Co. v. Stock- ton, 41 ib., 147, 1871 ; People v. Coon, 35 ib., 635, 1864; Bobinson v. Bidwell, 33 ib., 379, 1863; BeardsUy v. Smith, 16 Conn., 368, 1844; Bridgeport v. Housatonic B. B. Co., 15 ib., 475, m^; Cotton V. Com'rs of Leon County,' 6 Fla,, eiO, 1856 ; Powers v. Inferior Court 9/ Dough- erty County, 33 Ga., 65, 1857; Winn ». City Council of Mi(con, 31 Ga., 375, 1857; Pretty- man V. Supervisors of Tazewell County, 19 111., 406, 1858 ; Bobertson v. City of Bockford, 21 111., 451, 1859 ; Butler v. Dunham, 27 111., 474, 1861; Supervisors of Schuyler County v. People, 25 ib., 181, 1862; Dunnovan v. Green, 57 ib., 63, 1870; Madison County v. People ex rel, 58 ib., 456, 1871 ; Board of Bartholorrtew County ■». Bright, 18 Ind., 93, 1863 ; Evansville, Indiarmpo- lis and Cleveland B. B. Co. 0. Evansville, 15 ib., 395, 1860 ; City of Aurora v. West, 22 ib., 88, 1864; Same v. Same, 9 ib., 74, 1857; Thompson V. City of Pent, 29 ib., 305, 1868 ; La Fayetite, Mwneie and Bloomington B. B. Co. v. Geiger, 34 ib., 185, 1870 ; ComWs of Crawford County V. Louisville, etc., B. B. Co., 39 ib., 193, 1873; John V. Cincinnati, Bichmond and Et. Wayne B. B. C')., 35 ib., 539, 18"1 ; DuMque County v. Dubuque and Pacific B. B. Co., 4 G, Greene (Iowa), 1, 1853; State v. Bissell, ib., 328, 1654; Clapp V. Cedar County, 5 la., 15, 1857; McMil- len V. Boyles, 6 ib., 304, 1858; Sam^ v. Lee County, 3 ib., 311, 1856 : Same v. County Judge, 6 ib., 391, 1858; Games v. Bobb, 8 ib., 193, 1859; Stewart v. Board of Supervisors, 30 ib., 9, 1870 ; McGregor and Sioux City B. B. Co. v. Birdsall, ib., 255, 1870; City of Atchison v. Butcher, 3 Kan., 104, 1865 ; Com'rs of Leavenworth County v.. Miller, 7 ib., 479, 1871 ; Talbot v. Dent, 9 B. Monroe (Ky.), 536, 1849; Slack v. Maysville and Lexington B. B. Co., 13 ib., 1, 1853; Shelby 676 SUBSCRIPTIONS BY COUNTIES. Authority to Subscribe. County Court «. Cumberland and Ohio B. B. Co., 8 Bush (Ky.), 209, 1871 ; Maddox ®. Ora- ham, 2 Metcalf (Ky.), 50, 1859 1 Police Jury «. McDonough, 8 La. An., 841, 1858 1 Parker v. Seoggin, 11 Lii. An., 639, 1856 ; Augusta Bank 41. Augusta, 49 Me., 507, 1880; JDavidson v. Bamsey County, 18 Minn., 482, 1872 ; St. Louis V. Alexander, 28 Mo., 483, 1856 ; 8t. Joseph and Denver B, B. Co. e. Buchanan County, 89 ib., 485, 1867 ; State ex rel. v. Macon County Court, 41 ib., 453, 1807; ChiUioothe and Brunswick B. B. Co. V. Mayor, etc. of Brunswick, 44 ib., 558, 1869 ; State ex rel. v. Linn County Court, ib., 504, 1869 ; State ex rel. v. Greene County, 54 ib., 540, 1874; Same v. Sullivan County Court, 51 ib., 522, 1873; Osage Valley, etc. B. B. Co. v. Morgan County, 53 ib., 156, 1878; Smith v. Clark County, 54 ib., 58, 1873 ; Gibson «. Mason, 5 Nov., 233, 1869 ; Benson v. Mayor of Albany, 24 Barbour (N. Y.), 248, 1857; Clarke v. City of Boehester, 28 N. Y. 605, 1804; Same v. Same, 14 Howard's Pr. ^N. Y.), 193, 1857; Same v. Same, 13 ib., 204, 1856; People v. Mitchell, 45 Barbour (N. Y.), 308, 1865 ; Same d. Same, 85 JS . Y., 551, 18G6 ; People ex rel. v. Batcheller, 58 ib., 128, 1873 ; Caldwell v. Justices ofBurJce Coun- ty, 4 Jones' Eq. (N. C), 323, 1858 ; Ta,ylor v. New- bern, 2 ib., 141, 1855 ; ITill v. Comers of For- sytlie County, 67 N. C, 867, 1870 ; Cincinnati V. Walker, 1 Cincinnati Rep., 121, 1871; see > opinion of Hitelicoch, J., 30 Ohio, appendix A. ; Walker v. Cincinnati, 21 Oliio St., 14, 1871; Cincinnati, Wilmington and Zanesville B. B. Co. V. Oom'rs of Clinton County, 1 Oliio St., 77, 1853; Steubenville and Indiana B. B. Co. v. JH'orth Tp., ih., W5, 1852; Thompson v. Kelley, 3 Ohio St., 647, 1858 ; State ex rel. v. Perrys- burg, 14 ib., 472, 1868 ; Com'rs of Knox County V. Niclwls, ib., 260, 1863 ; State ex rel. v. Union Tp., 8 ib., 894, 1858; State ex rel. v. Goshen, 14 ib., 569, 1863 ; see also Brown v. County Oom'rs, 21 Penn. St., 87, 1853 ; Sharpless v. Mayor of PhiladelpMa, ib., 147, 1853; Moers e. Beading, ib., 188, 1833; Commonwealth ex rel. v. Alleghe- , ny County, 32 ib., 218, 1858 ; Commonwealth v. Councils of Pittsbwgh, 41 ib., 378, 1861 ; Same V. Pittsbwgh, 84 ib., 496, 1859 ; Same v. Per- kins, 43 ib., 400, 1863 ; Same v. MeWilliame, 11 ib., 61, 1849 ; Niclwls v. Mayor of Naskoille, 9 Humphreys (Tenn.), 253, 1848; Louisville and Nashville B. B. Co. v. County Cowrt, 1 Sneed (Tenn.), 687, 1854; Ban Antonio v. ^J ones, 28 Tex., 19, 1866 ; Same v. Lane, 33 ib., 405 ; 1869 ; Same v. Gould, 84 ib., 49, 1870; Goodin v. Crvmfp, 8 Leigh (Va.), 120, 1887 ; Clark v. City of Janesville, 10 Wis., 186, 1859 ; Bushnell v. Beloit, ib., 195, 1860; see also Fisk v. City of Kenosha, 26 ib„ 28, 1870; Phillips v. Town of Albany, 38 ib., 840, 1871 ; Bogan v. City of Wa- tertown, 80 ib., 259, 1873; Lawson V.Milwaukee and Northern B. B. Co., ib., 697, 1872. 8. — A county or other municipal corpora tion lias no inherent right of legisliition, ana cannot snbsoribe for stoclc in a public im provenient unless authorized to do so by the legislature. (Citing Thompson v, Lee County, 8 Wallace, 827.) People ex rel. v. MitoMl, 85 N. Y., 551, 1866; Same v. Same, 45 Barbour (N. Y.), 208, 1865. 9. — The legislature lias power to authorize a county to subscribe for stock in a railroad company, if the people choose to do so, by a popular vote to that effect. Selma and Gutj B. B. Co., ex pa/rte, 45 Ala., N. S., 696, 1871; Hill V. Commissioners of Forsythe County, 67 N. C, 867, 1870. 10. — The fact, that a vote of the people Is necessary to carry the provisions of an act into execution, does not render the taking effect of the act dependent upon any authority other than the legislative power of the general as- sembly, and therefore does not render the act unconstitutional. Lafayette, Muncie and Bloomington B. B. Co. v. Geiger, 84 Ind., 185, 1870; Board, etc., of Bartliolomew County v. Bright, 18 ib., 98. 1863. 11, — That portion of the act of January 38, 1869, amendatory of the charter of the Decatur and East St. Louis R. R. Co., which permits a portion of each of several counties to aid the corporation, is not in violation of that clause of the constitution of 1848, which forbids the cred- it of the state to be given to, or in aid of, any individual, association or corporation. Madi- son County V. People ex rel, 58 111., 456. 1871. 12. — Section 8, article 11, of the constltu- tion, prohibiting the state from ever being a party in carrying on any works of internal im- provement, applies to the state in its sovereign corporate capacity, and not to the subordinate political subdivisions thereof. It prohibits the state as a state, and not counties, from be- ing parties in carrying on any works of inter- nal improvement. Commissioners of Leaven- worth County v. Miller, 7 ICans,, 479, 1871 ; State ex rel v. Nmaha County, lb., 542. SUBSCRIPTIONS BY COUNTIES. 677 Authority to Subscribe. 13. — Tlie localities along the line of a rail- road may be taxed to aid its construction and operation, if they choose to take stock therein and issue bonds thereto ; and a fair rule of ap- portionment, of ■which tlie taxpayers cannot complain, is, to allow the localities to be taxed the privilege of saying how much the benefit of the improvements is worth to them, and for what amount they are willing to be taxed. Ih. 14. — Wliere an election was held under the acts of 1865 and 1866, authorizing such a sub- scription and the issuing of bonds to a rail- road company upon certain conditions, and where another election was held under the laws as they existed on the 22d of May, 1869, for the purpose of changing in some respects such conditions, held, that said second election was valid. Morris v. Commissioners of Morris County, 1 Kans., 576. 1871. 15. — The city of Maysville, under the act authorizing subscription to stock in the Mays- ville and Lexington R. R. Co., had a right to vote jointly with the county on the question of the propriety of making the subscription, and the call for the vote by the president and di- rectors of the railroad company was author- ized by the statute. Slack v. Maysville and Lexington B. R. Co., 13 B. Monroe (Ky.), 1. 1853. 16. — It is no objection to the mode of exer- cising the power to take such stock that it is referred to the consent of those to be afl'ected by its operation. 76. 17. — Where a decision of a question is re- ferred to the popular vote, it is fair to take the decision of the majority of those who do vote as decisive of the question, and that those who did not vote acquiesce. lb. 18. — It is no objection to the validity of a vote for imposing a railroad tax, that the power was given to the president and directors of the company to designate the time of tak- ing the vote, instead of the county court. lb. 1 9. — The provision of the charter of the Missouri and Miss. R. R. Co. (Sess. Acts 1865, p. 86, § 13), authorizing the county courts of any county to subscribe for the stock of said company, and to issue bonds therefor, etc., was not repealed by the constitution, Art. XI., § 14. State ex rel. ■». Macon County Court, 41 Mo., 453, 1867 ; see GMllicothe and Brunswick M. S. Co. «. Mayor, etc., of Brunswick, 44 Mo., 558, 1869. 20. — - A county has the constitutional right to aid in building a railrqad within its limits. Dubuque County i). Dubuque and Pacific B. B. Co., 4 G. Greene (Iowa), 1. 1853. 21. — The proceedings under which the cit izens of Dubuque county voted two hundred thousand dollars, to aid in constructing the Dubuque and Pacific R. R. through the coun- ty, were regular, and authorized by law. lb. 22. — The statute (Code, § 114) provides for borrowing money by authority of a vote of the people " to construct any road or bridge which may call for extraordinary expenditure." Held, thai the term, any road, includes railways. lb. 23. — The authority of counties to subscribe for stock in railway companies, whose road is to run through such counties, whatever might be the opinion of the court, were it res nova, is not now an open question in the state of Iowa. After one or two judicial decisions by the su- preme court, affirming the power, and repeat- ed legislative recognition of the right, the counties must be held to possess the right and authority. Following State v. Bissell, 4 G. Greene, 328, and Dubuque County v. Dubuque and Pacific B. B. Co., ib., 1 ; Olapp v. Cedar County, 5 la., 15, 1857. 24. — A statute enacted prior to the consti- tution of 1851, authorizing the commissioners of a county, upon the approval of a majority of the electors, to deliver county bonds to bona fide stockholders of a railroad located through such county, to be applied, at par, in payment of their stock subscriptions, and the proceeds to be applied exclusively in constructing the road within the county, the county being am- ply indemnified for the loan of its credit by bond and mortgage of the subscribers, is not in conflict with the constitution of 1803. Comm'rs of Knox County v. Niclwls, 14 Ohio St., 260. 1863. 25. — Nor is such statute repealed by the constitution of 1851, although the bonds had not been issued, nor the vote of the electors given, until after that constitution went into operation. Ib. ; State ex rel. v. Perrysiurg, ib., 472; State ex rel. v. Union Township, 8 Ohio St., 394, 1858. 26. — The act of March 1, 1851, authorizing the commissioners of Clinton county to sub- scribe to the capital stock of the relator, does not delegate legislative power to contravene the constitution of 1803, in providing that the subscription shall not be made until the assent 678 SUBSCRIPTIONS BY COUNTIES. Authority to Subscribe. of a majority of the electors of the couuly (except two townsliips) is first obtained at an election held for that purpose. Oincin- nati, Wilmington and Zanesville B. li. Oo. V. Oom'rs of Clinton County, 1 Ohio St., 77. 1853. 27. — Such a tax, when thus authorized, is not beyond the legitimate scope of local, mu- nicipal taxation ; nor is it opposed to Art. 8, §4 of the constitution, declaring that "pri- vate property ought to and sliull ever be held inviolate, but always subservient to the public welfare, provided a compensation in money be made to the owner." lb. 28. — The legislature having empowered a county to subscribe for stock in a railway company, the courts cannot consider the ques- tion as to whether or not the road will be a public benefit. Napa Valley B. R. Oo. v. Napa County, 30 Cal., 485. 1866. 29.— The power conceded to the counties or other municipal corporations by a railroad charter, to take and subscribe for stock in aid of such railroad, was intended as a privilege to the railroad company. State ex rel. v. Greene County, 54 Mo., 540. 1874. 30. — A provision in tlie charter of a rail- way company, authorizing county courts to subscribe for stock in such railroad, without a vote of the people, is not repealed by subse- quent general laws, nor by the subsequent adoption of the present constitution. lb ; Smith i>. Clark County, ib., 58. 31. — A county may be authorized by law to subscribe for stock of railroads located in ofher states, terminating at or near theb'mnda- ' ries of suoli county. St. JoeepJi and Denver B. B. Oo. V. BueJianan County, 39 Mo., 485. 1887,; see also Bailroad Cdmpany v. County of Otoe, 16 Wallace, 667. 1872. 32. — the right denied. The authority of municipal corporations to subscribe to the aid of railway companies has been ilcnied in the following cases: Stolcea v. Scott County, 10 Iowa, 166, \^59; State ex rel. v.Wapello County, 13 ib., 388, 1863 ; Myere v. Johnson County, 14 ib., 47, 1862; McMillen v. Boyles, 14 ib.,107, 1863; Bocli v. Wallace, U ib., 508, 1863; Ten Eyeh v. Mayor of KeoJcuIc, 15 ib., 486, 1868 ; Smith V. Henry County, 15 ib., 385, 1868; San- son V. Vernon, 37 ib., 28, 18Q9 ; OlMmberlain v. City of Burlington, 19 ib., 895, 1865; McOlure V. Owen, 36 ib., 348, 1868; Griffith v. Oommii- lionersof Cravyford County, 30 Ohio, 600, 1851 ; contra see ib.. Appendix A, per Hitchcock, J., alone; People v. Salem, SO Mich., 453,1870; Bay City v. State Treasurer, 33 ib., 490, 1871 ; Whiting i). SJuiboygan, etc. B. U. Co., 25 Wis., 167. 1870. 33. — Ch 448, private and local laws of 1867, authorizing the supervisors of a county (after an afl3rmative vote of the peopio of tlie county upon the question, and after certain portions of said company's road have been graded), to issue county orders in aid of the road, and levy a tax to pay such orders, the county not becoming a stockholder in the com- pany, held inviUid, as not a legitimate exercise of the taxing power. Whiting v. Sheboygan, etc. B. B. Co., 35 Wis., 107. 1870. 34. — The counties of Iowa have no power to burrow money or subscribe stock, to aid in the construction of railroads ; and the issuing of bonds by the counties, or the transfer of them by the corporations to whom they are issued, may be restrained by injunction. The case of Dubuque and Pacific B.B. Oo. v. Du- buque County, 4 G. Greene, 1, overruled ; State V. BissoU, ih., 828; Olapp v. Cedar County, 5 Iowa, 15; McMillan ii. Lee County, 8 ib., 311 and 391, and Bing v. Johnson County, 6 ib., 365, reviewed ; Stokes v. Scott County, 10 Iowa, 166. 18^9. 35.— The legislature of the state of Iowa has no power to authorize counties to become as corporations, stockholders in railway com- panies; and has never attempted by the pro- visions of § 114 of the Code of 1851, or other- wise, to confer such power; overruling Du- buque County «. Dubuque and Pacific B. 21. Co., 4 G. Greene, 1 ; and approving Stokes v. Scott County, 10 Iowa, 166 ; State ex rel. v. Wapello County, 13 ib., 388, 1863 ; Myers v. Johnson County, U ib.,47, 1863; McMillanv.Boyles,ih., 107 ; Bock V. Wallace, ib., 593 ; Smith v. Henry County, 15 ih., 885, 1863; Ten Eyck v. Mayor ofKeoleuk, ib., 486. 36. — The acts of 1855, regulating the issue of corporate bonds, regulated the exercise of a power which it was supposed had been already granted, but cannot be construed as an origi- nal grant of power. Ib. 37. — The legislature has no constitutional power to authorize a county to subscribe for stock in a railway company. Per ISpaldino, J., alone. Griffith v. Commissioners of Crawford ■ SUBSCRIPTIONS BY COUNTIES. 679 Proceedings. Oowiiy, 30 Ohio, 609. 1851. Contra, see ib., appendix A. Hitchcock, J., alone. 38. — money must be paid down. A county cannot, under § 6 of art. 10 of tlie con- stitution, take stock in any incorporated com- pany without paying the money down; and § 17 of the act of May 12, 1869, for aiding rail- roads, does not conflict with this provision of the constitution. Gommisnoners of Crawford County V. Louuville, etc. B. S. Co., 39 lud., 192, 1872. 39. County Courts. The powers of the county court of Shelby county, Ky., to sub- scribe for stock in a railway, determined with reference to the particular facts of the case. Shelby County Court v. Cumberland and Ohio B. B. Co., 8 Bush. (Ky.), 309. 1871. 40. Legalizing acts. A subscription of a county made without authority may be- come valid by subsequent legislative enact- ment. Ib. 41. — The power to subscribe to the capital stock of railway corporations, and to issue county bonds in payment of such subscrip- tions, having been conferred on counties, any defect in the exercise of the power may be cured by the general assembly. McMillan 8). BoyUi, 6 Iowa, 304, 1858; Same v. County Judge, ib., 391. 42. North Missouri R. R. Co. Section 14 of the charter of the North Mo. B. R. of 1851, authorized counties along the line of the road to subscribe thereto without sanction of a popular vote. Section 10 of the act of 1657, creating the Alexandria and Bloom- field R. R. Co. (Sess. Acts, 1856-7, p. 94), made said section 14 .a part of the latter charter. Smith o. County of Clark, 54 Mo., 38, 1873. 43. Notice. Section 119 of the Code does not require the county judge to give thirty days' notice of the adoption by a vote of the people of a proposition for subscrib- ing to the capital stock of a railroad com- pany. Ciapp V. Cedar County, 5 Iowa, 15. 1857. 44. Ratification. The levy of a tax and payment of interest, by the proper oounty au- thorities, validates in the hands of bona fide holders for value, county bonds irregularly issued in their origin. Supervisors v. Schenek, 5 Wallace, 773, 1866; See Marsh v. Fulton Oounty, 10 ib., 676, 1870. II. Peooeedings. 45. Consolidation. Where after a subscrip- tion had been legally authorized by votes, but not yet made, the railway company consoli- dated with another company, it was Tield that a subscription upon such election could not be made to the new company. Ch. 44, Laws of 1865, construed. State ex rel. v. iSema/ia County, 10 Kans., 569. 1873. 46. Control of proceedings. All the acts of county commisioners and the voters of a county, in taking steps to raise money to take stock in an incorporated company, are be- tween themselves, one the principal and the other the agent ; there is no contract with the incorporated company, nor has it any right in, or control over the matter, until the money is raised and the stock taken. Com'rs of Craw- ford County V. Louisville, etc., B. B. Co., 39 Ind., 193. 1873. 47. Election. The county judge possesses the power to submit to a vote of the people of the county, the question whether the county will subscribe to the capital stock of a rail- way company, whose road is to run through such county, and such vote is not in deroga- tion of law. Games v. Bobb, 8 la., 193. 1859. 48. — The failure of the county judge, or other officer, to comply with the directory provisions of the law regulating the manner of conducting the election, or their neglect to make proper entries, will not make the county treasurer a wrongdoer in the collection of taxes levied under such vote, if authorized by a proper warrant. Ib. 49. — Where a county issues its bonds to a railroad company, if there was reasonable certainty in the manner of voting and order- ing the subscription, and the subscription was made to the road authorized, and the oth- er provisions of the statute were complied with, such bonds are valid. Banney v. Baeder, 50 Mo., 600. 1873. 50. — The power given by § 6 of the act to incorporate the Platte City and Fort Des Moines R. R. Co. (Adj. Sess. Acts 1859-60, p. 443), to the county court of Platte county, to subscribe capital stock to said company, is by § 8 of the same act made subject to the gen- eral railroad law (R. C. 1855, p. 437, § 30). And the true meaning and efifect of this law is, that an election to ascertain the sense of the tax- 680 SUBSCRIPTIONS BY COUNTIES. Proceedings. payers as t. Commissioners of Foun- tain. County, id., 215. 69. — A vote taken upon a proposition to appropriate an entire sum to be apportioned between two railways, to aid in their construc- tion, by a county, is illegal, and the collection of the taxes levied in accordance therewith may be enj oined. Broneiiberg v. Commissioners of Madison Gounty, 41 Ind., 502. 1873. 70. — It is improper to submit more than one project to a vote at a time. Supervisors of Fulton County v. Mississippi and Wabash B. B. Co., 21 111., 838, 1859; People ex rel. v. Taze- well County, 22 ib., 147, 1859. 71. — notice. Where, under the act of March 15, 1870 (Wagn. Stat., 2d ed., 321, a), a county court ordered a special election to vote on a proposition to subscribe to the capital stock of a railroad, but no sufficient notice was given of the election, it was Tield, that an as- sessment against the landholders of the county, to meet the subscription ordered by the vote, would be unauthorized by law. That if the assessment had been warranted by law, the sheriff could not collect it under that statute by levy upon and sale of real estate ; and that injunction would lie to restrain the officer from making such sale. McPiJce v. Pen, 51 Mo., 63. 1873. 72. — The certificate of the sheriff, that he has posted notices of election in ten public places in the township, is not defective for not specifying the places. If, in fact, notices of an election be not posted in ten public places, as prescribed by the statute, the election will be invalid. Detroit, Eel Biver, etc.,.B. B. Go. V. Bearss, 39 Ind., 598. 1873. T'A, — Where the statute provides that in order to authorize a subscription, the propo- sition must receive a majority of all the quali- fied voters, taking the preceding governor's election as a basis, it is immaterial whether notice of the election is duly given or not. A failure to give such notice would only favor the negative voters. Hord v. Bogersville and Jefferson B. B. Co., 3 Head (Tenn.), 208. 1859. 74. — The notice of election must specify the amount of the appropriation, and not the per centum. 3 Ind. Stat., 389. Cincinnati, 682 SUBSCRIPTIONS Br COUNTIES. Proceedings. Wabash and Michigan B. R. Oo. v. Wells, 88 Ind., 539, 1872 ; Detroit, Eel River and Illinois R. R. Oo. V. Beam, ib., 598. 7 5. — order of county court. To authorize a county court to malie a subscription in aid of the Lexington and Big Sandy Railway, un- der the statute (Sess. Acts of 1851-3, p. 78B), it was necessary that the election for ascertain- ing the sense of the voters of the county as to the making of such subscription should Iiave been ordered by the county court, on the ap- plication of the officers of the railroad com- pany. And a vote taken in any other way did not authorize the subscription, by the county court. County Oourt of Fayette County ■». Lex- ington and. Big Sandy R. R. Co., 17 B. Monroe (Ky.J, 335. 1856. 76. — The payment by the county court to the officers who held the election without au- tliority, could not give validity to an election which was illegal. Ib. 77. — polls. The mere fact that the sheriflF failed, in a county election, to open the polls in one or more precincts, does not, of itself, invalidate the election. To have that effect, it must appear also by the facts, that such failure did, or might have aifected the general result of the contest. The onus in this respect is upon the contestants. Louisville and Nash- ville R. R. Oo. «. County Oourt, 1 Sneed (Tenn.), 687. 1854. 78. — representations. Such subscriptions are not invalid because made upon the repre- sentations of poi'sons interested in the com- pany. Lawrence County b. Northwestern R. R. Co., 33 Penn. St., 144. 1858. 79. — vote unnecessary. In mandamus against the county court of Nodaway county, to compel the issue of certain county bonds in payment of sliares of stock in the Missouri Valley R. R. Co. ; ?ield, 1, that the court might subscribe such stock without submitting tlie matter to popular vote (acts 1865, pp. 102-3) ; 3, that the fact that the road was not com- pleted in the time called for by the contract — there being nothing to show that time was the essence of the contract — would constitute no valid defense. If injury resulted from the de- lay, there might be an abatement in the shape of damages, but not an entire release from payment. Kansas City, St. Jos. and Council Bluffs R. R. Oo. V. Alderman, 47 Mo., 349, 1871 ; State ex rel. v, Nodoway Co. Court, 48 ib., 889. 80. Illei^al tax. A subscription of stock ordered by a county court to a lailway com- pany, before its articles of asssociation have been executed, or filed with the secrelai'y of state, is illegal and void. But where the county court orders a levy of a tax to meet the subscription, and the collector proceeds to enforce its collection, a tax payer cannot have his action to recover back the amount so collected from him. His- remedy is by pro- ceeding to arrest tlie execution of such illegal subscription, and the state: may, through her legal representatives, arrest the issue of the bonds. Rubey v. Shaiii, 54 Mo,, 307. 1873. 81.- Location. Where the charter of a railway company authorizes the counties "through which it may pass " to subscribe to its stock, a county lying between the two termini of the road may subscribe without waiting for the actual location of the route. Woods V. Lawrence County, 1 Black., 386. 1801. 82. — If the statute requires the grand jury to fix and approve the amount of the subscription, and authorizes the commission- ers to act on their report and make the sub- scription, if the law in these respects is com- plied with, the county is bound. Ib. 83. — In a suit to recover the arrears of in terest on bonds issued for such stock, it is enough to show that the manner and terms of payment were agreed upon between the com- pany and the commissioners. Ib. 84. Ratification. Where county bonds were issued without any authority, they are invalid in the hands of an innocent purchaser. Marsh v. Fulton County, 10 Wallace, 676. 1870. 85. — A ratification of an act can only be made by a person who possesses the power to perform the act ratified. Ib. 86. — In a suit to enforce the payment of bonds isssued by a county for stock in a rail- road company, although it appear that at the time the court authorized the subscription, no election had been held to ascertain the sense of the tax payers, yet, if it appeared that the county, by its authorized agent, had voted on its stock in such railway company for more than twelve years, such action of the county was, for the purposes of this suit, a waiver of the defects in the original subscription. Ba/r- rett V. Sehuyler Oounty Court, 44 Mo., 197. 1869. 87. Repeal of law. Certain counties were authorized by law to subscribe to the stock of SUBSCRIPTIONS BY C0UKTIE8. 683 Conditional Subscriptions. axailway company upon a vote of the major- ity of the holders of real estate in such coun- ties first being had. An election was accord- ingly held, and resulted in favor of the sub- scription. Before the subscription was actu- ally made, the law was repealed. Held, that the railroad company had not acquired any such vested rights by reason of such election as to entitle it to have the subscription en- forced. Comngtoii and Lexington B. B. Co. v. Kenton County Court, 12 B. Monroe (Ky.), 144. 1851. 88. — Under an act passed in 1849, stock was voted to the Ohio and Mississippi Kail- road Company, but the county commissioners did not subscribe the stock or i.3sue bonds till 1852. In 1851, a new constitution of the state of Indiana was adopted, which prohibited euch subscriptions, unless paid in cash, and prohibited the borrowing of money for that purpose. Held, that the mere vote to subscribe did not, of itself, form such a contract with the company as would be protected by the tenth section of the first article of the consti- tution of the United States. The contract was unexecuted until the subscription was made. Anpirimiill v. Commissioners of tlie County of Daviess, 22 Howard, 364. 1859. ' 89. — Where an act of legislature author- ized the subscription to the stock of a rail- way company, to be made by certain counties upon the recommendation of the grand jury being first made; lield, that all discretionary power touching the subscription was given exclusively to the grand jury, and they could not transfer any part of it to the county; com- missioners. That the recommendation of tlie grand juiy that an amount not exceed- ing a certain sum be subscribed, was not a compliance with the provisions of the act. The amount should have been designated. The law in force at the time that the proposal for a contract is made, is a part of it, and if the proposal is not accepted until after the law is essentially changed, such acceptance comes too late. Where the act authorizing the subscription provided that the acceptance of its provisions by the company should also be deemed an acceptance of another act im- posing certain restrictions on the corporation, and the latter act was repealed before the ac- ceptance of the subscription, and after the recommendation of the grand jury, the sub- scription could not not be subsequently made. Mercer County v. Pittsburgh and Erie B. B. Co., 27 Penn. St., 389. 1856. 90. — The commissioners having no power to make a subscription, cannot ratify one. lb: 91. Statutory requirements. Where money is raised for the purpose of taking stock in a railway company, the company cannot have any of the money until it has fully constructed the road, so that cars shall pass over the same ; and no one but a petitioner, or a tax payer, can have a mandate to compel the payment of the money. § 17, act of May 12, 1869. Com. missioners of Crawford County v. Louisville B. B. Co., 39 Ind., 192. 1872. III. Conditional subscriptions. 92. Expenditures required. The act of 1860 (Stat. 1860, 133), relative to the issuance of bonds in Butte county, requires that the actual expenditure and not the value of the work shall be considered in estimating the work. Cali- fornia Nortliern B. B. Co. v. Butte County, 18 Cal., 671. 1861. 93. ^- The county might refuse to issue the bonds if the required expenditure has not really been made. lb. 94. Power to make conditions. The act of March 12, 1852, authorizing jjolice juries to subscribe to works of internal improve- ments, and requiring the insertion in the ordinance of the number and amount of shares proposed to be subscribed, does not prevent the insertion of such other clauses and con- ditions as the police jury rhay think proper. The ordinance, if accepted at all, must be accepted according to its terms and condi- tions. Vicksburg, 87ireveport and Texas B. B. Co. V. Ouachita Parish, 11 La. An., 649. 1856. 95. Precedent conditions. Wliere the sub- scription was made upon condition that the county "was to receive for each bond as issued, a certificate for the same amount of slock in said company; " held, that the actual tender of the certificate of stock was not a condition precedent to the issue or delivery of the county bonds. State ex rel. Burlington and Missouri Biver B. B. Co. v. Wapello County, 9 la., 288. 1859. 96. — In an information for a writ of mandamus to compel the issue and delivery of such bonds, it is only necessary on the part 684 SUBSCRIPTIONS BY COUNTIES. Bonds. of the relator, to allege a roadiuess and willing- ness to issue tlie certificates when the bonds are delivered. lb. 97. Repeal of proviso. By a special act of the legislature, passed February 26, 184C, the county of K. was authorized to subscribe for stock in a railway company, pravided that no sale of the stock should be made except at par. The stock was accordingly subscribed for. By the act of May 1, 1853, the commis- sioners of ally county were empowered to sell railroad stock of counties on such terms as they might deem for the interest of the county. Held, that the act of 1853, by neces- sary implication, repealed the limitation on the power of sale imposed by the act of 1846. Commissioners of Knox County ■». McComb, 19 Ohio Stat., 820. 1869. 98. Route. The statute provided for the issuance of county bonds to a railroad com- pany, provided that it should build a road from Carson to Virginia, and that the line should run within 1,200 feet of French's mill. Held, that the building of the road between the cities named, but running 2,400 feet from French's mill, was not a compliance with the statute, although a branch was built to within 400 feet of French's mill. Virginia and TruclceeB. R. Co., v. Lyon Co., 6Nev., 68. 1870. 99. — Where the condition of a subscrip- tion is, that the railroad must pass a certain point, the road must pass that point or lose the subscription, even if it is impracticable to build the road in accordance with such con- dition, lb. 100. Time. The time within which a rail- way company must commence work upon its road in a county, in order to avail itself of an appropriation by the county, commences from the time when the order levying the tax is made by the board of county commissioners, and not from the time when the levy is placed on the tax duplicate. State ex rel. v. Wlteadon, 89Ind., 520. 1872. 101. — When a railway company fails to commence work in good faith upon the rail- road within one year ft-om the levy of the tax, the taxpayer is discharged from his obligation to pay the tax. lb. IV. Bonds. 102. Collateral. When county bonds have been deposited by a railway compiiny with its president, under an agreement with an ac- commodation indorsor, that the bimds should be held for the purpose of paying notes which had boon indorsed for the benefit of the com- pany, the president becomes a trustee, inde- pendent of his oflBcial character, and is per- sonnlly responsible for the execution of the trust. It is no defense for him to allege that he was directed by the corporation to make another disposition of the bonds. Wilkinson V. Stewart, 30 111., 48. 1863. 103. Coupons. In iin action upon coupons of bonds, issued by a county in aid of a rail- way, it is not necessary to aver the power of the county to make the contract. Code, § 108.» Bing v. Johnson Ootmty, la., 205. 1858. 104. — Where such coupons wore signed "by order of the county judge," etc., S. J. II., clerk, and no seal was attached; held, that the seal was not essential. lb. 105. — Where such coupons refer to ccrlain bonds, of which tliey form a pai-t, it is to be pre- sumcd that the bonds were properly executed and under seal. lb. 106. — Action may be maintained upon such coupons, without setting out the bonds in the pleading. lb. 107. Discount. Where bonds, issued by a county in payment of its subscription to the stock of a railway company, were sold below par, in violation of the statute authorizing their issue, the county may, by a proceeding in equity, compel the holder to receive in sat- isfaction of the bonds the sum paid by the first purchaser with interest thereon. The railroad company is not a necessary party de- fendant to such proceeding. Ai-mstrong County V. JBnnton, 47 Penn. St., 867. 1864. 108. — Where the law prohibited the bonds of counties from being sold by a railway com- pany at less than par, and the company sought to evade the provision by increasing the com- pensation of their contractors and paying them in tlio bonds, it was held, that this was a fraud on the counties, and entitled them to a rescission of the contract for the stock. Lawrence County's Appeal, 67 Penn. St., 87. 1870. 109. — In a suit brought upon the coupons of county bonds by a bonaflde holder, his right to recover is not affected by the fact that the railway company sold the bonds at a rate of SUBSCRIPTIONS BY COUNTIES. 685 Bonds. discount forbidden by its cliarter. Woods v. Lawrence Oounty, 1 Black, 386. 1861. 110. — Where a county or city issues bonds, payable to the bearer, under an act of assem- bly referred to on the face of the bonds, and those bonds pass into the hands of tona fide holders, for value, the county is bound to pay them. It is no defense that the restrictions and limitations of the law had not been for- mally complied with. Nor is it any defense that they were sold at less than par, although the act authorizing their sale provided that they should not be sold at a discount. Mercer Oounty V. Hachet, 1 Wallace, 83, 1863 ; Meyer v. City of Muscatine, ib., 384, 1863. 111. Guaranty. The defendant corpora- tion bad full power to guarantee the punctual payment of the coupons attached to the bonds of Allegheny county. Evans v. Cleveland and Pittsburgh JR. B. Co., 5 Philadelphia Rep. (Penn.), 5la. 1864. 112. Interest. Bonds should bear date and draw interest, as of and from the time when they should have been issued. Prettyman v. Supervisors of Tazewell Oounty, 19 111., 406. 1858. 113. — Where an act of assembly author- ized a county to subscribe to the capital stock of a railroad company, and provided that the bonds to be issued in payment therefor should not be sold under par; it was held, that the county was bound to provide for the accruing interest on such bonds, notwithstanding they had been disposed of below par ; and although there might be a remedy in equity as to a part of the principal. Commonwealth ». Commis- sioners of Allegheny County, 32 Penn. St., 218. 1858. 114. — By acts of assembly, a county was authorized to subscribe to the stock of a rail- way company, to issue bonds with interest and deliver them to the company in payment for the stock ; the company was authorized to re- ceive them on the terms of paying to the county, or its creditors holding the bonds, in- terest equal to the interest on the bonds. This was a promise to induce the county to sub- scribe, and the legislature could grant to both corporations power so to contract. PittshurgU and ConnellsviUe B. B. Co. v Alleg?ieny County, 63 Penn. St., 126. 1869. 115. — Payment of interest on stock, pe- riodically, out of the capital before earnings are made, is within the prohibition of a char- ter against paying dividends out of the capi-, tal. Ib. 116. — A railroad company was authorized to make a road between two points named, and to pay interest on installments on stock until the road should be completed. Interest is not payable beyond the time the road had been completed between these points. Ib. 117. — The company was afterwards au- thorized to extend its road to other points. Held, that this did not authorize it to pay in- terest until the road should be completed to these points. Ib. 118. — Bonds, with semi-annual coupons, were issued to the company by the county, in payment of stock, the company agreeing to pay the interest on the bonds. The county paid the interest, ffeld, that the company was liable for the interest on the coupons. Ib. 1 ] 9. — Under a judgment against the county, her stock was sold by the marshal. Held, that this vendee obtained the stock only, not a right to the Interest on the bonds. Ib. 120. Negotiability. Where a county, act- ing under an authority it supposed to be valid, subscribed to the stock of a railway company in good faith — issued its coupon notes in payment of such subscription — for 'a series of years voted on such stock and paid its cou- pons — and such notes passed into the hands of innocent and bona fide purchasers — it is estopped from asserting that such notes were illegally issued. Hannibal and St. Joseph B. B. Co. V. Marion County, 36 Mo., 294. 1865. 121. — In proceedings for m,andamus by the purchaser of certain bonds issued by Schuyler county court to the North Missouri R. R. Co., to enforce payment thereof; Jield, that although such bonds did not contain the words " value recived, negotiable and payable without defalcation," as provided by the act concerning " bonds, bills and notes " (R. C, 1855, ch. 21, g§ 2, 3), yet they imported a con- sideration and possessed the ordinary ele- ments of negotiable instruments ; and, in the hands of an innocent holder for value, before maturity, were not subject to antecedent equi- ties. The act concerning bonds, etc., had in view classes of paper not usually employed in banking and commercial operations, and not adapted or intended for such uses. It was not meant to embrace bonds put in circula- SUBSCRIPTIONS BY COUNTIES. Bonds. tion as commercial securities, to be sold and used by a railroad company in defraying ex- penses of its road. Barrett v Schuyler County Ocurt, 44 Mo., 197. 1889. 1 82. — A purchaser of coupon bonds in good faith is unaffected by want of title in the ven- dor. Murray v. Lardner, 2 Wallace, 110. 1884. 123. -^ Corporate bonds payable to bearer, have, in this day, the qualities of negoti- able instruments. The corporate seal does not change the case. Mercer County v. llacket, 1 Wallaice, 83, 1868 ; see State ®. Un- ion TowiuMp, 8 Oliio St., 894, 1858; State ex rel. V. Van Home, 1 ib., 837, 1857; Knox County v. Aspinwall, 21 Howard, 539, 1858; Supervisors v. Sehenok, 6 ib., 778, 1888. 124. — Bonds issued by a county in pay- ment of such subscription are negotiable. Olapp V. Cedar County, 5 la., 15. 1857. 125. — Whether tlie coupons have an exist- ence separate from the bond so as to be sued separately, ffufflre.' Ib. 126. — Though such bonds are negotiable, yet they are obligations executed by a public officer in the name of the county, and if is- sued without authority of law, they are not binding. Ib. 127. -^ The purchaser may rely upon the records of tlie county in relation to such bonds, and is not required to go behind such records to ascertain their truth. Ib. 128. — The purchaser is only bound to know that there is a law authorizing the issue of such bonds. Ib. 129. — And where it appears from the rec- ord, that pursuant to an order, a vote had been taken by the people of the county with regard to such bonds, it was 7ield, that th? purchaser of the bonds had the right to presume that the statutory notice was duly published. Ib. 130. — The fact that a county has sub- scribed for stock in a railway company can- not appear in the county records. Ib. 131. — Though the powers of a county judge are limited by law, yet he is a public officer, keeping a record; and strangers have aright, as against the county, to take that record as true. Ib. 132. — Railroad coupons are not rendered non-negotiable by the fact that they are not made payable to a particular person. Smith V. County of Ola/rlc, 54 Mo., 58. 1873. 133. — ft'aud. Fraud in the payee is no de- fense to negotiable bonds in the hands of in- nocent holders for value before due. Musca- tine V. Mississippi and Missouri li. B. Co., 1 Dillon (8 U. S. C. C), 530. 1870. 1 34. — Where a suit is brouglit upon a ne- gotiable instrument by an indorsee, a defense which goes to the original inducement and motive for the execution of the instrument is not available against the holder, unless it is proved that he had notice of the subject mat- ter of the defense. Clapp v. Cedar County, la., 15, 1857. 135. — Where fraud and misrepresentation in obtaining the bonds is relied upon as a de- fense against such bonds, it must be alleged and proved that the assignee is not a bona fide holder. Ib. 136. — A plea that the plaintiff is not a bona fide holder, without alleging how or why, is insufficient. Ib. 137. — pleadings. Where a county has power to issue bonds upon certain conditions, and the bonds have been issued and are in the hands of bona fide holders, the holder is not bound to allege, in his declaration, the facts showing a compliance with the conditisns on which the issue of the bonds is aulliorized. Railroad Co. v. Otoe County, 1 Dillon (8 U. S. C. C), 838. 1871. 138. — presumptions. The proposition to subscribe to the capital stock provided, that the money thus voted "should be expended only in the event of the railroad being con- structed and running centrally tlirough the said county;" it was claimed that the con- struction of the road, as provided in the con- dition, was a condition precedent to the issu- ing of the bonds. Held, that the clause was ambiguous and admitted of doubt as to whetli. er the word "constructed " did not belong to the word "centrally" as the wofd " running" did, making it mean, " constructed, and run- ning centrally." That the county judge hav- ing placed a construction on this ambiguity, by issuing the bonds, and that when tlie bonds had been issued, a purcliascr was warranted in presuming that the road had been built to the acceptance of the county. Clapp v. Cedar County, 5 la., 15. 1857. 139. — statute. Where an act authorizing certain counties to issue bonds in aid of a railway company provided that the bonds, 8UBSCRII TIONS BY COUNTIES. 687 Charter. ■when regular upon their face, should be deem- ed conclusive evidence of the regularity of all prelim ipary proceedings in the hands of a honajida holder, it was held, that where bonds, regular on their face, were issued and deliv- ered to a railroad company, ostensibly in pay- ment of a subscription of stocli, and have passed into the hands of a bona fide holder, they must, as to such holder, be regarded as issued and negotiated within the meaning of the act. Fraud as between the railroad com- pany and county commissioners cannot be pleaded against such holder. State ex rel. «. ConVrs of Hancock Co., 12 Ohio St., 596. 1861. 140. — An act of the general assembly pro- vided that the county commissioners of any county through or in which a railway might be located by a railway company, should be authorized to subscribe to the capital stock of the company, and issue negotiable bonds in payment of such subscription. An alter, native mandamus was awarded to require the commissioners to levy a tax to pay bonds pur- porting on their face to have, been issued in payment of such a subsci-iption, and to be payable to bearer, and which were stated to be held ,by the relator as a bond fide holder. The answer to the writ stated that the road had never been located through or in the country. Scld, on demurrer, to be a suflicient defense, as showing that the bonds had been issued illegally and without authority of law. Same v. Same, 11 Ohio St., 188. 1860. 141. ■— The act provided that bonds issued and negotiated by the commissioners, and regular on the face thereof, should, in the hands of the company, or of any bona fide holder thereof, be deemed and taken in all courts and elsewhere, as conclusive evidence of the regularity of everything required by the act to be done preliminary to the issuing and negotiation of such bonds. Reld, that to make bonds regular on the face thereof, such con- clusive evidence, and an estoppel to a defense showing a want of power in the commission- ers, there must be an averment that they had been " issued and negotiated by the commis- sioners." lb. 142. Place of payment. Counties and cities have no right to make bonds, issued in aid of railways, payable in the city of New York. People ex rel. v. Tazewell County, 22 111., 147. 1859. 143. Rescission. Butler and Lawrence counties, under the same act of assembly, each subscribed to the stock of a railway company whose road passed through their territory, and on the same terms and about the same time. Held, that there was no implication of a joint liability by the two counties, or of a liability to contribute for each other's losses. Law- rence County's Appeal, 67 Penn. St., 87. 1870. 144. — The counties having been declared to be entitled to a rescission of the contract, and the bonds of Lawrence county having been paid out by the company, the county ob- tained a decree for their value ; a large amount of Butler county's bonds were still in the com- pany's hands and she obtained a decree to have them restored. Held, that Butler county hav- ing a defense to the bonds on account of the fraud of the company, they were not assets for the payment of their debts, and Lawrence county, although a creditor of the company, had no standing in the, case and could not ap- peal, lb. 145. — Where a county issued bonds in payment of a subscription under an act which provided that the bonds should not be sold under par, and tlie company disposed of a large quantity of such bonds at 64 per cent. ; Jield, that the county was entitled to rescind the subscription, to have a return of the bonds remaining in the hands of the company, and to be paid the par value of those disposed of. Lawrence County v. Northwestern S. R. Co., 32 Penn. St., 144. 1858. 146. — The parties to whom such bonds were sold by the company are not necessary parties to a bill to rescind the subscription; nor are they within the original jurisdiction of the supreme court. lb. Y. Charter. 147. Amendments. Where a company was incorporated to build a railway across the state, as a continuous project under one man- agement, if the charter is afterwards amended so as to divide the project into three parts, to be under separate control, and no proper ac- ceptance of the change of charter has been manifested, subscribers to the stock will be released. Supervisors of Fulton County v. Mississippi and Wabash M. R. Co., 31 111., 338. 1859. 688 SUBSCRIPTIONS BY COUNTIES. Swamp Lands — Mandamus — Taxation. 148. —A railway company was organized to build a railroad from Warsaw to the east line of the state. Subsequently the charter of the company was amended so as to divide the road into three divisions, and each division was created a new and distinct company, in place of the old organization. Held, that a subscription made by a county to the original corporation could not legally be made to one of the three new companies. Marsh v. Fulton County, 10 "Wallace, 676. 1870. VI. Swamp lands. 149. Mortgage. The act of the Illinois legislature, of February, 1B55, chartering the Mount Vernon Railroad Company, authorized (other things permitting) the mortgage of the swamp and overflowed lands of Wayne county, Illinois, by tlie judges of the county court. Kenicott v. The Supervisors, 16 Wallace, 453. 1873. 150. Election. It is competent for the board of supervisors to call a special election for the purpose of submitting to the voters of the county the question of the ratification of a contract between the county and a railway company, under which the swamp lands of the county are to be conveyed to the company to aid in the construction of its road. Rev., § 986, et seq. Cedar Bapids and Missouri River R. R. Co. i). Boone County, 34 Iowa 45, 1871 ; see also Parks v. Iowa Central B. R. Co., 34 lb., 188, 1868. 151. — It is no objection to such election, that the question was not submitted to all the electors of the county, because at the time of the election a portion of them, to whom no submission was made, were engaged in the military service of the United States. Cedar Rapids and Missouri River R. B. Co. v. Boone 0. Greene County, 54 Mo., 540. 1874. 164. Estoppel. Where the issue of bonds without previous authority would be a mis- demeanor, by the oounty oflicers, it is to be presumed, though not conclusively, that the necessary conditions were fulfilled. And an estoppel would take place where the county had received the proper amount of stock for the bonds issued, and had held it for seven- teen years, and was actually enjoying it at the 44 time when pleading the want of authority to subscribe. Pendleton Oo. i>. Amy, 13 Wallace, 397. 1871. 165. Existence of Corporation. In an action brought upon a bond given by a county court in aid of a subscription for a railroad, the question, whether the corporation had a legal existence cannot be raised. The only proper way to test this question would be by qm warranto on the part of the state. Smith ». Oounty of OloA-h, 54 Mo., 58. 1873. 166. Fraud. An agreement to sell and transfer stock by a county to the amount of $30,000, for two dollars, is a fraud per se. Macoupin Oounty v. The People ex. rel., 58 111. 191. 1871. 167. Jurisdiction. In an action brought to recover upon coupons of railway bonds issued by a county court, the question, whether the amount sued on is sufficient to bring it within jurisdiction of the circuit court, is to be deterrdined by the aggregate amount of the coupons. Smith «. Oounty of Ola/rh, 54 Mo., 58. 1878. 168. Release. Municipal subscriptions to the stock of a railroad company, that had pre- viously released its private subscribers from their subscriptions, is not valid ; and a rescis- sion of the contract will be decreed on a bill filed for that purpose. Oramford Oounty v. Pittsburgh and Erie B. B. Oo., 32 Penn. St., 141. 1858. SUBSCRIPTIONS BY INDIVIDUALS. See AppBiLs; Assionment roB the BBSEnT or Cbbditobs; Chabtbb; Consolidatiok; Coktet- aitoe; Cebditoe's Bill; Damages; Domicil; Es- toppel; Evidence; Giihp; Limitations; Sbtopp; Stamps; Stock, and Stockholdeks. I. CONSIDEKATrON. II. Form of subscription. III. Mortgage. IV. Subscriptions payable in pbop- BRTT OR WORK. V. GoNSTBircTiON op contract op sitb- SCKIPTION. VI. Escrow. VII. Conditional «tjbsceiptions. VIII. Representations made to induce subscriptions. SUBSCRIPTIONS BY INDIVIDUALS. Consideration — Form of Subscription. IX. Location. X. Interest. XL Ratification. XIL Renunciation op subsceiption. XIII. Estoppel. XIV. OaaANizATioN of corpokation contemplated. XV. Consolidation. XVI. Partnership. XVII. Apportionment of stock. XVIII. Payment of first installment. XIX. Evidence. XX. Stock certificates. XXI. Assignment op stock. XXII. Assessments. XXIII. Changes in charter. XXIV. Increase in capital stock. XXV. Forfeiture of stock. XXVI. Fraud. XXVII. Release. XXVIII. Limitations. XXIX. PLEADINa AND PRACTICE'. XXX. RiOHTS OF CREDITORS. XXXI. Articles of Association. XXXII. SPECIAL CASES. XXXIII. Db facto CORPORATIONS. XXXIV. Miscellaneous. I. CONSIDEEATIOlir. 1. Constniction of road as a considerar tion for donation. If tlie construction of a railroad witliin some reasonable and certain time was the consideration inducing a party to convey land to a railroad company, the legis- lature has no power to release such com- pany from its obligation. Henderson v. Mail- road Company, 17 Tex,, 500. 1858. 2. — A promise to pay a railway company a sum of money, when it shall have construct- ed and put in operation its road between cer- tain points, is valid and supported by a suffi- cient consideration. Hose «. San, Antonio, etc., B. B. Co., 81 Tex., 49. 1868. 3. Mutuality. Where the commissioners, appointed to receive subscriptions, are em- powered to reject such subscriptions before the organization of tlie company, and do not do so, the contract is not void for want of mu- tuality. Oonneetimit and Pauwnpaio Bivers B. B. Co. V. Bailey, 24 Vt., 465. 1852. 4. Right of membership a sufficient con- sideration. The right of holding shares is a sufQcient consideration to support a promise to the corporation to take such shares and pay for them. Kennebec and Portland It. B. Co. V. Jarvis, 34 Me., 860, 1852 ; East Tennessee and Virginia B. B. Co. v. Qammon, 5 Sneed (Tenn.), 567, 1858 1 Lake Ontario and New Toi-k B. B. Co. V. Mason, 16 N. Y., 451, 1857; Thiffpen v. Mississippi Central B. B. Co., 32 Miss., 847, 1856 ; Lanbury and Iforwalk B. B. Co. v. Wil- son, 22 Conn., 435, 1858. 5. — A regular subscription, whether made previouis to the organization of the company or not, if it organizes as provided by the char- ter, imports in itself a sufficient consideration. Selma and Tennessee B. B. Co. v. Tipton, 5 Ala., N. S., 787. 1848. 6. State aid. A subscription made for the purpose of enabling a railway company to secure a subscription made by the state — construed. Wilmington and Baleigh B. B. Co. v. Boheson, 5 Iredell's Law (N. C), 891. 1845. II. FOEM OF SUBSCRIPTION. 7. Acceptanco of proposition. A subscrip. tion for a certain portion of capital stock, ou condition that a proposition made by the sub- scriber shall be accepted, which T«as in fact but the basis of a contract, but when drawn up in form was repudiated by thu subscriber as being variant from the proposition, is in- valid, although the general proposition may have been accepted by the corporation. Old- town and Lincoln B. B. Co. v. Veaxie, 89 Me., 571. 1855. 8. Assignment of shares to subscriber. Where the whole amount of stock subscribed for in a railway corporation did not exceed the capital to be raised, and the commission- ers received a subscription to the stock ft-om the defendant, and assented to his acting as a stockholder in the meetings of the corpora- tion ; it was Jield, that a formal assignment by the commissioners, of shares subscribed for by the defendant, was not necessary. Danbury and Norwalk B. B, Co. «. Wilson, 22 Conn., 435. 1853. 9. Charter prescribing form. The charter of a railway company prescribed a form in which subscriptions of stock should be taken, and also provided that the con-j]iany should have all powers incident to a corporation at common law. A subscription, after pursuing SUBSCRIPTIONS BY INDIVIDUALS. 691 Form of Subscription. the language of tlie form given, contained also additional stipulations, not inconsistent with those prescribed, and which by the common law, it would have been competent for tlie parties to make. Held, that the subscription was valid. Fisher v. Evansville and Graw- fordsville B. B. Co., 7 Ind., 407. 1856. 10. Contract to take and fill shares. An agreement to take and All a given number of shares in an incorporated company is equiva^ lent to a promise to take and pay for such shares. Penolseot and Kennebec B. B. Co. ». J)imn, 39 Me., 587. 1855. 11. — A contract made between the defend- ant and others, to subscribe for stock in a cor- poration, creates an obligation from tlie sub- scriber to the company. Kennebec and Port- land B. B. Co. V. Palmer, 84 Me., 367. 1852. 12. — A subscription to the capital stock of a railway company, whereby tlie subscriber promises to take five shares of the stock, sub- ject to the conditions, requirements, liabilities and benefits of the act. of incorporation, is equivalent to an express promise to pay for the stock, as it shall be called for by the di- rectors. Northern B. B. Co. v. Miller, 10 Bar- bour (N. Y.), 260. 1851. 13. — A simple agreement to "take " stock in a railway company imposes no obligation to pay for the shares. Belfast and Moosehead LaJce B. B. Go. v. Moore, 60 Me., 561. 1872. 14. — The construction of such agreement is not affected by the provision in the charter purporting to render the subscriber liable for the balance remaining due after a sale of his shares. lb. 15. — Nor will the right to recover be aided by a subsequent enactment. lb. in. — The defendant agreed in writing to pay the assessments on the delivery to him of certain mortgage bonds of the company. Held, that the delivery of the bonds was a con- dition precedent to the payment of the assess- ments. Tb. 17. Irregularity — waiver. The defend- ant had subscribed for additional stock, and his subscription was procured by the direct- ors, after the organization of the company, without the intervention of the commissioners named in the charter. The defendant had afterwards acted as a director. Held, that by so doing, he should be deemed to have waived all objection, if any existed, to the regularity of hij subscriptioij. Lane v. Brainerd, 30 Conn., 565. 1862. 18. Joint and several contracts. A sub- scription paper, by which the signers were severally but not jointly bound, was signed by A. as an individual and also as executor. Held, that the two contracts were separate, and separate actions might be properly main- tained thereon. Urie and New Yorh B. B. Co. fl. Patrick, 2 Abbott's Ct. of Ap. Dec. (N. Y.), 73. 1865. 19. — The obligation of each of several subscribers to the stock of a railway com- pany, where they all sign the same subscrip- tion agreement, must be construed to be sev- eral and not joint. Price v. Grand Ba/pids and Indiana B. B. Co., 18 Ind., 137. 1863. 20. Misnomer. Where a subscription is made to a corporation by a wrong name, such error in the name will not defeat a recovery on the subscription by the assignee thereof. Bacine Gounty Bank i>. Ayers, 12 Wis., 612. 1860. 21. Mistakes. A subscriber to the stock of a railway company can have no relief in a court of equity on the ground that when in- tending merely to renew an old subscription to the stock, which had fallen through, he, by some unaccountable mistake, subscribed for double the amount; such subscriber ascertain, ing his mistake immediately after his sub- scription, and suffering the company to or- ganize and act upon the faith of his subscrip- tion, during several months, without notice of his alleged mistake. Diman i>. Providence, Warren and Bristol B. B. Go., 5 R. I., 131. 1858. 22. Notice. Where the charter requires that the notice of the opening of the subscrip- tion books shall be given by certain persons named, the notice is sufficient if given by a majority of such persons. Penobscot B. B. Co. 11. White, 41 Me., 512. 1856. 23. Profits and losses. Wliere one-half of the stock subscribed had been called in and paid, and a resolution was subsequently adopt- ed by the directors, "that any stockholder who shall pay in an'tioipation a part, or the full amount due on the stock held by him, shall be entitled to a dividend thereon, in pro- portion to the amount so paid in," it was Tield, that the payment of the balance of his stock by any shareholder was not a loan, but the 692 SUBSCRIPTIOJSrS BY INDIVIDUALS. Mortgage — Subscriptions Payable in Property or Work. contract was in tlie nature of a partnersliip, entitling liim to a dividend in case of profits, but increasing his liability iu case of losses. Civil Code Art. 2773. Purton v. New Orleans and Carrollton B. B. Oo., 3 La. An., 10. 1848. 24. Recitals in contract of subscription. The signature to a subscription for stock in an alleged railway company reciting that a company had been formed under the general act, and that the articles of association, with the necessary affidavits, had been duly filed, is conclusive evidence of an incorporation against the subscriber. Black Biver and Utica B. B. Co. V. Clarke, 25 N. Y., 208. 1862. 25. Statute. It is not competent for the legislature to provide that a promise to sub- scribe a certain amount for a specified object, shall be deemed a subscription to the capital stock of a particular company. PiUsburgh and Steubenville B. B. Co. v. Gazzam, 32 Penn. St., 340. 1858. 26. Subscription books. Where a subscrip- tion is made in a small blank book, and is afterwards accepted by the railway company, it is not necessary that the same should be transferred to the stock books of the company ; and its acceptance would seem to make the book in which it was made the stock book of the company to that extent, and would make the contract of subscription complete, and no notice of acceptance need be given before suit. Brownlee v. Ohio, Indiana and Illinois B. B. Co., 18 Ind., 68. 1862. 27. — A subscription, unexceptionable in other respects, will not be rendered invalid by reason of not having been made in a book opened by the company for the purpose. Ash- tabula and Neio Lisbon B. B. Oo. «. Smith, 15 Ohio St., 328. 1864. 28. — A book containing subscriptions to the stock of a corporation for as many shares as the charter required should be subscribed for before any assessment should be laid, which came into the possession of the corpo- ration immediately on its organization, and has always been treated by it as showing the number of shares subscribed for, and on the faith of which the directors have laid an assessment, is prima facie evidence that the number of shares requisite for an assessment have been subscribed for. Marlborough Branch B. B. Oo. ■». Arnold, 9 Gray (Mass.), 159. 1857. 29. — Under the general railroad law of 1855, a railroad company was organized, with articles of association, which fixed the amount of capital stock, and named five commission- ers to open books for subscriptions to the stock. The commissioners, however, never opened such books, but a subscription paper was circulated by an agent appointed by the directors, and the plaintifi'in error subscribed a sum thereon, which he subsequently, on several occasions, promised to pay. Held, that the subscription thus made was not binding. Shurtz v. Schoolcraft and Three Bivers B. B. Oo., 9 Mich., 269. 1861. 30. — No persons but the commissioners could accept such subscription. lb. Ill, Mortgage. 31. Power to take mortgage for sub- scription. In the absence of any restriction, a railway company, authorized to accept sub- scriptions, has the power to take a bond and mortgage to secure the subscriptions made to its stock. Western Bank of Scotland v. TalU mon, 17 Wis., 5-30. 1863. 32. — The Racine, Janesvllle and Mississip- pi R. R. Co. was authorized, under its charter, to take a note and mortgage upon subscriptions to its capital stock. Andrews v. Ha/rt, 17 Wis., 297. 1863. 33. — Notice to a purchaser of such nole and mortgage before maturity, that they were given for stock, was notice of a lawful consid- eration, and did not impair his rights as a bo- na fide holder. lb. 34. — There was attached to the note and mortgage a bond of the company, guarantee- ing the payment of semi-annual interest, at a difierent place from that named in the note, and it was provided in the bond that the nolo and mortgage " might be transferred in con- nection therewith, but not otherwise." Held, that this guaranty did not afleot the negotia- bility of the instrument. lb. TV. Subscriptions payable in prop- erty OR work. 35. Construction. A contract of snbscrip- tion for railway stock, the payment to be made in work — construed. Eppes v. Mississippi, Gainesville aud Tuscaloosa B. R. Oo., 35 Ala N. S., 38. 1859. SUBSCRIPTIONS BY INDIVIDUALS. 693 Subscriptions Payable in Property or Work. 36. Demancl ; place of payment. Wlientlie place of payment was fixed by contract, and the time of payment not fixed, a demand should have been made ; and a resolution of the board of directors, calling for payment by installments, was not a suflicient demand when the subscription to the capital stock was pay- able in materials. Ohio, Indiana and Illinois B. B. Co. ». Cramer, 33 Ind., 490. 1864. 37. — The 8th section of the " act to provide for the incorporation of railroad companies " (1 G. & H., 507), authorizing notice to be given of calls for payment by installments of stock subscriptions, only includes money subscrip- tions, lb. 38. — Where a subscription to the capital stock of a railroad company is made payable in work and materials, and not in installments, the company cannot require payment in in- stallments by resolution of the board of direct- ors, lb. 39. Mistake as to powers of party receiv- ing subscription. A sale of stock by the com- missioner of contracts of the Lake Erie and Mad Biver R. R. Co., with a secret agreement that tlie plaintiff may receive land of the com- pany at a future day, and pay in the stock cer- tificate, entitles the purchaser of stock to re- cover back the money advanced, with interest, if the company refuse to execute the agree- ment. Weeden v. Lake Erie and Mad Biver R. B. Co., 14 Ohio, 563. 1846. 40. — Such a contract is an entire con- tract; and, if the company would retain the money, the land must be conveyed, on de- mand, according to the terms of the agree- ment, lb. 41. — The commissioner of contracts has no authority to make such agreement under the charter or by-laws, but if he and the plaint- iff acted under a mutual mistake as to his power, the law raises an implied promise on the part of the company to pay back the mon- ey and interest. lb. 42. Payment in land. A railway company may receive by voluntary grant or purchase, and hold real estate for the purpose of aiding it "in the construction of its railway." Me- Clure V. Missouri Biver, Ft. Scott and QulfB. B. Co., 9 Kans., 373. 1872r. 43. — A contract to convey real estate to a railway company for such purpose, provided it build a railway to a certain place, and locate its depot within a certain town, is not in con- travention of public policy, or void. lb. 44. — A subscriber for shares of stock in a railway company, which is not authorized by law to receive land in payment for its stock, cannot, in an action against the stockholders of the company by its creditors, set up or avail himself of the benefit of a collateral agreement between himself and the company, to the effect that the amount of his subscription was to be paid in land. Woble «. Clinton Line Extension B. B. Co., 30 Ohio St., 199. 1870. i 45. — Previous to the passage of the general railroad act of February 11, 1848, a railway company was chartered by a special act of the legislature, empowering the directors to trans- act all the business of the company, but did not expressly authorize subscriptions to the capital stock in real estate. The privilege was conferred by § 14 of the act of 1848, upon all railroad corporations then existing that might accept the power so conferred. After the passage of that act, the directors entered on the records of he company a resolution that subscriptions to the capital stock might be made in real estate. The company then received such subscriptions to its stock, and sold and conveyed the same to bona fide pur- chasers, with the knowledge of such subscrib- ers, and without (>bjection on their part, until many years after, when the stock had become worthless, and the enterprise for which the company was organized had been abandoned. Held, that in a suit by a subscriber, against a vendee of the company, to recover back the land conveyed by him to the company on such subscription, proof of the exercise of the privileges conferred in the act of 1848, by the company, under a resolution of the directors, and with the acquiescence of the parties to the suit, was sufficient evidence, as between them, of the acceptance of the powers conferred in that act. Goodin v. Evans, 18 Ohio St., 150. 1868. 46. — Suit was brought upon a subscription to the capital stock of a railway company, payable by the conveyance of a specific tract of land, and conditioned that in case the com- pany should decline to take the land at the price named, the subscription should be void. Held, that the subscription was a simple prop- osition to put in the land at the price named, and until accepted by the company, there was SUBSCRIPTIONS BY INDIVIDUALS. Construction of Coati'act of Subscription. no binding obligation upon tlio subscriber. Held, also, that the acceptance of the proposi- tion could only be made through the board of directors of the company, or perhaps, through an authorized agent. Held, also, that the consent of several members of the board, acting separately, and not shown to constitute a quorum, did not constitute a valid accep- tance of the proposition. Junction M. M. Col i>. Beeve, 15 Ind., 236. 1860. 47. — The directors of a corporation, alone, are, authorized to receive real estate, and hence it would seem that real estate subsci'ip- tions cannot be taken upon the preliminary articles of association ; but, perhaps the board, ?,ftor it is constituted, may receive real estate in payment of such preliminary subscrip- tions. State ex rel, v. Bailey, 16 Ind., 46, 1861 ; Matlock V. Indiana and Illinois B. B. Co., ib., 176: 48. — rescission. Where a corporation has, by the false representations of its agent, in- duced a subscriber to convey his land, and receive his stock certificates, before the con- dition of his subscription has been performed by the company, and the land has afterward been conveyed by the corporation to purchas- ers, with full knowledge of the condition, and its nonperformance, no action for rescission can be maintained against the company and its assignees, until a tender of the stock certi- ficates has been made to the corporation, con- ditional upon its procuring a deed of convey- ance of the land to the subscriber. Parks v. Evansville, Indianapolis and Cleveland B. B. Co., 23 Ind., 567. 1864. 49. Payment in property. The president of a corporation has the right to collect sub- scriptions to the stock of the corporation, and he having received payment of such subscrip- tions in property, the coriDoration is bound by his acts. East New York and Jamaica B. B. Co. V. Lighthall, 36 Howard's Pr, (N. Y.), 481, 1868; Bamie v. Same, 5 Abbott's Pr., N. S. (N. Y.), 458, 1868; Same v. Same, 6 Robertson (N. Y.), 407, 1868. 50. — Subscriptions made before the com- pany is organized must be unconditional. But after the organization of the company, conditional subscription may be agreed upon. Pittsburgh and OonnelUville B. B. Co. v. Stew- art, 41 Penn. St., 54. 1861. 51. — The act of the president of the com- pany in accepting such conditional subscrip- tions is binding on the company. Ib. 52. — A payment by the subscriber in cash on call, after a special contract that he might pay in materials, will not estop him from set- ting up that contract as a defense against a claim to the payment of the whole subscrip- tion in cash. Ib. V. Construction of contract of SUBSCRIPTION. 53. Change of amount of shares. Where the subscriber agreed to take two shares of $200 each, and the shares were afterwards fixed at $100 each, and the defendant made payments on the shares, after the change, he was held liable for four shares of $100 each. Kennebec and Portland B. B. Co. «. Palmer, 84 Me., 367. 1852. 64. Charter and statute. Subscribers for railway stock are presumed to know the pro- visions of the charter under which the sub- scription is taken. Wight v. Shelby B. B. Co., 16 B. Monroe (Ky.), 4. 1855. 55.— The law providing for the organiza- tion of railroad companies, and for receiving subscriptions to the stock thereof, enters into, forms part, and determines the effect of sub- scriptions, as fully as if it were written out and formed in terms, a part of the contract of subscription. Hoaglandv. Cincinnati, and Ft. Wayne B. B. Co., 18 Ind., 452. 1862. 56. — The charter of a railway company provided that no installments of subscriptions to its stock, after the first, should be called for until at least $500,000 of such stock should be subscribed. After subscriptions to the amount of $200,000 had been made, a contractor agreed with the company to construct its road, and to accept in part payment, on the com- pletion of the road, $300,000 in its capital stock. The contractor afterwards became in- solvent, and failed to fulfill his contract. Held, that such agreement was not a subscrip- tion to stock within the meaning of the pro- viso in the charter. New York, Housatonia, etc., B. B. Co. V. Hunt, 39 Conn., 75. 1873. 57. Locomotives. Where C, who was pres- ident of the Taunton Locomotive Co., sub- scribed to the stock of a railroad company, " payable in cash on the delivery of the last engine of twelve from the T. locomotive man SUBSCRIPTIONS BY INDIVIDUALS. 695 Escrow — Conditional Subscriptions. ufactory," Jield, in an action against C. for the amount of tlie subscription, that it was com- petent for C. to put in evidence a contract made by the Taunton Co. with the railroad company, on the same date with the subscrip- tion, for the delivery of twelve engines, and to show by parol that that was the contract re- ferred to in the subscription, and that all twelve of the engines referred to in it had not been delivered. Rutland and Burlington B. B. Co. V. Crocker, 4 Blatchford (U. S. C. C), 179. 1858. 58. Monadnock R. R. Co. A contract for a subscription to the stock of the Monadnock R. R. Co. — construed. Monadnock B. B. Co. V. Felt, 83 N. H., 379. 1873. 59. Sense in which words are used. The terms of a contract in writing must be under- stood in their plain, ordinary, popular sense, unless they have, generally, in respect to the subject matter, acquired a peculiar sense, dis- tinct from the popular sense; or unless the context shows that in the particular instance, in order to effectuate the immediate intention of the parties, they must be understood in some other and peculiar sense. Evansmlle, Indianapolis and Cleveland B. B. Co. ■». Meeds, 11 Ind., 373. 1858. 60. Stockholders to have privilege of tak- ing contracts for construction. Where tie article under which a railway company organ- ized provided that subscribers of stock should have the privilege of taking contracts of grad- ing the road, furnishing ties, etc., at the esti- mate of the engineer, and lettings of such work were publicly advertised to take place on a certain day, and the subscribers did not before or on that day, offer to take jobs, etc.; ?teld, that they could not afterwards claim the right to do so. Jolmson v. Crawfordsville, Frankfort, etc., B. B. Co., 11 Ind,, 280. 1858. VI. Escrow. 6 1 . Delivery without consent. Where a committee was appointed by the inhabitants of a town, to obtain subscriptions which were to be delivered to the company only upon cer- tain parol conditions; ?ield, that a member of said committee, acting as such, was not an agent of tlie railroad company in such a sense as to prevent his receiving the subscription list as an escrow; and if he delivered it to the company without the consent of the subscrib- ers, and without a fulfillment of the condi- tions, such delivery was not binding. Beloit and Madison B. B. Co. v. Palmer, 19 Wis., 574. 1865. 62. Must be held by third person. It is not a valid defense to allege that a subscription paper was delivered as an escrow, to become effectual on condition, when it was delivered to one of the commissioners appointed to re- ceive subscriptions to a railroad company. It should have been delivered to a third person to become effectual as an escrow. Wight v. Shelby B. B. Co., 16 B. Monroe (Ky.), 4. 1855. VII. Conditional subsceiptions. 63. Agent; powers. The act of an agent taking a conditional subscription, being re- cognized by the corporation, by receiving and registering the subscription among the condi- tional subscriptions, was equivalent to a pre- vious appointment of the agent for that pur- pose. Taggart v. Western Maryland B. B. Co., 34Md., 563. 1866. 04. Charter. Subscriptions to the stock of a railway company may be collected, although the construction of a road has been com- menced before twenty per cent, of such share subscribed has been paid in, contrary to the provisions of the charter. Agricultural BrancJi B. B. Co. V. Winchester, 13 Allen (Mass.), 39. 1866. 66. Commissioners. Conditions attached to stock of a railway company by the commis- sioners appointed to receive them, preparatory to the procurement of a charter are not bind- ing. Bedford B. B. Co. v. Bowser, 48 Penn. St., 29. 1864. 66. — Under the act of 1849, the commis- sioners have no right to receive conditional subscriptions. If such subscriptions are made, they are binding and the conditions are void. Pittsburgh and Steubemille R. B. Co. v. Wood- row, 3 Philadelphia Rep. (Penn.), 271. 1858. 67. Compliance with conditions. The ob- ligor in a conditional contract is bound to perform his agreement, if the conditions speci- fied have been complied with. Wear v. Jaclc- sonville and Savannah B. B. Co., 24 111., 593. 1860. 68. — Conditional subscriptions to a rail- way companj-, not inconsistent with the terms 696 SUBSCRIPTIONS BY INDIVIDUALS. Conditional Subscriptions. of a charter, are binding if the conditions are performed. Menderton, and Nashville B. B. Go. V. Lemell, 16 B. Monroe (Ky.), 358. 1855. 69. — Suit was brought upon a subscription of stock, conditioned that tlie railway should be located on a given line; and providing that such location should be sufBciently evidenced by an order of the board of directors accepting said subscription on the condition named therein. There was no evidence of such an order having been made ; but the road had, in fact, been so located and built, and the sub- scriber linew it. Held, that the stipulation in the subscription, by which an order of the board of directors was to be accepted as evi- dence of the required location having been made, did not preclude other evidence of the fact ; and that the actual construction of the road was the best evidence of a compliance with the condition. Moore v. New Albany and Salmi B. B. Co., 15 Ind., 78. 1860. 70. Contract to take stock off of subscrib- er's hands. Where a contract was alleged to have been made, by which the agent of a com- pany bound himself to a party subscribing for stock, to take it off his hands at the expiration of a certain time; Jield, that to be binding, such a contract should have been reciprocal, so that either party could enforce it. Vieks- hurg, Shreveport and Texas B. B. Co. ■». Terry, 13 La. An., 419. 1858. 71. Damages on breach of condition. Where a conditional subscription was paid by the transfer of land to the company, before the condition was performed, and the company failed to construct the road according to the condition, but transferred the land to an inno- cent purchaser, Tield, that in an action by the subscriber against the company, the measure of damages would be the value of the land at the time it was transferred to the company. Jewett V. Lwujrencebwrgh and Upper Mississippi B. B. Co., 10 Ind., 539. 1858. 72. Estoppel. A commissioner, appointed to receive subscriptions to the stock of a rail- road company, subscribed for a certain num- ber of shares in his own name, and united with the other commissioners in a certificate to the governor, on which letters patent were issued, that the subscriptions "were in all respects made and taken in good faith, and agreeably to the provisions and requirements of the acts of assembly and the laws of the common- wealth ; " field, that he was estopped from show- ing that it was made on a condition that had not been complied with, in locating the road. Bavington v. Pittsburgh and Steubenville B. B- Go., 34 Penn. St., 358. 1859. 73. — Such subscription must be deemed absolute, for the condition is a fraud on the commonwealth, as well as the other subscrib- ers, lb. 74. Evidence. When a subscription is made on condition that a certain number of shares shall be subscribed for before the corporalion shall be organized, the records of the proceed- iags of the company are competent and prima facie evidence that the condition has been per- formed. Penobscot and Kennebec B. B. Co. w. Dunn, 39 Me., 587. 1855. 75. Fraudulent conditions. Though a con- ditional subscription maybe admitted, yet pri- vate arrangements, not expressed in the sub. scription, between an agent of a company and a subscriber, by which he is to have peculiai- privileges not extended to other subscribers, or by which hfs subscription is not to be col- lected — being made to induce otliers to sub- scribe — are regarded as fraudulent on other subscribers, and are no defense to a suit for the amount subscribed. New Albany and Salem B. B. Go. V. Fields, 10 Ind., 187, 1858; Same v. Slaughter, ib., 318; Emnsville, Indianapolis and Cleveland B. B. Co. v. Posey, 13 ib. 363 1859. 76. Grant of right of way. In an action upon an instrument, by which the defendant promised to pay a certain sum to A., B. and C, in trust, to be expended within a county named, in constructing a railway within cer- tain limits, the persons named to select the corporation which should have the benefit of the subscription, an answer that when the in- sti-uraent was executed by tlie defendant, it was agreed that if the railroad was located through the farm of the defendant, he should have the choice of paying the sum subscribed or giving the right of way to the corporation, and that he had given such right of way, which had been accepted by the company, was held a sufc ficient defense, as an accord and satisfaction. It was also held good on the ground that A., B. and C. held a power not coupled with an interest, and the power could be revoked be- fore execution and the acceptance thereof by the corporation. Svansville, Terre Haute SUBSCRIPTIONS BY INDIVIDUALS. 697 Conditional Subscriptions. and Chicago B. M. Co. v. Wright, 38 Ind., 64. 1871. 77. Guaranty against loss. An agent, for the purpose of procuring a subscription, upon tailing from a subscriber a note for his stock secured by a mortgage, gave to him an instru- ment by which the company guaranteed him against loss upon his stock. The agent was authorized to execute such an instrument. Af- ter the stock became entirely worthless, the complainant filed a bill to foreclose the mort- gage. The defendant filed an answer and a cross bill, setting up these facts, and praying a cancellation of the notes and mortgage. Held, that the defense would have been good against the company, and that as the complain- ant claimed the note and mortgage under an instrument which did not operate to transfer tlie legal title to him as an assignee under the statute, he occupied the same position as the company. Peck v. Bligh, 37 111., 317. 1865. 78. Impossible condition. A subscription, made July 5, 1855, provided that a subscriber might forfeit his stock after paying one-third of the amount, provided he should give notice of his intention prior to July 1, 1855. Held, that such notice being Impossible, the condi- tion did not exist. Hacine Oounty Bank v.Ay- ers, 13 Wis., 513. 1860. 79. Increase of capital stock. A railway company voted to issue 600 additional shares, and to allow each stockholder to take one new share for every two shares already held by him, provided he should by a certain day subscribe therefor, and pay a part of the price, and give notes for the remainder, ffeld, that there was no implied condition that the whole number of six hundred new shares should be issued; and that the failure of the corporation to issue that number was no ground for maintaining an action by a stockholder to recover back money so paid by him, nor for defeating an an action on notes so given by him. Nutter v. Lexington and West Cambridge B. B. Co., 6 Gray (Mass.), S5. 1856. 80. Interest. The plaintiff's charter re- quired that 10,000 shares of stock should be subscribed before any assessments should be made. That number of shares was subscribed for, but the subscription contained a condition that interest should be paid by the corporation on all sums assessed and paid in, from the time of payment until the railroad should be I put in operation. Held, that this condition was not a violation of the said requirement of the charter. Rutland and Burlington B. B. Co. V. Thrall, 35 Vt., 536. 1863. 81. — A condition, annexed to a subscrip- tion, which provides for a dividend by way of interest, to each paying subscriber, until the full completion of the road, is illegal and against public policy. Troy and Boston B. B, Co. V. Tibbits, 18 Barbour (N. Y.;, 397, 1854; see Same v. Same, 11 Howard's Pr. (N. Y.), 168, 1855. 82. Location and time as conditions. After the passage of the act incorporating the .plaint- iff as a railway company, the defendants signed a paper by which they agreed to take stock in the company, "provided said road comes to Columbia." A subscription book was afterwards opened, but they did not sub- scribe stock and refused to pay upon their agreement. It was held that they were not liable as stockholders, for the reason that they had not taken the stock, and that they were not liable on their agreement to subscribe, as the company had not been organized under its charter when the agreement was signed. Charlotte and South Carolina B. B. Co. v. Blakeley, 3 Strobhart's Law (So. Car.), 345. 1848. 83. — A subscription conditioned that the railway shall be located over a certain route cannot be collected if the condition is not complied with. Nashville and Northwestern B. B. Co. V. Baker, 3 Coldwell (Tenn ), 574. 1865. 84. — Where a subscription is made on con- dition that " the town of JPairfield is made a point on said road, and said road is put under contract in one year from the 1st day of Sep- tember, 1853 ; provided, also, that said stock is not to be called in faster than five per cent, per month on the whole amount, and no in- stallment is to be called in on said stock until the whole road from Burlington to Fairfield is put under contract, with conditions to be built within twenty months from the time of letting such contract." Held, that putting the road under contract within the time named, and with the conditions specified, was a condition precedent to the right to recover on the con- ti'act. That the completion of the road by Sept. 1, 1858, without the letting of the con- tract stipulated in the condition precedent, 698 SUBSCRIPTIONS BY INDIVIDUALS. Conditional Subscriptions. was not a sufficient compliance to enable the company to recover on the contract. Burling- ton and Missouri Biver B. B. Co. ■». Boeatl&r, 15 la., 555. 1864. 85. — In 1853, M. subscribed for twenty- shares in the P. and C. R. R. Co. on the ex- press condition that the company should " lo- cate and construct its road " along a certain route. He paid one installment and a part of a second, but delayed the payment of the bal- ance, until the company suspended operations. The road had been located as required, but had not yet been constructed. Held, that the construction was not a condition precedent. That the company having located its I'oad as agreed upon, the defendant could not complain that it had not been constructed, when he himself had refused performance of his con- tract. Miller v. Pittsburgh and OonnellsmlU B. B. Oo., 40 Penn. St., 237. 1861. 86. — The undertaking was that the sub- scription should be paid in accordance with the calls, and upon the part of the company that the location should be made as stipulated, and that the construction should proceed as fast as possible. lb. 87. — Tlie suspension of work, long after defendant's stock became due, was no defense to the action, lb. 88. — Where a subscription was made to the capital stock of a railroad company, upon con- dition that the final location of the road should be upon a certain route, the permanent location of the road contemplated by the con- tract was held to be the adoption by the direct- ors of the route mentioned. Smith v. Allison, 23Ind., 380. 1864. 89. — Where railroad stock is subscribed for, with a proviso that the " road shall be built" in a specified locality, the permanent location of the road in the place designated is a sufficient compliance with the condition to make the subscriber liable for calls on his subscription. Warner v. Oallender, 20 Ohio St., 190, 1870; Swartwout v. Michigan Air Line B. B. Oo., 24 Mich., 889, 1872. 90. — Where a subscription is made on con- dition that the railway shall " pass " through a certain county, the construction of the road through such county is not a condition prece- dent to the collection of the subscription ; it is sufficient if the road be thus permanently lo- cated. Noi'th Missowi B. B. Co. ■». Winkler, 29 Mo., 818, 1860; Ashtabula and New Lisbon B. B. Co. V.Smith, 15 Ohio St., 328, 1864; Cham^ berlain v. Paiiiesville and Hudson B. B. Co., ib., 225. 91. — The appellant, with others, agreed to pay to the Maysville and Lexington R. R. Co., on each share of stock subscribed by them, upon condition that said railway should be so located and constructed as to make the town of Carlisle a point, " at such times and places as mjiy be required by the board of directors." Held, that the subscribers were bound to pay their subscriptions upon the location of it so as to make Carlisle a point, and that its con- struction by the company was not a condition precedent. McMillan v. Maysville and Lexing- ton B. B. Co., 13 B. Monroe (Ky.), 218. 1854. • 92. — The failure of the company to com- plete the Maysville and Lexington railroad did not have the effect to release the subscrib- ers for stock from the payment of their sub- scriptions as they may be necessary to pay debts incurred. Ib. 93. — A subscription was made with the condition that it should be payable "if the road was built through the village of P," Held, that the condition was complied with when the road was in good faith located and de- signed to be built tlirough that village, and a portion of the route built, although none of the road was completed. Woonsocket Union B. B. Co. V. Sherman, 8 R. I., 664. 1867. 94. — It is not a good defense to an action brought upon a stock subscription, to aver that at the time the subscription was made, the soliciting agent of the company agreed in writing, separate from the contract of sub- scription, that if the citizens of a named place and vicinity would subscribe a given sum to such stock, the proposed road should be lo- cated within a given distance of such place, and that such subscription should be expend- ed on a certain part of said road, and that the subscription was made in consideration of such agreement, and that said agreement was not performed by the company. Brownlee «, Ohio, Indiana and Illinois B. B. Co., 18 Ind 68. 1862. 95. — The condition in the subscription in this case was that the road should be located within 20 rods of St. Omcr. Held, that the meaning was, that the road should be con- Etructed to run within 20 rods of St. Omer SUBSCKIPTIONS BY INDIVIDUALS. Conditional Subscriptions. Jewett V. Lawreneehurgh and Mississippi iJ. M. Co., 10 Ind., 539. 1858. 96. — The articles of association of a rail- way company provided that the road should extend through portions of the counties of Monroe and On ario. The defendant sub- scribed these articles for stock. After he had subscribed the articles, the road was con- structed without passing through, or touching, either of the counties of Monroe or Ontario. Held, that this was a substantial departure from the contract, and one which released the de- fendant from his obligation to pay his sub- scription. Buffalo, Corning and New York M. B. Co., V. Pottle, 23 Barbour (N. Y.), 21. 1856. 97. — Where subscribers promise and un- dertake to paya railroad company a certain sum or sums if it will build its road to a designated place, the subsequent completion of the road, according to the terms of the promise, furnishes in itself a consideration, removes the objection of want of mutuality in the contract and renders the promise of the subscribers binding. Des Moines Valley JR. B. Co. V. Graf, 27 la., 99. 1869. 98. — Defendants as a committee acting for citizens of Pella, entered into a contract to furnish riglit of way, depot grounds and cattle yards, and to obtain subscriptions in accord- ance with the blank notes furnished by the company for that purpose, to the amount of $10,000, provided the company should run its road through Pella. Defendants accordingly obtained a large amouut of notes conditioned to be void if trains were not running to Pella on or before a certain date. The road was not completed to Pella till about two and a half moatJis after the required time. In an equit able proceeding by the company to compel tlie defendants to disclose the names of each subscriber and the amount of his subscription, and to deliver over the notes to the company, it was lield on demurrer to the petition, that the said facts entitled the plaintiff to the re- lief sought; that the defendants were trustees and not entitled to interpose the defense which l^roperly belonged to the subscribers; that the notes were not void because the road was not completed within the stipulated time. lb. 99. — commissioners. The commissioners to receive subscriptions to the stock of a rail- road company, under the act of Feb. 19, 1849, can only receive unconditional subscriptions. Subscriptions made to them on condition that the road shall be located on a certain route will be deemed absolute, the condition only is illegal. Pittsburgh and Steubenville R. B. Co. V. Biggar, 34 Penn. St., 455. • 1859. 100. — depot. Where a subscription was made for stock in a railway company, payable at such times, and in such installments, 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. Seld, I. That on the permanent location of the road, in accordance with the terms proposed, the subscription became ab- solute. II. That the provision in relation to tlie erection of the buildings, was a stipulation merely, and its performance was not a condi- tion precedent to the right to collect the amount of the subscription. III. 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 his stock, was prima facie a waiver of con- ditions precedent. Chamberlain «. Painesville and Eudson B. B. Co., 15 Ohio St., 225. 1864. 101. — A condition as to the location of a depot does not invalidate a subscription. Bacine County Bank v. Ayers, 13 Wis., 512. 1860. 1 02. — Certain persons entered into a con- tract in the following form: "We, the sub- scribers, bind and obligate ourselves to sub- scribe to the capital stock of the North Mis- souri E. R. Co. the sums set opposite our names, one-half the amount to be paid in six months, and one-half in twelve months from this date, on condition that a depot is located on the land of D., which adjoins High Hill. This subscription is made to comply with the terms on which the directors of said company have made the location of a depot on said D.'s land." Held, that this was a subscription iv, presenti, and not a mere agreement to sub- scribe in future ; that the subscription became absolute upon the location of the depot at the designated place. North Missouri B. B. Co. V. Miller, 31 Mo., 19. 1860. 103. — evidence. If a subscription of stock in a railway company is conditioned that the road be located on a certain route, the plaintiff may prove, in a suit upon it, that the defendant owned land upon that route. Va/w- 700 SUBSCRIPTIONS BY INDIVIDUALS. Conditional Subscriptions. ter V. Ohio and Mississippi B. B. Co., 14 Ind., 174. 1860. 104. Membership of corporation. A mere subscription of stoclc does not make tlie sub- scriber a member of the corporation ; especi- ally so, when such subscription is conditional. 0/mae v. Sycamore and Oourtland B. B. Oo., 88 111., 315. 1865. 105. — Where a subscription is made upon conditions the subscriber is not a stockholder, and consequently not liable upon his agree- ment, until the condition is performed; and whether it has been performed is a question of fact. Jewett v. Lawrenceburgh and Upper Miss- issippi B. B. Oo., 10 Ind., 539, 1858 ; Bvansville, Indianapolis and Cleveland B. B. Oo. v. Shearer, ib., 244, 1858; Shearer v. Bvansville, Indian- apolis and Cleveland B. B. Co., 13 ib., 453, 1859. 106. — Under the provisions of the statute (Session Acts of 1849-1850, § 34), the president and directors of the Maysville and Lexington B. R. Co. had a right to make a conditional sale of the stock to the subscribers. The sub- scribers did not become stockholders until they performed the condition on which their sub- scriptions were made. McMillan v. Maysville and Lexington B. B. Oo., 15 B. Monroe (Ky.), 318. 1854. 107. Memorandum. In the absence of proof as to the time when a memorandum was added to the formal subscription, the presump- tion would be that it was there when the sub- scription was made. Bobinson v. Pittsburgh and Oonnellsville B. B. Oo., 33 Penn. St., 384. 1858. 108. Notice. Upon the acceptance of a conditional subscription by the entry thereof by the company upon tie record, the contract of subscription is complete and absolute, and the subscriber is a stockholder ; and no notice from the company is necessary before bringing suit upon the subscription. New Albany and Salem B. B. Oo. v. McOormich, 10 Ind., 499. 1858. 109. — But if notice of the location accord- ing to the conditions were necessary, an agree- ment that the kind of notice named in the con- tract should be sufficient, would not render in- valid any other kind of notice which might be in itself sufficient in point of fact. Ib. HO. — The terms of payment contained in the resolutions subscribed were, that one dollar be paid in hand on each share, at the time of subscribing, and that 10 per cent, on each share be paid every sixty days after the work shall be put under contract. The work was put under contract in 1850; but there was no evidence that the defendant had notice of that fact, nor that any call had been made for the payment of installments, or payment demanded, though the declaration alleged such demand. Held, that such notice was not necessary. Breedlove v. Ma/rtinsville and Franklin B. B. Co., 13 Ind., 114. 1859. 111. Other subscriptions required as a condition. A party, subscribing on condition that a certain amount of stock shall be sub- scribed, cannot be made liable until it is sliown that this has been complied with, and that tlio installments had been called before suit. Phil- adelphia and Westchester B. B. Oo. v. Hickman, 38 Penn. St., 318. 1857. 112. — An error in making the call before the liability accrued may be corrected by a subsequent call, made after the condition was fulfilled, and before suit brought. Ib. 113. — No greater evidence is required to prove such subscription than is required to prove the other subscriptions. Ib. 114. — A subscription paper for shares in a railway company, which provides that the as- sessments may bo laid " when 3,000 shares shall have been subscribed," does not authorize tlie laying of an assessment until the stipulated amount has been unconditionally subscribed, payable in cash. Troy and Qreenfleld B. B. Oo. V. Newton, 8 Gray (Mass.), 596. 1857. 115. — Where the defendant subscribed for stock, on the condition that not less than a cer- tain sum should be subscribed, it was held, that he could not show that the subscribers were not pecuniarily responsible, though ho might show that the subscriptions were not made in good faith. Penobscot B. B. Oo. ■». White, 41 Me., 513. 1856. 1 1 6. — A subscription to the stock of a rail- way company, conditioned to be paid when the sum of $5,000 was raised for a certain pur- pose, is a conditional contract. Ohase v. Syca- more and Oourtland B. B. Oo., 38 111., 315. 1865. 1 1 7. — On the 19th of January, 1860, the de- fendant, a resident of Montpelier, subscribed for 100 shares of the stock of the plaintiff cor- poration, of $100 each. At a legal meeting of the commissioners of said corporation, of whom the defendant was one, held December SUBSCRIPTIONS BY INDIVIDUALS. 701 Conditional Subscriptions. 20, 1869, the defendant, in presence of said com- missioners, annexed tlie following written con- dition to his subscription: "Condition that good and responsible individuals in Montpe- lier shall subscribe $50,000 within one year from above date, and a list of subscribers, and amount of each, given me January 19, 1870." Held, that the true meaning of said condition was, that the amount of the defendant's sub- scription was to be counted towards the $50,- 000 named therein. Montpelier, etc., R. R. Oo. V. Langdon, 45 Vt., 137. 1873. 118. Parol conditions. Contemporaneous parol representations cannot be set up as a de- fense to an action on a contract of subscription to the stock of a railway company, when it is not shown that they were omitted as condition s in the written contract by some fraud of the plaintiff, or by accident or mistake. Jack v. Naher, 15 la., 450, 1863 ; Gedar Bapida and Mis- souri River R. R. Co. v. Wilktts, ib. 119. — The appellee was authorized by its charter to construct a railway from Lawrence- burgh to Indianapolis, by way of Greensburgh, with a branch from the latter place to Milford. The appellant, a citizen of Milford, made an unconditional subscription to the stock of the company, and paid it out; the company prom- ising that tlie branch should be made to Mil- ford, which had not been done at the com- mencement of this suit. The appellant took and still holds his certificate of stock without any offer to cancel, or assign it to the compa- ny. Suit was brought by appellant to recover the money. Seld, that the parol promise to construct the branch to Milford could not be proven as a part of the written contract of sub- scription; and hence, the money paid could not be recovered on the ground of a breach of contract.. Held, also, that a recovery could not be had on the ground of fraud ; the parol prom- ise and representation beiiig, under the circum- stances, no more than the expression of an ex- isting intention to make the branch. McAllis- ter V. Indianapolis and Cincinnati R. R. Co., 15Ind., 11. 1860. 120. — Parol agreements, made at the time of subscribing for stock, and inconsistent with the written terms of subscription, are inadmis- sible, inoperative and void. Connecticut and Passumpsio Rivers R. R. Co. v. Bailey, 24 Vt., 465, 1852 ; Worth Carolina R. R. Co. v. Leach, 4 Jones' Law (N. C), 840, 1857; Cunningham V. Edgefield and Kentucky R. R. Co., 2 Head. (Tenn.) 23, 1858. 121. — It is no defense to an action, to re- cover the amount of a subscription to the cap- ital stock of a company, that it was made at the request of the president of the company, with the understanding that the defendant was not to pay for or hold the stock subscribed, and the same was to be canceled. Robinson v. Pittsburgh and Connellsville R. R. Co., 32 Penn. St., 334. 1858. 1 22. — Such an agreement would be a fraud on all subsequent subscribers. Ib. 123. — A written subscription for stock in a railroad company was shown to have been conditional by parol evidence. Notice had been given, and an order of court made, to ob- tain the production of the subscription on the ti'ial ; but it was not produced. The question as to the admissibility of such evidence was not presented in this court. Held, that the evi- dence was entitled to full weight. Jewett v. Lawrenceburgh and Upper Mississippi R. R. Co., 10 Ind., 539. 1858. 124. Place of expending subscription. A condition in a subscription that it shall be ap- plied to the construction of a particular por- tion of the road is not agaihst public policy, and does not invalidate the subscription. Mil: waukee and Northern Illinois R. R. Go. ■». Field, 12 Wis., 340. 1860. 125. — The defendant signed a paper, by the terms of which he agreed "to take the number of shares in the New York and Boston R. R. Co., set opposite to his name. Opposite his signature was set the number of the shares and the amount. Appended to his signature were these words : " To be expended between the Connecticut river and the east line of the state." The defendant accepted the office of . director and acted as such. Held, that in view of this fact, the defendant must be deemed to have intended to become at once a stock- holder; and that the words appended to his signature were intended by him, not as a con- dition precedent, upon the performance of which he would become a stockholder, but merely as a direction that the amount he was to pay should be expended east of the river. Held, also, that even if the words did consti- tute a condition precedent, it could be waived by him, and that his acting as a director would be a waiver. Lane v. Brainerd, 30 Conn., 565. 1862. 702 SUBSCRIPTIONS BY INDIVIDUALS. Conditional Subscriptions. 126. — A subscription provided tliat tlic money subscribed sliould be expended in the construction of tlie road from St. J. to Derby Line, and also tliat it should not be binding until the whole road from St. J. to Derby Line should be put under contract for , grading. Held, that this was not a mere description of the road, requiring the whole to be put under contract before the subscription was payable, but that it created an express condition to the validity of the subscription, that the road should be put under contract as far north as Derby Line. Oonnectieut and Paasumpsie Bimra B. R. Co. v. Baxter, 32 Vt., 805. 1880. 1 27. — That the term " Derby Line," in the absence of any evidence as to its meaning, ex- cept the subscription itself, and the fact that the charter fixed the northern terminus in the north line of Derby, must be construed to mean the north line of Derby. lb. 128. But the defendant having shown that the words, Derby Line, in common usage, meant a village of that name in Derby, it was heid, that it became a question of fact for the jury to determine which point was meant by the term. . lb. 129. — And it was lield inadmissible to shciw that the route adopted, terminating in the north line of Derby, and not at Derby Line village, was more feasible, and better fur the company and for the public, than any route leading to that village, lb. 130. — Held, also, that if the plaintiff's agent, who obtained the subscription, repre- sented that the route intended by the written condition was the one terminating at Derby Line village, and the defendant subscribed in reliance upon such representation, the plaintiff was bound thereby, whether it was made fraud- ulently or not. lb. 131. — The act, incorporating a company, required it to commence work as near simul- taneously as possible in sections, and provided that the subscribers might designate the section on which they desired their subscriptions to be used. On an action upon the subscription of a stockholder, it was Jield, that it was no defense that the company had abandoned work on one section, and had determioed to appropriate the funds of the company on another section. Vieheburg, Shreveport and Texas B. B. Oo. n. MeKean, 12 La. An., 638. 1857. 138. — An action was brought upon a rail- way subscription, conditioned to be paid in in- stallments, as might from time to time toe called for by the directors, provided the same should be expended upon a certain line of road to be thereafter located by the company. Held, that the petition, showing neither the road construct- ed nor an offer nor readiness to expend the money subscribed, according to the condition, was defective; that upon a demurrer by the plaintiff to an answer to such petition, such defects in the petition require such demurrer to be overruled. Trott v. Sarehett, 10 Ohio St., 241. 1859. 133. — If a railway company is authorized to build its road in three sections, and after the completion of the first section, subscriptions are obtained for the second and third together, the same may be collected, although it does not appear where or how they are to be expended. Agricultural Branch B. B. Oo, v. Winchester; 13 Allen (Mass.), 29. 1866. 1 34. — To entitle a railway company to re- cover under a special subscription to aid in the construction of its road through a certain coun- ty, payable in installments as the work pro- gresses, it is not necessary that the whole amount of capital stock, as fixed by the articles of incorporation, should have been subscribed. Iowa and Minnesota B. B. Oo. v. Perkins, 28 la., 281. 1869. 1 35. — In such case, the liability of the sub- scribers is governed by the terms of the sub- scription, and not by the articles of incorpora- tion, lb. 136. Promi.ssorynote. A note given payable absolutely, in lieu of a conditional subscription, will be presumed to have been given on sufli- cient consideration. Henderson and Nashville B. B. Oo. D. Moss, 2 Duvall (Ky.), 242. 1865. 137. — If a condition upon which a part of the subscription is payable has been performed, and a subscriber gives liis note unconditionally for the whole, payable at a future day, the post- ponement of payment of that part then due is a sufllcient consideration for a promise to pay the residue before it would have been due by the original terms. lb. 138. — The giving of a note for the balance of a subscription, and the taking of a receipt therefor, is prima facie of a waiver of condi- tions precedent in the subscription. Olumber- lain V. Painesville and Hudson B. B. Oo., 15 Ohio St., 225. 1801 SUBSCRIPTIONS BY INDIVIDUALS. 703 Conditional Subscriptions. 139. — Suit was brought upon the following instrument: " Ten days after the completion of the I. and 8. R. R. from I. to H., and the running of a train of cars thereon, I promise to pay to the order of said railroad company, at the D. Bank, Ind., the sum of one hundred dol- lai's, without relief from valuation or appraise- ment laws. The condition of this note is the construction of said road, as aforesaid, with- in one-half mile of the town of D., and the prom- ise and agreement of said company, that by means of said road and its connections the com- pany will run trains from I. to 8. within two years from July 1, 1869; " dated Nov. 25, 1868, and signed by the defendant. There was an averment in the complaintof performance with- in the time and manner mentioned. Held, that the contract, being capable of performance within one year, was not within the statute of frauds. If it had originally been within the statute, and therefore not binding on the plaint- iff, yet, after performance by the company, the maker could not defend on the ground that he alone had signed the instrument. Straughan ». Indianapolis and St. Louis B. JR. Co., 38 Ind., 185, 1871; Curtis v. Same, ib., 223; Wilson v. Same, ib., 227 ; Emmons «. Same, ib., 247 ; King v. Same, ib., 266; Scearce v. Same, ib., 271; Weaver «. Same, ib., 277 ; Nichols e. Same, ib., 279 ; Oaborn v. Same, ib., 294 ; Blake v. Same, ib., 323 ; Keeney v. Same, ib., 848 ; Oregg v. Same, ib., 372 ; Hunt v. Sam^, ib., 383 ; Smith v. Same, ib., 389; Welsliam v. Same, ib., 389; NoAie v. Sam^, ib., 443. 140. — Where a subscription was made on condition that it should not be payable until work was commenced at a certain point on the road, and a note for such subscription was ob- tained upon the false representations of the agents of the company that such work had been commenced, it was Jield, that the note was void. Taylor v. FletoJier, 15 Ind., 80. 1860. 141. Second subscription limiting a former one. A., having made a cash sub- scription to the stock of a railway company, was induced by an agent of the company to make a further subscription of a certain farm owned by him, upon the promise that his cash subscription should not be demanded until the road was completed. The company, not re- garding its undertaking to forbeai-, commenced suit upon the cash subscription, and was pro- ceeding to enforce the collection of a judgment recovered thereon. Suit was brought by A. to recover the land, averring a tender of stock taken for the land. Held, that the contract to forbear, being founded upon a valid considera- tion, might perhaps have been set up in de- fense to the action upon the cash subscription and would certainly have furnished good ground for enjoining its collection until the completion of the road ; but no such defense having been made, A. was not entitled to a re- scission of the land subscription. Held, also, that the company, having broken its contract, was liable for damages, and the complaint was sufficient to authorize their recovery. Scarce v. Indiana and Illinois Central B. B. Co., 17 Ind., 193. 1861. 142. Void eoiidition. An arrangement, be- tween the officers of a railway company and a portion of its subscribers, that if the town in which they reside should vote a certain amount of municipal aid, such subscribers, upon paying a certain percentage of their subscription, should be released from the balance, being in effect an agreement to release one portion of tlie subscriptions without authority of law, is void. Sioartwout v. Michigan Air Line B. B. Co., 24 Mich., 889. 1872. 143. — An agreement that subscriptions, made to enable a railway company to receive an installment from the state, should not be paid, is void as against public policy. MeBae V. Atlantic and North Carolina B. B. Co., 5 Jones' Eq. (N. C), 395. 1860. 144. — Tne general railroad law of 1848 confers no power to make conditional subscrip- tions ; such subscriptions are contrary to pub- lic policy. Troy and Boston B. R. Co. v. Tihbits, 18 Barbour (N. Y.), 297, 1854; see Same v. Same, 11 Howard's Pr. (N. Y.), 168, 1855. 14.'j. — Suit was brought by a railway com- pany against an administrator to recover a subscription of stock made by his decedent. To the subscription the following stipulation was appended ; " Said subscription to be paid in two cash notes $500 each, due December, 1853 and 1854, and to have certificate when said notes become due." It was insisted argu- endo that the company had no power to make such a condition. Held, that if any condition was in fact made, it would, perhaps, be void, and leave the subscription absolute; Fleece v. Indiana and Illinois Central B. B. Co., 8 Ind., 460. 1856. 704 SUBSCRIPTIONS BY INDIVIDUALS. Eepresentations made to Induce Subscriptions. 146. — A stipulation in an agreement to subscribe for shai-es in tlie capital stock of a corporation to the effect that the installments, when collected, are to be applied in a certain way, constitutes no condition to their payment. The stock Itself is the only consideration of the agreement, and the subscription is absolute. New Albany and Salem iJ. iJ. Co. i>. Fields, 10 Ind., 187, 1858; Same v. Slaughter, ib., 818. 147. — In an action brought upon such an agreement, an answer setting up a contempora- neous verbal agreement varying its terms, is bad on demurrer. Ib. 148. Waiver. A condition precedent will be deemed waived by the act of the subscriber in voting upon his stock at a corporate elec- tion. Dayton and Cincinnati B. R. Co. v. Hatch, 1 Disney (Ohio), 84. 1855. 149. — A condition precedent in a subscrip- tion of land is waived when the subscriber, before any act of the corporation indicating its intention to comply with the condition, exe- cutes his. deed absolute in form, and receives the stock of the corporation therefor. Parks v. Evanamlle, Indianapolis and Cleveland B. B. Co., 33 Ind., 567. 1864 1 50. — A promissory note, given for a con- ditional subscription of stock, is a waiver of the condition. 0' Donald v. Evansrtille, Indian- apolis and Cleveland B. B. Co., 14 Ind., 259, 1860; Baker v. Same, ib., 363; Anderson v. Same, ib., 388 ; Williams v. Same, ib., 428 ; Mc- Daniel v. Same, ib., 464 ; Evansville, Indianap- olis and Cleveland B. B. Co. v. Dunn, 17 ib., 603, 1881 ; Same v. Wampler, 19 ib., 847, 1862. 151. — Such a note, given some time after the date of the subscription, cannot be viewed as a part of the contract of subscription. Ib. YIII. Eepresentations made to in- duce SUBSCRIPTIONS. 152. Agent's representations. The repre- sentations of a soliciting agent in relation lo the ultimate value of railway stock is mere matter of opinion, upon which the subscriber has no right to rely. Vawt&r «. Ohio and Miss- issippi B. B. Co., 14 Ind., 174. 1860. 153. — The declaration of the agents of a railway company in relation to the route of the road cannot be introduced in evidence by the defendant in an action upon a subscription. If the subscriber desires conditions as to the route, he should have such conditions cm- braced in the subscription. Mississippi Ouach- ita and Bed Biver B. B. Co. v. Cross, 20 Ark., 443. 1859. 154. — The allegation that the stock solici- tor fraudulently represented that a suflBcieut amount of solvent stock was subscribed to complete the road within two years, and that the company was able, and could and would press said road to completion within that time, and failed to do so, constitutes no bar to recov- ery on such subscription. Brownlee v. Ohio, Indiana and Illinois B. B. Co., 18 Ind., 68. 1862. 155. Chartered powers. A representation made to obtain a subscription for railway stock to the effect that another corporation would do a certain act, involves the question of the power of that other corporation, under its charter, to do that act, and is therefore no defense to a suit on the subscription, if such corporation had not such power. Johnson v. Cromfordsville, Frankfort, etc., B. B. Co., 11 Ind., 280. 1858. 156. Dividends guaranteed. A contract between the defendant and a third person, by which the former guaranteed to the latter, dividends equal to six per cent, per annum, on his stock, and the latter agreed to subscribe for said stock is admissible in evidence for the purpose of showing that tlie defendant procured others to subscribe to the stock of such company, and the inducements which he held out for that pui-pose. Daribury amd Norwalk B. B. Co. v. Wilson, 22 Conn., 435. 1853. 157. Evidence. Where it was admitted on the trial that at the time defendants subscribed for stock the plaintiff's president represented that certain canal stock would be taken in payment; held, that this admission obviated the necessity of proof, and that plaintiff was bound by it, and could not recover, although no evidence of such representation would have been competent. Swatara B. B. Co. v. Brune, 6 Gill (Md.), 41. 1847. 158. Fraud, A person becoming a member is presumed to contract with reference to the powers and rights prescribed in the charter of the company, and to give his assent thereto; hence, where the directors were authorized to build the road on such route as they should deem expedient, if a representation be made SUBSCRIPTIONS BY INDIVIDUALS. 705 Representations made to Induce Subscriptions. by the company, to a person about to subscribe for stock, that the road had been located and would be constructed upon a particular route, and thereujjon in consideration thereof, such person became a subscriber, such representa^ tion is not binding on the company, and though false and fraudulent will not release the subscriber from the liability to pay for his stock. {Imn v. Turnpike Co., 2 Penn. 466); Ellisim v. Mobile and Ohio R. B. Co., 36 Miss., 578, 1858. 159. — False representations of an agent of a railroad company soliciting stock, that the persons undertaking to construct and equip the road were able to complete it, without any advance from the company, out of their own resources, are no defense in an action upon subscriptions. Andrema v. Ohio and Mississippi B. B. Co., 14 Ind., 169. 1860. 160. — Fraudulent representations as to the pecuniary condition of a railroad company and its past earnings, made by its officers and other persons employed by it to solicit subscrip- tions to its stock, while engaged in obtaining such subscriptions, must be regarded as made by them in the execution of their agency. Waldo V. Chicago St. Paul and Fond du Lac B. B. Co., 14 Wis., 575. 1861. 161. — As a general rule, where a party has been induced to execute an agreement by fraudulent representations of the other party, he may set up such representations in bar of an action on the agreement. Clem v. Newcastle and Danville B. B. Co., 9 Ind., 488. 1857. 162. — But not if such representations, though false, relate to the legal eflFect of the in- strument sued on. lb. 163. — A party is presumed to know the contents of an agreement which he signs, and hence, has no right to rely upon the statements of the other party as to its legal effect. lb. 1 64. — To avoid a contract on the ground of fraudulent misrepresentations it must appear that the party acted on the representations; and that the misrepresentations were concern- ing matters of fact and not matters of opinion or of law. Oregon Central B. B. Co. v. Scoggin 8 Or., 161. 1869. 165. — In an action brought upon a sub- scription of stock, the answer alleged: 1. Fraud in this, that the soliciting agent repre- sented that in the book he produced there were articles of agreement by which the subscriber 45 might pay for stock in money or in ties for the road, at the rate of, etc., and the defendant relying, etc., subscribed without reading, etc., and tliat said representations were false. 2. That a verbal entire contract was made, a part only of which was reduced to writing; that it was agreed that the defendant should subscribe two shares, and might pay the same in ties at the rate of, ate, on demand, and the part re- duced to writing is that stated in the complaint, and the other part defendant demands to pro%'e by parol. The latter was for the payment of money absolutely, uijon call. Held, I. That the representations were not peculiarly within the knowledge of the plaintiffs, nor such as the defendant might rely upon. 11. That the demand to make parol proof was, in effect a demand to contradict or vary a written instru- ment by proof of a verbal contemporaneous agreement, which cannot be done. Thorn- burgh v. Newcastle and Danville B. B: Co., 14 Ind., 499. 1860. 166. Mistake. If a subscriber is induced to take stock in a railway company by false representations which are not fraudulent, and which form no part of the contract of sub- scription, he is not entitled to be relieved from the payment of the amount of his subscrip- tion. But if he acts upon such representations to his injury, he is entitled to relief, although they may have been innocently made. Cun- ningham «. Edgefield and Kentucky B. B. Co., 3 Head (Tenn.), 23. 1858. 167. Promissory notes. Where subscrib- ers to the stock of a railway company had given their notes for the amounts of subscrip- tion, payable when the road should be com- pleted, but were subsequently induced to take up these notes and to give new ones, payable in four years, in order to enable the company to carry out a contract for the completion of the road, and upon the confident but honest expression of opinion by its officers, that if they would do so, the road would be completed under such contract in less than four years, held, that although the said contract for build- ing the road was afterward, and before any- thing had been done under it, abandoned by the contractor, and the road has never been completed, yet the subscribers are liable upon tlieu" said new notes. Four Mile Valley B. R. Co. V. Bailey, 18 Ohio St., 208. 1868. 168. Public Meeting. Where certain rep. 706 SUBSCRIPTIONS BY INDIVIDUALS. Locatiofl. resentations as to what a railway company- would do, were made at a public meeting, and upon the strength of these representations, A. conveyed land to the company, with the un- derstanding that he was to have the advan- tages as slated in such meeting, there being no other consideration, it was 7ield, that upon the failure of the company to carry out the prom- ises made at that meeting, A. was entitled to a cancellation of his deed. Atlanta and West Point S. H. Co. •». Hodnett, 36 Ga., 669. 1867. IX Location. 169. Change of route. A material change of route, unless made in pursuance of author- ity to make such change contained in the charter, will release all nonassenting stockhold- ers from their subscriptions. Witter v. Mis- siaaippi, Ouachita and Red Biver B. B. Oo., 30 Ark., 463, 1839 ; Mismaippi, Ouachita and Bed Biver B. B. Oo. v. Gaater, 34 ib., 96, 1863. 1 70. — The materialty of such change is a question of law. Ib. 171. — A change of route from that first fixed by law will not release a subscriber, pro- vided the change does not make an improve- ment of a different character, and his interest is not materially affected by the alteratioa, Banet v. Alton and Sangamon B. B. Oo., 13 111., 504. 1851. 172. — A subsequent change in the loca- tion of a railroad, which had not been defin- itely located when the defendant subscribed, will not release him from his contract. Mppea v. Miaaiasippi, Oaineaville and Tuscaloosa B. B. Oo., 35 Ala., N. S., 33. 1859. 173. — A railway corporation having lo- cated its road according to law, afterwards, for a short distance, altered such location, the requisite steps being taken as to such substi- tuted portion ; hdd, that such alteration fur- nished no defense to a stockholder', in an ac- tion against him to recover assessment son his stock. Danhiry and Norwalk B. B. Oo. v. Wil- son, 33 Conn., 435. 1853. 1 74. — Where the directors of a railway company were authorized by the charter to change the location of the road whenever a cheaper or better route could be had — a change of location which placed the road upon a cheaper route, and procured a largo addi- tional subscription of stock, and also furnished a reasonable probability that the business and profits of the road, when finished, would be thereby considerably augmented, does not ex- onerate the ' subscribers from the payment of their stock. Frys, .Ex'r, v. Lexington and Big Sandy B. B. Oo., 2 Metcalfe (Ky.), 314. 1859. 176. — Nor are subscribers living at and owners of real estate in a town, made by the charter the terminus of the road, exonerated from the payment of their stock because such change of the location of the road will build lip a rival town several miles distant. Ib. 176. Change of terminus, A stockholder In a railway company, who seeks to avoid the payment of his subscription upon the ground that one of the termini was materially chang- ed from that designated in the charter, must show that the alteration was made without his concurrence, or consent. North Oarolina B. B. Oo. V. Leach, 4 Jones' Law, (N. C), 340. 1857. 177, Designation of route. Tlie charter of a railway company allowed the company to select such route between fixed points " as a majority of the stockholders should deem most advisable," and provided that, " after the selection of the route, any stockholder who may be dissatisfied with the route selected, shall have the right to withdraw his subscrip- tion," etc., "provided such stockholder shall have designated at the time of subscribing, the route which he desires to be selected for the location of the road." Held, that such stockholders as had thus designated the route desired by them might vote upon the question of selection, when the company met for that purpose. That a subscriber who had not desig- nated the route at time of subscribing had no right to withdraw, nor could a subscriber show by parol that he had instructed the agent who subscribed for hira to designate the route desired. That the company was not bound to select the most practicable route. That a slight deflection from the route first selected did not absolve a stockholder who had not designated the route he desired to be selected. Tliat an amendment to the charter authorizing the construction of a branch road, without the consent of a stockholder, would not release him from his obligation under the circumstances of this case. Oreenville and Columbia B. B. Oo. v. Ooleman, 5 Richardson's Law, (So, Car.), 118. 1851. Same v. Smith, , Richardson's Law, (So. Car.), 91. 1853. SUBSCRIPTIONS BY INDIVIDUALS. ro7 Interest. 178. Evidente. A subscriber cannot show by parol that he would not have subscribed, if he had supposed a particular route would be adopted. EakrigM «. Loganaport and NotTicm IndiajM R. B. Oo., 13 Ind., 404. 1859. Carlisle ». Evansville, Indianapolis and Oleve- land B. B. Co., 13 ib., 477. 179. Extension of line. Where, after de- fendant had subscribed for stock in a railway company, the line was ordered to be extended beyond its original limits without his consent, and such extension had been enjoined at the suit of another stoclcholder, and the extension abandoned, it was held, that these facts consti- tuted no defense to an action on the defendant's stock subscription. Butland and Burlington B. B. Co. V. Thrall, 35 Vt., 536. 1863. 180. Injunction. A railway company cannot be enjoined for collecting installments of stock because the money may be expend- ed in extending the road beyond the county in which the stockholders reside, unless the con- tract of subscription expressly stipulated that the money should be expended in such county. Dill V. Wabash Valley B. B. Co., 21 111., 91. 1859. 181. Length of road. Where there is no fraud, one who signs the articles of associa- tion cannot, in an action for the calls, show that the road is in fact longer than the distance stated in the articles. Tro^/ and Butland B. B. Co. V. Kerr, 17 Barbour, (N. Y.), 581. 1854. 182. Two routes— selection. Where the defendant agreed to subscribe for stock, upon condition that one of two 'routes should be selected by the company, and the company selected the route required by him, he was held liable on his subscription. Spartanburg and Union B. B. Co. o. De Qrafenreid, 13 Richardson's Law, (So. Car.), 675. I860. X. Interest. 183. Construction of contract. An agree- ment of a railway company with a subscriber for stock therein, that he "shall have the privilege of paying in at any time the whole or any part of his subscription, and shall receive interest thereon until the road goes into opera- tion," does not bind the company to pay him any interest until the road goes into operation. yVattrman v. Troy and Greenfield-. B. B. Co., 8 Gray, (Mass.), 433. 1857 ; and see also Wright V. Vermont and Massachusetts B. B. Co., 12 Gushing, (Mass.), 68. 1853. 184. Where the company received subscrip tions on the guarantee that it would pay interest on stock "as soon as paid," until the road was finished, interest would not accruf until the stock was all paid. Where the subscriber has paid a part of the stock, he cannot, in an action for the balance, set up the nonpayment of interest on the part paid as a breach of condition. Miller v. Pittsburgh and Connellsville B. B. Co., 40 Penn. St., 337. 1861. 185. A subscription is not invalid because it contains a stipulation that the amount paid thereon shall bear interest until dividends shall be declared from the earnings of the road. Bacine County Bank i>. Ayers, 13 Wis., 512. I860. 1 86. Where the directors of a railway com- pany organized under the act of May 1, 1853, assume to sell shares of their capital stock by special conti-act, stipulating for the payment of interest annually on such stock until the completion of the road, lield, that such pay- ment of interest cannot be enforced by action', where it appears that the corporation has no means or resources from which payment can be made, except its capital stock, and that large debts incurred in the partial construc- tion of the road remain due and unpaid. PaiiiesviUe and Hudson B. B. Co. v. King, 17 Ohio St., 534. 1867. 1 87. — A railway company has authority to stipulate that each stockholder shall be enti- tled to interest on sums paid on stock subscrip- tions while its road is in process of construc- tion, till it is completed and goes into opera- tion, payable whenever the surplus earnings shall enable it properly to do so. BieMrdson V. Vt. and Mass. B. B. Co., 44 Vt., 618. 1873. 188. — This arrangement for payment of in- terest dividends is equitable and just, and does not interfere with the rights of creditors, and is not in contravention of public policy. Ib. 189. — The vote to pay such interest was passed at an annual meeting of the stockhold- ers, the subject not being specially named in the notice calling the meeting. Held, without determining whether the corporation had the right'to pass such vote, that the defect, if any, could be cured by subsequent ratifle.ation. Ib. 190. — The subsequent payment of such interest, and the corporation ajid directors 708 SUBSCKIPTIONS BY INDIVIDUALS. Ratiflcatiou. subsequently voting to issue certificates for the payment of said interest, and the action of the treasurer in issuing such certificate, Constitute a ratification of sucli vote. lb. 191. — Notwithstanding the stock for ■which $75 and !foO per share were paid was to be of equal rank and value as the other stock for which $100 per share was paid, yet, in the matter of this interest, such stockholders should be limited to " interest on all amomits paid hy tliem" according to the language of the original vote, and are not entitled to inter- est upon the nominal value of $100 per share, and the certificates should be reduced accord- ingly, lb. 192. — The fact that the corporation has a surplus of funds in its treasury suflJcient to pay the orators would not be sufficient to en- title them to payment. There should be enough not only to pay them, but to pay all other stockholders having like claims.. lb. XL Eatification. 1 9.5. Agent. The ratification of a contract necessarily implies the relation of principal and agent ; and, unless that relation existed, the idea of ratification is necessarily excluded, Pittsburgh and SieubemiiUe B. B. Oo. v. Gazzam, 82 Penn. St., 340. 1858. 1 94. — A full knowledge of all the material facts and circumstances attending the transac- tion is necessary to give validity to the ratifi- cation ; the party must know that he would not be bound without such ratification. lb. 195. — Where A. authorized one of the commissioners to take stock for him, and his name was actually entered by another com- missioner who acted as clerk, and the entries were afterwards certified by all the commis- sioners, and A. afterwards voted by proxy as a stockholder; Tield, that he was liable as a stockholder. 0-reenville and Columbia B. B. Oo. V. Coleman, 5 Richardson's Law (So. Car.), 118. 1851. 1 96. Unauthorized Subscription. If the complaint in an action against B. on a sub- scription of stock, allege that A. made tho subscription for B., and B. ratified it, it is no defense for B. to say that he did not subscribe. Wilton n. Evanaville, Cleveland, etc, B. B. Co., 9Ind., 510. 18.57. 197. — One B., without authority, signed the name of the intestate as d subscriber for ten shai'es of the capital stock of a railway cor- poration. Held, that the subsequent declara- tion of the intestate to strangers that he had taken that amount of stock did not amount to a ra:tification of the act of B. Builand and Burlington B. B. Co. v. Lincoln's Estate, 29 Vt., 200. 1857. 198. — A subscription to the stock of a rail- road company in the name of a third party, without precedent authority may be ratified. A letter of attorney executed by the person in whose name the subscription is made, consti- tuting the attorney his proxy to vote at a meet- ing of the company, is evidence of ratification to go to the jury. MeCully v. Pittsburgh and Oonnellsmlle B. R. Co., 32 Penn. St., 25. 1858. 199. — P., a director of a railway com- panj', upon consultation with the friends and acquaintances of C, subscribed for him and in his name for forty additional shares of stock to relieve the company from embarrass- ment,' C. being at the time a resident of a for- eign country, and immediately advised C. who never made any reply to F. or the company. The accruing dividends on the original stock of C. were applied by the company to the pay- ment of the stock so subscribed for him, and nearly seven years after the subscriptions were made, he demanded and sued for the dividends declared upon the original stock, alleging that the subscription of F. was unauthorized. Held, that the silence of C, for so Ions a period was proper to be Submitted to the jury as an evidence of his ratification of the act of F. Philadelphia, Wilmington and Baltimcre B. R. Co. V. Cornell, 28 Penn. St., 329. 1857. 200. — The ratification of an unauthorized act by tho silence of the party, is not con- fined to cases where the relation of principal and agent exists. lb. 201. — Such silence is evidence of ratifica- tion more or less expressive according to the circumstances under which it occurs. lb. 202. — Ratification of such an act may not be implied as a conclusion of law from the silence of the party, but it is competent evi- dence for the jury to consider as a circum- stance from which, with others, they may ini- ply such ratification. lb. 203. — A director stands in a fiduciary re- lation towards a stockholder, and in acting for SUBSCRIPTIONS BY INDIVIDUALS. 709 Renunciation of Subscriptions — Organization of Corporation contemplated. him in his absence, cannot be regai'ded as alto- gether a stranger and intermeddler. lb. 204. — A subscription for stock in a char- tered railway company, which by its charter states the amount and price of its shares, by signing a written instrument in these words: "We, the undersigned, agree to take the fol- lowing number of shares in the Mobile and Ohio Railroad," and designating the number thereof opposite the subscriber's name, though taken In a public meeting by persons not au- thorized by the company, becomes a valid contract to pay the amount subscribed, by be- ing transferred to the books of the company, and thus accepted by it. Mobile and Ohio B. R. Co. V. Yandal, 5 Sneed (Tenn.;, 294. 1858. XII. Eenunciation of subscrip- tions. 205. Conditional agreement. A party who has made a conditional subscription for stock of a railway company by agreement with a person who is not the authorized agent of such company, may withdraw or revoke his subscription at pleasui-e, without notice to the company, at any time while the subscrip- tion book remains in the hands of such per- son and before the company has acquired any right to or interest in it. Lowe «. Edgefield and Kentucky R. R. Co., 1 Head (Tenn.), 659. 1858. 206. Notice of renunciation. If a party who has subscribed for stock of a railway company can renounce and abandon his sub- scription, it can only be done by notice to the agent or to the company, in,proper time. Oun- ningham v. Edgefield and Kentucky R. R. Co., 3 ib., 23. 1858. " 207. — The power and authority of the agent of a railway company to receive sub- scriptions for stock, ceases when the subscrip- tion is complete. When made, the subscrip- tion instantly inures to the benefit of the com- pany, and creates in law, a contrjict directly between the subscriber and the company. The agent has no power to abrogate or annul the subscription ; and consequently, notice of an intention to revoke it must be given to the company, and not to the agent. Lowe v. Edge- field and Kentucky R. R. Co., 1 ib., 659. 1858. XIII. Estoppel. 208. Directors. Where the directors named in the act of corporation met and organized the company without the limits of the state granting the charter, one who has subscribed for the stock of the corijoration by its corpo- rate name, and paid installments called for by the directors, is precluded by his own acts from denying the lawful existence of the cor- poration. Ohio and Mississippi R. R. Co. v. McPherson. 35 Mo., 13. 1864 209. Existence of corporation. A person is estopped to deny the existence of a railway company at the time he contracted with it as such. Enaey v. Cleveland and St. Louis R. R. Co., 10 Ind., 178. 1858. 210. — Should he deny its existence at a subsequent time, he must show how it ceased to exist. Ib. XIV. Organization of corporation contemplated. 211. Power totalie subscriptions before organization. A corporation may receive subscriptions to its stock, and may sue before being fully organized. Oregon Central R. R. Co. V. Scoggin, 3 Or., 161. 1869. 2 1 2. — A corporation authorized to be con- stituted under an act of assembly, cannot take a bond payable to it, until the prerequisites have been performed to give it corporate ex- istence. Wilmington and Manclmter R. R. Co. V. Wright, 5 Jones' Law (N. C), 804. 1858. 213. — It is not a good reason for refusing to pay installments that the corporation was not organized until after the defendant had subscribed for his shares. Banbury and Nor- walk R. R. Co. v. Wilson, 22 Conn., 435, 1853 ; Tonica and Petersburg R. R. Co. v. McNeeley, 21111., 71. 1859. 214. — A promise to take and fill a certain number of shares in a corporation, by a sub- sequent organization of the company, and an acceptance of the subscription, becomes a binding contract. Penobscot R. R. Co. v. Dtim- mer, 40 Me., 172, 1855; Buffalo and Neva York R. R. Co. V. Budley, 14 N. Y., 336, 1856. 2 ) .5. — An individual does not become a member and stockholder of a railway com- pany under the general railroad act of 1848, by the act of subscribing a preliminary paper, previous to the organization of the company, agreeing to subscribe for stock. Troy and Bos- ton R. R. Co. V. Tibbits, 18 Barbour (N. Y.), 397, 710 SUBSCEIPTIONS BY INDIVIDUALS. Consolidation of Corporations — Partnership. 1854 ; see Same v. Same, U Howard's Pr. (N.Y.), 168, 1855. 216. — Subscription is a mere provisional act, inoperative unless pursued through the remaining forms of the statute. lb. 217. — A corporation cannot sustain an ac- tion against one who, before it was chartered, with others, signed a paper agreeing to take a certain quantity of stools and afterwards re- fused to do so. Strasburg S. JR. Go. v. JEchter- naeht, 21 Penn. St., 230. 1853. 218. — Such paper is only an expression of the intention of the subseriber, and is not a contract. lb. 219. — An undertaking to subscribe a cer- tain amount of stock, when books shall be opened, does not make the subscriber a stock- holder. Thrasher ii. Pike County S. JR. Co., 25 111., 393. 1861. XY. GONSOLIDATIOIf OF COEPOEATIONS. 220. Consent of stocldiolders. After a public act had taken effect authorizing the consolidation of the cliarters of two railroad companies, A. subscribed five shares of stock to one of them. The consolidation having afterward taken place, A. was sued by the new company upon his subscription. Held, that A. was liable. Held, also, that the circum- stance that the consolidation may have taken place without his personal knowledge or con- sent was of no importance. Sparrow «. Bvans- ■vilk and Crawfordsville JR. B. Co., 7 Ind., 369. 1856. 221. — An association for the construction of a railway was formed under a general law, which authorized the amendment or repeal of the law at the discretion of the legislature. The law did not authorize the consolidation of railroad companies. A. subscribed to the stock of the company. Afterward, a general act was passed authorizing such consolida- tion. The company was then consolidated with another. But it was apparent from the articles of association, that such consolida- tion was one of the purposes for which the association seemed to have been organized, and that tlie consolidation vi-as only carrying out that purpose, and did not work a funda- mental change of the object contemplated. Held, that such action of the company did not discharge A. from the payment of his subscription. Sanna v. Cincihnati and Fort Wayne S. JR. Co., 20 Ind., 30. 1868. 222. — Subscriptions to the capital stock of railroad companies, made since the taking ejefcct of the act of February 23, 1853, author- izing the consolidation of such company, will not be discharged or invalidated by the sub- sequent consolidation of the company in which they are made, but they will be held to have been made with reference to said law. Bish 1). Johnson, 31 Ind., 299. 1863. 223. — Where two or more railway com- panies, with the consent of the legislature, granted subsequently to the subscription of stock, but without the consent of the stock- holders, consolidate their separate existences into one, nonconsenting stockholders are re- leased, and may withdraw from the corpora- tion. Booe V, Junction R. B. Co., 10 Ind., 93, 1857; McCray v. Junction B. B. Co., 9 Ind., 358, 1857; Ma/rtin v. Same, 12 lb., 605, 1859; Maries v. Same, 13 ib., 387, 1859. 224. — The relation between such com- jDany and a stockholder is one of contract; and any legislative enactment authorizing a material change of powers or purposes of the corporation, not in aid of the original object, if acted upon by the corporation, is not bind- ing upon the stockholder, without his con- sent. Ib. 225. Effect of consolidation. The con- solid:ition of a company with another does not defeat the right of the former to collect its stock subscriptions. Swartwout v. Michi- gan Air JUne B. B. Co., 24 Mich., 389. 1872. 226. Judgmen1>. "Where the charter, undei which a subscription was made provided thai subscriptions should be collected without re- lief, etc., and suit is brought on such subscrip- tion, after a consolidation with another com- pany, judgment is properly rendered "without relief, etc." Hayworth v. Junction B. B. Co., 13 Ind., 348. 1859. XVI. Partnership. 227. Form of Subscription. The provi sion in the general railway act, requiring each subscriber to the articles of association to sub- scribe thereto " his name, place of residence and amount by him subscribed," does not call for an individual personal subscription by all the members of a partnership firm. Ogdens- SUBSCRIPTIONS BY INDIVIDUALS. 711 Apportionment of Stock — Payment of First Installment. Imrg, Some and Clayton R. R. Go. v. Frost, 21 Barbour (N. Y.), 541. 1856. 228. — A subscription by a partnership name is a compliance with, the act. lb. 229. Power of partner to subscribe. One partner cannot malce himself the agent of his firm to subscribe stock to a railroad company, the building of railroads not being within the scope of the partnership. Livingston v. Pitts- burg and Steubenmlle B. R. Oo., 2 Grant's Cases (Penn.), 219. 1858. 230. — Where the main business of a part- nership was that of dealing in oysters, but it was proved that they had formerly owned a line of wagons, and that they purchased, sold and held land in their joint names, owned ves- sels employed in the coasting trade, and sub- scribed for, purchased and sold stock in rail- road and other companies; held, that from evidence of these facts it was competent for the jury to infer that a subscription for railway stock made by one of the partners in the name of the firm, was within the scope of the part- nership authority. Maltby v. Northwestern Ya. R. R. Co., 16 Md., 422. 1860. XVII. Apportionment op stock. 231. Commissioners. By the settled prac- tice in New York, commissioners appointed in an act of incorporation of a joint stock company, to receive subscriptions and to ap- portion the stock, in case of an excess of sub- scriptions, may themselves become subscribers and apportion a part of the stock to them- selves. Walkerr n. Bmeremix, 4 Paige Ch. (N. Y.), 229. 1833. 232. Fraud. Where tlie commissioners are directed to distribute the stock of a corpora- tion, it is a fraud upon the commissioners, and upon the law, for a person to subscribe for stock in his own name, under a secret agree- ment to hold it in trust for another, if stock should be apportioned to him under such sub- scription, with the intention of deceiving and misleading the commissioners. lb. 233. Installments. Where A , with others, subscribed for stock in a railroad company, as follows: "We do hereby subscribe to the stock of said railroad the number of shares annexed to our names respectively, on the terms, conditicms and limitations mentioned in the charter;" paying, at the same time $5, on each share subscribed. The charter au- thorized the directors to require payment of installments of the stock. ' On a reduction and apportionment of the subscriptions, ten shares were allowed to A., who received a certificate specifying the sum paid, and declaring the residue to be payable by installments as they should be ordered by the directors. Seld, that from tlie relation of stockholder and com- pany, thus created, a promise by the defend- ant was implied to pay the installments. Hartford and New Haven R. B. Co. v. Kennedy, 12 Conn., 499, 1838; Danbury and Norwalk R. B. Oo. v. Wilson, 22 ib., 435. 1853. XVIII. Payment of first install- ment. 234. Agent. Where payment of the amount required by the charter of a railroad company, to be paid at time of the subscrip- tion, is made by an agent, without the knowl- edge of the principal, and the principal after- wards ratifies the act, the subscription is bind- ing. Mississippi and Tennesee R. R. Go., v. Harris, 36 Miss., 17. 1858. 235. — A subsequent promise to pay the remainder of the subscription amounts to a ratification of the act of the agent. Ib. 236. Bank checks. The treasurer of a corporation about to form a railway company may receive from the subscribers payment of the ten per cent., required by law to be paid him, in bank checks drawn by the subscribers, and payable in presenti, provided they are drawn against a sufiicient fund in good faith, and witli no intention, to evade the law. Peo- ple V. Stockton and Visalia R. R. Co., 45 Cal., 306. 1873. 237. Charter. The fact that the subscrib- ers to the capital stock of a company do not, at the time of subscription, pay five dollars ou each share of stock subscribed, is not ground to invalidate the charter. Commonwealth v. West Chester R. R. Co., 3 Grant's Cases (Penn.), 200. 1855. 238. Claim against corporation applied on first installment. The payment of the first ten per cent, need not necessarily be made in cash ; it is sufficient if a claim against the corporation is thus applied by the consent of the parties. Beach v. Smith, 30 N. Y., 116, 1864; Same v. Same, 38 Barbour (N. Y.), 254, 1858. 712 SUBSCRIPTIONS BY INniVIDUALS. Payment of First Installment. 239. Commissioner. A subscription to stock which is created by a charter, requiring a certain sum to be paid at the time of sub- scription, will not be invalidated, if the party subscribing does not actually pay the requi- site sum ; provided he is a commissioner to receive the money and procure the stock to be taken. Byder v. Alton and Sangamon B. B. Co., 13 111., 516. 1851. 240. Estoppel. A subscriber who transfers his stock to another, and treats it as valid, is estopped from denying that the payment necessary to give it validity, at the time of subscription, was made. Euerhart v. West Chester and Philadelphia B. B. Co., 28 Pcnn. St., 339. 1857. 241. Failure to pay, as a defense. The failure to make the paymont required by the charter, at the time of subscription, cannot be set up by the subscriber as a defense to an ac- tion upon his subscription. Vicksburg, Shreve- port and Texas B. B. Co. v. McKean, 13 La. An,, 638, 1857 ; Wight v. SMby B. B. Co., 16 B. Monroe (Ky.), 4, 1855; Bed Biver B. B. Co. V. Young, 6 Robinson (La.), 39, 1843. 242. — The subscriber cannot take advant- age of any informalities in the manner of his subscription, unless in case of fraud or erroi'. Mexican Chilf B. B. Co. v. Viavant, 6 Robin- son (La.), 305. 1843. 243. — A subscriber for stock in the Coosa and Chattanooga R. R. Co. is not liable upon his subscription unless he has paid $5 per share at time of subscribing, as required by the charter, although he has acted and voted as a stockholder. Wood «. Coosa and CTmtta- nooga B. B. Co., 32 Ga., 373. 1861. 244. — Where a subscriber knowingly failed to pay the installment of $5 per share, as required by the charter, and afterwards acted as a stockholder and voted at corporate elections, it was held, that he would not be per- mitted on that ground to file an information in the nature of a quo warranto attacking the organization of the company. Cole v. Dyer, 39 Ga., 434. 1859. 245. Pleading. Although a railway char- ter requires that each subscriber shall pay ten per cent, at the time of his subscription, on a suit against a subscriber to enforce payment of a subscription, it need not be averred in the declaration that such percentage was paid. Such fact is a matter of averment in defense. Illinois Biver B. B. Co. v. Zimmer, 20 III., 654. 1858. 246. Promissory note. Where the first in- stallment of ten per cent, was settled by note, which was afterwards ti-aasfen-ed by the com- pany before maturity and collected, it was held that the subscription was valid. Ogdemhwrgh, etc., B. B. Co. V. Wooley, 3 Abbott's Ct. of Ap. Dec. (N. Y.), 398. 1864. 247. — Where the charter of a railway, com- pany provided that each stockholder should, at the time of subscribing, pay the first installment in money, and instead thereof a stockholder gave his note, and subsequently acted as a stock- holder in the organization of the company, this act was held to be a waiver of the irregularity, and ho could not refuse to pay the other install- ments called for. Greenville and Columbia B. B Co. ■». Woodsides, 5 Richardson's Law (So. Car.), 145, 1851 ; OgcUnsburgh, Clayton and Borne B. B. Co. V. Wolley, 1 Keyes (N. Y.), 118, 1864 ; Same v. Same, 34 Howard's Pr. (N. Y.), 54, 1864 ; Selma and Tennessee B. B. Co. v. Tipton, 5 Al.i. N. 8., 787, 1843; Same v. Bountree, 7 ib., 670, 1845. 248. — The charter of the Vt. Central R. R. Co. named certain persons as commissioners to receive subscriptions for stock, and it provided that " every person at the time of subscribing shall pay to the commissioners five dollars on each share for which he may subscribe, and each subscriber shall be a member of said com- pany ; " and it was further provided that when one thousand shares should be subscribed, the commissioners might issue a notice for the- stockholders to meet and elect directors. The defendant subscribed for stock, and instead of paying the money required, gave his note there- for to the commissioners. Held, that the note was supported by a sufficient consideration. Vermont Central B. B. Co. v. Olayes, 31 Vt., 30. 1848. 249. — A right of action may be sustained on such note by the corporation. Ib. 250. — The corporation was capable of tak- ing the promise at the time it was made, not- withstanding the requirements of its organizar tion had not all been complied with. 76. 251. Subsequent payment. A party sub- scribing for stock, if he pay the required in stallment before the books are closed, will bc- held-liable to pay the residue, although he did not pay on each share at the time of taking the SUBSCRIPTIONS BY INDIVIDUALS. 713 Evidence. stock. Klein v. Alton and Sangamon B. B. Co., 13 III., 514. 1851. 252. — Where the charter of a railway com- pany required that a certain per cent, of stock should be paid at the time of making the sub- scription, and stock was subscribed and no pay- ment made at the time, but the per cent, was subsequently paid, ?ield, that such payment was an afQrmance of the subscription. I'iser v. Mississippi and Tennessee It. B. Co., 32 Miss., 359. 1856. 253. — Such payment need not be contem- poraneous with the act of subscribing. Bar- rington v. Mississippi Central B. B. Oo., 33 Miss., 370. 1856. 254. — The defendant did not, at the time of his subscription, pay the ten per cent, re- quired by ch. 140 of 1850, § 4, but subsequently paid forty per cent. Held, that the subscription was thereby made valid. Black Biver and TTtica B. B. Oo. I). Clarke, 25 N. T., 208. 1863. 255. — Where it was necessary to the valid- ity of a subscription that a certain sum should have been paid at the time of the subscription, it was held, that it was not competent to show that shortly after the subscription one of the commissioners, since deceased, had paid over the amount of the installment to the treasurer, saying that tlie defendant had paid it on ac- count of the subscription. Western Maryland B. B. Oo. V. Manro, 32 Md., 280. 1869. XIX. Evidence. [See ante 704, subdivision VIII of this title.] 256. Application of funds. In an action brought upon a subscription for stock, the cir- cumstances connected with the payments, and the amount called for, and the amount paid, are proper evidence as to the application of, or in- tention to apply, the money paid ; and the at- torney of the defendant may be compelled to testify as to the contents of receipts in his pos- session, or the defendant may be compelled to produce them. Andrews v. Ohio and Missis- sippi B. B. Co., 14 Ind., 169. 1860. 257. Different kinds of evidence. Written subscriptions may be proved by admissions of the subscribers, the testimony of persons who saw the subscriptions made, the proof of the handwriting and proof of payments made thereon. Philadelphia and West Chester B. B. Co. v. Hickman, 28 Penn. St., 318. 1857. 258. — The subscription books are not in themselves evidence. Ih. 259. — It is not error to admit in evidence a contract of subscription varying from that de- clared upon, where it worked no injury to de- fendants, who were proved liable otherwise by acts of participation in the company's aflfairs, such as voting, acting as directors, judges, etc., and active exertions to obtain municipal sub- scription on the faith of the subscriptions cer- tified to have been made by the parties so act- ing. Kays & Black v. Pittsburgh and Steuben- mile B. B. Co., 38 Penn. St., 81. 1860. 260. — Such acts amount to an estoppel, and are primary and not secondary evidence. lb. 261. — Where a person subscribed for cer- tain shares in a corporation, and the clerk entered his name on the records, and the sub- scriber subsequently stated that he had taken the shares, and the treasurer offered him a cer- tificate for the same; held, that the evidence was competent to show him a shareholder, so far as to be liable for all legal assessments that might be made on his shares. New Hamp- shire B. B. Co. V. Johnson, 80 N. H., 390. 1855. 262. Incorporation. The general statutes for the incorporation of railway companies (ch. 140, Laws of 1850) require in the ai-ticles of association only such approximative estir mate of the length of the proposed road as may be made in good faith without an actual sur- vey. Buffalo and Pittsburgh B. B. Oo. v. Hatch, 20 N. Y., 157. 1859. 263. — The affidavit of three directors that $84,100 has been in good faith subscribed to the capital stock, annexed and referring to the articles which state the termini of the road, and that its length is about seventy-flve miles, is sufficient evidence that at least $1,000 of stock for every mile of road proposed is sub- scribed, lb. 264. — The statement in such affidavit, that " ten per cent, has been paid in cash on said subscription" is sufficient, without adding that it was paid to the directors or in good faith. lb. 265. — Where the articles of association of a railway company were in proper form, and properly authenticated and certified, and so far as such articles were concerned, all the require- ments of the statute had been complied with ; and the company had assumed corporate fun&i tions, built a portion of its road and gone into 714 SUBSCBIPTIONS BY INDIVIDUALS. Evidence. actual operation, and had been doing business some five years; tlie defendant being one of the directors and acting as such for several months ; and the legislature had, by three sev- eral acts, distinctly recognized its corporate existence ; held, in an action by the corporation to recover calls upon its capital stock, that it was to be deemed a legal corporation, and authorized to sue, as such. Black liiver and Utica R. II. Co. V. Barnard, 31 Barbour (N. Y.;, 858. 1859. 266. — Proof of an authorized call for a subsequent installment is evidence that a former one had been made by proper authority. Bav- ington v. Pittsburgh and Steuhenville B. B. Co., 34 Penn. St., 358. 1859. 267. — The books of the corporation are competent evidence against a corporator to prove the amount of the installments as well as the calls. lb. 268. Location of depot. In an action on a subscription, parol evidence is admissible to show that the conditions of the subscription have been complied with; and the objection that the best evidence of the location of a depot and letting of a contract, etc., is the contract and survey, does not apply. 8t. Louis and Ceda/r Bapids B. B. Co. v. Eakim, 80 la., 279. 1870. 269. Parol evidence cannot be introduced to show the inducements held out, upon which the subscriber acted, unless such testimony will establish fraud or mistake. Martin v. Pensacola and Georgia B. B. Co., 8 Pla., 370, 1859 ; Johnson v. Same, 9 ib., 290, 1800 ; Wight V. Slielby B. B. Co., 16 B. Monroe (Ky.), 4, 1855. 270. — Parol evidence is not admissible to vary the terms of a written subscription made to the capital stock of a corporation. Kenne- bec and PoHland B. B. Co. v. Waters, 34 Me., 869. 1852. 271. — Parol declarations made by oflBcers of a company on public occasions, if admis- sible at all to invalidate a subscription to stock, cannot be shown as a defense unless they amount to fraud. Vicksburg, Shreveport and Teaas B. B. Oo. v. McKean, 12 La. An., 638. 1857. 272. — The defendant authorized the secre- tary of a meeting to subscribe for him, by put- ting his name to a blank sheet of paper, and the name was subsequently transfeired to the subscription books of the company, without any further authority. Held, that the defend, ant might show by parol evidence, that he authorized the subscription only on certain conditions. Tonica and Petersburg B. B. Oo. i>. Stein, 21 111., 96. 1859. 273. — A contract of subscription must be in wi-iting, and cannot be established by parol evidence ; and in order to let in secondary evi- dence, there must be some proof of an original subscription, and of the loss of the book or paper. Pittsburgh and Steubenville B. B. Co. V. Gazzam, 32 Penn. St., 840. 1858. 274. Pleadinj>;s. Suit was brought upon a subscription for railway stock, whereby the subscribers promised to pay the sum, etc., for each share subscribed, "in such manner and in such proportion and at such times," as the company should direct. The answer admitted the subscription as alleged in the complaint, but denied the other averments. Reld, that personal notice of a call for stock was not re- quisite. Held, also, that it was not necessary to introduce the book containing the defend- ant's subscription in evidence. Fisher v. JSv- ansville and Craiofordsville B. B. Co., 7 Ind., 407. 1856. 275. Proxy. A proxy, signed by an indi- vidual as a stockholder, is prima facie evidence against him that he is a stockholder. Green- ville and Cohimbia B. B. Co. v. Smith, 6 Rich- ardson's Law (So. Car.), 91. 1852, 276. Subscription books. In an action brought upon a subscription to the stock of a railroad company, the subscription book into which the names and subscriptions of the de- fendant and other subscribers were trans- scribed from a memorandum or paper on which they were originally written, at a meet- ing held for the purpose of procuring sub- scriptions, is admissible in evidence, without accounting for the loss or absence of the mem- orandum, when it appears that the person so- liciting the subscription was empowered, by the authority confened at the meeting, to thus transcribe the subscriptions. Imoa and Min- nesota B. B. Oo. V. Perkins, 28 Iowa, 281. 1869. 277. — Nor would the objection avail, that such memorandum had not been stamped, the subscription book being properly stamped. Ib 278. — A suit in assumpsit was brought by a railway company on a subscription of stock and a trial was had upon the general issue SUBSCRIPTIONS BY INDIVIDUALS. 715 Stock Certificates-- Assignment of Steele. Tlie plaintiff proved by its secretary that cer- tain books had come into his possession from his predecessor, as boolts of the company, one of which purported to contain subscriptions to the capital stock of the company, and an- other to contain its ijroceedings. Certain en- tries in these books were admitted in evidence. The subscription book contained resolutions of the directors, fixing the amount of a share, the terms, etc. To these, the declaration aver- red that the defendant placed his signature, witli the number of shares he desired. The resolutions were specially set forth in the de- claration. Held; I. That the proof of the identity of the instrument offered in evidence, with that declared on, was sufficient, if, indeed, such was at all necessary. II. That under the issue, proof of the execution of the instrument was not necessaiy. Breedlove v, Martinsville and Franklin B. B. Co., 13 Ind., 114. 1839. 279. — loss. Evidence of the loss of a sub- scription book so as to let in secondary evi- dence of the fact of subscription is for the court and not for the jury; Graff v. Pittsburgh and Steubenville B. B. Oo., 31 Penn. St., 489. 1858. 280. — Proof of diligent s6arch and inquiry, by the proper custodian, is sufficient to let in secondary evidence unless tlie book be traced to other hands. lb. 281. — Where the secretaiy of a railroad company, in response to a demand for a copy of a written contract of subscription, shown to have been in the possession of the company, answers that it has been lost, proof of his an- swer is, prima facie, sufficient to entitle the party making the demand to give oral proof of its contents, in a suit against the company. Indianapolis and Cincinnati B. B. Go. v. Jewett, 16 Ind., 373. 1861. 282. — It is to be presumed, from the char- acter and ordinary duties of the officer who made the admission of its loss, that he was the custodian of such writings, and therefore his admission was competent evidence against his employer. lb. XX. Stock certificates. 283. Installments. Where subscriptions are made, to be paid in installments, and cer- tificates of stock are to be issued for the sev- eral installments, a readiness and willingness to issue the certificates, at the time payment is to be made is all that can be required. James v. Cincinnati, Hamilton, etc., B. B. Co., 3 Disney (Ohio), 361. 1858. 284. Limitations. Where a railroad com- pany sued a subscriber on a balance due on his subscription, and recovered only a part of such balance, the other part being barred by statute of limitations ; held, that the subscriber or his assignee was entitled to a certificate of the stock, after having paid the amount so re- covered. Johnson «. Albany and Susquehanna B. R. Co., 40 Howard's Pr. (N. Y.), 193. 1870. 285. Tender of certificate. Where the charter of a company does not require it, a certificate of stock need not be given to a sub- scriber to enable the company to recover upon a subscription to stock. Cliandler i). Nortliern Cross B. B. Co., 18 111., 190. 1856. 286. — Where there was a subscription of stock to a railway company, and when due, the paj'ment of the amount subscribed was de- manded by the company, and payment was refused ; 7i,eld, that it was not necessary for the company to show that it had issued or offered to issue the certificates of stock as a condition precedent to a right of recovery on the sub- scription. Fulgam v. Macon and Brunswick B. B. Co., 44 Ga., 597. 1873. 287. Title of stock; registry. No tender of a certificate of stock is necessary before suit is brought. Such certificate does not con- stitute the title to the stock. The registry of the stockholder's name upon the stock book of the company, opposite the number of his shares, gives hijn his title. New Albany and Salem B. B. Go. v. McCormick, 10 Ind., 499 1858. XXI. Assignment of stock. 288. Assignment of subscriptions. A railway company whose charter gives it the general power to make all contracts which its convenience or interest may require has pow- er, in carryittg out the enterprise authorized by its charter, to assign its stock subscriptions, there being nothing in the charter forbidding it. Bownie v. Hoover, 13 Wis., 174, 1860 ; Same V. White, ib., 176; Bacine County Bank v. Ayers, ib., 513. ■ 289. Effect of assignment of stock. When stock partially paid for is transferred by the stockholder bona fide to another person, and 716 SUBSCRIPTIONS BY INDIVIDUALS. AsseBsments. lie is acccijted by the corporation as the holder of the stock, this is a discharge of the origi- nal stockholder. Allen v. Montgomery li. Ji. Co., n Ala., N. S., 437. 1847. 290. — The original subscriber to the capi- tal stock of a railway company, incorporated under the general rail: ead act of Feb. 19, 1849, is not discharged from liability for the amount remaining unpaid upon such stock, by ti-ans- ferring it to another, whether made in good faith or not. FitUhurgli and Oonnelleville B, B. Oo. V. Clarke and Thaw, 39 Penn. St., 146, 1857 ; Graff v. Pittsburgh and Steuhenville B. B. B. Co., 31 ib., 489, 1858. 291. — Under said act, no valid transfer of the stock can be made by a person who is in- debted to the company, without the consent of the board of directors. Ib. 292. — The liability to pay for the amount of the stock subscribed is an indebtedness, al- though the installments have not been called at the time of the transfer. Ib. 293. — Tlie consent of the board of direct- ors must be by recorded resolution, and can- not be proven by parol. Ib. 294. — The clause in the act subjecting the assignee to certain disadvantages is intended to fix his liability, and not to release the as- signor. Ib. 29.5. — A transfer made without the con- sent of the company to avoid payment is no valid defense to an action for tlxe purchase money of the shares. Mverhart v. Westcheiter and PhilfiMphia B. B. Co., 28 ib., 339. 1857. 296. Entries of credit on the books for stock assigned are of no validity if founded on a transfer which did not discharge the assign- or's liability. Hays & Black v. Pittsburgh and Stubenville B. B. Co., 38 Penn. St., 81. 1860. 297. Substitute of subscriber. A plea which avers that a party had refused to take certain stock for which he had subscribed, and that another person had agreed to take such stock, and that the commissioners had counted such stock to the latter person, is insuffleient; the signature of the first subscriber should have been erased, and that of the other should have been substituted. Byder v. Alton and Bangamon B. B. Co., 13 111., 516. 1851. XXII Assessments. See post 723, 8al)-dlTl6lon XXV of this title. 298 Ad;ion — may be brought when. Where the rights of creditors are not in ques- tion, an action will not lie against a subscriber to tlie capital slock of a corporation to recover his subscription or any part thereof, until he is in default after regular calls upon him pursuant to the chartei'. Mann, lieceiter, etc. v. Pentz, 3 N. Y., 415, 1850; reversing Same v. Same, 2 Sandford's Cli. (N. Y.), 257. 1845. 299. Condition of charter. In an action for assessments, made for the legitimate pur- poses of the corporation, it is not necessary for the plaintiff to show compliance with the provisions of its charter, requiring that the company shall not engage in nor commence the construction of any section of its road until seventy-five per cent, of the estimated cost thereof, shall have been subscribed by responsible persons. Penobscot B. B. Co. v. White, 41 Maine, 513. 1858. 300. — The corporations have the riglit to determine as to the responsibility of the sub- scribers, when they do so in good faith. Ib. 301. Demand. Where a by-law was passed requiring all stockholders to pay up the full amount of their assessments, it was Jield, that the defendant being president of the company, and being present at the time of the passage of the by-law, was liable upon his subscrip. tion without a demand. Winter v. Muscogee B. B. Co., 11 Ga., 438. 1852. 302. Failure of others to comply with their contracts. It is no defense to an action for assessments upon subscriptions to stock that stock has been awarded to other persons, without the payment of the required per cent, at time of subscribing. One who has received what he contracted for cannot complain that another has received an award that he could not have enforced. Swartwout v. Michigan Air Line B. B. Co., 24 Mich., 889. 1873. 303. Forfeiture of charter. That which would operate to forfeit a charter granted by the legislature, cannot be taken advantage of by a stockholder of the corporation, in an ac- tion brought against him for the recovery of assessments on his stock. The state alone can claim such forfeiture. Connecticut aud Pas- sumpsie Bivers B. B. Co. v. Bailey, 34 Vt., 465. 1852. 304. Installments. In an action to recov- er the whole amount of a railroad subscription, payable in installments, the company may re- cover an installment payable without any pro- SUBSCRIPTIONS BY INDIVIDUALS. 717 Assessments. viso or conditions, althoiigli it sliould fail in proving its riglit to the other installments. St. Levis and Cedar Bapids B. B. Co. v. Eakina, 30 Iowa, 279. 1870. 305. Levy of assessment. Where a vote of the directors of a corporation, requiring installments, directed that they should be paid, at the times therein designated ; but did not, in terms, make them payable to the treasurer of the corporation; it was held, that the im- port of such vote was, that said installments were payable to the treasurer, he being the proper officer to receive and keep the moneys of the corporation. Daribury and Norwalk B. B. Co. ». WiUon, 22 Conn., 435. 1853. 306. — Calls made by the treasurer under general authority given by the board are valid, though the resolutions did not specify the amount of each call. Hays & Black v. Pitis- hirgh and Stubenville B. B. Co., 38 Penn. St., 81. 1860. 307. — An omission to record a call for a particular installment is supplied by the rec- ord of a call for other unpaid installments. II). 308. — In order to recover subscriptions, which are to be called for in proportions, it must appear that the installments were called for periodically, and not that the assessments therefor were all made at one time. Spangler V. Indiana and Illinois B. B. Co., 21 111, 276. 1859. 309. — evidence. An order of the board of directors of a railway company, assessing the subscriptions of stock, certified hy the secretary of tlie company, though not authen- ticated as the statute requires, is admissible in evidence in a suit upon a subscription, if no objection be made ; and when so admitted, it is as conclusive of the matters contained in it, as if it had been properly authenticated. Smith V. Indiana and Illinois B. B. Co., 12 Ind., 61. 1859. 310. — A resolution of the board of direct- ors requiring the stockholders to pay an in- stallment of 10 per cent, every thirty days on all cash subscriptions, until the wholeis paid, and that due notice thereof be given, is ad- missible evidence to show a call for payment of an installment in thirfy days from date, and every thirty days thereafter. Heaston v. Cin- cinnati and Ft. Wayne B. B. Co., 16 Ind., 375. 1867. 311. Limit of amount of assessments. The charter of a railway corporation provided that assessments might be made on the shares of stock, but no greater amount should be lev- ied than $100 in the whole upon each share. Held, that assessments beyond that amount, levied for the payment of the debts of the cor- poration, were illegal. Great Falls and Con- way B. B. Co. i>. Oopp, 38 N. H., 124. 1859. 312. — "Where the board of directors had tlie right, in their discretion, to make assess- ments, and the subscriptions contained the proviso that no assessment should exceed IflO on the share, it was held, that sixteen assess- ments of |5 each on the share might be levied in one vote of the board of directors. But- land and Burlington, B. B. Co. v. Thrall, 35 Vt, 536. 1863. 313. — Where, by the terms of subscrip- tion, the stock was made payable at such times and in such sums as the board of di- rectors should, from time to time require, but no assessment was to exceed 10 per cent on the subscription, and assessments were not to be laid oftener than once in sixty days. Held, that no personal demand of payment of in- stallments was necessary before suit; and that it was no objection that the assessments upon diflEerent subscribers were not uniform in amount, so that they did not exceed 10 per cent. Johnson v. Orawfordsville, Frankfort, etc. B. B. Co., 11 Ind., 280. 1858. 314. — Wliere the charter of a railway company limited the amount that should be called for on a subscription of stock to 15 per cent, per annum, and 10 per cent, had been paid, a call was Jield to be sufficiently explicit without specifying a place of payment or the per cent, to be paid — time and place being fixed by the notice. Andrews v. Ohio and Mis- sissippi B. B. Co., 14 Ind., 169. 1860. 315. Assessments. Where the charter pro- vides that sixty days' notice of assessments shall be given by publication, such notice is a condition precedent to suit upon such assess- ments. Mississippi, Ouachita and Bed Biver B. B. Co. V. Gaster, 20 Ark., 455, 1859 ; Same v. Same, 22 ib., 361, 1860 ; Same v. Chestnut, 20 ib., 461, 1859 ; Same v. Turrentine, 21 ib., 445, 1860. 316. — A subscription of stock to a rail- way company contained a provision that the stock subscribed- should be paid in cash at 718 SUBSCRIPTIONS BY INDIVIDUALS. Assessments. such times and places as should thereafter be directed by the directors of the company, and should be applied to the construction of the road. Held, that the subscription could not become payable until tlie directors, at a regu- lar meeting, had fixed the time and place of payment. JETeW, also, that it was not neces- sary to give notice to the subsci-iber of the time and place of payment. Soss v. LaWayette and Indianapolis R. li. Oo., 6 Ind., 297. 1855. 317. — Where the charter is silent upon the subject, an assessment can be recovered with- out notice of the call first being given. Wil- son «. Wills Valley S. B. Go., 33 Ga., 466. 1863. 318. — Subscribers must take notice of the acts of directors, as to calls. Seaston v. Gin. cinnati and Ft. Wayne R. B. Go., 16 Ind., 273. 1861. 319. — In an action brought upon a sub- scription of stock to recover Installments reg- ularly assessed in accordance with tlie terms of subscription, the subscriber is not entitled to notice of assessment, or of the time and place of payment, before suit is brought. Smith v. In- diana and Illinois R. B. Co., 12 Ind., 61. 1809. 320. — Actual notice of the calls and de- mand of payment need not be proved. Peake V. Wabash B. R. Go., 18 111., 88. 1856. 321. — Publication of notice of calls for installments of stock may be proved by the affidavit of the bookkeeper in tlie employ of the publisher of the newspaper in which it was made. Andrews «. Ohio and Mississippi B. B. Go., 14 Ind., 169. 1860. 322. — Such notice is sufficient if pub- lished once, sixty days before the time fixed for payment. /&. 323. — Where publication of notice of as- sessments was required, and it did not appear that there had been any diligent search for, and " inability to find, the newspapers in which it had been published, it was held, that secondary evidence thereof was inadmissible. Butland and Burlington B. B. Go. v. Thrall, 35 Vt., 538. 1863. 324. — That where such notice of assess- ments was required to be published by condi- tions of the company's charter, it was held, that a recovery could not be had upon such assess- ments until such notice had either been .pub- lished, or its publication waived by the sub- scribers, lb. 325. — A notice requiring payments to be made to A. B., residing in the city of Troy, is prima facie a sufficient compliance with the re- quirement of the statute that the place of pay- ment shall be designated in the notice. Troy Turnpike and B. R. Go. v. McGhesney, 31 Wen dell (N. Y.), 296. 1839. 326. Number of shares fixed by charter. The defendant subscribed one share in a corpo- ration, and agreed to pay the same in such as- sessments as the directors for the time being might order. The act of incorporation fixed the number of shares at 10,000, and before that number was subscribed for, the directors made sundry assessments to nearly the amount of the share. Held, that the shares not all being sub- scribed for, the assessments could not be recov- ered. Gontooeook R R. Oo. v. Barker, 33 N. H., 363. 1855. 327. — Under an act of incorporation pro- viding that the number of shares shall not ex- ceed a certain limit, and shall be determined from time to time by the directors, no assess- ment can be laid until the number of shares is so determined. Troy and Greenfield R. R. Go. V. Newton, 8 Gray (Mass.), 596. 1857. 328. — When the number of shares is fixed by the charter, an assessment, made before the whole number is subscribed for, is invalid, al- though the remainder of the shares be sub- scribed for on the same day, after the dissolu- tion of the meeting of directors at which the assessment was made. Stoneham Branch R. R. Go. V. Oould, 3 Gray (Mass.), 277. 1854. 329. — If the charter of a corporation does not definitely fix the number of shares which shall compose its capital stock, this must be done by the directors or stockholders before there can be any valid assessment laid upon the shares of subscribers to its stock. Somerset R. R. Oo. V. Olarke, 61 Me., 379. 1871. 330. — Where the charter of a corporation limits the capital stock to not less than 500 nor more than 10,000 shai-es, and authorizes the di- rectors to levy assessments as soon as 500 shares are subscribed for, and from time to time, to en- large the capital up to the maximum limit, all the shares to be equally assessed, it is not ne- cessary for the company to determine the ulti- mate amount of its capital within the limit of the 10,000 shares, before proceeding to make assessments upon the first 500 subscribed for. White Mountains R. R. Go. v. Eastman, 34 N. H., 124. 1856. SUBSCRIPTIONS BY INDIVIDUALS. 719 Assessments. 331. — estoppel. A subscriber for shares in a corporation may, by his acts, be estopped from denying the legality of assessments upon his shares on the ground that all the shares are not taken up. Nev3 Hampshire B. B. Co. «. Johnson, 30 N. H., 890. 1855. 3 3 2. — preferred stock. If the charter fixes the minimum of the capital stock, assessments cannot be made until that amount is subscribed by men apparently able to pay. Lcwey^s Island B. B. Co. «. Bolton, 48 Me., 451. 1860. ' 333. — ♦A subscription to "preferred stock," made to draw ten per cent, interest at once, can- not be reckoned to make up the amount if stock required. li. 334. Penalties. The statutory penalty of one per cent, a month on unpaid installments is recoverable from the time of the respective calls, until judgment; it does not cease at the institution of the suit. Act. Feb. 19, 1849, § 8. Bavington d. Pittsburgh and Steubenville B. B. Co., 34Penn. St., 358. 1859. 335. — There is no limitation of time pre- scribed in the act within which such statutory penalty must be sued for. lb. 336. Pleading. A declaration, in an action of contract brought by a railway company, which sets forth the defendant's written sub- scription for a certain number of shares of its stock, and the sale of such shares, for nonpay- ment of assessments, for less than enough to pay the same, and that the defendant owes it the amount of the deficiency, although it does not state that the defendant became a stock- holder, is a declaratien upon Rev. Stats., ch. 39, § 53, and not upon the contract of subscrip- tion, and need not aver perfoi'mance of the conditions precedent of the contract. AmJierst and Bekhertoion B. B. Co. v. Watson, 4 Gray CMa3s.j, 61. 1855. 337. Sale of shares. To enforce a liability imposed by statute, the law must be strictly complied with. Lewey's Island B. B. Co. ». Bolton, 48 Me., 451. 1860. 338. — All the requirements of the by-laws, in selling shares for delinquent assessments, must be strictly complied with. lb. 339. — Where a notice of sale is required to be posted in a conspicuous place, it is not sufficient to prove that it was posted in a pub- lic place. lb. 340. — If a part of the assessment is ille- gal, the sale is Invalid. lb. ' 341. — Assessments for an amount beyond the sum authorized by the charter are void. lb. 342. — Assumpsit may be maintained on such subscription, although the company has not exercised its chartered authority to sell the shares for the delinquency. Kennebec and Portland B. B. Co. v. Jarms, 34 Me., 360. 1853. 343. — Where a subscriber for stock makes no promise to pay assessments, his shares must be sold to pay the assessments before an action can be maintained against him. JS'ew Hampshire B. B. Co. v. Johnson, 39 N. H., 390. 1855. 344. — A sale of shares for nonpayment ot several assessments, one of which is illegal, is void. Stoneham Branch B. B. Co. v. Gould, 3 Gray (Mass.), 377. 1854. 345. — An action may be maintained by a corporation, upon a promise by a subscriber, for shares in its capital stock, contained in his subscription, to pay the assessments upon them as ordered, notwithstanding the charter empowers the directors to sell the shares for the ntmpayment of the assessments. White Mountains B. B. Co. v. Eastman, 34 N H., 124. 1856. 346. — And this will be held the law, not- withstanding the charter provides for a sale of stock only, in case of a failure to pay as- sessments thereon. Connecticut and Passumpsic Bivers B. B. Go. v. Bailey, 24 Vt., 465. 1853. [See BUbdivision XXVI of this title, where the cita- tions as to the eifect of a forfeiture may be found.] 347. — notice. A by-law of a railway com- pany provided, that in case of a sale of shares for nonpayment of assessments, the treasurer should give notice to the delinquent owner, when his residence was known, of the time and place of sale, by letter seasonably put into the mail. Held, that this bj'-law was directory to the treasurer, and not a condition precedent ; and that a written notice of the time and place of sale, signed by the treasurer, and delivered to the owner of the shares, or left at his dwel- ling house, and received by him as soon as he was entitled to receive it by mail, was suffi- cient. Lexington and West Cambridge B. B. Co. v..Chandkr, 13 Metcalf (Mass.), 311. 1847. 348. Statutes. — Under the general rail- road law of 1855, no levy or assessments could be made until the whole amount of the capital 720 SUBSCRIPTIONS BY INDIVIDUALS. Changes in Charter. stock specified in the articles was subscribed. Bchurtz V. Schoolcraft and Three Rivers B. R. Co., 9 Mich., 309. 1861. 349. Transfer of stock. The subscribers to stock held not liable to any further assess- ment in this particular case, they having transferred their stock to a municipal corpora- tion, the company being insolvent.' Burke v. Smith, 16 Wallace, 390. 1872. 350. — A stockholder in the Hartford and New Haven R. R. Co. who derived his stock by a transfer from the original subscriber, and received a new certificate from the company, is personally liable to pay the installments called for after the transfer. Sartford and New Haven R. B. Co. v. Boorman, 12 Conn., 530. 1838. 351. — The provision that "no transfer of stock shall exempt the party transferring it from the obligation of paying installments afterwards called for, until fifty per cent, on each share shall have been paid," exempts from liability to the company only those who have transferred their stock after the payment of fifty per cent, on each sliare, and before the installments have matured, and payment has has been demanded. Vicksburg, Sli/reueport and Texas R. R. Oo. v. McKeen, 14 La. An., 724. 1859. XXIII. Changjss in Chaeter. 352. Change of name or location. It is no objection to the recovery of installments due on a subscription to the stock of a rail- way company that since the subscription, the name of the company has been changed, and the length and termini of the road materially altered. Delaware and Atlantic R. B. Oo. v. Trick, 8 Zabriskie (N. J.), 321. 1852. 353. — Where a defendant contracted with a railway company while acting under the name given by its amended charter, in that name, he could not be heard to insist that there had been no valid acceptance of the amended charter. Eppes v. Mississippi, Oaines- ville and Tuscaloosa R. B. Oo., 35 Ala. N. 8., 33. 1859. 354. — An alteration by the legislature of a company's charter, in pursuance of powers reserved, by changing its name, increasing its capital and extending its road, does not dis- charge a stockholder from liability on bis subscription. Buffalo and New York B. B. Oo. V. Dudley, 14 N. Y., 336. 1858. 355. — It is no defense, that the company, subsequent to the subscription, has accepted an amendment to its charter authorizing it to extend its road, and otherwise to assume new and increased responsibilities. Rice v. Bock Island and Alton R. B. Co., 31 111., 93. 1859. 36B. — A change of the charter of a rail- way company authorizing a change of route, assented to by a majority of the stockholders, will not absolve a nonassenting stockholder from his subscription. Delaware R. R. Oo. v. Tharp, 1 Houston (Del.), 149. 1855. 357. — The mere acceptance by the com- pany of an amendment to its charter author, izing it to build a branch road, will not, with- out any steps being taken by the company to appropriate its funds to the building of the branch, be a gi-ound for releasing a stockholder who had not consented to the amendment. Hawkins n. Mississippi and Tennessee B. B. Co., 85 Miss., 688. 1858. 358. —A material deviation from the lo- cated line will release stockholders who have not assented to the change. Ohampion v. Mem- phis and Oha/rleston R. R. Oo., 35 Miss., 692, 1858 ; Kenosha, Rockford and Rock Island R. R. Oo. V. Marsh, 17 Wis., 13. 1868. 359. — Tliereis no general rule as to what deviation will release a stockholder; each case must be determined by its own peculiar cir- cumstances. The deviation, when relied upon as a defense, must be clearly pleaded. lb. 360. Consolidation. An amendment to a railway charter, which authorizes the consoli- dation of the road to be built under it, with any other intersecting road, and there termi- nates it, is not such an alteration of the pro- ject as will excuse a stockholder from paying his subscription for stock. Sprague v. Illinois River R. R. Oo., 19 111., 174. 1857. 361. Constitutional law. An amendment of a railway charter requiring the original stockholders to waive their conditional interest in additional subscriptions authorized by the amendment is not unconstitutional. Omnty Judge of SMby County v. Shelby R. R. Co., 5 Bush, (Ky.), 325. 1868. 362. Charter as part of the contract. Where the charter creates and defines the terms o' the contract 1 etween the company and the stockholder, it is only necessary that the writ SUBSCRIPTIONS BY INDIVIDUALS. 721 Changes in Charter. ins: should indicate the intention to become a stockholder, and the number of shares that are taken by the subscriber. The taking of stock creates a contract to pay for it in the mode prescribed by the charter, and a stipula- tion to that effect in the subscription paper is not necessary. Fry'n ExW. ■». Lexington and Big Sandy B. R. Co., 3 Metcalfe, (Ky.), 314. 1859. 363. Effect of amendment— subscribers released. The plaintiff, a railway company, ■vvas incorporated with a capital of $500,000, with power " to call the first meeting of the stockholders whenever $100,000 or more of the capital stock shall have been subscribed for, to choose directors and perfect the organiza- toin of said corporation," and "when so organized to proceed to commence the con- struction of the railroad." The sum of $216,700 was subscribed, including the defend- ants' subscriptions, and the first meeting of the stockholders was then held and directors chosen. Subsequently an amendment to the plaintiff's charter was passed by the general assembly, authorizing the city of N. H. to subscribe $200,000 to the capital stock, and to appoint two directors in the company, with one vote for every four shares of stock held by the city. Pursuant to the power so given, the the city of N. H. subscribed $300,000 to the stock, and appointed two directors who assum- ed and continued to discharge the duties of the office. No other subscriptions were made, and the directors thereupon proceeded to call in the capital stock, and to commence the construction of the railway. In a suit brought to recover subscriptions to the stock, it -was held; — I. That the term "organized," as used in the charter, embraced merely the choice by the stockholders of the necessary officers for the transaction of the business of the company, and that the plaintiff, when so organized, $100,000 haviJfg been subscribed to the stock, might legally begin the exercise of its corporate franchise. II. That the amendment to the charter, and the action of the plaintiff and the city under it, did not impair the rights of the defendants as stock- liolders, or relieve them from liability on their subscription. New Haven and Derby B. B. Co. V. Chapman, 38 Conn., 56 1871. 364. — An act of incorporation may be amended by the legislature, and if the amend' 46 ment is accepted by the directors, the stock- holders under the original act unless otherwise stated, will be held liable. The only question for consideration is, whether the value of the stock as an investment will probably be bene- fited thereby. Illinois Biver B. B. Co. v. Zim- TO«r, 20 111., 654. 1858. 365. — Amendments of the charter of an incorporated company which are necessary to carry into effectits main design, may be mado without the consent of a shareholder. But an amendment which fundamentally changes the responsibilities and duties of the company, or which superadds an entirely new enterprise to that which was originally contemplated, may be resisted by the stockholders, unless such amendments are provided for in the charter itself, or in the general laws of the state in force at the time the act of incorporation was passed. Fry''s Bx'r. v. Lexington and Big Sandy B. B. Co., 3 Metcalfe, (Ky.), 814. 1859. 366. — Subscribers who do not assent to such unauthorized amendment may prevent the company from proceeding to act under it, and embarking in enterprises not contemplat- ed by the original charter; but the mere pas- sage of the amendment, conferring such addi- tional powers upon the company, which it has not attempted, and may never attempt, to exer- cise, does not operate per se to exonerate a shareholder from liability to pay his subscrip- tion, lb. 367. — A subscriber cannot avoid payment because the charter of the road has been so changed, as to authorize the company to pur- chase stock in other railway companies, even though the terminus of the road, in which the stock was first subscribed, is thereby changed. Terre Saute and Alton B. B. Co. v. Earp, 21 111., 391. 1859. 368. — A subscription to stock may be col- lected, although amendatory acts have been subsequently passed, affecting the original charter, by extending its powers. Peoria and Oquawka B. B. Co. ■». Biting, 17 111., 439. 1856. 369. — When the charter of a railway com- pany contains a clause authorizing the legis- lature to repeal or alter it, such alteration made on the application of the directors, with- out consulting the stock subscribers, does not absolve the latter from their subscriptions. Northern B. B. Co. v. Miller, 10 Barbour (N. Y.;, 360. 1851. 722 SUBSCRIPTI0N8 BY INDIVIDUALS. Changes in Charter. 370. — An immaterial amendment to the charter of a railway company will not release a nonassenting stockholder. Wilson v. Wills Valley B. R. Co., 83 Ga., 468. 1863. 371. — A subBcriber who agrees to be sub- ject to the rules and regulations which may from time to time be adopted by the directors, cannot avoid payment, because the charter has been amended, reducing the number of days of notice to be given, if the amendment of the charter has been accepted. Illinois Bivev B. R. Oo. v. Beers, 27 111., 185. 1862. 372. — A person who has subscribed for stock, under the original charter of a corpora- tion, will not be discharged from his obliga- tion to pay for it, by a subsequent legislative enactment altering the charter without his consent, the general object of the corporation remaining unchanged. Pacific R. R. Co. v. Rensham, 18 Mo., 310, 18.53 ; Same v. Hughes, 33 Mo., 291, 1855. 373. — subscribers not released. A radi- cal change in the character of the enterprise in which a railroad company was engaged when it obtained a subscription to its stock, releases the subscriber from his liability. Ke- noslM, Rockford and Rock Island R. R. Co. e. Marsh, 17 Wis., 13. 1863. 374. — The fact that such change is made under an amendment of its charter does not change the rule. Ih. 375. — To relieve a stockholder on the ground that there has been a material altera- tion of the charter of the corporation, it is necessary that such stockholder should have dissented from such alteration in a reasonable time. Martin v. Pensaeola and Oeorffia R. R. Co., 8 Fla., 370. 1859. 376. — A material alteration of the charter of a railroad company will release all nonas- senting stockholders from liability upon their subscriptions. Winter v. Muscogee R. R. Co., 11 Ga., 438, 1852 ; Enerliart v. West CJiester R. R. Co., 28 Penn. St., 339, 1857; Bparrow v. Evansville and Ora/wfordsmlle R. R. Co., 7 Ind., 869, 1856. •377. Extension of time for completing road. Subscriptions to the capital stock of a railroad company will not be defeated by a subsequent amendment of the charter extend- ing the time for the completion of the road. Agricultural Branch R. R. Oo. v. Wincliester, 13 Allen (Mass.), 29. 1866. 378, Preferreil stoclt. Modifications and improvements in the charter, useful and bene- ficial to the company, do not impair the con- tract of subscription to the capital stock as against a non-assenting subscriber. Enerha/rt V. West Chester and Philadelphia R. B. Co., 28 Penn. St., 339. 1857. 379. — A change authorizing the issue of preferred stock for the purpose of raising means to make and equip the road as origin- ally contemplated, which amendment is ac- cepted by a majority of the stockholders, and such preferred stock issued, is not such a rad- ical change as will exonerate an original sub- scriber who has not assented to the change. /&. 380. Rednctlon of number of shares. Where the charter of a company requires its stock to consist of not less than a given num- ber of shares, no action can be maintained for subscriptions to stock until the required num- ber of shares are taken. A subseqent altera- tion of the charter reducing the amount of the capital will not affect prior subscribers. Old- town and Lincoln B. R. Co. v. Veazie, 39 Me., 571, 1855 ; Penobscot R. R. Co. v. Hummer, 40 Me., 172, 1855. 3S1. — Where the defendant subscribed for two shares in the capital stock of a corpora- tion on certain conditions named therein, none of which had reference to the number of shares subscribed for, and paid three assess- ments thereon ; and the shares were afterwards, to pay further assessments, sold for a sum less than the assessments, it was held, that defend- ant was liable for the balance, though the mini- mum number of shares required by law had not been subscribed. YorJe and Cumbei-land R. R. Co. V. Pratt, 40 Me., 447. 1855. 3S 2. — Where, after subscribing for stock under an act of assembly which required sub- scriptions to a certain amount before corporate authority should be granted, a subsequent act was passed reducing the amount of subscrip- tions required, under which the company was organized, it was held, the change would not release from liability the person subscribing, who nad also voted at the organization, and for election of directors, in right of his subscrip- tion ; and in an action by the company against such stockholder for the sum subscribed, that it was error to instruct the jury that the defend- ant was relieved by the change if he did not know of it, and referring the question of his SUBSCRIPTIONS BY INDIVIDUALS. 723 Increase of Capital Stock — Forfeiture of Stock. knowledge to them. Sedford JR. M. Co. v. Bowser, 48 Penn. St., 29. 1864. 383. — If a statute, fixing the amount of the capital stock of a railway company, is amended by another statute providing tliat the capital required to build the road shall be a less sum, taking a subscription to an amount larger than the capital allowed by the last statute, but less than the capital fixed by the first statute, will not render the subscriptions invalid. Agricul- tural Branch B. B. Go. e. 'WinchciUr., 13 Allen (Mass.), 39. 1866. 384. Steamboats purchased by railway company. Where, in an action brought by a railway company to recover certain install- ments upon the stock subscription of one of its members, it appeared that, after the install- ments became due, but before the commence- ment of the suit, the chai'ter was altered by authorizing the company, in addition to the powers originally granted, to purchase such number of steamboats to be used in connection with the road, as it might deem expedient, pro- vided the amount did not exceed $300,000; held, that neither the board of directors nor a majority of the stockholders could sanction the alteration so as to bind the defendant without his consent. Hartford and New Haven B. B. Co. V. Groswell, 5 Hill (N. Y.), 383. 1843. 385. Time of making calls. Where the articles of incorporation specify the times and amounts of installments of stock to be called for at any one time, and also provide that the articles may at any time be changed by the unanimous consent of the board of directors, the articles may be so amended as to change the times of calling for installments of stock without the consent of the stockholder. (Code, §§ 078, 679, 680.) Burlington and Missouri Biver B. B. Oo. v. White, 5 la., 409. 1857. XXIV. Increase of capital stock. 386. Pleadings. Suit was brought by a railway company upon a subscription of stock. The answer contained, 1. A denial of the subscription. 3. That the capital stock of the company was fixed by the act of incorpo- ration at $5,000,000, in shares of $50 each, and that it had no power to issue certificates for a larger sum, except in the act of incorporation which provided as follows: " Provided, that if the capital stock of said company at any time subscribed shall be insufficient for the purpose aforesaid, of this act, it shall and may be law- ful, etc., from time to time, to increase the said stock, by the addition of as many shares as they may deem necessary, for which they may, at their option, cause subscriptions to be received in the manner prescribed by them, or shall sell the same for the benefit of the company." That before the commencement of the suit, the company had issued stock to the amount ot $5,000,000, in shai-es, etc., and that said amount, etc., was sufficient, etc. ; that the president, etc., have not, at any time before the commencement of this suit, incKoased the capital stock, etc., beyond tliat amount, nor was the same neces- sary, etc. 3. That the capital stock was lim- ited to $5,000,000, and no more, except, etc.; that the plaintiifs fraudulently issued stock to an amount exceeding $5,000,000, the same not being necessary, etc., and thereby rendered the original subscription to the capital stock of the company of no value, and reduced the market price of the stock, etc. Reply to the second paragraph, that after the issue of the stock in said paragraph mentioned, to the amount ot $5,000,000, the plaintiff ordered and directed, as by the said charter was authorized, a further Issue, etc., to the amount of $1,500,000, of which $500,000 has been issued, and that the issue of tlie $1,000,000 is authorized; and that the issue of said additional stock was necessary. Held, that the third paragraph of the answer was bad on demurrer. That the issue formed on the second paragraph of the answer was material ; and that it devolved upon the plaintiff to prove that the stock had been increased as alleged in its reply MeOord v. Ohio and Mississippi B. B. Go., 18 Ind., 320, 1859; Ewirig v. Same, 33 ib., 438, 1864. XXV. FORFEITUEE OF STOCK. 887. Assignment for benefit of creditors. If on the ground of notice of an assignment for the benefit of creditors, the stockholders refuse to pay assessments, it is their duty to make a tender to the assignee, and if he will not accept, they have an equity to be relieved from forfeiture. Q-ermantown Passenger B. B. Go. V. Fitler, 60 Penn. St., 134. 1869. 387. Caraiilative remedy. The plaintiff's charter provided that assessments might be called " under a penalty of forfeiture of all 724 SUBSCRIPTIONS BY INDIVIDUALS. Forfeiture of Stock. previous payments thereon." Held, that the proceeding by forfeiture was cumulative to the right to sue for tlie assessments; tliat such right of forfeiture must be exercised in a rea- sonable manner; that a declaration of forfeit- ure made Aug. 15, on all stock on which the assessments were not paid by Sept. 30, follow- ing, and requiring immediate notice thereof to be given to the delinquents, was reasonable ; that under such declaration, a sale of the stock was not necessary to complete the forfeiture ; that after the forfeiture, the stockholder was released from further liability. Mutland and Burlington B. B. Co. v. Thrall, 35 Vt., 536. 1863. 389. — Where a proviso is inserted in a charter authorizing the sales of the shares of delinquent stockholders, such remedy is cu- mulative only, and does not prevent the col- lection of assessments otherwise. Hartford and New Haven B. B. Co. v. Kennedy/, 12 Conn., 499, 1838; Mann v. Cooke, 20 ib., 178, 1850; Greenville and Columbia B. B. Co. v. Cathcart, 4 Richardson's Law (So. Car.), 89, 1850 ; Peo- ria and Oquawka B. B. Co. v. Biting, 37 111., 429, 1856; Gratz v. Bedd, 4 B. Monroe (Ky.), 178, 1843; Western B. B. Co. u. Avery, 64 N. C, 491, 1870; Troy Turnpike and B. B. Co. v. MoOhesney, 21 Wendell (N. Y.), 296, 1839; Bufalo and New York B. B. Co. v. Dudley, 14 N. Y., 336, 1856; Northern B. B. Co. v. Miller, 10 Barbour (N. Y.), 260, 1851 ; Troy and But- land B. B. Co. v. Kerr, 17 ib., 581, 1854; Marm, V. Currie, 3 ib., 294, 1848; Troy and Boston B. B. Co. V. Tibbits, 18 ib., 297, 1854; Ogdens- burgh. Borne and Clayton B. B. Co. v. Frost, 21 ib., 541, 1856 ; Beene ». Cahawba and Marion 2?.i?. Co., 3Ala., N. 8., 660, 1843; Carlisle v. Same, 4 ib., 70, 1842 ; Selma and Tennessee B. R. Co.v. Tipton, 5 ib., 787, 1843. 390 Deficiency after sale of stock. The sale of the shares of a delinquent stockholder, in a railway company, to pay overdue assess- ments, upon such shares, is no defense to an action against him to recover the deficiency. Banbury and Norwalk B. B. Co. v. Wilson, 32 Conn., 435. 1853. 391. — The forfeiture of stock does not re- lieve a stockholder from the payment of a note given by him for stock, although, after such forfeiture, a material alteration in the charter may have been made. Mitchell v. Borne B. B. Co., 17 Ga., 574. 1855. 392. — Where stock is declared forfeited, the stockholder is absolved from further lia- bility to the company or its creditors. Lex- ington and Ohio B. B. Co. v. Bridges, 7 B. Mon- roe (Ky.), 556. 1847. 393. — When a defendant is sued as astock- holder in a railway company for the sum re- maining due on an assessment on his shares, after they are sold for the nonpayment of the assessment, it is sufficient, for the purpose of showing him to be such stockholder, and lia- ble for the assessment, to give evidence that he signed a subscription paper for shares, be- fore the corporation was organized, that he at- tended and took part in the meeting of the stockholders for the organization of the cor- poration. Lexington and West Cambridge B. B. Co. V. Chandler, 13 Metcalf (Mass.), 311. 1847. 394. Judgment; estoppel. E. subscribed for twenty shares of the defendant's stock, of $100 per share, paid ten per cent, down, and agreed to pay the balance on call of the directors. Several calls upon E. were made and payments made by him pursuant thereto to the amount of $1,000. Other calls not being met by E., a suit was commenced against him by defendant for recovery of the balance due, and as to all but the installment due under a last call of $200, he sustained the defense of the statute of limitations. A judgment was recovered by defendant for the balance due under the last call, which was collected from E. by execution ; afterward the defendant passed a resolution forfeiting all shares of stock upon which any amount remained unpaid. The plaintifi having been appointed receiver of E.'s property, sued in this action to compel the issue to him, as such, of the shares of stock subscribed for by E., demand therefor having been made of the defendant and delivery re- fused. Held, that the defendant was not es- topped by the judgment recovered against E., and payment thereof, from setting up as a de- fense in this action the nonpayment for and forfeiture of such shares. Johnson «. Albany and SusqueMnna B. B. Co., 5 Lansing (NY) 222. 1871. 395. Power of forfeiture must be ex- pressly granted. A corporation has no power to create a by-law, subjecting to forfei- ture, shares owned by individuals in the stock of the company, for the nonpayment of in- SUBSCRIPTIONS BY IKDIVIDUALS. 725 Fraud — Release. stallments due upon such shares, unless the power to pass such by-law is expressly granted by the charter of the company. Long Island R. R Go., In Matter of, 19 Wendell (N. Y.), 37. 1837. 396. Resolution of forfeiture. A general resolution forfeiting stock for nonpayment of installments, which does not specify the stock forfeited, is not valid. Jdhmon «. Albany and Susqueluinna R. R. Go., 40 Howard's Pr., (N. Y.), 193. 1870. 397. Shares offered to stockholders but not taken. The provisions of the revised statutes, ch. 39, § 53, as to the mode in which shares of a stockholder in a corporation may be sold for the nonpayment of assessments, do not apply to the case of new shares offered to existing stockholders, and sold because not taken by them. Sewall v. Jbastem R. R. Co., 9 Gushing (Mass.), 5. 1851. XXVL Fraud. 398. A secret agreement between the agent of a railway company and a subscriber, that the sum subscribed should never be col- lected, is a fraud on the other stockholders and cannot be interposed as a defense to an action in such subscription. Downie v. White, 12 Wis., 176. 1860. 399. — A secret agreement, entered into between the directors of a railway company and a subscriber for its capital stock, that he may, within a specified time, reduce the num- ber of shares subscribed for, the subscription in tlie mean time being held out as hona flde for the full amount, in order to induce others to become subscribers, is void as a fraud on the other subscribers, and the whole subscrip- tion may be collected. White Mountain R. R. Co., B. Eastman, 34 N. H., 134. 1856. 400. Estoppel. If a party admit himself to be a subscriber, and on the faith of such admission, others have acted for his benefit, he will be estopped from subsequently deny- ing that he did not in fact subscribe. Ch'af V. Pittsburg and Setubenville R. R. Co., 31 Penn. St., 489. 1858. 401. — Such subscription is not only an undertaking with the company, but with the other subscribers also; and if fraudulent as between the parties, is to be enforced for the benefit of the others in interest. lb. 402. — A subscriber is estopped from plead- ing that his subscription was a fraudulent one, and that the company was a party to the fraud. lb. 403. Land taken on subscriptions. In an action brought by a railway company on a subscription of stock, the answer set up fraud in Ihis, that since defendant's cash subscrip- tion, the company had taken a large land sub- scription at enormous price, etc. Held, bad on demurrer. Homday v. Indiana and Illinois Gentral R. R. Go., 9 Ind., 363, 1857; Maceoun e. Same, ib., 363. 404. Stock subscribed at less than par. A railroad company cannot receive subscrip- tions under a private arrangement at less than the par value of the stock, as this would be a fraud on the other stockliolders. Mann v. Gooke, 30 Conn., 178. 1850. 405. — Nor can a valid subsequent arrange- ment be made as against creditors dischargimg a stockholder on payment of half the amount of his stock. Ib. XXVIL Eelease. 406. Abandonment of undertaking. If the company abandon the undertaking and re- fund some of the subscriptions, the other sub- scribers are discharged. McGuUy v. Pittsburgh and Gonnellsiiille R. R. Go., 33 Penn. St., 35. 1858. 407. — If the undertaking be not com- menced, bona fide, within the time prescribed by the charter, no action can be maintained on the subscription. 11. 408. — But if the refunding of some of the subscriptions and the delay in commencing work are consented to by the subscriber, as matters of corporate policy which are not to affect his liability as a subscriber, he will be estopped from setting up these matters as a de- fense. Ih. 409. — Where a subscriber has been released by the neglect of the company, he is not again made liable by signing an incomplete letter of attorney, to vote upon a question of accept- ing a supplement to the charter, and additional subscriptions. Ib. 410. Power to release. A railroad com- pany may make, if acting in good faith, a valid and binding contract, releasing a stockholder from liability upon his subscription to the 726 SUBSCRIPTIONS BY INDIVIDUALS. Limitivtions. stock of tlie corporation, either with or with- oat the consent of the creditors and stoclihold- ers of such corporation. GelpcJce, Winslow and Go, V. Blake, 19 la., 263. 1864. 411. — If the directors of a corporation pos- sess the power to release a subscription to the capital stock, and the release is optional with tlie subscriber, he must elect within a reason- able time. The claim of representing such shares long afterwards may well be considered an election to keep the shares subscribed for. Penobscot and Kennebec It. B. Co. v. Dunn, 39 Me,, 587. 1855. 412. Release of a part o£ stockholders. A stockholder cannot object that the directors of the company had released other stockholders ; if the release was under a power, it would be valid, if otherwise, merely void. Hall v. Selma and Tennessee B. B. Co., 6 Ala., N. S., 741. 1844. 413. Unauthorized release. "Where aboard of directors, after reciting a condition attached to certain subscriptions by the commissioners, resolved that the condition be adopted as the act of the company ; that the stock of each sub- scriber be purchased by the company, and the payment of the subscription assumed; that the stock be surrendered, the subscription annulled and cancelled by the secretary ; such action on the part of the board was irregular and unau- thorized, and the cancellation invalid. The di- rectors are agents of the company with limited powers, and they have no power to give away Its funds. Bedford B. B. Co. «. Bowser, 48 Penn. St., 29. 1864. 414. — The minutes of the company, show- ing that immediately after the election of a new board, they repealed the resolutions of their predecessors, were admissible in evidence against the subscriber as a corporator; the books were evidence unless his connection with the company had terminated, which it was not for the court to decide ; and it was also compe- tent for the company to show what took place when the first resolutions were passed, in order to show that the action of the board was fraud- ulent, lb. 415. Waiver of release. Where a sub- scriber to the capital stock of a railway com- pany, who has been released from his obliga- tion, subsequently votes at an annual election for directors, is himself elected director, acts as director and stockholder, and pays money to the company, his acts are evidence of a sub- scription of some kind, and in the absence of proof of a special contract, waiTaut the infer- ence that he had assumed his original obliga- tion. But they are shorn of their importance where a contract accounting for them is shown. Pittsburgh and Connellsville B. B. Co. v. Stew- art, 41 Penn. St., 54. 1861. 416. — Even if the original subscription had not been released, a new contract between the company and the subscriber, authorizing him to pay in materials at a future time, instead of cash on call, would supersede the original con tract. lb. XXVIII. Limitations. 417. Installments. Installments of the sub- scription of stockholders, fixed and required to be paid in by resolutions of the board of direct- ors, cannot be considered as ojjen accounts and prescribed against as such. Such installments are at least equal to accounts stated. JTfiw Orleans, Jackson and Great Northern B. B. Co. V. Lea, 12 La. An., 388. 1857. 418. When the statute begins to run; new promise. A persoh subscribed for twenty shares of the stock of a railway com- pany in 1847, "provided that the construction of said road is prosecuted," but retained his subscription in his own hands until 1854, when the book containing it, with other sub- scriptions obtained by him as agent, was de- livered to the company. Held, that the con- tract did not take effect, nor did the statute of limitations begin to run, until the deliveiy of the book containing it. Pittsburgh and Con- nellsville B. B. Co. V. Phimmer, 37 Penn. St„ 413. 1860. 419. — And where the defendant, more than six years from the date of his subscrip- tion, sent to the company a letter, submitting the names of stockholders received by him, including his own, stating the number of shares held by each, and promising to hand over the notes taken for the first installment when a certain portion of the road should be put under contract, followed a few months after by the delivery of the subscription book; held, that the defendant thereby reoogaizea his obligation as continuing. 26. SUBSCRIPTIONS BY INDIVIDUALS. 727 Pleading and Practice — Rights of Creditors. XXIX. Pleading and practice. 420. Jnry trial. Unpaid calls for railway stock are not " instruments of writing ascer- taining the plaintiff's demand," within the meaning of the statute authorizing the ren- dition of a final judgment by default without the intervention of a jury. Oonnoly v. Alaba- ma and Tennessee Rivers B. B. Go., 29 Ala., N. S., 373. 1856. 421. Pleadings. In a suit brought upon a subscription of stock, the complaint made no reference to any written contract of subscrip- tion, aud did not aver any assessment or call by the directors. Held, that the complaint did not show a good cause of action. Mo- Olasky v. Ch-and Bapids and Ind. B B. Co., 16 Ind., 96. 1861. 422. — A suit in, indebitatus assumpsit for money due on installments for subscriptions, will authorize a recovery. Peake v. Wabash B. B. Co., 18 111., 88. 1856. 423. — A recovery may be had upon the common counts, for an installment due upon a call of an incorporated company. Gayle v. Cahawba and Marion B. B. Co., 8 Ala., N. S., 586. 1845. 424. — The suflBciency of the pleadings in particular cases, determined. Mississippi, Ouachita and Bed Biver B. B. Co. v. Ouster, 20 Ark., 455, 1859 ; Woonsoeket Union B. B. Co. v. Taft, 8 R. I., 411, 1867. 425. — corporate existence. It cannot be pleaded to a complaint upon a subscription of stock, that at the time it was made there was no such corporation, because the defendant is estopped by his contract to deny the corpora- tion, and because, under the general railroad law, subscriptions of a certain amount of stock are necessary for the organization of a contemplated corporation. Anderson 'o. New- castle and Bichmond B. B. Co., 12 Ind., 876. 1859. 42B. — denial under oath. The act of 1854 dispenses with proof in case of a suit by a railway company upon a subscription to stock, unless the pleadings deny the subscrip- tion under oath. A plea not verified is there- fore a nullity. This act is constitutional. Thigpen r>. Mississippi Central B. B. Co., 82 Miss., 847. 1856. 427. — name of corporation. An action for the installments due on the subscriptions to the capital stock of a railroad company, made to commissioners named in the charter, is properly brought in the name of the com- pany after its organization, the contract being with the commissioners, as agents of and for tire benefit of the corporation. Delaware and Atlantic B. B. Co. v. Iriek, 3 Zabriskie (N. J.) 321. 1852. 428. — notice of assessments. In an ac- tion to recover assessments, notice of such as- sessments must be averred and proven. A gen- eral notice published in the newspapers is not sufficient, unless so provided for in the char- ter. Alabama and Florida B. B. Co. v. Bow- ley, 9 Fla., 508. 1861. 429. — road constructed by diTisions. Where a railway charter authorizes the con- struction by divisions of the road under by- laws, and a court, in an action to recover a subscription, describes it as a general subscrip- tion, and not as a subscription to aid in con- structing a division, and the court does not show a division of the road by by-law, aud a proper call for stock is not shown to have been made according to contract, the company cannot recover. Tomlin v. Toniea and Peters- burg B. B. Co., 23 111., 429. 1860. 4.H(>. — terms and conditions. When the terms of a subscription are prescribed by a charter, it is not necessary to state the terms in the petition ; and a general averment, that all the terms and conditions necessary to au- thorize a demand of payment of subscrip- tions, is sufficient under § 149 of the Code of Practice. Henderson and Nashville B. B. Co. V. Leavell, 16 B. Monroe (Ky.), 358. 1855. 431. Process. Judgment cannot be taken against a defaulting stockholder, without ap- pearance or process of any kind, by virtue of § 11 of the charter of the plaintiflF in this case. Wilmington and Baleigh B. B. Co. v. Baker, 3 Devereux & Battles' Law (N. C), 79. 1838. XXX. Eights of creditoes. 432. Actions against stockholders. As to such stockholders who are not in default to the corporation by reason of no call having been made, but whose subscriptions to the capital stock have not been paid, a court of equity may compel payment at the instance of an execution creditor of the corporation. 728 SUBSCRIPTIONS BY INDIVIDUALS. Articles of Association — De Facto Corporations. Allen V. Montgomery B. B. Co., 11 Ala. N. S., 437. 1847. 433. — In an action by a creditor of a rail- road company, organized under the railroad act of 1850, against a stockholder to enforce the liability imposed by § 10 of said act (as amended by ch. 284, Laws of 1854), evidence is proper, upon the part of defendant, to show an assignment of stock, absolute upon its face, was in fact given to him as collateral security, and was hold by him for that pur- pose only. McMahon v. Maey, 51 N. T., 155. 1873. 434. Attachment. Where the sheriff for an attaching creditor, having levied upon the unpaid amount of an individual subscription to railway stock, thereupon brings an action against the stockholder for the subscription, he cannot recover at law unless the company could recover from the stockholder; his rights as against the stockholder are no greater than those of the company. Boiertsmi v. Sibley, 10 Minn., 333. 1865. 435. Joinder of actions. A judgment creditor of an insolvent corporation may join, in the same action, a claim to compel pay- ment of unpaid subscriptions for stock, and a claim to enforce the individual liability of stockholders, for the satisfaction of his judg- ment. Warner ®. Callender, 30 Ohio St., 190. 1870. XXXI. Articles of association. 436. Filing. Where duplicate sets of arti- cles of association are used for the purpose of obtaining subscriptions, and one set, signed by several persons, and accompanied by the proper affidavit, is filed in the office of the secretary of state, while the other set, sub- scribed by different individuals, is not so filed, the subscribers to the latter paper do not be- come membei's of the corporation, and are not liable upon their subscriptions. Srie and New Yorh B. B. Co. v. Owen, 32 Barbour (N. Y.), 616. 1860. 437. Inspection of articles of association. The defendant, in an action upon a subscrip- tion to the original stock of a railway compa- ny, cannot demand inspection of the articles of association subscribed by him and sued upon, on file in the office of the secretary of state. EakrigM v. Logansport and Northern Indiana. B. B. Co., 13 Ind., 404. 1859. 438. Subscriptions combined with arti- cles of association. Under the general rail- road law, actions against subscribers of stock on the preliminary articles, or articles of sub- scription of stock, and not on the articles of association, were contemplated ; but the arti- cles of subscription and association may be combined, and where they are so, and the arti- cles of association contain an express or im- plied promise to pay the sums annexed to the names of subscribers, suits may be maintained upon the latter. Heagton v. Cincinnati and Ft. Wayne B. B. Co., 16 Ind., 275. 1861. XXXII. Special cases. 439. Macon and Augusta R. R. Co. Sub- scriptions to the stock of the Macon ai\d Augusta R. R. Co., made before June, 1865, stand upon the same footing with other debts contracted before that date; and in suits against the subscribers for the amount of their subscription, the payment of taxes and the filing of the affidavit, as required by the relief act of 1870, is necessary. Macon and Augueta B. B. Co. v. Little, 45 Ga., 370. 1872. 440. Nashua and Rochester R. R. Co. The validity of a subscription for stock in the Nashua and Rochester R. R. Co., under special circumstances — considered. Melvin t. Eoitt, 52N. H.,61. 1872. 441. New Orleans and Carrollton R. R. Co. The liability of the stockholders of the N. O. and C. R. R. Co., under their subscrip- tions, is not affected by the act of March 14, 1839, relieving banks from the forfeiture of their charters. Millaudon v. New Orleans and Ca/rroUton B. B. Co., 3 Robinson (La.), 488. 1843. XXXIII. De facto cokpobations. 442. Estoppel. A de facto corporation, that by regularity of proceeding might be one de jwe, can sue and be sued ; and a party who contracts with such corporation, while it is acting under its de facto organization, is es- topped, in a suit on such contract, from deny ing such organiza«ion at the date of the con. tract; but if an organization is completed SUBSCRIPTIONS BY INDIVIDUALS. 729 Miscellaneous. ■when there is no law, or an unconstitutional law, authorizing such organization, as a cor- poration, the doctrine of estoppel does not apply. Heaston v. Gincinnati and Ft. Wayne JR. JS. Co., 16 Ind., 275. 1861. 443. User. Where a railway company, at- tempting to organize under the general law, has filed papers having color of compliance with the statute, but so defective as to be in- capable of supporting the incorporation as against The People, it may, as against a sub- scriber to its capital, be held a corporation de facto, upon proof of the feeblest user. Buffalo and Allegheny B. B. Go. v. Gary, 26 N. Y., 75. 1862. 444. — Questions of regularity in the or- ganization of a company cannot be raised in an action on a stock subscription, where it ap- pears that it is a corporation de facto, exercis- ing its duties without objection by the state authorities, and that the public are generally dealing with it as a corporation. Swwrtwout «. Michigan Air Line B. B. Go., 24 Mich., ?89. 1872. 445. — Proof of the charter, and of user under it, is sufftcientto establish a, prima facie right in the plaintiff to sue ; and this prima facie case the defendant cannot dispute in an action where the question comes up collater- ally, and where the state, as a party chiefly concerned, cannot be heard by its counsel. lb. 446. — In case of the associates in a corpo- ration de facto, and those having dealings with it, there is a mutual estoppel resting upon the broad grounds of right, justice and equity, which prevents the former from denying, and the latter from disputing the incorporation. lb. 447. — But the company, although a de facto corporation, cannot recover upon sub- scriptions to stock, without showing a com- pliance with all those acts which are by the statute made conditions precedent. lb. XXXIV. Miscellaneous. 448. Agreement to forbear suit. A con- tract to forbear suit upon a cash subscription to the capital stock of a railway company till the completion of the road is waived by a sub- sequent agreement, made matter of record, to confess judgment, waiving valuation and ap- praisement laws, and for a stay of execution for eighteen months. Indiana and Illinois Gentral B. B. Go. v. Scearce, 23 Ind., 223. 1864. 449. By-laws. The by-laws, orders and reso- lutions of a railway company may always be changed by a majority of the stockholders, and such change will not release the subscrib- ers who do not assent. Bast Tennessee and Virginia B. B. Go. v. Q-ammon, 5 Sneed (Tenn.)> 567. 1858. 450. Defect of organization; curative act. Any defect in the organization of a com- pany under the general raiL'oad law may be effectually cured by the legislature. Illinois Grand Trunk B. B. Go. v. Cook, 29 111., 237. 1862. 451. — Obligations and subscriptions taken before such confirmation may enure to the benefit of the company by such instrumental- ity, lb. 452. Election of officers. The fact of an illegal election of directors, cannot be set up in resistence of payment of stock. Bakright v. Logansport and Jfforthem Indiana B. B. Go., 13 Ind., 404. 1859. 453. Foreign corporation. A contract made in Massachusetts to subscribe to shares in the capital stock of a railroad company es- tablished by the laws of another state, and having its road and treasury there, is a con- tract to be performed there, and is to be con- strued by the laws of that state. Penobscot and Kennebec B. B. Go. v. Bartlett, 12 Gray (Mass.), 244. 1858. 454. Insolyency. The insolvency of a rail- road company is no ground for restraininat collection of subscriptions for stock. Bill v. Wabash Valley B. B. Go., 21 111., 91. 1859. 455. Lease. A lease by a railroad com- pany of a part of its road and franchise during the continuance of its charter, and a transfer of the remainder also, for the same time, does not dissolve the corporation. Troy and Bvt- land B. B. Go. v. Kerr, 17 Barbour (N. Y.), 581. 1854. 456. — Such lease would not discharge a subscriber to the stock from his liability to pay calls on his subscription. lb. 457. Number of shares. When the amount of the stock is not fixed in the charter, and the corporation has voted what the amount should be, the subscription may be collected, although the whole amount of the stock has not been subscribed. Kennebec and Portland B. B- Co, V. Ja/nis, 34 Me., 360. 1858. 730 SUBSCRIPTIONS BY RAILWAY COMPANIES — BY STATES. Miscellaneous. 458. Preferred stock. "Where, after a sub- scription had been made, the legislature au- thorized the company to issue preferred stock, which stock was issued without the defend- ant's consent, it was lield, that this was a legit- imate means of raising money, and did not release defendant from his obligations. Rut- land and BwUngton JS. B. Co. i). Thrall, 35 Vt.,536. 1863. 469. Receiver. It is the duty of the re- ceiver of an insolvent corporation to call upon the stockholders to pay the balances due upon their stock, where he has reason to believe it will be needed for the payment of the creditors of the corporation, and the expenses of exe- cuting the trust. Pentz v. Eawley, 1 Barbour's Ch. (N. Y.), 123. 1845. 460. Records. The records of the com- pany are competent evidence to show the number of shares that have been taken. Penobscot R. JS. Co. v. Bummer, 40 Me., 173. 1855. 46 1 . Restrictions as to number of shares. The commissioners named in the act of incor- poration may lawfully restrict the number of shares to be taken by any one person. Brower v. Passenger B. B. Co., 3 Philadelphia Rep. (Penn.), 161. 1858. SUBSCRIPTIONS BY RAILWAY COM- PANIES. 1 . Baltimore and Ohio R. R. Co. Under the act of 1836, ch. 276, authorizing the B. & 0. R. R. Co., according to its discretion, " to subscribe towards the construction of any lateral, continuing or connecting road, and to acquire any interest therein to an extent not exceeding two-fifths of its estimated cost," it derived the right to subscribe for or aid in the construction of any connecting road to the extent declared in the act, and under such power might lawfully loan or furnish money to aid in such construction, and take a mort- gage or other security therefor. Mwyor of Bal- timore ». Baltimore and Ohio B. B. Co., 21 Md., 50. 1863. 2. Central R. R. Co. of Georgia. The Central R. R. Co. or the Southwestern R. R. Co. cannot purchase and hold stock in other railway corporations. Central B. B. Co. v. Collins, 40 Ga., 583. 1869. 3. Great Western R. R. Co, The act of April 12, 1851, authorizing the several railway companies of New York to subscribe to the capital stock of the Great Western Railroad, Canada West, was constitutional and valid. White V. Syracuse and Utica B. B. Co., 14 Bar- bour (N. y.), 559. 1853. 4. The Macon and Brunswick R. R. Co. cannot purchase the stock of another railroad ; such purchase is illegal. Sazlehurst v. Sa- vannah, etc., B. B. Co., 43 Ga., 13. 1871. SUBSCRIPTIONS BY STATES. SeeEiBOTioK or Cobpobate OmcBna; Grants. 1. Baltimore and Ohio R. R, Co. The guarantee of interest on the installments of stock subscribed by the state to the Baltimore and Ohio R. R. Co. is to be provided for out of the gross profits of the company. State v. Baltimore and Ohio B. B. Co., 6 Gill (Md.), 363. 1847. 2. — The subscription of the state of Mary, land to the stock of the Baltimore and Ohio R. R. Co. — construed. Baltimore and Ohio B. B. Co. V. The State, 36 Md., 519. 1873. 3. Collaterals. The state authorized a rail- way company to issue bonds to the amount of $3,500,000, secured by a first mortgage of its property, and further engaged to endorse $1,000,000 of such bonds, provided the com- pany would deposit with the treasurer of the state $500,000 other such bonds as an indem- nity against such indorsement. Held, that a creditor, owning some of the endorsed bonds, could not be said to be damaged by subse- quent legislation providing that the $500,- 000 should be surrendered to the company, to be used only in constructing and completing its road. First National Bank of Charlotte v, Jenldns, 64 N. C, 719, 1870; see McAde-i v. Same, ib., 796. 4. Constitntional law. The act of the 18th of December, 1868, requiring the treasurer of the state to subscribe for stock in the Chat- ham R. R. Co., and to pay for the same by is- suing bonds of the state, is unconstitutional. SUBSCRIPTIONS BY STATES. 731 Rights of States. Galloway v. Chatham B. S. Co., 63 N. C, 147. 1869. 5. — A subscription for stock in a corpora- tion and issuing bonds to pay for such stock, is a gift of the credit of the state, within the meaning of the constitution. Ih. 6. — The acts of the legislature relative to the "University R. R. Co." are unconstitution- al and void. University B. B. Go. v. Solden, 63 N. C, 410. 1869. 7. — The question of the power of a state to subscribe aid to railroads, discussed. lb. 8. Lien. The state of Tennessee has a lien on the properties of railroad companies, under §§ 1097-8 of the Code, not only on the prop- erty which was in existence when the road was completed, but that which was subse- quently acquired. McCrraw ■». Memphis and Ohio B. B. Co., 5 Coldwell (Tenn.), 434. 1868. 9. — Money earned by tlie companies after the completion of the roads is not affected by the lien of the state. lb. 10. — The legislature provided that the state should subscribe one half the stock in all incorporated turnpike and railroad com- panies, and that the state should have a lien on the corporate property to secure a payment of like amount by the other corporators. The State subscribed and paid half of the stock in the L. and M. R. R. Co. Edd, that the prop- erty of tlie corporation could not be taken ou execution until this lien was extinguished. State V. Lagrange and Memphis B. B. Co., 4 Humphreys (Tenn.), 488. 1844. 11. — The lien reserved to the state by the act of 1851-3, ch. 151, §§ 8,4, upon the property of railway companies which have received state aid in the purchase of iron for their roads, does not attach upon money paid in for stocli while said roads were under construc- tion. A debt due from a railway tax collector for taxes collected to pay a county subscrip- tion to a railway, although reduced into a judgment in a suit against such collector in the name of the state, is nevertheless the prop- erty of the railway company, and therefore the subject of garnishment at the suit of a credi- tor of the company at any time before said road is completed. Hoard o. Casey, 4 Sneed (Tenn.), 178. 1856. 12. — The clause of the state constitution (as amended April 15, 1858), which reads as fol- lows : " And as a further security, an amount of first mortgage bonds, on the roads, lands and franchises of the respective companies, corres- ponding to the state bonds issued, shall be transferred to the treasurer of the state, at the time of the issue of state bonds," does not give to the state any exclusive lien on the roads, lands and franchises of the respective compa- nies to the extent of the bonds which may be received from them; and it is not necessary that the deeds of trust executed by the compa- nies, under the amendment, shall specify a priority of lien to such bonds as the compa- nies may deliver to the state in exchange for her bonds. Minnesota and Pacific B. B. Co. v. Sibley, 3 Minn., 13. 1858. 13. — The lien of the state upon the Iron Mountain Railroad lands, created by the act of 1851 (Sess. Acts, 1851, p. 366 et seq.), cm- braced land acquired by the road after the cre- ation of the lien, and foreclosure and sale of the road under said act would carry title to such land. Whiteliead v. Vineya/rd, 50 Mo., 30. 1873. 14. — The sale of the Iron Mountain Rail- way and its appurtenances, under the act of February 33, 1851 (Sess. Acts, 1851, p. 368, § 11), and acts pursuant thereto, embraced rail- road land, although outside of the railroad and not necessary to its use. (See Sess. Acts, 1865-0, p. 107, § 6). lb 15. Mandamus: state loan. Mandamus will lie to compel the governor to perform the ministerial duty ot drawing a warrant in favor of a railway company for moneys granted as a loan by the legislature. Tennessee and Coosa B. B. Co. V. Moore, 36 Ala. N. S., 371. 1860. 16. Right of state to sell lands held by it. The legal effect of the exchange of bonds by the state and the W. C. & R. R. Co., and of the mortgage, authorized by the acts of 1859 and 1861, was to vest the ownership of the bonds in the state, secured by the mortgage. The state had, therefore, a valuable interest in those bonds and mortgage, as a fund to dis- pose of in aid of other works of internal im- provement, subject to existing equities. Wil- mington, Charlotte and ButherfordB.B. Co. v. Western B. B. Co., 66 N. C, 90. 1873. 1 7. Right of state to sell its stock. A state, like any other stockholder in a corpora- tion, may sell or dispose of its interest in the corporation if it chooses to do so, and such a sale does not dissolve the corporation. La 732 SUBSCRIPTIONS BY TOWNSHIPS. Bonds. Orange and Memphis B. B. Co. v. Bainey, 7 Coldwell (Tenn.), 420. 1870. 18. Special grants in aid of railways. Where the tliree per cent, fund in the treasury ■was distributed to five railway cflmpanies as a loan, and it was provided that if any of the companies should " fail or refuse for ninety days to make application for their distributive share, then the shares so neglected or refused to be applied for" should " be distributed by the auditor of public accounts to the other road or roads applying within ninety days, share and share alilse; " and all the companies applied for and received their shares of the sums shown by the auditor's books, and rec- ognized by that officer as the three per cent, fund; the S. R. R. Co. just before the expira- tion of the ninety days applied for a further sum, which, upon examination, was found to belong to that fund. Held, that the failure of the other companies to apply within ninety days for said latter sum was not a forfeiture of it, as it was occasioned by a mistake not within their control. McAfee v. Southern B. B. Co., 36 Miss., 669. 1859. 19. — Tlie acts in relation to the Chatham R. R. Co., and Raleigh and Augusta R. R. Co. — construed. Baleigh and Augusta B. B. Co. V. Jenkins, 68 N. C, 499, 1873; ib., 503. 20. — The grants to the Northwestern N. C.R.R. Co.— construed. Northwest&rn North Carolina B. B. Co. «. Jenkins, 65 N. C, 173. 1871. 21. — The statutes granting loans to the Tennessee and Coosa R. R. Co., construed. Tennnessee and Coosa B. B. Co. v. Moore, 36 Ala., N. 8., 371. 1860. 22. Time of payment of state loans. A state loan, reimbursable at the pleasure of the state after twenty years, has no term of pay- ment until the legislature has fixed it by law. People ex rel. v. Denniston, 23 N. Y., 247. 1861. 23. — Where such a loan was made under a law passed before the constitution of 1846, for the benefit of the Long Island R. R. Co., which was bound to redeem the stock, an act giving to its holders the option of having it made payable in 1876 is not in violation of the constitutional prohibition of the loan of the state credit to corporations. Ib SUBSCRIPTIONS BY TOWNSHIPS. See SvBsoBiPTioNB BY Cities akd Towns; Svbbobip- TIOHS BY ComiTIES. 1. Bonds. Where bonds issued by a town- ship are required by law to be countersigned by the town clerk before being delivered, such act of countersigning is a ministerial act, and it is not the province of such clerk, to deter- mine whether the proper steps have been taken to authorize the issuance of the bonds. Hous- ton V. The People ex rel., 55 111.. 398. 1870. 2. — negotiability. The plaintiffs filed a petition, showing that under certain acts of the general assembly, and upon certain con- ditions prescribed in those acts, the trustees of Goshen township were authorized to sub- scribe stock in the Springfield and Mansfield R. R. Co. The petition stated the mode in which a subscription was in form made and paid for in bonds in the township, but alleged that these acts were not in pursuance of the law, but illegal and created no obligation on the township. It appeared that the bonds had been delivered, and had been assigned by the railway company, with a guaranty of their payment, and that the interest, accruing upon them for several years, had been paid, without objection. There was no charge of fraud against the defendants. Held, that under these circumstances, the plaintifis were not in a position to ask the affirmative relief of a rescission of the contract and the cancellation of the instruments they had issued. Goshen, TownsJdp v. SpringHeld, Mt. Vernon and Pitts- burg B. B. Co., 12 Ohio St., 624. 1861. 3. — The grant of power to the trustees, to borrow money for the purpose of paying the amount subscribed, carried with it the neces- sary incidental power of executing and deliv- ering such evidences of indebtedness, as are sanctioned by the known usages of business, in such cases; and it was, therefore, compe- tent for the trustees to issue the negotiable bonds of the township in payment for the stock subscribed, and it is no ground of objec- tion that such bonds were delivered direct to the company, at par, by way of making such payment. State ex rel. v. Goshen Township, 14' Ohio St., 569. 1868. 4. — The bonds issued by the township were, by their terms, payable to the company SUBSCRIPTIONS -BY TOWNSHIPS. 733 Constitutional Law-.- Elections. or its assignees, and a stipulation was added reserving to the township tlie riglit to require tlie railroad company to take the stock so subscribed by the township, and to redeem the bonds as issued. Held^ that this reservar tion was a contract between the township and tlie company alone, which could not effect the right of the bona fide assignee of the bonds, for value, to require payment of the bonds by the township. lb. 5. Conditions. The law being silent upon the subject, it is competent for a township to impose conditions in respect to its subscrip- tion. People ex rel. «. Butcher, 56 111., 144. 1870. 6. Constitutional law. Ch. 48, Acts of 1868, permitting townships, incorporated towns and cities to aid in the construction of a railway by the levy of a tax, is unconstitu- tional. Hanson v. Vernon, 37 la., 28. 1869. 7. — The legislature has no constitutional power to authorize the taxation of the people or property of a township, town or city, in order to raise a fund to be given as a gratuity to a railroad company to aid it in the construc- tion of its road through that vicinity. lb. 8. — Ch. 103, Laws of 1870, providing for taxation of property in townships and incor- porated towns and cities, to aid in the construc- tion of railways, is not in conflict with the constitution of Iowa. This case substantially overrules Hanson v. Vernon, 37 la., 38, which was decided under a law almost identical with the one in. question in this case. Stewart v. Board of Supervisors of Polk County, 30 la., 9 1870. 9. — The county treasurer cannot refuse to pay over a tax in his hands, petitioned, voted for and collected under the act of 1868, enab- ling townships and cities to aid in the con- struction of railroads. The act of 1868 is con- stitutional. Mc®or and Sioux City S. S. Co. V. Birdsall, 30 la., 255. 1870. 10. — A wi'it of mandamus will issue to compel the treasurer to pay over such tax. lb. 1 1. — The act of April 16, 1869, providing for the collection of interest upon town and other bonds, is constitutional. Said act con- strued. Bunnomn v. Green, 57 111., 63. 1870. 12. — Bonds issued by a township, under Sess. Acts 1868, p. 93, are not in any sense county bonds ; and the county courts and coun- ties named are merely made use of as agencies to carry out the object contemplated by the act. Hence that act is not in conflict with § 14, art. XI of the state constitution. State ex rel. North Missouri Central JR. R. Co. ». Linn County Court, 44 Mo., 504. 1869. 13. — An act of the general assembly, au- thorizing the trustees of a township, through which a railway was to be made, to subscribe, on behalf of the township, to the capital stock of the railway company, is not in conflict with the constitution of 1803. Steiibenville and Indiana B. R. Co. ■». North Township, 1 Ohio St., 105. 1853. 14. — The state may make internal improve- ments, directly or by a corporation, and for that purpose levy and collect taxes, or empower counties and townships to do so, and subscribe and pay for stock in a railway company. John V. Cincinnati, Richmond and Ft. Wayne R. R. Co., 35 Ind., 539. 1871. 15. — The act, approved May 13, 1869, "to authorize aid to the construction of railways by counties and townships taking stock in," etc., contemplates a payment for stock at the time of subscription, and not the creation of a debt therefor, and is constitutional. lb. See Subscriptions by Cities and Towns ; Subscrip- tions BT Countibs. 16. Elections. In this case it was held that an election was sufficient where a majority of those who voted cast their ballots in favor of the subscription, although the entire vote cast at tlie election was not a majority of all the voters of the township. St. Joseph Town- ship V. Rogers, 16 Wallace, 644. 1873. 17. — Under the act of March 31, 1850, to incorporate the Springfield and Mansfield R. R. Co. (48 O. L. 294), and the act of March 35, 1851, "to authorize special elections to decide the question of subscription to the Springfield and Mansfield Railway by counties and town- ships," (49 O. L. 548) ; the trustees of Goshen township were authorized to submit the ques- tion of a subscription by said township to the capital stock of said company, to the electors of the township, to be voted on at the time of the annual election in October, 1851 ; no steps having previously been taken by the commis- sioners of Champaign county to procure a vote of the electors of the county, on the question of a county subscription. State ex rel. «. Oo- shen TovmsMp, 14 Ohio St., 569. 1863. 784: SUNDAY LAWS. Carriage of Goods — Injunction. 18. — An agreement among certain voters to " pair oflF," and absent themselves, is of no validity ; and the judges of election are not required to regard it ; the votes of such parties may rightfully be taken. Piatt v. The People ex rel, 29 111., 54. 1862. 19. — The presumption is, in the absence of any provision on the subject, that (he elec- tion shall be conducted in the manner pre- scribed by the law of the organization of the body in which it is held. People ex rel. «. Duteher, 56 ib., 144. 1870. 20. — A substantial compliance with the requisitions of the law, will only be required. Piatt V. The People ex rel, 29 ib., 54. 1862. 21. — A mere irregularity in conducting an election, which does not deprive any voter of his franchise, or allow an illegal vote, or change the result, will not vitiate the election. lb. 22. — Although the law directs that the polls shall be closed at five o'clock, and this question is in issue, unless it is made to ap- pear that votes were cast after that hour which changes the result, the irregularity would not be fatal. Ib. 23. — Under the act of 1859, if the votes shall be in favor of a subscription in aid of any railroad, the action of the supervisor is ministerial only. He is without discretion, and must make the subscription and issue the bonds. Ib. 24. — registry law. An election in regard to a subscription by a township being properly held at a town meeting, it is not required that voters shall be registered before the election can be properly held. People ex rel. v. Duteher, 56 III., 144, 1870; Dunnovan v. Green, 57 ib., 63, 1870; see also People ex rel. v. Ohio Grove Township, 51 ib., 191, 1869. 25. Legalizing acts. Irregularities in hold- ing an election may be cured by a legalizing act of the legislature. 8t. Joseph Township v. Rogers, 16 "Wallace, 644. 1873. 26. Ratification. Acts of subsequent ac- quiescence or ratification will estop a town- ship from objecting to the validity of iu bonds, in the hands of an assignee for value who has taken them on the faith of such ac- quiescence, on account of any irregularity in their issue short of an absence of power to issue them, or such illegality as would render them absolutely void, and notice of such ir- regularity to the assignee would not defeat the estoppel. State ex rel. v. Trustees of Goshen Township, 14 Ohio St., 569. 1863. 27. Rights of corporation. The railway company has no rigli.s to be enforced until the stock is actually taken and paid for or the donation actually made. All prior proceedings are matters between the voters and commis- sioners. Bankey v. Terre Haute and Southwest- em B. R. Co., 42 Ind., 403, 1873; see also Boa/rd of Oommissioners v. Louisville, etc., R. iJ. OS., 39 ib., 193. 1872. 28. Where county has already taken stock. Where under the statute a county, was empowered to subscribe for stock in a railway company ; and where it was further provided that if the county commissioners should not be authorized by vote of the electors of the county to subscribe under the law that then any township in such county might subscribe for such stock ; and a subscription had been duly made by a county, a subsequent sub- scription by one of the townships in such county was held invalid, and the bonds of such township issued for such stock were held void, although in the hands of one claiming to be a bona fide holder. Hopple v. Trustees of Brown Township, 13 Ohio St., 311, 1863 ; State ex rel V. Trustees of Union Township, 15 ib., 437, 1864 SUNDAY LAWS. 1. Carriage of goods. The delivery of goods to a railway company by a steamboat company on Sunday, the goods having been shipped on Saturday, is not a violation of the ■Virginia " Sunday Laws," the taking care of the goods being a work of necessity. Powhatan Steamboat Go. v. Appomatox R. R. Go., 34 How- ard, 347. 1860. 2. — The railroad company was therefore held liable for the destruction of such goods by fire in its warehouse. Ib. 3. Injunction. Running cars on Sunday is not authorized by the charter of the Union Passenger R. R. Co., and is ultra vires; nor has the company authority to hold or execute a mail contract. Whether these acts imperil the charter can only be tried, at the suit of the commonwealth, appearing by the attorney gen- eral; a stockholder may sue by injunction, SUPERSEDEAS— SURETY. 785 Miscellaneous. but it will not be granted when his bill is not bona fide, but only in aid of a private bill of other plaintiffs. Sparhamh v. Union Passen- ger B. B. Co., 54 Penn. St., 401. 1867. 4. — The penal law to prevent worldly em- ployment on Sunday has provided the ma- chinery for punishing it, and to it the viola- tion must be referred; courts of chancery will not interfere. Ih. 5. Injury to passengers on Sunday. Car- riers of passengers having their boats in use on Sunday, and receiving persons on board, are liable for personal injuries suffered by them from the negligence of the carrier's serv- ants, notwithstanding the statutes respecting the travel on Sunday. Banders v. Btaten Island B. B. Co., 13 Abbott's Pr., N. S. (N. T.), 338, 1873; Carroll v. Sa/me, 65 Barbour (N. Y.), 33, 1873. 6. — A person cannot legally travel on Sun- day from one city to another, a distance of several miles, for the purpose of visiting a stranger, if no occasion of necessity or charity is shown for him to pay such visit ; and can- not maintain an action against a street railway company to recover damages for a personal injury received by him while so traveling in one of its cars, in consequence of the negli- gence of the company. Stanton ■». Metropolitan B. B. Co., 14 Allen (Mass.), 485. 1867. 7. — The facts that the exercises of a spirit- ualist camp meeting included a show to which an admittance fee was charged, and that some of the speakers declared that they would throw away the bible in their search after truth, are not conclusive that a person who traveled on Sunday to attend the meeting did so unlawflilly. Feital v. Middlesex B. B. Co., 109 Mass., 398. 1872. 8. Injury to vessels. That a vessel was prosecuting a voyage on Sunday is no defense to a suit against injuring her by leaving dan- gerous obstructions in a stream. Philadelphia, Wilmington and Baltimore B. B. Co. v. Phila- delphia and Havre de Grace Steam Tovsboat Co., 23 Howard, 209. 1859. SUPERSEDEAS. See Appeal; iJtroifoTioii. 1. Act of congress. To make a writ of error operate as a supersedeas, it is indis- pensable that the requirements of the act of congress be strictly fulfilled; a copy of the writ must be lodged for the adverse party with- in ten days after the judgmentj Sundays ex- clusive. Bailroad Co. ■». Harris, 7 Wallace, 574. 1868. 2. Bond. The obligor in the bond cannot object that the penalty is too small. Jones v. Mississippi and Alabama B. B. Co., 5 Howard (Miss.), 407. 1841. 3. — It will be sufiacient if the sheriff re- turn the bond forfeited by indorsement on the execution. lb. 4. — It is not a valid objection to the forth- coming bond, that there are not ten days stated in the condition of the bond, between the levy and sale. If the defendant is damnified there- by, his remedy is against the sheriff. lb. 5. — several defendants. A supersedeas cannot issue in favor of all the defendants un- less they all join in the bond. Jones v. Mis- sissippi and Alabama B. B. Co., 5 ib., 407. 1841. SURETY. 1. Action against surety. The creditor may proceed at the same time against both principal and surety, but he can have but one satisfaction. Muscatine v. Mississippi and Missouri B. B. Co., 1 Dillon (U. S. Cir. Ct), 536. 1870. 2. Consideration for promise. A promise to the creditor to pay the debt is binding, and requires no consideration or foundation, but the original debt. JVetc Orleans and Carrollton B. B. Co. V. Chapman, 8 La. An., 97. 1853. 3. — The assumption of liability by an in- dorser is sufficient consideration to support a contract of indemnity. Williams ■». Eaga/r, 50 Me., 9, 1861. 4. — But where a contract was made to in- demnify an individual as an indorscr, the con- tract was lield sufficient to indemnify him for moneys advanced by him. Ib. 5. Extension of time. An extension of time, by agreement with the principal, upon a promissory note, without the consent of the surety, releases the surety. Cox v. Mobile and Oirard B. B. Co., 44 Ala., H. S., 611, 1870; Same v. Same, 37 ib., 320, 1861. 736 SURFACE WATER — TAXATION. Assessments. SUKFACE WATER, See Ekinbht Domain; Limitations. 1. Damages. No action lies for the turn- ing of mere surface water from one's own land upon the land of another. Oreeley v. Maine Central R. B. Oo., 53 Me., 200. 1865. 2. Embankments. The owner of a servient heritage has no right, by embankments or other artificial means, to stop the natural flow of the surface water from the dominant heritage, and thus throw it back upon the latter. Oillhamv. Madison County B. B. Co., 49 111., 484. 1869. SURVEYS. See Consthuotion or Eailtvays ; Eminent Domain. 1. Constitntional law. A law which au- thorizes an entry upon a person's land, for the purpose of making the preliminary or final sur- veys for a railroad, before compensation is made, is not unconstitutional. Polly v. Sara- toga and Washington B. B. Co., 9 Barbour (N. Y.), 449, 1850; Bloodgood v. Mohawh and Hud- son B. B. Co., 14 Wendell (N.Y.), 51, 1835 ; Same case, 18 ib., 9, 1837 ; Bonaparte v. Camden and Amboy B. B. Co., 1 Baldwin (U. S. C. C), 205. 1830. SWITCH. See Eminent Domain; lN,njiitE8 to Employes. TAKING PRIVATE PROPERTY. See Eminent Domain. TAXATION. See Chabteu; CEimonAni; Injunction; Land Gbant; MoBTaAOE. I. Assessments. II. Different kinds of tax. 1. Bond tax. 3. Capital stock. 8. Cross receipts. 4. Freight tax. 5. Passenger faa-es. 6. Net earnings. •7. Tolls. 8. Boiling stock. 9. Dividend tax. 10. Federal tax. 11. General tax. III. Collection of tax. IV. Place of taxation. V. Land grants. VI. Special charters. VII. Exemption. VIII. Constitutional law. IX. Municipal corporations. X. FORBI0N corporations. XI. Street railways. XII. General matters. I. Assessments. 1. Appeals. The jurisdiction of the su- preme court is restricted by the state constitu- tion to original proceedings in quo warranto, mandamus and Tiabeas corpus, and such appel- late jurisdiction as may be provided by law But such appellate jurisdiction is only judicial in its character. Hence, a law, giving the right to appeals to this court from the board of coun- ty clerks, in the appraisal of railroad property for the purposes of taxation, is unconstitutional. The power to tax is not in any sense a judicial power. Auditor of State v. Atcliison, Topeka and Santa Fe B. B. Co., 6 Kans., 500. 1870. 2. — A railway company cannot appeal to the circuit court from an assessment by a board of supervisors. Ohio and Mississippi B. R. Co. V. Lawrence County 27 111., 50. 1861. 3. — The provision of the constitution grant- ing the right of appeal needs legislative action to make it available. Ib. 4. Assessment for benefits. The imposi- tion and confirmation of an assessment by the city of Brooklyn, in pursuance of tho act of April 19, 1859, for the purpose of com- pensating the Long Island R. R. Co., for the relinquishment of its right to use steam power within said city, are not forbidden by the act TAXATION. 737 Assessments. relative to local improvements in the city of Brooklyn, passed April 11, 1861. (Laws of 1861, p. 462.) People v. Lawrence, 86 Barbour (N. Y.), 177, 1862; see Litchfield v. McOomber, 42 ib., 288, 1864. 5. Assessors and their rights and duties. In cases where assessors have jurisrliction, it is their right and duty to decide all questions of law as well as of fact. It is for them to determine, where there are facts calling for the exorcise of their judgment, whether land is to he assessed as resident or nonresident land. "Whatever may he their decision, they have the immunity of judicial officers. Both they and all persons who act upon their as- sessment in enforcing the tax, are protected, and the tax, after it has reached the treasury of the county, cannot he collected back. The decision of the assessors cannot be attacked collaterally. Buffalo and State Line B. JR. Co. V. Sup'ra of Erie Oounty, 48 N. Y., 93. 1871. 6. — Assessors are quasi judicial officers; their assessments are in the nature of judg- ments. Their judgments can he reversed by action for fraud, mistake or other cause, giv- ing jurisdiction to courts of equity; but it is the parties afiected by the judgment who must be brought into court to litigate, not the judges. Western B. B. Go. v. Nolan, ib., 513. 1871. 7. — It is ministerial, not judicial officers, whom the court has the power to restrain when proceeding illegally under a claim of right. Ib. 8. Board of appraisers. Under § 41, ch. 35, G. L. 1868, which provides that a deputy county clerk may, in tlie absence of the clerk, perform the duties of the lattei', such deputy may, in the absence of the clerk, act as one of the "board of appraisers and assessors" to assess railroad property, as provided by ch. 124, Laws of 1869. Amrine v. Kansas Pacific B. B. Go., 7 Kan., 178, 1871 ; Missouri Biver, Ft. Scott and GulfB. B. Go. v. Morris, ib., 310, 1871. 9. — Ch. 134, Laws of 1869, or so much of it as provides for the assessment of railroad property by a board of county clerks, and that the entire road shall be assessed as a whole and apportioned to the diflerent counties, town- ships; etc., through which the road runs, is constitutional. Missouri Biver, Ft. Scott and Gulf B. B. Co. ■». Morris, ib., 310. 47 10. — Such assessment will hot be vitiated by mere irregularities in the board or clerks acting separately. Ib. 11. Constitutional law. Assessors have no power beyond the districts for which they are elected. (Art. 11, Const, § 13.) The act providing for the assessment of railway prop- erty by assessors other than those in whoso respective districts the property is situated, is Md to be unconstitutional. People v. Placer- ville, etc. B. B. Co., 84 Cal., 656. 1868. 12. Evidence. Upon the trial of tlie ques- tion as to the proper valuation to be put upou the property of a railway company, it is com- petent to give in evidence against the compa- ny, the deposition of its general superintend- ent, which had been taken in another case and used by the company, adopting and acting on the statements therein as facts. Chicago and Northwestern B. B. Go. v. Supervisors of Boone County, 4A 111., 240. 1867. 13. — Irregularities in the assessment made by the county clerks, will not render the taxes founded upon such assessment void. Missou- ri Biver, Ft, Scott and Gulf B. B. Go. v. Blake, 9 Kan., 489. 1872. 14. Lists. The classified list of real estate of railway companies, required by statute to be delivered to town assessors of the towns in which the real estate lies, must be regarded by the assessors as prima facie evidence of value, if delivered to them any time after the first day of May, before the completion of their roll according to law, in like manner as if it had been delivered before the first day of May. People ex rel. v. Boss, 15 Howard's Pr. (N. Y.), 63. 1857. 15. — If not delivered until after the com- pletion of the roll according to law, the asses- sors are not bound to allow it any effect. Ib. 16. Overvaluation. An excessive valua- tion made by an assessor, contrary to his o.ffl- cial judgment, and with intent to injure, is a ft-aud for which the law will afford relief. State V. Central Pacific B. B. Co., 7 Nev. 99. 1871. 17. — The sufficiency of an assessment of the Pacific E. R. Co. — considered. Pacific B. B. Go. V. Cass County, 53 Mo., 17. 1873. 18. Penalty. Where there is a failure or refusal to give in a true list of the taxable property, the county court has jurisdiction to enforce the penalty and fix the value of tax- 738 TAXATION. Different Kinds of Tax. able estate. The circuit court of Franklin countj' lias no jurisdiction of such a proceed- ing. Louitville and Nashville R. B. Co. v. Commonwealth, 1 Bush. (Ky.), 250. 1866. 19. — But where an assessment has been made by the agent of the auditor in the manner prescribed, and reported to the auditor, he may then proceed in the Franklin circuit court against a delinquent corporation, by motion or ordinary proceeding, to coerce the payment of the amount so assessed. lb. 20. Profits. A tax upon a railway corpora- tion can only be just and equal by a taxation of the profits. Such investments are materially different from real estate. Paine et al. v. The Indianapolis and Bellefontaine B. B. Co., 6 McLean, 395. 1855, 21. — The supervisors have the power to correct the lists of real and personal property furnished by railway companies for taxation. Chicago and Bock Island B. B. Co. v. Swper- visors of Bureau County, 25 111., 580. 1861. 22. Uniformity. Where the property of individuals in a county has been assessed at less than its actual value, the constitutional rule of uniformity forbids that the property of a railroad company in such county should be assessed upon any greater per cent, of its value than that of individuals. Bureau County V. Chicago, Burlington and Quiney B. B. Co., 44 111., 229, 1867 ; Chicago and Northwestern B. B. Co. «. Supervisors of Boone County, ib., 240. 2.S. — The constitution does not require a uniform method of valuation of property for taxation, but only " such regulations as shall secure a just valuation." In determining how this end shall be secured, the legislature must exercise its discretion, and unless the method adopted be clearly inadequate to secure the result, the courts cannot Interfere. Louisville and New Albany B. B. Co. v. The State, 25 Ind., 177. 1865. 24. Valnation. The real estate of a rail- way company must be assessed in each town at the actual value, merely, of that part thereof, without reference to the income of the road. Albany and Schenectady B. B. Co. v. Osbom, 12 Barbour (N. Y.), 223, 1851; Albany and West Stoekbridge B. B. Co. v. Town of Canaan, 10 ib., 244, 1853. 25. — So long as the assessors confine them- selves within that rule, however grossly they may err in their estimate, their valuation is conclusive. Like the verdict of a jury, the amount is not to be questiond. Ib. 26. — The tax based upon the assessment is 'like a judicial sentence, and can only be attacked for fraud, or an excess of jurisdic- tion. Ib. 27. — The real estate of railroad companies should be assessed at its value for the purpose to which it has been adapted, and not as mere farming lands. What may be properly con- sidered in estimating that value, discussed. People V. Fredericks, 48 Barbour (N. Y.), 178. 1866. 28. — In assessing a railway, the inquiry should be, what is the property worth, to he used for the purposes for which it was de- signed, and not for any other purposes to which it might be applied. State v. Illinois Central B. B. Co., 27 111., 64. 1861. 29. — The act of March 4, 1859, § 6 (Acts of 1859, p. 5), providing that the appraisers, in estimating the value of the road, shall take into consideration the location of the road for business, the competition of other roads, 'ts earnings, etc., is constitutional. Louisville and New Albany B. B. Co. v. The State, 25 Ind., 177. 1865. 30. — The improvements made upon the real estate must be taken into account in fixing its value for the purposes of taxation. Chica- go and Northwestern B. B. Co. v. Lee County, 44111., 248. 1867. 31. Waiver of errors. Where a city char- ter gives an opportunity to present objections to an assessment before the city council, where power is vested over the subject, and this op- portunity is neglected, all objections arc waived. Ottawa v. Chicago and Bock Island B. B. Co., 25 111., 43. 1860. II. Different kinds of tax. 1. Bond tax. 32. Foreign held bonds. The tax levied upon foreign held bonds is constitutional. Pittsburgh, Fort Wayne and Chicago B. B. Co. V. ComnwnwealtJi, 8 Brewster's Eq. (Penn.), 355, 1872 i Buffalo and Erie B. B. Co. v. Same ib ' 374, 1871. 33. — The money of a creditor loaned in Pennsylvania may be taxed there, and the money collected through the debtor. Piu». TAXATION. 739 Different Kinds of Tax. burgh, Fort Wayne and Chicago B. B. Oo. v. TU OommonweaWi, 66 Penn. St., 73. 1870.. 34. — Where a railroad is extended tlirough Pennsylvania and other states, the assessment of tax on its debt is to be in proportion to its extent in this stale. lb. 35. — Double taxation is not unlawful in this state. lb. 36. — The commonwealth can sequester a railroad within her borders until the tax is paid. lb. 37. — The ofBeers of a corporation are per- sonally responsible for the tax. lb. 38. — The negotiable character of the cou- pons will not exempt them from taxation; every one receiving them was bound to know they were taxable. lb. 39. — The loan for which the bonds of a railroad company chartered by Pennsylvania are given, is taxable under the acts of April 39, 1844, and May 1, 1854. Maltby v. Beading and Columbia B. B. Co., 52 Penn. St., 140. I860. 40. — Taxation is for the legislature ; and while it confines itself to that which is in the nature of a tax law, its powers are not subject to judicial review. lb. 41. — Property within the jurisdiction of this commo"nwealth, and enjoying its protec- tion, is taxable though its owner resides else- where, lb. 42. — Corporation loans, though debts, are like moneys at interest, taxable in this state, lb. 43. — The tax laws of Pennsylvania tax corporation loans as pi'operty in that state, and appoint the corporation the collector of the tax; tiiose laws are constitutional and valid. lb. 44. — It is the right of financial officers of a corporation to retain the three mill tax un- der the act of April 39, 1844, without assess- ment of the county officers. Delawa/re, Lacka- wanna and Western B. B. Co. v. The Common- wealth, 86 Penn. St., 64. 1870. 45. — The act of April 30, 1864, imposed a tax on corporation bonds in the hands of non- residents. The act of 1864 provides a remedy for collecting the tax out of the resources within the legislative jurisdiction of the com- monwealtli. lb. 46. — The foregoing cases overruled, and these statutes held to be unconstitutional, | Case of Foreign Jield bonds, 15 Wallace, 300. 1873. 47. — United States and state taxes on bonds are a charge on the principal, although to be collected out of the interest. The clause in a mortgage by a corporation or person, that the payment shall be " without defalcation, de- duction or abatement for any taxes whatso- ever," is a stipulation to pay the taxes on the land mortgaged, and not on the debt secured. Clapton V. Philadelphia and Beading B. B. Co., 54 Penn. St., 356. 1867. 48. — The tax levied by the United States is a tax upon the debt secured, and not a tax on the debtor. The company is made the agent to collect the tax, but the burden is im- posed upon the bondholder. 76. 49. — A law of Pennsylvania, passed 'May 1, 1868, requiring the treasurer of a railway company of that state to retain five per cent, of the interest due upon its bonds to nonresi- dents, is invalid. (S. C. U. S.) Cleveland, Painesmlle and Ashtabula B. B. Co. v. Com- monwealth, 4 Brewster (Penn.), 183, 1873 ; Ca*e of the state too: on foreign held, bonds (Bailroad Co. V. Pennsylvania), 15 Wallace, 300. 1871. 50. — The power of taxation of a state is limited to persons, property and business within her jurisdiction. All taxation must re- late to one of these subjects. lb. 51. ' — A law, therefore, taxing foreign held bonds by a state, such bonds being held by citizens of other states, and requiring the treasurer of the company to withhold the same, is a law interfering with the relations of the company and the bondholder, and, under the pretense of levying a tax, impairs the obliga- tion of a contract. lb. 5 s;. — The fact that the bonds are secured by a mortgage on the property of the company within the state does not change the rule, for a mortgage is not an interest in the property, biit simply a lien upon it. lb. 53. — A state has no power to tax the inter- est on mortgage bonds given by a railway company, and binding every part of a road, when a part of the road lies in another state. Bailroad Co. v. Jaclcson, 7 ib., 263. 1868. 54. The Michigan Southern and Northern Indiana R. R. Co. is liable, under its charter, to the state tax upon bonds issued to the orig- inal purchasers of the road as a bonus, and also upon the full amount of its loans, with- 740 TAXATION. Different Kinds of Tax. out taking the discount upon the sales of its bonds into consideration ; also upon its bonds issued in exchange for the bonds of another company, although the bonds taken in ex- change are undisposed of. People v. Midi- igan SoutJiern at-d Northern Indiana B. B. Co., 4 Mich., 398. 1857. 65. — Nor can the company claim exemp^ tion from taxation upon so much of its bonds as were consumed in commissions and other expenses attending their sale, nor on loans made for the purpose of constructing its road, or puchasing, chartering or hiring steamboats. Miehigan Southern and Northern Indiana B. R. Co. V. The Auditor General, 9 ib., 448. 1863. 56. — Nor can it claim exemption on money borrowed by it, and afterwards loaned on worthless securities whereby it became lost to the company. Ib. 57. — Whetlier a deduction from the taxa- ble amount should be made of bonds of the company which were loaned, -and for which worthless securities were subsequently taken in payment, qucere, the court being equally divided. Ib. 58. — The ruling in case ol People v. Michi- gan Southern and Northern Indiana B. B. Co., 4 Mich., 398, was not regarded as conclusive as to the question of taxation upon the amount of discounts upon loans, the court being equally divividsd as to sustaining its former ruling. Ib. 59. — The act authorizing the consolida- tion of the Michigan Southern and Northern Indiana Railroad Companies does not change the principle of taxation fixed by the original charter of the former company. Ib. 60i. — No deduction can, therefore, be made from the amount taxable; for the cost of steamboats destroyed by accident, or lying idle within the limits of another state and tax- ' able there. Ib. 2. Ciipital stock. 61. Assessment. An assessment of stock of a railroad company in the name of the shareholders, instead of that of the cOrporar tion, is irregular. But the action of the asses- sor is judicial, and where it 'appears that the assessor had jurisdiction over the property, the collector would not be liable to the tax payer for the amount collected under the assessment, notwithstanding the irregularity. In such case, the tax bill certified to the collector is his sufficient warrant. North Missouri B. B. Co. V. Maguire, 49 Mo., 483. 1872. 62. — In computing the true value of the corporate franchise of a railway company for the purposes of taxation under the St. of 1865, ch. 28, § 4, the tax commissioner was not in error in estimating the fair cash valuation of all the shares of the capital stock by adding tlie actual market value of the old shares to that of the new shares, the old shares being of a higher value than the new, without making any deduction on account of the dividend that had been declared upon the old sliares, but not paid and not to be paid for six years. Bos- ton and Lowell B. B. Co. ■». Commonwealth, 100 Mass., 399. 1868. 63. Capital invested in real estate. A railway company is not liable to taxation upon its capital, as personal estate, for that part thereof which is invested in the lands over which the road runs, and in railways and other fixtures connected therewith ; but that part of the corporate property is to be taxed as real estate. Mohawk and Hudson B. B. Co., v. Clute, 4 Paige Ch. (N. T.), 384. 1834. 64. Nonresident holders. The interest rep- resented by the shares of stock in a railway company organized under the laws of Iowa, is within the jurisdiction of the state, even when the owners, are nonresidents, and the shares may be taxed therein. Code of 1851, § 463. Acts of 1858, ch. 153, § 7. I'axton v. McCosh, 13 la., 537. 1861. 65. Place of taxation. The capital stock of a railway company which is not invested in the railway, or other real estate, is to be taxed as other personal properly, in the town or ward where the principal office or place for transacting the financial concerns of the com- pany is situated. Mohawh and Hudson B. B. Co. V. Clute, 4 Paige Ch. (N. Y.), 384. 1834. 66. Railways; street. The commission- ers of taxes and assessments in the city of New York, in estimating the value of the capital stock of the street railway companies, should deduct from the actual value of such stock, the assessed value of its real estate. Peo2le ex rel. ■0. Commissioners of Taxes, etc., 46 Howard's Pr. (N. Y.), 237. 1873. 67. — The commissioners of taxes, etc., in assessing the capital stock of a street rail*ay TAXATION. 741 Different Kinds of Tax. company, valued such stock at the actual value ; deducted therefrom the cost price of the real estate of the company and returned the balance as the sum in which the company should be assessed, refusing to deduct the amount of indebtedness of the company from such valuation. Held, that the rule of assess- ment adopted was correct. People e.v rel. v. Oom- missionors of Taxes, etc., 1 N. Y. Sup. Ct., 635. 1873. 68. What the term stock includes. Where it is provided by law that the stock of a rail- way company shall not be taxed, the term stock is held to include all property that is necessary and proper for the purpose of laying, building and sustaining such railroad. Ordina/ry of Bibb County ®. Central R. R. Co., 40 Ga., 646. 1869. 6i). — The term "stock " where it occurs in § 33 of an act providing for the assessment of property, 1 R. S., p. 113, includes not subscrip- tions of stock, but the actual tangible property of the railway company. Auditor of Floyd County V. New Albany and Salem R. R. Co., 11 Ind., 570, 1858 ; State «. Hamilton, 5 ib., 310. 1854. 3. Gross Receipts. 70. Constitutional law. A statute of a state imposing a tax upon the gross receipts of rail- road companies is not repugnant to the consti- tution of the United States, though the receipts are, in part, made up from freights received from the transportation of freights from one state to another. Such a tax is not a regulation of interstate commerce, nor is it a tax on imports or exports. Tliere is a dis- tinction between a tax upon freights carried between the states and a tax upon the fruits of such transportation after they have become mingled with the other prop- erty of the carrier. State Tax on Railway Gross Receipts {Reading R. R. Co. v. Pennsyl- vania), 15 "Wallace, 284, 1873 ; Philadelphia and Reading R. R. Co. v. Commonwealth, 4 Brewster (Penn.), 333, 1873; Buffalo and Erie R.R. Co. V. Commonwealth, 8 Brewster's Eq. (Penn.), 386, 1871 ; Kneeland v. City of Milwaukee, 15 Wis., 454, 691. 1863. 71. Construction of statute. The prop- erty of railroad companies is not exempt from taxation by cities, under ch. 196, acts of 1868, providing for a tax upon the gross earnings of all railroads " in lieu of all taxes." The exemption was intended to apply to state and county taxes. Dunleith and Dubuque Bridge Co. V. JDulvque, 33 la., 427. 1871. 72. — A railroad company that has paid the required percentage on its gross earnings in any year, holds its real estate exempt from special assessments fur local improvements as well as all other taxes. R. S., ch. 18, § 183. Brightman v. Kirner, 23 Wis., 54. 1867. 73. What the tax on gross receipts covers. Under § 462, Code of 1851, and § 7, ch. 153, Laws of 1852, the property of railway companies was only taxable for state and county purposes through the shares of the stockholders. Iowa Homestead Co. v. Webster County, 31 la., 231, 1866 ; Dubuque and Pacific R. R. Co. V. Same, ib., 335. 74. — Ch. 45, Rev. 1860, was general, treat- ing all property of all persons alike, and tax-, ing lands of railway companies the same as the lands of private persons; and this act gov- erned for the levy of the taxes of 1861. Ib. 75. — The act of April 8, 1862, referred only to the taxation of the track, rolling stock and buildings, the taxes on gross earnings therefore do not cover taxes on other lands. Ib. 4. Freight tax. 76. Constitutional law. The transporta- tion of freight, or of subjects of commerce, is a constituent part of commerce itself, and a tax upon freight transported from state to state is a regulation of commerce among the states. Hence, a tax of this nature levied by a state is in conflict with the constitution of the United States. Case of tJie State Freight Tax {Read- ing R. R. Co. V. Pennsylvania), 15 Wallace, 233, 1873; £Jrie R. R. Co. v. Pennsylvania, ib., 283, 1873. 77. — Whenever the subjects in regard to which a power to regulate commerce is as- serted, are in their nature na;tional, or admit of one uniform system or plan of regulation, they are exclusively within the power of con- gress, and the transportation of freight and passengers from one state to another, or through a state, is of this nature. Ib. Philadelphia and Reading R. R. Co. v. Commonwealth, 4 Brewster (Penn.), 202. 1873. 78. — A clause in the charter of a railway' 742 TAXATION. Different Kinds of Tax. company, providing that all tonnage of what- soever kind or description, except the ordinary- baggage of passengers, carried or conveyed on said railway. In each county and every year, shall be subject to a toll or duty for the use of the commonwealth of three mills per ton per mile, is simply a mode of taxing the company accor.ding to the magnitude of its business, and is not intended as a tax on com- merce. Pennsylvania S. B. Oo. v. Oommon- wealth, 3 Grant's Cases (Penn.), 128. 1860. 79. — In a question whether a state law is against the constitution of the United States, a simple doubt should determine it in favor of the state. Tonnage Tax Oases, 63 Penn. St., 386, 1869 ; Commonwealth v. Brie B. B. Co., ib. 80. — The tonnage tax law of 1864 is solely a revenue law, and is constitutional. Ib. 81. — Eminent domain is one of the re- served rights of the states, and directly con- nected with the enactment of revenue laws. Ib. 82. — Internal improvements by states have been under the power of eminent domain; not under any authority to regulate or aid in the execution of federal powers over interstate commerce, but under the power to improve their own resources and regulate their internal affairs. Ib. 83. — For her internal improvements, the state has the right to compensation from all who use them, as a necessary consequence of her power to construct them. Ib. 84. — The state may take compensation by a direct tax on the tonnage using the road, or a tax on the corporations using her franchises. ih. 85. — Carriage, not destination, gives the right of toll, tax or charge, lb. 86. — The right to demand tolls, etc., is de- rived from the state's grant, and the power to determine the extent is subject to her discre- tion, except so far as she may be limited to use it, so as not to interdict or ruinously affect the commerce of another state. lb. 87. — Taxation is an independent power of the state, unlimited except by the express pro- hibitions of the federal constitution or by im- plication, when it infringes directly on the exercise of federal power. lb. 88. — There is a substantial difference be- tween an act which is simply a burthen on commerce, and one which attempts to regulate it. lb. J 89. Legal rates. Grain bought in another state, shipped to and stored for sale at Pitts- burgh, by a dealer there, and afterwards re- shipped by him to Philadelphia, by the Penn- sylvania R. R. Co., is local freight within the meaning of Act of March 7, 1801, for commu- tation of tonnage duties. Pennsylvania B. B. Oo. V. Oanfield, 46 Penn. St., 311. 1368. 90. — Hence where the rate paid, under protest was for tlirough freight, the shipper could recover the excess over the local freight rate in an action against the company. lb. 91. Tonnage duty. The duty of one cent per ton, imposed by ordinance of the city of Charlest(m upon vessels performing voyages from North Carolina and Georgia to that port, is a tonnage duty, and is in violation of the 10th section of the 1st article of the constitution of the United States. Alexander v. Wilmington and Baleigh B. B. Oo., 3 Strobhart's Law (So. Car.), 594. 1847. 5. Passenger fares. 92. Constitutional law. The acts of as- sembly (1833, ch. 175, 1836, ch. 261, 1844, ch. 103, 1845, ch. 370, and 1853, ch. 328), in so far as they provide that the Baltimore and Ohio B. R. Co. shall pay semi-annually to the treas- urer of the state, for its use, the one-flfth of the whole amount that may be received by the com- pany for the transportation of passengers over its road between Washington and Baltimore, are not in conflict with the constitution of the United States. State v. Baltimoi-e and- Ohio B. iJ. Oo., 34 Md., 344. 1871. 6. Net earnings. 93. Constitutional law. The tax upon the net earnings of the Philadelphia, Wilmington and Baltimore B. B. Oo., held, not to be in con- flict with the terms of its charter. Minot v. Philadelphia, etc., B. B. Oo., 7 Philadelphia Rep. (Penn.), 555. 1870. 7. Tolls. 94. Constitutional law. The tolls imposed at the time of the adoption of the constitution of 1846 on freight carried on railroads, were not, within the meaning of that instrument, part of the revenues of the state canals, though pay- TAXATION. 743 Different Kinds of Tax. able to tlie commissioners of tlie canal fund. People V. New York Gentral B. S. Co., 24 N.Y., 485, 1862; Same v. Same, 34 Barbour (N.Y.), 123, 1861. 95. — The act (cli. 497 of 1851) repealing the laws imposing such tolls is, therefore, consist- ent with article 7 of the constitution, which ir- revocably pledges the revenues of the canals to the payment of certain debts, and to their com- pletion, and the act is valid. lb. 96. Tolls. A railway company, furnishing Its own conveyances, cariying nothing but pas- sengers, and charging a certain price as fare, cannot be considered a toll collecting com- pany. State V. Haight, 1 Vroom (N. J.), 447. 1964. 8. Rolling stock. 97. Constitutional law. A tax upon Ae use of locomotives, cars, etc., is unconstitution- al, as being a regulation of commerce. Minot c. Philadelphia, ete., B. B. Co., 7 Philadelphia Eep. (Penn.), 555. 1870. 98. Place of taxation, Kolling stock is personal property, and as such is taxable in the county where the corporation has its legal res- idence. Pacific B. B. Co. i>. Cass County, 53 Mo., 17. 1873. 99. Taxed as realty. The rolling stock of a railway is intimately connected with the purposes and uses of the track and superstruc- ture, and it is within the power of the legisla- ture to ti-eat such machinery as real property for purposes of taxation. Louisville and New Albany B. B. Co. v. State, 25 Ind., 177. 1863. 9. Dividend tax. 100. Charter. The charter of a railway com- pany provided that when the dividends ex- ceeded six per cent, per annum on the capital stock, six per cent, on the dividends should be paid to the city of Philadelphia. Held, that the capital stock paid in, and not authorized, was intended. Philadelphia v. Philadelphia and Ghafs Ferry B. B. Co., 53 Penn. St., 177, 1866; Second and Third Street B. B. Co. n. Philadelphia, 51 ib., 465. 101. — The payment to the city was to be on the whole dividend, and not merely on the surplus over six per cent; and the sums due the city would draw interest after they fell due. n. 102. — A supplement provided that the tax on dividends should be so construed as to ap- ply to the authorized capital. Held, that tliis provision was prospective. Ib. 103. Credit Mobilier. The proof arising from settlement for taxes on dividends made by the trustees under a deed of trust for stock- holders of a corporation, when made from the books of the trustees, is answered by showing that the corporation did not own the contract out of which the profits arose. Credit Mobilier V. Commonwealth, 67 Penn. St., 233. 1870. 104. — The stockholders, instead of shield- ing themselves from personal liability by vest- ing the contract on the company, having per- sonally undertaken to do the work, the com- monwealth has no claim for taxes on the prof- its. Ib. 105. — A railway contract entered into by Oakes Ames, and by him assigned to trustees to execute and divide the profits among cer- tain persons, rendered Ames and the trustees and the persons receiving the profits, with notice of the trust, personally liable as part- ners. Ib. 106. — Profits made by persons described as shareholders in a corporation in a business in which they are personally liable are not the subject of taxation as profits of the corpora- tion, although the corporation agrees to ad- vance funds to conduct that business and agrees to guarantee the individuals from loss. Ib. 107. — Where a deed does not in legal effect vest title in a corporation, but the com- monwealth seeks to prove that the title did vest in the corporation, the latter can prove that the intent of the parties was in accordance with the legal effect of the words used. Ib. 108. — To rebut the claim of the stale, the defendant had the right to prove that the par- ties did not consent to the ti-ansfer until they had obtained an opinion of counsel that the transfer would not vest the title in the ciirpo- ration. Ib. 109. Foreign corporations. A railway in- corporated under the laws of Ohio, and after- wards authorized to extend its road into this state by purchasing a road already built there- in, falls within the class of " companies incor- porated under any law of this commonwealth," and is subject to the tax imposed on such companies by the act of April 29, 1844. Com, 744 TAXATION. Different Kinds of Tax. monwealth v. Cleveland, Paineeiiille and Ashta- bula S. S. Co., 29 Penn. St., 370. 1857. 110. — Thougli previously incorporated in Ohio, so far as it is a corporation existing and acting under the laws of this commonwealth, it is subject to the taxes imposed ujjon simi- lar companies on the proportion of its capital stock used in this state. lb. 111. — Dividends paid in stock are equally- liable to taxation with those paid in casli. lb. 112. Interest. Where by a mutual mistake between payer and receiver, the whole tax has not been paid, or too much has been received, interest is not recoverable on the sum so with- held or received, unless it has been done un- justly. Second and Third Street B. R. Co. v. Philadelphia, 51 Penn. St., 465. 1866. 113. — After demand and refusal to pay such sum, interest is payable from the de- maud; if there were concealments or design to withhold interest, it would be recoverable for the whole time. lb. 114. — In receiving such tax the city au- thorities and the company treated the author- ized capital as the basis of calculation by mutual mistake ; Jield, that that company was not liable for interest on the amount under- paid until demand. lb. 115. Street railways. The dividends of street railway companies are distributable to paid stock, and are liable for city taxes; and the annual official reports made to the auditor general of the state by the company, are the best evidence of the amount of such stock. Citizen's Passenger R. R. Co. v. Philadelphia, 49 Penn. Bt, 251. 1865. 10. Federal tax. 116. Bonds held by cities. The city of Baltimore issued its bonds and borrowed money, and loaned the same to the Baltimore and Ohio R. R. Co., taking the bonds of the company for the amount loaned. The com- pany, under the excise law of 1862, having notified the city, paid the income tax of 3 per cent, to the government on its bonds given to the city, the money being paid under protest, and the company retained that sum out of the interest due the city. On a suit brought by the city to recover from the defendant the money paid under the excise law, it was held, that the city did not, under the arrangement between it and the company, stand in the po- sition of a surety in such a way that the com- pany was bound to prevent its being preju- diced by events not anticipated when the arrangement was entered into. That the city could not recover the tax off of the company. Baltimore v. Baltimore R. B. Co., 10 "Wallace, 548. 1870. 117. Dividends. Under the circumstances of this particular case, it was h^d, that stock certificates issued to the stockholders were not dividends, and hence, not subject to the three per cent, tax, under the act of congress of July 1, 1862. Chicago, Burlington and Quincy R. R. Co. v. Page, 1 Bissell (U. S. C. C), 461. 1864. 118. Duties. By act of congress of June 80, 1864, § 94, a duty of $2 per ton is laid on pig iron, and $3 per ton on railroad iron, with the proviso that iron advanced beyond pig iron, on which no duty has been paid, shall pay, in addition, $3 per ton. The meaning is that pig iron shall pay $2, railroad iron, made of pig iron that has paid duty $3, and railroad iron made of pig iron which has not paid duty, $6. By the same section pig iron is taxable if " used by the manufacturers there- of;'' a manufacturer " uses " his pig iron when he advances it into railroad iron. Philadel- phia and Reading R. R. Co. «. Waterman, 54 Penn. St., 387. 1867. 119. Execution. Where a debt due on a mortgage is collected on execution, the court may order a deduction of two and one-half per cent. — the government tax — if it shall satisfactorily appear that such tax has been paid by the company to the government subse- quent to enti ring the judgment, and that the sheriff,.havingthesame in hand, shall refund the same. Beardaley v Ifew Jersey West Line .B.ie. Co., 6 Vroom, (N. J.), 479. 1872. 120. Gross receipts. Where the proportion- able amount of the tax on gross receipts of a railway company, imposed by the U. 8. Inter- nal Revenue Law, which is allowed by the statute to be added to and collected with the fare of each passenger, is a fractional part of one cent;— 7t«Z(Z, that the company is limited to such fractional amount, and there being no coin in which it can be paid, the loss must fall on the company, and not on the passengers. Black r. Sixth Avenue R. R. Co., 1 Daly, (N J.), 586. 1866. TAXATION. 745 Diflfereat Kinds of Tax. 121. Income. The internal revenue act of June 30, 1864, does not lay a tax upon the in- come of a nonresident alien, arising from bonds held by him of a railroad company incorporated by states of the union and situa- ted in them. Biilroad Company v. Jackson, 7 Wallace, 262. 1868. 122. — Interest or dividends accruing prior to January 1, 1870, were taxable under the act of June 30, 1864, though payable or declared on or after the date named. Barnes v. The Railroad Companies. 17 Wallace, 294. 1872. 123. — A dividend declared payable after December 31, 1869 is not liable to the income tax although it is for earnings prior to its declaration. Philadelphia and Beading R. R. Co. V. Barnes. 7 Philadelphia Rep., (Penn.), D43. 1870. 1 24. — The internal revenue tax upon cou- pon bonds is payable by the holder and not by tlie debtor. Raight v. Railroad Co., 6 Philadelphia Eep., (Penn.), 449. 1867. 12.5. — The corporation is made use of but as a convenient means of collecting the tax. United States v. Railroad Co., 17 Wallace, 322' 1873. 126. Repairs. Under § 122 of the act of June 30, 1864 (13 U. S. Stat., at large, 284), moneys used by a railway company to replace an old and worn out bridge, by another of like materials and dimensions, are not " profits used for construction," and, as such,' liable to a tax of five per cent. Sartford and S'eio Eamen R. R. Co. ■». Grant, 9 JBlatchford, (TJ. S. CO.), 542. 1873. 127. State railroads. A railroad owned and operated by a state is not subject to taxa- tion under the internal revenue law, (TJ. S. D. C.) State V. Atkins, 85 Ga., 315. 1866. 11. General tax. 128. Court house tax. The act of June 8, 1865 (Myers' Sup. 376), authorizing county courts, where the court house, etc., have been destroyed, " to levy on the property of said counties, listed for taxation for revenue pur- poses, an ad valorem tax of not exceeding fif- teen cents to each one hundred dollars of property so listed, did not authorize the War- ren county court to levy a tax upon the depot grounds and other property of the Louisville and Nashville R. R. Co; in said county, to aid in rebuilding the court house. 'Louisville and Nashville R. R. Co. v. Warren County Court, 5 Bush. (Ky.), 243. 1868. 129. — The railroads of Kentucky are not listed with the assessor of any county, nor do they enter into the assessed property of any county, even for revenue purposes. li. 1 30. Depots. R. S., ch. 6, § 4, providing, "that the track of the road and the land on which it is constructed shall not, for the pur- pose of taxation, be deemed real estate," does not apply to depots and other erections of such corporations upon land owned by them. Portland, Saco and Portsmouth R. R. Co. ■». Saco, 60 Me., 196. 1872. 131. — The Western R. R. Co. is not liable to be taxed for the land, not exceeding five rods in width, over which it is authorized to lay out its road, nor for buildings and struc- tures thereon erected by it, if such buildings and structures are reasonably incident to the support of the road or to its proper and con- venieijt use for the carriage of passengers and property, such as houses for the reception of passengers, engine houses, car houses and depots. Worcester, Inhabitants of v. Western R. B. Co., 4 Metcalf (Mass.), 564. 1842. 132. Logs and lumber. For purposes of taxation, wood, timber, logs and lumber owned by a railroad corporation and distributed along its line for present use in operating and repairing such road, are to be deemed a part of the railroad, and subject to be taxed in that form by the justices of the supreme judicial court. Fitchburg R. R. Co. v. Prescott, 47 N. n., 63. 1866. 1 33. Manner of taxation. Railroads in Kentucky are taxed at the rate of $20,000 per mile of road, including depot grounds, etc., and all the paraphernalia of such roads. By act of February 20, 1864 (Myers' Sup. 480), the length of such roads is required to be reported to the auditor, and the tax paid to the treas- urer. Louisville and Nashville R: B. Co. v. Warren County Court, 5 Bush. (Ky.), 243. 18C8. 1 34. — If a railroad company own^ any property in any county in this state which is not included in the above act as part of the necessary paraphernalia of the road, such property is.liable to taxation for revenue and county purposes. 76. 135. — Railway companies are n't liable 746 TAXATION. Collection of Tax. to taxation upon their capital, but upon the valuation of their real estate in the several towns through which the road passes; and semble, they are liable to be so taxed, though not. in the receipt of any profits or income. R. S., 414. People ex rel. v. Supervisors c(f Ni- agara, 4 Hill (N. Y.), 20. 1842. 136. — A railroad company incorporated before the revision of the statutes, whose char- ter is silent on the subject of taxation, is liable to pay the specific tax imposed by R. S., ch. 21, § 5. The People d. Ditroit and Pontiac JR. B. Oo., 1 Mich., 458. 1850. 137. — The revenue laws apply equally to both persons and corporations, snbject to cer- tain specified exemptions. Louisville and NasTimlle B. B. Oo. v. Commonwealth, 1 Bush (Ky.), 250. 1866. 138. — The rails, ties and bridges, etc., of a railroad company, together with its easement in the lands, within the located limits of the road, are real estate, and as such, liable to tax- ation in the towns where they are situated. Providence and Worcester B. B. Co. v. Wright, 2 R. I., 459. 1853. 139. Real estate not used for railway purposes. A railway company should be taxed under the law as it now stands, for its " road " as an entirety, including all prop- erty in any way used by it in running and operating the road. But the real estate owned or held by it in trust, and not used in running or operating the road, should be taxed in the same manner as the real estate of private individuals. Toledo and Wa- bash B. B. Oo. V. City of La Fayette, 22 Ind., 262. 1864. 140. Road tax. Under § 1 of the act of 1837, which directs commissioners of high- ways, in apportioning the residue of the high- way labor to be performed in their town, after assessing one day's work upon each male in- habitant of full age, " to include among the inhabitants of such town, among whom such residue is to be apportioned, all moneyed or stock corporations which shall appear on the last assessment roll of their town to have been assessed therein," the commission- ers must follow the previous action of the assessors. They are to take the last assess- ment roll for their guide. People ex rel. v. Hudson Bvoer B. B. Co., 31 Barbour (N. Y.), 138. 1860. III. COLLEOTIOX OF TAX. 141. Distress. Rolling stock is personal property, and as such is liable to be seized and sold for the collection of a tax against the company. Bandall v. Mlwell, 52 N. Y., 521. 1873. 1 42. — The act of Feb. 14, 1855, amendatory to the revenue law, which directs that the track or superstructure of a railroad shall be de- nominated "fixed and stationary personal property," was intended to create a species of personal property before unknown to the law. For nonpayment of taxes upon this property, the collector may levy upon the rails and re- move them from the track, for the purpose of selling them. Maus v. Logansport, Peoria and Burlington B. B. Co., 27 111., 77. 1862. 143. Injunction. The court will not in- terfere by injunction, to prevent the collection of taxes irregularly assessed. Chicago, Bur- lington and Quincy B. B. Oo. v. Frary, 22 111., 34. 1859. 144. — A person against whom illegal taxes have been assessed or levied cannot, by injunction, restrain the collection of an ille- gal tax against another person. Missouri Biver, Ft. Scott and Oulf B. B. Co. v. Wheaton, 7 Kan., 232, 1871. 14.5. — The general rule that equity will not restrain the sale of personal property for illegal taxes is adhered to In the case of a threatened levy upon the rolling stock of a railroad company. Chicago and Northwestern B. B. Oo. D. Borough of Ft. Howard, 21 Wis., 44. 1866. 146. — An injunction to restrain the sale of property assessed as omitted property re- fused, it appearing that the property was tax- able, and that if the taxes were paid, the com- plainant would pay no more than its share of the public burdens. Union Pacific B. B. Co. V. Lincoln County, 3 Dillon (U. S. C. C), 279. 1872. 147. — Injunction will not lie to restrain the commission of a pure, simple and naked trespass. If an ofBcer holding a warrant for the collection of taxes assessed against R., levy said warrant on the property of B., the latter ■ has his remedy by action of replevin against the officer, or by action for damages. Missouri Biver, Ft. Scott and GhilfB. B. Oo. v. Wheaton, 7 Kan., 232. 1871. TAXATION. 747 Collection of Tax. ] 48. — That property advertised for sale for the payment of taxes is so vaguely and in- definitely described in the notice of sale, that a purchaser thereof could take no perfect title, does not constitute sufficient cause for enjoining the sale. Burlington and Missouri Biver B. B. Go. ■». Mt. Pleasant, 13 la., 112. 1861. 149. — A court of equity will not set aside a tax nor grant an injunction to restrain its collection, unless its collection would be in- equitable and unjust; and the party seeking such a remedy must be prepaied to do equity. Missouri Biver, Ft. Scott and Oulf B. B. Co. v. Morris, 7 Kan., 210. 1871. 150. — The rule denying the right to inter- fere by injunction to restrain the collecticm of a tax, is one of public policy, and it is equally applicable to the case of an assessment. West- ern B. B. Co. V. Nolan, 48 N. Y., 513. 1872. 151. — Where a tax is sought to be levied without authority, several property owners having a common interest in the subject, may join in a bill to restrain its collection. Mt. Carbon Goal and B. B. Co. v. Blancha/rd, 54 111., 310. 1870. 152. — A railway company against which taxes were assessed, and the assessments re- moved into the supreme court and affirmed, may be required to pay them by a mandamms, if there is no other adequate remedy for col- lecting them. Person v. Warren B. B. Co. 3 Vroom. (N. J.), 441. 1868. 153. — Under act of April 29, 1853, taxes should be collected in the same manner as other taxes. The mandate issued by the district judge will not authorize the collection by the sheriff. Vicksburgand Shreveport B. B. Co. v. Caddo Parish, 10 La. An., 587. 1855. 154. Payment under protest. The plaint- iff having paid certain taxes under protest to the collector of the town of B., can only re- cover back from such town the amount' of the taxes collected for its benefit, and not the state, county and other taxes which the defendant collected only as an agent and paid over as di- rected by the statute. Vermont Central B. B. Co. V. Burlington, 28' Vt., 193. 1855. 155. Penalty. The exaction of ten per cent, for nonpayment of the assessed tax with- in a prescribed time, is not a penalty for en- forcing which an indictment or other judicial process is necessary; but it is only a provis- ional and valid increase pro rata of the assess- ment, like the assuring provision in a bond for the payment of a debt on a particular day, prescribing the additional payment of ten per cent, in the event of failure to pay on that day. Louisville City B. B. Co. i). Louisville, 4 Bush (Ky.), 478. 1868. 156. — The ten per cent, penalty required by law to be added to taxes in case of failure to pay by the tenth day of January, becomes, when added, a part of the taxes due. Kansas Pacific B. B. Co. v. Amrine, 10 Kans., 318. 1872. 157. Personal property. Under the laws of Missouri, back taxes on real estate cannot be collected from the personal property of a subsequent purchaser of such real estate. At- lantic and Pacific B. B- Co. v. Cleino, 2 Dillon (U. S. C. C), 175. 1873. 158. Replevin. The laws of Michigan, Comp. L., § 5008, provide that no replevin shall lie for any property taken by virtue of any warrant for the collection of any tax, as- sessment or fine in pursuance of any law of the state. Held, that said law applied only to cases where a valid tax might possibly have been imposed ; that the law exempting a cor- Ijoration from certain taxes, being a general law, the collector was bound to take notice of it, and he could not plead that the tax roll did not show that the party taxed was a corpora- tion. Leroy v. East Saginaw City B. B. Co., 18 Mich., 238. 1869. 159. — The question of the validity of a tax cannot be considered in an action of re- plevin. Mount Carbon Coal and B. B. Go. v. Andrews, 5Zl\\.,nQ. 1870. 160. Tax sales. A sale of land in the city of Kenosha for unpaid taxes of 1857 was not in- valid on the ground that railroad property within the city was intentionally omitted from the fax list. Bond v. City of Kenosha, 17 Wis., 284. 1863. 161. — The sale of the land of a defaulting tax collector, by a warrant from the county commissioners, is not a sale for taxes, and the laws relating to sales of unseated lalidB are inapplicable. Act April 11, 1799. Schuyl- kill and Dauphin B. B. Go. v. McOreary, 58 Penn. St., 304. 1S68. 162. — Where the property of a railway company has been sold by the tax collector for the nonpayment of taxes which had been remitted by act of the legislature before the 748 TAXATION. Place of Taxation — Land Grants. sale, and the purchaser makes no attempt to assert his right to the property, but allows the company to retain possession, a court of equi- ty will entertain a bill by the railroad com- pany to annul the sale, cancel the deed made to the purchaser and enjoin him from assert- ing any claim to the property. Mobile and Gira/rd B. JR. Oo. v. Peeiles, 47 Ala., N. S., 317. 1873. 163. Warrant. The fact that an illegal tax warrant was regular, upon its face, and disclosed no illegality, cannot aflFord protec- tion to the collector in an action of replevin. It protects him from personal responsibility as a trespasser, but it cannot be made the foundation of a right or claim against others, nor confer any right of property which alone is in issue in an action of replevin. Leroy v. Mast Saginaw City R. R. Co., 18 Mich., 233. 1869. 164. — The warrant does not authorize the seizm'e and sale of the property of a person not named, or whose name it is apparent from the face of the papers the assessor had no right to set down. New York and Harlem R. R. Oo. V. Lyon, 16 Barbour (N. Y.), 651. 1853. ly. Place of tasatiok. 165. Legislative power. The legislature may create a district for the purpose of taxa- tion or assessment, ■without reference to exist- ing civil or political districts. County Judge of Shelby County v. Shelby R. R. Co., 5 Bush (Ey.), 325. 1868. 166. Personal property belonging to a railway company, but not comprising any part of its capital stock, is liable to be taxed where the corporation has its place of busi- ness. Portland, Saco and Portsmouth R. R. Oo. ■D. Saco, 60 M.e., W&. 1873. 167. — Where an action was brought against a town to recover back money paid for taxes on wood, upon the gi-ounds that its place of busi- ness was not in defendant's town, the onus is upon the plaintiflFs to show where it was. lb. 168, — Such an action will fail unless it appear that its place of business was not in said town. Tb. 169, Place of business, A tax, under the act of 1883, Jield, rightly assessed on the 'W.^r- ren B. R. Co., in the town of Belvidere, where the office of its secretary was. Sate v. Person, 3 Vroom (N. J.), 134, 1866. 170. Railway passing through two or more counties. A railway company should be regarded as a resident of the several towns and wards through which its road extends, within the meaning of the tax laws, and as- sessed therein for its real estate. The real estate of railroad companies which is occu- pied and used by them for railroad purposes, is not required to be assessed as " nonresident lands." People v. Fredericks, 48 Barbour (N. y.), 173, 1866 ; Buffalo and State Line B. B. Oo. V. Supervisors of Erie County, 48 (N. Y.), 93, 1871. 171. — That portion of a railroad which lies within a county is taxable there, and the valuation of the road must be of that specific part, without reference to the value of the whole road. Sangamon and Morgan R. R. Co. T. Jacksonville, 14 111., 163. 1853. 172. — The law treats a railway and all its appurtenances as one entire thing, not legally subject to coercive dislocation. In such con- solidated character, it must be taxed for state revenue, and cannot be a fit subject for local taxation by separate counties through which it passes. Applegate v. Ernst, 3 Bush (Ky.), 648. 1868, 173. — A railroad, passing through a par- ish, is Ihible to an assessment of a parish tax, unless excepted by a special law. Bakewell V. Police Jury, 20 La. An., 334. 1868. Y, Land grants, 174. Des Moines river grant. The lands granted to the state of Iowa for the improve- ment of the Des Moines river, by act of con- gress of August 8, 1846,' and certified by the register of Des Moines River Improvement to the Des Moines Navigation and R. R. Co., were not subject to taxation before the title was conveyed by patent, as prescribed by lavv;. The certificate of the register did not pats the title. JDes Moines Navigation and B. R. Co. v. Polk County, 10 la., 1. 1859. 175.' — Property acquired from the govern- ment, after the completion of the assessment for the current year, is exempt from taxation until theifoUowing assessment. lb.; Tollman v. Treasurer of Butler County, 13 la., 531. 1861. TAXATION. 749 Special Charters. 176. Lands granted to the state. Lands granted to the state to aid in the construction of railways are not liable to taxation while they remain the proi^erty of the companies to which they have been granted by the state. They are taxable only through the shares of the stockholders. lb. 177. — Property can only be taxed when authorized and required by the- lawmaking power, and then only in the manner prescribed by law. lb. 178. — Lands included In the grants for the construction of railways in Iowa, under act of congress of May 15, 1865, are liable to taxation by the state after the railroad com- panies to which they were granted became possessed of the unconditional title in fee and before they have been alienated by the com- panies. Burlington and Missouri Biver B. B. Go. v. Eayne, 19 la., 137. 1865. 179. — Where under the act of congress of May 15, 1856, and the acts of assembly of Iowa of July 14, 1856, a railway company is legally entitled to lands, the certificates of the governor and from the land department are only evidence of a title already existing ; and the lands are subject to taxation from the time the company becomes legally entitled to them. Iowa Homestead Go. v. Webster Gounty, 21 la., 331, 1866 ; Dubuque and Pacific B. B. Go. «. Same, ib., 335. 180.— Hannibal, etc. E. R. Co. The lands granted by the slate to the Hannibal and St. Joseph E. E. Co. by the act of Sept. 20, 1852, are not taxable for state and county purposes under the general revenue law. (Laws 1863-4, p. 65). The property of the company is repre- sented by its shares of stock, and there cannot be any other property over and above the stock held by the stockholders. State v. Han- nibal and St. Josephs. B. Go., 37 Mo., 265. 1866. 181. Lands not certified or patented. < Lands held by a railroad company under land grant acts of congress, which have never been certified or set apart, and which are incapable of identification, are not taxable. The present case distinguished from Iowa Homestead Go. v. Webster County, 21 la., 231, and Dubuque ana Pacific B. B. Co. v. Same, ib., 235. Cedar Ba/pids and Missouri B. B. Go. v. WoodJtmry County, 29 la., 247. 1870. 182. —AltlumgU lands sold by the United States may be taxed before the government has issued a patent, this principle is to be under- stood as applicable only to cases where the rigM to the patent is complete, and the equita- ble title fully vested without anything more to be paid, or any act done going to the founda- tion of the right. Bailroad Company v. Pres- cott, 16 Wallace, 603. 1872. 183. — Where land is granted to a corpora- tion for the sole purpose of aiding in the con- struction of a railway and telegraph lines, and such lines are constructed to the approval of the government, the company acquires ^ch an interest in the land as renders it subject to tasation, even though it has not received a patent, and has not paid the costs of surveying, selec:ing and conveying tlie same, and the fees of the register and receiver of the land office, required by law to be paid before the issue of the patent. Kansas Pacific B. B. Co. V. Gulp, 9 Kans., 38, 1873. This case was re- versed on appeal to the supreme court of the United Slates, in March, 1873. VI. Special charters. 184. Baltimore and Ohio R. R. Co. The liability of the Baltimore and Ohio R. R. Co. to the payment of taxes — determined. Balti- more and Ohio B. B. Co. «. Marshall Gounty, 3 W. Va., 319, 1869; Same v. Wheeling, ib., 372. 1 85. Bangor and Piscataquis R. R. Co. Under the wording of the charter of the Bangor and Piscataquis E. E. Co., it was held that its real estate should be considered as personal property for the purpose of taxation. Bangor and Piscataquis B. B. Go. v. Harris, 21 Me., 533. 1843. Overruled ; ch. 313 of the acts of 1838, must liave escaped the observation of the court. Cumberland Marine B. B. Co. v. Portland, 37 Me., 444. 1854. 186. Central Pacific R. R.Co. The state of California has no authority to impose taxa- tion for state purposes upon that portion of the Central Pacific Railroad, and the telegraph lines in connection therewith, lying within its limits. Th^ People v. Central Pacific B. B. Co., 48 Cal., 398. 1873. 187. Erie Railway. The Erie Railway Company (of N. Y.), is subject to general tax- ation, notwithstanding its annual tax for the right of way through the state and the tax on 750 TAXATION. Exemption. its stock. Erie B. B. Go. v. Tlie Commonwealth, 66 Penn. St., 84. 1870. 188. — A surrender of the general taxing power by any legislative act cannot be implied. lb. 189. — The payment for a charter does not imply a surrender of power to tax the corpo- ration by a general tax law. lb. 190. The Louisville and Nashville R. R. Co. was subject to assessment and taxation, ac- cording to the value of its corporate estate, ever tince it owned such estate, until the specific tax 'at the rate of $20,000 per mile of road was substituted by the act of February 20th, 1864. Louisville and Na»htille B. B. Co. ■». Common- wealth, 1 Bush (Ky.), 250. 1866. 191. Morris and Kssex R. R. Co. The Morris and Essex R. B. Co., in 1865, was tax- able under the supplement to its charter, ap- proved March 23d, 1865, and not under the general tax law of 1862. McQavisk v. The State, 6 Vroom (N. J.), 509. 1869. 192. — The charter of the Morris and Esse R. R. Co. — construed. All the property the company in actual use is exempt from ti ation except the tax of one-half of one pei cent, on the cost of the road. State v. Haight, 6ib.,40. 1870. 193. Orange and Newark R. R. Co. The Orange and Newark R. R. Co. is taxable under its charter, and not under the general tax law of 1869. State v. Douglas, 5 ib., 82. 1869. 1 94. Rome R. R. Co. The property of the Rome R. B. Co. in Bome, which is necessary to conduct the business of the company, is a part of its capital stock, and not liable to taxa- tion by that city as property. Bome B. B. Co. V. Bome, 14 Ga., 275. 1853. VII. EXEMPTIOX. 195. Baltimore and Ohio R. R. Co. The shares of stock of the Baltimore and Ohio R. R. Co. are exempt from taxation by the terms of its charter. The property of the corporation is an ingredient making up the value of the shares, and is also exempt. Mayor of Baltimore 11. Baltimore and Ohio B. B. Co., 6 Gill (Md.), 288. 18,48. 196. Boston and Maine R. R. Co. The flats lying between the channels of the Charles and Miller's rivers, outside of the location of the road of the Boston and Maine R. B. Co., and filled up by such company, pursuant to the au- thority given by 8t. 1845, ch. 224, § 1, for the location of engine-houses and wood houses and for other purposes for the use of its road, and used, when so filled up, exclusively for such purposes, are not exempt from taxation. Bos- ton and Maine B. B. Co. v. Cambridge, 8 Gush- ing (Mass.), 237. 1851. 197. Branch roads. A branch road, built from the main track of the New Jersey R. R. Co. oneand three-quarters of a mile to a gi'avel pit, for the purpose of obtaining the gravel more cheaply for its track, is lialile to ordinary taxation. State v. Hancock, iYroom (N. J.),315. 1869. 198. Camden and Amboy R. R. Co. The tax of, or stipulation to pay, $30,000 to the state annually, by the Camden and Amboy R. R. Co., is not merely a tax on its franchises ; and not only those franchises, but all other property of d company, are exempted by its charter from 'ny other tax. Camden and Amboy B. B. Co. \. Cjpnmissfoners, 3 Harrison (N. J.), 71. 1840. 9. — An impost for county and township OSes is a state tax ; it can be imposed by .other authority. Ib. - The charter of a railway company i^ded for the payment to the state treasurer 'ten cents for each passenger, and fifteen nts for each ton ol merchandise transported 'on the road, and declared " that no other tax or impost Shall be levied or assessed upon the company;" held, tliatthe company was exempt from any tax, for state, county or township pui-poses. Camden and Amboy B. B. Co. v. Hillegas, 3 Harrison (N. J.), 11. 1840. 201. Camden and Burlington R. R. Co. The charter of the Camden and Burlington R. R. Co. — construed, and the company held exempt from assessment. State v. Cook, 3 Vroom (N. J.), 338, 1867 ; see also Cook v. State, 4 ib., 474, 1868. 202. Chartered method is exclusive. A corporation whose charter provides a certain mode of taxation in lieu of other taxes is not liable to be assessed in the ordinaiy manner prescribed in the tax law of 1866. Douglas v. The State, 5 Vroom (N. J.), 485. 1869. 203. Consolidation of railways. Where a railroad company was by its charter granted an exemption for a limited period, and was afterwards merged in another company, which became invested with all its property, rights TAXATION. 751 Exemption. and privileges, the exemption and its limita- tion accompanied the property, and a perpet- ual exemption from taxation in the charter of the latter company would not be extended to the property so acquired, without express words, or necessary intendment to that eflfect. Tomlinson v. Branch, 15 Wallace, 460, 1873; Oity of Charleston v. Same, ib., 470, 1873. 204. — Where two railway companies are consolidated, the two united lines will be re- spectively held with the privileges and bur- dens originally attaching thereto, unless the contrary is expressed. Ib. 205. Constitutional Law. — A rail- road company was incorporated, subject to the provisions of the railroad law of 1849, with a provision that it should not be taxed until its dividends amounted to six per cent, per annum. A subsequent law subjected all corporations to a tax on each one per cent, of dividend. Held, that the company was taxable under the latter act, on a dividend less than six per cent, per annum. The right to amend charters containeo in the former act authorizes the imposition ot this tax by a sub- sequent act. Commonwealth v. Fayette County S. B. Co., 55 Penn. St., 453. 1867. 206. — A railway company was in 1851 in- corporated by the legislature of South Caro- lina, with the usual powers. At that time, a law of 1841 was in force, providing that the charters of corporations subsequently char- tered might be amended, if no provision to the contrary was inserted in its charter. In 1855, an act was passed exempting the company from taxation, but there was no clause except- ing the amendment fi-om the provisions of the act of 1841. In 1868, the constitution was adopted requiring the taxation of such corpor- ations, except in certain cases not affecting this case. The said railway was subsequently taxed. Held, that by virtue of the act of 1841, the taxation was legal and constitutional. Tomlinson v. Jessup, 15 Wallace, 454. 1873. 207. — The reservation of 1841 affected the entire relation between the state and the cor- poration, and placed under legislative control all rights, privileges and immunities derived by its charter directly from the state. Ib. 208. — Conceding a law exempting rail- ways from a just proportion of taxation to be unconstitutional, yet the omission to levy against raihvay companies their due propor- tion of taxation will not render void a tax levied upon other property subject to taxation. Muscatine v. Mississippi and Missouri B. B. Co., 1 Dillon (8 U. 8. C. C), 536. 1870. 2 9. — The constitution of the state of Iowa provides that all taxation shall be uniform. Whether a law taxing the earnings of railways while it taxes other property iipon its value, is in conflict with the constitution, qumre? 310. — Under the constitution of 1857, a revenue law exempting the property of rail- way companies and like corporations from taxation would be invalid. Iowa Homestead Co. V. Webster County, 31 Iowa, 331, 1866 ; Du- buque and Pacific B. . B. Co. v. Sam^, ib., 335. 211. — The charter of the R. & D. R. E. Co. provides that " all machines, wagons, ve- hicles or carriages belonging to the company, with all its works, and all the profits which may accrue from the same, shall be vested in the respective shareholders forever, in propor- tion to their respective shares, shall be deemed personal estate, and exempt from any charge or tax whatever." Seld, that the real estate owned and used by the company for the pur- poses of its buiiiness is embraced in the pro- vision, and is personal estate. The exemption from taxation of the real estate of the com- pany in the city of Richmond is not uncon- stitutional as being in conflict with the char-, ter of the city previously granted, giving the city the power to tax real estate for the pur- poses stated in the city charter, the city having ample means of taxation left for the payment of her expenses and debts. Bichmond v. Bich- mond and Danville B. B. Co., 31 Grattan (Va.), 604. 1873. 212. — Stipulations in the charter of a rail- way company, fixing the extent at which it will be liable to taxation, may be subsequently changed. Such limit is an estimate rather than a contract. Baleigh and Gaston B. B. Co. V. Beid, 64 N. C, 155, 1870; see also, Wilming- ton and Weldon B. B. Co. v. Beid, ib., 336; St. Joseph V. Hannibal and St. Joseph B. B. Co., 39 Mo., 476, 1867. 213. — No irrepealable contract creating a limitation of taxation can result from provis- ions of a charter, made by its terms subject to amendment; so held in regard to the taxation of the Morris and Essex R. R. Co. State v. Miller, 1 Vroom (N. J.), 368, 1863; Same v. Same, 2 ib., 531, 1864. 752 TAXATION. Exemptioh. 214. — The same doctrine applies to the Jersey City and Bergen E. E. Co. State v. Mayor of Jersey City, 2 Vrooin (N. J.), 575. 1865. 215. Constmction of statutes. It is true that laws conferring the power of taxation upon municipal corporations are to be con- strued strictly; it is also true that exemptions from taxation are to he construed strictly ; but where the power has once been conferred, it is not to be crippled or destroyed by strained interpretation of subsequent laws. Orange and Alexandria S. S. Oo. v. Alexandria, 17 Grattan (Va.), 176. 1867. 216. — The act of 1854 exempts all railway companies from municipal as well as other taxation. (Sess. Laws, ch. 354, 1854.) South- em B. R. Oo. e. Mayor of Jackson, 38 Miss., 334. 1860. 217. — The exemption extends twenty years from the date of each charter of com- panies subsequently incorporated. Ih. 218. — The act of March 18, 1856, § 25, im- posing taxes for the support of the state gov- ernment, does not extend to exempt railway companies complying with said section from taxation by a city government. Orange and Alexandria R. R. Co. v. Alexandria, 17 Grattan (Va.), 176. 1867. 219. — The rule that statutes exempting property from taxation are to be most strictly construed against the party benefited thereby, and in favor of the public, cannot properly be applied to the provision exempting the " track, right of way, etc., and all other property neces- sarily used in operating any railroad in this state," inasmuch as the taxation upon annual income of such companies, as required by law, must be regarded as, in the judgment of the legislatui-e, a fair equivalent for such other taxes. The statute, therefore, should receive a fair and liberal construction in favor of such companies. Milwaukee and St. Paul R. R. Co. V. Supervisors of Crawford County, 29 Wis., 116. 1871. 220. — A railway inn or boarding house it seems, might, if used exclusively for railway travelers or employes, be exempt under such statute, but where such inn is kept for the use of all persons applying to become guests, the property will be liable to taxation. lb. 221. — The court cannot in such case hold distinct portions of the buildings taxable and other portions exempt. lb. 222. — The intention to exempt from taxa- tion must appear from the law to be clear and unequivocal, or it Will not be recognized. Pacifle R. It. Co. v. Cass County, 53 Mo., 17. 1873 ; Baltimore and Ohio R. R. Co. «. Marshall County, 3 W. Va., 319. 1869 ; Same v. Wheeling, ib., 372. 223. Corportion created by the federal government. The principle upon which the business of a corporation created by the feder- al government, as an agent in the execution of its powers, is exempt from state taxation, does not apply to the real property of the corpora- tion lying within the limits of a state. People 0. Central Pacific R. B. Co., 43 Cal., 398. 1872. 224. — A railway company organized under the laws of astate, cannotclaim an exemption of its property, lying within the limits of a state, from state taxation because the corpora- tion thus created has been subsequently adop- ted by the federal government, and is employ- ed in the service of the general government, in the carriage of mails, munitions of war, etc. People v. Central Pacific R. R. Co., 43, Cal., 398. 1872. 225. Delaware and Maryland R. R. Co. The Delaware and Maryland E. E. Co., is not liable to taxation upon its stock, works and machinery; but it is liable to taxation upon its, rails road bed and other jsroperty connec- ted with the road in Hartford county. Phila- delphia, Wilmington etc., R.R. Oo. v. Bayless, 2 Gill, (Md.), 355. 1844. 226. Depot grounds. The property of railway companies is not exempt from taxa- tion in Iowa, and grounds held by a company on condition that they shall be used for depot purposes, are subject to taxation as the proper- ty of such company. Burlington and Mo. B. R. Co. V. Mt. Pleasant, 12 Iowa, 112. 1861. 227. — Such property belonging to the corporation as is necessary to the preparation of the road for use is not taxable; hence water stations, depots and such buildings as are indispensable are not taxable, but warehouses, coal lots, coal shutes, machine shops and the like are taxable. Railroad v. Berks County, 6 Penn.,71. 1847. 228. Franchise. A statute exempting all the property of a railway company from taxa- tion, exempts not only the rolling stock and feal estate owned by it and required by the company for the successful prosecution of its TAXATION. 753 Exemption. business, but its franclilse also. Wilmington E. R. Co. V. Beid, 13 Wallace, 264. 1871; Baleigli and QastonB.B. Co. v. Same, ib., 269. 229. — A charter containing such an exemption is a contract and cannot be impair- ed by a law subsequently passed levying a tax upon such property. Ib. 230. Franklin R. R. Co. The Franklin K. R. Co., is not exempt from taxation. Commis- sioners of Washington County v. FranMin B. i2. (7a., 34 Md., 1^)9. ?870. 231. Georgia R. R. Co. The banking part of the capital of Ga. R. R. Co., is exempt from taxation to the same extent as the other stock. City Council of Augusta v. Georgia B. B. Co., 26 Ga., 651. 1858. 232. Gross income. A charter of a rail- road company exempting the " stock " of the company from taxation, exempts also its "gross income," such income being but an accessory of the stock. State v. Hood, 15 Richardson's Law (So. Car.), 177. 1868. 233. Hannibal and St. Joseph R. R. Co. The exemption of the stock of the Hanni- bal and St. Joseph R. R. Co., from all state and county taxes, contained in the original charter of said company, is modified by the accept- ance on the part of said company of the act of September 20, 1852 (Railroad Laws, p. 115 ; Sess. Acts 1853, p. 15) ; and the corporate property of said company, although repre- senting the stock, is subject to taxation at the time and in the manner specifically provided for in § 8 of said last mentioned act. Hanni- lal and St. Joseph B. B. Co. v. Shaahlett, 30 Mo., 550. 1860. 234. — The roadbed, machinery and depots of the Hannibal and St. Joseph Railroad, and the other property used by said company iu operating its road, are to be considered as part of and represented by the capital stock of said company, and are not liable to taxation under that provision of the general revenue law sub- jecting to taxation " all property owned by in- corporated companies over and above their capital stock." (R. C. 1855, p. 1333.) Ib. 235. Illinois Central R. R. Co. The act to incorporate the Illinois Central R. R. Co., which declares certain exemptions of the prop- erty of the company from taxation, is a con- tract between the state and the company, which cannot be changed or annulled without the consent of both parties. Neustadt v. Illinois 48 Central B. B. Co., 31 111., 484, 1863; Illinois Central B. B. Co. ■». McLean County, 17 111., 291, 1855. 236. — Under the act of February 10, 1851, incorporating the Illinois Central R. R. Co., no city or town authority can impose a tax for municipal purposes on the property ol that company which may be within its limits. Neustadt v. Illinois Central B. B. Co., 31 111., 484. 1803. 237. Eickapoo treaty. Under the Kicka- poo treaty of 1863, which provides that none of the lands sold under its provisions " shall be taxable until the patents are issued there- for ;" after said lands were sold to the A. and R R. R. Co., and by that company sold to an individual, who has made improvements thsre- on, before patents had been issued therefor, it was Tield, that neither said lands nor improve- ments were taxable. Parker v. Winsor, 5 Kan., 362. 1870. 238. Minnesota and Pacific R. R. Co. The territory of Minnesota had authority to ex- empt the Minnesota and Pacific R. R. lands from taxation. When the state became pur- chaser of the property of that company under foreclosure, this right passed to the state, and when the state transferred the same property and franchises to the St. Paul and Pacific R. R. Co., the same right of exemption was also transferred. St. Paml and Pacific B. B. Co. v. Parcher, 14 Minn., 397. 1869. 239. Mortgage to federal government. The fact that a railway was mortgaged to the United States, and bound to perform certain duties for the general government, and ulti- mately to pay a portion of its net earnings thereto, will not exempt it from local taxation. Thomson v. Pacific B. B. Co., 9 Wallace, 579. 1869. 240. New Jersey R. R. Co.; ferry boats. The exemption from tax of the property of the New Jersey R. R. Co., provided in its charter, extends to ferry boats used by it in transportation of freight and passengers from the city of New Brunswick to New York city. State v. Haight, 5 Vroom. (N. J.), 319. 1870. 24 1 . New Orleans and Carrol ton R. R. Co. The exemption of the N. O. & C. R. R. Co. from state taxation does not exempt it from municipal taxation. Act March 1, 1836, § 10. Second Municipality rf Neva Orleans v. New 754 TAXATION. Exemption. Orleans and Oarrollton B. B. Co., 10 Robinson (La..), 187. 1845. 242. Non-resident corporation. By the acts authorizing a railway company, incorpo- rated by another state, to locate a part of its road within this commonwealth, it was re- quired to pay to this state annually a certain sum for the privilege, and also a certain cor- poration tax on a portion of its capital stock, equal to the amount of the cost of the con- struction of its road and appurtenances within the state. Held, that the machine shops, foundries and depots, and the expense of their erection, charged to the cost of construction, were not subject to assessment and taxation for state and county purposes under prior acts New York and Erie B. B. Co. v. Babin, 26 Penn. St., 243. 1856. 243. — Where all the property of a corpo- ration is taxed by special law in a specified manner, and no intimation is made by the taxing power of subjecting it to further bur- thens, its property will be exempt from taxes imposed under general laws. lb. 244. Pacific R. R. Co. The Pacific R. R. Co. of Missouri is not exempt from the tax of ten or fifteen per cent, imposed on it by the or- dinance of April 8, 1865 ; nor does the act of Feb. 10, 1864, amount to such a contract as limits the right of the state to impose the tax. North Missouri B. B. Co. v. Maguire, 49 Mo., 490, 1872; Pacific B. B. Co. v. Saine, 51 ib., 142, 1873. 245. Paterson and Hndson River R. R. Co. The charter of the Paterson and Hudson River R. R. Co. provides for the payment of certain taxes to the state, and then enacts, " that no further or other tax or impost shall be levied or assessed upon said company." Held, that the tax paid was a commutation for all taxes on such property as might necessarily be held for purposes reasonably incident to the enjoyment of the franchise. Gardner v. The State, 1 Zabriskie (N. J.), 557, 1845; see Pater- son and Hudson B. B. Co. v. Jersey City, 1 Stockton's Ch. (N. J.), 434, 1853. 246. — That the charter exempts the com- pauy and its property held for such purposes from all other taxes, whether assessed for state, or for city or township pui-poses. Ih. 247. Pennsylvania R. R. Co. The act of May 16, 1857, for the sale of the Main Line of public improvements, provides that upon the payment by the P. R. R. Co. of $1,500,000 to the state for said public property, the company shall, in consideration thereof, be forever re- leased from certain taxes. Held, that the act, so far as it provides for a discharge from tax- ation, is unconstitutional. The legislature has no power to alienate any of the rights of sov- ereignty, such as that of taxation, so as to bind future legislatures. Mott «. Pennsylvania B. B. Co., 30 Penn. St., 9. 1858. 248. — The canal commissioners, as public officers, and any loan creditor of the .state, or taxpayer, have such an interest in the question as will authorize them to maintain a bill for an injunction to prevent the execution of such unconstitutional act. Ih. 249. — The act provides that the sale shall be made by the governor; Tuld, that as this was not a part of his official duty, as executive of the state, but merely ministerial, an injunc- tion might issue against him. Ib. 250. — A dissenting stockholder of the P. R. R. Co. cannot have a preliminary injunc- tion to prevent the company from becoming tlie purchasers under authority of the act. His rights can only be determined on the final hearing. Ib. 251. Preferred stock. A railway company was chartered with a capital of $1,000,000, with a provision in its charter that its capital stock should be exempt from taxation until the tolls collected by the company should be sufficient to afford a dividend of six per cent, per annum on its capital stock. Its capital was subsequently increased by authority of the legislature by adding to it at one time $300,000, at another $200,000, and at another $500,000. It was again increased afterwards by the creation of $425,000 of additional stock, to be called "preferred stock," and upon which dividends were first to be paid, the holders of the old stock to be entitled to the new, and being authorized, on paying for a certain proportion of the new stock, to sur- render their old stock and take a fixed equiva- lent in the new. Under the authority of this provision, nearly the whole of the old stock had been surrendered, and the preferred stock had become substantially the whole stock of the company. HeU, I. That the original exemption of the capital from taxation ap- plied to the increased capital, upon every au- thorized increase of the same, without any TAXATION. 755 Constitutional Law. express provision to that effect in tlie resolve authorizing the increase. II. That the capital in its new form of "preferred stock" was equally exempt. III. That the provision as to the tolls received, affording a dividend of six per cent, was not satisfied by their affording that dividend upon the original capital of $1,000,000, but that it was necessary that they should afford such a dividend upon the entire capital, including the original amount and all the increase, IV, That it was not enough if the receipts of the i-oad amounted to six per cent, per annum on the entire capital, but that they must be such as to afford a dividend of that amount after taking out all the reasonable and necessary expenses of the road for the year. State c. Norwich and Worcester B. B. Co., 30 Conn,, 290. 1861. 252. Real estate owned by a railway com- pany which is not used or occupied for its necessary purposes, is liable to taxation, not- withstanding the corporation pays a tax on its capital stock, and is exempted by its charter from further taxation. State -v. Newark, 1 Dutcher (N. J,), 315. 1855. 253. — A. charter of a railway company provided that the company should be subject to a certain specified tax, and that no other tax should be imposed; held, that such ex- emption extended to a tract of gravel land purchased to provide materials for the repair of its road, and also to a branch road con- necting said gravel pits with its tramway. State V. Mancock, 6 Vroom (N, J.), 537. 1871. 254. Somerville and Easton R. R, Co. A supplement to the charter of the Somerville and Easton E. R Co., provides that the com- pany shall pay annually to the state treasurer " a tax of one-half of one per centum upon the cost of said road, as shown by the annual re- port of such cost made the year preceding," The report included, as required by law, the cost of the road and equipments. Held, that the company is only required to pay tax upon the cost of its road and its appendages, and is not bound to pay tax upon its engines, cars, boats, or other personal property. State Treas- vrer v. Somerville and Eaiton B. B. Co., 4 Dutcher (N, J,), 31. 1859. 255. Union Pacific R. R. Co. The interest of the federal government in the Union Pacific R. R. Co. is not such as to exempt it from taxatio ! by a state through which it is located. Union Pacific B. B. Go. i). Lincoln County, 1 Dillon (8 U. S, C. C), 314. 1871. 256. Vermont Central R. R. Co. The pro- vision in the charter of the Vt. Cent. R. R. Co., that its property and effects shall be ex- empt from taxes is limited in its application to real estate, to such as the company was authorized to take by proceedings in invitum. Vermont Central B. B. Co. v. Burlington, 38 Vt., 193, 1855, VIII, C0NSTITDT10]SrA.L LAW. enport v. Mississippi and Missouri R. R. Oo., 16 ib., 348, 1864; Dubuque and Bioux City R. R. Oo. «. Dubuque, 17 ib., 130. 264. — The court being equally divided on the question as to the power of the city to levy taxes upon the real estateof the company within its limits, the judgment of the court below in favor of such right stands affirmed. Ib. X. Foreign corporations. (See ante 738, subdivision II ot this title.) 265. Constitutional law. A law for reve- nue, laying a distinctive tax on the business of foreign corporations habitually doing busi- ness in New Jersey, such business consisting of the transportation of goods in transitu, from state to state, and the tax being graduated by the weight of the goods and the number of the passengers carriecl, is an infringement of the clause of the constitution of the United States giving to congress the regulation of commerce between the several states. ErieR. R. Oo. V. The State, 2 Vroom (N. J.), 531, 1864 ; overruling State v. Delaware, Lackawanna, etc., R. B. Oo., 1 ib., 478, 1864. 266. EiFect of authority to hold real es- tate. A foreign corporation upon which has been conferred by the legislature of New Jer- sey the power to purchase and hold lands in that state, does not, by reason of such legisla- tive action, lose its foreign and acquire a do- mestic character. State v. Delaware, Lackawan- na, etc., R. R. Go., 1 Vroom (N. J.), 473. 1864. 267. Ferry boats belonging to a New York railroad corporation engaged in plying be- tween New York and Jersey City, are not sub- ject to taxation in New Jersey. State v. Haigla, ib., 438. 1863. ' 268. Lands owned by nonresidents. As- sessors have no authority, by the statute, to insert in the assessment rolls the names of nonresident owners of real estate. In the case of a nonresident the land is to be assessed with- out naming the owner. New York and Har- lem RR. Oo. V. Lyon, 16 Barbour (N. Y.), 651. 1853. 269. — The collector cannot levy ataxupon any personal property of nonresidents ; ina.s- much as his warrant only authorizes him " in case any person named in the assessment roll shall refuse or neglect to pay his tax, to levy the same by distress and sale of the goods and chattels of such person." Ib. 270. Stock. Where a foreign railway com- pany, under a contract with a company, chart- ered in Indiana, constructs, equips and oper- ates a portion of the line of the latter company, in said state, the stock in the road, so con- structed, must be regarded as vested in the company under whose charter it was built, and cannot be assessed against the fbreign corporation for taxation; nor can the road bed, in such case, be assessed as real estate against the foreign corporation, and the roll- ing stock as personal property, since the statute requires it all to be assessed as cor- poration stock. Michigan Oentral R. R. Go. v. Porter, 17 Ind., 380. 1861. XL Street Eailwats. 271. License. An ordinance imposing a license duty upon city cars, for revenue pur- poses only, is not an ordinance for police and internal government. Mayor, etc., of N. Y. v. Third Avenue Tt. R. Go., 33 N. Y., 42, 186.5; Mayor, etc. ofN. Y. v. Second Avenue R. R. Oo., 32 N. Y., 261, 1865 ; see Same v. Same, 12 Ab- bott's Pr. (N. Y.), 364, 1861 ; Same v. Same, 31 Barbour (N. Y.), 41, 1861; see Same v. Same, 21 Howard's Pr. (N. Y.), 257, 1861 ; 28 ib., 582, 1865. TAXATION. 757 General Matters. 272. — The imposition of an annual tax by such city upon a railroad company, for pur- poses of revenue merely, is void. lb. 2 73. — Under the act of April 3, 1850, the city of Philadelphia may impose a license tax upon street railway cars. Saihoay Go. «. Phila- delphia, 6 Philadelphia Rep. (Penn.), 338. 1867. 274. — The payment of a tax or license of $35 on each car employed by the Louisville City E. R. Co,, to the city, as required by the contract between the company and the city, in which certain franchises are secured to said company, does not exonerate the com- pany from the payment of an ad valorum tax on its property for municipal purposes. Louis- mile Gity a. S. Go. V. Louisville, 4 Bush (Ky.), 478. 1868. 275. Personal Property. A street railroad company, is not liable to tax for horses or other personal property used in and necessary for the prosecution of its business. Middlesex B. B. Go. V. Gharleston, 8 Allen (Mass.), 330. 1864. XII. General Matters. 276. Equalization. The statutes of Nevada in relation to the equalization of taxes — con- strued. Virginia and Truehee B. B. Co. v. Ormsby County, 5 Nev., 341. 1870. 277. Indian Reservation. Where a rail- road company, under the acts of 1836, ch. 316, contracts with the chiefs of a nation of Indians, for the right to construct its road upon the land of such Indians; the contract giving the company the right to make and use its road upon such land, without any limitation of time as to the enjoyment of the right; although the, fee of the land is not vested in the com- pany, yet such land is " owned " by the com- pany, within the contemplation of the section of the revised statutes touching taxation. Peo- ple V. Beardsley, 53 Barbour (N. Y.), 105, 1868; Bame v. Same, 41 N. Y., 619, 1869. 278. Jurisdiction. Where a portion of the stockholders are citizens of other states, they may seek relief against illegal state taxation from the circuit court of the United States. Paine v. Wright and the Indianapolis andBelle- fontaine B. B. Go., 6 McLean, 395. 1855. 279. — And in such case, the corporation doing business in the state may be made de- fendant, lb.. 280. Lease. Where a railway company oc- casionally runs its trains under a mere ease- ment or license from another company over the road of the latter company, the former company will not thereby become liable for taxation in the county in which the road . thus used is situated. Gook Gounty v. Chicago, Burlington and Qainey B. B. Co., 35 111., 460. 1864. 281. — It seems that a railway company can- not lease its property and make a provision for the entire rents and profits to go to its credi- tors and corporators without making any pro- vision for the payment of taxes. Silverthorne V.Warren B.B. Co., 4 Vroom.(N. J.), 178. 1868. 282. — There is no legal magic whereby a corporation can turn over the earnings of its property to its stockholders in the shape of dividends, leaving its debts unpaid. Same v. Same, 4: ih., 312. 1869. 283. Limitations. The right to assess or coerce assessments is not affected by the stat- ute of limitations. Louisville and Nashville B. B. Go. V. Commonwealth, 1 Bush (Ky.), 350. 1866. 284. Mortgage; nonresident. A mort- gage executed by a railway company on its depot grounds, road and rolling stock situated in this state, is not subject to taxation when the holder or owner of the mortgage is a non- resident. Ch. 153, laws of 1854. Davenport, Gity of, «. Mississippi and Missowi B. B. Co., 13 Iowa, 539. 1861. 285. — Mortgages before foreclosure are choses in action, and attach to the person of the holder, and are taxable at the place of his domieil. lb. 286. Proceedings against collector ; plead- ing. A petition by a railroad company against a city collector for wrongfully levying on plaintiflF's property to satisfy a tax, when the pleading only attacks the form and man- ner of making the assessment, but sets out no facts showing that the assessment was void, is. bad on demurrer. If the city had jurisdiction over the subject matter, that would amount to a protection of the ofBcer in executing his' process. Mayor of Jefferson to use of Pacifie B. B. Go. V. Opel, 49 Mo., 190. 1873. 287. Recovery of taxes erroneously paid. Taxes paid with a knowledge of all the facts, and without protest, cannot be recovered back by the party making the payment. New York 758 TELEGKAPHIC DISPATCHES— TERMINUS. Miscellaneous. and, Hwrlem B. R. Co. v. Ma/rsh, 12 N. Y., 308. 1855. 288. — In an action "brought against the or- dinary of a county for taxes alleged to have been illegally collected from the plaintiflF, the declaration must set forth the facts showing such illegality. Montgomery and West Point B. B. Co. V. Duer, 46 Ga., 372. 1872. 289. Repeal of law. A statute authoriz- ing the laying of a tax was repealed after an assessment of such tax, but before its collec- tion ; held, that the repeal did not prevent the collection of such tax — such collection being regulated by the general tax law, which re- mained unrepealed. Belvidere v. Warren B. B. Co., 5 Vroom (N. J.), 19-3, 1869 ; Warren B. B. Co. V. Belvidere, 6 ib., 584. 1871. 290. Special tax. The levy of a special tax for purposes not authorized by the legisla- ture, is void. Allen v. Peoria and Bureau Val- ley B. B. Co., 44 III., 85. 1867. 291. Subscriptions to stock by counties. A railroad cannot, to any extent, be liable to be taxed by a county to pay the subscription of such county for the purpose of completing the construction of the road. The object of such a county tax would be inconsistent with the obligation of the county to pay a specific sum for stock in the railroad, to aid othtr stockholders to make and equip the road. .42'- plegate v. Ernst, 3 Bush (Ky.), 648. 1868. TELEGRAPHIC DISPATCHES. See CONTKAOTB. 1. Contracts by telegraph. Where a tele- graphic communication is relied on to estab- lish a contract, it must be proved as other writings are by the production of the original. If that is lost, then it may be proved by a copy, or, if there is none, then by oral testimony. Durkee v. Vermont Central B. B. Co., 29 Vt., 127. 1856. 2. — The original, where the person to whom it is sent takes the risk of its transmis- sion, or is the employer of the telegraph, is the message delivered to the operator. But where the person sending the message takes the initiative, so that the telegraph is to be re- garded as bis agent, the original is the message actually delivered at the end of the line. Ib. TELEGRAPH LINES. 1. Constitntional law. The act of the general assembly Of Georgia, approved Au- gust 26, 1872, entitled " an act to empower and authorize telegraph companies in this state to construct their lines upon the right of way of several railroad companies in this state " is unconstitutional and void, for the reason that it fails to provide any compulsory process for the enforcement of the payment of just com- pensation for private property taken under its provisions. Southwestern B. B. Co. v. Southern, etc., Telegraph Co., 46 Ga., 43. 1872. TENANTS IN COMMON. 1, License. Although a corporation have a license from one tenant in common, ejectment will lie by the other tenant for land occupied by it for a purpose not authorized in its char- ter. Cumberland Valley B. B. Co. v. McLana- han, 59 Penn. St., 33. 1868. TENDER. See IKJUBIE3 TO DOXESTIC AmiUALS. 1. Amount of tender. If a party tender less than is due, he does so at his peril, though he may honestly believe that the amount ten- dered is all that is due the plaintiff. Eelphrey V. Chicago and Bock Island B. B. Co., 29 la., 480. 1870. 2. Pleading. If an answer setting u.p a tender has been accepted and treated as part of the pleadings, it will be held as sufficient, although 'the money has not been paid into court. Bootevelt v. New York and Harlem B. B. Co., 45 Barbour (N. Y.), 554, 1866; Same V. Same, 30 Howard's Pr. (N. Y.), 226, 1866. TERMINUS. 1. Charter. The charter of a railway com- pany authorized it to construct its road " from Charleston," etc.; Mc?, that the company had TEXAS CATTLE LAW — TICKETS. 759 Miscellaneous. no authority to enter the city, but that the boundary of the city was the terminus a quo. NortJusasternB. M. Go. v. Payne, 8 Eichardson's Law (So. Car.), 177. 1855. TEXAS CATTLE LAW. I. Statute. The prohibition of the Texas cattle act is against driving through the state, at any time, such Texas cattle as have been brought into the state between the first days of March and December, and not against driving through the state between the first days of March and December, any Texas cat- tle, no matter when they wore brought into the state. Kansas Pacific B. B. Co.'n. McCoy, 8 Kan., 538. 1871. THEFT. See Baqoage; Cabbiagz oy Mebchandiss. TICKET AGENT. Sec Tickets. 1. Conversion. Where the intestate before his death deposited with the defendants as bro- kers, 1675.75 as ticket agent of a railway com- pany, which money was mingled with that of the defendants and became undistinguishable, and the defendants, a few days subsequent to the death of the intestate, paid over to the com- pany an equivalent amount, taking an indem- nity, it was liM, on an equitable accounting, by which a balance of $150 only was found to be due the company, that the payment over to the extent of the remainder was in law a con- version of the money by the defendants ; and the company, having no just right, either legal or equitable, to it, could give no valid discharge on its receipt. James v. Adams, 23 Howard's Pr. (N. Y.), 409. 1859. TICKETS. See Bagoaqe ; Conduotob; CouNTEBrBirnjo ; Injub- lES TU FAeS£KQEB3. t. Checks. The effect of a stipulation that a check should be invalid if detached from the ticket — considered. Hamilton v. New York Central B. B. Co., 51 N. Y., 100. 1872. 2. Classes of tickets. A rule of a railway company, restricting to special trains the hold- ers of a class of tickets which nevertheless pur- port to entitle them to passage on any regular train, does not warrant the exclusion from a regular train of the holder of such a ticket tak- ing passage thereon by virtue of it, without notice of the rule. Maroney v. Old Colony and Newport B. B. Co., 106 Mass., 153. 1870. 3. Commutation. Holders of commutation tickets may be required to show their t ickets, and if the ticket is not shown, fare may be ex- acted without rendering the company liable to refund it. Bennett v. Bailroad Co., 7 Philadel- phia Rep. (Penn.), 11. 1868. 4. — A person buying a commutation ticket and giving his receipt therefor, is bound by the terms of his contract, and in case of the loss of his ticket, he may be compelled to pay the regular fare, the terms of his contract requir- ing that he should show his ticket. Bipley V. New Jersey B. B. Co., 2 Vroom (N. J.), 888. 1866. 5. Coupons. Where a city railway company is authorized, under the United States revenue act, to issue tickets in multiples of twenty, to the price of which an amount equal to the rev- enue tax is added ; and where they issue a main ticket signed by their principal officers, to which is attached twenty coupon tickets, the main ticket containing a notification that each ticket attached entitles the owner to one ride in the company's cars, and that the conductor alone is authorized to tear oflf the tickets ; lield that this regulation being a reasonable one, no passenger having such a main ticket, with cou- pon tickets attached, is authorized to detach the latter from the main ticket and present it to the conductor, and at the same time refuse to show the main ticket. In such case, he may be properly ejected from the cars. Wallcer v. Dry Dock, etc., R. B. Co., 33 Howard's Pr. (N. ' Y.), 827. 1867. 6. Excursion tickets. An excursion ticket good upon its face for a certain day, will not entitle the holder to travel upon a different day, and a refusal to pay fare in such case will just- ify the expulsion of the passenger. McElroy V. Bailroad Co., 7 Philadelphia Rep. (Penn.) 206. 1870. 7. Extra charge for failure to buy ticket 760 TICKETS. Freight Trains — Over Separate Boads. It is a reasonable regulation for a railway com- pany to charge ten cents more fare for those persons who fail to buy tickets, than for those who procure tickets before entering the cars. But the company must give reasonable facili- ties for the purchase of tickets. Du Laurana v. St. Paul and Pacifte B. R. Co., 15 Minn., 49, 1870; 8t. Louis, Alton and Vhicago R. B. Co. v. Dalby, 19 111., 353, 1857 ; see St. Louis, Alton and Terre Haute Jt. B. Co. ■». South, 43 ib., 176, 1867. 8. — Kailway companies are required to , keep open their office for the sale of tickets to passengers for a reasonable time before the de- parture of each train, and up to the time fixed by its published rules for its departure, and not up to the time of actual departure. St. Louis, Alton and Terre JSaute B. B. Go. v. South, 43 111., 176. 1867. 9. — A passenger on the N. Y. Central Kail- road, who applies at the ticket office just in time to buy his ticket and get on board of the train in safety before its actual departure, and who fails to procure a ticket in consequence of the temporary absence of the ticket agent, cannot be charged an extra rate of fare. Por- ter V. New York Central B. B. Co., 34 Barbour (N. Y.), 333. 1861. 10. — The good faith of the conductor in demanding the extra fare will not relieve the company from the penalty of extortion. Ib. 11. — Passengers who neglected to pur- chase tickets at stations, before embarking on cars, may be charged additional fare, if proper conveniences and facilities are furnished them for procuring tickets. Chicago, Bwlington and Quincy B. B. Co. v. Parks, 18 111., 460, 1857 ; see St. Louis, Alton and Terre Saute B. B. Co. v. South, 43 ib., 176, 1867 ; Chicago and Alton B. B. Co. •». Flagg, 43 ib., 364. 12. — If a passenger pays only from one station to another, without a ticket, he may be compelled to pay an extra charge at each sta- tion. Ib. 13. — Bo long as a passenger upon a rail- way shall comply with the reasonable regula- tions of the company, he has the right to remain there, and to be carried over the road. State V. Chovin, 7 Iowa, 204. 1838. 14. — If, while thus complying with the regulations, the conductor, officers and agents, or servants of the company shall eject him from the cars, they will be liable to a crimi- nal prosecution, and the company will be an- swerable for all damages sustained. Ib. 15. — The company has the right to make all reasonable regulations to guide and govern its agents in the discharge of their duties, and for the conduct of passengers. Ib. 16. — The company may charge one rate of fare to those passengers who purchase tick- ets before entering the cars, and exact an addi- tional sum of those who neglect to do so, and such regulation is reasonable. Ib. 17. — A passenger who has not purchased his ticket before entering the cars, and who refuses to pay the additional fare exacted on the train, may be expelled from the cars with no unnecessary violence. State v. Goold, 53 Me., 379. 1865. 18. — Under ch. 328, laws of 1857, a railway company must keep its ticket offices jopen dur- ing a specified time, and if it fails to do this, it cannot demand extra fare on account of the failure of a passenger to purchase a ticket. If in such a case, the extra fare is demanded and received, the company is liable to the penalty provided by the statute in case of illegal charges. Nellis v. New York Central B. B. Co., 80 N. Y., 505. 1864. 19. — It is a reasonable regulation for a railway company to fix its rates of fare by a tariff posted at its stations, and to allow a uni- form discount on these rates to those who pur- chase tickets before entering the cars. State D. Goold, 53 Me., 379. 1865. 20. Freight trains. A passenger who knowingly disregards the rule requiring tick- ets to be purchased before taking passage upon a freight train is upon the same footing with one who refuses to pay fare, and may be ex- pelled at any regular station. Chicago and Alton B. R. Co. v. Flagg, 43 111., 364, 1867 ; III- inois Central B. B. Co. v. Nelson, 59 ib., 110 1871. 21. Over separate roads. Where a pa&son- ger bought tickets of a railroad agency in Buffalo, one from Buffalo to Stratford in Can- ada over the B. and L. H. R. R., and the other from Stratford to Detroit over the defendant's road, and after a delay of two months, from the time of using the former ticket commenc- ed his journey from Stratford to Detroit on the second, it was held that, although printed on the same piece of paper, yet, as they contained no restrictions, they were distinct contracts and TICKETS. 761 Passengers mnst show Tickets — Stopping Off. vouchers for separate journeys, and the validi- ty of the last ticket was not afiEected by the. delay. Brooke v. Grand Trunk B. JR. Co., 15 Mich., 332. 1867. 22. — A through ticket on three several distinct lines of passenger transportation, issued in the form of three tickets on one piece of paper, and recognized by the proprietors of each line, is to be regarded as a distinct ticket for each line. Knight v. Portland, Saeo and Portsmouih B. B. Go., 56 Maine, 234 1868. 23 — The rights and obligations with refer- ence to such ticket are the same as if three separate and distinct tickets had been pur- chased from the respective lines. lb; Milnor V. JT. Y., and New Haven B. B. Go., i Daly (N.Y.),355. 1873. 24. Passengers must show tickets. A railway company has the right to require a passenger to purchase his ticket, and present it when demanded, as evidence of his title to a seat, and the conductor is justified in com- pelling him to leave the cars whenever he refuses so to do. Baltimore and Ohio B. B. Go. V. Blocher, 27 Md., 377. 1867. 25. Kules. Passengers being obliged to conform to the regulations prescribed by car- riers, so far as to enable them to avoid imposi- tion, a corresponding duty is imposed upon tlie latter to show all becoming courtesy to- wards the former, in demanding the evidence of their compliance with such rules. lb. 26. Stopping off. A passenger having purchased a "through ticket" has no right without the assent of the company, to stop at a way station and demand a check for the continuation of his journey by a subsequent train. State v. Overton, 4 Zabriskie, (N. J.), 435. 1854 27. — A railway ticket stating on its face to be from one station named to another station named, does not import a right to make the journey between the stations, by different trains. Oil Greek and Allegheny B. B. Go. o. Ola/rk, 73 Penn., St., 231. 1872. 28. — Where the rules of a railway com- pany require that its conductors shall tear off from the passengers' tickets a letter off the c6rner indicating the division of the road, and if the passenger desires to stop over at an Intermediate station, the conductor is required to endorse a permission to that effect upon the ticket, and a passenger stopped off at an inter- mediate station without such indorsement upon his ticket, it was held, that such passen- ger presenting such ticket upon a subsequent train might be lawfully compelled to pay fare and to be ejected from the cars upon a failure to do so. Beebe v. Ayers, 38 Barbour, (N. Y.), 275. 1858. 29. — A passenger having a " stop-off " ticket cannot require a train to be stopped at a station not on its time table. Dietrich v. Pennsylvania B. B. Go., 71 Penn. St., 433. 1872. 30. — A passenger bought a " drover's tick- et, on a railway, at half the regular price," good only in his hands, for One seat from Philadelphia to Pittsburgh, from March 11th to 16th. He went to Lancaster on the train, got off there, got on another train the next day ; a conductor put him off, and afterwai-ds allowed him to proceed ; was put off by an- other who had afterwards taken charge of the train ; at Altoona he entered again, paid his fare to prevent being put off, and proceeded to Pittsburgh. Held, that the face of the ticket did not import a right to stop off, and the passenger had no cause of action against the company for his ejection. Dietrich v. Pennsyl- vania B. B. Go., 71 Penn. St., 432. 1872. 31. Surrender of tickets. A passenger who exhibits his ticket, need not surrender it until he has been furnished with a seat. But where A. bought a ticket at W., and upon en- tering the cars, could not obtain a seat, and refussd to surrender his ticket, and at P., he obtained a seat and tendered his fare from F. to his place of destination, which was refused, and he was ejected from the train, it was held, that as he had brought suit upon the under- taking to be carried from W., he could not recover; although it might have been other- wise if he had baaed his action upon the new contract based upon the tender at P. Davis V. Kansas Gity, St. Joseph and Council Bluffs B. B. Co., 53 Mo., 317. 1873. 32. — A' rule requiring passengers to sur- render their tickets to the conductor, when called for, is a reasonable one, and may be en- forced. Illinois Central B. B. Co. v. WMite- more, 43 111., 420, 1867; Northern B. B. Co. v. Page, 22 Barbour (N. Y.), 130, 1856. 33. — His refusal to deliver up his ticket or pay his fare to the conductor, when it is demanded, will justify his expulsion from the 762 TIDE WATER — TIME. Miscellaneous. cars. Northern JR. B. Oo. v. Page, 33 Barbour (N. Y.), 130, 1856. 34. —And where the passenger, with knowl- edge of such rule or custom, purchases a ticket, the law will presume that he does so in ' reference to the custom. lb. 35. — And if he leaves the cars without giving up his ticket, or paying for his passage, an action will lie against him for the amount of his fare. lb, 36. — The contract, on the part of the rail- road company is, that it will carry the passen- ger over its road, provided he surrenders his ticket to the conductor when it is demanded. lb. 37. Time. A common carrier of passen. gers may, by contract, provide that a passge shall be made within a time specified, and in one continuous trip. Ba/rlc&r v. Oofiln, 31 Bar- bour (N. Y.), 556. 1860. 38. — A ticket, indorsed as good for a cer- tain day only, will be held good only for that date, and the employes of a railway company may lawfully expel a passenger who after that date presents such ticket and refuses to pay fare. Ehiore v. Sand», 54 N. Y., 513, 1873 ; Boice V. Sudson River B. B. Oo., 61 Barbour (N. Y.), 611, 1873. 39. — Any verbal declaration of the com- pany's ticket agent, made subsequent to the purchase of such ticket, is not admissible in evidence. Boice v. Hudson Biver B. B. Co., 61 Barbour (N. Y.), 611. 1873. 40. — A railway passenger ticket which is dated and bears upon its face a printed state- ment, "good only two days after date," has no validity after the expiration of the two days. Boston and Lowell B. B. Oo. v. Proctor, 1 Allen Olass.), 267. 1861. 41. — The words, "good this trip only," upon a railway ticket, will not limit the un- dertaking of the company to any particular day, or any specific train of cars. They do not relate to time, but to a journey; and if the ticket has not been used, it entitles the holder to a passage on a subsequent day, as well as on the day it bears date. Pier v. Finch, 34 Bar- bour (N. Y.), 314. 1857. 42. — The condition — "good for this day and train only," upon a ticket, Tield, under the circumstances of this case, to justify a rail- road company in refusing to carry a passen- ger on such ticket after the expiration of the .time limited by such condition; the ticket being good over more than one road, and hav- ing been purchased at a lower rate than sepa- rate tickets over such road could have been purchased, Shedd v. Troy and Boston B. B. Co., 40 Vt., 88. 1868. 43. — A railway ticket is good for six years by the statutes of Maine. The Grand Trunk R. R. Co. of Canada is a foreign corporation, and its charter imposes no restrictions upon the legislative authority of Maine. Therefore it is liable, under the lease of the A. and St. L. R. R. Co., not only to the laws in force at the time the lease was made, but also to such as might be subsequently enacted. The com- pany cannot issue a ticket which shall be good for one day only. Diyden «. Cfrand Trunk B. B. Co., 60 Me., 513. 1873. TIDE WATER. See Chabter, Injunction. TIME. 1. Change of time. Railway companies, by advertising the hours when trains will start, agree with holders of tickets that trains shall start at the hours named ; but with an implied reservation of power to change the hours, upon giving reasonable notice. Sears B. Eastern B. B. Co., 14 Allen (Mass.;, 433. 1867. 2, — If the hours at which such trains will start have been advertised in public newspa- pers, it is not giving reasonable notice of a a change of the hour of any particular train, to post up hand bills announcing it at the sta- tions and in the cars of the company; and if no other notice is given, one who has bought tickets by the package, in advance, and in ac- cordance with the advertisement, has present- ed himself at the station to be carried before the appointed hour for a train to start, without knowledge of the change, may recover dam- ages for the injury sustained by him from the delay. lb. TIME TABLE - TREASURER. 763 Miscellaneous. TIME TABLE. 1. Evidence. The time at ■which trains should be run, may. be proved otherwise than by the time table. Chicago, Burlington and Quiney B. B. Co. v. George, 19 111., 510. 1858. TITLE. See Convbtanob; Ejectment; Eminent Domain; Beal Estate; Mortgage. 1. Evidence. The record of a town meet- ing, held in 1803, in which it appeared that the town had of E. S. certain lands used as a town landing, and the mode in which the town " had the land of E. S.," not appearing, it was held, that there was not sufficient evi- dence of title to sustain trespass. Inhabitants of VassalborougJi v. Somerset and Kennebec R. iJ. Co., 43 Me., 337. 1857. 2. Particular case. The question of title determined upon the facts of the case. Jack- son i>. Boston and Worcester B. B. Co., 1 Gush- ing (Mass.), 575. 1848. TORTS. See Agency; Assault and Battbrt; Injubies to Domestic Animals ; Injuries to Employes ; Inju- ries TO Passengers ; Injuries to Persons on the Track; Pleading. 1. Joint torts. Suit may be brought against joint tortfeasors, either jointly or severally, but there can be but one satisfaction. North Pensyhania B. B. Co. v. Mahoney, 57 Penn. St., 187. 1868. 2. Pleading. In an action for torts by in- corporated companies, the correct mode of pleading is, to show a case in the declaration to all appearance standing aloof from the stat- utory right of the company, but if a color of right to do the act in question is shown in the company, then the abuse of such right must be laid. Stephens and Oondit TranxportaMon Co. ■». Central B. B. Co., 4 Vroom (N. J.), 229. TRANSFER OP CORPORATE PROP- ERTY. 1. Gift. A corporation cannot give away its effects to the prejudice of its creditors. A court of equity will follow the trust fund into the hands of others than bona fide creditors and purchasers. Powell v. North Missouri B. B. Co., 42 Mo„ 63. 1867. 2. Stockholders' rights. A single stock- holder has no right to object to a transfer of all property of the corporation to another company, under the authority of an act of as- sembly. Lauman v. Lebanon Valley B. B. Co., 30 Penn. St., 42. 1858. 3. — He cannot, however, in any way be compelled to take stock in the company to which the property is transferred, in lieu of his stock in the former company. lb. 4. — Such transfer cannot be made without giving security for the interest of the dissent- ing stockholder. Jb. TRANSPORTATION COMPANIES. See Carriage of Merchandise. TREASURER. 1. Bond. The condition of a bond given by the treasurer of a railway company that he " shall faithfully discharge the duties of the office, and well and correctly behave therein," does not bind him to keep the money of the company safely against all hazards. Hence where the treasurer deposited the money of the company to his credit as such, in a bank which was at the time in good standing and credit, and was considered by the community a safe place of deposit for moneys, it was h^ld, that he and his sureties were not responsible for its loss by the sudden and unexpected fail- ure of the bank. Atlantic and North Carolina B. B. Go. ■». Cowles, 69 N. C, 59. 1873. 2. The duty of a treasurer is to keep the moneys of his principal distinct from his own, unless it is otherwise agreed, and to pay any balance due, on demand. Second Avenue B. B. Go. v.Goleman, 24 Barbour (N. Y.), 300. 1857. 764 TRESPASS. Blasting Rocks — Right of Way Proceedings. TRESPASS. See C!oNTBACT0B9 ; Eminent Bomain; Ejectment; Fences; Fobcible Entry and Detainee; Hibh- •way; Injubies to Domestic Animals; Wbabveb. 1. Blasting rocks. Where a railway com- pany caused stones to be thrown upon plaint- iflfs land by blasting, and failed to remove the same within a reasonable time, cane and not trespass is the proper remedy. Babin v. Ver- mont Central U.S. Co., 25 Vt, 363. 1853. 2. Breach of condition. A mere trespasser cannot defend against the grantee of an estate by invoking a supposed right of the United States to enter for a breach any condition in the conveyance of the estate. Kennett v. Plum- mer, 28 Mo., 142. 1859. 3. Color of title. One who enters upon land in good faith, and makes permanent im- provements, believing himself to be the owner of the land, is not a trespasser, and he is enti- tled to all legal protection to improvements and property placed upon the premises, given by the statute to parties in possession under color of title. Mississippi and Tennessee R. li. Co. •». JDevaney, 42 Miss., 555. 1869. 4. Consent. When an individual consents that a railway may be constructed through his land, it is not a trespass for the company to en- ter, and any instruction to that effect is erro- neous. Louisville and Nashville B. B. Co. v. Thompson, 18 B. Monroe (Ky.), 785. 1857. 5. Conversion. The wrongful possession and conversion of the property of a corpora- tion does not differ liom any other trespass or tort, for which the sufferer has a remedy at law. York and Cumberland B. B. Co. v. Myers, 41 Maine, 109. 1856. 6. Damages. In an action of trespass for damages for wrongfully entering upon lands and taking and carrying away the soil, etc., the proper measure of damages is not the actual damage sustained, but the value of the land removed. Mueller ii. St. Louis and Iron Moun- tain B, B. Co., 31 Mo., 262. 1860. 7. Exemplary damages. Whether the pliantiff can in any case recover exemplary damages in an action for trespass to real prop- erty, gucere? Armstrong v. Iowa Falls and 8iom City B. B. Co., 34 la., 502. 1872. 8. — Exemplary damages may be given in an action of this chai-acter. Greenville and ColumUaB. B. Co. ■». Partlow, 14 Richardson's Law (So. Car.), 287. 1867. 9. Former recovery. Where, in an action against a railway company for trespass, " re- sulting from the construction of the road," the parties agreed to "submit to the jury to find the full amount of the past, present and future damages from matters charged in the declara- tion," and agreed that, "no further action should be brought for the continuance of the matters mentioned in the declaration," and the proof was that a judgment had been rendered and paid ; held, that this was a bar to any suit, for injuries by the washing of mud and sediment, brought by the party making this agreement. Illinois Central B. B. Co. v. ^?Zm, 39 111., 205. 1866. 10. Joint trespasses. The rule of the com- mon law, that, in an action of trespass against several defendants, a verdict and judgment Might be rendered against one or more of them, has not been narrowed by the statute. Louis- ville, etc. B. B. Co. B. Duvall, 40 Ind., 246. 1872. 1 1. Pleading. An allegation of trespass to several closes is allowable. A single trespass may be committed on several closes. Halli- gan ■». Chicago and Bock Island B. B. Co., 15 111., 558. 1854. 12. — A corporation may maintain this ac- tion. Oreewville and Columbia B. B. Co. v. Partlow, 14 Richardson's Law (So. Car.), 237. 1867. 13. — Trespass qumre clausum fregit may be maintained against a railroad company or other private corporation. Main v. Northeast- em B. B. Co., 12 Richardson's Law (So. Car.), 82, 1859 ; Dater v. Troy Turnpike and B. B. Co., 2 Hill (N. T.), 639, 1842. 14. — This action is strictly personal, and maybe brought anywhere, regardless of the place where the supposed injury happened. Hannibal and St. Joseph B. B. Co. v. Mahoney, 42 Mo., 467. 1868. 15. Eight of way proceedings. In an ac- tion of trespass, the proceedings of the com- pany procuring the condemnation for right of •way are competent evidence, and cannot be impeached collaterally. All presumptions are in favor of the regularity of the proceedings. Qalena and Chicago Union B. B. Co. v. Pound, 22111., 399. 1859. 16. — A railway company is liable for tres- pass in entering upon and building its road TRBSPASSma ANIMALS — TRIAL. 765 Miscellaneous. upon the land of an individual without first "making compensation. Missouri, Kansas and Texas JR. R. Go. v. Ward, 10 Kan., 352, 1872; Buffalo Bayou, Brasos, etc., S. It. Go. v. Ferris, 26 Tex., 588, 1863 ; EvansviUe, Henderson and Nashville It. R. Go. ■». Orady, 6 Bush (Ky.), 144, 1869. 17. — Ch. 76, laws of 1870, giving to the land owner the right to have his damages as- sessed where the railway has been built through his land, does not take away the remedies that the owner had before, Atchison, TopeTca and Santa Fe R. R. Co. v. Weaver, 10 Kan., 344. 1872. 18. — In proceedings for taking land for railway purposes, the reception by the owner of the land of the money allowed by the com- missioners on the condemnation, is not a waiver of a trespass committed by the unau- thorized entry and occupancy by the agents of the road before the condemnation of the land had been perfected. Powers v. Hurmert, 51 Mo., 136, 152. 1872. 19. — In an action of trespass, brought by the owner of land against a railway company for entering upon his land and there construct- ing its road, the burden of proving a justifica- tion, that the land is covered by the authorized location of its road, is upon the defendant. Hazen v. Boston and Maine R. R. Co., 2 Gray (Mass.), 574. 1854. 20. — A railway company which enters upon land for the purpose of constructing its road, before the expiration of the time limited by statute for filing its location, is liable as a trespasser, if the written location, subsequent- ly filed, does not cover the land so entered upon. ib. 21. Subsequent purchasers of the land. Where the company takes possession of the land, and uses it without the consent of the owner, or payment of damages, it is liable to an action of trespass; but if a trespass is com- mitted, it is against the owner of the land at the time it is taken, and an action of trespass will not lie in favor of a subsequent owner. Central R. R. Go. v. Eetfield, 5 Dutcher (N. J.), 206. 1861. 22. — A cause of action founded in tort, such as an entry into the lands of another, and the unlawful withholding from him the pos- session thereof, is personal to the tortfeasor, it dies with his person, and cannot at common law be continued against bis grantee by a transfer of his interest in such real property. Mosely v. Albany Northern R. R. Co., 14 How- ard's Pr. (N. Y.), 71, 1856. 23. Timber. A railroad company cutting trees upon the land of another, without the consent of the owner, is liable to the statutory penalty. Mississippi Central R. R. Go. v. Whitehead, 41 Miss., 325. 1866. 24. — Treble damages for trespass in car- lying away railroad ties can only be recovered by the owner of the land. Missouri, Kansas and Texas R. R. Go. v. Arnold, 10 Kan., 473. 1872. 2.5. — The H. and St. J. R. E. Co. having entered upon the land of plaintiff to cut tim- ber, under the provisions of its charter, the timber to be used in the construction of its road, held, that the company was not liable for treble damages, under. the " act to prevent tres- passes." Lindell v. Hannibal and St. Joseph R. R. Co., 25 Mo., 550. 1857. 26. Yenue. An action of trespass must be brought against a railway company in the county where its principal office is situated. Georgia R. R. Co. v. KirlcpatHcIc, 35 Ga., 144. 1866. 27. Willful act. An employer is not liable for the willful trespass of his servant. Wes- son V. Seaboard and Roanoake R. R. Co., 4 Jones' Law (N. C), 379. 1857. TRESPASSING ANIMALS. See Injuries to Domestic Animals. TRIAL. See Eminent Domain; Insteuctions ; Juht. 1. Instructions. The judge who tries a cause has no right to intimate in any manner his opinion as to the weight of the evidence. Powell V. Wilmington and Weldon R. R. Co., 68 N. C, 395. 1873. 2. Interest of judge. A circuit judge having been of counsel in a cause pending in his court, set the same for trial before a judge of the supreme court, who appeared at the 766 TROVER. Attached Property — Mistake. time designated, being in regular term time, heard some arguments and made some orders therein as to mailing new parties, etc. The supreme judge not having appeared further in said cause, the same was again set for trial by the judge of the circuit court before a judge of another circuit. This was done by agree- ment of tlie parties, entered of record. The cause was accordingly heard before the judge last designated, who, after repeated adjourn- ments, from time to time, and not witliin any regular term of said court, decided the same, and rendered judgment for plaintiff, over a motion for a new trial by defendants. Held, that the judgment thus rendei'ed was valid and binding; that said judge last designated had full power under the act of March 1, 185j (Acts 1855, p. 61), to adjourn the hearing of said cause from time to time, although some of said adjournments might have been to a day beyond the regular term of said court. Cin- cinnati and Chicago B. B. Co. v. Bowe, 17 Ind., 568, 1861. TROVER. See Bailmei^ts; Cabbiaoe of Mebghandibb; Lat- EUAi. Bailwatb; Mobtgaoe. 1. Attached property. The plaintiff caused a lot of lumber to be attached as the property of P., upon a writ against him, and had left a copy of the writ and return with the town clerk in the town where the lumber was situ- ated. Afterward, P. employed the defendant company to transport this lumber for him, but before it was moved, the plaintiff notified the company of his attachment, and forbade it from moving the lumber. But the company moved it according to the contract with P. Held, that the company was liable to the plaintiff" in trover for the lumber. Johnson v. Grand Trunk B. B. Co., 44 N. H., 626. 1863. 2. Bonds. The plaintiff deposited with the defendant certain of the former's bonds, pay- able to bearer, to be held by the defendant upon the performance of a certain condition, for a specified purpose. This condition was not performed, but defendant, in good faith, claimed to hold the bonds for another purpose, and refused to surrender them, on demand. These bonds were never worth above par, but, after their conversion by the defendant they greatly depreciated. The plaintiff brought - trover for the bonds, alleging as damages the depreciation of the bonds ; that it had been deprived of the means of negotiating them, and that it had been put to expense to raise means to relieve its property from attachment. Defendant offered to deliver the bonds to plaintiff after suit was brought, and to pay costs, and the court permitted the costs and bonds to be brought into court, and notified plaintiff that defendant would not be liable for subsequent costs unless a recovery of more than nominal damages was had above the face of the bonds. Held, that the court, under the circumstances, properly exercised its discretion in making such order. Butland and Wash- ington B. B. Co. V. Bank of Middlebury, 33 Vt., 639. 1860. 3. Change of form. Where property tor- tiously taken and converted can be identified, and a delivery can be had, the original owner is entitled to recover It, whatever change of form or addition to its value may have been made by the labor of the wrongdoer. Wey- mouth «. Chicago and Northwestern B. B. Co., 17 Wis., 550. 1863. 4. Demand. A demand upon a director for ties, converted to the use of a railway com- pany by the order of such director, is sufficient. Dunham v. Troy Union B. B. Co., 1 Abbott's Ct. of Ap. Dec, 565. 1867. 5. Fences. Where railway contractors had control of a railway for the purpose of build- ing it, and they took fence posts belonging to a third party and used them in erecting fences on the land of the railway company, it was held, that the company was liable for the value of the posts. St. Louis, Vandalia and Terre Haute B. B. Co. v. Kaulbrumer, 59 111., 153. 1871. 6. Mistake. Through mistake of the plaint- iffs, a lot of hides were carried by the defend- ant's servants to his tannery, and there appro- priated and used for lus benefit. Before the conversion, the defendant was notified that the hides were claimed as the property of another person ; but no proof of the ownership was produced. In an action of trover for the hides, it was Jield, that this amounted to a con- version, and that the defendant was not enti- tled to an instruction to the effect that he was not liable unless before the conversion, he TRUST. 7J7- Bills and Notes — Bonds. had reasonably satisfactory proof that the hides were not his. CJieshire B. M. Co. v. Foster, 51 N. H., 490. 1871. 7. — An action of trover will lie against a carrier, who, through mistake, delivers goods to a wrong person. Illinois Central S. B. Go. V. Parks, 54 111., 294. 1870. 8. Pleading. Where the plaintiff sues for the unlawful taking and conversion of prop- erty, he cannot at the trial recover as upon an implied contract of sale and delivery. Single- ton 1). Pacific B. B. Co., 41 Mo., 465. 1867. 9. Title. In trover by the party from whose possession property was taken, the defendant cannot defeat a recovery by showing title in a third person without connecting himself with that title. Weymouth v. Chicago and North- western B. B. Co., 17 Wis., 550. 1863. TRUST. See MOBTQAGB. 1. Bills and notes. If a person whose own note is deposited in trust for others, amongst whom its proceeds are to be divided, obtain possession of it without the consent of the cestuis que trust, an action for money had and received, brought against him in the name of the depositary, by and for the benefit of one of those entitled to a share of the amount due on the note, is maintainable ; nor can the suit be discontinued by the nominal plaintiff, or his assignee without the assent of the party in interest. Petwbscot B. B. Co. ■». Mayo, 60 Me., 806. 1873. 2. Bonds. The plaintiff loaned to defendant $20,000, for which it gave its obligations pay- able at its oflSce in JNew York; and to secure the payment of the same at maturity, accord- ing to agreement, forwarded to the plaintiff thirty-four " Land Grant Construction Bonds," of said- defendant, of one thousand dollars each, to be held by the plaintiff as collateral security for the payment of the money loaned. The obligations of defendant were not paid but were protested. The plaintiff then sent the bonds to New York with directions to have them sold at the stock exchange at public out- cry to the highest bidder, and directed a friend to look after plaintiff's interest. Upon due notice to the defendant, the bonds were sold, as directed, and the whole of them bid in for plaintiff for the sum of $5,477.88. In an action on the obligations to recover the balance due, after deducting the amount realized on the sale of the bonds ; held, that the plaintiff had a right to sell the bonds. That the plaintiff could not become a purchaser at such sale. That the bonds must still be considered as held by plaintiff as collateral security only. That the defendant had a right to have the property resold. Bank of the Old Dominion v. Dubuque and Pacific B. B. Co., 8 Iowa, 277. 1859. 3. — A party receiving from a president of a railway company, a bond given to the com- pany, with an assignment in blank upon it, by such president, which purports to have been done by him as president by order of the board of directors, as collateral for an antecedent debt due from such president individually, is not such bona fide holder for value, with- out notice, as can hold the bond against the company. Oarra/rd «. Pittsburgh and Con- nellsville B. B. Co., 29 Penn. St., 154. 1857. 4. — A person purchasing with notice that the sale is a breach of trust, is particeps crim- inis, and is not a bona fide holder. lb. 5. — Constructive notice is such evidence of notice, the presumption of which is so vio- lent that the courts will not allow of it being contradicted, lb. 6. — The onus of proving a new considera- tion is upon the party claiming to hold the bonds, and it is error to submit the question to the jury where there is no evidence given which would justify them in finding the fact. Pittsburgh and Connellsville B. B. Co. v. Bar- ker, 29 Penn. St., 160. 1857. 7. — Where such bonds were pledged as collateral security for money previously de- posited with the president as a banker, and no further time was given for the payment of the deposit, the certificates being retained by the depositor, and no change made upon the books of the banker — it was strong evidence that the deposits remained after the pledge of the bonds as before subject to immediate withdrawal. lb. 8. — A railway company conveyed by deed forty-four tracts of land, each described, num- bered and valued, to trustees, to secure the payment of bonds, issued by the former, and TRUST. Equity — Trustee Process. put upon the market to raise money, reserving the power to sell any portion of the land at its valuation; and, upon the surrender by the company to the trustees of bonds, equal in amount to the land sold, the latter were em- powered to convey in fee. Held, that this w.is a power coupled with an interest, and required only a substantial compliance with its terms. Bowe V. Seckett, 30 Ind., 154 1868. 9. Equity. A court of chancery will take jurisdiction of a conventional trust, and direct its administration, on an application of the trustee or a party in interest, where there is any diflBculty or complication likely to arise in the execution of the trust, or any ques- tion of dispute as to the powers or duties of the trustee, or as to the rights of the parties beneficially interested in the trust. Nortliern Central B. B. Oo. k Keighler, 20 Md., 578. 1868. 10. Fraud. If a cestui que trust be induced by fraud to discharge the trust, it must be con- sidered as extinguished, so far as an innocent purchaser of the trust property is concerned, who buys relying on the discharge. Penobscot B. B. Oo. V. Mayo, 60 Me., 306. 1873. 11. Lien upon trust fund. Where a railway company has assigned unpaid subscriptions to its stock to its president, in trust for certain purposes which have been fulfilled, and the company being insolvent, one of its judgment creditors brought an action under § 458 of the code, to subject the amount due on such unpaid subscriptions to the payment of his judgmen', it was lield, that as to the amount due on such subscriptions after the fulfillment of that trust and the payment of all costs and expenses of its administration, the trustee was not entitled to retain from such fund the amount of indtbt- edness of the company to him for his salary as president thereof, the plaintiflF by his action having established a specific lien on the fund as against less diligent general creditors, and being entitled in equity to a preference over them in the distribution. Dunbar v. Harrison, 18 Ohio St., 24. 1868. 12. Mortgage. A contract to secure, by pledge or mortgage, will be enforced in equity. Thornton ®. St .Paul and Chicago B. B. Co., 45 Howard'sPr. (N.Y.), 416. 1873. 1 3. — All persons taking the property agreed to be given as such security, take it impressed with the trust. lb. 14. Pleadings. In an action by a creditor to reach trust property in the hands of admin- istrators or trustees, who have control of, and whose duty if is to protect, the propei-fy, the eestuia que trust need not be made parties. Wintlow B. Minnesota and Pacific B. B. Co., 4 Minn., 318. 1860. 15. — Trustees, in whom is vested the title to a trust fund, are the proper parties plaint- iflF in an action to maintain and defend the fund against wrongful attack or injuiy, tend- ing to impair its safety or amount. Neither the cestui que trust nor beneficiaries can main- tain such action against a third person, except in case the trustees refuse to perform their du- ty, and then the trustees should be made par- ties defendant. Western B. B. Co. v. Nolan, 48 K Y., 513. 1873. 16. Purchasers with notice. Property to which a trust has attached will be subjected to the trust in the hands of a purchaser for value who has constructive notice of the trust. Heth ». Bichmond, Fredericksburgh and Poto- mac B. B. Co., 4 Grattan (Va.), 483. 1848. [See ante 767, paragraplis 3, 4, 5, 6 auu 7 of thiD tiUe.] 1 7. Resulting trust. C, having been ap- pointed the commissioner of construction, by the Buffalo, Corning and N. Y. B. R. Co., with power to negotiate for lands for the use of the company, entered into written contracts with the owners of five several parcels of land, for the purchase thereof by the company. He sub- sequently paid the purchase money out of funds furnished by the company, but, without the knowledge or consent of the company, took deeds from such owners, conveying the several parcels to L., a director of the company, which deeds he subsequently delivered to L. L. took no part in the negotiations for the purchase of the lands, nor did he know that he was the grantee in the deeds, until a considerable time after their delivery. L., having refused to con- vey the lands to the plaintiflT, the successor to the rights of the railroad company, this action was brought to compel such conveyance. Held, that the railroad company, upon the execution of the five deeds to L., became seized of a legal estate in fee in the lands described in those deeds. Buffalo, New Yorh and Brie B. B. Co. v. Lampstm, 47 Barbour (N. Y.), 533. 1867. 18. Trustee, process. No perscm can be charged as a trustee of a debtor if he is chargeable in equity to a third person as cea- TRUST DEED — TURN OUT. 769 Miscellaneous. tui que trust, whether he holds the property by right or by wrong. Biehards v. Merrimack . Boston and Maine B. B. Co., 104 Mass., 137, 1870. Galena, etc., R. R. Co. v. Dill, 32 111., 364, 1859. See St. Louis, etc., B. B. Oo. v. Ter- hune, 50 111., 151, 1869. Galena, etc., R. R. Co. v. Fay, 16 111., 558, 1855. See Ohicago and Alton B. B. Go. v. Oretzner, 46 111., 74, 1867. Gaynor v. Old Colony and Newport R. R. Co., 100 Mass., 308, 1868. See Forsyth v. Boston and Albany B. B. Oo., 103 Mass., 510 1870. Gelpcke y. Dubuque, 1 Wallace, 1-75, 1863. See Marshall Gounty v. Oook, 38 111., 44, 1865; Ohamberlain v. Burlington, 19 la., 395, 1863 ; ex parte, Holman, 28 ib., 88, 1869. Gillinwater v. Madison and Indianapolis R. R. Co., 5 Ind., 839, 1854. Overruled in part — Oolumbus and Indianapolis B. B. Co. V. Arnold, 31 Ind., 174, 1869; see Moss v. Johnson, 23 111., 633, 1859. Gillis V. Pennsylvania R. R. Co., 59 Penn St., 139 1868. See Ka^ v. Same, 65 ib., 269, 1870. Gould V. Hudson River R, R. Co., 12 Barbour (N. Y.), 610, 1853. Denied —Stevens v. Pater- son, etc., B. B. Go., 5 Vroom fN". J.), 532 1870; see Bell v. Gough, 3 Zabriskie (N. J.), 634, 1853. Great Western R. R. Co. v. Bacon, 30 111., 347, 1863. See Same v. Hanks, 36 ib., 281, 1865. Great Western R. R. Co. v. Thompson, 17 111., 181, 1855. Overruled — Illinois Central B. B. Co. V. Middlesworth, 46 ib., 494, 1868. Greenville, etc., R. R. Co. v. Partlow, 5 Richardson's Law (So. Car.), 428, 1852. See Northeastern B. B. Co. v. Sineaih 8 ib., 185, 1855. Grosvenor v. New York Central R. R. Co., 39 N. Y., 34, 1868. See Bogers v. Long Island B. B. Co., 3 Lansing (N. Y.), 269, 1869. Hamilton v. New York and Harlem R. R Co., 9 Paige's Ch. (N. Y.), 171, 1841. See Savannah, etc., B. B. Co. v.Shiels, 33 6a., 601, 1863. Hanson v. Vernon, 27 la., 28. Overruled— Stew- art V. Board of Supervisors of Polk Gounty, 00 la., 9, 1870; McGregor and Sioux City B. B. Co. v. Birdsall, ib., 255. Harriot v. New Jersey R. R. and T. Co., 2 Hilton (N. Y.), 262, 8 Abbott's Pr. (N. Y.), 284, 1859. Reversed — 1 Daly (N. Y.), 377, Jio<«, 1860; see King v. Poole, 36 Barbour (N. Y.), 343, 1862. Hartford and New Haven R. R. Co. v. Cross- well, 5 Hill (N. Y.), 383, 1843. See Schenec- tady, etc., Plankroad Oo.v.l hatclmr, 1 1 N. Y., 102, 1854. Hartford and New Haven R. R. Co. v. Ken- nedy, 12 Conn., 499, 1838. Doubted — Ken- nebec, etc., B. B. Oo. V. Kendall, 31 Me., 470, 1850; Carson v. Arctic Mining Co., 5 Mich., 288, 1858; see Buffalo and New York City B. B. Co. V. Dudley, 14 N. Y., S36, 1856. Hays V. Pennsylvania R. R. Co., 17 Penn. St., 9, 1851. See Commonwealth v. Morris, 1 Philadelphia Rep. (Pcnri.), 411, 1853. Hegeman v. Western R. R. Co., 16 Barboui (N. Y.), 353; 18 N. Y., 9, 1853. See BreJm v. Great Western B. B. Co., 34 Barbour (N. Y.), 356, 1861; Muiray v. Hudson Biver B. B. Co., 47 ib., 196, 1866. CASES OVERRULED. 789 Henry v. Dubuque and Pacific R. R. Co., 3 la., 288, 1855. See Frederick v. Shane, 33 ib., 254, 1871. Henry v. Rutland and Burlington R. R. Co., 27 Vt., 435, 1855. See Hodges v. Same, 29 ib., 220, 1857. Henry v. Vermillion, etc., R. R. Co., 17 Ohio, 187, 1848. Doubted — Tag'j/art v. Western MwyUnd B. S. Oo., 34 Md., 563, 1866. Hester v. Memphis, etc., R. R. Co., 32 Miss., 378, 1856. See Mlison v. Mobile, etc., B. B. Oo., 36 Miss., 573, 1858. Hibbard v. New York and Erie R. R. Co., 15 N. T., 455, 1857. See Eigging r. Watervliet, etc., B. B. Co., 46 N. Y., 23, 1871. Hickey v. Boston, etc., R. R. Co., 14 Allen (Mass.), 429, 1867. See Mayo i>. Boston, etc., B. B. Co., 104 Mass., 141, 1870. Hinchman v. Paterson Horse R. R. Co., 3 C. E. Green's Ch. (N. J.), 75, 1804. See Sigby V. Oamden and Amboy B. B. Co., 5 ib., 435. 1870. Hoagland v. Hannibal, etc., R. R. Co., 39 Mo., 451, 1867. Overruled — S'oMse v. Lowell, 45 Mo., 381, 1870. Hood V. New York, etc., R. R. Co., 33 Conn., 1, 503, 1853. Denied — Bissell v. Michigan Southern and Nortliern Indiana B. B. Go., 23 N. Y., 358, 1860. See Nashua Lock Co. v. Wm-cester, etc., B. B. Co., 48.N. H., 339, 1869; Wheeler v. San Francisco, etc., B. B. Co., 31 Cal., 46, 1866 ; Converse v. Nm-wich and New York Transportation Co., S3 Conn., 166, 1805. Illinois Central R. R. Co. v. Goodwin, 30 111., 117, 1863. See Toledo, etc., B. B. Co. v. Ven-gusm,, 43 111., 449, 1867. Illinois Central R. R. Co. v. Goodwin, 30 111., 117, 1863. See Great Western B. B. Co. V. Oeddis, 83 111., 304, 1864. Illinois Central R. R. Co. v. McLean County, 17 111., 291, 1855. Denied — Life Association n. St. Louis County, 40 Mo., 513, 1872. Illinois Central R. R. Co. v. Phelps, 29 111., 447, 1863. See Great Western B. B. Co. v. Geddis, 33 111., 304, 1864; Toledo, etc., B. B. Co. V. Fergusson, 43, 111., 449, 1867. TUinois Central R. R. Co. v. Phillips, 49 111., 334, 1868. See Illinois Central B. B. Co. v. Phillips, 55 111., 194, 1870. Illinois Central R. R. Co. v. Reedy, 17 111., 580, 1856. Overruled — /Mmojg Central B. B. Co. V. Middlesworth, 46 111., 494, 1868. Illinois River R. R. Co. v. Zimmer, 20 111., 654, 1858. Doubted — Taf/s-cw* v. Western Maryland B. B. Co., 34 Md., 563, 1866. Imlay v. Union Branch R. R. Co., 36 Conn., 249, 1857. See Elliott v. Fair Haven, etc., B. B. Co., 33 Conn., 579, 1860. Indiana and Illinois R. R. Co. v. Williams, 33 Ind., 198, 1864. See Davis v. Cla/rk,,26 Ind., 434, 1806. Indiana Central R. R. Co. v. Cakes, 20 Ind., 9, 1863. Overruled — Graham v. Columbus etc., B. B. Co., 27 Ind., 260. 1866. Indianapolis, etc., R. R. Co. v. Renner, 17 Ind., 135, 1861. See Indianapolis, etc., B. B, Co. V. Solomon, 23 Ind., 534, 1864. Indianapolis, etc., R. R. Co. v. Shimer, 17 Ind., 295, 1861. See Ba/rtlett v. Dubuque and Sioux City B. B. Co., 20 la., 188, 1866. Indianapolis, etc., R. R. Co. v. Wilsey, 20 Ind., 229, 1863. See Indianapolis, etc., B.B. Co. V. Solomon, 33 Ind., 534, 1864. Ingleden v. Northern R. R. Co., 7 Gray (Mass.), 86, 1856. Overruled — Lincoln v. Taunton Copper Manufacturing Co., 9 Allen (Mass.), 181, 1804. See Keith v. Lathrop, 10 Gushing (Mass.), 453, 1852 ; Dickinson v. Fitehburg, 13 Gray (Mass.), 540, 1859. Johnson v. Albany, etc., R. R. Co., 40 How- ard's Pr. (N. Y.), 193, 1870. Reversed — 5 Lansing (N. Y.), 333, 1871. Johnson v. Hudson River R. R. Co., 6 Duer (N. Y.), 633, 1857. See Beisiegel v. New York Central B. B. Co., 40 N. Y., 9, 1869. Jones V. New York and Erie R. R. Co., 39 Barbour (N. Y.), 633, 1859. Dictum denied — Ward V. New York Central B. B. Co., 47 N. Y., 39, 1871. Kent V. Hudson River R. R. Co., 32 Barbour (N. Y.), 378, 1856. Doubted —/ones v. New York and Erie B.B. Co., 39 ib., 033, 1859; Wibert v. New York and Erie B. B. Co., 12 N. y., 245, 1855 ; 19 Barbour (N. Y.), 36, 1854. King V. Paterson and Hudson River R. R. Co., 5 Dutcher (N. J.), 504, 1861 ; overruling Same v. Same, ib., 82, 1860. Kirkpatrick v. Southwestern Railroad Bank, 6 Humphreys (Tenn.), 45, 1845. See Ijowry V. Brown, 3 Saeed (Tenn.), 17, 1855. Knowles v. Atlantic and St. Lawrence R. R. Co., 38 Me., 55, 1854. See Bussell v. Lynch, 28 Mo., 313, 1859. 790 CASES OVERRULED La Crosse and Milwaukee R. R. Co. v. Van- derpool, 11 Wis., 119, 1860. See Sill v. La- Crosse and Milwaukee B. B. Co., ib., 314, 1860. Lafayette Plankroad Co. v. New Albany etc., R. R. Co., 13 Ind., 90, 1859. Overruled — Chaham v. Columbus, etc., B. B. Co., 37 ib., 360, 1866. Lamb v. Camden and Amboy R. R. Co., 3 Daly (N. Y.), 454, 1869. Reversed — 46 N. Y., 371, 1871. Lamb v. "Western R. R. Co., 7 Allen (Mass.), 98, 1863. See Cass v. Boston and Lowell B. B. Co., 14 ib., 448, 1867. Lexington and Ohio R. R. Co. t. Applegate, 8 Dana (Ky.), 389, 1839. Denied — Davis v. New York, 14 N. Y., 506, 1856. Little Miami R. R. Co. v. Stephens, 20 Ohio, 415, 1851. See Ponton v. Wilmington and Weldon B. B. Co., 6 Jones' Law (N. C), 345, 1858; Moss v. Johnson, 33 111., 633, 1859. Louisville and Frankfort R. R. Co. v. Milton, 14 B. Monroe, (Ky.), 75, 1853. See Louisville and Frankfort B. B. Co. v. Ballard, 3 Met- calfe (Ky.), 177, 1859. Lonisville, etc., R. R. Co. v. Burke, 6 Cold- well (Tenn.), 45, 1868. Overruled — JVas/i- ville and Charleston B. B. Co. v. Prince, 3 Heiskell (Tenn.), -580, 1871. Louisville, etc., R. R. Co. v. Collins, 3 Duvall (Ky.), 114, 1865. See Louisville, etc., B. B. Co. V. Bobinson, 4 Bnsli (Ky.), 507, 1868. LouisviUe, Cincinnati and Charleston R. R. Co. V. Letson, 3 Howard, 397, 1844. See Ta- ten n. Wright, 3 Zabriskie (N. J.), 439, 1852; Davis V. Central B. B. and Banking Co., 17 Ga., 333, 1855 ; Commonwealth v. Milton, 13 B. Monroe (Ky.), 313, 1851 ; Wheeden i>. Cmnden and Amboy B. B. Co., 1 Grant's Cases (Penu.), 430, 1856 ; Phoenix Insurance Co. v. Common- wealth, 5 Bush (Ky.), 68, 1868. Lucas V. New Bedford, etc., R. R. Co., 6 Gray (Mass.), 64, 1856. See Mayo v. Boston and Maine B. B. Co., 104 Mass., 137, 1870. McDonald v. Western R. R. Co., 34 N. Y., 497, 1866. Dictum denied — Wood v. Mil- waukee,ete., B. B. Co., 37 Wis., 541, 1871. McGrann v. North Lebanon R. R. Co., 39 Penn. St., 83, 1857. Doubted — McManus v. Oassidy, 68 Penn. St., 360, 1870. McGrath V.Hudson River R.R. Co., 19 How- ard's Pr. (N.Y.), 311, 1860. See Ernst v. Hudson Biver B. B. Co., 35 N. Y., 9, 1866 ; 39 N. Y., 61, 1868 ; 33 Barbour (N. Y.), 159, 1860 ; 33 Howard's Pr. (N. Y.), 363, 1863; 24 ib., 97, 1863. McPadden v. New York Central R. R. Co., 47 Bdrbonr (N. Y.), 347, 1866. Reversed — 44 N.Y., 478, 1871. McRee v. Wilmington, etc., R. R. Co., 3 Jones' Law (N. C), 186, 1855. See Proprietors Bridges v. Hoboken Land Co., 3 Beasle3i',s Ch. (N. J.), 503; 1 Wallace, 116, 1863. Marion and Logansport R. R. Co. v. Lomax, 7 Ind., 648, 1856. Overruled — Indiana and Illinois Central B. B. Co. v. Davis, 30 Ind., 6, 1863. Marion, etc., R. R. Co. v. Dillon, 7 Ind., 404, 1856. Overruled — Indiana and Illinois Cen- tral B. B. Co. V. Davis, 20 Ind., 6, 1863. Marion, etc., R. R. Co. v. Hodge, 9 Ind., 163, 1857. Overruled — Indiana andlllinois Cen- tral B. B. Co. V. Davis, 30 Ind., 6, 1863. Marsh v. New York and Erie R. R. Co., 14 Barbour (N.Y.),364, 1853. Overruled — Cor- win V. New York and Erie B. B. Co., 13 N. Y., 43, 1855. Marshall v. Baltimore and Ohio R. R. Co., 16 Howard, 814, 1853. See Phmnix Ins. Co. V. Commonwealth, 5 Bush (Ky.), 68, 1868; Wheeden v. Camden and Amboy B. B. Co., 1 Grant's Cases (Penn.), 420, 1856. Mechanics' Bank v. New York and New Ha- ven R. R. Co., 4 Duer (N. Y.), 480, 1855. Re- versed- 13 N. Y., 599, 1856. Mechanics' Bank v. New York and New Haven R. R. Co., 13 N. Y., 599, 1856. Over- ruled — New York and New Haven B. B. Co. V. Schuyler, 34 JST. Y., 30, 1865. See Farmers', etc. Bank v. Butchers' and Drovers' Bank, 13 N. Y., 135, 1857. Mercer County v. Pittsburgh, etc., R. R. Co., 37 Penn. St., 389, 1856. See Mercer County V. Hacket, 1 Wallace, 183, 1863; State V. Saline County Court, 48 Mo., 890, 1871. Merriam v. Hartford and New Haven R. R. Co., 30 Conn., 354, 1850. J)orxhte& — Hand- long V. Barnes, 1 Vroom (N. J.), 69, 1863. Merrill v. Ithaca and Oswego R. R. Co., 10 Wendell (N. Y.), 586, 1837. Doubted— Un- ion Bank v. Enapp, 3 Pickering (Mass.), 00. Michigan Central R. R. Co. v. Ward, 2 Mich., 538,1853. OYQrmi&A— Michigan Central B. B. Co. V. Hale, 6 Mich., 343, 1859. See Angle V. Mississippi and Missouri B. B. Co., 18 la., 555, 1865. Michigan Southern and Northern Indiana R. R. Co. v. Schurtz, 7 Mich., 515, 1859. CASES OVERRULED. n See Cleveland, etc., B. R. Co. «. Perkina, 17 Mich., 296, 186S. Milhau V. Sharp, 15 Bai-bour (N. Y.), 193, 1853. Doubted — Davis v. New Tork, 2 Duer (N. Y.), 663, 1858 ; Booaevelt v. Draper, 16 Howard's Pr., (N. Y.), 137, 1858; Doolittle V. Broome County, 18 N. Y., 155, 1858. See also Williams ». New York Central B. B. Co., 16 N. Y., 97, 1857; Baltimore v. Gill, 81 Md., 375, 1869. Milhau V. Sharp, 27 N. Y., Gil, 1863. See Mey&r v. Amidon, 45 N. Y., 169, 1871. Miller v. New York and Erie R. R. Co., 21 Barbour (N. Y.), 513, 1856. Overruled — Albany Northern B. B. Co. v. BrowneU, 34 N. Y., 345, 1802. Millered v. Lake Ontario, Auburn and New York R. R. Co., 9 Howard's Pr. (N. Y.), 238, 1854. Overruled — Kent v. New Tork Central B. B. Co., 12 N. Y., 628; 1855. Milwaukee and Mississippi R. R. Co. v. Waukesha, 9 Wis., 431, note, 1855. Over- ruled — Attorney General v. Winnebago Lake, etc., Co., 11 Wis., 35, 1860. See Knowlton V. Bock Co'iinty, 9 Wis., 410, 1859 ; Knoeland V. City of Milwaukee, 15 Wis., 454, 1803. Mohawk Bridge Co. v. TJtica and Schenec- tady R. R. Co., 6 Paige's Oh. (N. Y.), 554, 1837. See Proprietors of Bridges v. Hoboken Zand Co., 2 Beasley's Cli. (N. J.), 503; 1 Wallace, 116, 1863. Moore v. Fitchburg R.R. Co., 4 Gray (Mass.), 465, 1855. See Sewett v. Swift, 3 Allen (Mass.), 430, 1863; Howe v. Newchureh, 12 ib., 49, 1866. Moorhead v. Little Miami R. R. Co., 17 Ohio, 340, 1848. See Little Miami B. B. Co. v. Naylor, 2 Ohio St., 235, 1853. Morris and Essex R. R. Co. v. Central R. E. Co., 2 Vroom (N. J.), 205, 1805. See Ghilds V. Central B.B. Co., 4 ib., 823, 1869. Moses V. Boston and Maine R. R. Co., 33 N. H., 523, 1856. See Wood v. Crocker, 18 Wis., 845, 1864. Moshier v. Utica, etc., R. R. Co., 8 Barbour (N. Y.), 427, 1850. See Lafferty v. Hannibal, etc., B. B. Co., 44 Mo., 291, 1869. Munger v. Tonawanda R. R. Co., 4 N. Y., 849, 1850. Denied — iJoncA v.Lloyd,Zl Penli. St., 358, 1858. Doubted — JToJTJs v. Litch- fUld, 85 N. H., 271, 1857. See Tonawanda B. B. Co. V. Munger, 5 Denio (N. Y.), 355, 1848. Murray v. South Carolina R. R. Co., 1 Mc- MuUin (So. Car.), 385, 1841. Denied — Lit- tle Miami B. B. Co. v. Stevens, 20 Ohio, 415, 1851 ; White v. The Ma/ry Ann, 6 Cal., 463, 1856; see Gillenwater v. Madison, etc., B. B. Co., 5 Ind., 339, 1854. Nason v. Woonsocket Union R. R. Co., 4 R. I., 377, 1856. See Thompson v. Milwaukee, etc., B. B. Co., 27 Wis., 93, 1870. New Jersey R. R. Co. v. Kennard, 31 Penn. St., 303, 1853. Denied — Indianapolis, etc., B. B. Co. V. Buiherford,29 Ind., 83, 1867 ; see Chicago and Alton B. B. Go. v. Pondrom, 51 111., 333, 1869. New Orleans, Jackson and Great Northern R. R. Co. V. Harris, 27 Miss., 5l7, 1854. See Hawkins v. Mississippi, etc., B. B. Co., 35 Miss., 688, 1858. New Orleans, Jackson and Great Northern R. R. Co. V. Bailey, 40 Miss., 395, 1866. De- jiieA — Chicago v. Martin, 49 III., 241, 1868; see Atlantic and Great Western B. B. Co. v. Dunn, 19 Ohio St., 590, 1869. New Orleans, Jackson and Great Northern R. R. Co. V. Hurst, 36 Miss., 660, 1859. De- nied — Chicago v. Martin, 49 111., 341, 1868. New York and Erie R. R. Co. v. Sabin, 36 Penn. St., 242, 1856. See Erie B. B. Co. v. Commonwealth, 66 ib., 84, 1870. New York and Harlem R. R. Co. v. Story, 6 Barbour (N. Y.), 419, 1843. Reversed — 6 N. Y., 85, 1851. Nicoll V. New York and Erie R. R. Co., 12 N. Y., 121, 1854. See Brattle Square Church V. Grant, 3 Gray (Mass.), 142, 1855 ; McMahon V. Allen, 35 N. Y., 403, 1866. Northern Central R. E. Co. v. State, 29 Md., 420, 1868. See Northern Central B. B. Co. v. State, 31 lb., 357, 1869. Northern Indiana R. R. Co. y. Michigan Cen- tral R. R. Co., 15 Howard, 383, 1853. See Phanix Ins. Co. v. Commonwealth, 5 Bush (Ky.), 68, 1868. Northern R. R. Co. v. Miller, 10 Barbour (N. Y.), 260, 1851. Overruled — ^ujfoJo and New Tork City B. B. Co. v. Dudley, 14 N. Y., 306, 1856. Denied — Zabriskie v. Hackensack and New Tork B. B. Co., 3 C. E. Green's Ch. (N. J.), 178, 1867. Northrup v. Railway Passenger Assurance Co., 2 Lansing (N. Y.), 166, 1869. Reversed — 43N.Y.,519, 1871. Ohio and Mississippi R. E. Co. v. Brown, 28 111., 94, 1859. See Great Western B. B. Co. V. Hanks, 86 111., 281, 1865. 792 CASES OVERKULED. Ohio and Mississippi R. R. Co. v. Fitch, 30 Ind., 498, 1863. See MeKinney d. Ohio and Mississippi B. B. Co., 23 lb., 99, 1864. Ohio and Mississippi R. R. Co. v. Hammer- sley, 38 Ind., 371, 1867. See Louisville, etc., B. B. Co. V. Filbem, 6 Bush (Ky.), 574, 1869. Ohio and Mississippi R, R. Co. v. Shanefelt, 47 111., 497, 1868. Doubted — Kellogg v. Chi- cago and Northwestern B. B. Co., 36 Wis., 323, 1870; see Chicago and Northwestern B. B. Co. «. Simonson, 54 111., 504, 1870. Ohio and Mississippi R. R. Co. v. Wheeler, 1 Black, 386, 1861. See PJimiix Ins. Co. v. Commonwealth, 5 Bush (Ky.), 08, 1868 ; Steii- ens v. Phoenix Ins. Co., 41 N. Y., 149, 1869; Bail/road Co. v. Harris, 13 Wallace, 65, 1870. Olcott V. Tioga K. R. Co., 36 Barbour (N. Y.), 147, 1857. Reversed — 30 N. Y., 310, 1859. Oldtown, etc., R. R. Co. v. Veazie, 39 Me., 571, 1855 ; see Zabriskie v. Haclcensack and New York B. B. Co., 3 C. E. Green's Ch. (N. J.), 178, 1867. Pacific R. R. Co. v. Hughes, 22 Mo., 291, 1855. Denied — Zabriskie v. Haclcensack and New York B. B. Co., 3 C. E. Green's Ch. (N. J.), 178, 1807. Pacific R. R. Co. v. Renshaw, 18 Mo., 310, 1853. Denied — Zabriskie v. HacJeensack and New York B. B. Co., 3 C. E. Green's Ch. (N. J.), 178, 1867. Parlier v. Rensselaer and Saratoga R. R. Co., 16 Barbour (N. Y.), 315, 1853. Overruled — Brace v. New York Central B. B. Co., 37 iSr. Y., 269, 1863. Pearce v. Madison and Indianapolis R. R, Co., 31 Howard, 441, 1858. Denied — Bitsell V. Michigan Southern and Northern Indiana B. B. Co., 33 N. Y., 358, 1860. Peet V. Chicago and Northwestern R. R. Co., 19 Wis., 118, 1865. See Detroit and Milwau- kee B. B. Co. V. Farmers', etc., Bank, 30 ib., 132, 1865. Peninsniar R. R. Co. v. Howard, 30 Mich., 18, 1870. See Mansfield, etc., B. B. Co. v. Cla/rk, 33 ib., 519, 1871. Penn v. Buffalo and Erie R. R. Co., 3 Lan- sing (N. Y.), 443, 1871. Reversed — 49 N.Y., 304, 1873. Pennsylvania R. R. Co. v. Kerr, 62 Penn. St., 353, 1869. DemedL— Kellogg v. Chicago and Northwestern B. B. Co., 26 Wis., 323, 1870. Pennsylvania R. R. Co, v. McCloskey, 23 Penn. St., 526, 1854. Overruled — £f«m« v. Butler, 57 ib., 335, 1868; Samie v. Brooks, ib., 339. People V. Albany and Susquehanna R. R. Co., 1 Lansing (N. Y.), 308, 1869. Reversed — 5 ib., 35, 1871. People V. Kerr, 30 Howard's R-. (N. Y.), 130, 1861. Reversed - 37 Barbour (N. Y.), 357; 37 N. Y., 188, 1863. People V. Michigan Sontliern and Northern Indiana R. R. Co., 4 Mich., 398, 1857. See Michigan Southern and Northern Indiana B. B. Co. V. Auditor General, 9 Mich,, 448, 1863. Perkins v. New York Central R. K. Co., 24 N. y., 196, 1863. Denied — Hooper v. Wells, 37 Cal., 11, 1864. Perkins v. Portland, etc., R. R. Co., 47 Me., 573, 1859. See Nashua Lock Co. v. Worcester, etc., B. B. Co., 48 N. H., 339, 1869. Philadelphia and Reading R. R. Co. v. Hum- mel, 44 Penn. St,, 375, 1863. See Kay v. Penn- sylvania B. B. Co., 65 ib., 269, 1870. Philadelphia and Trenton R. R. Co. v. Stimp- son, 14 Peters, 448, 1840. Denied — Campan V. Dewey, 9 Mich., 381, 1861. Philadelphia, etc., R. R. Co. v. Philadelphia, etc., Towboat Co., 33 Howard, 309, 1859. Denied — Stanton v. Metropolitan B. B. Co., 14 Allen (Mass.), 485, 1867. Phillips V. Rensselaer and Saratoga R. R. Co., 57 Barbour (N. Y), 644, 1870. Reversed — 49N. Y, 177, 1873. Plant V. Long Island R. R. Co., 10 Barbour (N. Y.), 36, 1850. See Kelsey v. King, 33 How- ard's Pr. (N. Y), 39, 1866. Porter v. Chicago and Northwestern R. R. Co., 30 la., 73, 1865. See Wa/rner v. Burling, ton and Missouri Biver B. B. Co., 32 ib., 166, 1867. Portland, etc., R. R. Co. v. Graham, 11 Met- calf (Mass.), 1, 1846. See Kennebec and Port- land B. B. Co. V. Ja/rvis, 34 Me., 360, 1852. Railroad Co. v. Skinner, 19 Penn. St., 398, 1852. See Central Military Tract B. B. Co. e. Boekafellow, 17 111., 541, 1850. Reed v. New York Central R. R. Co., 56 Bar- bour (N. Y.), 493, 1868. Reversed— 45 N Y 574, 1871. Rensselaer and Saratoga R R. Co. v. Davis, 43 N. Y., 187, 1870. See Nm York, etc., B. B. Co. V. Kipp, 49 N. Y, 546, 1871. Root v. Great Western R, R. Co., 3 Lansing CASES OVERRULED. 793 (N. Y.), 199, 1869. Reversed -^45 N. Y.,534, 1871. Ross V. Lafayette and Tndianapolis R. R. Co., 6 Ind., 297, 1855. Denied — Alabama and Flor- ida S. R. Co. V. Rowley, 9 Fla., 508, 1861. Russell V. Hudson River R. R. Co., 5 Duer (N. Y.), 89, 1855. Reversed — 17 N. Y., 134, 1858. Russell V. Hudson River R. R. Co., 17 N. Y., 134, 1858. See Pembroke e. AUenatown, 41 N. H., 365, 1860. Ryan v. New York Central R. R. Co., 35 N. Y., 310, 1806. Beaiea — Kellogg v. Chicago and Northwestern R. R. Co., 36 Wis., 233, - 1870. Doubted — Webb v. Rome, Watertown, etc., R. R. Co., 3 Lansing (N. Y.), 453 ; 49 N. Y., 430, 1873. Sacramento Valley R. R. Co. v. Moffatt, 6 Cal., 74, 1856. See San Francisco, etc., R. R. Co. i>. Mahomy, 39 Cal., 113, 1865. Sanford v. Eighth Avenue R. R. Co., 7 Bos- worth (N. Y.), 123, 1860. Reversed — 33 N. Y., 343, 1861. Sanford v Eighth Avenue R. R. Co.,, 23 N. Y., 343, 1861. Overruled — Pwrheir v. J&rvia, 3 Keyes (N. Y.), 271, 1867. Seaboard and Roanoke R. R. Co. v. Ward, 18 Barbour (N. Y.), 595, 1854. Doubted — Young ii. iush, 36 Howard's Pr. (N. Y.), 340, 1868. Shaw V. Norfolk County R. R. Co., 16 Gray (Mass.), 407, 1860. Dictum overruled— Siocft- bridge Iron Co. v. Hudson Iron Co., 103 Mass., 45, 1869. Smith V. New York Central R. R. Co., 34 N. Y, 333, 1863. Demedi — Hooper v. Wells, 37 Cal., 11, 1864. Snow V. Eastern R. R. Co., 13 Metcalf (Mass.), 44. 1846. Denied — Douglass v. Montgomery, etc., R.R. Co., 37 Ala., 688, 1861. Doubted — Johnson v. Stone, 11 Howard, 419, 1850. Snow V. Housatonic R. R. Co., 8 Allen (Mass.), 441, 1864. See Harrison v. Central R. R. Co., 3 Vroom (N. J.), 293, 1865 ; Tinney v. Boston, etc., R. R. Co., 63 Barbour (N. Y.), 318, 1873. Southern R. R. Co. v. Kendrick, 40 Miss., 374, 1866. See Memphis, etc., R. R. Co. v. Whitfield, 44 Miss., 466, 1870. Spencer v. Utica and Schenectady R. R. Co., 5 Barbour (N. Y.), 337, 1849. Overruled — Johnson v. Hudson River R. R. Co., 6 Duer (N. Y.), 663; 20 N. Y, 65, 1859. Stewart v. Saratoga and Whitehall R. R. Co., 13 Howard's Pr. (N. Y.), 435, 1855. Overruled — fi'jcAs ». Smith, 4 Abbott's Pr. (N. Y.), 385, 1857; Christy v. Libby, 3 Ab- bott's Pr., N. S. (N. Y.), 483, 1867. Stimpson v. West Chester R. R. Co., 4 How- ard, 380, 1846. Doubted — Woodward v. Dinsmore, 4 Fisher's Patent Cases, 163, 1870. Strasburg R. R. Co. v. Echternacht, 31 Penn. St., 330, 1853. See Shober v. Lancaster County Park Association, 68 Penn. St., 439, 1871. Sweeney v. Old Colony, etc., R. R. Co., 10 Allen (Mass.), 368, 1865. See Vanderbeck v. Hendry, 5 Yroom (N. J.), 467, 1871. Tate V. Ohio and Mississippi R. R. Co., 10 Ind., 174, 1858. See Goodnight v. Qoa/r, 30 Ind., 418, 1868. Tennessee and Coosa R. R. Co. v. Moore, 36 Ala., N. S., 373, 1860. Doubted — Chisholm V. MeGehee, 41 ib., 193, 1867. Thomas v. Boston, etc., R. R. Co., 10 Metcalf (Mass.), 473, 1845. Denied — McDonald v. Western R. R. Co., 84 N. Y., 497, 1866. Thompson v. Lee County, 23 Iowa, 306, 1867. See Fx parte Holman, 38 Iowa, 88, 1869. Thompson v. New York and Harlem R. R. Co., 3 Sandford's Ch. (N. Y.), 625, 1846. See Proprietors of Bridges v. Hoboken Land Co., 3 Beasley's Oh. (N. J.), 503; S. C, 1 Wal- lace, 116, 1863. Todd V. Old Colony, etc., R. R. Co., 3 Allen (Mass.), 18; 7 ib., 207, 1863. Denied — Spencer v. Milwaukee, etc., R. R. Co., 17 Wis., ' 487, 1863. See Pittsburgh, etc., R. R. Co. v. McClurg, 59 Penn. St., 394, 1867; Morel v. Mississippi Valley Insurance Co., 4 Bush (Ky.), 535, 1868 ; Mayo «. Boston, etc., R. R. Co., 104 Mass., 137, 1870. Toledo, etc., R. R. Co. v. Eowler, 22 Ind., 316, 1864. Overruled — Indianapolis, etc., R. R. Co. V. Bisliop, 39 Ind., 302, 1867. Tonawanda R. R. Co. v. Munger, 5 Denio (N. Y.), 355, 1848; 4 N. Y., 349, 1850. De- nied — Stucke v. Milwaukee, etc., R. R. Co., 9 Wis., 303, 1859. See Needham v. San Fran- cisco, etc., R. R. Co., 37 Cal., 409, 1869. Troy and Boston R. R. Co. v. Tibbetts, 11 Howard's Pr. (N. Y.), 168, 1855. See Wood- 1-uff V. Dickie, 5 Robertson (N. Y.), 619, 1866. Utica and Schenectady R. R. Co. v. Brinker- hoff, 31 Wendell (N. Y.), 139, 1839. See Burrell v. Root, 40 N. Y., 496, 1869; 794 CASES OVERRULED. Vail V. Morris and Essex R. R. Co., 1 Zabris- kie (N. J.), 189, 1847. See Den v. Morris Canal Oo., 4 ib., 587, 1854. Vanderkar v. Rensselaer and Saratoga R. R. Co., 13 Barbour (N. Y.), 390, 1851. See Brace v. New York Ventral B. B. Co., 27 N. Y., 269, 1863. Van Winkle v. Camden and Amboy R. R. Co., 2 Green's Law (N. J.), 162, 1833. See Ooster V. New Jersey Bail/road and Trans- portation Oo., 4 Zabriskie (N. J.), 730, 1853. Veazie v. Penobscot R. R. Co., 49 Me., 119, 1860. Examined and modified — Eaton v. European, ete., B. B. Co., 59 Me., 520, 1871. Vermont Central R. R. Co. v. Clayes, 31 Vt., 30, 1848. See TaggoAi v. Western Maryland B. B. Oo., 24 Md., 563, 1866. Vicksburg and Jackson R. R. Co. v. Patton, 31 Miss., 156, 1856. DtimaCL — Ohicago v. Martin, 49 111., 241, 1868. See New Orleans, Jackson, etc., B. B. Oo. v. AUbritton, 38 Miss., 243, 1859; Same v. Bailey, 40 Miss., 395, 1866. Vilas V. Prairie du Chien R. R. Co., 17 Wis,. 497, 1863. See Pfeifer v. Blieboygan, etc., B. B. Oo., 18 Wis., 155, 1864. Visscher v. Hudson River R. R. Co., 15 Bar- bour (N. Y), 37, 1853. See Staats v. Eudson Bimr B. B. Co., 3 Keyes (N. Y.), 196, 1866. Voegtly V. Pittsburg and Ft. Wayne R. R. Co., 2 Grant's Cases (Penn.), 243, 1858. See Dyer v. Wightman, 66 Penn. St., 425, 1870. Waddill V. Alabama, etc., R. R. Co., 35 Ala. N. 8., 333, 1859. See Grand Lodge of Ala lama v. Waddill, 36 Ala., 313, 1860. Wager v. Troy Union R. R. Co., 25 N. Y. 526, 1862. See People v. Kerr, 27 N. Y, 188 1868. Warner v. Erie R. R. Co., 49 Barbour (N Y.), 558, 1867. Reversed — 39 N. Y., 468 1868. Warner v, Erie R. R. Co., 39 N. Y, 468, 471 1868. See Brickner v. New York Oentral B B. Co., 2 Lansing (N. Y.), 506, 1870. Warner v. New York Central R. R. Co., 45 Barbour (N. Y.), 299, 1866. Reyersed — 44 K. Y., 465, 1871. See BoUnson v. Same, 65 Barbour (N. Y.), 148, 1873. Warren v. Fitchburg R. R. Co., 8 Allen (Mass.), 327, 1864. See Forsythe v. Boston, etc., B. B. Co., 103 Mass., 510, 1870. Dry Dock, etc., R. R. Co. v. New York and Harlem R. R. Co., 30 Howard's Pr. (N. Y.), 39, 1865. Reversed — 54 Barbour (N. Y.), 388, 1866. Wear v. Jacksonville, etc., R. R. Co., 24 III., 593, 1860. See Wilson v. Myrick, 26 HI., 34, 1861. Weed V. Schenectady and Saratoga R. R. Co., 19 Wendell, 534, 1838. See Farmers' and Mechanics' Bank v. Clmmplain Trans- portation Co., 23 Vt., 186, 1851. Wells V. New Yoj-k Central R, R. Co., 26 Barbour (N. Y.), 641, 1858. Doubted — Illinois Central B. B, Co. v. Bead, 37 111., 484, 1865. Wells V. New York Central R, R. Co., 24 N. Y., 181, 1863. Denied — Hooper v. Wells, 37 Cal., 43, 1864. Wetumpka and Coosa R. R. Co. v. Bingham, 5 Ala., N. S., 657, 1843. See Daois v. CaV houn, 34 ib., 437, 1854. White V. Delaware, etc., R. R. Co., 41 N. Y., 530, 1869. See OaugJiey v. Smith, 47 N. Y., 244, 1872. White V. Syracuse and Utica R. R. Co., 14 Barbour (N. Y.), 559, 1853. Denied — Za- briskie v. Haclcensack and New York B. B. Co., 3 C. E. Green's Ch. (N. J.), 178, 1867. Wliiting V, Sheboygan R. R. Co., 25 Wis., 167, 1870. Denied — Leavenworth v. Miller, 7 Kans., 479, 1871, Whitney v. Atlantic, etc., R. R. Co., 44 Me., 362, 1857. See Stearns ®. Atlantic, etc., B. B. Co., 46 Me., 95, 1858. Wljiton V. Chicago and Northwestern R. R. Co., 25 "Wis., ^ 1870. Denied — J!/«a(faM! Valley Mining Oo. v. Dodds, 7 Nev., 143, 1871. Wibert v. New York and Erie R. R. Co., 19 Barbour (N. Y.), 36; 13 N. Y., 245, 1855. Overruled — Kent v. Hudson Biver B. B. Co., 23 ib., 378, 1856. Demed — Sisson v. Cleve- land, etc., B. B. Co., 14 Mich., 489, 1866; Wn/rd V. New York Oentral B. B. Co., 47 N. Y., 29, 1871. But see Jojies v. New York and Erie B. B. Co., 29 Barbour (N. Y.), 633, 1859. Wilds V. Hudson River R. R. Co., 33 Barbour (N. Y.), 503, 1860. Reversed — 24 N. Y., 430. See 23 Howard's Pr. (N. Y.), 492, I863! Wilds V. Hudson River R. R. Co., 24 N. Y., 430, 1862. See Needham v. San Francisco, etc., B. B. Co., 37 Cal., 409, 1869. Williams V. New York Central R. R. Co 18 Barbour (N. Y.), 223, 1854. Reversed - 16 N. Y, 97, 1857. Doubted - Davis v. New York, 14 N. Y, 506, 1856. See Imlay v. Union B. B. Co., 26 Conn., 249, 1857. di CASES OVERRULED. 795 Williams v. New York Central R. R. Co., 16 N. Y., 97, 1857. 'See People «. Kerr, 20 Howard's Pr. (N. Y.), 130, 1861; Millmrn v. Cedar Rapids, etc., B. JR. Go., 13 Iowa, 246, 1861. Wood V. Milwaukee and St. Paul R. R. Co., 27 Wis., 541, 1871. Overruled — Corefe^/ v. Milwaukee and St. Paul S. B. Co., 31 Wis., 619, 1873; Wood v. Same, 33 ib., 398, 1873. Wright V. New York Central R. R. Co., 28 Barbour (N. Y.), 80, 1858. Reversed — 35 N. Y., 562, 1863. Wright V. New York Central R. R. Co., 25 N. Y., 562, 1862. See Louisville, etc., B. B. Co. V. Filbern, 6 Bush (Ky.), 574, 1869; Briekner «. New York Central B. B. Co., 2 Lansing, 506, 1870; Stone v. Western Trans- portation Co., 38 N. Y., 240, 1868; Laning v. New York Central B. B. Co., 49 N. Y., 531, 1873. Zabriskie t. Hackensack, etc., R. R. Co. 3 C. E. Green's Ch. (N. J.), 178, 1867. See Black v. Delaware, etc.. Canal Co., 7 ib., 130, 1871. TABLE OF CASES. A. Aaron v. Second Avenue R. R. Co., 3 Daly (N. Y.), 127. Injuries to Persons, on the Track, 469. Abbott V. New York Central R. R. Co., 13 Ab- bott's Pr. K. S. (N. Y.), 465. Penalties, 570. Ackerson v. Erie R. R. Co., 3 Vroom (N. J.), 354. Injuries to Passengers, 427. Adams v. Hastings and Dakota R. R. Co., 18 Minn., 360. Eminent Domain, 343, 350. V. Jones, 6 Jones' Eq. N. C, 231. Stock and Stockholders, 637. V. Memphis and Little Rock R. R. Co., 3 Coldwell (Tenn.), 645. Subscriptions by- Cities and Towns, 674. V. Saratoga and Washington R. R. Co., 11 Barbour (N. Y.), 414. Jurisdiction, 493. V. Saratoga and Washington R. R. Co., 10 N. Y., 328. Jurisdiction, 492. Adamson v. Davis, 47 Mo., 268. Limitations, 508. Adolph V. Central Park, etc., R. R. Co., 1 Jones & Spencer (N. Y.), 186. Street Railways, 652. Adwin V. New York Central and Hudson River R. R. Co., 60 Barbour (N. Y.), 590. Injuries to Passengers, 432. Agricultural Branch R. R. Co. v. Winchester, 18 Allen (Mass.), ?9. Subscriptions by In- dividuals, 695, 703, 722, 733. Aikin v. Albany, Vermont and Canada R. R. Co., 36 Barbour (BT. Y.), 389. Private Ways and Crossings, 588. V. Boston, Concord and Montreal R. R. Co., 51 N. H., 504. V. Western R. R. Co., 30 N. Y., 870. Fer- ries, 301. Akerson v. Brie R. R. Co., 3 Vroom (N. J.), 809. Jurisdiction, 488. Akin V. Albany Northern R. R. Co., 14 How- ard's Pr. (N. Y.), 337. Process, 591. V. Western R. R. Co., 30 Barbour (N. Y.), 305. Ferries, 301. Alabama and Chattanooga R. R. Co., In re, 0, Blatchford (U. S. C. C), 390. Bankruptcy, 45. Alabama and Florida R. R. Co. v. Burkett, 43 Ala. N. S., 88. Eminent Domain, 339, 358, 363. V. Burkett, 46 Ala. N. S., 569. Charter, 118. Eminent Domain, 327, 255. V. Kenney, 39 Ala. N. S., 807. Eminent Domain, 260. Injunction,- 384. V. Rowley, 9 Fla., 508. Subscriptions by Individuals, 737. V. Watson, 43 Ala. N. S., 74. Evide nee, 385. Alabama and Mississippi Rivers R- R. Co. v. Hungerford, 41 Ala. N. S., 388. Appeals, 17. V. Johnson, 43 Ala. N. S., 343. Evidence, 383. V. Sanford, 36 Ala. N. S., 703. Evidence, 386. Pleading, 583. Alabama and Tennessee R. R. Co. v. Burns, 43 Ala. N. S., 169. Process, 591. V. Oaks, 37 Ala. N. S., 694. Evidence, 286. Alabama and Tennessee Rivers R. R. Co. -v. ■ Burke, 27 Ala. N. S., 535. Slaves, 617. V. Harris, 35 Ala. N. S., 333. Costs, 167. V. Kidd, 35 Ala. N. S., 309. Carriage of Merchandise, 103. Warehousemen, 775. V. Kidd, 39 Ala. N. S., 331. Carriage of Merchandise, 104. V. Nabors, 37 Ala. N. S., 489. Evidence, 374. Albany and Schenectady R. R. Co. v. Osborn, 13 Barbour (N. Y.), 328. Taxation,- 788. Albany and Susquehanna R. R. Co. v. Dayton, 10 Abbott's Pr., N. S. (N. Y.), 183. Eminent Domain, 219, 320. Albany and West Stockbridge R. R. Co. v. Cady, 6 Hill (N. Y.), 265. Costs, 167. V. Canaan, 16 Barbour (N. Y.), 244. Tax- ation, 738. Albany Northern R. R. Co. v. Brownell, 34 N Y., 345. Highways, 328, 326. 798 TABLE OF CASES. V. Cramer, 7 Howard's Pr. (N. Y.), 164. Eminent Domain, 203, 218. v. Lansing, 16 Barbour (N. Y.), 68. Emi- nent Domain, 200, 239. Albert v. Bleecker Street, etc., R. R. Co., 2 Daly (N. Y.), 389. Injuries to Teams, etc., 477. Allien V. York Central R. R. Co., 26 N. Y., 102. Injuries to Passengers, 408. Alclen & Co. v. Carver, 13 Iowa, 253. Ware- housemen, 775. Aldricli V. Boston and Worcester R. R. Co., 100 Mass., 31. Wareliousemen, 774. V. Clieshire R. R. Co., 1 Foster (N. H.), 359. Eminent Domain, 235, 259. Aldridge v. Tuscumbia, etc., R. R. Co., 2 Stew- art and Porter (Ala.), 199. Eminent Do- main, 268. Alexander v. Atlantic, Tennessee and Ohio R. R. Co., 67 N. C, 198. Bonds of Railroad Companies, 55. Confederate Money, 129. V. Wilmington and Raleigh R. R. Co., 3 Strobhart's Law (So. Car.), 594. Taxation, 742. Alexandria, London and Hampshire R. R. Co. V. Burke, 22 Grattan (Va.), 254. Alger V. Mississippi and Missouri R. R. Co., 10 la., 268. Injuries to Domestic Animals, 346, 350. Allegheny County v. Cleveland and Pittsburgh R. R. Co., 51 Penn St., 228. Charter, 113 124. Jurisdiction, 489, 490, Allen V. Androscoggin R. R. Co., 60 Me., 494. Eminent Domain, 200. V. Montgomery R. R. Co., 11 Ala., K. S., 437. Mortgage, 423. Pleading, 579. Sub- scriptions by Individuals, 716, 728. V. Peoria and Bureau Valley R. R. Co., 44 111., 85. Taxation, 758. V. Sullivan R. R. Co., 32 N. H., 447. Mort. gage, 544. Allison v. Western North Carolina R. R. Co., 64 N. C, 383. Slaves, 617. Allyn V. Boston and Albany R. R. Co., 105 Mass., 77, Injuries to Persons on the Track, 450. V. Providence, Warren and Bristol R. B, Co., 4 R. I., 457. Eminent Domain, 260. Alton and Sangamon R. R. Co. v. Baugh, 14 111., 311. Eminent Domain, 326. V. Carpenter, 14 111., 190. Eminent Do- main, 220, 239. Alton Horse R. R. Co. v. Dietz, 50 111., 210. Street Railways, HiO. Alton, Mt. Carmel and Now Albany R. R. Co. V. . Northcott, 15 111., 49. Construction of Railways, 140. Altreuter v. Hudson River R. R. Co., 3 E. D. Smith (N. Y.), 151. Injuries to Persons on the Track, 454. Amboy, Lansing and Traverse Bay R. R. Co. V. Byerly, 13 Mich., 439. Reference, 603. American Contract Co. v. Cross, 8 Bush (Ky.), 473. Baggage, 33. American Central R. R. Co. v. Miles, 53 111., 174. Directors, 179. New Promise, 552. Usury, 770. American Railway-Prog Co. v. Haven, 101 Mass., 398. Stock and Stockholders, 628. Ames V. St. Paul and Pacific R. R. Co., 13 Minn., 413. Carriage of Merchandise, 90. Amey v. Allegheny City, 34 Howard, 364. Constitutional Law, 137. Subscriptions by Cities and Towns, 665. Subscriptions by Counties, 675. Amherst and Belchertown R. R. Co. v. Watson. 4 Gray (Mass.), 61. Subscriptions by Indi- viduals, 719. Amrine v. Kansas Pacific R. R. Co., 7 Kans., 178. Taxation, 787. Amsden v. Dubuque and Sioux City R. R. Co., 33 la., 388. Former Adjudication, 314. V. Dubuque and Sioux City R. R. Co., 13 la., 133. Evidence, 383. Negligence, 549. V. Dubuque and Sioux City R. R. Co., 28 la., 542. Contracts, 157. Amy V. The Supervisors, 11 Wallace, 136. Ju- risdiction, 488. Mandamus, 516. Anderson v. Evansville, Indianapolis and Cleveland R. R. Co., 14 Ind., 388. Pleading, 576. Subscriptions by Individuals, 704. V. Newcastle and Richmond R. R. Co., 13 Ind., 376. Subscriptions by Individuals, 727. V. Rochester, Lockport and Niagara Falls R. R. Co., 9 Howard's Pr. (N. Y.), 553. Nui- sance, 559. V. Rome, etc., R. R. Co., 54 N. Y., 334. Evidence, 279. V. Toledo, Waba.sh and Western R. R. Co., 33 la., 86. Baggage, 40. Andre v. Chicago and Northwestern R. R. Co., 30 la., 107. Arrest of Judgment, 26. Inju- ries to Domestic Animals, 354. Andrews v. Hart, 17 Wis., 297. Subscriptions by Individuals, 693. V. Hartford and New Haven R. R. Co., 34 Conn., 57. Injuries to Passengers, 434. Lim- itations, 509. V. Michigan Central R. R. Co., 99 Mas?., 534. Jurisdiction, 491. TABLE OP CASES. — ' V. Ohio and Mississippi R. R. Co., 14 Ind., 169. Evidence, 288. Subscriptions by Individuals, 705, 713, 717, 718. Androscoggin E. R. Co. v. Auburn Bank, 48 Me., 885. Pledge, 585. V. Richards, 41 Me., 283. Intoxicating Liquors, 483. Androscoggin "^nd Kennebec R. R. Co. v. An- droscoggin R. R. Co., 49 Me., 303. Injunc- tion, 334. V. Androscoggin R. R. Co., 53 Me., 417. Connecting Lines, 130, 133. V. Stevens, 38 Me., 113. Venue, 773. Angle V. Mississippi and Missouri R. R. Co , 18 la., 555. Carriage of Merchaad'se, 88, 89. Angle & Co. v. Mississippi and Missouri R. R. Co., '9 la., 487. Carriage of Merchandise, 71, 94, 106. Annapolis and Elk Ridge R. R. Co. v. Baltimore Insurance Co., 33 Md., 37. Insurance, 481. Anspach v. Mahanoy and Broad Mt. R. R. Co., 5 Philadelphia Rep. (Penn.), 491. Location, 513. Antisdel v. Chicago and Northwestern R. R. Co., 36 Wis., 145. Injuries to Domestic An- imals, 379. Applegate v. Ernst, 3 Bush (Ky.), 658. Taxa- tion, 748, 758. Armstrong v. Iowa Falls and Sioux City R. R. Co., 34 la., 503. Trespass, 764. V. N. Y. Central and Hudson River R. R. Co., 53 N. Y., 633. Armstrong County v. Brinton, 47 Penn. St., 367. Subscriptions by Counties, 684. Arnold v. Hudson River R. R. Co., 49 Barbour (N. Y.), 108. Eminent Domain, 333. V. Rock River Valley R. R. Co., 5 Duer (N. Y.), 307. Protest, 594. Aronson v. Cleveland and Pittsburgh R. R. Co., 70 Penn. St., 68. Pleading, 576.' Arrington v. Mobile and Ohio R. R. Co., 30 Miss., 470. Default, 176. V. Wilmington and Weldon R. R. Co., 6 Jones' Law (N. C), 68. Carriage of Mer- chandise, 107. Arthur v. Commercial and Railroad Bank of Vicksburg, 9 Smedes & Marshall (Miss.), 394. Assignment for Benefit of Creditors, 38. Corporate Powers, 165. Artz V. Chicago, Rook Island and Pacific R. R. Co., 34 la., 153. Injuries to Persons on the Track, 453, 456. Ashby V. Eastern R. R. Co., 5 Metcalf (Mass.), 368. Eminent Domain, 336. Ashtabula and New Lisbon R. R. Co. v. Smith, 15 Ohio St., 338. Pleading, 579. Subscrip- tions by Individuals, 693, 608. Ashuelot R. E. Co. v. Elliot, 53 N. H., 387. Mortgage, 540. Aspinwall v. Commissioners of the County of Daviess, 33 Howard, 364. Subscriptions by Counties, 683. V. Knox County, 31 Howard, 539. Sub- scriptions by Counties, 686. V. Ohio and Mississippi R. R. Co., 30 Ind., 493. Domicil, 185. — - V. Somes, 30 Ind., 498. Domicil, 185. Atclierson v. Troy and Boston R. R. Co., 6 Ab- bott's Pr., N. 8. (N. Y.), 339. Construction of Railways, 146. V. Troy and Boston B. R. Co., 1 Abbott's Ct. of Ap. Dec. (N. Y.), 13. Construction of Railways', 146. Atchison and Nebraska R. R. Co. v. Garside, 10 Kans., 553. Eminent Domain, 346. V. Troy, 10 Kans., 513. Injunction, 343. Atchison, City of v. Butcher, 3 Kans., 104. Subscriptions by Cities and Towns, 665, 671, 673. Subscriptions by Counties, 675. Atchison, Topeka and Santa Fe R. R. Co. v. Blackshire, 10 Kans., 477. Eminent Domain, 389. V. Weaver, 10 Kans., 344. Trespass, 765. Athens Branch of State Bank v. Marietta and Cincinnati R. R. Co., 3 Disney (Ohio), 435. Jurisdiction, 488. Atkinson v. Marietta and Cincinnati R. R. Co., 15 Ohio St., 31. Eminent Domain, 313. Lo- cation, 511. Mortgage, 539. Atlantic and Great Western R. R. Co. v. Camp, bell, 4 Ohio St., 583. Eminent Domain, 358. Evidence, 385. v. Dunn, 19 Ohio St., 163. Injuries to Passengers, 437. V. Koblentz, 31 Ohio St., 335. Eminent Domain, 338. Atlantic and Gulf R. R. Co. v. Mann, 43 Ga., 300. Eminent Domain, 349. Atlanta and La Grange R. R. Co. v. Hodnett, 39 Ga., 461. Evidence, 379. Atlantic and North Carolina R. R. Co. v. Cowles, 69 N. C, 59. Treasurer, 763. Atlantic and Ohio R. R. Co. v. Sullivant, 5 Ohio St., 376. Eminent Domain, 198, 308. Or- ganization of Corporation, 563. Atlantic and Pacific R. E. Co. v. Cleino, 3 Dil- lon (U. 8. C. C), 175. Taxation, 747. Atlantic and St. Lawrence R. R. Co. v. Cum- berland County Commissioners, 38 Me., 113. Eminent Domain, 309,, 800 TABLE OF CA8E3, V. County Commissioners, 51 Me., 36. Eminent Domain, 194. Atlanta and "West Point R. R. Co. v. Hodnett, 36 Ga., 669. Subscriptions by Individuals, 706. V. Hopson, 33 Ga., 116. Equity, 274. V. Bpeer, 33 Ga., 550. Specific Perform- ance, 619. Attorney General v. Boston and Maine R. R. Co., 109 Mass., 99. Stock and Stockholders, 638. V. Morris and Essex R. R. Co., 4 C. E. Green's Ch. (N. J.), 386. Eminent Domain, 240, 241, 343. Highways, 339. Streets, 641. V. New Jersey R. R. Co., 2 Green's Ch. (N. J.), 136. Nuisance, 557. V. New York and Long Branch R. R. Co., 9 C. E. Green's Ch. (N. J.), 59. ' V. New York and Long Branch R. R. Co., 9 C. E. Green's Ch. (N. J.), 49. Rehearing, 003. V. Old Colony and Newport R. R. Co., 13 Allen (Mass.), 404. Streets, 641. v. Patterson and Hudson River R. R. Co., 1 Stockton's Ch. (N. J.), 526. V. Petersburg and Roanoke R. R. Co., 6 Iredell's Law (N. C), 456. Aubuchon v. St. Louis and Iron Mountain R. R. Co., 53 Mo., 533. Injuries to Domestic Animals, 356. Audenried v. Philadelphia and Reading R. R. Co., 68 Penn. St., 370. Discrimination, 183. Injunction, 343. Auditor of State v. Atchison, Topeka and Santa Fe R. R. Co., 6 Kans., 500. Taxation, 736. Augusta and Savannah R. R. Co. v. McEl- murry, 24 Ga., 75. Injuries to Persons on the Track, 456. Negligence, 548. Augusta Bank v. Augusta, 49 Me., 507. Sub- scriptions by Counties, 676. Aurora Branch R. R. Co. v. Grimes, 13 111., 585. Injuries to Domestic Animals, 343. Austin V. Belleville and Illinoistown R. R. Co., 19 111., 310. Eminent Domain, 203. V. New York and Erie R. R. Co., 1 Dutcher (N. J.), 381. Foreign Corporations, 313. Injuries to Persons on the Track, 474. V. Rutland R. R. Co., 45 Vt., 315. Eject- ment, 186. Lakes, 496. Aycock V. Wilmington and Weldon R. R. Co., 6 Jones' Law (N. C), 331. Directors, 183^ Injuries to Domestic Animals, 348. Aycriggs v. New York and Erie R. R. Co., 1 Vroom (N. J.), 460. Ferries, 301. Aylesworth v. Chicago, Rock Island and Pa- cific R. R. Co., 30 la., 459. Injuries to Do- mestic Animals, 349, 373. Ayres v. Lawrence, 63 Barbour (N. Y.), 454. Certiorari, 113. Subscriptions by Cities and Towns, 669. V. Morris and Essex R. R. Co., 5 Dutcher (N. J.), 393. Carriage of Merchandise, 100, 109. V. Western R. R. Co., 45 N. Y., 360. Fed- eral Courts, 297. B. Babcock v. Lake Shore and Michigan South- ern R. R. Co., 49 N. Y., 491. Carriage of Merchandise, 75. V. Lake Shore and Michigan Southern R. R. Co., 43 Howard's Pr. (N. Y.), 317. Car- riage of Merchandise, 75. V. Western R. R. Co., 9 Metcalf (Mass.), 553. Right of Way, 607. Bailey v. Hannibal and St. Joseph R. R. Co., 1 Dillon (8 U. S. C. C), 174. Stock anl Stockholders, 637. V. Hudson River R. R. Co., 49 N. Y., 70. Bill of Lading, 51. V. New Haven and Northampton R. R. Co., 107 Mass., 496. Injuries to Persons on the Track, 471. V. Philadelphia, Wilmington and Balti- more R. R. Co., 4 Harrington (Del.), 389. Bridges, 59. V. Railroad Co., 17 Wallace, 96. Stock and Stockholders, 637. V. Greenville, etc., R. R. Co., 3 So. Car. N. 8., 312. Slaves, 617. V. Western Vermont R. R. Co., 18 Barbour (N. Y.), 112. Contracts, 149. Baird v. Shore Line R. R. Co., 6 Blatchford (U S. C. C.),276. Bridges, 58. Baker v. Evansville, Indianapolis and Cleve- land R. R. Co., 14 Ind., 363. Pleading, 576. Subscriptions by Individuals, 704. V. Gee, 1 Wallace, 333. Land Grants, 497. V. Hannibal and St. Joseph R. R. Co., 36 Mo., 543. Eminent Domain, 259. V. Louisville and Nashville R. R. Co., 4 Bush (Ky.), 619. Jurisdiction, 492. V. Long Island R. R. Co., 1 Howard's Pr (N. Y.), 214. Ejectment, 186. V. Michigan Southern and Northern Indi- ana R. R. Co., 42 111., 73. Carriage of Mer- chandise, 74. V. New Orleans, Opelousas and Great TABLE OF CASES. 801 Western R. R. Co., 10 La. An., 110. Garnish- ment, 317. Bakewell v. Police Jury, 20 La. An., 334. Tax- ation, 748. Balch V. New York and Oswego R. R. Co., 46 N. Y., 531. Construction of Railways, 146. Balcom v. Dubuque and Sioux City R. R. Co., 31 la., 1X)3. Injuries to Domestic Animals, 353. Baldwin v. Mississippi and Missouri R. R. Co., 5 la., 518. Venue, 773. V. Western R. R, Co., 4 Gray (Mass.), 333. Damages, 173. Injuries to Persons on tlie Ti-ack, 471. Ball V. Syracuse R. R. Co., 1 Code Rep. N. S. (N. Y.), 410. Practice, 586. Ballinger v. New York Central R. R. Co., 38 N. Y., 43. Watercourses, 778. Ballentine v. North Missouri R. R. Co., 40 Mo., 491. Cari'iage of Live Stock, 65. Carriage of Merchandise, 90. Ballou V. Parnum, 9 Allen (Mass.), 47. Injur- ies to Persons on the Track, 476. Baltimore v. Baltimore R. R. Co., 10 Wallace, 543. Taxation, 744. V. Baltimore and Ohio R. R. Co., 31 Md., 50. Corporate Powers, 165. V. Connellsville, etc.j R. R. Co., 6 Phila- delphia Rep. (Penn.), 190. Corporate Pow- ers, 164. Baltimore R. R Co. v. Sewell, 35 Md., 338. Stock and Stockholders, 639, 631. V. Sewell, 37 Md., 443. Judgment, 485. Baltimore and Havre de Grace Turnpike Co. V. Northern Central R. R. Co., 15 Md., 193. Certiorari, 111. V. Union R. R. Co., 35 Md., 234. Turn- pikes, 770. Baltimore and Ohio R. R. Co. v. Bahrs, 38 Md., 647. Injuries to Persons on the Track, 454. V. Blocher, 37 Md., 377. Injuries to Pas- sengers, 418. Tickets, 761. V. Boteler, 38 Md., 568. Bridges, 57. V. Brady, 33 Md., 338. Carriage of Live Stock, 63. V. Breinig, 25 Md., 378. Injuries to Per- sons on the Track, 458. V. Christie, 5 W. Va., 335. Baggage, 41. V. Clark, 19 Md., 509. Insolvency, 478. — — V. Com'rs of Belmont County, 19 Ohio St., 589. Streets, 643. V. Dorsey, 37 Md., 19. Fires, 308. V. Dougherty, 36 Md., 366. V. Fitzpatrick, 36 Md., 619. Attachment, 31. 51 V. Fitzpatrick, 35 Md., 33. Injuries to Per- sons on the Track, 448, 460. Negligence, 547. V. Fryer, 30 Md., 47. Injuries to Persons on the Track, 458. V. Gallahue, 13 Grattan (Va.), 655. d-ar- nishment, 317, 318, 319. V. Gallahue, 14 Grattan (Va.), 563. Attach- ment, 39. V. Gettle, 3 W. Va., 376. Injuries to Em- ployes, 401. V. Glenn, 38 Md., 287. Charter, 119. V. Green, 35 Md., 73. Carriage of Mer- chandise, 73. V. Hoge, 34 Penn. St., 314. Fraud, 315. V. Laffertys, 14 Grattan (Va.), 478. V. Laflferty, 3 W. Va., 104. Construction of Railways, 143, 143. V. Lamborn, 13 Md., 257. Injuries to Do- mestic Animals, 350, 373. V. Marshall County, 3 W. Va., 319. Tax- ation, 749, 752. V. McCullough, 13 Grattan (Va.), 595. Contracts, 150. V. Morehead, 5 W. Va., 293. Carriage of Merchandise, 104. V. Polly, 14 Grattan (Va.), 447. V. Rathbone, 1 W. Va., 87. Carriage of Merchandise, 76. V. Resley, 7 Md., 297. Appeals, 22. Con- tracts, 156. V. Resley, 14 Md., 434. V. Ritchie, 31 Md., 191. Pleading, 578. V. Schumaker, 39 Md., 168. Carriage of Merchandise, 94. V. Shipley, 31 Md., 368. Injuries to Per- sons on the Track, 463. Negligence, 547. V. Skeels, 3 W. Va., 556. V. Strauss, 37 Md., 237. Eminent Domain, 242. V. State, 36 Md., 519. Legal Tender Act, 505. Subscriptions by States, 730. V. State, 36 Md., 366. Injuries to Persons on the Track, 468. V. State, 33 Md., 542. Injuries to employis-, 397, 399, 403. V. State, 29 Md., 460. Injuries to Persons on the Track, 476. V. State, 30 Md., 47. Injuries to Persons on the Track, 463. V. State, 39 Md., 353. Injuries to Persons on the ti-ack, 454. V. State, 34 Md., 371. Injuries to employes, 399. V, Thompson, 10 Md., 76. Injuries to Do- mestic Animals, 381. 802 TABLE OF CASES. V. Van Ness, 4 Cranch (U. S. C. C), 595. Eminent Domain, 368. V. "WTieeler, 18 Md., 373. Garnishment, 318. V. Wlieeling, 3 W. Va., 372. Taxation, 749-752. V. Wheeling, 13 Grattan (Va.), 40. Balti- more and Ohio Eailroad, 45. Injunction, 334, 340, 342. V. Wilson, 2 W. Va., 528. Garnishment, 320. V. Worthington, 21 Md., 275. Injuries to Passengers, 487, 443. Baltimore and Potomac R. R. Co. v. Magruder, 34 Md., 79. Watercourses, 778. Baltimore and Susquehanna R. R. Co. v. Compton, 3 Gill (Md.), 20. Eminent Do- main, 200. V. Faunce, 6 Gill (Md.), 68. Payment, 570. V. Musselman, 2 Grant's Cases (Penn.), 348. Consolidation, 136. V. Nesbit, 10 Howard, 395. Charter, 116. V. Passmore, 6 Gill (Md.), 68. V. Woodruff, 4 Md., 242. Fires, 305, 307, 308. Baltimore City R. R. Co. v. Wilkinson, 30 Md., 224. Street Railways, 656. Bancroft v. Boston and Worcester R. R. Co., 97 Mass., 275. Injuries to Persons on the Track. 470. V. Boston and Worcester R. R. Co., 11 Al- len (Mass.), 34. Injuries to Persons gener- ally, 445. Banet v. Alton and Sangamon R. R. Co., 13 111., 504. Subscriptions by Individuals, 706. Bangor and Piscataquis R. R. Co. v. Chamber- lain, 60 Me., 285. Eminent Domain, SOU. V. Harris, 31 Me., 533. Taxation, 749. V. McComb, 60 Me., 390. Eminent Do- main, 319, 226, 259. Bangor, Oldtown and Milford R. R. Co. v. Smith, 47 Me., 34. Charter, 115. Side Track, 616. V. Smith, 49 Me., 9. Highway, 329. V. Smith, 47 Me., 34. Charter, 114. High- way, 837. V. Smith, 47 Me., 35. Evidence, 278. Bangs V. Blue Ridge R. R. Co., 45 Howard's Pr. (N. Y.), 169. Bank v. Carrollton R. R. Co., 11 Wallace, 634. Partnership, 565. Bank of Bellows Falls v. Rutland and Burling- ton R. R. Co., 28 Vt., 470. Injunction, 341. Jurisdiction, 488. Bank of Commerce v. Rutland and Washing- ton R. R. Co., 10 Howard's Pr. (N. T.), 1. Jurisdiction, 490. Bank of Middlebury v. Rutland and Washing. ton R. R. Co., 30 Vt, 159. Constable, 136. Directors, 183. Seal, 614. Bank of Newberry v. Greenville and Colum- bia R. R. Co., 9 Richardson's Law (So. Car.), 495. Pleading, 574. Bank of Newbury v. Rand, 38 N. H., 166. Bills and Notes, 46. Bank of Old Dominion v. Dubuque and Pa- cific R. R. Co., 8 la., 377. Trust, 767. Bank of Rochester v. Jones, 4 N. T., 497. Bill of Lading, 51. Bank of Rome v. Village of Rome, 37 Barbour (N. y.), 65. Subscriptions by Cities and Towns, 671. V. Village of Rome, 19 N. Y., 20. Sub- scriptions by Cities and.Towns, 671, 673. Bankard v. Baltimore and Ohio R. R. Co., 34 Md., 197. Carriage of Live Stock, 63. Banning v. Sibley, 3 Minn., 389. Assignment for Benefit of Creditors, 27. Attachment, 39. Garnishment, 320. Bannon v. Baltimore and Ohio R. R. Co., 24 Md., 109. Injuries to Persons on the Track, 462, 463. Bansemer v. Toledo and Wabash R. R. Co., 25 Ind., 435. Carriage of Merchandise, 90, 100. Barber v. West Stockbridge R. R. Co., 4 Hill (N. Y.), 547. Costs, 167. Barclay R. R. Co. v. Ingham, 36 Penn. St., 195. Eminent Domain, 233. Bardstown and Louisville R. R. Co. v. Met- calfe, 4 Metcalfe (Ky.), 199. Mortgage, 524, 525, 535, 536. Barker v. Baltimore and Ohio R. R. Co., 23 Ohio St., 45. Insurance, 483. V. Belknap's Estate and Vermont Cen- tral R. R. Co., 39 Vt., 168. Arbhration, 34. Equity, 275. V. Coflin, 31 Barbour (N. Y.), 556. Tick- ets, 763. V. Hudson River R. R. Co., 4 Daly (N. Y.), 274. Injuries to Persons on the Track, 455. V. New York Central R. R. Co., 34 N. Y., 599. Evidence, 387, 291. Passengers, 567. v. Troy and Rutland R. R. Co., 37 Vt., 766. Construction of Railways, 142, 143, 147. Barksdull v. New Orleans and CaiTollton R. R. Co., 23 La. An., 180. Street Railways, 653. Barlow v. Chicago, Rock Island and Pacific R. R. Co., 29 la., 276. Eminent Domain, 213. Right of Way, 607, 609. TABLE OF CASES., 803 V. McKinley, 24 la., 69. Right of Way, 608. Barnard v. Vermont and Massachusetts R. R. Co., 7 Allen (Mass.), 512. Stock and Stock- holders, 634. Barnes v. South Side R. R. Co., 2 Abbott's Pr. N. S. (N. Y.), 415. Injunction, 337. V. The Railroad Companies, 7 Wallace 294. Taxation, 745. Barney v. New Albany and Salem R. R. Co., 1 Handy (Ohio), 571. Process, 589. Barnum v. Baltimore and Ohio R. R. Co., 5 W. Va., 10. Injuries to Passengers, 418. Barrett v. County Court of Schuyler County, 44 Mo., 197. Subscriptions by Counties, 683, 686. V. Maiden and Melrose R. R. Co., 3 Allen (Mass), 101. Dogs, 184. V. Third Avenue R. R. Co., 1 Sweeney (N. Y.), 568. Street Railways, 654. V. Third Avenue R. R. Co., 45 N. Y., 638. Attachment, 31. Street Railways, 653. V. Third Avenue R. R. Co., 8 Abbott's Pr., N. S. (N. Y.), 205. Street Railways, 654. Barrington v. Mississippi Central R. R. Co., 32 Miss., 370. Subscriptions by Individuals, 713. Barron v. Eldredge, 100 Mass., 455. ' Carriage of Merchandise, 102. v. Illinois Central R. R. Co., 1 BisselJ (U. S.'C. C), 453. Injuries to Passengers, 434, 436. Injuries to Persons G-ii erally, 444. V. Illinois Central R. R. Co., 1 Bissell (U. S. C. C), 413. Injuries to Passengers, 424, 425. Barstow v. City R. R. Co., 42 Cal., 465. Di- rectors, 179. Bartee v. Houston and Texas Central R. R. Co., 36 Tex., 648. 1871. Jurisdiction, 492. Barter »fc Co. v. Whstler, 49 N. H., 9. '.C riage of Merchandise, 73, 75. Mortgage, 540. Bartholomew v. St. Louis, Jacksonville and Chicago R. R. Co., 53 111., 227. Baggage, 43. Bartholomew County v. Bright, 18 Ind., 93. Subscriptions by Counties, 676. Bartlett v. Dubuque and Sioux City R. R. Co., 20 la., 188. Injuries to Domestic Animals, 373. Bartlette v. Norwich and Worcester R. R. Co., 38 Conn., 560. Connecting Lines, 131. Barton v. St. Louis and Iron Mountain R. R. Co., 52 Mo., 253. Negligence, 548. V. New York Central R. R. Co., 1 N. Y. Sup. Ct., 297. Injuries to Persons on the Track, 456. Bass V. Chicago, Burlington and Quincy R. R. Co., 28 111., 9. Fires, 303. Bates V. Androscoggin and Kennebec R. R. Co., 49 Me., 491. Stock and stockholders, 637. V. Boston and N. Y. Central R. R. Co., 10 Allen (Mass.), 251. Attachment, 29. Seal, 614. V. Chicago and Northwestern R. R. Co., 19 Iowa, 360. Jurisdiction, 491. V. Illinois Central R. R. Co., 1 Black, 201. Lakes, 496. Watercourses, 778. V. Illinois Central R. R. Co., 1 Black, 304. V. New Orleans, Jackson and Great Northern R. R. Co., 4 Abbott's Pr. (N. Y.), 72. V. New Orleans, Jackson and Great Northern R. R. C, 13 Howard's Pr. (N. Y), 516. Bath, City of v. Miller, 51 Me., 341. Mort- gage, 522. Battle V. Wilmiugton and Weldon R. R. Co., 66 N. C, 343. Injuries to Domestic Animals, 843,378. Baucus V. Albany Northern R. R. Co., 8 How- ard's Pr. (N. y"), 70. Highway, 336. Baugh V. McDaniel, 43 6a., 641. State Rail- ways, 631. Baulee v. New York and Harlem R. R. Co., 03 Barbour (N. Y.), 633. Injuries to Employes, 395. V. New York and Harlem R. R. Co., 5 Lansing (N. Y.), 486. Injuries to Employes, 395. V. New York and Harlem R. R. Co., 13 Abbott's Pr., N. S. (N. Y.), 310. Injuries to Employgs, 384. V. New York and Harlem R. R. Co., 53 N. Y., 633. Injuries to Employgs, 384. Bauman v. New York Central R. R. Co., 10 Howard's Pr. (N. Y.), 318. Appeals, 20. Bavington v. Pittsburgh and Steubenvllle R. R. Co., 34 Penn. St., 358. Pleading, 579, 582. Subscriptions by Individuals, 696, 714, 719. Writ of Error, 784. Baxter v. Boston and Worcester R. R. Co.,. 103 Mass., 383. Fences, 299. Injuries to Do- mestic Animals, 362. V. Second Avenue R. R. Co., 30 Howard's Pr. )N. Y.), 219. Street Railways, 653. V. Second Avenue R. R. Co., 3 Robertson (N. Y.), 510. Street Railways, 653. V. Spuyten Duyvil R. R. Co., 11 Abbott's Pr., N. S. (N. Y.), 178. Highway, 336. V. Spuyten Duyvil and Port Morris R. R. Oo., 61 Barbour (N. Y.), 438. Eminent Do- main, 351. V. Troy and Boston R. R. Co., 41 N. Y.. 804 TABLE OF CASES. 503. Injuries to Persons on the Track, 457. Bay City v. State Treasurer, 23 Mich., 499. Mandamus, 516. Subscriptions by Cities and Towns, 664. Subscriptions by Coun- ties, 678. Bay City and East Saginaw E. K. Co. v. Aus- tin, 31 Midi., 390. Damages, 170. Fences, 299. Beacli V. Raritan and Delaware Bay R. R. Co., 37 N. Y., 457. Contracts, 157. V. Smith, 28 Barbour (N. Y.), 354. Sub- scriptions by Individuals, 711. V. Same, 3J N. Y., 116. Subscriptions by Individuals, 711. Beadles v. Bless., 27 111., 330. "Wager, 774. Beadleston v. Knapp, 13 Abbott's Pr., N. S. (N. Y.), 385. Mortgage, 540. Beale v. Railroad Co., 1 Dillon (U. S. C. C), 568. Damages, 172. Bean v. Atlantic and St. Lawrence R. R. Co., 08 Me., 82. Fires, 807. Insurance, 481. Beardsley v. N. J. West Line R. E. Co., 6 Vroom. (N. J.), 479. Taxation, 744. — - V. Ontario Bank, 31 Barbour (N. Y.), 619- Mortgage, 528. V. Smith, 16 Conn., 368. Subscriptions by counties, 675. Beattie V. Grand Trunk R. R. Co.,.41 Vt., 275. Evidence, 283. Beaver County v. Armstrong, 44 Penn. St., 63. Mortgage, 530. Beckwith v. New York Central R. R. Co., 64 Barbour (N. Y), 299. Evidence, 383. v. Trustees of Hartford, Providence and Fishkill R. R. Co., 29 Conn., 268. Mortgage, 530. Bedford R. R. Co. v. Bowser. 48 Penn. St., 29. Subscriptions by Individuals, 695, 728, 726. Bedford v. Hannibal and St. Joseph R. R. Co, 46 Mo., 456. Fires, 302. Bedwell v. Long Island R. R. Co., 44 N. Y., 367. Fires, 304. Beebe v. Ayres, 28 Barbour (N. Y.), 275. Tick- ets, 761. Beecher v. Grand Trunk R. R. Co., 43 Vt., 133, Agency, 14. Beekman v. Saratoga and Schenectady R. R, Co., 3 Paige's Ch. (N. Y.), 45. Eminent Do main, 268. Rates, 596, 598. Beene v. Cahawba and Marion R. R. Co., 3 Ala. N. S., 660. Subscriptions by Individu- als. 724. Beers v. Housatonic R. R. Co., 19 Conn., 566. Injuries to Domestic Animals, 345, 347. Beisiegel v. New York Central R. R. Co., 40 N. Y., 9. Damages, 173. Injuries to Per- sons on the Track,, 449, 453. V. New York Central R. B. Co., 33 Bar- bour (N. Y.), 429. Injuries to Persons on the Track, 453. V. New York Central R. R. Co., 31 How- ard's Pr. (N. Y.), 181. Injuries to Persons on the Track, 453. V. New York Central R. R. Co., 34 N. Y., 632. Injuries to Persons on the Track, 453. V. New York Central R. R. Co., 14 Ab- bott's Pr. N. S. (N. Y.), 29. Injui-ies to Per- sons on the Track, 453, 460. Belden v. New York and Harlem R. R. Co., 15 Howard's Pr. (N. Y.), 17. Process, 591. Belfast and Moosehead Lake R. R. Co. v. Brooks, 60 Me., 568. Stock and Stockhold- ers, 635. Subscriptions by Cities and Towns, 667, 669. V. Moore, 60 Me., 561. Subscriptions by Individuals, 691. Belger v. Dinsmore, 51 N. Y., 166. Express Companies, 295. Belknap v. Boston and Maine R. R. Co., 48 N. H., 388. Costs, 166. V. Boston and Maine R. R. Co., 49 N. H., 358. Injuries to Passengers, 428. New Trials, 554. Belknap's Adm'rs v. Northern R. R. Co., 25 Vt., 715. Bell V. Louisville and Nashville R. R. Co., 1 Bush (Ky.), 404. War of 1861, 776. V. Mobile and Ohio R. R. Co., 4 Wallace, 598. Subscriptions by Counties, 689. Plead- ing, 583. V. Ohio and Pennsylvania R. R. Co., 1 Grant's Cases (Penn.), 105. V. Ohio and Pennsylvania R. R. Co., 25 Penn. St., 161. v. Tombigbee R. R. Co., 4 Smedes and Marshall (Miss.), 549. Delivery Bond, 176. Jurisdiction 487. Bellefontaine R. R. Co. v. Hunter, 33 Ind., 335. Evidence, 281. Injury to Persons on the Track, 453, 456. V. Reed, 33 Ind., 476. Injuries to Domes- tic Animals, 369. V. Suman, 39 Ind., 40. Injuries to Domestic Animals, 357. Bellefontaine and Indiana R. R. Co. v. Bailey, 11 Ohio St., 333. Injuries to Domestic Animals, 363. V. Fifer, 11 Ohio St., 339. Injuries to Domestic Animals, 362. TABLE OF CASES. 805 ■ V. Snyder, 18 Ohio St., 399. Injuries to Persons on the Track, 464. V. Schruyhart, 10 Ohio St., 116. Injuries to Domestic Animals, 381. Belleville and Illinois Town R. R. Co. v. Gregory, 15 111., 20. Charter, 120. Constitu- tional Law, 139. Bellinger v. New York Central R. R. Co., 23 N. T., 42. Belmont v. Erie R. R. Co., 6 Abbott's Pr., N. S. (N. Y.), 442. Receiver, 601. V. Erie R. R. Co., 52, Barbour, (N. Y.), 637. Receiver, 601. Stock and Stockhold- ers, 627. Visitoral Powers, 774. Beloit V. Morgan, 7 Wallace, 619. Subscrip- tions by Cities and Towns, 665, 674. Beloit and Madison R. R. Co. v. Palmei", 19 Wis., 574. Belvidere v. Warren R. R. Co., 5 Vroom (N. J.), 193. Taxation, 758. Bement v. Plattsburgh and Montreal R. R. Co., 47 Barbour (N. Y.), 104. Mortgage, 527. Bemis v. Connecticut and Passumpsic Rivers R. R. Co., 42 Vt, 375. Fences, 800. Injuries to Domestic Animals, 351. Benbow v. Iowa City, 7 Wallace, 813. Man- damus, 517. V. North Carolina R. R. Co., Phillips' Law (N. C), 431. Carriage of Merchandise, 108. Benedict v. Danbury and Norwalk R. R. Co., 34 Conn., 320. Mechanic's Lien, 531. V. Heineberg, 43 ■ Vt., 231. Execution, 293. Benham v. New York Central R. R. Co., 13 Howard's Pr. (N. Y.), 199. Evidence, 284. Benjamin v. Elmira, Jefferson and Canan- daigua R. R. Co., 54 N. Y., 675. Mortgage, 537. Benjamin v. Elmira, etc., R. R. Co., 54 N. Y., 675. Mortgage, 537. V. Elmira, Jelforson and Canandaigua R. R. Co., 49 Barbour (N. Y.), 441. Mortgage, 534, 535. V. Evansville, Indianapolis, etc., R. R. Co., 38 Ind., 416. Judges, 484. Bennehan v. Webb, 6 Iredell's Law, (N. C), 57. Bonds of Railway Companies, 56. Bennet v. Camden and Amboy R. R. Co., 2 Green's Law (N. J.), 145. Eminent Domain, 193. Bennett v. Chicago and Northwestern R. R. Co., 19 Wis., 145. Injuries to Domestic Animals, 355, 379. V. Railroad Co., 7 Philadelphia Rep. (Penn.), 11. Tickets, 759. Benson v. Mayor of Albany, 34 Barbour (N. Y.), 348. Subscriptions by counties, 676. Subscriptions by Cities and Towns, 663. V. New Jersey R. R. Co., 9 Boswprth (N. Y.), 413. Passengers, 566. Bergert and Bro. v. Davenport City R. R. Co., 34 Iowa, 571. New Trials, 553. Berks Co. v. Railroad, 6 Penn. St., 70. Berliner v. Town of Waterloo, 14 Wis., 378. Subscriptions by Cities and Towns, 667. Bernhard v. Rensselaer and Saratoga R. R. Co., 1 Abbott's Ct. of Ap. Dec. (N. Y.), 131. Negligence, 548. V. Rensselaer and Saratoga R. R. Co., 33 Howard's Pr. (N. Y.), 166. Injuries to Per- sons on the Track, 463. V. Rensselaer and Saratoga R. R. C, 33 Barbour (N. Y.), 165. Injuries to Persons on the track, 462. V. Rensselaer and Saratoga R. R. Co., 18 Howard's Pr. (N. Y.), 427. Injuries to Per- sons on the Track, 463. V. Rensselaer and Saratoga R. R. Co., 19 Howard's Pr. (N. Y.), 199. Injuries to Per. sons on the Track, 452. Berry v. Montgomery and West Point R. R. Co., 39 Ga., 554. Jurisdiction, 488. Bethje v. Houston and Texas Central R. R. Co., 26 Tex., 604. Injuries to Domestic Ani- mals, 346. Betts V. Farmers' Loan and Trust Co., 21 Wis., 80. Carriage of Live Stock, 62, 64. V. Harrisburgh R. R. Co., 3 Penn. Law Jour. Rep., 524. Sequestration, 614. Bickford v. Boston and Lowell R. R. Co., 21 Pickering (Mass.), 109. Garnishment, 319. Bieseigel v. New York Central R. R. Co., 33 Barbour (N. Y.), 439. Bigelow V. Mississippi Central R. R. Co., 3 Head (Tenn.), 634. Eminent Domain, 194. V. North Missouri R. R. Co., 48 Mo., 510. Injuries to Domestic Animals, 374. V. West Wisconsin R. R. Co., 27 Wis., 478. Eminent Domain, 220. Practice, 587. In- structions, 479. V. West Wisconsin R. R. Co., 27 Wis., 478. Constitutional Law, 137. Eminent Domain, 316. V. York and Cumberland R. R. Co., 37 Me., 330. Garnishment, 318. Bill V. New Albany, etc., R. R. Co., 2 Bissell (U. S. C. C), 390. Mortgage, 534. Bills V. New York Central R. R. Co., 53 N. Y., 608. Bird V. Wilmington and Manchester R. R. Co. 806 TABLE OF CASES. 8 Richardson's Eq. (So. Car.), 46. Ware- housemen, 774. Bish V. Johnson, 31 Ind., 299. Subscriptions by Individuals, 710. Bishop V. Brainerd, 28 Conn., 289. Charter, 114. Consolidation, 135. Bissell V. City of Jeffersonville, 24 Howard, 387. Subscriptions by Cities and Towns, 661, 668. Subscriptions by Counties, 675. V. Michigan Southern and Northern Ind- iana R. R. Co., 33 N. Y., 358. Corporate Powers, 164. Injuries to Passengers, 436. V. New York Central R. R. Co., 29 Bar- bour (N. Y.), 002. V. New York Central R. R. Co., 26 Bar- bour (N. Y.), 630. Streets, 640. V. New York Central R. R. Co., 35 N. Y., 443. Injuries to passengers, 430. v. New York Central R. R. Co., 23 N. Y, 61. Streets, 639, 640. Bittenbender v. Suabury and Erie R. R. Co., 40 Penn. St., 369. Assignment for Benefit of Creditors, 27. .Black V. Camlen and Auiboy R. R. Co., 45 Barbour (N. Y.), 40. Carriage of Live Stock, 64. Dam.igee, l';3. V. Carrollton R. R. Co., 10 La. An., 33. 1 1 juries to Passengers, 412. Parent and Child, 562. V. Chicago and Northwestern R. R. Co., 18 Wis., 308. Eminent Domain, 306. V. Delaware and Raritan Canal Co., 7 C. E. Green's Ch. (N. J.), 130. Consolidation, 135. Leate, 5)3. T. Philadelphia and Reading R. R. Co., 58 Penn. St., 349. Charter, 135. Eminent Domain, 349. V. Shreve, 3 leasley's Ch. (N. J.), 455. Evidence, 389. v. Sixth Avenue R. R. Co., 1 Daly (N. Y.), 536. Taxation, 744. Black River and Utica R. R. Co. v. Barjiard, 31 Barbour (N. Y.), 358. Subscriptions by Individuals, 714. V. Clarke, 35 N. Y., 308. Subscriptions by Individuals, 693, 713. Blackstock v. New York and Erie R. R. Co., 1 Bosworth (N. Y.), 77. Can-iage of Mer- chandise, 83. V. New York and Erie R. R. Co., 30 N. Y., 48. Carriage of Merchandise, 83. Blade v. Chicago, St. Paul and Pond du Lac R. R. Co., 10 Wis., 4. Receipt, 599. B air v, Corby, 39 Mo., 480. Construction of Railways, 147. V. Milwaukee and Prairie du Chien R. R. Co., 30 Wis., 254, 262. Injuries to Domestic Animals, 379, 433. Injuries to Passengers, 488. Blaisdell v. Portsmouth, Great Falls and Con- way R. R. Co., 51 N. H., 483. Eminent Do- main, 269. Blake v. Indianapolis and St. Louis R. R. Co., 28 Ind., 323. Subscriptions by Individuals, 703. V. Michigan Southern and Northern Indi- ana R. R. Co., 17 Howard's Pr. (N. Y.), 328. Costs, 166. V. Portsmouth and Concord R. R. Co., 39 N. H., 435. Dissolution, 184. Statutes, 635. — - V. Rich, 34 N. H., 383. Eminent Domain, 363. V. Winona and St. Peter R. R. Co., 19 Minn., 418. Rates, 596. Blanchard v. Pitchburg R. R. Co., 8 Cushing (Mass.), 280. Costs, 168. Blankenship v. North Missouri R. R. Co., 48 Mo., 376. Bills of Exceptions, 49, 50. Blatchford v. New York and New Haven R. R. Co., 7 Abbott's Pr. (N. Y.), 322. Injunc- tion. 334. V. New York and New Haven R. R. Co., 5 Abbott's Pr. (N. Y.), 376. Injunction, 334. Bliss V. Conhecticut and Passumpsic Rivers R. R. Co., 24 Vt., 428. Process, 591. V. Connecticut and Passumpsic Rivers R. R. Co., 34 Vt., 434. Insanity, 478. Bliven v. Hudson River R. R. Co., 36 N. Y., 403. Carriage of Merchandise, 99. Blodgett V. Utica and Black River R. R. Co., 64 Barbour (N. Y.), 580. Blood V. Nashua and Lowell R. R. Co., 2 Gray (Mass.), 137. Water Courses, 777. Bloodgood V. Erie R. R. Co., 51 Barbour (N. Y.), 373. Injunction, 340. V. Mohawk and Hudson R. R. Co., 14 Wendell (N. Y.), 52. Eminent Domain, 308, 370. Surveys, 736. V. Mohawk and Hudson R. R. Co., 18 Wendell (N. Y.), 9. Eminent Domain, 308, 270. Surveys, 736. Blossburg and Corning R. R. Co. v. Tioga R. R. Co., 1 Abbott's Ct. of Ap. Dec. (N. Y.), 149. Contracts, 154. V. Tioga R. R. Co., 5 Blatchford (TJ. S. C. C), 387. Limitations, 508. V. Tioga R. R. Co., 1 Keyes (N. Y.), 486. Contracts, 154. Evidence, 289. Blossom V. Milwaukee and Chicago R. R. Co., 1 Wallace, 655. Mortgage, 533. TABLE OF CA.SES. 807 V. Milwaukee and Chicago B. R. Co., 3 Wallace, 197. Mortgage, 538. Blumenthall v. Brainerd, 38 Vt., 402. Cai'riage of Mei-cliandise, 77, 83. Receiver, 601. Board of Commissioners of Pilots v. Erie R. R. Co., 5 Robertson (N. Y.), 366. Wharves, 781. Board of Supervisors of Iowa County v. Min- eral Point R. R. Co., 24 Wis., 93. Mortgage, 531, 536. Boardman v. Chicago and Northwestern R. R. Co., 33 la., 391. New Trials, 554. Boggs V. Chicago and Northwestern R. R. Co., 39 la., 577. Injuries to Domestic Animals, 347. Jury, 494. Bogle V. North Carolina R. R. Co., 6 Jones' Law (N. C), 419. Slaves, 618. Bohlman v. Green Bay and Lake Pepin R. R. Co., 30 Wis., 105. Eminent Domain, 269. Boice v. Hudson River R. R. Co., 61 Barbour (N. Y.), 611. Tickets, 762. Boies V. Hartford and New Haven B. R. Co., 37 Conn., 273. Carriage of Merchandise, 103. Boland v. Greenville and Columbia E. E. Co., 12 Richardson's Law (So. Car.), 368. Evi- dence, 286. Jury, 493, 494. V. Missouri R. R. Co., 36 Mo., 484. Inju- ries to Persons on the Track, 463. Boldt V. New York Central R. R. Co., 18 N. Y., 432. Injuries to Employls, 387. Bonaparte v. Camden and Amboy R. R. Co., 1 Baldwin (U. S. C. C), 205. Eminent Do- main, 268, 270. Surveys, 786. Bond v. City of Kenosha, 17 Wis., 284. Tax- ation, 747. Boody V. Rutland and Burlington R. R. Co., 8 Blatchford (U. S. C. C), 35. Construction of Railways, 142. Contracts, 159. V. Rutland and Burlington R. R. Co., 24 Vt., 660. Contracts, 157. Booe V. Jtinction R. R. Co. 10 Ind., 93. Sub- scriptions by Individuals, 710. Booge V. Pacific R. R. Co., 33 Mo., 312. For- mer adjudication, 314. Boothby v. Androscoggin and Kennebec R. R. Co., 51 Me., 318. Eminent Domain, 225. Bordentown, etc., Turnpike Co. v. Camden and Amboy R.R. Co., 2 Harrison (N. J,), 314. Turnpikes, 770. Borland v. Mississippi and Missouri R. R. Co., 8 la., 148. Eminent Domain, 206. Boston and Albany R. R. Co. v. Greenbush, 53 N.Y., 510. Highway, 326. V. Greenbush, 5 Lansing (N. Y.), 461. Streets, 641. ■ V. Shanley, 107 Mass., 568. Powder, 586. In Matter of, 53 N. Y, 574. Eminent Do- main, 353. Boston and Lowell R. R. Co. v. Boston and Maine R. R. Co., 5 Cushing (Mass.), 375. Charter, 131. Connecting Lines, 129. V. Commonwealth, 100 Mass., 399. Taxa- tion, 740. V. Proctor, 1 Allen (Mass.), 367. Tickets, 763. V. Salem R. R. Co., 2 Gray (Mass.), 1. Charter, 132. Boston and Maine R. R. Co. v. Babcock, 8 Cushing (Mass.), 328. Specific Performance, 619. V. Bartlett, 3 Cushing (Mass.), 224. Con- tracts, 157. ^v. Bartlett, 10 Gray (Mass.), 384. Specific Performance, 620. V. Brown, 15 Gray (Mass.), 233, Replev- in, 605. V. Cambridge, 8 Cushing (Mass.), 287. Taxation, 750. V. Cilley, 44 N. H., 578. Highways, 334. V. Folsom, 46 N. H., 64. Certiorari, 112. V. Middlesex, 1 Allen (Mass.), 334. Pri- vate Ways and Crossings, 588. Highway, 335, 337. V. Oliver, 33 N. H., 172. Evidence, 377. Garnishment, 331. V. Salmon Falls Bank, 37 N. H., 455. Garnishment, 317. ' V. Wentworth, 20 N. H., 406. Attorneys, 31. V. Whitcher, 1 Allen (Mass.), 497. Boston and Providence R. R. Co. v. Midland R. R. Co., 1 Gray (Mass.), 340. Charter, 119. Location, 513. Boston and Worcester R. R. Co. v. Dana, 1 Gray (Mass.), 88. Agency, 15. Evidence, 278. V. Haven, 8 Allen (Mass.), 859. Mort- gage, 540. V. Old Colony R. R. Co., 12 Cushing Mass.), 605. Eminent Domain, 227, 334, 353. Wharfs, 781. V. Old Colony and Fall River R. E. Co., 3 Allen (Mass.), 143. Eminent Domain, 237, 358. V. Ripley, 13 Allen. (Mass.), 43L Land- lord and Tenant, 499. V. Sparhawk, 5 Metcalf (Mass.), 469. Di- vision Lines, 184. V. Western R. R. Co., 14 Gray (Mass.) 353. Connecting Lines, 131, 132. 808 TABLE OF CASES. Boston, Concord and Montreal R. R. Co. v.' Gilmore, 37 N. H., 410. Attasbment, 30. V. The State, 33 N. H., 215. Indictme.it, 333. Boston Gas Light Co. v. Old Colony and New- port R. R. Co., 14 Allen (Mass.), 444. Pri- vate Ways and Crossings, 588. Boston, Hartford and Erie R. R. Co. In re, 9 Blatchford (U. S. C. C), 101. In re, 9 Blatchford (U. S. C. C), 409. Boston Water Power Co. v. Boston and Wor- cester R. R. Co., 16 Pickering (Mass.), 513. Eminent Domain, 233. V. Boston and Worcester R. R. Co., 23 Pickering (Mass.), 360. Eminent Domain, 232. Bostwick V. Baltimore and Ohio R. R. Co., 45 N. y., 712. Bill of Lading, 53. V. Baltimore and Ohio R. R. Co., 55 Bar- bour (N. Y.), 137. Bill of Lading, 52. Car- riage of Merchandise, 74. Boswell V. Hudson River R. R. Co., 10 Ab- bott's Pr. (N. Y.), 443. Injuries to Passen- gers, 431. V. Hudson River R. R. Co., 5 Bosworth (N. Y.), 699. Injuries to Passengers, 430. Boutwell V. O'Keefe, 33 Barbour (N. Y.), 434. Contracts, 158. Bowdre v. Macon and Brunswick R. R. Co., 40 Ga., 143. Confederate Money, 129. Bowen v. New York Central R. R. Co., 18 N. Y., 406. Injuries to Passengers, 413. Bowler v. Lane, 8 Metcalfe (Ky.), 311. Injuries to Persons on the Track, 468, 473. Plead- ing, 572. Bowman v. Troy and Boston R. R. Co., 37 Barbour (N. Y.), 516. Injuries to Domestic Animals, 355. Boyce v. Cheshire R. R. Co., 42 N. H., 97. Fires, 309. V. Cheshire R. R. Co., 43 N. H., 627. Fires, 309. Boyd V. Negley, 40 Penn. St., 377. Lateral Railroads, 499, 500. V. Negley, 53 Penn. St. 387. Lateral Rail- roads, 500. Boyle V. Crawfordsville, Frankfort and Fort Wayne R. R. Co., 18 Ind., 457. V. Philadelphia and Reading R. R. Co., 54 Penn. St., 810. Rates, 599. Boynton v. Peterborough and Shirley R. R. Co., 4 Gushing (Mass.), 467. Eminent Do- main, 260. Brace v. New York Central R. R. Co., 27 N. y.,269. Fences, 300. Bradley v. Boston and Maine R. R. Co., 3 Gushing (Mass.), 539. Injuries to Persons on the Track, 457. V. Buffalo, New York and Erie R. R Co., 34 N. Y., 427. Injuries to Domestic Ani- mals, 877. V. Chester Valley R. R. Co., 36 Penn. St., 141. Mortgage, 537. — — V. New York and New Haven R. R. Co., 21 Conn., 294. Eminent Domain, 232. Bradford v. South Carolina R. R. Co., 7 Rich- ardson's Law (So. Car.), 201. Joint Liability, 484. V. South Carolina R. R. Co., 10 Richard- son's Law (So. Car.), 321. Joint Liability, 484. Brady v. Little Miami R. R. Co., 34 Barbour (N. Y.), 249. Bills and Notes, 48. Bragg V. Boston and Worcester R. R. Co., 9 Allen (Mass.), 54. Estoppel, 276. Brainard v. Boston and New York Central R. R. Co., 13 Gray (Mass.), 407. Eminent Do- main, 257, 260. V. Connecticut River R. R. Co., 7 Gushing (Mass.), 506. Eminent Domain, 251. Brainerd v. New York and Harlem R. R. Co., 25 N. Y, 496. Bonds of Railway Compa- nies, 58. V. New York and Harlem R. R. Co., 10 Bosworth (N. Y.), 832. Bonds of Railvjay Companies, 53. v. New York and Harlem R. R. Co., 23 Howard's Pr. (N. Y.), 491. Bonds of Rail- way Companies, 53. V. Peck and Colby, 84 Vt., 496. Mortgage, 535. Brand v. Troy and Schenectady R. R. Co., 8 Barbour (N. Y.), 368. Injuries to Persons on the Track, 454. Brandt v. Chicago, Rock Island and Pacific R. R. Co., 36 la., 114. Injuries to Domestic Animals, 353, 358. Branham v. Fort Wayne and Southern R. R. Co., 7 Ind., 524. Process, 598. V. Record, 43 Ind., 181. Bonus, 56. Branin v. Connecticut and Passumpsic Rivers R. R. Co., 31 Vt., 214. Construction of Rail- ways, 146. Brannenburg v. Indianapolis, Pittsburgh and Cleveland R. R. Co., 13 Ind., 103. Injuries to Domestic Animals. 356. Branner v. Hardy, 18 La. An., 537. Mortgage. 589. Branson v. Philadelphia, 47 Penn. St . Streets, 644. 329 TABLE OF CASES. 809 Brazeltoa v. Nashville and Chattanooga R. R. Co., 3 Head (Tenn.), 570. Set-oflf, 615. Breed v. Eastern R. R. Co., 5 Gray (Mass.), 470. Eminent Domain, 260. Breedlove v. Martinsville and Franklin R. R. Co., 12 Ind., 114. Subscriptions by Individ- uals, 700, 715. Brehm v. Great Western R. R. Co., 34 Barbour (N. Y.), 256. Evidence, 281. Injuries to Passengers, 413, 434. Brendell v. Buffalo and State Line R. R. Co., 27 Barbour (N. Y.), 534. Injuries to Persons on the Track, 451. Brewer v. Boston and Worcester R. R. Co., 5 Metcalf (Mass.), 479. Division Lines, 184. V. Housatonic R. R. Co., 104 Mass., 593. Contracts, 156. V. Housatonic R. R. Co., 107 Mass., 277. Evidence, 277. Brewster v. Michigan Central R. R. Co., 5 Howard's Pr. (N. Y.), 183. Process, 589. Brickner v. New York Central R. R. Co., 3 Lansing (N. Y.), 506. Injuries to Employes, 394. Bridgeport v. Housatonic R. R. Co., 15 Conn., 475. Subscriptions by Cities and Towns, 665. Subscriptions by Counties, 675. V. New York and New Haven R. R. Co., 36 Conn., 255. Highway, 323, 324. Bridgeport Bank v. New York and New Haven R. R. Co., 30 Conn., 231. Stock and Stock- holders, 631. Bridge Proprietors v. Hoboken Co., 1 Wallace, 116. Bridges, 57. Constitutional Law, 136, 137, 138. Briggs T. New York Central R. R. Co., 28 Bar- bour (N. Y.), 515. Carriage of Merchan- dise, 80. v. Vermont Centi-al R. R. Co., 31 Vt., 211. Contracts, 157. Brigham v. Agricultural Branch R. R. Co., 1 Allen (Mass.), 316. Location, 513. V. Boston and Albany R. R. Co., 103 Mass., 14. Insanity, 478. Brlghtman v. Kirner, 22 Wis., 54. Taxation, 741. Brignoli v. Chicago and Great Eastern R. R. Co., 4 Daly (N. Y.), 182. Injuries to Passen- gers, 409, 428. Brink v. Chicago and Northwestern R. R. Co., 23 lowa^ 473. Sales, 613. Brintnall v. Saratoga and Whitehall R. R. Co., 32 Vt., 665. Pleading, 584. Carriage of Merchandise, 69. Bristol V. Chicago and Aurora R. R. Co., 15 111., 436. Jurisdiction, 488. V. Rensselaer and Saratoga R. R. Co., 9 Barbour (N. Y.), 158. Carriage of Merchan- dise, 106. Brock V. Connecticut and Passumpsic Rivera R. R. Co., 35 Vt., 373. Fences, 300. Brocket v. Ohio and Pennsylvania R. R. Co., 14 Penn. St. 241. Eminent Domain, 231, Brokaw v. New Jersey R. R. Co., 3 Vroom (N. J.), 328. Injuries to Passengers, 415. Bronenberg v. Board of Commissioners of Madison County, 41 Ind., 502. Subscrip- tions b}' Counties, 681. Bronson v. Chicago, Rock Island, etc. R. R. Co., 40 Howard's Pr. (N. Y.), 48. Pleading, 581. V. La Crosse R. R. Co., 2 Wallace, 283. Mortgage, 533, 535, 538, 542. Practice, 586. V. La Crosse R. R. Co., 1 Wallace, 405. Jurisdiction, 490. Mortgage, 538. V. Railroad Co., 3 Black, 524. Mortgage, 533, 536, 544. Brooke V.Grand Trunk R. R. Co., 15 Mich., 333. Tickets, 761. V. Grand Trunk R. R. Co., 15 Mich., 332. Evidence, 278. Brooklyn v. Brooklyn City R. R. Co., 57 Bar, hour (N. Y.), 497. Sti'eet Railways, 650. V. Brooklyn City R. R. Co., 8 Abbott's Pr. N. S. (N. Y.), 356. Street Railways, 650. V. Brooklyn City R. R. Co., 47 N. Y., 475. Street Railways, 650. Brooklyn Central R. R. Co. v. Brooklyn City R. R. Co., 32 Barbour (N. Y.), 358. Street Railways, 645, 646, 648. Broooklyn Central and Jamaica R. R. Co. v. Brooklyn City R. R. Co., 33 Barbour (N. Y.), 420. Eminent Domain, 253. Street Rail- ways, 648. Brooklyn City R. R. Co. v. Coney Island R. R. Co., 35 Barbour (N. Y.), 364. Street Rail- ways, 645, 646, 648. V. Furey, 4 Abbott's Pr. N. S. (N. Y.), 364. Street Railways, 649. Brooks V. Buffalo and Niagara Falls R. R. Co., 1 Abbott's Ct. of Ap. Dec. (N. Y), 211. In- juries to Persons on the Track, 459. V. Buffalo and Niagara Palls R. R. Co., 25 Barbour (N. Y.), 600. 27 ib., 532. Inju- ries to Person on the Track, 451, 453. V. Hannibal and St. Joseph R R. Co., 38 Mo., 455. v. New York and Erie R. R. Co., 13 Bar- 810 TABLE OP CASES. bour (N. Y.), 594 Injuries to Domestic An- imals, 377. Broolis V. South Carolina R. R. Co., 8 Ricliard- son's Eq. (So. Car.), 30. Strests, 644. Brower v. Passenger R. R. Co., 8 Philadelpliia Rep. (Penn.), 161. Subscriptions by Indi- viduals, 730. Brown v. Buffalo and State Line R. R. Co., 23 N. Y., 191. Injuries to Persons on the Track, 467, 475. V. Cajruga and Susquehana R. R. Co., 13 N. Y., 486. Watercourses, 778. V. County Commissioners, 31 Penn. St., 37. Subscriptions by Cities and Towns, 668. Subscriptions by Counties, 676. V. Eastern R. R. Co., 11 Cusbing (Mass.), 97. Baggage, 89. T. European and North American R. R. Co., 58 Me., 384. Damages, 170. Nonsuit, 555. V. Hannibal and St. Joseph R. R. Co., 37 Mo., 398. Jury, 498. V. Hannibal and St. Joseph R. R. Co., 88 Mo., 309. Injuries to Domestic Animals, 358. V. Hannibal and St. Joseph R. R. Co., 50 Mo.. 401. luj urifcs to Persons on rl, e Track, 458. V. Lexington and Danville R. R. Co., 3 Beasley's Ch. (N. J.), 191. . Former Adjudi- cation, 314. V. Milwaukee and Prairie du Chien R. R. Co., 31 Wis., 09. Injuries to Domestic Ani- mals, 380. V. Mohawk and Hudson E. R. Co., 1 How- ard's Cases (N. Y.), 53. Bridges, 60. V. Newcastle and Richmond R. R. Co., 9 Ind., 181. V. New York Central R. R. Co., 44 N. Y., 79. Lease, 503. V. New York Central R. R. Co., 33 N. Y., 597. Injuries to Persons on the Track, 474. V. New York Central R. R. Co., 34 N. Y., 404. Injuries to Passengers, 413, 433. V. New York Central R. R. Co., 51 N. Y., 667. V. New York Central R. R. Co., 81 Bar- bour (N. Y.), 385. V. New York and Erie R. R. Co., 19 How- ard's Pr. (N. Y.), 84. Receiver, 603. V. New York and Erie R. R. Co., 33 How- ard's Pr. (N. Y.), 451. Mortgage, 533. V. Patterson, 40 Penn. St., 373. Lateral Railroads, 499. V. Pontchartrain R. R. Co., 8 Robinson (La.), 45. Injuries to Persons on the Track, 447. Brown v. Providence, Warren and Bristol R. R. Co., 5 Cray (Mass.), 35. Eminent Domain, 331, 239, 255, 366. V. Saratoga R. R. Co., 18 N. Y., 495. Pleadings, 583. V. Southern Michigan R. R. Co., 6 Ab- bott's Pr. (N. Y.) 337. V. Southwestern R. R. Co., 36 Ga., 877. Slaves, 618. V. Syracuse and TJtica R. R. Co., 5 Hill (N. Y.), 554. Ejectment, 185. Browne v. Providence, Hartford and Fiskill R. R. Co., 13 Gray (Mass.), 55. Injuries to Do- mestic Animals, 374. Brownell v. Pacific R. R. Co., 47 Mo., 339. Evidence, 380. Injuries to Persons on the Track, 467. Browning v. Camden and Woodbury R. R. Co., 3 Green's Ch. (N. J.), 47. Eminent Domain, 304. V. Long Island R. R. Co., 3 Daly (N. Y.), 117. Carriage of Merchandise, 104, 110. Brownlee v. Ohio, Indiana and Illinois R. R. Co., 18, Ind., 68, Subscriptions by Indi- viduals, 693, 698, 704. Bruffett V. Great Western R. R. Co., 35 111., 353. Charter, 131, 136. Bruudage v. Brundage, 65 Barbour (N. Y.), 397. Willi, 783. Brunswick and Albany R. R. Co. v. McLaren, 47 Ga., 546. Eminent Domain, 358. Bryan v. Southwestern R. R. Co,, 41 Ga., 71. Contracts, 158. V. Southwestern R. R. Co., 37 Ga., 36. Non- suit, 555. Bryant v. Knox and Lincoln R. R, Co., 61 Me., 800. Eminent Domain, 198. Buck V. Connecticut and Passumpsic Rivers R. R. Co., 43 Vt., 370. Highway, 337. Buckfleld Branch R. R. Co. v. Benson, 4g Me., 374. Process, 590. Writ of Error, 783. Buckhalter v. Mississippi and Tennessee R. R. Co., 33 Miss., 119. Attachment, 30, Buckingham v. Steubenville and Indiana R R. Co., 10 Ohio St., 35. Eminent Domain. 309. Buckley v. Great Western R. R. Co., 18 Mich., 131. Carriageof Merchandise, 101. Buel V. New York Central R. R. Co., 31 N. Y., 314. Injuries to Passengers, 433. Buffalo and Allegheny R. R. Co. v. Cary, 36 N. Y., 75. Subscriptions by Individuals, 739. TABLE OF CASES. 811 Buffalo and Brie R. R. Co., v. CommonwealOi, 3 Brewster's Eq. (Penn.), 386. Taxation, 741. V. Commonwealth, 3 Brewster's Eq. (Penn.), 374. Taxation, 738. Buffalo and Niagara Palls R. R. Co., v. Buf- falo, 5 Hill (N.Y.), 209. Municipal Cor- porations, 546. Buffalo and New York R. R. Co. v. Brainard, 9 N. Y., 100. Eminent Domain, 368. V. Dudley, 14 N. Y , 336. Subscriptions by Individuals, 709, 720, 724. Buffalo and Pittsburgh R. R. Co. v. Hatch, 30 N. Y., 157. Subscriptions by Individuals, 713. Buffalo and State Line R. R. Co. v. Reynolds, 6 Howard's Pr. (N. Y.), 96. Eminent Do- main, 357. V. Supervisors of Erie County, 48 N. Y., 93. Taxation, 737, 748. Buffalo, Bayou, Brazos, etc., R. R. Co. v. Fer- ris, 36 Tex., 588. Eminent Domain, 214, 239, 368. Trespass, 765. Buffalo, Corning and New Yorli R. R. Co. v. Pottle, 23 Barbour (N. Y.), 21. Subscrip- tions by Individuals, 699. Buffalo, N. Y. and Erie R. R. Co. v. Lampson, 47 Barbour (N. Y.), 533. Trust, 768. V. Stevens, 51 N, Y., 659. Judgment, 485. V. Stigler, 51 N. Y., 667. Buffett V. Troy and Boston R. R. Co., 40 N. Y., 168. Injuries to Passengers, 435, 436. Buflfit V. Troy and Boston R. R. Co., 36 Bar- bour (N. Y.), 420. Injuries to Passengers, 436. Buffum V. New Yorls and Boston R. R. Co., 4 R. I., 231. Eminent Domain, 257. Bulger V. Albany R. H. Co., 42 N. Y., 459. Street Railways, 653. Bulkley v. New York and New Haven R. R. Co., 37 Conn., 479. Injuries to Domestic Animals, 348, 365. Burbridge v. New Albany and Salem R. R. Co., 9 Ind., 546. Eminent Domain, 261. Burchfield v. Northern Central R. R. Co., 57 Barbour (N. Y.), 589. Injuries to Domestic Animals, 859. Bureau County v. Chicago, Burlington and Quincy R. R. Co., 44 111., 229. Taxation, 738. Burge V. Cedar Rapids and Minnesota R. R. Co., 32 la., 101. Contracts, 156. Burhop V. City of Milwaukee, 21 Wis., 257. Constitutional Law, 138. V. Roosevelt, 20 Wis., 338. Subscriptions by Cities and Towns, 670. Burke v. Broadway and Seventh Avenue R. R. Co. 49 Barbour (N. Y.), 529. Injuries to Persons on Track, 463. V. Broadway and Seventli Avenue R. R. Co., 34 Howard's Pr. (N. Y.), 239. Injuries to Persons on the Track, 463. Norwich and Worcester R. R. Co., 34 Conn., 474. Injuries to Employes, 385, 388. V. Smith, 16 Wallace, 390. Subscriptions by Individuals, 720. Burlander v. Milwaukee and St Paul R. R. Co., 26 Wis., 76. Garnishment, 319. Burlington and Missouri River R. R. Co., v. Boestler, 15 la., 555. Subscriptions by Indi- viduals, 698. V. Hayne, 19 la., 137. Taxation, 749. V. Marchand, 5 la., 468. Default, 175. V. Sinnmamon 9, la., 293. Eminent Do- main, 206. V. Mt. Pleasant, 13 la., 112. Streets, 643. Taxation, 747, 752, 756. V. Sater, 1 la., 431. Nonsuit, 556. V. Shaw, 5 la., 463. Default, 175.' V. White, 5 la., 409. Subscriptions by Individuals, 723. Burnell v. New York Central R. R. Co., 43 N. Y., 184. Baggage, 39. Burnett v. Nashville and Chattanooga R. R. Co., 4 Sneed (Tenn.), 528. Eminent Domain, 303. Burns v. Boston and Lowell R. R. Co., 101 Mass., 50. Injuries to Persons on the Track, 460. V. Bellefontaine R. R. Co., 50 Mo., 139. Street Railways, 657. V. Milwaukee and Mississippi R. R. Co., 9 W is., 450. Eminent Domain, 303, 312. Burrbughs v. Housatonic R. R. Co., 15 Conn., 124. Fires, 302. V. Norwich and Worcester R. R. Co., 100 Mass., 26. Carriage of Merchandise, 72. North Carolina R. R. Co., 67 N. C, 376. Stock and Stockholders, 633. Burtis V. Buffalo and State Line R. R. Co., 24 N. Y., 269. Connecting Lines, 133. Burton v. North Missouri R. R. Co., 30 Mo.. 372. Injuries to Domestic Animals, 374. V. Philadelphia, Wilmington and Balti- more R. R. Co., 4 Harrington (Del.), 253. Injuries to Persons on the Track, 473. Bushnell v. Beloit, 10 Wis., 195. Subscriptions by Cities and Towns, 663. Butler V. Dunham, 27 111., 474. Subscriptions by Counties, 675. V. Edgerton, 15 Ind., 15. Usury, 770. 812 TABLE OF CASES. Butler V. Hudson River B. R. Co., 3 E. D. Smith (N. Y.), 571. Baggage, 34. V. Milwaukee and St. Paul R. R. Co., 28 Wis., 487. Injuries to Persons on the Track, 461. V. Myer, 17 Ind., 77. Usury, 770. Mort- gage, 544. V. New York and Erie R. R. Co., 32 Bar- bour (N. Y.), 110. Injuries to Domestic An- imals, 380. Butman v. "Vermont Central R. R. Co., 27 Vt., 500. Eminent Domain, 200. Butt V. Toledo, Wabash and Western R. R. Co., 34 Ind., 162. Appeals, 17. Butterfield v. Central Pacific R. R. Co., 31 Cal., 264. Public Lands, 594. V. Central Pacific R. R. Co., 37 Cal., 381. New Trials, 555. V. Western R. R. Co., 10 Allen (Mass.), 532. Injuries to Persons on the Track, 451. Button V. Hannibal and St. Joseph R. R. Co., 51 Mo.. 153. Security for Costs, 614. V. Hudson River E. R. Co., 18 N. Y., 248. Negligence, 548. Butz V. City of Muscatine, 8 Wallace, 575. Mandamus, 515. Subscriptions by Cities and Towns, 673. Byers v. Lessees of Dcs Moines Valley R. R. Co., 21 la., 54. Baggage, 42. Pleading, 573. Byington v. Mississippi and Missouri R. R. Co., 11 la., 502. Pleading, 576. o. Cable V. St. Louis Marine R. R. and Dock Co., 21 Mo., 133. Parties to Actions, 564. Cadmus v. Central R. R. Co., 2 Vroom (N. J.), 179. New Trials, 553. Cahoon v. Wisconsin Central R. R. Co., 10 Wis., 290. Pleading, 577. Caldwell v. Sibley, 3 Minn, 406. Attach- ment, 29. California Northern R. R. Co. v. Butte Co., 18 Cal., 671. Mandamus, 517. Subscriptions by Counties, 683. v. Gould, 21 Cal., 255. Eminent Domain, 255. California Pacific R. Co. v. Frisbie, 41 Cal. 356. Eminent Domain, 238. Callahan v. Burlington and Missouri River R. R. Co., 23 la , 562. Fires, 310. V. Judd, 23 Wis., 343. Mortgage, 528. Callender v. Painesville and Hudson R. R, Co., 11 Ohio St., 516. Estoppel, 276. Calvert v. Hannibal and St. Joseph R. R. Co., 38 Mo., 467. Injuries to Domestic Ani- mals, 346. V. Hannibal and St. Joseph R. R. Co., 34 Mo., 243. Injuriesto Domestic Animals, 358. Camblos v. Philadelphia and Reading R. R. Co., 4 Brewster (Penn.), 563. Express Com- panies, 295. Cambridge v. Cambridge R. R. Co., 10 Allen (Mass.), 50. Street Railways, 659. Cambridge, Inhabitants of, v. Charlestown Branch R. R. Co., 7 Metcalf (Mass.), 70. Streets, 639. Camden and Amboy R. R. Co. v. Baldauf, 16 Penn. St., 67. Carriage of Merchandise, 78. Baggage, 34, 35. V.Belknap, 21 Wendell (N. Y.), 354. Bag- gage, 39, 43. V. Briggs, 1 Zabriskie (N. J.), 406. Rates, 596. V. Briggs, 2 Zabriskie (N. J.), 623. Pen- alties, 571. Rates, 596, 598. V. Burke, 13 Wendell (N. Y.), 611. Bag- gage, 40. V. Commissioners, 3 Harrison (N. J.), 71. Taxation, 750. V. Porsythe, 61 Penn. St., 81. Carriage of Merchandise, 86. -; — V. Finch, 5 Sandford (N. Y.), 48. Wharves, 781. V. Hillegas, 3 Harrison (N. J.), 11. Tax- ation, 750. V. Remer, 4 Barbour (N. Y.), 127. Corpo- rate Powers, 165. V. Stewart, 4 C. E. Green's Ch. (N. J.), 342. V. Stewart, 3 C. E. Green's Ch. (N. J.), 489. Ejectment, l':;5. Injunction, 334. V. Stewart, 4 C. E. Green's Ch. (N. J.), 69. Equity, 275. V. Stewart, 6 C. E. Green's Ch. (N. J.), 484. Pleading, 577. Campbell v. Champlain and St. Lawrence R. R. Co., 18 Howard's Pr. (N. Y.), 412. At- tachment, 29. V. City of Kenosha, 5 Wallace, 194. Sub- scriptions by Counties, 675. Subscriptions by Cities and Towns, 664. -^ — V. Erie R. R. Co., 46 Barbour (N. Y.), 540. Fraud, 315. Canandaigua and Niagara Falls R. R. Co. v. Payne, 16 Barbour (N. Y.), 273. Eminent Domain, 319, 320, 233. Candee v. Pennsylvania R. R. Co., 21 Wis., 682. Baggage, 36. TABLE OF CASES. 813 Canfield v. Northern R. R. Co., 18 Barbour (N. Y.), 586. Carriage of Merchandise, 94. Cannon v. Rowland, 34 Ga., 422. State Rail- ways, 621. V. Wildman, 28 Conn., 473. Construction of Railways, 144. Cantling v. Hannibal and St. Joseph R. R. Co., 54 Mo., 385. Dogs, 184. Canton Co, v. Northern Central R. R. Co., 21 Md., 383. Specific Performance, 619. Caples V. Central Pacific R. R. Co., 6 Ney., 265. Process, 592. Card V. New York and Harlem R. R. Co., 50 Barbour (N. Y.), 39. Injuries to Passengers, 443. Carey v. Berkshire R. R. Co., 1 Cushing (Mass.), 475. Injuries to Persons Generally, 444. V. Cincinnati and Chicago R. R. Co., 5 la., 357. Consolidation, 134. Dissolution, 183. Forfeiture, 313. Fraud, 315. Statutes, 624. V. Day, 36 Conn., 153. Injuries to Pas- sengers, 424. Carle v. Bangor and Piscataqua Canal and R. R. Co., 43 Me., 269. Injuries to Employgs, 389. Carli V. Stillwater and St. Paul R. R. Co., 16 Minn., 260. Eminent domain, 337. Carlin v. Chicago, Rock Island and Pacific R. R. Co., 31 Iowa, 870. Instructions, 480. Carlisle v. Cahawba and Marion R. R. Co., 4 Ala., N. S., 70. Subscriptions by Individu- als, 724. V. Evansville, Indianapolis and Cleveland R. R. Co., 13 Ind., 477. Subscriptions by Individuals, 707. - — V. Terre Haute and Richmond R. B. Co., 6 Ind., 316. Depot, 178. Carman v. Steubenville and Indiana R. B. Co., 4 Ohio St., 399. Contractors, 160. Carmanty v. Mexican Gulf R. R. Co., 5 La. An., 703. Injuries to Passengers, 413. Carmichael v. West Feliciana R. R. Co., 2 Howard (Miss.), 817. Appeals, 21, 32. Carney v. LaCrosse and Milwaukee R. R. Co., , 15 Wis., 503. Appeals, 19. Mechanic's Lien, 530. Carpenter v. Catlin, 44 Barbour (N. Y.), 75. Mortgage, 543. V. Central Park, North and East River R. R. Co., 11 Abbott's Pr., N.- S. (N. Y.), 41G. Street Railways, 653, 655. ■ v. Central Park, etc., R. R. Co., 4 Daly (N . Y.), 550. Street Railways, 654. Carpenter v. Easton and Amboy R. R. Co., 9 ■ C. E. Green's Ch. (N. J.), 408. Eminent Do- main, 271. V. Easton and Amboy R. R. Co., 9 C. E. Green's Ch. (N. J.), 349. Eminent Domain, 372. V. New York and New Haven R. R. Co., 11 Howard's Pr. (N. Y.), 481. Process, 590. V. New York and New Haven R. R. Co., 5 Abbott's Pr. (N. Y.), 277. Stock and Stockholders, 632. V. Oswego and Syracuse R. R. Co., 24 N. Y., 655. Eminent Domain, 243. Carrington v. Florida R. R. Co., 9 Blatchford (U. S. C. C), 467. Federal Courts, 297. V. Florida R. R. Co., 53 N. Y., 583. Ap- peals, 20. Carroll v. Cone, 40 Barbour (N. Y.), 320. Offi- cers, 560. V. Grand Trunk R. R. Co., 19 Mich., 94. V. Hinkley, 46 Me., 81. Reference, 603. Stock and Stockholders, 635. V. Minnesota Valley R. R. Co., 13 Minn., 80. Injuries to Employes, 403. Injuries to Persons on the Track, 458. V. Minnesota Valley R. R. Co., 14 Minn., 57. ■■ V. New York and New Haven R. R. Co., 1 Duer (N. Y.), 571. Injuries to Passengers, 433. V. Staten Island R. R. Co., 65 Barbour (N. Y.), 82. Sunday Laws, 735. V. York and Cumberland R. R. Co., 53 Me., 82. Mortgage, 524. Carrollton R. R. Co. v. Avart, 14 La. (O. S.), 190. Eminent Domain, 216. v. Ayart, 9 La. (O. S.), 205. Eminent Do- main, 196. Carter v. Western North Carolina R. R. Co.. 68 N. C, 346. Change of Venue, 113. Cary v. Cleveland and Toledo R. R. Co., 29 Barbour (N. Y.), 35. Baggage, 87, 43. Case of the State Tax on Foreign-held Bonds, 15 Wallace, 800. Taxation, 789, 741. Case of the State Freight Tax, 15 Wallace, 232, Taxation, 741. Case v. Northern Central R. B. Co., 59 Bar- bour (N. Y.), 644. Fires, 302. Cass V. Boston and Lowell R. R. Co., 14 Allen (Mass.), 448. Carriage of Merchandise, lOJ. V. New York and New Haven R. R. Co., 1 E. D. Smith (N. Y.), 523. Baggage, 35. Cassidy v. Kennebec and Portland K. R. Co., 45 Me., 263. Eminent Domain, 196. 814 TABLE OF CASEH. Caswell V. Boston and Worcester R. R. Co., 98 Mass., 194. Injuries to Passengers, 411. Catawissa R. R. Co. v. Armstrong, 49 Penn. St., 186. Evidence, 385. Injuries to Em- ployes, 887. Injuries to Persons on the Track, 474. Negligence, 549. V. Armstrong, 53 Penn. St., 283. lujuries to Persons on the Track-, 474. Injuries to Persons Generally, 445. '■ V. Titus, 49 Penn. St., 377. Contracts, 155. Cecil V. Pacifijo R. R. Co., 47 Mo., 347. Inju- ries to Domestic Animals, 356. Cedar Palls and Minnesota R. R. Co. v. Rich, 33 la., 113. Contractu, 153. Cedar Rapids R. R. Co. v. Des Moines Naviga- tion Co., 17 Wallace, 144. Land Grants, 497. Cedar Rapids abd Missouri River R. R. Co. v. Boone County, 84 la., 45. Evidence, 389. Subscriptions by Counties, 688. V. Willetts, 15 la., 450. Bill of Exceptions, 50. Subscriptions by Individuals, 701. Cedar Rapids and Missouri R. R. Co. v. Wood- bury County, 39 la., 247. Taxation, 749. Cedar Rapids and St. Paul R. R. Co. v. Stew- art, 35 la., 115. Agency, 18. v. Stewart, 34 la., 594. Central R. R. Co. v. Bunn, 3 Stockton'j C'h. (N. J.), 336. Reorganization, 604. V. Chapman, 33 Tok., 568. Legal Tender Act, 505. V. Collins, 40 Ga., 583. Charter, 116. Subscriptions by R. R. Companies, 730. V. Davis, 19 Ga., 437. Injuries to Domes- tic Animals, 344. V. Dixon, 43 Ga., 337. Injuries to Per- sons on the Track, 459. V. George, 33 Tex., 568. V. Grant, 46 Ga., 417. Construction of Railways, 145. V. Hearue, 33 Tex., 546. Carriage of Mer- chandise, 103. V. Hetfield, 3 C. B. Green's Ch. (N. J.), 333. Route, 611. V. Hetfleld, 5 Dutcher (N. J.), 206. Emi- nent Domain, 243. Right of Way, 609. Tres- pass, 765. V. Hines, 19 Ga., 303. Evidence, 285. V. Macon and Western R. R. Co., 43 Ga., 605. Lease, 503. ' V. Merkel, 33 Tex., 733. Eminent Do- main, 300, 263. V. Moore, 4 Zabriskie (N. J.), 834. Inju- ries to Persons on the Track, 463. Negli- gence, 549. Central R. R. Co. v. Valentine, 5 Dutcher (N. J.), 561. Mills, 531. V. Ward, 37 Ga., 515. War of 1861, 776. Cenlral Military Tract R.R. Co. v. Rockafel- low, 17 111., 541. Injuries to Domestic Ani mals, 347, 351. v. Spurck, 34 111., 587. Central National Bank of Worcester v. Wor- cester Horse R. R. Co., 13 Allen (Mass.), 105. Ir.solvency, 478. Central Ohio R. R. Co. v. Holler, 7 Ohio St., 320. Eminent Domain, 268. v. Lawrence, 13 Ohio St., 66. Injuries to Domestic Animals, 348. v. Thompson, 3 Bond (U. S. C. C), 396. Setoff, 615. Central Pacific R. R. Co. v. Dyer, 1 Sawyer (U. S. C. C), 641. Land Grants, 496. Pleading, 578. v. Pearson, 35 Cal., 347. Eminent Do- main, 203, 338, 356. V. Placer County, 84 Cal., 353. Certiorari, 111. V. Placer County, 32 Cal., 582. Certio- rari, 111. V. Placer County, 43 Cal., 365. Certiorari, 113. Central R. R. on Long Island, Matter of, 1 N. Y. Sup. Ct., 419. Eminent Domain, 353. Chaffee v. Boston and Lowell R. R. Co., 104 Mass., 108. Injuries to Persons on the Track, 455. Chaffln v. Cummings, 37 Me., 76. Stock and Stockholders, 635. Chamberlain v. Burlington, 19 la., 395. Sub- scriptions l)y Cities and Towns, 663, 671. Subscriptions by Counties, 678. v. Milwaukee and Mississippi R. R. Co., 11 Wis., 238. Injuries to Employes, 389, 402. v. Painesville and Hudson R. R. Cd., 15 Ohio St., 225. Directors, 181. Pleading, 581. Subscriptions by Individuals, 703. Champion v. Memphis and Charleston R. R. Co., 35 Miss., 693. Subscriptions by Indi- viduals, 720. Champlaln and Ft. Lawrence R. R. Co. v. Val- entine, 19 Barbour (N. T.), 484. Lakes, 495. Champlin v. Railway Insurance. Co., 6 Lan- sing (N. Y.), 71. Insurance, 483. Chandler v. Northern Cross R. R. Co., IS 111., 190. Subscriptions by Individuals, 715. Chapin v. Connecticut River R. R. Co., 16 Gray (Mass.), 69. Garnishment, 319. V. Harris, 8 Allen (Mass.), 594. TABLE OF CASES. 815 Chapin v. Sullivan R. R. Co., 39 N. H., 564. Eminent Domain, 370. V. Sullivan R. R. Co., 89 N. H., 53. Fen- ces, 300. Chapman v. Albany and Schenectady R. R. Co., 10 Barbour (N. Y.), 360. Eminent Do- main, 246. V. Androscoggin R. R. Co., 54 Me., 160. Redemption. 603. V. Atlantic and St. Lawrence R. R. Co., 37 Me., 92. Fires, 307. V. Black River R. R. Co., 4 Lansing (N. T.), 96. Construction of Railways, 146. V. Chicago and Northwestern R. R. Co., 26 Wis., 395. Evidence, 377, 381. Instructions, 470. Fires, 309. Jury, 493, 494. V. Delaware, Lackawanna, etc., R. R. Co., 3 Lansing (N. Y.), 361. Pleading, 577. V. Mad River and Lake Erie R. R. Co., 6 Ohio St., 119. Injunction, 335. Location, 611. V. Kew Haven R. R. Co., 19 N. Y., 341. Injuries to Passengers, 433, 435. T. New Orleans, Jackson and Great Northern R. R. Co., 31 La. An., 324. Ap- peals, 18. Carriage of Merchandise, 91. V. New York Central R. R. Co., 31 Bar- bour (N. Y.), 399. Injuries to Domestic Ani- mals, 377. V. New York Central R. R. Co., 33 N. Y., 309. Injuries to Domestic Animals, 377. V. Railroad Co., 7 Philadelphia Rep. (Penn.), 304. Evidence, 290. Charles River Branch R. R. Co. v. County Comr's of Norfolk, 7 Gray (Mass.), 389. Em- inent Domain, 212. Charleston and Savannah R.R. Co. v. Blake, 13 Richardson's Law (So. Car ), 634. Emi- nent Domain, 303, 307. Evidence, 383, 387. Charlick v. Flushing R. R. Co., 10 Abbott's Pr. (N. Y.), 130. Bill of Discovery, 49. Charlotte and South Carolina R. R. Co. v. Blakeley, 3 Strobhart's Law (So. Car.), 345. Subscriptions by individuals, 697. Charlotte, etc., R. R. Co. v. Jesup, 44 Howard's Pr. (N. Y.), 447. Warranty, 777. Chase V. New York Central R.R. Co., 26 N. Y., 533. Rates, 598. V. New York Central R. R. Co., 24 Bar- bour (N. Y.), 373. Damages, 173. V. Sullivan R. R. Co., 30 N. H., 195. Emi- nent domain, 304. V. Sycamore and Courtland R. R. Co., 38 III, 315. Evidence, 290. Subscriptions by Individuals, 700, Check V. Little Miami R. R. Co., 3 Disney (Ohio), 337. Baggage, 37, 39. ' Cheever and Hart v. Rutland and Burlington R. R. Co , 39 Vt., 653. Mortgage, 537. Chesapeake and Ohio Canal Co. v. Baltimore and Ohio R. R Co., 4 Gill & Johnson (Md.), 1. Route, 610. Chesapeake and Ohio R. R. Co. v. Bobbetl, 5 W. Va.,138. Mills, 531. V. Huse, 5 W. Va , 579. Injunction, 343. V. Patton, 5 W. Va., 334. Chesbrough v. N. Y. and Erie R. R. Co., 13 Howard's Pr. (N. Y.), 557. Contracts, 155. V. N. Y. and Erie R. R. Co., 36 Barbour (N. Y.), 9. Contracts, 155. Cheshire R. R. Co. v. Foster, 51 N. H., 490. Trover, 767. Chesley v. Pierce, 33 N. H., 389. Stock and Stockholders, 636. Chicago V. Baer, 41 111., 308. Street Railways, 650. V. Chicago and Rock Island R. R. Co., 20 111., 386. Streets, 643. V. Sheldon, 9 Wallace, 50. Constitutional Law, 137. Street Railways, 650. Chicago R. R. Co. v. Volk, 45 111., 175. Street Railways, 655. Chicago and Alton R. R. Co. v. Adler, 56 111., 344. Jury, 493. Penalties, 570, 571. V. Engle, 58 111., 381. Injuries to Domestic Animals, 355. V. Pears, 53 111., 115. on the Track, 459. V. Flagg,43IIl.,364. gers.417. Tickets, 760. V. Garvey, 58 111., 83. on the Track, 455. V. Gregory, 58 111., 326. sons on the Track, 463. V. Gretzner, 46 111., 74. sons on the Track, 455,461. V. Higgins, 58 111., 128. 561. y. Hogarth, 38 II]., 370. Injuries to Teams, etc, 477. V. Keefe, 47 111., 108. Injuries to Employes, 387. V. McLaughlin, 47 111., 265. Injuries to Persons on the Track, 463. V. Mahan, 42 111., 158. Evidence, 381. V. Murphy, 53 111., 336. Injuries to Em- ployes, 385. V. Pondrom, 51 111., 333. Injuries to Pas- sengers, 431. ' r. Purvines, 58 111., 38. New Ti-ials, 554. Injuries to Persons Injuries to Passen- Injuries to Persons Injuries to Per- Injuries to Per- Negligence, 548. Official Bonds. 816 TABLE OF CASES. Chicago and Alton R. R. Co. v. Quaintance, 58 111., 389. Fires, 302, 304. V. Randolph. 53 111., 510. Injuries to Pas- sengers, 405. Passengers, 566. V. Roberts, 40 111., 503. Injuries to Pas- sengers, 418. V. Scott, 42 111., 132. Can-iage of Mer- chandise, 96. V. Shannon, 43 111., 338. Injuries to Em- ployes, 391, 393, 399. Injuries to Persons Generally, 447. V. Taylor, 40 111., 280. Injuries to Do- mestic Animals, 366. V. Utley, 38 111., 410. Injuries to Domes- tic Animals, 362, 365. Chicago and Aurora R. R. Co. v. Thompson, 19 111., 578. CaiTiage of Merchandise, 95. Chicago and Great Eastern R. R. Co. v. Dane, 43 N. Y., 240. Contracts, 153. V. Fox, 41 111., 106. Agency, 13. V. Giflford, 26 Ind., 29. V. Harney, 28 Ind., 38. Injuries to Em- ployes, 395, 403. V. Vosburgh, 45 111., 311. Construction of Railways, 142, 145. Chicago and Iowa R. R. Co. v.Duggan, 60 111., 137. Evidence, 288. Chicago, and Michigan Lake Shore R. R. Co. V. Sanford, 23 Mich., 418. Eminent Domain, 199, 202, 217. Chicago and Milwaukee R. R. Co. v Bull, 20 111., 218. Eminent Domain, 209. Chicago and Mississippi R. R. Co. v. Patchin, 16 111., 198. Injuries to Domestic Animals, 351. Chicago and Northwestern R. R. Co. v. Ames, 40 111., 249. Carriage of Live Stock, 66. V. Barrie, 55 111., 226. Injuries to Domes- tic Animals, 343, 366. V. Boone County, 44 111., 240. Taxation, 737, 738. V. Borough of Fort Howard, 21 Wis., 44. V. Dement, 44 111., 74. Injuries to Do- mestic Animals, 362. V. Diehl, 52 111., 441. Injuries to Domes- tic Animals, 366. V. Fillmore, 57 111., 265. Bridges, 59 Dam- ages, 171. Evidence, 280. V. Goss, 17 "Wis., 428. Injuries to Domes- tic Animals, 345, 349. V. Harris, 54 111., 528. Injuries to Domes- tic Animals, 366. V. Jackson, 55 111., 492. Damages, 171. Injuries to Employes, 386. V. James, 22 Wis., 194. Officers, 560. Chicago and Northwestern R. R. Co. v. James, 24 Wis., 388. Agency, 13. V. Lee County, 44 111., 248. Taxation, 738. V. McCahill, 56 111., 28. Fires, 308, 309. V. Montfort, 60 111., 175. Carriage of Merchandise, 75. V. Nichols, 57 111 , 464. Pleading, 573. V. Peacock, 48 111., 353. Injuries to Pas- sengers, 418, 433. V. Shultz, 55 111., 431. Injuries to Do- mestic Animals, 381. V. Simonson, 54 111., 504. Fires, 306. V. Sweet, 45 111., 197. Injuries to Em- ployes, 388, 399. V. Sweeney, 52 111., 325. Injuries to Per- sons on the Track, 458. V. The People, 56 111., 365. Elevators, 188, 189. V. Van Dresar, 22 Wis., 511. Carriage of Live Stock, 65. V. Williams, 44 111., 176. New Trials, 553. V. Williams, 55 111., 185. Injuries to Pas- sengers, 415. Ladies Car, 495. Chicago and Rock Island R. R. Co. v. Coal and Iron Co., 36 111., 60. V. Crandall, 41 111., 234. New Trials, 554. Fahey, 52 111., 81. Baggage, 36. V. Fell, 22 111. 333. Certiorari, 112. Pro- cess, 589. V. Hutchins, 34 111., 108. Evidence, 285. V. McJKean, 40 111., 218. Damages, 171, 172. Injuries to Persons on the Track, 451. V. Morris, 26 111., 400. Injuries to Em- ploygs, 399. Injuries to Persons on the Track, 468. V. Northern Illinois Coal and Iron Co., 36 111., 60. Contracts, 158. V. Reid, 34 111., 144. Injuries to Domes- tic Animals, 354, 363. V. Still, 19 111., 499. Injuries to Persons on the Track, 460. V. Supervisors of Bureau County, 25 HI., 580. Taxation, 738. v. Ward, 16 111., 523. Fences, 399. V. Warren, 16 111., 503. Carriage of Mer- chandise, 108. V. Whipple, 23 111., 105. Injuries to Do- mestic Animals, 381. V. Whipple, 23 111 , 337. Certiorari, 113. Chicago, Burlington and Quincy R. R. Co. v. Banker, 44 111., 36. Evidence, 287. V. Carter, 20 III., 390. Injuries to Domes- mestic Animals, 358. V. Cauffman, 38 111., 434. Injuries to Do- mestic Animals, 347, 350. TABLE OF CASES. 817 Chicago Burlington and Quincy R. R. Co. v. Cauffman, 28 111., 513. Injuries to Domestic Animals, 349. V. Coleman, 18 111., 397. Evidence, 282. Pleading, 578. V. Dewey, 36 111., i55. Injuries to Pas- sengers, 412. Injuries to Persons on the Track, 470. V. Dunn, 53 111., 260. Husband and Wife, 331. V. Dunn, 53 111., 451. Injuries to Persons on the Track, 473. V. Frary, 22 111., 34. Taxation, 746. V. George, 19 III., 510. Evidence, 288. Injuries to Passengers, 433. Time Table, 763. V. Gregory, 58 111, 273. Injuries to Em- ployls, 394. V. Hazzard, 36 111., 373. Inj^iries to Pas- sengers, 404, 413, 436, 437. Pleading, 574. V. Knox College, 34 111., 195. Ejectment, 186. V. Lee, 60 111., 501. Injuries to Persons on the Track, 455. V. Magee, 60 111., 529. Injuries to Do- mestic Animals, 366. Pleading, 577. V. Minard, 30 111., 9. Process, 591. V. Page, 1 Bissell (U. S. C. C), 461. Tax- ation, 744. V. Parks, 18 111., 460. Discrimination, 183. Injuries to Passengers, 418. Tickets, 760. V. Payne, 49 111., 499. V Payne, 59 111., 534. Injuries to Persons on the Track, 460. V. Riddle, 60 111., 534. Evidence, 279. V. Seirer, 60 111., 295. Injuries to Domes- tic Animals, 366. V. Stumps, 55 111., 367. Injuries to Pas- sengers, 443. Injuries to Persons on the Track, 455. V. Triplett, 38 111., 483. Injuries to Per- sons on the Track, 448. Negligence, 548. V. Wilson, 17 111., 133. Eminent Domain, 352. V. Woodsides, 10 la., 465. Steamboats, 626. Chicago, Cincinnati and Louisville R. R. Co., V. West, 37 Ind., 311. Construction of Rail- ways, 147. Evidence, 389. Chicago, Rock Island and Pacific R. R. Co , v. Collins, 56 111., 313. Baggage, 35, 41. v. Dignan, 56 111., 487. Injuries to Per- son^ on the Track, 474. 53 Chicago, Rock Island and Pacific R. R. Co., V. Herring, 57 111., 59. 'Injm-ies to Pas- sengers, 433. V. Fairclough, 53 111., 106. Baggage, 43. V. Hurst, 30 Iowa, 73. Eminent Domain, 305. — - V. MoAra, 53 111., 396. Injuries to Passen- gers 427, 433. V. Otto, 52 111., 416. Injuries to Passengers, 440. Chicago, St. Charles and Mississippi R. R. Co. V. Lamed, 26 111., 318. Attorneys, 31. Chicago, St. Paul and Fond du Lac R. R. Co., V. McCarthy, 30 111., 385. Construction of Railways, 148. Chidester v. Springfield, Illinois, etc., R. R. Co., 59 111., 87. Contracts, 150. Childs V. Central R. R. Co., 4 Vroom (N. J.), 333. Eminent Domain, 310. V. Little Miami R. R. Co., 1 Cincinnati Superior Ct. Rep., 480. Chillicothe and Brunswick R. R. Co. v. Mayor of Brunswick, 44 Mo., 553. Subscriptions by Counties, 676, 677. Choppin V. New Orleans and Carrollton E. R- Co., 17 La. An., 19. Injuries to Passengers, 438. Master and Servant, 519. Chrismer v. St. Louis, Kansas City and North- ern R. R. Co., 54 Mo., 153., Justice of the Peace, 494. Church V. Northern Central R. R. Co., 45 Penn. St., 339. Eminent Domain, 362. Cincinnati and Chicago R. R. Co. v. Calvert, 18 Ind., 489. Injuries to Domestic Animals, 371. V. Huncheon, 16 Ind., 436. Injunction, 340. 44. V. McCool, 36 Ind., Merchandise, 101. V. Kodgers, 34 Ind., 103. Damages, 171. ' V. Rowe, 17 Ind., 568. Trespassing Ani- mals, 776. V. Washburn, 35 Ind., 359. Specific Performance, 630. Cincinnati and Ft. Wayne R. R. Co. v. Mc- Clelland, 15 Ind., 235. Cincinnati and Indiana R. R. Co. v. Zinn, 18 Ohio St., 417. Eminent Domain, 329. Cincinnati and Martinsville R. R. Co. -f. Pas- kins, 36 Ind., 380. Injuries to Domestic Animals, 359. V. Townsend, 39 Ind., 38. Cincinnati and Spring Grove Street R. R. Co. Marcus, 38 111., 319. Baggage, 33, 34, 140. Carriage of 818 TABLE OF CASES. V. Cumminsville, 14 Ohio St., 533. Street Railways, 647. 648. Cincinnati and Zanesville R. R. Co. v. Smith, 23 Ohio St., 227. Injuries to Domestic Animals, 345, 363. Cincinnati City v. Morgan, 3 Wallace, 275. Mortgage, 529. Municipal Corporations, 545. Cincinnati College v. Nesmith, 2 Cincinnati Superior Ct Rep., 34. Street Railways, 648. Cincinnati, Hamilton and Dayton R. R. Co. v. Ahr, 3 Cincinnati Superior Ct. Rep., 504. Nuisance, 558. V. Pontius, 19 Ohio St., 221. Carriage of Merchandise, 69, 75. — - V. Spratt, 3 Duvall (Ky.), 4. Carriage of Merchandise, 71. Evidence, 284. Insur- ance, 481. V. "Waterson, 4 Ohio St., 434. Injuries to Domestic Animals, 351. Cincinnati, Logansport and Chicago R. R. Co. V. Knowlton, 11 Ind., 339. Cincinnati, Peru and Chicago R. R. Co. v. Cochran, 17 Ind., 516. Evidence, 291. v.Emrick, 19 Ind., 289. Evidence, 201. — V. Walker, 14 Ind., 364. Cincinnati Union and Ft. Wayne R. R. Co. v. Pearce, 38 Ind., 502. Conveyance, 163. - — y. Sipe, 11 Ind., 67. Jurisdiction, 488. V. Wynne, 14 Ind., 385. Pleading, 573. Cincinnati, Wabash and Michigan R. R. Co. V. Wells, 39 Ind., 539. Subscriptions by Counties, 683. Cincinnati, Wilmington and Zanesville R. R. Co. V. Commissioners of Clinton County, 1 Ohio St., 77. Subscriptions by Counties, 676, 678. V. Iliff, 13 Ohio St., 335. Right of Way, 608. Citizens' Passenger R. R. Co. v. Philadelphia, 49 Penn. St,, 251. Taxation, 744. City V. Empire K. R. Co., 7 Philadelphia Rep. (Penn.), 321. Street Railways, 650. City Bank v. Rome, Watertown and Ogdens- burgh R. R. Co., 44 N. Y., 136. Bill of Lad- ing, 51. City Bank of Kenosha v. McClellan, 21 Wis., 113. Mortgage, 538, 537. City Council of Augusta v. Georgia R. R. Co., 36 Ga., 651. Taxation, 753. City of Aurora v. West, 33 Ind., 88. Sub- scriptions by Cities and Towns, 663, 671, 673. Subscriptions by Counties, 675. City of Brooklyn v. Brooklyn City R. R. Co., 57 Barbour (N. Y.), 497. City of Charleston v. Branch, 15 Wallace, 470. Taxation, 751. City of Columbus v. Columbus and Shelby R. R. Co., 37 Ind., 394. Eminent Domain, 240. Cify of Ohio v. Cleveland and Toledo R. R. Co., 6 Ohio St., 489. ' Stock and Stockhold- ers, 633. City of Ottawa v. Chicago and Rock Island R.R. Co., 25 111., 47. Chicago and Rock Island R. R. Co., 35 111., 43. Claflin V. Boston and Lowell R. R. Co., 7 Allen (Mass.), 341. Carriage of Merchan- dise, 108. Sales, 613. Clapp V. Cedar County, 5 la., 15. Subscrip- tions by Counties, 675, 677, 678, 679, 686. V. Hudson River R. R. Co., 19 Barbour (N. Y.), 46 1. Injuries to Employes, 437. Clark V. Boston and Concord R. R. Co. 34 N. H., 114. Eminent Domain, 234. — ' — V. Chapman, 45 Ga., 48». Garnishment, 320. V. Connecticut River R. R. Co., 6 Gray (Mass.), 363. Replevin, 605. V. Eighth Avenue R. R. Co., 36 N. Y., 135. Street Railways, 657. V. Eighth Avenue R. R. Co., 32 Barbour (N. Y.), 657. Street Railways, 657. V. Eighth Avenue R. R. Co., 34 Howard's Pr. (N. Y.), 315. Street Railways, 657. V. Hannibal and St. Joseph R. R. Co., 36 Mo., 202. Eminent Domain, 229, 374. Plead- ing, 577. V. Janesville, 10 Wis., 136. Statutes, 625. Subscriptions by Cities and Towns, 663, 683, 673. Subscriptions by Counties, 676. v. Janesville, 13 Wis., 414. Subscriptions by Cities and Towns, 667, 671. V. Lowell and Lawrence R. R. Co., 9 Gray (Mass.), 231. Carriage of Merchandise, 94. V. Pacific R. R. Co., 39 Mo., 184. Car- riage of Merchandise, 100 V. Second and Third Street R. R. Co., 3 Philadelphia Rep. (Penn.); 359. Eminent Domain, 346. V. Southern Pacific R. R. Co., 37 Tex., 100. Evidence, 386. V. Syracuse and Utica R. R. Co., 11 Bar- bour (N. Y.), 113. Injuries to Domestic An- imals, 349. V. Vermont and Canada R. R. Co., 38 Vt., 108. Eminent Domain, 326. V. Western North Carolina R. R. Co., Winston's Law (N. C), 109. Injuries to Do! mestic Animals, 378. TABLE OF CASES. 819 Clarke v. City of Rochester, 28 N. Y., 605. Subscriptions by Cities and Towns, 668. Subscriptions by Counties, 676. V. Farnum, 7 R. I., 174. Sales, 613. V. Rocliester, 14 Howard's Pr. (N. T.), 193, Subscriptions by Cities and Towns, 663. Subscriptions by Counties, 676. V. Rocbester, 13 Howard's Pr. (N. Y.), 204. Subscriptions by Cities and Towns, 663. Subscriptions by Counties, 676. V. Rochester and Syracuse R. R. Co., 14 N. Y., 570. Carriage of Live Stock, 63. V. Rochester, Lockport and Niagara Falls R. R. Co., 18 Barbour (N. Y.), 350. Emi- nent Domain, 324. Private Ways and Cross- ings, 589. Clark's Administrator v. Parkville and Graijd River R R. Co., 5 Kans., 655. Process, 589. Clarkson v. Clarkson, 18 Barbour (N. Y.), 646. Wills, 782. V. Hudson River R. R. Co., 12 N. Y., 304. Eminent Domain, 198. Clearwater v. Meredith et al., 1 Wallace, 25. Consolidation,d83. Pleading, 583, 583. Cleavelands v. Grand Trunk R. R. Co., 42 Vt., 449. Fires, 302, 306, 312. Clem V. Newcastle and Danville R. R. Co., 9 Ind., 488, Subscriptions by Individuals, 705. Clemens v. Hannibal and St. Joseph R. R. Co., 53 Mo., 366. Fires, 303, 304. Cleneay v. Junction R. R. Co., 26 Ind., 375. Garnishment, 317. Cleveland v. State Bank of Ohio, 16 Ohio St. 236. Municipal Corporations, 547. Cleveland and Pittsburgh R. R. Co. v. Ball, 5 Ohio St., 568. Eminent Domain, 234, 239, 258. V. Kelley, 5 Ohio St, 180. Construction of Railways, 146. Rowan, 66 Penn. St.,' 393. Injuries to Persons Generally, 445, 446. Negligence, 550. V. Sargent, 19 Ohio St., 438. Carriage of Merchandise, 97. V. Speer, 56 Penn. St., 325. Charter, 114, 121. Eminent Domain, 240, 246, 250. Lo- cation, 513. V. Stackhouse, 10 Ohio St., 567. Emi- nent Domain, 273. V. Sutherland, 19 Ohio St., 151, Injuries to Passengers, 427. Cleveland and St. Louis R. R. Co. v. Pattison, 15 Ind., 70. Cleveland and Toledo R. R. Co. v. Johnson, 10 Ohio St., 591. Negligence, 547. Cleveland and Toledo R. R. Co. v. Perkins, 17 Mich., 396. Carriage of Live Stock, 64, 65. V. Prentice, 13 Ohio St., 373. Eminent Domain, 199. Cleveland, Columbus and Cincinnati R. R. Co. V. Bartram, 11 Ohio St., 457. Injuries to Passengers, 419, 423. V. Crossly, 36 Ind., 870. Injuries to Do- mestic Animals, 361. V. Elliott, 4 Ohio St., 474. Injuries to Domestic Animals, 350. V. Keary, 3 Ohio St., 301. Injuries to Do- mestic Animals, 386. V. Swift, 42 Ind., 119. Injuries to Domes- tic Animals, 370. V. Terry, 8 Ohio St., 570. Injuries to Per- sons on the Track, 473. Cleveland, Painesville and Ashtabula R. R. Co. V. Commonwealth, 4 Brewster (Penn.), 188. Taxation, 789. V. Curran, 19 Ohio St., 1. Injuries to Passengers, 430. V. Erie, 27 Penn. St., 380. Charter, 115. V. Erie, 1 Grant's Cases (Penn.), 212. V. Stanley, 7 Ohio St, 155. Jury, 494. Clinton Bridge, 10 Wallace, 454. Bridges, 59. , 1 Woolworth (U. S. C. C), 150. Bridges, 59. Clinton and Port Hudson R. R. Co. v. Brown, 21 La. An., 348. Mortgage, 544. V. Easton, 14 La. An., 828. Limitations, 510. Stock and Stockholders, 629. Clinton City v. Cedar Rapids and Missouri River R. R. Co., 24 Iowa, 455. Eminent Domain, 247. Route, 611. Clopton V. Philadelphia and Reading R. R. Co., 54 Penn. St, 356. Taxation, 739. Clymer v. Central R. R. Co. of New Jersey, 5 Blatchford (U. S. C. C), 317. Injuries to Passengers, 436. Coakley v. North Pennsylvania R. R. Co., 5 Penn. Law Jour. Rep., 444. Injuries to Pas- sengers,- 433, 427. Coats V. Galena and Chicago Union R. R. Co., 18 Iowa, 277. Appeals, 19. Demun-er to Evidence, 177. Pleading, 580, 584. Cocheco R. R. Co. v. Parrington, 36 N. H., 438. Venue, 771. Coddington v. Gilbert, 17 N. Y., 489. Attach- ment, 39 V. Gilbert, 5 Duer (N. Y.), 73; 3 Abbott's Pr.,243; 17 N. Y., 489. V. Gilbert, 2 Abbott's Pr. (N. Y.), 242. Coe V. Beckwith, 10 Abbott's Pr. (N Y.), 296. Trust Deed, 769. 820 TABLE OF CASES. Coe V. Beckwith, 31 Barbour (N. Y.), 839. Trust Deed, 769. V. Beckwith, 19 Howard's Pr. (N. y.),399. Trust Deed, 769. T. Central Ohio R. R. Co., 10 Ohio St., 413. Mortgage, 541. V. Columbus, Piqua and Indiana R. R. Co., 10 Ohio St., 372. Eminent Domain, 272. Executions, 298. Mertgage, 527, 531, 532, 536, 537, 542. V. McBrown, 22 Ind., 252. Mortgage, 257. V. Peacock, 14 Ohio St., 187. Mortgage, 527, 539. Coffin V. Evansville and Crawfordsville R. R. Co., 7 Ind., 413. Appeals, 18. V. New York Central R. R. Co., 64 Bar- bour (N. Y.), 379. Carriage of Merchan- dise, 82. V. Rich, 45 Me., 507. Stock and Stock- holders, 635. Coggill v. Hartford and New Haven R. R. Co., 3 Gray (Mass.), 545. Sales, 612. Cohen v. Rome R. R. Co., 45 Ga., 293. Car- riage of Merchandise, 91. Colcock V. Louisville, Cincinnati and Charles- ton R. R. Co., 1 Strobhart's Law (So. Car.), 329. Consti-uction of Railways, 143. Colcough V. Nashville and Northwestern R. R. Co. 2 Head. (Tenn.), 171. Eminent Domain, 193, 259. Cole V. Dyer, 29 Ga., 434. Subscriptions by Individuals, 713. Colegrove v. Harlem and New Haven R. R. Co., 6 Duer (N. Y.), 882. Injuries to Pas- sengers, 436. Negligence, 550. V. New York and New Haven R. R. Co., 20 N. Y., 493. Injuries to Passengers, 43C. Negligence, 550. Coleman v. Mississippi and Alabama R. R. Co., 5 Howard (Miss.), 419. Jury, 494. Process, 591. V. New York and New Haven R. R. Co., 106 Mass., 160. Injuries to Passengers, 415. Instructions, 480. * V. Second avenue R. R. Co., 48 Barbour (N. Y.), 371. Street Railways, 647. V. Second Avenue R. R. Co., 38 N. Y., 201. Street Railways, 647. Collins V. Albany and Schenectady R. R, Co. 13 Barbour (N. Y.), 493. Damages, 171. Re- mittitur, 604. V. Albany and Schenectady R. R. Co., 5 Howard's Pr. (N. Y.), 435. Damages, 171. Collins V. Boston and Maine R. R. Co., 10 Gush- ing (Mass.), 506. , Baggage, 34. Carriage of Merchandise, 97. V. Central Bank of Georgia, 1 Ga., 435. Lien, 506. V. Chicago, St. Paul and Fond du Lac R. R. Co., 14 Wis., 492. Pleading, 576. Colt V. Ives, 31 Conn., 25. Stock and Stock- holders, 630. V. Sixth Avenue R. R. Co., 1 Jones & Spencer (N. Y.), 189. Street Railwaj'S, 655. Colton V. Cleveland and Pittsburgh R. R. Co., 67 Pcnn. St., 211. Carriage of Merchandise, 75. Columbus and Indianapolis Central R. R. Co. V. Arnold, 81 Ind., 174. Injuries to Employes, 887, 391, 892, 402. V. Farrell, 81 Ind., 408. Injuries to Pas- sengers, 404, 406. Columbus and Shelby R. R. Co. v Richard- son, 7 Ind., 543. Eminent Domain, 195. V. Watson, 26 Ind., 50. Cattle Guards, 110. Columbus and Xenia R. R. Co. v. Webb's Adm'x, 12 Ohio St., 475. Injuries to Em- ployes, 391. Columbus, Chicago and Indiiina Central R. R. Co. V. Brownlee, 39 Ind., 460. V. Powell, 40 Ind., 37. Consolidation, 134. Injuries to Passengers, 417, 418. V. Starr, 34 Ind., 339. V. Troesch, 57 111., 155. New Trials, 554. Columbus, Piqua and Indiana R. R. Co. v. Simpson, 5 Ohio St., 251. Eminent Domain. 338. Colvill V. St. Paul and Chicago R. R.Co., 19 Minn., 288. Eminent Domain, 236, 357. Colwell V. New York and Erie R. R. Co., 9 Howard's Pr. (N. Y.), 311. Pleading, 577. Comings v. Hannibal and Central Missouri R. R. Co., 48 Mo.. 513. Fences, 300. Commissioners of Central Park, In Matter of, 63 Barbour (N. Y.),282. Franchises, 314. Commissioners of Clinton and Port Hudson R. R. Co. V. Kernan, 10 Robinson (La.), 174, 176. Interest, 482. Officers, 560. Commissioners of Crawford County v. Louis- ville, New Albany and St. Louis R. R. Co., 39 Ind., 192. Subscriptions by Counlies, 675, 679, 683. Subscriptions by Townships, 734. Commissioners of Knox County v. McComb, 19 Ohio St., 320. Subscriptions by Coun- ties, 684. TABLE OF CASES. 821 Commissioners of Knox County v. Nicliols, 14 Ohiij St., 360. Subscriptions by Coun- ties, 676, 677. Commissioners of Washington County v. Franklin R. R. Co., 34 Md., 159. Charter, 131. Taxation, 753. Commonwealth v. Bakeman, 105 Mass., 53. Obstructing Railway Tracks, 559. V. Boston and Lowell R. R. Co., 13 Cush- ing (Mass.), 254. Highway, 338. V. Boston and Maine R. R. Co., 3 Cush- ing (Mass.), 25. Eminent Domain, 214, 322, 356. Process, 593. States, 631. V. Boston and Worcester R. R. Co., 101 Mass., 201. Highway, 336. V. Boston and Worcester R. R. Co., 11 Cushing (Mass.), 513. Indictment, 333. V. Capp, 48 Penn. St., 53. Street Rail- ways, 644. V. Carey, 13 Cushing (Mass.), 246. Murder, 547. V. Central Passenger R. R. Co., 53 Penn. St., 506. Charter, 119, 120. Repeal, 604. Stock and Stockholders, 637. Street Rail- ways, 647. V. Cleveland and Pittsburgh R. R. Co., 63 Penn. St., 386. V. Cleveland, Painesville and Ashtabula R. R. Co., 39 Penn. St., 370. Taxation, 744. v. Commissioners of Allegheny County, 33 Penn. St., 218. Subscriptions by Coun- ties, 685. v. Connecticut River R. R. Co., 15 Gray (Mass.), 447. Attorneys, 31. Baggage, 36. V. Cross Cut R. R. Co., 53 Penn. St., 63. Connecting Lines, 133. Pleading, 583. Quo Warranto, 595. Statutes, 634. V. Brie R. R. Co., 63 Penn. St., 286. Taxa- tion, 743. V. Erie and Kortheast R. R. Co., 27 Penn. St., 339. Charter, 118. Eminent Domain, 243. V. Eastern R. R. Co., 5 Gray (Mass.), 473. Indictment, 333. V. Fayette County R. R. Co., 55 Penn. St., 452. Taxation, 751. V. Pitchburg R. R. Co., 12 Gray (Mass), 180. Forfeiture, 313. V. Fitchburg R. R. Co., 10 Allen (Mass.), 189. Injuries to Persons on the Track, 467. V. Hartford and Kew Haven R. R. Co., 14 Gray (Mass.), 379. Highway, 337. V. Lackawanna and Bloomsburg R. R. Co., 63 Penn. St., 386. V. Mc Williams, 11 Penn. St., 61. Sub- scriptions by Counties, 676. Commonwealth v. Nashua and Lowell R. R. Co., 2 Gray (Mass.), 54. Highways, 338. Nuisance, 558. V. Ohio and Pennsylvania R. R. Co., 1 Grant's Cases (Penn.), 339. Penalties, 570. V. Old Colony and Pall River R. R. Co., 14 Gray (Mass.), 93. Highway, 338. V. Perkins, 43 Penn. St., 400. Subscrip- tions by Counties, 676. V. Philadelphia and Reading R. R. Co., 63 Penn. St., 386. V. Pittsburgh and Connellsville R. R. Co., 34 Penn. St., I.'i9. Injunction, 335. V. Pittsburgh, Ft. Wayne and Chicago, R. R. Co., 36 Penn. St., 99. V. Power, 7 Metcalf (Mass.), 596. Depot, 178. V. Ray, 3 Gray (Mass.), 441. Costs, 168. V. Smith, 10 Allen (Mass.), 448. Mort- gage, 533. V. The Councils of Pittsburg, 41 Penn- St., 378. Subscriptions by Counties, 676. Subscriptions by Cities and Towns, 663. V. Tuckerman, 10 Gray (Mass.),' 173. Em- bezzlement, 190. V. Vermont and Massachusetts R. R. Co., 108 Mass., 7. Indictment, 333. Injuries to Passengers, 443. V. Vermont and Massachusetts R. R. Co.,' 4 Gray (Mass.), 33. Highways, 336, 337. V. West Chester R. R. Co., 3 Grant's Cases (Penn.), 300. Charter, 117. Subscriptions' by Individuals, 711. Commonwealth ex rel. v. Alleghany County, 32 Penn. St., 218. Subscriptions by Counties, 676. • v Atlantic and Great Western R. R. Co., 53 Penn. St., 9. Consolidation, 134. V. Pennsylvania R. H. Co., 51 Penn. St., 351. Conti-acts, 150. V. Philadelphia, etc., R. R. Co., 30 Penn. St., 518. Quo Warranto, 595. V. Pittsburgh and Connellsville R. R. Co., 58 Penn. St., 36. Charter, 113. Federal Courts, 396. Pleading, 583. Compton V. Susquehanna R. R. Co., 3 Bland's Ch. (Md.), 386. Eminent Domain. 196. Comstock V. Des Moines Valley R. R. Co., 33 Iowa, 376. Injuries to Domestic Animals, 355, 373. Comstock & Co. v. AfFoelter, 50 Mo., 411. Conant v. Van Schaick, 24 Barbour (N. Y.), 87. Stock and Stockholders, 636. Concord R. R. Co. v. Clough, 49 N. H., 257. Conductor, 128. 822 TABLE OF CASES. Concord R. R. Co. v. Greely, 20 N. H., 157. Eminent Domain, 216. V. Greely, 3 Foster (N. H.), 337. Emi- nent Bomain, 227, 228, 256. V. Greeley, 17 N. H., 47. Eminent Do- main, 268. Condict V. ftrand Trunk R. R. Co., 4 Lansing (N. f .), 106. Carriage of Merchandise, 73. V. Grand Trunk R. R. Co., 54 N. T., 500. Carriage of Merchandise, 75. Condon v. South Side R. R. Co., 14 Grattan (Va.), 302. Construction of Railways', 140. Congar v. Chicago and Northwestern R R. Co., 34 Wis., 157. Carriage of Merchan- dise, 95. V. Galena and Chicago Union R. R. Co., 17 Wis., 477. Carriage of Merchandise, 84, 108. Continuance, 149. Jurisdiction, 491. Conger v. Chicago and Rock Island R. R. Co., 15 111., 866. Right of Way, 607. V. Hudson River R. R. Co., 7 Abbott's Pr. (N. Y.), 355. Costs, 166. V. Hudson River R. R. Co., 6 Duer (N. Y.), 375. Carriage of Merchandise, 79. Conhoctfln Stone Co. v. BuflFalo, New York and Erie R. R. Co., 53 Barbour (N. Y.), 390. Nuisance, 558. V. Buffalo, New York and Erie R. R. Co., 51 N. Y., 573. Nuisance, 557. Conine v. Junction and Breakwater R. R. Co., 3 Houston Pel.), 388. Bills and Notes, 48. Seal, 614. Conkey v. Milwaukee and St. Paul R. R. Co., 81 Wis., 619. Carriage of Merchandise, 73, Warehousemen, 774. Conlin v. San Francisco and San Jose R. R. Co., 36 Cal., 404. Injuries to Employes, 401. Connersville and Newcastle Junction R. R. Co. v. Calloway, 34 Ind., 359. Connecticut and Passumpsic Rivers R. R. Co. V. Bailey, 24 Vt., 465. Subscriptions by In- dividuals, 690, 701, 716, 719. V. Bates, 32 Vt., 420. Appeals, 20. V. Baxter, 33 Vt., 805. Subscriptions by Individuals, 703. V. Bliss, 24 Vt, 411. Audita Querela, 32. v. Cooper, 30 Vt., 476. Venue, 773. V. Holton, 33 Vt., 43. Eminent Domain, 334, 265. V. Newell, 31 Vt., 364. Bills and Notes, 48. Practice, 587. Connecticut Mutual Life Insurance Co. v. Cleveland, Columbus and Cincinnati R. R. Bonds of Co., 26 Howard's Pr. (N. Y.), 235. Railway Companies, 53, 54, 56. ConMcticiit Mutual Life Insurance Co. v. Cleveland, Columbus and Cincinnati R. R. Co., 41 ^arbour (N. Y.), 9. Bonds of Railway Companies, 53, 54, 56. V. Cleveland, Columbus and Cincinnati R. B. Co., 23 Howard's Pr. (N. Y.), 180. Bonds of Railway Companies, 53, 54, 56. V. New York and New Haven R. R. Co., 35 Conn., 365. Insurance, 481. Connecticut River R. R. Co. v. Clapp, 1 Gush- ing (Mass.), 559. Eminent Domain, 200. Ver- dict, 773. V. Williston, 16 Gray (Mass.), 64. Con- tracts, 149. Connoly v. Alabama and Tennessee Rivers R. R. Co., 29 Ala., N. S., 373. Subscriptions by Individuals, 727. Contoocook Valley R. B. Co. v. Barker, 32 N. H., 363. Subscriptions by Individuals, 718. Contra Costa R. R. Co. v. Moss, 23 Cal., 324. Eminent Domain, 193, 253, 268. Convers v. Grand Rapids and Indiana R. R. Co., 18 Mich., 459. Eminent Domam, 198, 313,314. Jury, 494. Converse v. Norwich and New York Trans- portation Co., 33 Conn., 166. Carriage of Merchandise, 84. Cook V. City of Burlington, 30 la., 94. Emi- nent Domain, 342. V. Erie R. R. Co., 58 Barbour (N. Y.), 312. Carriage of Merchandise, 83, 96. V. Metropolitan R. R. Co., 98 Mass., 361. Street Railways, 652. V. New York Central R. R. Co., 5 Lansing (N. Y.), 401. Attorney, 32. Injuries to Per- sons on the Track, 457. V. New York Central R. R. Co., 3 Keyes (N. Y.), 476. Negligence, 548. V. New York Central R. R. Co., 1 Abbott's Ct. of Ap. Dec, 432. Negligence, 548. V. North and South R. R. Co., 46 Ga., CIS. Injunction, 337. V. The State, 4 Vroom (N. J.), 474. Taxa- tion, 750. Cook County V. Chicago, Burlington and Quin- cy R. R. Co., 35 111., 460. Taxation, 757. Cooke V. Illinois Central R. R. Co., 30 la., 202. Injuries to Domestic Animals, 383. Cooley V. Brainerd, 38 Vt., 394. Injuries to Domestic Animals, 356. Coon V. North Carolina R. R. Co., 65 N. C, 507. Highway, 337. TABLE OF CASES. 623 Coon V. Syracuse and Utica E. K. Co., 5 N. Y., 493. Injuries to Employes, 388. V. Syracuse and Utioa R. R. Co., 6 Bar- l)0ur(N. Y.), 231. Injuries to Employgs, 388. Cooper V. Chester R. R. Co., 4 C. E. Green's Ch. (N. Y.), 199. Eminent Domain, 301. V. Grand Trunk R. R. Co., 49 N. H., 309. Pleading, 579. V. Milwaukee and Prairie du Chien R. R. Co., 33 Wis., 668. Injuries to Employes, 883. V. Second and Third Streets R. R. Co., 3 Philadelphia Rep. (Penn.), 363. Injunction, ■388. Coopers & Clark v. Wolf, 15 Ohio St., 538. Mortgage, 537. Corey v. Buffalo, Corning and New York R. R. Co., 38 Barbour (N. Y.), 483. Eminent Domain, 345. Corse Brothers v. Sanford, 14 la., 335. Evi- dence, 378. Stock and Stockholders, 636. Corwin v. New York and Erie R. R. Co., 13 N. Y., 43. Injuries to Domestic Animals, 376, 377. Cornwall v. Sullivan R. R. Co., 38 N. H., 161. Injuries to Domestic Animals, 376. Cosgrove v. Tebo and Neosho R. R. Co., 54 Mo., 495. Construction of Railways, 146. Process, 598. V. Tebo and Neosho R. R. Co., 50 Mo., 270. Practice, 586. Costello V. Syracuse, etc., R. R. Co., 65 Barbour (N. Y.), 93. Injuries to Persons on the Track, 469. Coster V. New Jersey R. R. Co., 4 Zabriskie (N. J.), 730. Eminent Domain, 193, 318. V. New Jersey R. R. Co., 3 Zabriskie (N. J.), 237. Eminent Domain, 193, 195. V. New York and Erie R. R. Co., 6 Dutr (N. Y.), 677. Pleading, 578. New York and Erie R. R. Co., 5 Duer (N. Y.), 43. Pleading, 578. • V. New York and Erie R. R. Co., 3 Ab- bott's Pr. (N. Y.), 333. Pleading, 578. Costigan v. Mohawk and Hudson R. R. Co., 3 Denio (N. Y.), 609. Damages, 178. Cott V. Lewiston R. R. Co., 36 N. Y., 314. Wa- tercourses, 778. V. Lewiston R. R. Co., 34 Howard's Pr. (N. Y.), 323. Watercourses, 778. Cotton V. Leon County, 6 Fla., 610. Subscrip- tions by Counties, 675. County Court of Fayette v. Lexington and Big Sandy R. R. Co., 17 B. Monroe (Ky.), 335. Subscriptions by Counties, 682. County Judge of Shelby County v. Shelby R. R. Co., 5 Bush (Ky.), 335. Subscriptions by Individuals, 730. Taxation, 748. Courser v. Vermont Central R. R. Co., 35 Vt., 476. Eminent Domain, 308. Covey V. Pittsburgh, Ft. Wayne and Chicago R. R. Co., 3 Philadelphia Rep, (Penn.), 173. Executions, 393. Mortgage, 537. Covington and Lexington R. R. Co. v. Ingles, 15 B. Monroe (Ky.), 687. Evidence, 279, 386. V. Kenton County Court, 13 B. Monroe (5y-), 144. Subscriptions by Counties, 683. Cowen V. St Louis and Iron Mountain R. R. Co., 48 Mo., 556. Appeals, 19. Cowles V. Chicago, Rock Island and Pacific R. R. Co., 33 la., 515. Verdict, 773. Cowley V. Grand Rapids and Indiana R. R. Co., 18 Ind., 61. Directors, 182. Cox V. Macon and Western R. R. Co., 12 Ga., 370. Writ of Error, 783. V. Mobile and Girard R. R. Co., 37 Ala. N. S., 330. Surety, 785. V. Mobile and Girard R. R. Co., 44 Ala. N. S., 611. Equity, 375. Surety, 735. V. New York Central and Hudson River R. R. Co., 61 Barbour (N. Y.), 615. Process, 593. V. Western Pacific R. R. Co., 44 Cal., 18. Construction of Railways, 148. Mechanics' Liens, 530. Coy V. Utioa and Schenectady R. R. Co., 33 Barbour (N. Y.), 648. Injuries to Domestic Animals, 881. Cragin v. New York Central R. R. Co., 51 N. Y., 61. Carriage of Live Stock, 63. Craig V. Rochester City and Brighton R. R. Co., 39 Barbour (N. Y.), 494. Eminent Do- main, 348. V. Rochester and Brighton R. R. Co., 39 N. Y., 404. Eminent Domain, 343. Cranston v. Cincinnati, etc., R. R. Co., 1 Handy (Ohic), 193. Injuries to Domestic Animals, 350. Crawford v. New Jersey R. R. Co., 4 Dutcher (N. J.), 479. Penalties, 570. V. Railroad Co., 5 Philadelphia Rep. (Penn.), 359. Injuries to Persons on the Track, 465. Crawford County v. Pittsburgh and Erie R. R. Co., 33 Penn. St., 141. Jurisdiction, 493. Subscriptions by Counties, 689. Crawshay v. Soutter, 6 Wallace, 739. Mort- gage, 534. Credit Mobilier v. Commonwealth, 67 Penn. St., 233. Taxation, 743. 824 TABLE OF CASES. Crocker v. Crane, 21 Wendell (N. Y.), 311. Stock and Stockholders, 628. V. New London, Willlmantic and Palmer R. R. Co., 24 Conn., 249. Injuries to Passen- gers, 421. Crommelin v. New York and Harlem R. R. Co., 10 Bosworth (N. Y.), 77. Lien, 506. V. New York and Harlem R. R. Co., 1 Abbott's Ct. of Ap. Dec. (N. Y.), 473. De- murrage, 176. V. New York and Harlem R. R. Co., 4 Keyes (N. Y.), 90." Lien, 507. Crosby v. New London, Willimantic and Palmer R. R. Co., 36 Conn., 121. Mortgage, 533. Crowley v. Panama R. R. Co., 30 Barbour (N. Y.), 99. Injuries to Passengers, 433. Crown Hill R. R. Co. v. Armstrong, 39 Ind., 418. Street Railways, 659. Orowner v. Watertown and Rome R. R. Co., 9 Howard's Pr. (N. Y.), 457. Eminent Domain, 265. Cruger v. Hudson River R. R. Co., 13 N. Y., 190. Eminent Domain, 194, 314. Crutcher v. Memphis and Charleston R. R. Co., 38 Ala. N. S., 579. Cuff T. Newark and New York R. R. Co., 6 Vroom (N. J.), 574. Construction of Rail- ways, 148. V. Newark and New York R. R. Co., 6 Vroom (N. J.), 17. Construction of Rail- ways, 148. Culbreth v. Philadelphia, Wilmington and Baltimore R. R. Co., 3 Houston (Del.), 392. Carriage of Merchandise, 93, 96. Cumberland and Pennsylvania R. R. Co. v. State, 37 Md., 157. Negligence, 547. Cumberland Coal and Iron Co. v. Scully, 27 Md., .589. Injuries to Employes, 388. Cumberland Marine R. R. Co. v. Portland, 37 Me., 444. Taxation, 749. Cumberland Valley R. R. Go's Appeal, 63 Penn. St., 318. Injunction, 343. Pleading, 579. Rates, 597. V. Baab, 9 Watts (Penn.), 458. Bonus, 56. V. Hughes, 11 Penn. St., 141. Connecting Lines, 131. V. McLanahan, 59 Penn. St., 33. Eminent Domain, 359. Tenants in Common, 758. Warehousemen, 774, 775. V. Myers, 55 Penn. St., 388. Injuries to Passengers, 437. Cummings v. Buckfleld Branch R. R. Co., 35 Me., 478. Pleading, 584. Cummings v. Marwell, 45 Me,, 190. Stock and Stockholders, 635, 636. V. New York and Oswego Midland R. R. Co., 1 Lansing (N. Y.), 68. Censtruction of Railways, 146. V. White Mountains R. R. Co., 43 N. H., 114. New Trials, 553. Cunningham v. Edgefield and Kentucky R. R. Co., 3 Head (Tenn.), 33. Subscriptions by Individuals, 701, 705, 709. V. Rome R. R. Co., 27 Ga., 499. Injunc- tions, 336. V. Vermont and Massachusetts R. R. Co., 13 Gray (Mass.), 411. Stock and Stockhold- ers, 634. Currier v. Boston and Maine B. B. Co., 31 N. H., 209. Construction of Railways, 142, 143. V. Boston and Maine R. R. Co., 37 N. H., 233. Attorneys, 82. V. Concord R. R. Co., 48 N. H., 331. Mo- nopolies, 522. V. Marietta and Cincinnati R, R. Co., 11 Ohio St., 328. Eminent Domain, 265. V. West Side Elevated R. R. Co., 6 Blatch- ford (U. S. C. C), 487. Injunction, 335. Curtis V. Avon, Geneseo and Mount Morris R. R. Co., 49 Barbour (N. Y.), 148. Baggage, 41, 43. Process, 591. V. Central R. R. Co., 6 McLean, 401. De- positions, 177. Injuries to Passengers, 436. Pleading, 583. V. Chicago and Northwestern B, R. Co., 18 Wis., 312. Carriage of Merchandise, 93. V. County of Butler, 24 Howard, 435. Sub- scriptions by Counties, 674, 675. V. Detroit and Milwaukee R. R. Co., 27 Wis., 158. Injuries to Passengers, 404. V. Detroit and Milwaukee R. R. Co., 37 Wis., 158. V. Eastern R. R. Co., 14 Allen (Mass.), 5a. Watercourses, 779. V. Eastern R. R. Co., 98 Mass., 438. Drain- age, 185. V. Indianapolis anit St. Louis R. R. Co., 38 Ind., 322. Subscriptions by Individuals, 703. V. Rochester and Syracuse R. R. Co., 18 N. Y., 534. Damages, 173. Injuries to Pas- sengers, 413. V. Rochester and Syracuse R. R. Co., 20 Barbour (N. Y.), 282. Damages, 173. Injur- ies to Passengers, 413. V. Vermont Central R. R. Co., 23 Vt., 613. Fences, 298. TABLE OF CASES. 825 Cusliman v. Smith, 34 Me., 247. Eminent Do- main, 191, 374. Cutting Y. Grand Trunlc R. C. Co., 13 Allen (Mass.), 381. Carriage of Merchandise, 81. Outts V. Brainerd, 43 Vt., 566. Carriage of Mer- chandise, 73. D. Daily v. New York and New Haven R. R. Co., 32 Conn., 356. Negligence, 550. Evidence, 280. Daley v. Norwich and Worcester R. R. Co., 36 Conn., 591. Injuries to Persons on the Track, 464. New Trials, 555. Damont v. New Orleans and Carrollton R, R. Co., 9 La. An., 441. Injuries to Passengers, 405. Danbury and Norwalk R. R, Co. v. Town of Norwalk, 37 Conn., 109. Streets, 643. V. Wilson, 33 Conn., 435. Charter, 117. Subscriptions by Individuals, 690, 704, 706, 709, 711, 717, 734. Daniels v. Cheshire R. R. Co., 30 N. H., 85. Conveyance, 162. Watercourses, 777. V. Rock Island R. R. Co., 3 Wallace, 350. Jurisdiction, 489. Danner v. South Carolina R. R. Co., 4 Richard- son's Law (So. Car.), 339. Injuries to Domes- tic Animals, 346, 347. Dano V. Mississippi, Ouachita and Red River R. R. Co., 37 Ark., 564. Mechanics' Liens, 519. Danville v. Montpelier and St. Johnsbury R. R. Co., 43 Vt., 144. Subscriptions by Cities and Towns, 661. Dare v. Pacific R. R. Co., 31 Mo., 480. Plead- ing, 580. Darling v. Boston and Worcester R. R. Co., 11 Allen (Mass.), 395. Carriage of Merchandise, 73. Darwin v. Tuscumbia, etc., R. R. Co., 4 Porter (Ala.), 160. Judgment, 485. Dascomb v. Buffalo and State Line R. R. Co., 27 Barbour (N. Y.), 321. Injuries to Persons on the Track, 457. Dater v. Troy Turnpike and R. R. Co., 2 Hill (N. Y.), 629. Eminent Domain, 205. Tres- pass, 764. Davenport v. Mississippi and Missouri R. R. Co., 16 la., 348. Davenport, City of, v. Mississippi and Missou- ri R. R. Co., 13 la., 539. Taxation, 756, 757. Davey v. Bui'lington, Cedar Rapids and Min- nesota R. R. Co., 31 la., 553. Eminent Do- main, 205. David V. Southwestern R. R. Co., 41 Ga., 233. Injuries to Persons Generally, 445. Davidson v. Boston and Maine R. R. Co., 3 Cushing (Mass.), 91. Eminent Domain, 217, 233. V. Ramsey County, 18 Minn., 482. Sub- scriptions by Cities and Towns, 663. Sub- scriptions by Counties, 676. Davis V. Bangor and Piscataquis R- R. Co., 60 Me., 803. Eminent Domain, 214. V. Burlington and Missouri R. R. Co., 26 la., 549. Injui'ies to Domestic Animals, 355. V. Cayuga and Susquehanna R. R. Co., 10 Howard's Pr. (N. Y.), 330. Baggage, 35, 44. V. Central R. R. Co., 17 Ga., S33. Injuries to Domestic Animals, 365. V. Charles River Branch R. R. Co., 11 Cushing (Mass.), 506. Eminent Domain, 200, 238, 257. Offer to Compromise, 559. V. Chicago and Northwestern R. R. Co., 18 Wis., 175. Injuries to Passengers, 406. V. Cincinnati, etc., R. R. Co., 1 Disney (Ohio), 23. Carriage of Merchandise, 81. V. Detroit and Milwaukee R. R. Co., 20 Mich., 105. Injuries to Employis, 400. In- structions, 479. V. East Tennessee and Georgia R. R. Co; 1 Sneed (Tenn.), 94. Eminent Domain, 254. T. Kansas City, St. Joseph and Council Bluffs R. R. Co., 53 Mo., 317. Tickets, 761. V. La Crosse and Milwaukee R. R. Co., , 13 Wis., 16. Eminent Domain, 260, 271, 273. V. Leominster, 1 Allen (Mass.), 182. High-' ways, 336. V. Mayor of New York, 14 N. Y., 506. Eminent Domain, 348. Street Railways, 647. V. Michigan Southern and Northern In- diana R. R. Co., 30 111., 412. Carriage of Merchandise, 103. V. Michigan Southern, etc., R. R. Co., 23 111., 278. Baggage, 34, 36, 40. V. Mississippi Central R. R. Co., 46 Miss., 552. Confederate Money, 128, 129, • V. New York and Erie R. R. Co., 1 Hilton (N. Y.), 543. Carriage of Live Stock, 65. V. New York Central and Hudson River R. R. Co., 52 N. Y., 639. V. New York Central R. R. Co., 47 N. Y. 400. Injuries to Persons on the Track, 452. V. North Pennsylvania R. R. Co., 2 Phil- adelphia Rep. (Penn.), 146. Eminent Do- main, 201. 823 TABLE OF CASES. Davis V. The Mayor, etc., 3 Duer (N. Y.), 663. Street Railways, 647. V. The Mayor, etc., 1 Duer (N. Y.), 513. Street Railways, 647. V. Tuscumbia, etc., R. R. Co., 4 Stewart and Porter (Ala.), 421. Eminent Domain, 268. Day V. New York Central R. K. Co., 51 N. Y., 583. Statute of Frauds, 625. v. New York Central R. R. Co., 53 Bar- bour (N. Y.), 350. Statute of Frauds, 626. V. New York Central R. R. Co., 31 Bar- bour (N. Y.), 548. Statute of Frt-uds, 626. Dayton and Cincinnati R. R. Co. v. Hatch 1 Disney (Ohio), 84. Charter, 114. Stock and Stockholders, 627. Dayton and Western R. R. Co. v. Marshall, 11 Ohio St., 497. Eminent Domain, 198. Dayton, Xenia and Bclpre R. R. Co. v. Lew- ton, 20 Ohio St., 401. Riglit of Way, 606. Deanv. Sullivan R. R. Co., 2 Foster (N. H.), 316. Fences, 300. Dearborn v. Boston, Concord and Montreal R. R. Co., 24 N. H., 179. Eminent Domain, 228. Evidence, 284, 286. De Camp v. Mississippi and Missouri R. R., Co., 13 la., 348. Injuries to Domestic Ani- mals, 883. Instructions, 479. Dedham and West Roxbury R. R. Co. v. Met- ropolitan R. R. Co., 8 Allen (Mass.), 279. Eminent Domain, 250. Deering v. York and Cumberland R. R Co., 31 Me., 172. Constitutional Law, 138. Delamatyr v. Milwaukee and Prairie du Chien R. R. Co., 34 Wis., 578. Evidence, 285. In- juries to Passengers, 408. Delaware R. R. Co. v. Thorp, 5 Harrington Pel.), 454. Charter, 125. V. Thorp, 1 Houston (Del.), 149. Sub- scriptions by Individuals, 720. Delaware and Atlantic R. R. Co. v. Irick, 3 Zabriskie (N. J.), 321. Evidence, 384. Sub- scriptions by Individuals, 730, 727. Delaware and Lackawanna R. R. Co. v. Blair, 4 Dutcher (N. J.), 139. Executions, 391. Delaware and Maryland R. R. Co. v. Stump, 8 Gill and Johnson (Md.), 479. Injunction, 338. Delaware, etc.. Canal Co. v. Camden and At- lantic R. R. Co., 3 McCarter's Ch. (N. J.), 13. Monopolies, 533. V. Camden and Atlantic R. R. Co., 1 Mc- Carter's Ch. (N. J.), 445. Monopolies, 532. V. Camden and Atlantic R. R. Co., 1 C. E. Green's Ch. (N. J.), 331. Charter, 116. Mo- nopolies, 533. Delaware, Lackawanna and Western R. R. Co. V. Burson, 61 Penn. St., 869. Eminent Do- main, 193, 205, 316, 319, 236. Husband and Wife, 331. Lease, 508. V. Commonwealth, 66 Penn. St., 64. Ap- peals, 31. Taxation, 739. V. Erie R. R. Co.. 6 C. E. Green's Ch. (N. J.), 398. Bergen Tunnel, 45. Delzell V. Indianapolis and Cincinnati R. R. Co., 32 Ind., 45. Injuries to Domestic Ani- mals, 355. Deming v. Grand Tnink R. R. Co., 48 N. H., 455. CaiTiage of Merchandise, 81. Plead- ing, 584. Denniston v. New York and New Haven R. R. Co., 3 Abbott's Pr. (N. Y.), 378. Juris- diction, 489. Dennistoun v. New York and New Haven R. R. Co., 1 Hilton (N.Y.), 63. Jurisdiction, 489. Denny v. Indiana and Illinois Central R. R. Co., 11 Ind., 392. V. New York Central R. R. Co., 13 Gray (Mass.), 481. Carriage of Merchandise, 92. Derosia v. Winona and St. Peter R. R. Co., 18 Minn., 183. Carriage of Merchandise, 89. Deschamps v. Second and Third Street R. R. Co., 3 Philadelphia Rep. (Penn.), 379. In- junction, 342. Street Railways, 651. Des Moines Navigation and R. R. Co. v. Car- penter, 27 la., 487. Injunction, 33-1. V. Doran, 4 la., 553. Process, 591. Des Moines Valley R. R. Co. v. Graff, 27 la., 99. Subscriptions by Individuals, 699. V. Polk County, 10 la., 1. Taxation, 748. Detroit v. Detroit and Milwaukee R. R. Co., 33 Mich., 173. Streets, 641. Detroit and Howell R. R. Co. v. Salem, 10 Mich., 11. Mandamus, 516. Detroit and Milwaukee R. R. Co. v. Adams, 15 Mich., 458. Carriage of Merchandise, 78. V. Curtis, 23 Wis., 153. Injui-ies to Pas- sengers, 404. V. Farmers' and Millers' Bank, 20 Wis., 132. Carriage of Merchandise, 75. V. Griggs, 13 Mich., 45. Conveyance, 163. v. Van Steinberg, 17 Mich., 99. Evidence, 283. Detroit, Eel River and Illinois R. R. Co. V. Bearss, 39 Ind., 598. Subscriptions by Counties, 680, 681, 682. Devlin v. Second Avenue R. R. Co., 44 Bar- bour (N. Y.), 81. Construction of Railways. 141. . ^ Devoe v. Ithaca and Owego E. R. Co., 5 Paige's Ch. (N. Y.), 521. Receiver, 600. TABLE OF CASES. 827 Dewey v. Chicago and Northwestern R. R. Co., 31 la., 373. Injuries to Employfe, 394, 402. New Trials, 554. Dsxter v. Syracuse, Binghamton and New York R. R: Co., 42 N. Y., 326. Baggage, 34. Deyo V. New York Central R. R. Co., 34 N. Y., 9. Injuries to Passengers, 413. Dibble v. New York and Erie R. B. Co., 25 Barbour (N. Y.), 183. Injuries to Passen- gers, 425. Dickens v. New York Central R. R. R. Co., 13 Howard's Pr. (N. Y.), 328. Injuries to Per- sons Generally, 445. V. New York Central R. R, Co., 28 Bar- bour, (N.Y.), 41. Negligence, 548. Injuries to Persons Generally, 445. V. N. Y. Centi-al R. R. Co., 1 Abbott's Ct. of Ap., Dec. 504. Inj uries to Passengers, 438. Negligence, 548. V. New York Central R. R. Co., 1 Keyes (N. Y.), 33. Negligence, 548. Dickins v. New York Central R. R. Co., 33 N. Y., 158. Injuries to Persons Generally, 445. Dicltson V. Broadway and Seventh Avenue R. R. Co., 41 Howard's Pr. (N. Y.), 151. Street Railways, 656. V. Broadway and Seventh Avenue R. R. Co., 47 N. Y., 507. New Trials, 558. V. Broadway, etc., R. R. Co., 1 Jones & Spencer (N. Y.), 330. Street Railways, 655. Dietrich v. Murdock, 43 Mo., 379. Right of Way, 608. . V. Pennsylvania R. R. Co., 71 Penn. St., 433.' Tickets, 761. Dill V. South Carolina R. R. Co., 7 Richard- son's Law (So. Car.), 158. Baggage, 35, 41, 43. V. Wabash Valley R. R. Co., 21 111., 91. Subscriptions by Individuals, 707, 739. Dillaye v. New York Central R. R. Co., 56 Barbour (N. Y.), 30. Injuries to Passengers, 436, 487. Dillon V. NewYork and Erie R. R. Co., 1 Hilton (N. Y.), 231. Carriage of Merchandise, 92. Diman v. Providence, Warren and Bristol R. R. Co., 5 R. I., 131. Subscriptions by Indi- viduals, 691. Dimmick v. Milwaukee and St. Paul R. R. Co., 18 Wis., 471. Warehousem en, 776. Dingeldein v. Third Avenue R. R. Co., 9 Bos- worth, N. Y., 79. Street Railways, 659. V. Third Avenue R. R. Co , 37 N. Y., 575. •Street Railways, 659. Dininny v. New York and New Haven R. R. Co., 49 N. Y., 546. Baggage, 43. Dinsmore v. Atlantic and Pacific R. R. Co., 46 Howard's Pr., (N. Y.), 193. Charter, 114. V. Racine and Mississippi R. R. Co., 13 Wis., 649. Mortgage, 525. Directors of the Poor v. Railroad Co., 7 Watts and Sergeant (Penn.), 336. Eminent Do- , main, 313. District Attorney v. Lynn and Boston R. R. Co., 16 Gray (Mass.), 343. Street Railways, 649. Dixon V. Hannibal and St. Joseph R. R. Co., 31 Mo., 409. Process, 593. Doans v. Union Pacific R. R. Co., 4 Kansas, 301. Dobbins v. Orange and Alexandria R. R. Co., 37 Ga., 340. Garnishment, 331. Dodge v. Burlington, Cedar Rapids and Min- nesota R. R. Co., 34 la., 376. Injuries to Per- sons on the Track, 457. V. Burns, 6 Wis., 514. Eaiinent Domain, 313. V. County Commissioners of Essex, 3 Met- calf, (Mass.), 380. Eminent Domain) 331. Doe ex dem. v. Georgia R. R. Co., 1 Ga. 534. Eminent Domain, 259, 373. Doggett V. Illinois Central R. R. Co., 34 la., 384. Injuries to Employes, 397. Donaldson v. Mississippi and Missouri R. R. Co., 18 la, 381. Evidence, 388, 388. Injuries to Employgs, 336. Ii juries to Pei-sons Gen- erally, 444, 446. Injuries to Persons on the Track, 466. New Trials^ 554. Donner v. Dayton and Cincinnati R. R. Co., 1 Cincinnati Superior Ct. Rep., 130. Charter, 136. Doolittle V. Galena and Chicago Union R. R. Co., 14 111., 381. Certiorari, 113. Doran v. Central Pacific R. R. Co., 34Cal., 245. Eminent Domain, 354, 355. Dorian v. East Brandywine and Waynesburg R. R. Co., 46 Penn. St., 520. Eminent Do- main, 338, 359. Dorsey v. St. Louis, Alton and Terre Haute R. R. Co., 58 111., 65. Conveyance, 161. Doty v. Michigan Central R. R. Co., 8 Abbott's Pr. (N. Y.), 437. Jurisdiction 490. Doughty V. Somerville and Easton R. R. Co., 1 Zabriskie (N. J.), 443. Charter, 126. Emi- nent Domain, 191. V. Somerville and Easton R. R. Co., 8 Halstead's Ch. (N. J.), 51. Eminent Do- main, 368. V. Somerville and Easton R. R. Co., 3 828 TABLE OF CASES. Halstead's Cli. (N. J.), 629. iDJunction, 340. Douglass V. Montgomery and West Point R. R. Co., 37 Ala., N. 8., 638. Baggage, 40. V. New York and Erie R. R. Co., Clarke's Ch. (N. Y.), 174. Right of "Way, 606. V. The State, 5 Vroom (N. J.), 485. Tax- ation, 750. Douglass County v. Union Pacific R. R. Co.,,5 Kan., 615. Land Grants, 498, 499. Dow V. Kansas Pacific R. R. Co., 8 Kan., 642. Injuries to Employes, 401. Dowlin V. New Orleans and N ashville R. R.' Co., 5 Robinson (La.), 5. Rescission, 605. Downes v. Maryland and Delaware R. R. Co., 37 Md., 100. Evidence, 286. Downie v. Hoover, 13 Wis., 174 Subscrip- tions by Individuals, 715. V. White, 12 Wis., 176. Subscriptions by Individuals, 72!>. Downing v. Evansville, Indianapolis and Cleveland R. R. Co., 13 Ind., 148. Downs V. New York and New Haven R. R. Co., 36 Conn., ~'87. Injuries to Passengers, 420. V. New York Central R. R. Co., 47 N. Y., 83. Evidence, 287, 288. Injuries to Passen- gers, 439. V. Union Pacific R. R. Co., 4 Kan., 201. Evidence, 279. Dows V. Congdon, 16 Howard's Pr. (N. Y.;, 571. Eminent Domain, 260. Drake v. Gilmore, 52 N. Y., 389. Highway, 381. v. Hudson River R. R. Co., 7 Barbour (N. Y.), 508. Eminent Domain, 242, 248. V. Philadelphia and Erie R. R. Co., 51 Penn. St., 240. Injuries to Domestic Ani- mals, 360. Draper v. Williams, 2 Mich., 536. Eminent Domain, 263. Drew V. Sixth Avenue R. R. Co., 20 N. Y., 49. Damages, 170. Injuries to Passengers, 429. Street Railways, 655, 656. v. Sixth Avenue R. R. Co., 3 Keyes (N. Y.), 429. Injuries to Passengers, 439. V. Sixth Avenue R. R. Co., 1 Abbott's Ct. of Ap., Dec. (N. Y.;, 556. Street Railways, 655. Drinkwater v. Portland Marine Railway, 18 Me., 35. Stock and Stockholders, 636. Driver v. Western Union R. R. Co., 32 Wis., 569. Eminent Domain, 221. Drummond v. Commissioners of Clinton and Port Hudson R. R. Co., 7 Robinson (La.), 234. .Fraud, 315. Dryden v. Grand Trunk R. R. Co., 60 Me., 513. Tickets, 673. Dry Dock, etc., R. R. Co. v. Cunningham, 45 Howard's Pr. (N. Y.), 458. Injunction, 333. V. Cunningham, 53 N. Y., 651. V. Mayor of New York, 55 Barbour (N. Y.), 298. Street Railways, 651. V. New York and Harlem R. R. Co., 30 Howard's Pr. (N. Y.), 39. Eminent Do- main, 241. V. New York and Harlem R. R. Co., 33 Howard's Pr. (N. Y.), 193. Eminent Do- main, 241. Duane v. Northern R. R. Co., 3 N. Y., 545. Appeals, 18. Duanesburgh, Town of v. Jenkins, 40 Bar- bour (N. Y.), 574. Subscriptions by Cities and Towns, 663, 664, 671. Duanesburgh v. Jenkins, 46 Barbour (N. Y.), 394. Subscriptions by Cities and Towns, 663, 064, 671. Dubuque and Pacific R. R. Co. v. Crittenden, 5 la., 514. Eminent Domain, 205. V. Litchfield, 23 Howard, 66. Land Grants, 496. V. Shinn, 5 Iowa, 516. Eminent Domain, 305. V. Webster County, 31 la., 235. Consti- tional Law, 137. Taxation, 741, 749, 751. Dubuque and Sioux City, R. R. Co. v. Du- buque, 17 la., 120. Taxation, 756. Dubuque County v. Dubuque and Pacific R. R. Co., 4 G. Greene (la.), 1. Subscriptions by Counties, 675, 677, 678. . Ducloslange v. New Orleans and Carrollton R. R. Co., 7 Robinson (La.), 190. Dudley v. Price's Administrator, 10 B. Mon- roe (Ky.), 84. Dissolution, 183. Duflfy V. Chicago and Northwestern R. R. Co. 32 Wis., 269. Injuries to Persons on the Track, 448, 453. V. New York and Harlem R. R. Co., 3 Hilton (N. Y.), 496. Injuries to Domestic Animals, 360. Du Laurens v. St. Paul and Pacific R. R. Co., 15 Minn., 49. Injuries to Passengers, 421. Tickets, 760. Dunbar V. Harrison, 18 Ohio St., 24. Trust, 768. Duncan v. South Carolina R. R. Co., 3 Rich- ardson's Law (So. Car.), 613. Slaves, 617. Dunham v. Cincinnati, Peru, etc. R. R. Co., 1 Wallace, 254. Mortgage, 527, 534. V. Eaton and Hamilton R. R. Co., 1 Bond (U. S. C. C), 492. Pleading, 580. TABLE OF CASES. 829 Dunliam v. Troy Union E. R. Co., 3 Keyes (N. Y.), 543. Detinue, 179. V. Troy Union R. R. Co., 1 Abbott's Ct. of Ap. Dec, 565. Trover, 766. Dunklee v. Wilton R. R. Co., 24 N. H., 489. Watercourses, 777, 778. Dunlietli and Dubuque Bridge Co. v. Du- buque, 33 la., 437. Taxation, 741. Dunn V. Grand Trunk R. R. Co., 58 Me., 187. Injuries to Passengers, 487. - — V. North Missouri R. R. Co., 24 Mo., 493. Meclianic's Liens, 530. Dunnigan v. Chicago and Northwestern R. R. Co., 18 Wis., 28. Injuries to Domestic Ani- malls, 360. Dunning v. New Albany and Salem R. R. Co., 3 Carter (Ind.), 437. Pleading, 580. Dunnovan v. Green, 57 111., 63. Subscriptions by Counties, 675. Subscriptions by Town- ships, 733, 734. Dunson v. New York Central R. R. Co., 3 Lan- sing (N. Y.;, 365. Carriage of Merchandise, 98. Durand v. Chicago and Northwestern R. R. Co., 36 la., 559. Injuries to Domestic Ani- mals, 355. Durant v. Iowa County, 1 Woolworth (U. S. C. C), 69. V. Supervisors of Washington County, 1 Woolworth (U. S. C. C), 377. Mandamus, 515. Durfee v. Old Colony and 'Fall River R. R. Co., 5 Allen (Mass.), 230. Charter, 123. Lease, 508. Durgin v. Munson, 9 Allen (Mass.), 396. Inju- ries to Employes, 393. Durkee v. Saratoga and Washington R. R. Co., 4 Howard's Pr. (N. Y.), 226. Pleading,- 578. V. Vermont Central R. R. Co., 29 Vt., 127. Broker, 61. Telegraphic Dispatches, 758. Duroy v. Blinn, 11 Ohio St., 381. Intoxicat- ing Liquors, 483. Duxbury v. Vermont Central R. R. Co., 26 Vt., 751. Costs, 167. Dwight V. Northern R. R. Co., 54 Barbour (N. Y.), 271. Injunction, 338. Dyer v. Grand Trunk R. R. Co., 43 Vt., 441. Replevin, 605. v. Pacific R. R. Co., 34 Mo., 127. Inju- ries to Domestic Animals, 358. Dyke v. Brie R. R. Co.-, 45 N. Y., 113. Inju- ries to Passengers, 439. E. Eagan v. Fitchburg R. R. Co., 101 Mass., 315. Injuries to Persons on the Track, 452. Eakright v. Logansport and Northern Indiana R. R. Co., 13 Ind., 404. Charter, 123. Di- rectors, 179. Subscriptions by Individuals, 707, 738, 739. Eames v. Boston and Worcester R. R. Co., 14 Allen (Mass.), 151. Injuries to Domestic , Animals, 374. V. Salem and Lowell R. R. Co., 98 Mei^s., 560. Fences, 399. Injuries to Domestic Animals, 351. V. Worcester and Nashua R. R. Co., 105 Mass., 193. Private Ways and Crossings, 588. Earhart v. New Orleans and Can-oUton R. R. Co., 17 La, An., 343. Injuries to Passengers, 433. Earp V, Pittsburgh, Ft. Wayne and Chicago R. R. Co., 13 Ohio St., 63. New Trials, 555. Eastabrook v. Peterborough, etc, R. R. Co., 12 Cushing (Mass.), 224. Watercourses, 780. East Boston Freight R. R. Co. v. Eastern R. R. Co., 13 Allen (Mass.), 433. Mortgage, 534. East New York and Jamaica R. R. Co. v. El- more, 53 N. Y., 624. Former Adjudication, 314. V. Lighthall, 5 Abbott's Pr. N. S. (N. Y.), 458. Subscriptions by Individuals, 694. — V. Lighthall, 36 Howard's Pr; (N. Y.), 481. Subscriptions by Individuals, 694. East Pennsylvania R. R. Co. v. Hiester, 40 Penn. St., 53. Eminent Domain, 213, 233, 257. V. Hottenstine, 47 Penn St., 28. Eminent Domain, 219, 330. V. SchoUenberger, 54 Penn. St., 144. Em- inent Domain, 333. Right of Way, 609. East River and Jamaica R. R. Co. v. Lighthall, 6 Robertson N. Y., 407. East Tennessee and Georgia R. R. Co. v. Gal- braith, 1 Heiskell (Tenn.), 483. Setoff, 615. V. Hackney, 1 Head (Tenn.), 169. New Trials, 553. V. Montgomery, 44 Ga., 278, Carriage of Merchandise, 109. V. Nelson, 1 Coldwell (Tenn.), 272. Car- riage of Merchandise, 82, 99. V. St. John, 5 Sneed (Tenn.), 524. Inju- ries to Persons on the Track, 476. V. Whittle, 27 Ga., 635. Carriage of Live Stock, 64. East Tennessee and Virginia R. R. Co. v. Gam. mon, 5 Sneed (Tenn.), 567. Subscriptions by Individuals, 690, 729. V. Love, 3 Head (Tenn.), 63. Eminent Domain, 197. b30 TABLE OF CASES. Easter v. Little Miami R. R. Co., 14 Ohio St., 48. Injuries to Domestic Animals, 361. Easterbrook v. Erie R. R. Co., 51 Barbour (N. Y.), 94. Watercourses, 778. Easterley's Appeal, 54 Penn. St., 192. Eastern R. R. Co. v. Benedict, 15 G-ray (Mass.), 389. Contracts, 153. V. Benedict, 3 Gray (Mass.), 561. Parties to Actions, 564. V. Concord R. R. Co., 47 K H., 108. Con- necting Lines, 131. V. Relief Fire Insurance Co., 98 Mass., 420. Insurance, 481. V. Relief Insurance Co., 105, Mass., 570. Insurance, 481. Eaton T. Boston, Concord and Montreal R. R. Co., 51 N. H., 504. Eminent Domain, 333. Right of Way, 608. V. Boston and Lowell R. R. Co., 11 Allen (Mass.), 500. Injuries to Passengers, 414. V. Erie R. R. Co., 51 N. Y., 544. Injuries to Persons on the Track, 450. V. European and North American R. R. Co., 59 Me., 520. Contractors, 160. Eminent Domain, 193, 301. Location, 513. Baton and Hamilton R. R. Co. v. Hunt, 30 Ind., 457. Mortgage, 544. v.Varnum, 10 Ohio St.,632. Receiver, 600. Eckert v. Long Island R. R. Co., 57 Barbour (N. Y.), 555. Injuries to Persons on the Track, 459. V. Long Island R. R. Co., 43 N. Y., 502. Injuries to Persons on the Track, 459. Eclipse Towboat Co. v. Pontchartrain R. R. Co. 24 La. An., 1. Discrimination, 183. Eden v. Lexington and Frankfort R. R. Co., 14 B. Monroe (Ky.), 204. Injuries to Per- sons on the Track, 466. Edgerton v. New York and Harlem R. R. Co., 35 Barbour (N. Y.), 389. Injuries to Passen- gers, 437. V. New York and Harlem R. R. Co., 39 N. Y., 227. Injuries to Passengers, 437. V. New York and Harlem R. R. Co., .35 Barbour (N. Y.), 193. Injuries to Passengers, 437. Edmonson v. Mississippi and Alabama R. R. C>., 13 La. (O. S.), 283. Attachment 39. Evidence, 383. Edsall V. Camden and Amboy R. R. Co., 50 N. Y., 661. Carriage of Merchandise, 79. Edwards v. Grand Trunk R. R. Co., 54 Me., 105. Sales, 611. Statute of Frauds, 636. V. Grand Trunk R. R. Co., 48 Me., 379. Statute of Frauds, 625. Edwards v. Marcy, 3 Allen (Mass.), 486. Bonds of Railway Companies, 56. V. Ninth Avenue R. R. Co., 22 Howard's Pr. (N. Y.), 444. Costs, 168. Egbert v. Baltimore and Ohio R. R. Co., 3 Benedict (U. 8. D. C), 233. Vessels, 774. Eggleston v. New York and Harlem R. R. Co., 35 Barbour N. Y., 163. Eminent Domain, 369. V. Orange, etc., R. R. Co., 1 Code Rep. (N. Y.), N. S., 313. Practice, 586. Eldridge v. Long Island R. R. Co., 1 Sandford (N, Y.), 89. Injuries to Passengers, 407. Elizabethtown and Paducah R. R. Co. v. Helm's Heirs, 8 Bush (Ky.), 681. Eminent Domain, 319, 262. Elkins V. Boston and Maine R. R. Co., 19 N. H., 337. Carriage of Merchandise, 89, 91. V. Boston and Maine R. R. Co., 3 Foster (N. H.), 375. Carriage of Merchandise, 97. Ellipottville Plankroad Co. v. Buflfalo and Pittsburgh R. R. Co., 20' Barbour (N. Y.). 644. Plankroad, 572. V. Portsmouth and Roanoke R. R. Co., 3 Iredell's Law (N. C), 138. Fires, 303. Elliott V. Fitchburg R. R. Co., 10 Gushing (Mass.), 191. Watercourses, 778. V. Fair Haven and Westville R. R. Co., 33 Conn., 579. Street Railways, 648. Ellison V. Mobile and Ohio R. R. Co., 36 Miss., 573. Evidence, 277. Statutes, 025. Sub- scriptions by Individuals, 705. Ellis V. Boston, Hartford and Erie R. R. Co., 107 Mass., 1. Express Companies, 394. Mortgage, 540. V. Central Pacific R. R. Co., 5 Nev., 255. Medical Services, 531. V. Pacific R. R. Co., 48 Mo., 331. Injur- ies to Domestic Animals, 374. V. Pacific R. R. Co., 51 Mo., 300. Emi- nent Domain, 194. Ellsworth V. Central R. R. Co., 5 Vroom (N. J.), 93. Private Ways and Crossings, 588. Elmore v. Naugatuck R. R. Co., 23 Conn., 457. Carriage of Merchandise, 69. V. Sands, 54 N. Y., 513. Tickets, 763. Emerson v. Slater, 33 Howard, 38. Contracts, 159. Emery v. Evansville, Indianapolis and Cleve- land R. R. Co., 13 Ind., 143. Pleading, 576. Emigh V. Chicago, Burlington and Qnincy R. R. Co., 1 Bissell fU. S. C. C), 400. Patents, 569. Emmons v. Indianapolis and St. Louis R. R. Co., 38 Ind., 347. Subscriptions by Individ. uals, 703. TABLE OF OAfES. 831 Emmons v New York and Erie R. R. Co., 17 Howard's Pr. (N. Y.), 490. Costs, 166. Empire Transportation Co. v. "Wallace, 68 Penn. St., 302. Carriage of Merchandise, 83, Enfield Toll Bridge Co. v. Hai-tford and New Haven R. R. Co., 17 Conn., 454. V. Hartford and New Haven R. R. Co., 17 Conn., 40, 454. Bridges, 60. English V. Chicot County, 26 Ark., 454. Sub- scriptions by Counties, 674, 675. V. New Haven and Northampton R. R Co. 82 Conn., 241. Streets, 689. Enright v. San Francisco and San Jose R. R. Co., 33 Cal., 230. Fences, 299. Instruc- tions, 480. Ensey v. Cleveland and St. Louis R. R. Co., 10 Ind., 178. Pleading, 582. Subscriptions by Individuals, 709. Eppes V. Mississippi, Gainesville and Tusca- loosa R. R. Co., 35 Ala., N. S., 33. Contracts, 155. Subscriptions by Individuals, 692, 706. 720. Erie and New York R. R. Co. v. Owen, 32 Barbour (N. Y.), 616. Subscriptions by In- dividuals, 728. V. Patrick, 2 Abbott's Ct. of Ap. Dec. (N. Y.), 72. Subscriptions by Individuals, 691. V.Patrick, 2 Keyes (N. Y.), 256. Plead- ing, 579. Erie and Northeast R. R. Co. v. Casey, 26 Penn, St., 287. Charter, 117. V. Casey, 1 Grant's Cases (Penn.), 274. Charter, 125. Erie R. R. Co. v. Ackerson, 4 Vroom (N. J.), 33. Judgment, 485. V. Delaware, Lackawanna, etc., R. R. Co-, 6 C. E. Green's Ch. (N. J.), 283. Competing Lines, 128. Eminent Domain, 271. ' V. Heath, 9 Blatchford (U. 8. C. C), 226. Stock and Stockholders, 627. V. Heath, 10 Blatchford (U. S. C. C), 214. Master in Chancery, 519. V. Heath, 8 Blatchford (U. S, C. C), 536. Process, 602. V. Heath, 8 Blatchford (U. S. C. C), 413. Evidence, 290. V. Pennsylvania, 15 Wallace, 282. Taxa- tion, 741. V. Ramsey, 10 Abbott's Pr., N. S. (N. Y.), 109. Costs, 166. V. Ramsey, 57 Barbour (N. Y.), 449. In- junction, 336. V. Ramsey, 3 Lansing (N. Y.), 178. In- junction, 341. Erie R. R. Co. v. The Commonwealth, 60 Penn. St., 84. Taxation, 750. V. The State, 2 Vroom (N. J.), 531. Tax- tion, 756. V. Union Lociomolive Co., 6 Vjoom (N. J.), 240. Contracts, 154. Einst V. Hudson River R. R. Co., 82 Howard's Pr. (N. Y.), 61. Injuries to Persons on the Track, 457. V. Hudson River R. R. Co., 36 Howard's Pr. (N. Y.),84. Injuries to Persons on the Track, 457. V. Hudson River R. R. Co., 3 Abbott's Pr., N. S, (N. Y.), 82. Injuries to Persons on the Track, 457. v. Hudson River R. R. Co., 35 N. Y., 9. V. Hudson River R. R. Co., 39 N. Y., 61. Injuries to Persons on the Track, 449, 453, 457. V. Hudson River R. R. Co., 32 Barbour (N. Y.), 159. Injuries to Persons on the Track, 457. V. Hudson River R. R. Co., 19 Howard's Pr. (N. Y.), 205. Injuries to Persons on the Track, 457. V. Hudson River R. R. Co., 24 Howard's Pr. (N. Y.), 97. Injuries to Persons on the Track, 457. V. Hudson River K. R. Co., 32 Howard's Pr. (N. Y.), 262. Injuries to Persons on the Track, 457. Erwin v. Western North Carolina R. R. Co., 65 ■ N. C, 79. Confederate Money, 128. Esterley's A.ppeal, 54 Penn. St., 192. Mechan- ic's Lien, 520. European and North American R. R. Co v. Dunn, 60 Me., 453, Land Grants, 498. V. Poor, 59 Me., 277. Directors, 180. Euston V. Pendleton Street R. R Co., 2 Cincin- nati Superior Ct. Rep., 64. Mortgage, 533. Evans v. Burlington and Missouri River R. R. Co., 21 la. 374. Bill of Exceptions, 50. In- juries to Domestic Animals, 350. V. Chicago, Rock Island and Pacific R. R. Co., 26 111., 189. Agency, 11. V. Cleveland and Pittsburgh R. R. Co., 5 Philadelphia Rep. (Penn.), 512. Subscrip- tions by Counties, 685. V. Haefner, 29 Mo., 141. Eminent Do- main, 200, 264, 266. Evansville and Crawfordsville R. R. Co. v. Baum, 26 Ind., 70. Injuries to Passengers, 417. V. Dexter, 24 Ind., 411. Injuries to Em- ploy§s, 401. 832 TABLE OF CASES. Evansville and Crawfordsville B. R. Co. v. Dick, 9 Ind., 433. Eminent Domain, 259. V. Duncan, 38 Ind., 441. Injuries to Pas- sengers, 406, 407, 443. V. Hiatt, 17 Ind., 102. Injuries to Persons on the Track, 459. V. Kargus, 10 Ind., 183. Justice of tlie Peace, 495. V. Lawrence, 29 Ind., 622. Process, 590. v. Lowdermilk, 15 Ind., 133. V. Miller, 80 Ind., 309. Eminent Domain, 200, 214. T. Ross, 12 Ind., 446. Injuries to Domes- tic Animals, 368. V. Smith, 15 Ind.. 130. Injuries to Per- sons on the Track, 447. V. Young, 28 Ind., 516. Carriage of Live Stock, 67. Evansville, Henderson and Nashville R. R. Co. V. Grady, 6 Bush (Ky.), 144. Eminent Domain, 191. Trespass, 765. Evansville, Indianapolis and Cleveland R. R. Co. V. Cochran, 10 Ind., 550. Bill of Ex- ceptions, 50. Eminent Domain, 217, 256. V. Dunn, 17 Ind., 603. Subscriptions by Individuals, 704. V. Evansville, 15 Ind., 395. Subscriptions by Cities and Towns. 663, 668, 669. Subscrip- tions by Counties, 673, 674, 675. ^— V. Fitzpatrick, 10 Ind., 130. Eminent Damain, 209, 335, 238, 258. V. Meeds, 11 Ind., 373. Subscriptions by Individuals, 695. V. Posey, 13 Ind., 363. Subscriptions by Individuals, 696. V. Shearer, 10 Ind., 244. Evidence, 289. Subscriptions by Individuals, 700. V. Stringer, 10 Ind., 551. Eminent Do- main 209, 238, 258. V. Tressler, 10 Ind., 548. Evidence, 278. V. Wampler, 19 Ind., 847. Subscriptions by Individuals, 704. Evansville, Terre Haute and Cliicago R. R. • Co. V. Wright, 38 Ind., 64. Subscriptions by Individuals, 697. Everett v. Cedar Rapids and Minnesota R. R. Co., 38 la., 417. Eminent Domain, 197. — V. Parks, 63 Barbour (N. T.), 9. Sales, 613. Everhart v. AVest Chester and Philadelphia R. R. Co., 28 Penn. St., 339. Subscriptions by Individuals, 712, 716, 723. Eward V. Lawrenceburgh and Upper Missis- sippi R. R. Co., 7 Ind., 711. Eminent Do- main, 192. Ewing V. Ohio and Mississippi R. R. Co., 28 Ind., 438. Subscriptions by Individuals, 723. Ex parte Dubuque and Pacific R. R. Co., 1 Wallace, 69. Appeals, 18. Habeas Corpus 822. Ex parte Holman, 28 la., 88. Ex parte Milwaukee R. R. Co., 5 Wallace, 188. Appeals, 32. F. Fairchild v. Ogdensburgh, Clayton and Rome R. R. Co., 15 N. y., 337. Bills and Notes, 47. Fairmount and Arch Street R. R. Co. v. Stut- ler, 54 Penn. St., 375. Injuries to Passen- sengers, 407. Parties to Actions, 563. Fall River Iron Works Co. v. Old Colony and Fall River R. R. Co., 5 Allen (Mass.), 221. Location, 518. Nuisance, 559. Fallon V. Railroad Co., 1 Dillon (U. S. C. C), 131. Injunction, 835. Fanning v. Long Island R. R. Co., 2 N. Y. S. C, 585. Injuries to Domestic Animals, 377. Farmers' and Millers' Bank v. Detroit and Milwaukee R. R. Co., 17 Wis., 373. Carriage of Merchandise, 99. Farmers' Loan and Trust Co. v. Carey, 13 Wis., 110. Mortgage, 543. V. Commercial Bank of Racine, 15 Wis., 434. Mortgage, 543. V. Fisher, 17 Wis., 114. Mortgage, 543. V. Hendrickson, 25 Barbour (N. Y.), 484. Mortgage, 538. V. Warring, 30 Wis., 390. Process, 593. Farmers' R. R. Co. v. Reno, Oil Creek and Pithole R. R. Co., 53 Penn. St., 224. Injunc- tion, 342. Farnham v. Camden and Amboy R. R. Co., 55 Penn. St., 58. Carriage of Merchandise, 76, 77. Pamsworth v. Drake, 11 Ind., 101. Bills and Notes, 47. V. Terre Haute, Alton and St. Louis R. R. Co., 29 Mo., 75. Attachment, 80. Farrand v. Chicago and Northwestern R. R. Co., 21 Wis., 435. Eminent Domain, 244. Evidence, 287. Farrant v. St. Paul, and Pacific R. R. Co., 13 Minn., 811. Eminent Domain, 199. Parrin v. Kennebec and Portland R. R. Co., 36 Me., 84. Practice, 586. Farwell v. Boston and Worcester R. R Co 4 Metcalf (Mass.), 49. Injuries to Employ^. 384,388. Fash v. Ravesies, 33 Ala., N. S., 451. Record- ing Acts, 608. TABLE OF CASES 833 Fash V. Tliird Avenue R. R. Co., 1 Daly (N. YO, 148. Street Railways, 654. Fatchell v. St. Louis and Iron Mountain R. R. Co., 28 Mo., 178. Bridges, 58. Fatman v. Cincinnati, etc., R. R. Co., 2 Dis- ney (Ohio), 348. Carriage of Merchandise, 70. Faulkner v. Brie R. R. Co., 49 Barbour (N. Y.), 324. Injuries to Employes, 390. V. South Pacific R. R. Co., 51 Mo., 311. Carriage of Merchandise, 79, 81. Faust T. Passenger R. R. Co., 8 Philadelphia Rep. (Penn.), 164. Eminent Domain, 243.' Faxton v. McCosh, 13 la., 537. Taxation, 740. Feital v. Middlesex R. R. Co., 109 Mass., 399. Sunday Laws, 735. Pelder v. Louisville, Cincinnati and Chai-les- ton R. R. Co., 3 McMullan (So. Car.), 403. Injuries to Persons on the Track, 475. Felps v. Com'rs of Clinton and Port Hudson R. R. Co., 10 Robinson (La.), 89. Judicial Sale, 487. Fenner v. Bufialo and State Line R. R. Co., 46 Barbour (N. Y.), 103. Carriage of Merchan- disc, 89, 103. V. Buffalo and State Line R. R. Co., 44 N". Y., 505. Carriage of Merchandise, 89, 103. Fent V. Toledo, Peoria and Warsaw R. R. Co., 59 111., 349. Fires, 310. Ferguson v. Hannibal and St. Joseph R. R. Co., 35 Mo., 452. Pleading. 584. Fernow v. Dubuque and Southwestern R. R. Co., 23 Iowa, 538. Bill of Exceptions, 50. Injuries to Domestic Animals, 373. Fero V. Buffalo and State Line R. R. Co., 23 N. Y, 309. Fires, 305, 307. Ferris v. Van Buskirk, 18 Barbour (N. Y.), 397. Fences, 300. Fickle V. St. Louis, Kansas City and Northern R. R. Co., 54 Mo., 219. Injuries to Domestic Animals, 375. Field V. New York Central R. R. Co., 39 Bar- bour (N. Y.), 176. Evidence, 285. V. New York Centi-al R. R. Co., 33 N. Y., 339. Fires, 309. V. Vermont and Massachusetts R. R. Co., 4 Cushing (Mass.), 150. Eminent Domain, 211. Fifleld V. Northern R. R. Co., 43 N. H., 225. Injuries to Employes, 390. Filer v.' New York Central R. R. Co., 49 N. Y., 43. Injuries to Passengers, 405, 438, 439. Negligence, 547. V. New York Central R. R. Co., 49 N. Y., 43. 53 Fillebrown v. Grand Trunk R. R. Co., 55 Me., 462. Carriage of Merchandise, 78. Fink V. Albany and Susquehanna R. R. Co., 4 Lansing (N. Y.), 147. Injuries to Passen- gers, 430. Finlayson v. Chicago, Burlington and Quincy R. R. Co., 1 Dillon (U. S. C. C), 579. In- juries to Persons on the Track, 456. Finley v. South Carolina R. R. Co., 2 Richard- son's Law (So. Car.), 567. Executions, 394. Finn v. Western R. R. Co., 102 Mass., 283. Bill of Lading, 52. Carriage of Merchan- dise, 109. Limitations, 507. First Baptist Church v. Schenectady and Troy R. R. Co., 5 Barbour (N. Y.), 79. V. Utica and Schenectady R. R. Co., 6 Barbour (N. Y.), 313. Churches, 127. First National Bank of Charlotte v. Jenkins, 64 N. C, 719. Subscriptions by States, 730. First National Bank of Greenfield v. Marietta and Cincinnati R. R. Co., 20 Ohio St., 259. Injuries to Passengers, 439. Fiser v. Mississippi and Tennessee R. R. Co., 33 Miss., 359. Pleading, 579, 582. Sub- scriptions by Individuals, 713. Fisher v. Concord R. R. Co., 50 N. H., 200. Receiver, 600. v. Evansville and Crawfordsville R. R. Co., 7 Ind., 407. Subscriptions by Individ- uals, 691, 714. V. Farmers' Loan and Trust Co., 21 Wis.. 73. Injuries to Domestic Animals, 880. V. New York Central and Hudson River R. R. Co., 46 N. Y., 644. Rates, 598. V. Pacific R. R. Co., 46 Mo , 304. Justice of the Peace, 495. Fisk V. Albany and Susquehanna R. R. Co., 8 Abbott's Pr., N. S. (N. Y.), 309. Pleading, 574. V. Albany and Susquehanna R. R. Co., 41 Howard's Pr. (N. Y.), 865. V. Chicago, Rock Island and Pacific R. R. Co., 36 Howard's Pr. (N. Y.), 20. Federal Courts, 397. Stock and Stockholders, 637, 638. V. Chicago, Rock Island and I'acific R. R. Co., 3 Abbott's Pr., N. S. (N. Y.), 453. Federal Courts, 397. V. Chicago, Rock Island and Pacific R. R. Co., 3 Abbott's Pr., N. S. (N. Y), 480. Depositions, 177. V. Chicago, Rock Island and Pacific R. R. Co., 53 Barbour (N. Y.), 473. Federal Courts, 397. V. Chicago, Rock Island and Pacific R. 834 TABLE OF CASES. R. Co., 4 Abbott's Pr., N. S. (N. Y.), 378. Federal Courts, 297. Stock and Stockhold- ers, 637, 638. Fisk V. Chicago, Rock Island and Pacific R. R. Co., 53 Barbour (N. T.), 513. Federal Courts, 297. Stock and Stockholders, 637. 638. V. City ot Kenosha, 26 Wis., 23. Sub- scriptions by Cities and Towns, 665. Sub- scriptions by Counties, 676. V. Union Pacific R. R. Co., 8 Blatchford (U. S. C. C), 243. T. Union Pacific R. R. Co., 10 Abbott's Pr., K. S. (N. Y.), 457. Federal Courts, 297. V. Union Pacific R. R. Co., 10 Blatchford (U. S. C. C), 519. Injunction, 334. V. Union Pacific R. R. Co., 8 Blatchford (U. S. C. C), 299. Federal Courts, 297. V. Union Pacific R. R. Co., 6 Blatchford (U. S. C. C), 362. Federal Courts, 297. Fitch V. New Haven, New London and Ston- ington R. R. Co., 30 Conn., 38. Ferries, 301. V. Pacific R. R. Co., 45 Mo., 322. Fires, 304, 306. Fitchburg and "Worcester R. R. Co. v. Hanna, 6 Gray (Mass.), 539. Carriage of Merchan- dise, 72, 106. Fitchburg R. R. Co. v. Boston and Maine R. R. Co., 3 Cushing (Mass.), 58. Certiorari, 111. Eminent Domain, 217, 236, 237. Ver- dict, 773. V. Eastern R. R. Co., 6 Allen (Mass.), 98. Eminent Domain, 217. V. Freeman, 12 Gray (Mass.), 401. At- tachment, 30. V. Gage, 12 Gray (Mass.), 393. Discrim- ination, 182. Rates, 598. V. Grand Junction R. R. Co., 4 Allen (Mass.), 198. Charter, 115. v. Grand Junction R. R. Co., 1 Allen (Mass.), 552. Bridges, 57. V. Prescott, 47 N. H., 63. Taxation, 745. Fitchett V. North Pennsylvania R R Co., 5 Philadelphia Rep. (Penn.), 133. Bonds of Railroad Companies, 54. Fithian v. New York and Erie R. R. Co., 3 Philadelphia Rep. (Penn.), 318. Garnish- ment, 819. V. New York and Erie R. R. Co., 31 Penn. St., 114. Garnishment, 317, 319. Fitz V. Minnesota Central R. R. Co., 11 Minn., 414. Charter, 131. Fitzpatrick v. New Albany and Salem R. R. Co., 7 Ind., 436. Injuries to Employes, 887 388. Flash, Hartwell & Co. v. New Orleans, Jack- son and Great Northern R. R. Co., 23 La. An., 353. Carriage of Merchandise, 100. Limitations, 509. Fleece v. Indiana and Illinois R. R. Co., 8 Ind., 460. Subscriptions by Individuals, 703. Fleming v. Chicago, Detroit and Milwaukee R. R. Co., 34 la., 353. Eminent Domain, 221, 266. V. Soutter, 6 Wallace, 747. Mortgage, 534. Fletcher v. Auburn and Syracuse R. R. Co., 25 Wendell (N. Y.), 463. Eminent Domain, 244. V. Boston and Maine R. R. Co., 1 AUea (Mass.), 9. Negligence, 550, 553. V. Rutland and Burlington R. R. Co., 39 Vt., 638. Mortgage, 540. Fleytas v. Pontchartrain R. R. Co., 18 La. (O. 8.), 839. Injuries to Persons on the Track, 475. Flike V. Boston and Albany R. R. Co., 53 N. Y., 549. Injuries to Employes, 383. Plinn V. Philadelphia, Wilmington and Balti- more R R. Co., 1 Houston (Del.), 469. Inju- ries to Passengers, 430. Flint and Pere Marquette R. R. Co. v. Dewey, 14 Mich., 478. Fraud, 315. Florida, Atlantic and Gulf Central R. R. Co. V. Pensacola and Georgia R. R. Co., 10 Fla., 145. Charter, 124. Flower v. Pennsylvania R. R. Co., 69 Penn. St., 210. Injuries to Employes, 385. Floyd V. Indianapolis and Cincinnati R. R. Co., 8 Ind., 469. Construction of Radlwavs, 146. Floyd County, Auditor of, v. New Albany and Salem R. R. Co., 11 Ind., 570. Taxation, 741. Flynn v. Hudson River R. R. Co., 6 Howard's Pr. (N. Y.), 308. Process, 590. V. San Francisco and San Jose R. R Co., 40Cal., 14. Fires, 303, 304. Foard v. Atlantic and North Carolina R R Co., 8 Jones' Law (N. C), 235. Carriage of Merchandise, 80. Foot and Hodges v. Rutland and Whitehall R. R. Co., 33 Vt., 633. Attorney, 33. Ford V. Chicago and Northwestern R. R. Co., 14 Wis., 609. Eminent Domain, 343, 343. V. Chicago and Northwestern R R Co., 18 Wis., 208. Eminent Domain, 206. Forniqnet v. West Feliciana R. R Co., 6 How- ard (Miss.), 116. Evidence, 277. Interest, 482. Fon-ester v. Buffalo and Mississippi R. R Co 13 Ind., 481. TABLE OF CASES. 835 Forster v. Cumberland Valley K. R. Co., 23 Penn. St., 371. Limitations, 508. Fort Street and Blmwood B. K. Co. v. Schneid- er, 15 Mich., 74. Contracts, 151. Fort V. Union Pacific E. R. Co., 3 Dillon (U. S. C. C), 359. Injuries to Employes, 887. Forsyth v. Boston and Albany E. R. Co., 103 Mass., 510. Injuries to Passengers, 411. Foster v. City of Kenosha, 13 Wis., 616. Sub- scriptions by Cities and Towns, 663. V. Minnesota Central R. R Co>, 14 Minn., 360. Injuries to Employes, 388. Four Mile Valley E. E. Co. v. Bailay, 18 Ohio St., 308. Construction of Railways, 147. Fowle V. New Haven and Northampton R. R. Co., 107 Mass., 353. Watercourses, 780. Fowler v. Detroit and Milwaukee R. R. Co., 7 Mich., 79. Certiorari, 113. Process, 590. V. Farmers' Loan and Trust Company, 31 Wis., 77. Injuries to Domestic Animals, 355. V. Kennebec and Portland R. R. Co., 31 Me., 197. Contracts, 151. V. Pittsburgh, Ft. Wayne and Chicago R. R Co., 35 Penn. St., 33. Garnishment, 331. Fowlkes V. Memphis and Charleston R. E. Co., 38 Ala. N. S., 310. Pleading, 584. Fox V. Hempfield R R Co., 3 Abbott (U. S. C. C), 151. Executions, 393. V. Pennsylvania R. E. Co., 3 Handy, (Ohio), 169. Pleading, 576. V. Western Pacific R R Co., 31 Cal., 538. Eminent Domain, 267. Fox Elver Valley R R Co. v. Shoyer, 7 Wis., 365. Pleading, 585. Foy V. Troy and Boston R. R Co., 34 Barbour (N. Y.), 383. Carriage of Merchandise, 73. Fraloff V. New York Central and Hudson River E. R Co., 10 Blatchford (U. S. C. C), 10. Baggage, 33. Francis v. Dubuque and Sioux City R R Co., 35 la., 60. Carriage of Merchandise, 88. Frank v. New Ojleans and Carrollton R. R. Co., 30 La. An., 35. Injuries te Employls, 400. Injuries to Persons Generally, 444. Frankford and Bristol Turnpike Company v. Philadelphia and Trenton R. E. Co., 54 Penn. St., 345. Fires, 305. Route, 610. Frankford and Philadelphia R E. Co. v. Phil- adelphia, 58 Penn. St., 119. Street Railways, 646. Frazier v. Pennsylvania R. R. Co., 38 Penn. St., 104. Injuries to Employes, 383. Freedle v. North Carolina R. E. Co., 4 Jones' Law (N. C), 89. Eminent Domain, 238. Freeland v. Pennsylvania R E. Co., 06 Penn. St., 91. Watercourses, 780. French v. Buffalo, New York and Erie E. E. Co., 4 Keyes (N. Y.), 108. Carnage of Mer- chandise, 76. Negligence, 550. V. Buffalo and Erie E. E. Co., 3 Abbott's Ct. of Ap. Dec. (N. Y.), 196. Carriage of Merchandise, 79. V. New Orleans and Carrollton R. R. Co., 3 La. An., 80. Streets, 640. Fremont County v. Burlington and Missouri River R R. Co., 33 la., 91. Land Grants, 498. Fried v. New York Central R. E. Co., 35 How- ard's Pr. (N. Y.), 385. Fires, 310. Friedman v. Eailroad Company, 7 Philadel- phia Eep. (Penn.), 303. Evidence, 280. Fritz v. Milwaukee and St. Paul E. E. Co., 34 la., 337. Injuries to Domestic Animals, 373. , Frost V. Grand Trunk E. R. Co., iO Allen (Mass.), 387. Injuries to Passengers, 406. Frye v. Atlantic and St. Lawrence R. R. Co., 47 Me., 533. Fires, 307. Fry's Ex'r v. Lexington and Big Sandy E. R. Co., 3 Metcalfe (Ky.), 314. Subscriptions by Individuals, 706, 731. Fulgam V. Macon and Brunswick R. R. Co., 44 Ga., 597. Subscriptions by Individuals, 715. Fuller V. Chicago and Northwestern R. R Co., 31 la., 187. 211. Rates, 596, 598. Verdict, 773. V. Indianapolis and Cincinnati R. R. Co., 18 Ind., 91. Pleading, 573. V. Naugatuck R. R. Co., 21 Conn., 557. Injuries to Passengers, 404, 413, 443. Plead- ing, 573. Furman v. Greenvilleand Columbia R.R. Co., 3 So. Car., N. S., 437. Appeals, 18. Furniss v. Hudson River R. E. Co., 5 Sand- ford (N. Y.), 551. Eminent Domain, 364. Gabbert v. Jeffersonville E. E. Co., 11 Ind., 365. Constitutional Law, 139. Gage, Dater and Sloan v. Dubuque and Pacific R E. Co., 11 la., 310. Protest, 594. Seal, 614. Gahagan v. Boston and Lowell R. R. Co., 1 Al- len (Mass.), 187. Evidence, 383. Highway. 338. Injuries to Persons on the Track, 459, 473. Galena v. Amy, 5 Wallace, 705. Subscrip- tions by Counties, 675. 336 TABLE OP CASE3. Galena and Cliicago Union R. R. Co. v. Apple- by, 28 111., 283. Penalties, 571. V. Crawford, 25 111., 539. Injuries to Do- mestic Animals, 365. V. Dill, 23 111., 264 Injuries to Persons on the Track, 451, 453, 456, 473. V. Fay, 16 111., 558. Injuries to Passen- gers, 434. V. Griffin, 31 111., 303. Injuries to Do- mestic Animals, 366. V. Jacobs, 20 111., 478. Injuries to Per- sons on the Track, 476. V. Loomis, 13 111. 548. Injuries to Per- sons on the Track, 455. T. Menzies, 26 111., 121. Mortgage, 544. V. Pound, 32 111., 399. Trespass, 764. v. Rae, 18 111., 488. Carriage of Merch- andise, 81. Discrimination, 182. V.Sumner, 24 111., 631. Injuries to Do- mestic Animals, 366. v. Welch, 24 111., 31. Evidence, 285. V. Tarwood, 17 111., 509. Injuries, to Pas- sengers, 437. V. Tarwood, 15 111., 468. Injuries to Pas- sengers, 434. Galena Packet Co. v. Rock Island Bridge Co., 35 Howard's Pr. (N. T.), 190. Bridges, 58. Gallaghar v. Ashby, 26 Barbour (N. T.), 143. Stock and Stockholders, 636. Gallagher v. Fayette County R. R. Co., 38 Penn. St., 103. Injunction, 337. Galloway v. Chatham R. R. Co., 63 K. C, 147. Subscriptions by States, 731. Gallup V. Albany R. R. Co., 7 Lansing (N. T.), 4^1. Street Railways, 659. Galpin V. Chicago and Northwestern R. R. Co., 19 Wis., 604. Injuries to Domestic Animals, 353. Negligence, 550. Galveston and Red River R. R. Co. v. Shep- herd, 21 Tex., 274. Process, 593. Galveston R. R. Co. v. Cowdrey, 11 Wallace, 459. Mortgage, 528, 582, 540. Games v. Robb, 8 la., 193. Subscriptions by Counties, 675, 679. Gandy v. Chicago and Northwestern R. R. Co., 30 la., 420. Fires, 302. Gardiner v. Boston and Worcester R. R. Co., 9 Gushing (Mass.), 1. Eminent Domain, 241. Gardner v. The State, 1 Zabriskie (N. J.), 557. Taxation, 754. Garland v. Lane, 46 N. H., 345. Carriage of Merchandise, 105. Garner v. Hannibal and St. Joseph R. R. Co., 34 Mo., 235. Injuries to Domestic Animals, 858. Garrard v. Pittsburgh and Connellsville R. R. Co.,29Penn. St., 154. Trust, 767. Garrett v. May, 19 Md., 177. Income Bonds, 332. V. Mississippi and Alabama R. R. Co., 1 Freeman's Ch. (Miss.), 70. Equity, 274. Garrigus v. Board of Commissioners of Parke County, 39 Ind., 66. Subscriptions by Coun- ties, 681. Garris v. Portsmouth and Roanoke R. R. Co., 3 Iredell's Law (N. C), 824. Injuries to Domestic Animals, 380. Garvey v. Camden and Amboy R., R. Co., 1 Hilton (N. T.), 280. Baggage, 40. V. Camden and Amboy R. R. Co., 4 Ab- bott's Pr. (N. Y.), 171. Baggage, 35, 40. Gass V. New York, Providence and Boston R. R. Co., 99 Mass., 320. Carriage of Merch- andise, 73. Gavett V. Manchester and Lawrence R. R. Co., 10 Gray (Mass.), 501. Injuries to Passen- gers, 405, 414. Gavisky v. Pacific R. R. Co., 49 Mo., 374. Evi- dence 283. Injuries to Employes, 400. Gayle v. Cahawba and Marion R. R. Co., 8 Ala., N. 8., 586. Subscriptions by Individu- als, 727. Gaynor v. Old Colony and Newport R. R. Co., 100 Mass., 808. Injuries to Passengers, 406. Gear v. Dubuque and Sioux City R. R. Co., 20 la., 533. Eminent Domain, 301. Gebhart v. Junction R. R. Co., 13 Ind., 484. Geddes V. Meti-opolitan R. R. Co., 103 Mass., 391. Negligence, 548. Gelpcke v. City of Dubuque, 1 Wallace, 175. Subscriptions by Cities and Towns, 661, 663, 671. Subscriptions by Counties, 675. Gelpcke, Winslow & Co. v. Blake, 19 la., 363 Subscriptions by Individuals, 736. Gelpcke v. Milwaukee and Horicon R. R. Co. 11 Wis., 454. Writ of Assistance, 782. George v. Cahawba and Marion R. R. Co., 8 Ala., N. S., 334. Damages, 174. V. Smith, 6 Jones' Law (N. C), 278. Slaves, 018. Georgia R. R. Co. v. Anderson, 33 Ga., 111. Injuries to Domestic Animals, 346. V. Eddleman, 38 Ga., 465. Confederate Money, 128. V. Harris, 5 Ga., 527. Jurisdiction, 487. V. Kirkpatrick, 35 Ga., 144. Trespass, 765. V. McCurdy, 45 Ga., 388. sengers, 405. Injuries to Pas- TABLE OF CASES. 837 Georgia R. R. Co. v. Milner, 8 Ga., 313. Plead- ing, 584. V. Scott, 37 Ga., 94. New Trials, 558. V. Shorter, 13 Ga., 300. Writ of Error, 783. V. Willis, 28 Ga., 317. Injuries to Domes- tic Animals, 362. V. Wynn, 43 Ga., 331. Injuries to Per- sons on the Track, 457, 466. Germantown Passenger R. R. Co. v. Eitler, 60 Penn. St., 124. Assigment for Benefit of Creditors, 38. Stock and Stockholders, 631. Subscriptions by Individuals, 733. Getty V. Hudson River R. R. Co., 8 Howard's Pr. (N.Y.), 177. V. Hudson River R. R. Co., 6 Howard's Pr. (N. Y.), 269. Watercourses, 777. V. Hudson River R. R. Co., 31 Barbour (N. Y.), 617. Eminent Domain, 236. Wa- tercourses, 777. Gettysburg R. R. Co. — McCurdy's Appeal, 65 Penn. St, 390. Mortgage, 534, 533, 538. Gibbons v. Mobile and Great Korthern R. R. Co., 36 Ala., N. S., 410. Subscriptions by Cities and Towns, 663, 673. Subscriptions by Counties, 675. Gibson v. Mason, 5 Nev., 283. Subscriptions by Counties, 676. V. Pacific R. R. Co., 46 Mo., 163. Inju- ries to Employes, 393. Giesy v. Cincinnati, Wilmington and Zanes- ville R. R. Co., 4 Ohio St., 308. Eminent Domain, 337, 352. Gifford V. New Jersey R. R. Co., 2 Stockton's Ch. (N. J.), 171. Bridges, 60. Charter, 123. Giles V. Western R. R. Co., 8 Metcalf (Mass.), 44. Evidence, 379. Gilkerson v. Pacific R. R. Co., 39 Mo., 854. Gillenwater v. Madison ^nd Indianapolis R. R. Co., 5 Ind.. 339. Injuries to Employ§s, 388, 396. Injuries to Passengers, 430. Gillespie v. Fort Wayne and Southern R. R. Co., 17 Ind., 343. Charter, 135. Gillett V. Western R. R. Co., 8 Allen (Mass.), 560. Damages, 173. Injuries to Persons on the Track, 448. Gillham v. Madison County R. R. Co., 49 111., 484. Surface Water, 736. Gilligan v. New York and Harlem R. R. Co., 1 E. D. Smith (N. Y.), 453. Injuries to Per- sons on the Track, 463. Gillinwater v. Mississippi and Atlantic R. R- Co., 13 111., 1. Eminent Domain, 194. Gillis V. Pennsylvania R. R. Co., 59 Penn. St., 139. Injuries to Persons on the Track, 469. Gillispie v. Ft. Wayne and Southern R. R. Co., 13 Ind., 398. Oilman v. Eastern R. R. Co., 10 Allen (Mass.), 333. Injuries to Employes, 384. V. Eastern R. R. Co., 13 Allen (Mass.), 433. Evidence, 283. Injuries to Employes, 384. V. European, etc. R. R. Co., 60 Me., 335. Injuries to Domestic Animals, 361, 373. V. Sheboygan, 3 Black., 510. Subscrip- tions by Counties, 675. Gilmore v. Atlantic and Pacific R. R. Co., 35 Barbour (N. Y.), 279. V. St. Louis, Kansas City and Northern R. R. Co., 54 Mo., 327. Gilshannon v. Stony Brook R. R. Co., 10 Gushing (Mass.;, 228. Injuries to Employga, 387. Gilstrap v. St. Louis, Macon and Omaha Air Line R. R. Co., 50 Mo., 490. Bills and Notes, 49. Ginnon v. New York and Harlem R. R. Co., 3 Robertson (N. Y.), 25. Street Railways, 655. Girard Bank v. Philadelphia and Morristown R. R. Co., 3 Miles (Penn.), 447. Execution, 292. Girard College R. R. Co. v. Thirteenth Street, etc. R. R. Co., 7 Philadelphia Rep. (Penn.), 630. Street Railways, 645. Girtman v. Central R. R. Co. of Georgia, 1 Ga., 173. Injuries to Domestic Animals, 365. Glaize v. South Carolina R. R. Co., 1 Strob- harts' Law (So. Car.), 70. Process, 592! Glasco V. New York Central R. R. Co., 36 Barbour (N. Y.), 557. Baggage, 38, 41. Glassey v. Hestonville, Mantua and Fair- mount R. R. Co., 57 Penn. St., 173. Injuries to Persons on the Track, 465. Gleason v. Vermont Central R. R. Co. 25 Vt., 37. Setoff, 615. Glenn v. Charlotte and South Carolina R. R. Co., 63 N. C, 510. Carriage of Merchan- dise, 80. Godard v. South Carolina -R. R. Co., 3 Rich- ardson's Law (So. Car.), 346. Landlord and Tenant, 499. Goddai-t V. Grand Trunk R. R. Co., 57 Me., 203. Injuries to Passengers, 414. Goetz V. Hannibal and St. Joseph R. R. Co., 50 Mo., 473 Gold V. Housatonic R. R. Co., 1 Gray, (Mass.), 434. Garnishment, 319. V. Vermont Central R. R. Co., 19 Vt., 478. Eminent Domain, 313. 888 TABLE OF CASES. Goldey v. Pennsylvania E. E. Co., 30 Penn. St., 242. CarriageofMercliandise, 75, 93. Gonzales v. New York and Harlem E. E. Co., 39 Howard's Pr. (N.Y.), 407. Injuri to Persons on the Track, 451. V. New York and Harlem E. R. Co., 38 N. Y, 440. Injuries to Persons on the Track, 451. V. New York and Harlem R. E. Co., 6 Eobertson (N. Y.), 93. Injuries to Persons on the Track, 451. T. New York and Harlem E. E. Co., 1 Sweeny (N. Y.), 505. Injuries to Persons on the Track, 451. V. New York and Harlem E. E. Co., 1 Jones & Spencer (N. Y.), 57. Injuries to Persons on the Track, 451. Goodfellow V. Boston, Hartford and Erie R. E. Co., 106 Mass., 461. Injui-ies to Persons on the Track, 473. Goodin v. Cincinnati and Whitewater Canal Co., 18 Ohio St., 169. Eminent Domain, 230. V. Evans, 18 Ohio St., 150. Goodman v. Cincinnati and Chicago E. E. Co., 2 Disney (Ohio), 176. Mortgage, 534. V. Hannibal and St. Joseph B. E. Co., 45 Mo., 33. Lease, 501. Goodrich v. Eastern E. E. Co., 38 N. H., 390. Agreed Case», 16. V. Eastern R. R. Co., 37 N. H., 149. Emi- nent Domain, 233. Goodsell V. Hartford and New Haven E. E. Co., 33 Conn., 51. Injuries to Passengers, 424. Goodwin v. Baltimore and Ohio E. E. Co., 58 Barbour (N. Y.), 195. Carriage of Merchan- dise, 106. V. Baltimore and Ohio E. E. Co., 50 N. Y, 154. Carriage of Merchandise, 106. V. Hardy, 57 Me., 143. Stock and Stock- holders, 633. V. Missouri, Kansas and Texas R. R. Co., 51 Mo., 435. Goodyear v. Railroad Co., 2 Wallace, Jr., (U. S.), 356. Patents, 569. Gordon v. Grand Street and Newtown E. E. Co., 40 Barbour (N. Y.), 546. Injuries to Passengers, 410. Street Eailways, 656. V. Manchester and Lawrence E. E. Co., 52 N. H., 596. Passengers, 567. V. Vicksburg, Shreveport and Texas E. E. Co., 18 La. An., 550. Mortgage, 539. Gorman v. Pacific R. E. Co., 26 Mo., 441. In- juries to Domestic Animals, 345, 350, 374, 375. Gorton v. Erie E. R. Co., 45 N. Y., 660. In- juries to Persons on the Track, 457. Goshen Township v. Springfield, Mount Ver- non and Pittsburgh R. R. Co., 12 Ohio St., 634. Subscriptions by Townships, 732. Goubeau v. New Orleans and Nashville R. R. Co., 6 Robinson (La.), 345. Executions, 293. Gould V.Hudson River R. R. Co., 6 N. Y., 522. Eminent Domain, 236. V. Hudson River E. E. Co., 12 Barbour (N. Y.), 616. Eminent Domain, 236. v. Newburyport E. B. Co., 14 Gray (Mass.), 472. Garnishment, 318. V. Town of Venice, 29 Barbour (N. Y.), 442. Subscriptions by Cities and Towns, 672. Governor, Opinion of Court to, 49 Mo., 216. Legal Tender Act, 505. Questions Pro- pounded by the Legislature, 594. V. Ealeigh and Gaston E. R. Co., 3 Ire- dell's Eq. (N. C), 471. Process, 593. Gowen v. Penobscot R. R. Co., 44 Me., 140. Eminent Domain, 191, 212. Gratfv. Pittsburg and Steubenville R. R. Co., 31 Penn. St., 489. Evidence, 290. Subscrip- tions by Individuals, 715, 716, 725. Graham v. Chamberlain, 3 Wallace, 704. V. Charlotte and South Carolina R. E. Co., 64N. C.,631. Venue, 773. V. Columbus and Indianapolis Central R. E. Co., 27 Ind., 260. Eminent Domain, 373. V. Connersville and New Castle Junction R. R. Co., 36 Ind., 463. Eminent Domain, 252. V. Evansville, Indianapolis and Cleve- land Straight Line R. R. Co., 8 Ind., 276. Eminent Domain, 273. V- La Crosse and Milwaukee R. R. Co., 10 Wis., 459. Creditor's Bill, 169. Graham and Anderson v. Hendi-icks, 23 La. An., 538. Corporate Powers, 165. Grand Gulf R. E. and Banking Co., for use of, etc., V. Conger, 9 Smedes & Marshall (Miss.), 505. Attachment, 29. Grand Junction E. E. Co. v. Middlesex, 14 Gray (Mass.), 553. Eminent Domain, 198, 213, 253. Location, 513. Grand Eapids and Indiana R. B. Co. v. Horn, 41 Ind., 479. Eminent Domain, 225. Grand Rapids, Newaygo and Lake Shore E. E. Co. V. VanDriele, 24 Mich, 409. Emi- nent Domain, 216, 349. Grand Trunk R. R. Co. v. Edwards, 56 Bar- bour (N. Y.), 408. Agency, 15. TABLE OF CASES. 839 Grand Trunk R. R. C). v. Nichol, 18 Mich., 170^ Instructions, 479. Evidence, 277. Granite R. R. Co. v. Bacon, 15 Pick (Mass.), 239. Bills and Notes, 46. Grannahan v. Hannibal and St. Josepli R. R. Co., 30 Mo., 546. Construolion of Railways, 146. Grannis v. St. Paul and Chicago R. R. Co., 18 Minn., 194. Eminent Domain, 257. Grant v. Courier, 24 Barbour (Ny.), 232. Sub- scriptions by Cities and Towhs, 663. Gratz V. Pennsylvania R. R. Co., 41 Penn. St., 447. Assignment for Benefit of Creditors, 28- Constitutional Law, 138. V. Redd, 4 B. Monroe (Ky.), 178. Direct- ors, 179, 181, 182. Subscriptions by Indi- viduals, 724. Stock and Stockholders, 632. Grau V. St. Louis, Kansas City and Northern R. R. Co., 54 Mo., 240. Injuries to Crops, 343. Graves v. Mississippi and Alabama R. R. Co., 6 Howard (Miss.), 548. Bill an 1 Notes, 48. Gray v. Chicago, Iowa and Nebraska R. B. Co., 1 Woolworth (U. S. D. C), 63. Injunc- tion, 341. V. Lowell and Lawrence R. R. Co., 4 Cush- ing (Mass.), 609. Eminent Domain, 209. V. St. Paul and Pacific R. R. Co., 13 Minn., 815 Eminent Domain, 243. V. Second Avenue R. R. Co., 2 Jones and Spencer (N. Y.), 519. Injuries to Persons Generally, 444. Great Falls and Conway R. R. Co. v. Copp, 88 N. H., 124. Subscriptions by Individuals, 717. Great "Western R. R. Co v. Bacon, 30 HI., 347. Injuries to Domestic Animals, 366. — V. Burns, 60 111., 284. Car. iage of Mer- chandise, 83. V. City of Decatur, 33 111., 381. Streets, 344. V. Geddis, 33 111., 304. Injuries to Do- mestic Animals, 349, 363. V. Hawkins, 18 Mich., 427. Carriage of Live Stock, 65. V. Haworth, 39 111., 346. Fires, 306, 307. V. Hanks, 25 111., 241. Instructions, 479. V. Hanks, 36 111.. 281. Injuries to Domes- tic Animals, 358, 366. V. Helm, 27 111., 198. Injuries to Domes- tic Animals, 356. V. McComas, 33 111., 185. Carriage of Merchandise, 91, 99. V. McDonald, 18 111., 172. Bill of Lad- ing, 52. V. Miller, 19 Mich., 305. Injuries to Pas- sengers, 417. Pleading, 574. Venue, 772. Great Western R. R. Co. v. Mortliland, 30 111., 451. Injuries to Domestic Animals, 366. V. Thompson, 17 111., 131. Injuries to Domestic Animals, 351. '■ V. Wheeler, 20 Mich., 419. Marks, 519. Greeley v. Maine Central R. R. Co., 53 Me., 200. Surface Water, 736. Green v. City of Portland, 32 Me., 481. Mu- nicipal Corporations, 546. V. East Tewessee R. R. Co, 37 Ga., 456. Arbitration, 28. V. Hudson River R. R. Co., 16 Howard's Pr. (N. Y.), 263. V. Hudson River R. R. Co., 16 Howard's Pr. (N. Y.), 230. Injuries to Passengers, 424. V. Hudson River R. R. Co., 2 Abbott's Ct. of Ap. Dec. (N. Y.), 377. Injuries to Pas- sengers, 424. V. Hudson River R. R. Co., 28 Barbour (N. Y.), 9. Injuries to Passengers, 424. V. Hudson River R. R. Co., 2 Keyes (N. Y.), 294. Injuries to Passengers, 424. V. Hudson River R. R. Co., 31 Barbour (N. Y.), 260. V. Hudson River R. R. Co., 32 Barbour (N. Y.), 25. Injuries to Passengers, 424. V. Morris and Essex R. R. Co., 4 Zabriskie (N. J.), 486. Pleading, 577. Private Ways and Crossings, 587. v. MoiTis and Essex R. R. Co., 1 Beasley's Ch. (N. J.), 165. Equity, 274. v. New York Central R. R. Co., 4 Daly (N. Y.), 553. Baggage, 88, 41. V. New York Central R. R. Co., 12 Ab- bott's Pr., N. S. (N. Y.), 473. Baggage, 37. V. Town of Canaan, 29 Conn., 157. High- ways, 324. Green and Coates Streets R. R. Co. v. Moore, 64 Penn. St., 79. Sales, 611. Greenleaf v. Dubuque and Sioux City R. R. Co., 30 la., 301. Evidence, 284. V. Dubuque and Sioux City R. R. Co., 33 la., 53. Injuries to Employes, 393, 397. V. Illinois Central R. R. Co., 38 la., 608. V. Illinois Central R. R. Co., 29 la., 14. Injuries to Employes, 398, 400. Negligence, 548. Verdict, 778. Greenville and Columbia R. R. Co. v. Cath- cart, 4 Richardson's Law (So. Car.), 89. Sub- scriptions by Individuals, 724. V. Choice, 7 Richardson's Law (So. Car.), 40 Costs, 168. V. Coleman, 5 Richardson's Law (So. Car.), 118. Subscriptions by Individuals, 706, 708. 840 TABLE OF CA.SES. Greenville and Columbia R. R. Co. v. Joyce, 8 Richardson's Law (So. Car.), 117. Ex- ecutors de son tort, 394 V. Kunnamaker, 4 Richardson's Law (So. Car.), 107. Eminent Domain, 202, 220. V. Partlow, 5 Richardson's Law (So. Car.), 428. Eminent Domain, 225. V. Partlow, 14 Richardson's Law (So. Car.), 237. Evidence, 284. Trespass, 764. V. Partlow, 6 Richardsop's Law (So. Car.), 286. Eminent Domain, 209. V. Smith, 6 Richardson's Law (So. Car.), 91. Subscriptions by Individuals, 706, 714. V. Woodsides, 5 Richardson's Law (So. Car.), 145. Subscriptions by Individuals, 712. Greenwich v. Easton and Amboy R. R. Co., 9 C.E. Green's Ch. (N. J.), 217. Eminent Do- main, 2d0. Greenwood v. Wilton R. R. Co., 3 Foster (N. H.), 261. Eminent Domain, 234. Gregg V. Indianapolis and St. Louis R. R. Co., 88 Ind., 372. Subscriptions by Individuals, 703. Gregory v. Cleveland, Columbus and Cincin- nati R. R. Co., 4 Ohio St., 675. Grey v. Ohio and Pennsylvania R. R. Co., 1 Grant's Cases (Penn.), 412. Nuisance, 557. Griffin v. Montgomery and West Point, R. R. Co., 26 Ga., 111. Evidence, 279. V. New Tork Central R. R. Co., 53 N. T., 618. Griffith V. Commissioners of Crawford Coun- ty, 20 Ohio, 609. Subscriptions by Counties, 678, 679. Griggs V. Deti-oitand Milwaukee R.R. Co., 10 Mich., 117. Appeals, 17. Conveyance, 163. Equity, 275. Mortgage, 534. Setoff, 615. Grimball v. Mississippi and Alabama R. R. Co., 3 Smedes & Marshall (Miss.), 38. Ap- peals, 23. Costs, 167. Grinnell v. Mississippi and Missouri R. R. Co., 18 Iowa, 570. Eminent Domain, 258. Groff V. Cincinnati and Indiana R. R. Co., 1 Cincinnati Superior Ct. Rep., 264. Injuries to Employes, 389. Grosvenor v. New Tork Central R. R. Co., 39 N. Y., 34. Carriage of Merchandise, 105. V. New Tork Central R. R. Co., 5 Abbott's Pr., N. S. (N. T.), 345. Carriage of Mer- chandise, 105. Gumey v. Atlantic and Great Western R. R. Co., 2 N. T. Sup. Ct., 446. Contracts, 149. Gwathney v. Little Miami R. R. Co., 12 Ohio St., 92. Injuries to Persons on the Track 472. Gwinner v. Lehigh and Delaware Gap R. R. Co., 55 Penui St., 136. Eminent Domain, 208. H. Haase v. New Tork Central R. R. Co., 14 How- ard's Pr. (N. T.), 430. Appeals, 23. Hackensack Commission v. New Jersey Mid- land R. R. Co., 7 C. E. Green's Ch. (N. J.), 95. Injunction, 342. Streets, 644. Hackett v. B. C. and M. R. R. Co., 35 N. H., 390. Carriage of Merchandise, 84. Con- fession, 129. Evidence, 288. Hackford v. New Tork Central and Hudson River R. R. Co., 53 N. T., 654. Injuries to Persons on the Track, 459. V. New Tork Central and Hudson River R. R. Co., 43 Howard's Pr. (N. T.), 223. In- juries to Persons on the Track, 460. V. New Tork Central R. R. Co., 13 Ab- bott's Pr., N. S. (N. T.), 18. Injuries to Per- sons en the Track, 452. V. New York Central R. R. Co., 6 Lan- sing (N. T.), 381. Injuries to Persons on (he Track, 460. Haddock v. Boston and Maine R. R.-Co., 3 Al- len), Mass., 298. Illegitimate Children, 331. Haden v. North Carolina R. R. Co., 8 Jones' Law (N. C), 362. Slaves, 618. Hadencamp v. Second Avenue R. R. Co., 1 Sweeny (N. T.), 490. Street Railways, 657. Hadley v. Russell, 40 N. fl., 109. Stock and Stockholders, 635. Hagan v. Providence and Worcester R. R. Co., 3 R. I., 88. Damages, 172. V. Railroad Company, 5 Philadelphia Rep. (Penn.), 179. Injuries to Persons on the Track, 475. Hagar v. Brainerd, 44 Vt., 394 Eminent Do- main, 261. V. King, 38 Barbour (N.T.), 200. Statute of Frauds, 625. Hager v. Reed, 11 Ohio St., 626. Contracts, 158. Haggerty v. Central R. R. Co., 2 Vroom (N. J.), 349. Injuries to Employes, 400. Haight V. New Tork Centi-al R. R. Co., 7 Lan- sing (N. T.), 11. Injuries to Persons on the Track, 451. V. Pittsburgh, Ft Wayne and Chicago R. R. Co., 1 Abbott (U. S. C. C), 81. Mortgage, 544. V. Railroad Company, 6 Philadelphia Rep. (Penn.), 449. Taxation, 745. V. Railroad Company, 6 Wallace, 15. Mortgage, 544 TABLE OF CASES. 841 Haines v. Sheriff, 21 La. An., 248. Haldeman v. Hillsborougli and Cincinnati E. R. Co., 2 Handy (Ohio), 101. Assignment for Benefit of Creditors, 28. Stocli and Stock- holders, 630. T. Pennsylvania Central R. R. Co., 50 Penn. St., 425. Eminent Domain, 230. Haley v. Chicago and Northwestern R. R. Co., 21 la., 15. Injuries to Passengers, 416. Hall V. Boston and Worcester R. R. Co., 14 Allen (Mass.), 489. Carriage of Merchan- dise, 108. V. Cincinnati, etc., R. R. Co., 1 Disney (Ohio), 58. Eminent Domain, 240. V. Junction R: R. Co., 15 Ind., 363. Bills and Notes, 46. V. Pickering, 40 Me., 548. Eminen' Do- main, 273. Right of Way, 606. V. Power, 12 Metcalf (Mass.), 48. Depot, 178. V. Selma and Tennessee R. R. Co., 6 Ala., N. S., 745. Subscriptions by Individuals, 726. V. Vermont and Massachusetts R. R. Co., 28 Vt., 401. Contracts, 150. Depot, 170. Limitations, 509. Subscriptions to Stock, 660. ■ V. Western R. R. Co., 13 Metcalf (Mass.), 99. Hall and Long v. Railroad Companies, 13 Wallace, 367. Insurance, 481. Hallett v. Chicago and Northwestern R. R. Co., 22 la., 359. Amendments, 16. Halligan v. Chicago and Rock Island R. R. Co., 15 111., 558. Trespass, 764. Halloran v. New York and Harlem R. R. Co., 2 E. D. Smith (N. Y.), 257. Injuries to Do- mestic Animals, 350. Hall's Appeal, 56 Penn. St., 338. Certiorari, 112. Lateral Railroads, 499. Hamden v. New Haven and Northampton R. R. Co., 37 Conn., 158. Highway, 330. Hamilton v. Annapolis and Elk Ridge R. R. Co., 1 Md., 553. Eminent Domain, 253. v. Annapolis and Elk Ridge R. R. Co., 1 Johnson's Ch. (Md.), 107. Eminent Do- main, 271. V. Grand Rapids and Indianapolis R. R. Co., 18 Ind., 347. Directors, 182. V. Newcastle and Danville R. R. Co., 9 Ind., 859. Bills and Notes, 47. V. New York and Harlem R. R. Co., 9 Paige's Ch. (N. Y.), 171. Charter, 121. Emi- nent Domain, 248. T. New York Central E. R. Co., 51 N, Y., 100. 759. Injuries to Passengers, 416. Tickets, Hamilton v. Third Avenue R. R. Co., 3 Jones & Spencer (N. Y.), 118. Injuries to Passen- gers, 414, 417, 419. V. Third Avenue R. R. Co., 13 Abbott-s Pr., N. S. (N. Y.), 318. Injuries to Passen- gers, 414, 417, 419. V. Third Avenue R. R. Co., 53 N. Y., 35. Injuries to Passengers, 416. v. Third Avenue R. R. Co., 44 Howard's Pr. (N. Y.), 294. Street Railways, 658. Hammett v. Little Rock and Napoleon R. R. Co., 20 Ai-k., 204. Pleading, 580. Hamrick v. Danville and North Salem R. R. Co., 30 Ind., 147. Venue, 771. Hance v. Cayuga and Susquehanna R. R. Co., 36 N. Y., 428. Injuries to Domestic Ani mals, 876. Hancock v. Richmond and Petersburg R. R. Co., 3 Grattan (Va.), 328. Appeals 33. Hanley v. Harlem R. R. Co., 1 Edmonds (N. Y.), 359. Injuries to Passengers, 434. Hanna v. Cincinnati and Ft. Wayne R. R. Co., 30 Ind., 80. Subscriptions by Individuals, 710. V. Jeffersonville R. R. Co., 33 Ind., 113. Limitations, 508. Hannah v. Indiana Central R. R. Co., 18 Ind., 431. Hannibal v. Hannibal and St. Joseph R. R. Co., 49 Mo., 480. Highways, 338. Hannibal and St. Joseph R. R. Co. v. Brown, 43 Mo., 394. Equity, 375. Judgment, 486. V. Kenney, 41 Mo., 371. Injunction, 343. V. Mahoney, 42 Mo., 467. Bill of Excep- lions, 50. Trespass, 764. V. Marion County, 86 Mo., 294. Subscrip- tions by Counties, 685. v. Moore, 45 Mo., 443. V. Moore, 37 Mo., 338. V. Morton, 20 Mo., 70. 193. V. Morton, 37 Mo., 817. Eminent Domain. 318. V. Muder, 49 Mo., 165. Eminent Domain, 194, 198, 252. V. Rowland, 29 Mo., 837. Eminent Do- main, 203. V. Shacklett, 30 Mo., 550. Taxation, 753. — V. Smith, 41 Mo., 810. Hannibal R. R. Co. v. Swift, 13 Wallace, 262. Baggage, 34. Carriage of Merchandise, 97. Passengers, 567. Hanover R. R. Co. v. Coyle, 55 Penn. St., 396. Land Grants, 497. Land Grants, 496. Eminent Domain. 8i2 TABLE OF CASES. Damages, 173. Evidence, 380. Injviries to Persons on the Track, 451. Hansberger v. Pacific B. R. Co., 43 Mo., 196. Appeals, 20. Hanson v. Vernon, 27 la., 28. Subscriptions by Counties, 678. Subscriptions by Town- ships, 735. Harbor v. Paciflc R. K. Co., 83 Mo., 423. Judg- ment, 485. Hard v. Vermont and Canada K. R. Co., 32 Vt., 472. Injuries to Employes, 392. Hardcastle v. Maryland and Delaware R. R. Co., 32 Md., 32. Mandamus, 516. Haring v. New York and Erie R. R. Co., 13 Barbour (N. Y.), 9. Injuries to Persons on the Track, 459. Harlow v. Fitchburg R. R. Co., 8 Gray (Mass.), 237. Baggage, 40. Harmon v. New York and Erie R. R. Co., 28 Barbour (N. Y.), 323. Carriage of Merchan- dise, 99. Harper v. Erie R. R. Co., 3 Vroom (N. J.), 88. Injuries to Passengers, 413. V. Indianapolis and St. Louis R. R. Co., 47 Mo., 567. Injuries to Employfe, 383. V. Indianapolis and St. Louis R. R. Co., 44 Mo., 488. Injuries to Employes, 383, 401. V. Lexington and Ohio R. R. Co., 3 Dana (Ky.), 227. Eminent Domain, 195. Han-ington v. St. Paul and Sioux City R. R. Co., 17 Minn., 215. Eminent Domain, 243. Harriott v. New Jersey R. R. Co., 1 Daly (N. Y.), 377. Jurisdiction, 488. V. New Jersey R. R. Co., 2 Hilton (N. Y.) 262. Jurisdiction, 488. V. New Jersey R. R. Co., 8 Abbott's Pr. (N. Y.), 284. Jurisdiction, 490. Harris v. Hannibal and St. Joseph R. R. Co., 37 Mo., 307. Pleading, 583. V. New Orleans, Opelousas and Great Western R. R. Co., 16 La. An., 140. Limi- tations, 508. V. Northern Indiana R. R. Co., 20 N. Y., 233. Carriage of Live Stock, 65, 67. V. Panama R. R. Co., 3 Bosworth (N. Y.), 7. Carriage of Merchandise 84. V. Panama R. R. Co., 5 Bosworth (N. Y.), 312. Carriage of Live Stock, 64. V. Somerset and Kennebec R. R. Co., 47 Me., 298. Contracts, 155. Garnishment, 318, 330. V. Stevens, 31 Vt., 79. Station Grounds and Buildings, 623. Harrison v. Central R. R. Co., 3 Vroom (N. J.), 293. Injuries to Employes, 388. Harrison v. Lexington and Oliio R. R. Co., 9 B- Monroe (Ky.), 470. Right of Way, 609. v. Martinsville and Franklin R. R. Co., 16 Ind., 505. Hart V. Indianapolis and Cincinnati R. R. Co., 12 Ind., 478. Injury to Domestic Animals, 369. V. Lauman, 39 Barbour (N. Y.), 410. Construction of Railways, 143. Stock and etocdolders, 628. V. New Orleans and Carrollton R. R. Co., 4 La. An., 261. Evidence, 384. V. New Orleans and Carrollton B. R. Co., 1 Robinson (La.), 178. Evidence, 386. Agency, 16. Carriages, 61. v. Rensselaer and Saratoga R. R. Co., 8 N. Y., 37. Baggage, 37. V. Western R. R. Co., 13 Metcalf (Mass.), 99. Fires, 308. Insurance, 481. Hartford and New Haven R. B. Co. v. Andrews, 36 Conn.; 313. Injuries to Passengers, 435. V. Boorman, 13 Conn., 530. Subscrip- tions by Individuals, 720. V. Croswell, 5 Hill (N. Y.), 383. Subscrip- tions by Individuals, 723. V. Grant, 9 Blatchford (U. S. C. C), 543. Taxation, 745. V. Jackson, 24 Conn., 514. Carriage of Merchandise, 95. V. Kennedy, 13 Conn., 499. Subscriptions by Individuals, 711, 724 V. New York and New Haven R. R. Co., 3 Robertson (N. Y.), 411. Contracts, 155. Hartman, In Matter of, 9 Abbott's Pr. N. S- (N. Y.), 134. Mortgage, 538. V. Milwaukee and St. Paul R. R. Co., 23 Wis., 693. Harty v. Central R. R. Co., of New Jersey, 43 N. Y., 468. Injuries to Persons on Uie Track, 457. Harvard Branch R. R. Co. v. Rand, 8 Gushing (Mass.), 318. Eminent Domain, 309. Harvey v. Lackawanna and Bloomsburg R. R. Co., 44 Penn. St., 438. Eminent Domain, 316, 320, 235. V. Lloyd, 3 Penn. St., 331. Lateral Rail- roads, 500. Harwood v. Railroad Co., 17 Wallace, 78. Pleading, 577. Haskin v. New York Central B. R. Co., 65 Barbour (N. Y.), 129. Injuries to Employes, 403. ■* ' Haslan v. Morris and Essex R. R. Co., 4 Vroom (N. J.), 147. Injuries to Persons on the Track, 453. TABLE OF CASES. 843 Haswell v. Farmers' and Mechanics' Bank, 26 Vt, 100. Eminent Domain, 360. V. Vermont Central R. R. Co., 23 Vt., 228. Eminent Domain, 260. Hatch V. Chicago, Rock Island and Pacific R. R. Co., 6 Blatchford (U. S. C. C), 105. Fed- eral Courts, 297. V. Cincinnati and Indiana R. R. Co., 18 Ohio St., 92. Eminent Domain, 229. V. Vermont Centi-al R. R. Co., 25 Vt., 49. Eminent Domain, 236. v. Vermont Central R. R. Co., 28 Vt., 142. Highway, 330. Nuisance, 557. Hatfield v. Central R. R Co., 4 Vroom (N. J.), 251. Eminent Domain, 246. Hathorn v. Calef, 53 Me., 471. Contracts, 150. Stock and Stockholders, 635, 636. Havemeyer v. Iowa County, 3 Wallace, 294. Jurisdiction, 489. Subscriptions by Coun- ties, 675. Haven v. Adams, 4 Allen (Mass ), 80. Convey- ance, 162. Lease, 503. V. Boston and Worcester R. R. Co., 8 Al- len (Mass.), 369. Mortgage, 543. V. Emery, 33 N. H., 66. Mortgage, 526. V. Grand Junction R. R. Co., 12 Allen (Mass.), 337. Mortgage, 535. V. Grand Junction R. R. Co., 109 Mass., 88. Mortgage 530. Havens v. Erie R. R. Co., 41 N. Y., 296. Inju- ries to Persons on the Track, 457. V. Erie R. R. Co., 53 Barbour (N. Y.), 328. Injuries to Persons on the Track, 457. V. Hartford and New Haven R. R. Co., 26 Conn., 230. Injuries to Passengers, 439. V. Hartford and New Haven R. R. Co., 28 Conn., 69. Pleading, 574, 580, 582. Haverhill Mutual Ins. Co. v. Newhall, 1 Allen (Mass.), 130. Bills and Notes, 47. Hawkins v. Great Western R. R. Co., 17 Mich., 57. Carriage of Live Stock, 62. V. Mississippi and Tennessee R. R. Co., 35 Miss., 688. Pleading, 572, 582. Subscrip- tions by Individuals, 720. Hawthorne v. Calef, 2 Wallace, 10. Constitu- tional Law, 128. Hayes v. Cincinnati and Indiana R. R. Co., 17 Ohio St., 110. Eminent Domain, 197. V. Ottawa, Oswego and Fox River Valley R. R. Co., 54 111., 378. Eminent Domain, 238, 239. V. Western R. R. Co., 3 Cushing (Mass.), 270. Injuries to Empolyes, 388. Haynes v. Carter, 9 La. An., 265. Charter, 115. V. East Tennessee and Georgia R. R. Co., 3 Coldwell (Tenn.), 222. Injuries to Em- ployes, 389. Hays & Black v. Pittsburgh and Steubenville R. R. Co., 38 Penn. St., 81. Subscriptions by Individuals, 713, 716, 717. Hays V. Pennsylvania R. R. Co., 17 Penn. St., 9. Jurisdiction, 492. V. Risher, 33 Penn. St., 169. Lateral Rail- roads, 500, 501. Hayworth v. Junction R. R. Co., 13 Ind., 348. Subscriptions by Individuals, 710. Hazard v. Chicago, Burlington and Quincy R. R. Co., 1 Bissell (U. S. C. C), 503. Injuries to Passengers, 436, 437. V. New York, Boston and Providence R. R. Co., 2 R. I., 63. Evidence, 284. V. Union Pacific R. R. Co., 9 R. I., 602. Federal Courts, 298. Hazelhurst v. Savannah, etc., R. R. Co., 43 6a., 13. Stock and Stockholders, 637. Subscrip- by Railroad Companies, 730. Hazen v. Boston and Maine R. R. Co., 2 Gray (Mass:), 574. Eminent Domain, 194. Tres- pass, 765. Hearne v. Chillicothe and Brunswick R. R. Co., 53 Mo., 334. Mechanics' Liens, 530. Heaston v. Cincinnati and Ft. Wayne R. R. Co., 16 Ind., 275. Bills of ExceptionSj 49. Jury, 493. Pleading, 576, 581. Subscrip- tions by Individuals, 717, 718, 738, 729. Heath v. Erie R. R. Co., 8 Blatchford (U. S. C. C), 347. Stock and Stockholders, 629, ' 638. V. Erie R. R. Co., 9 Blatchford (U. S. C. C), 316. Bill of Discovery, 49. Hedges v. Hudson River R. R. Co., 6 Robert- son (N. Y.), 119. Carriage of Merchandise, 87. V. Hudson River R. R. Co., 49 N. Y., 333. Carriage of Merchandise, 87. V. North Missouri R. R. Co., 48 Mo., 882. Appeals, 18. Heffron v. Michigan Southern and Northern Indiana R. R. Co., 16 Mich., 79. Carriage of Merchandise, 79, 106. Lease, 504. Hegan v. Eighth Avenue R. R. Co., 15 N. Y., 380. Street Railways, 654. v. Chicago and Northwestern R. R. Co., 26 Wis., 624. Eminent Domain, 243, Prac- tice, 587. Hegeman v. Western R. R. Co., 16 Barbour (N. Y.), 353. Injuries to Passengers, 408, 413. V. Western R. R. Co., 13 N. Y., 9. Injuries to Passengers, 408, 413. Heineman v. Grand Trunk R. R. Co., 31 How 8U TABLE OF CASES. ard's Pr. (N. Y.), 4^0.. Carriage of Live Stock, 62. Heise and Mifflin v. Pennsylvania R. R. Co., 63 Penn. St., 67. Eminent Domain, 306, 361, 363. Helphrey v. Cliicago, Rock Island and Pacific R. R., Co., 29 la., 480. Verdict, 773. Tender, 758. Hempfield R. R. Co. v. Tliornburg, 1 W. Va., 261. Payment, 569. Hempstead v. New York Central R. R. Co., 38 Barbour (N. Y.), 485. Carriage of Mer- cliandise, 95. Henderson v. Railroad Co., 17 Tex., 560. Agency, 14. Subscriptions by Individuals, 690. Henderson and Nasbville R. R. Co. v. Dicker- son, 17 B. Monroe (Ky.), 173. Eminent Do- main, 239, 268. V. Dickerson, 16 B. Monroe (Ky.), 297. Eminent Domain, 305. V. Leavell, 16 B. Monroe (Ky.), 358. Pleading, 576. Subscriptions by Individu- als, 696, 737. V. Moss, 2 Duvall (Ky.), 343. Subscrip- tions by Individuals, 702. Hendrickson v. St. Louis and Iron Mountain R. R. Co., 34 Mo., 188. Judgment, 485. Hennen v. New Orleans and CarroUton R. R. Co., 30 La. An., 544. Practice, 587. Hennessey v. Old Colony and Newport R. R. Co., 101 Mass., 540. Streets, 640. Henniker v. Contoocook R. R. Co., 29 N. H., 146. Eminent Domain, 259. Henning v. Hannibal and St. Joseph R. R. Co., 35 Mo., 408. Jury, 494. v. New York and New Haven R. R. Co. 9 Bosworth (N. Y.), 383. Agency, 15. Henry v. Dubuque and Pacific R. R. Co., 3 la., 388. Eminent Domain, 227, 258, 263, 266. V. Dubuque and Pacific R. R. Co., 10 la., 540. Eminent Domain, 267. V. Rutland and Burlington R. R. Co., 27 Vt., 435. Directors, 179. V. Vermont Central R. R. Co., 30 Vt., 638. Watercourses, 780. V. Vermillion and Ashland R. R. Co., 17 Ohio, 187. Creditor's Bill, 169. Hentz V. Long Island R. R. Co., 13 Barbour (N. Y.), 646. Eminent Domain, 338, 248. Injunction, 837. Location, 512, 513. Herbein v. Railroad Co., 9 Watts (Penn.), 272. Eminent Domain, 209. Hermann v. New Orleans and CarroUton R. R. Co., 11 La. An., 5. Injuries to Employes, 400. Herricfc v. Vermont Central R. R. Co., 27 Vt, 673. Construction of Railways, 140. Herring v. Wilmington and Raleigh R. R. Co., 10 Iredell's Law (N. C), 402. Slaves, 618. Hess V. Buffalo and Niagara Falls R. R. Co., 29 Barbour (N. Y.), 391. Parties to Actions, 561. Hester v. Memphis and Charleston R. R. Co., 33 Miss., 378. Charter, 114. Hestonville, et<;., R R. Co. v. Schuylkill R. R. Co., 6 Philadelphia Rep. (Penn.), 141. Street Railways, 647. Hetfield v. Central R. R. Co., 5 Dutcher (N. J.). 571. Eminent Domain, 269. Statute of Frauds, 626. Heth V. Richmond, Fredericksburg and Poto- mac R R Co., 4 Grattan (Va.), 482. Trust, 768. Hewett V. New York Central R. R. Co., 3 Lan- sing (N. Y.), 83. Injuries to Persons on the Track, 451. Heyl V. Philadelphia, Wilmington and Balti- more R R Co., 51 Penn. St., 469. Turnout, 770. V. Railroad Co., 6 Philadelphia Rep, (Penn.), 43. License 506. Hibbard v. New York and Erie R. R Co., 15 N. Y., 455. Injuries to Passengers, 423. Hickey v. Boston and Lowell R R Co., 14 Allen (Mass.), 439. Injuries to Passengers, 411. V. Dallmeyer, 44 Mo., 237. Injuries to Persons Generally, 444. Hickox V. Naugatuck R R. Co., 31 Conn., 281. Baggage, 34, 36. Hicksville and Cold Spring R. R Co. v. Long Island R R. Co., 48 Barbour (N. Y.), 355. Lease, 503. Higbee v. Camden and Amboy R R Co., 5 C. E. Green's Ch. (N. J.). 435. Streets, 643. V. Camden and Amboy R R Co., 4 O. E. Green's Ch. (N. J.), 276. Eminent Domain, 243, 253. Higby V. New York and Harlem R R Co, 3 Bosworth (N. Y.), 497. Payment, 569. V. New York and Harlem R R Co, 7 Ab- bott's Pr. (N. Y.), 259. Payment, 569. Higgius V. Hannibal and St. Joseph R. R Co. 36 Mo., 418. Injuricss to Passengers, 414. v. New York and Harlem R R. Co., 3 Bosworth (N. Y.), 132. Injuries to Passen- gers, 412. TABLE OF CASES 8-15 Higgins V. North Carolina R. R. Co., 7 Jones' Law (N. C), 470. Evidence, 387. V. Watervliet Turnpilte and Railroad Co., 46 N. y., 23. Injuries to Passengers, 418. Hilbert v. Winona and St Peter R. R. Co., 11 Minn., 346. Hill V. Commissioners of Forsythe County, 67 N. C, 367. Subscriptions by Counties, 676. V. La Crosse and Milwaukee R. R. Co., 11 Wis., 214. Mechanics' Liens, 519. : V. La Crosse and Milwaukee R. R. Co., 14 Wis., 291. Garnishment, 33. V. Mohawk and Hudson R. R. Co., 7 N. Y., 153. Eminent Domain, 321. V. Mohawk and Hudson R. R. Co., 5 De- nio (N. Y.), 306. Eminent Domain, 331. V. New Orleans, Opelousas and Great Western R. R. Co., 11 La. An., 393. Evidence, 283. Injuries to Passengers, 408, 438. V. Portland and Rochester R. R. Co., 55 Me., 488. Signals, 616. V. Smith, 31 Howard, 283. Stock and Stockholders, 628. V. Western Vermont R. R. Co., 33 Vt., 68. Executions, 393, Hill Manufacturing Co. v. Boston and Low- ell R. R. Co., 104 Mass., 133. Carriage of Merchandise, 73, ' Hilliard v. Goold, 34 N. H., 230. Injuries to Passengers, 419, 430, 443 Rates, 597. V. Wilmington and Weldon R. R. Co., 6 Jones' Law (N. C), 343. Carriage of Mer- chandise, 101. Hilligoss V. Pittsburgh, Cincinnati and St. Louis R. R. Co., 40 Ind., 113. Arrest of Judg- ment, 36. Hills V. Boston and Maine R. R. Co., 16 N. H., 179. Right of Way, 607. ' Himrod Furnace Co. v. Cleveland and Maho- ning R. R. Co., 33 Ohio St., 451. Contracts, 159. Hinchman v. Paterson R. R. Co., 3 C. E. Green's Ch. (N. J.), 75. Eminent Domain, 343. Street Railways, 648. Hinds v. Canandaigua and Niagara Falls R. R. Co., 10 Howard's Pr. (N. Y.), 487. Execu- tions, 393. Hinkle v. Lake Superior and Mississippi R. R. Co., 18 Minn., 297. New Trials, 553. Hinman v. Chicago, Rock Island and Pacific R. R. Co., 28 la., 491. Injuries to Domestic Animals, 373. Hirst v. Lehigh, etc., R. R. Co., 6 Philadelphia Rep. (Penn.), 93. Process, 593. Hitchcock v. Danbury and Norwalk R. R. Co., 25 Conn., 516. Eminent Domain, 196. Hoagland v. Cincinnati and Ft. Wayne R. R; Co., 18 Ind., 453. Subscriptions by Individ- uals, 694. V. Hannibal and St. Joseph R. E. Co., 39 Mo., 451. Pleading, 577. Steamboats, 636. Hoard v. Casey,4 Sneed (Tenn.), 178. Subscrip- tions by States, 731. Hobart v. Milwaukee City R. R. Co., 37 Wis., 194. Street Railways, 648. Hoben v. Burlington and Missouri River R. R. Co., 30 la., 563. Evidence, 388. Injuries to Employes 397, 403. Pleading, 583. Hodge V. Hudson River R. R. Co., 6 Blatoli- ford (U. S. 0. C), 85. Patents, 568. Hodges V. Rutland and Burlington R. R. Co., 39 Vt., 230. Directors, 180. V. Shuler, 33 N. Y., 114. Bills and Notes, 47. V. Shuler, 34 Barbour (N. Y.), 68. Bills and Notes, 47. Hodgkin v. Atlantic and Paciflc R. R. Co., 5 Abbott's Pr. N. S. (N. Y.), 73. Depositions, 177. Hodgkinson v. Long Island R. R. Co. 4 Ed- wards' Ch. (N. Y.), 411. Injunction, 343. Hodgskin v. Atlantic and Pacific R. R. Co., 3 Daly (N. Y.), 70. Practice, 586. Hoffman v. Pontchartrain R. R. Co., 9 La. (O. S.), 30; Setoff, 615. Hogencamp v. Paterson R. R. Co., 2 C. E. Green's Ch. (N. J.), 83. Street Railways, 648. Holbrook v. Utica and Schenectady R. R. Co., 16 Barbour (N. Y.), 113. Injuries to Passen- gers, 438. V. Utica and Schenectady R. R. Co., 13 N. Y., 336. Injuries to Passengers, 438. Holden v. New York Central R. R. Co., 54 N. Y., 663. Carriage of Merchandise, 81. V. Rutland and Burlington R. R. Co., 30 Vt., 397. Injuries to Domestic Animals, 347, 361, 378. Holdridge v. Utica and Black River R. R Co,. 56 Barbour (N. Y.), 191. Baggage, 43. Hollenbeok v. Berkshire R. R. Co., 9 Cu,5hing (Mass.), 478. Injuries to Persons Generally, 445. Holloway v. Memphis, El Paso and Pacific R. R. Co., 23 Tex., 465. Pleading, 576. Holmes v. Central R. R. Co., 37 Ga., 593. In- juries to Persons on the Track, 476. V. Old Colony R. R. Co., 5 Gray (Mass.), 58. Partnership, 565. V. Philadelphia and reading R. R. Co., 1 846 TABLE OF CASES. Penn. Law Jour. Rep., 387. Private Ways and Crossings, 588. Holmes v. "Wakefield, 13 Allen (Mass.), 580. Injuries to Passengers, 416. Holton V. South Pacific R. R. Co., 50 Mo., 151. Garnishment, 317. Ilolyoke v. Grand Trunk R. R. Co.. 48 N. H., 541. Injuries to Passengers, 408, 428, 429. ■ Homesley v. Elias, 06 N. C, 880. Carriage of Merchandise, 109. Homestead Co. v. Des Moines, Valley R. R. Co., 17 Wallace, 153. Land Grants, 497. Honegsberger v. Second Avenue R. R. Co., 33 Howard's Pr. (K. T.), 193. Injuries to Per- sons on the Track, 463. V. Second Avenue R. R. Co., 2 Abbott's Ct. of Ap. Dec. (N. Y.), 378. Injui-ies to Persons on the Track, 464. V. Second Avenue R. R. Co., 1 Keyes (N. T.), 570. Injuries to Persons on the Track, 468. v. Second Avenue R. R. Co., 1 Daly (N. Y.), 89. Injuries to Persons on the Track, 463. Honlahan v. Sackett's Harbor and Saratoga R. R. Co., 24 Howard's Pr. (N. Y.), 155. Practice, 586. Honner v. Illinois Central R. R. Co., 15 111., 550. Injuries to Employes, 388. Hood v. Memphis Branch R. R. Co., 19 Ga., 85. Continuance, 149. T. New York and New Haven R. R. Co., 22 Conn., 503. V. New York and New Haven R. R. Co., 23 Conn., 609. Injuries to Passengers, 435. V. New York and New Haven R. R. Co., 23 Conn., 1. Injuries to Passengers, 435. Hooper v. Chicago and Northwestern R. R. Co., 27 Wis., 81. Carriage of Merchandise, 73, 99, 103. Hopkins v. Atlantic and St. Lawrence R. R. Co., 36 N. H., 9. Injuries to Passengers, 437, 440. V. Railroad Co., 3 Watts and Sergeant (Penn.), 410. Bills and Notes, 48. V. Western Pacific R. R. Co., 44 Cal., 389. New Trials, 558. Hopple V. Trustees of Brown Township, 13 Ohio St., 311. Subscriptions by Townships, 734. Hord V. Nashville and Chattanooga R. R. Co., 3 Swan (Tenn.), 497. Eminent Domain, 208. V. Rogersville and Jefferson R. R. Co., 3 Head (Tenn.), 208. Subscriptions by Coun- ties, 681. Horn V. Atlantic and St. L wrence R. R. Co., 35 N. H., 169. Fences, 300. Injuries to Domestic Animals, 375. Homaday v. Indiana and Illinois Central R. R. Co., 9 Ind., 363. Subscriptions by Indi- viduals. 735. Hornback v. Cincinnati and Zanesville R. R. Co., 30 Ohio St., 81. Right of Way, 607. Home V. Atlantic and St. Lawrence, R. R. Co., 36 N. H., 440. Eminent Domain, 324. V. Memphis and Ohio R. R. Co., 1 Cold- well (Tenn.), 72. Injuries to Domestic Ani mals, 363, 378. Horner and Roberts' Lateral R. R., 37 Penn-. St., 333. Lateral Raib-oads, 501. Writ of. Error, 784. Hornstein v. Atlantic and Great Western R. R. Co., 51 Penn. St., 87. Eminent Domain, 219, 238. Hortsmon v. Covington and Lexington R. R. Co., 18 B. Monroe (Ky.), 318. Right of Way, 607. Hotchkiss V. Auburn and Rochester R. R. Co., 36 Barbom- (N. Y.), 600. Eminent Domain, 313. Pleading, 578. Housatonic R. R. Co. v. Knowles, 30 Conn., 313. Carriage of Merchandise, 110. V. Waterbury, 23 Conn., 101. Injuries to Domestic Animals, 347, 358. Houston V. The People, 55 111., 398. Subscrip- tions by Townships, 732. Houston and Great Western R. R. Co. v. Com- missioner of Land Office, 36 Tex., 383. Land Grants, 499. Mandamus, 516. Houston Tap, etc., R. R. Co. v. Milburn, 84 Tex., 224. Eminent Domain, 314. V. Randolph, 34 Tex., 317. Mandamus, 517. Howard v. Allegheny R. R. Co., 69 Penn. St , 489. Construction of Railways, 140. Plead- ing, 574. — V. Boorman, 17 Wis., 459. Bills and Notes, 47. In Matters of, 9 Wallace, 175. Appeals, 17. Fund in Court, 316. V. La Crosse and Milwaukee R. R. Co., 1 Woolworth (U. S. C. C), 49. Mortgage, 541. V. Michigan Southern R. R. Co., 5 How- ard's Pr. (N. Y.), 206. Pleading, 585. V. Wilmington and Susquehanna. R. R. Co., 3 Harrington (Del.), 471. V. Wilmington and Susquehanna R. R. Co., 1 Gill (Md.), 311. Contract, 154. Howe V. Buffalo, New York and Erie R. R Co., 38 Barbour (N. Y.), 124. Agency, 14. TABLE OF CASES. 847 Howe V. Buffalo, New York and Erie R. E. Co., 37 N. T., 297. Agency, 14.. V. Oswego and Syracuse R. R. Co., 56 Barbour (N. Y.), 131. Carriage of Merch- andise, 94. Howell V. Chicago and Northwestern R. R. Co., 51 Barbour (N. Y.), 378. Stock and Stockholders, 632, 633. Hoyle V. New Orleans City R. R. Co., 23 La. An., 502, 535. Jurisdiction, 489. Location, 511. V. Plattsburgh and Montreal R. R. Co., 54 N-. Y., 314. Mortgage, 527. V. Plattsburgh and Montreal R. R. Co., 51 Barbour (N. Y.), 45. Hoyt V. Sixth Avenue K. R. Co. 1 Daly (N. Y.), 538. Street Railways, 659. Hubbard v. Androscoggin R, R. Co., 39 Me., 506. Highway, 338. V. New York and Harlem R. R. Co., 14 Abbott's Pr. (N. Y.), 375. Bonds of Rail- way Companies, 54. v. New York and Harlem R. R. Co., 36 Barbour (N. Y.), 286. Bonds of Railway Companies, 54. V. Northern R. R. Co., 3 Blatchford (U. S. C. C), 84. Federal Courts, 297. V. Northern R. R. Co., 25 Vt., 715. Juris- diction, 489. Hubener v. New Orleans and Carrollton R. R. Co., 33 La. An., 493. Injuries to Passengers, 403. Hubgh V. New Orleans and Carrollton R. R. Co., 6 La. An., 495. Injuries to Employes, 388, 391, 399. Hudson V. St. Louis, Kansas City and North- ern R. R. Co., 53 Mo., 525. Process, 589. Hudson and Delaware Canal Co. v. New York and Erie R. E. Co., 9 Paige's Ch. (N. Y.), 323. Canals, 61. Hudson County v. The State, 4 Zabriskie (N. J.), 718. Rates, 597. Hudson River R. R. Co. v. Loeb, 7 Robertson (N. Y.), 418. Watercourses, 779, 780. v. Lounsberry, 25 Barbour, (N. Y.), 597. Carriage of Merchandise, 90. V. Cutwater, 3 Sandford (N. Y.), 680. Eminent Domain, 265. Hudson River West Shore E. R. Co. v. Kay, 14 Abbott's Pr., N. S. (N. Y.), 191. Officers, 559. Quo Warranto, 595. Huelsenkamp v. Citizens' E. E. Co., 34 Mo., 45. Negligence, 547- Street Eailways, 655. V. Citizens E. E. Co., 37 Mo., 537. Injur- ies to Passengers, 413. Hueston t. Eaton and Hamilton R. R. Co., 4 Ohio St., 685. Eminent Domain, 359. Huff V. Winona and St. Peter R. R. Co., 11 Minn., 180. Charter, 136. Huffman v. Greenville and Columbia R. R. Co., 9 Richardson's Law (So. Car.), 404. Record Entries, 603. Huggins V. North Carolina R. R. Co., 7 Jones' Law (N. C), 470. Hughes V. Lake Erie and Pacific R. R. Co., 31 Ind., 175. Eminent Domain, 196. V. Mine Hill and Schuylkill Haven R. R. Co., 30 Penn. St., 517. Federal Courts, 396. V. Mississippi and Missouri R. R. Co., 13 la., 361. Eminent Domain, 349. V. Parker, 19 N. H., 181. Directors, 180. V. Parker, 30 N. H., 58. Directors, 180. V. Providence and Worcester R. R. Co., 3 R. I., 498. Conveyance, 163. Highway, 824. V. Providence and Worcester R. R. Co., 2 R. I., 508. Hulbert v. New York Central E. R. Co., 40 N. Y., 145. Injuries to Passengers, 404, 405. Hull V. Sacramento Valley R. E. Co., 14 Cal., 388. Fires, 306. Hungerford's Bank v. Potsdam and Water- town E. E. Co., 9 Abbott's Pr. (N. Y.), 134. Usury, 771. V. Potsdam and Watertow'n E. R. Co., 10 Abbott's Pr. (N. Y.), 34. Usury, 771. V. Potsdam and Watertown R. E. Co., 19 Howard's Pr. (N. Y.), 39. Usury, 771. Hunkins v. Milwaukee and St. Paul R. R. Co., 30 Wis., 559. Nonsuit, 555. Hunt V. Bay State Iron Co., 97 Mass., 279. Con- ditional Sale, 138. V. Chicago and Northwestern R. R. Co., 36 la., 363. Injuries to Employes, 389, 400. Injuries to Persons on the Track, 468. V. Indianapolis and St. Louis E. E. Co., 38 Ind., 383. Subscriptions by Individuals, 703. V. Michigan Southern and Northern Indi- ana E. R. Co., 35 Howard's Pr. (N. Y.), 387. Evidence, 390. V. Michigan Southern and Northern Indi- ana E. R. Co., 37 N. Y., 163. Evidence, 390. V. New York and Erie R. R. Co., 1 Hilton Y.), 338. Carriage of' Merchandise, Pennsylvania R. R. Co., 51 Penn. St., Contractors, 160. (N. 70. — v. 475. 848 TABLE OF CASEH. Hunt V. Smith, 9 Kan., 137. Eminent Domain, 203, 337, 369. Huntingdon and Broad Top R. B. Co. v. Mc- Govei-n, 39 Perm. St., 78. Pleading, 576. V. Ogdensburgli and Lake Cliamplain E. R. Co., 33 Howard's Pr. (N. Y.), 416. Dam- ages, 173. Hurd V. Rutland and Burlington R. R. Co., 35 Vt., 116. Eminent Domain, 364. Injuries to Domestic Animals, 378. Hurt V. Southern R. R. Co., 40 Miss., 891. Injuries to Passengers, 441. Parties to Ac- tions, 564. Passengers, 567. Pleading, 574. Hursh V. St. Paul and Pacific R. R. Co., 17 Minn., 439. Eminent Domain, 193. Huston V. Cincinnati and Zanesville R. R. Co., 31 Ohio St., 335. Eminent Domain, 370. Hutchings v. Western and Atlantic R. R. Co., 35 Ga., 61. Carriage of Merchandise, 95. Hutton T. Indiana Central R. R. Co., 7 Ind., 532. Pleading, 583. Huyett V. Philadelphia and Reading R. R. Co., 23 Penn. St., 373. Fires, 305, 306. Hydeville County v. Eagle R. R. and Slate Co., 44Vt., 395. Lease, 504. , Iba V. Hannibal and St. Joseph R. R. Co., 45 Mo., 469. Injuries to Domestic Animals, 355. Ide V. Connecticut and Passumpsic Rivers R. R.Co., 33 Vt, 297. Ihl V. Forty-Second Street R. R. Co., 47 N. T., 317. Injuries to Persons on the Track, 465, 466. Illinois and Michigan Canal Co. v. Chicago and Rock Island R. R. Co., 14 111., 314. Eminent Domain, 329. Illinois and St. Louis R. R. Co. v. St. Louis, 3 Dillon (U. S. 0. C), 70. Wharves, 781. Illinois and Wisconsin R. R. Co. v. Von Horn, 18 111., 257. Eminent Domain, 217, 257, Illinois Central R. R. Co. v. Able, 59 111., 181. Injuries to Passengers, 405. V. Adams, 43 111., 474. Can-iage of Live Stock, 67. V. Alexander, 20 111., 28. Warehouse- men, 775. V. Allen, 89 111., 205. Right of Way, 609. Trespass, 764. V. Arnold, 47 III., 173. Injuries to Domes- tic Animals, 365. V. Ashmead, 58 III, 487. Carriage of Merchandise, 83. Illinois Central R. R. Co. v. Baches, 55 III., 379. Injuries to Persons on the Track, 450, 466, 474. V. Baker, 47 111., 395. Injuries to Domes- tic Animals, 345. V. Buckner, 38 111., 299. Injuries to Per- sons on the Track, 473. V. Carraher, 47 111., 333. Injuries to Domestic Animals, 383. V. Cassell, 17 111., 389. Contracts, 156. V. Cobb, 48 111., 402. Garnishment, 330. V. Copeland, 24 111., 832. Baggage, 34, 87,42. Jury, 492. V. Cowlps, 32 111., 116. Carriage of Mer- chandise, 72, 99. V. Cox, 31 111., 30. Injuries to Employes, 386. V. Demars, 44 III., 392. Contracts, 153. V. Dickerson, 27 111., 55. Injuries to Domestic Animals, 366. V. Downey, 18 111., 259. Injuries to Per- sons on the Track, 475. V. Finnigan, 21 111., 646. Injuries to Domestic Animals, 353, 381. V. Frankenberg, 54 111., 88. Carriage of Merchandise, 71, 76, 78. V. Frazier, 47 111., 505. Fires, 303, 300. V. Galena, 40 111., 844. Streets, 644. V. Garish, 40 111., 70. Appeals, 22. V. Garish, 39 III., 370. Bill of Excep- tions, 50. V. Goodwin, 30 111., 117. Injuries to Domestic Animals, 349, 363. V. Grabill, 50 111., 241. Nuisance, 556. V. Grabill, 50 111., 248. Nuisance, 557. V. Grable, 46 111., 445. Pleading, 578. V. Hall, 58 111., 409. Carriage of Live Stock, 65. V. Hayes, 19 111., 166. New Trials, 558. V. Herr, 54 111, 356. Penalties, 570, 571. V. Hutchinsen, 47 111., 408. Injuries to Persons on the Track, 462. V. Jewell, 46 111., 99. Injuries to Employes, 391. V. Johnson, 40 HI., 85. Appeals, 22. V. Johnson, 84 111., 889. Carriage of Mer- chandise, 72. Limitations, 507. V. Kanouse, 39 111., 273. Domestic Animals, 359. V. McClelland, 43 111., 355. 309. V. McKee, 43 111., 119. Domestic Animals, 364. ■; — V. McClellan, 54 111., 58. Merchandise, 80, 83. Injuries to Fires, 305, Injuries to Carriage of TABLE OP CASES. S4y Illinois Central K. K. Co. v. McCuUough, 59 111., 166. Vendor's Lien, 771. V. McLean County, 17 111., 291 Taxation, 758. V. Middlesworth, 46 111, 494. V. Middlesworth, 43 111., 64. Injuries to Domestic Animals, 344. V. Mills, 42 111., 407. Fires, 302. Evi- dence, 289. V. Morrison, 19 111., 136. Carriage of Live Stock, 62. V. Nelson, 59 111., 110. Tickets, 760. V. Nunn, 51 111., 78. Fires, 304. V. Owens, 53 111., 391. Carriage of Live Stock, 63. V. Palmer, 24 111., 43. Bill of Excep- tions, 49. V. Parks, 54 111., 394. Trover, 767. Phelps, 29 111., 447. Injuries to Domestic Animals, 349, 363. V. Phillips, 55 111., 194. Negligence, 551. V. Phillips, 49 111., 334. Negligence, 551. V. Read, 37 111., 484. Injuries to Passen- gers, 429. V. Reedy, 17 111., 580. Injuries to Domes- tic Animals, 358, 363. V. Rucker, 14 111., 353. Charter, 121. V. Simmons, 38 111., 242. Pleading, 574. V. Slatton, 54 111., 133. Injuries to Pas- sengers, 407. V. Smyser, 38 111., 354. Carriage of Mer- chandise, 74, 76, 105. V. Sutton, 42 111., 438. Evidence, 281. Injuries to Passengers, 418, 420. V. Sutton, 53 111., 397. Injuries to Pas- sengers, 418, 437. V. Swearingen, 47 111., 206. Injuries to Domestic Animals, 366. V. Swearingen, 33 111., 389. Injuries to Domestic Animals, 366. V. Taylor, 34 111., 323. Baggage, 41. V. Wade, 46 111., 115. Injuries to Domes- tic Animals, 358. V. Waters, 41 111., 73. Carriage of Live Stock, 66. V. Weaver, 54 111., 319. Garnishment, 319. v. Welch, 52 111., 183. Injuries to Em- ployes, 3S8, 394. Release, 604. V. Weldon, 52 111., 290. Evidence, 285. Injuries to Persons Generally, 444. V. Whalen, 42 111., 396. Injuries to Do- mestic Animals, 363. V. Whittemore. 43 111., 430. Injuries to Passengers, 419. Tickets, 761. Rules, 611. V. White, 18 111., 164. Highways, 838. 34 Illinois Central R. R. Co. v. Williams, 27 111., 48. Injuries to Domestic Animals, 366. V. Wren, 43, 111., 77. Injuries to Domestic Animals, 344. Statutes, 623. Illinois Grand Trunk R. R, Co. v. Cook, 39 111., 387. Suhscriptions by Individuals, 729. Illinois River R. R. Co. v. Beers, 37 111., 185. Subscriptions by Individuals, 723. V. Zimmer, 20 111., 654. Subscriptions by Individuals, 712, 731. lUius V. New York and New Haven R. R. Co. 13 N. Y., 697. Appeals, 18. Illsley V. Portland and Rochester R. R. Co., 56 Me., 531. Eminent Domain, 371. Imhoff V. Chicago and Milwaukee R. R. Co., 30 Wis., 844. Injuries to Passengers, 407. V. Chicago and Northwestern R. R. Co., 32 Wis., 681. Injuries to Passengers, 407. Nonsuit, 555. Imlay v. New York and Harlem R. R. Co., 1 Sanford (N. Y.), 732. Pleading, 585. V. Norwich and Worcester R. R. Co. 4 Blatchford (U. S. C. C), 327. Patents, 569. V. Union Branch R. R. Co., 36 Conn., 249. Eminent Domain, 251. In re Bondholders of York and Cumberland R. R. Co., 50 Me., 553. Mortgage, 541. In re Detroit and Pontiac R. R. Co., 3 Doug- lass (Mich.), 367. Eminent Domain, 215. In re Sewall v. Brainerd, 88 Vt., 864. Mort- gage, 580. Indianapolis, Bloomington, etc., R. R. Co. v. Ferguson, 42 Ind., 243. Evidence, 383. Indianapolis, Cincinnati, etc., R. R. Co. v. Bon- nell, 43 Ind., 589. Injuries to Domestic An- imals, 354. Indiana and Illinois Central R. B. Co. v. Ca- vett, 13 Ind., 316. v. Davis, 20 Ind., 6. Orders, 563. V. McKernan, 24 Ind., 62. Pledge, 585. V. Scearce, 33 Ind.. 333. Subscriptions by Individuals, 739. V. Williams, 23 Ind., 198. Injunction, 341. . Indiana Central R. R. Co. v. Atkinson, 6 Ind., 149. Eminent Domain, 309. V. Boden, 10 Ind, 96. Eminent Domain, 910. V. Bradley, 7 Ind., 49. Arbitration 34. v. Bradley, 15 Ind., 28. Appraisement Laws, 23. V. Gapen, 10 Ind., 293. Injuries to Do- mestic Animals, 367, 370. V. Gulick, 19 Ind., S3. Baggage, 40. V. Hudelson, 13 Ind., 325. Injuries to Persons on the Track, 471. 850 TABLE OF CASES. Indiana Central E. R. Co. v. Hnnter, 8 Ind., 74. Eminent Domain, 340, 273. V. Leamon, ]8 Ind., 173. Injuries to Do- mestic Animals, 364. V. Mundy, 21 Ind., 48. Injuries to Pas- sengers, 429. V. Cakes, 20 Ind., 9. Eminent Domain, 259. V. Potts, 7 Ind., 681. Constitutional Law, 139. Nuisance, 558. V. The State, 3 Ind., 431. Eminent Do- main, 254, 255. Indianapolis v. Sawyer, 38 Ind., 348. Sewers, 616. Indianapolis and Bellefontaine E. E. Co. v. Indianapolis, 13 Ind., 620. Dedication, 174. Indianapolis and Cincinnati R. E. Co. v. Ad- kins, 23 Ind., 340,345. Injuries to Domestic Animals, 367. V. Ballard, 22 Ind., 448. Pleading, 574. V. Boreman, 16 Ind., 326. V. Brower, 13 Ind., 874. Eminent Do- main, 208. V. Brinkham, 20 Ind., 330. Injuries to Domestic Animals, 371. V. Caldwell, 9 lud., 397. Injuries to Do- mestic Animals, 371. Negligence, 549. V. Case, 15 Ind., 43. Injuries to Dcmes- tic Animals, 369. V. Clark, 21 Ind., 150. Injuries to Do- mestic Animals, 381. V. Collier, 16 Ind., 236. V. Cox, 39 Ind., 360. Baggage 40. V. Davis, 10 Ind., 398. Pleading, 585. V.Elliott, 20 Ind., 430. Injuries to Do- mestic Animals, 357, 368. V. Guard, 24 Ind., 233. Injuries to Do- mestic Animals, 353. V. Jewett, 16 Ind., 273. Evidence, 391. V. Kercheval, 16 Ind., 84. Injuries to Domestic Animals, 368. Subscriptions by Individuals, 715. V. Kibby, 28 Ind., 479. Appeals, 32. V. Kinney, 8 Ind., 402. Agreed Cases, 16. Injuries to Domestic Animals, 368, 371. V. Klein, 11 Ind., 38. Injuries to Em- ployes, 401. V. Love, 10 Ind., 554. Eminent Domain, 333. Injuries to EmploySs, 390, 401. V. Lowe, 29 Ind., 545. Injuries to Do- mestic Animals, 364. V. McAhren, 13 Ind., 553. Injuries to Domestic Animals, 369. V. McKinney, 34 Ind., 383. Injuries to Domestic Animals, 354. V. McMalian, 14 Ind., 422. Indianapolis and Cincinnati R.R. Co. v. Means, 14 Ind., 30. Injuries to Domestic Animals,370. V. Meek, 10 Ind., 503. Injuries to Do- mestic Animals, 369. V. Moore, 16 Ind., 43. Injuries to Domes- tic Animals, 362. V. Oestjl, 20 Ind., 331. Injuries to Do- mestic Animals, 371. V. Paramore, 13 Ind., 406. Injuries to Domestic Animals, 369. V. Paramore, 31 Ind., 143. Fires, 303, 311. V. Parker, 29 Ind., 471. Injuries to Do- mestic Animals, 371. V. Parkinson, 14 lud., 541. V. Eemmy, 13 Ind., 518. Carriage of Mer- cliandise, 83. V. Renner, 17 Ind., 135. Injuries to Do- mestic Animals, 371. V. Rutherford, 29 Ind., 82. Injuries to Passengers, 431. Pleading, 573. V. Smither, 20 Ind., 338. Appeals, 30. V. Snelling, 16 Ind., 435. Injuries to Do- mestic Animals, 370, 373. V. Stallman, 16 Ind., 305. Injuries to Do- mestic Animals, 369. V. Stark, 31 Ind., 149. Fires, 803, 311. V. Sturm, 34 Ind., 334. V. The State, 37 Ind., 489. Streets, 644. V. Toon, 30 Ind., 330. Appeals, 30. V. Townsend, 10 Ind., 38. Injuries to Do- mestic Animals, 369. V. Waggoner, 16 Ind., 367. Evidence, 385. V Wharton, 13 Ind., 509. Injuries to Do- mestic Animals, 356. V. Williams, 10 Ind., 340. V. Wilsey, 30 Ind., 228. Injuries to Dow mestic Animals, 371. V. Williams, 14 Ind., 531. V. Wright, 33 Ind., 376. Injuries to Do- mestic Animals, 344. V. Wright, 18 Ind. 313, Injuries to Do- mestic Animals, 369. V. Wyatt, 16 Ind., 304. Indianapolis and Madison R. R. Co. v. Solo- mon, 23 Ind., 534. Injuries to Domestic Animals, 359. Indianapolis, Bloomington and Western R. R. Co. V. Beaver, 41 Ind., 493. Injuries to Passengers, 437. Carr, 35 Ind., 510. Injuries to Persons on the Track, 461. V. Fountain County, 39 Ind., 315. Sub- scriptions by Counties, 681. V. O'Reily, 38 Ind., 140. Construction of Railways, 148. TABLE OF CASES. 851 Indianapolis, Cincinnati and Lafayette R. R. Co. V. Dunden, 39 Ind., 359. Pleading, 580. V. Hai-ter, 38 Ind., 557. Injuries to Do- mestic Animals, 349. V Jones, 39 Ind., 465. Consolidation, 135. V. Robinson, 35 Ind., 380. Injuries to Domestic Animals, 356. V. Trisler, 30 Ind., 243. Appeals, 18. V. Warner, 35 Ind., 515. Injuries to Do- mestic Animals, 359. Indianapolis, Peru and Chicago R. R. Co. v. Bishop, 29 Ind., 203. Injuries to Domestic Animals, 357. V. Summers, 28 Ind., !>21. Indianapolis, Pittsburgh and Cleveland R. R. Co., V. Allen, 31 Ind., 394. Carriage of Merchandise, 76. V. Brownenburg, 33 Ind., 199. Injuries to Domestic Animals, 361. T. Brucey, 21 Ind , 215. Injuries to Do- mestic Animals, 357. V. Fisher, 15 Ind., 303, Injuries to Do- mestic Animals, 868. V. Irish, 36 Ind., 268. Injuries to Do- mestic Animals, 367. V Irish, 40 Ind . 277. Evidence, 283. V. Keeley's Admr., 23 Ind., 133. Injuries to Persons Generally, 446. Injuries to Per- sons on the Track, 467. V. Marshall, 27 Ind., 300. Injuries to Do- mestic Animals, 368. V. Mustard, 34 Ind., 50. Injuries to Do- mestic Animals, 352. V. Petty, 35 Ind., 413. Injuries to Do- mestic Animals, 360. V. Petty, 30 Ind., 261. Injuries to Do- mestic Animals, 357, 383. V. Shimer, 17 Ind., 295. Injuries to Do- mestic Animals, 364. V. Sparr, 15 Ind., 440. Injuries to Do- mestic Animals, 357. V. Taffe, 11 Ind., 458. Injuries to Do- mestic Animals, 357. V. Truitt, 24 Ind., 162. Injuries to Do- mestic Animals, 356. V. "William's, 15 Ind., 468. Injuries to Do- mestic Animals, 357. Ingalls V. Cole, 47 Me., 530. Stock and Stock- holders, 635, 636. Ingraham v. Chicago, D. and M. R. R. Co., 34 la., 249. Eminent Domain, 247. Water- courses, 780. Inhabitants of Vassalborough v. Somerset and Kennebec R. R. Co., 43 Me,, 337. Title, 763. Inhabitants of Veazie v. Mayo, 45 Me., 560. Highway, 326, 327. International R. R. Co. v. The Comptroller, 36 Tex., 641, Mandamus, 517. Iowa and Minnesota R. R. Co., v. Perkins, 28 la., 281. Subscriptions by Individuals, 703, 714. Iowa Homestead Co. v. Webster County, 31 la., 321. Constitutional Law, 137. Taxation, 741, 749, 751. Irish V. Milwaukee and St. Paul R. R. Co., 19 Minn., 376. Carriage of Merchandise, 74. Iron R. R. Co. v. Ironton, 19 Ohio St., 299. Wharves, 781. Irwin V. Pittsburgh and Connellsville R. R. Co., 43 Penn. St., 488. Garnishment, 317, 319. Isaacs V. Third Avenue R. R. Co., 47 N. T., 122. Street Railways, 657. Isbell V. New York and New Haven R. R. Co., 27 Conn., 393. Injuries to Domestic Ani- mals, 351. V. New York and New Haven R. R. Co., 25 Conn., 556. Evidence, 378.' Municipal Corporations, 545. Isham v. Delaware, Lackawanna, etc., R. R. Co., 3 Stockton's Ch. (N. J.), 227. Trust, 769. Isom V. Mississippi Central R. R. Co., 30 Miss., 300. Eminent Domain, 205, 222, 237. Jury, 493. Jack V. Naber, 15 la., 450. Bill of Excep- tions, 50. Subscriptions by Individuals, 701. Jackson v. Boston and Worcester R. R. Co., 1 Cushing (Mass.), 575. Title, 763. V. Chicago and Northwestern R. R. Co., 31 la., 176. Fires, S05. V. New York Central R. R. Co., 3 N. Y. Sup. Ct., 653. Attorney, 32. V. Ohio and Mississippi R. R. Co., 15 Ind., 193. Process, 590. V. Rutland and Burlington R. R. Co., 25 Vt., 150. Injuries to Domestic Anituals, 347, 379. V. Sacramento Valley R. R. Co., 23 Cal., 369. Carriage of Merchandise, 101. V. Second Avenue R. R. Co., 47 N. Y., 374. Injuries to Passengers, 417. -^ — V. York and Cumberland R R. Co., 48 Maine, 147. Mortgage, 538, 539. Jacksonville, Alton and St. Louis R. R. Co. v. Caldwell, 31 111., 75. Eminent Domain, 256- Jacksonville and Savanna R. R. Co. v. Kidder, 21 111., 131. Eminent Domain, 258. 852 TABLE OF CASES. Jacobs V. Peterborough and Shu-ley R. R. Co., 8 Gushing (Mass.), 223. Right of Way, 609. Jamaica, Village of, v. Long Island R. R. Co., 37 Howard's Pr. (N. T.), 379. Pleading, 580. James v. Adams, 22 Howard's Pr. (N. Y.), 409. Ticket Agent, 749. V. Cincinnati, etc., R. R. Co., 2 Disney (Ohio), 201. Subscriptions by Individuals, 715. V. Wilmingtrn and Manchester R. R. Co., 9 Richardson's Law (So. Car.), 416. Slaves, 616. James et al. v. Railroad Company, 6 Wallace, 725. Mortgage, 539. Jameson r. Androscoggin R. R. Co., 52 Me., 412. Eminent Domain, 217. Kew Trials, 554. Janesville v. Milwaukee and Mississippi R. R. Co., 7 Wis., 484. Eminent Domain, 244. Municipal Corporations, 545, 546. Jarden v. Philadelphia, Wilmington and Bal- timore R. R. Co., 3 Wharton (Penn.),502. Charter, 134. Jatho V. Green and Coates Street R. R. Co., 4 Philadelphia Rep. (Penn.), 24. Street Rail- ways, 659. Jay V. Indianapolis, Pittsburgh and Cleveland R. R. Co., 17 Ind., 362. Pleading, 585. V. Long Island R. R. Co., 2 Daly {N. Y.), 401. Jurisdiction, 491. JeflFeris v. Philadelphia, Wilmington and Bal- timore R. R. Co., 3 Houston (Del.), 447. Fires, 302. Jeffersonville R. R. Co. v. Applegate, 10 Ind., 49. Injuries to Domestic Animals, 369. V. Butler, 9 Ind., 305. Evidence, 288. V. Cleveland, 2 Bush (Ky.), 468. Carriage of Merchandise, 86. V. Cotton, 29 Ind., 498. Carriage of Mer- chandise, 89. V. Dougherty, 10 Ind., 549. Injuries to Domestic Animals, 369. V. Ferry, 14 Ind., 11. V. Gabbert, 35 Ind., 431. Charter, 118. V. Hardy, 9 Ind., 495. Injuries to Domes- tic Animals, 368. V. Hendrick's Adm'r, 26 Ind , 228, Inju- ries to Passengers, 405, 412, 413, 414. V. Kalen, 39 Ind., 233. V. Lanham, 37 Ind., 171. Evidence, 389. V.Martin, 10 Ind., 416. Injuries to Do- mestic Animals, 358. V. Mounts, 7 Ind., 669. Arbitration, 24, 25. V. Rogers, 28 Ind., 1. Injuries to Passen- gers, 418, 420. Rates, 507. Co. V. Rogers, 38 Ind., Injuries to Passengers, Jeffersonville R. R. 116. Agency, 15. 431. V. Swayne's Adm'r, 26 Ind., 477. V. Swiff, 26 Ind., 459. Injuries to Pas- sengers, 405. V. Waggoner, 39 Ind., 456. V. Weinman, 39 Ind., 231, Costs, 168. V. White, 6 Bush (Ky,), 351. Carriage of Merchandise, 104, 108. JeflFerson and Pontchartrain R. R. Co. v. Ha- zeur, 7 La. An., 183. Eminent Domain, 210. Jeflfersonville, Madison and Indianapolis R R. Co. V. Avery, 31 Ind., 277. Injuries to Domestic Animals, 369. V. Beatty, 36 Ind., 15. Injuries to Domes- tic Animals, 371. V. Bowen, 40 Ind., 545. Bill of Excep- tions, 50. Eminent Domain, 217. Injuries to Persons on the Track, 464. V. Brevoort, 30 Ind., 334. Injuries to Do- mestic animals, 356, 357. V. Chenoweth, 30 Ind., 366. Injui-ies to Domestic Animals, 356. V. Cox, 37 Ind., 325. Pleading, 583. V. Crandall, 35 Ind., 43. V. Daugherty, 40 Ind., 33. Highway, 330. V. Dunlap, 39 Ind., 436. Injuries to Do- mestic ^Vnimals, 345. Process, 590. V. Gent, 35 Ind., 39. Carriage of Mer- chandise, 98. Pleading, 578. V. Ghon, 33 Ind., 133. V. Hendricks, 41 Ind., 48. Injuries to Passengers, 407. V. Huber, 43 Ind., 173. Injuries to Do- mestic Animals, 354. V. Morgan, 38 Ind., 190. Appeals, 18. V. Nichols, 30 Ind., 331. Injuries to Do- mestic Animals, 370. V. O' Connor, 37 Ind., 95. Injuries to Do- mestic Animals, 367, 371. T. Parkhurst, 34 Ind., 501. Injuries to Domestic Animals, 355. Pleading, 583. V.Riley, 39 Ind., 568. Injuries to Pas- sengers, 410, 425. V. Ross, 35 Ind., 108. Process, 590. - — V. Ross, 37 Ind., 545. Injuries to Domes- tic Animals, 369. V. Sullivan, 38 Ind., 262. Injuries to Do- mestic Animals, 370. V. Sweeney, 32 Ind., 430. Injuries to Do- mestic Animals, 353. V. Tull, 37 Ind., 841. Injuries to Domes- tic Animals, 363. TABLE OF CASES. 853 Jeflfersonville, Madison and Indianapolis R. R. Co. V. Underliill, 40 Ind., 229. Injuries to Domestic Animals, 358. V. Vancant, 40 Ind., 233. Injuries to Do- mestic Animals, 838. Jenkins v. Burlington and Missouri River R. R. Co., 29 la., 255. Depots, 178. V. Chicago and Nortliwestern R. R. Co., 33 la., 97. JSTew Trials, 553. V. Little Miami R. R. Co., 2 Disney (Ohio), 49. Neglience, 548. V. New Orleans, Opelousas and Great Western R. R. Co., 15 La. An.. 118 Cattle, 110. Jenneson v. Camden and Amboy R. R. Co., 5 Penn. Law Jour. Rep., 409. Carriage of Merchandise, 71. Jersey City and Bergen R. R. Co. v. Jersey City and Hoboken R. R. Co., 5 C. E. Green's Ch. (N. J ), 61. Street Railways, 645, 649. Jersey City and Hoboken R. R. Co. v. Jersey City and Bergen R. R. Co., 6 C. E. Green's Ch. (N. J.), 550. Street Railways, 646. Jesup V. City Bank of Racine, 14 Wis., 331. Mortgage, 529, 533, 535, 536. Pleading, 578. Jetter v. New York and Harlem R. R. Co., 2 Keyes (N. Y.), 154. Injuries to Persons on the Track, 465, 469, 475. V. New York and Harlem R R. Co., 2 Abbott's Ct. of Ap. Dec. (N. Y.), 458. Inju- ries to Persons on the Track, 454, 469. Jewett V. Lawrenceburgh and Upper Missis- sippi R. R. Go., 10 Ind., 539. Subscriptions by Individuals, 696, 699, 700, 701. John V. Cincinnati, Richmond and Ft. Wayne R. R. Co., 35 Ind., 539. Subscriptions by Counties, 675. Subscriptions by Towhships, 733. Johns V. Johns, 1 Ohio St., 350. Stock and Stockholders, 627. Johnson v. Albany and Susquehanna R. R. Co., 40 Howard's Pr. (N. Y.), 193. Subscriptions by Individuals, 715, 725. v. Albany and Susquehanna R. R. Co., 5 Lansing (N. Y.), 232. Subscriptions by In- dividuals, 724. v. Albany and Susquehanna R. R. Co., 54 N. Y., 416. Limitations, 510. V. Atlantic and St. Lawrence R. R. Co., 35 N. II., 569. Bridges, 58. V. Atlantic and St. Lawrence R. R. Co., 43 N. H., 410. Judgment, 484. V. Cayuga and Susquehanna R. R. Co., 11 Barbour (N. Y.), 631. Rates, 097. Johnson v. Concord R. R. Co., 46 N. H., 313. Injuries to Passengers, 418, 423. V. Crawfordaville, Frankfort, etc., R. R. Co., 11 Ind., 280. Charter, 120. Subscrip- tions by Individuals, 695, 704, 717. v. Grand Trunk R. R. Co., 44 N. H., 626. Trover, 766. V. Hudson River R. R. Co., 5 Duer (N. Y.), 21. Injuries to Persons on the Track, 455, 471. V. Hudson River R. R. Co., 3 Sweeney (N. Y.), 398. Penalties, 571. V. Hudson River R. R. Co., 6 Duer (N. Y.), 633. Injuries to Persons on the Track, 455, 471. V. Hudson River R. R. Co., 20 N. Y., 65. Injuries to Persons on the Track, 455, 471. V. Hudson River R. R. Co., 49 N. Y., 455. Rates, 599. T. Joliet and Chicago R. R. Co., 23 111., 203. Charter, 118. Eminent Domain, 273. v. Milwaukee and St. Paul R. R. Co., 19 Wis., 137. Injuries to Domestic Animals, 379. V. New York Central R. R. Co., 33 N. Y., 610. Carriage of Merchandise, 93. V. New York Central R. R. Co., 39 How- ard's Pr., (N. Y), 137. Cai-riage of Mer- chandise, 93. V. New York Central R. R. Co., 31 Bar- bour (N. Y.), 196. Carriage of Merchandise, 93. V. Norwich and Worcester R. R. Co., 37 Conn., 433. Legal Tender Act, 505. V. Pensacola and Georgia R. R. Co., 9 Fla., 399. Subscriptions by Individuals, 714. V. Westchester and Philadelphia R. R. Co., 70 Penn. St., 357. Injuries to Passen- gers, 434. V. Winona and St. Peter R. R. Co., 11 Minn., 296. Injuries to Passengers, 412. Negligence, 547. Joliet and Chicago R. R. Co., v. Barrows, 24 111., 562. Certiorari, 111. Joliet and Northern Indiana R. R. Co., v. Jones, 20 111., 221. Injuries to Domestic Animals, 860. Jones V. Central R. R. Co., 21 Ga., 104. Inju- ries to Domestic Animals, 365. V. Central R. R. Co., 18 Ga., 247. Limita- tions, 508. V. Galena and Chicago Union R. R. Co., 16 la., 6. Injuries to Domestia Animals, 353. V. Housatonic R. R. Co., 107 Mass., 261. Highway, 330. 854 TABLE OF CASES. Jones V. Macon and Brunswick K. E. Co., 39 Ga., 138. Injunction, 840. V. Mississippi and Alabama R. E. Co., 5 Howard (Miss.), 407. Supersedeas, 735. V. New York and Erie R. R .Co., 39 Bar- bour (N. Y.), 633. Carriage of Merc.ianiiise, 79. V. New York and Erie R. R. Co., 1 Grant's Cases (Penn.), 457. Garnishment, 3t9. V. North Carolina R. R. Co., 67 N. C, 132. Injuries to Domestic Animals, 363. V. Portsmouth and Concord R. R. Co., -93 N. H., 544. Executions, 293. V. Sullivan R. R. Co., 20 N. H., 195. V. Terra Haute and Richmond R. R. Co., 17 Howard's Pr. (N. Y.), 539. Stock and Stockholders, 633. V. Terre Haut« and Richmond R. R. Co., 39 Barbour (N. Y.), 353. Stock and Stock- holders, 633. V. Western Vermont R. R. Co., 37 Vt., 399. Watercourses, 780. V. Wills Valley R. R. Co., 30 Ga., 43. Em- inent Domain, 339. V. York and Cumberland R. R. Co., 37 Me., 330. Garnishment, 318. Jordan v. Fall River R. R. Co., 5 Cushing (Mass.), 69. Baggage, 34, 38. Josey V. Wilmington and Manchester R. R. Co., 11 Richardson's Law (So. Car.), 399. Evi- dence, 286, 291. Slaves, 618. V. Wilmington and Manchester R. R Co . 12 Richardson's Law (So. Car.), 134. New Trials, 554. Judson V. New York and New Haven R. R. Co , 39 Conn., 434. Injuries to Persons on the Track, 454. V. Western R. R. Co., 4 Allen (Mass.), 530. Carriage of Merchandise, 70, 101. Junction R. R. Co. v. Bank of Ashland, 13 Wallace, 236. Evidence, 287. Pleading, 583. Usury, 770. V. Cleneay, 13 Ind., 161. Garnishment, 317. Mortgage, 538. V. Harpold, 19 Ind., 347. Conveyance, 162. V. Harris, 9 Ind., 185. Husband and Wife, 831. V. Reeve, 15 Ind., 236. Subscriptions by Individuals, 694. V. Ruggles, 7 Ohio St., 1. Right of Way, 609. V. Sayers, 28 Ind., 318. Watercourses, 779. K Kansas City, St. Joseph and Council Bluffs R. R. Co. V. Alderman, 47 Mo., 349. Subscrip- tions by Counties, 683. Kansas Pacific R. R. Co. v. Amrine, 10 Kans., 318. Taxation, 747. V. Butts, 7 Kans., 308. Fires, 303, 305, 306. V. Culp, 9 Kans., 38. Taxation, 74.9 V. McBratney, 10 Kans., 415. Ejectment, 185. V. McCoy, 8 Kans., 538. Contracts, 155. Lobbying, 511. Texas Cattle Laws, 759. V. Montelle, 10 Kans., 119. Baggage, 35. V. Nichols, 9 Kans., 335. Carriage of Live Stock, 64. V. Pointer, 9 Kans., 630. Injuries to Per- sons on the Track, 454. V. Reynolds, 8 Kans., 633. Carriage of Live Stock, 63. Carriage of Merchandise, 77, 81. V. Russell, 8 Kans, 558. V . Streeter, 8 Kans., 133. Eminent Domain, 193. Judgment, 485. Kansas, State of, v. McCrillus et al., 4 Kans., 250. Karnes v. Rochester and Genessee Valley R. R. Co., 4 Abbott's Pr. N. 8. (N.Y.), 107. Stock and Stockholders, 683. Kay V. Pennsylvania R. R. Co., 65 Penn. St., 269. Damages, 174. Depot, 178. Injuries to Persons on the Track, 463, 464, 465, 470. Kean v. Davis, 1 Zabriskie (N. J.), 683. Bills and Notes, 46. V. Johnson, 1 Stockton's Cli. (N. J.), 401. Sales, 613. Kearney, Adm'x, v. Boston and Worcester R. R. Co., 9 Cushing (Mass.), 108. Injuries to Persons Generally, 445. Keating v. New York Central R. R. Co., 3 Lan- sing (N. Y.), 469. Injuries to Passengers, 403. Keech v. Baltimore and Ohio R. R. Co., 17 Md., 32. Injuries to Domestic Animals, 373. Mis- nomer, 523. Keegan v. Western R. R. Co., 8 N. Y., 175. In- juries to Employes, 391. Negligence, 551. Keeling v. Griffin, 56 Penn. St., 305. Lateral Railroads, 500. Kecney v. Grand Trunk R. R. Co., 47 N. Y., 525. ■ Carriage of Live Stock, 63. V. Grand Trunk R. R. Co., 59 Barbour (N. Y.), 104. Carriage of Live Stock, 63. V. Indianapolis and St. Louis R. R. Co., TABLE OF CASES. 855 38 Ind., 348. Subscriptions bj' Inclividuals, 703. Keitli V. Cheshire R. R. Co., 1 Q-ray (Mass.), 614. Embankments, 189. Keliher v. Connecticut River R. R. Co., 107 Mass., 411. Injuries to Domestic Animals, 374. Keller v. New York Central R. R. Co., 17 How- ard's Pr. (N. Y.), 103. Injuries to Persons Generally, 446. V. New York Central R. R. Co., 17 How- ard's Pr. (N. Y.), 172. Injuries to Persons Generally, 446. Injuries to Persons on the Track, 468. V. New York Central R. R. Co., 3 Ab- bott's Ct. of Ap. Dec. (N. Y.), 480. Injuries to Passengers, 483. Kellinger v. Forty-Second Street R. R. Co., 50 N. Y, 206. Eminent Domain, 250. Kellogg V. Chicago and Northwestern R. R. Co., Zn Wis., 323. Fires, 303. Instructions, 480. V. Malin, 50 Mo., 496. Conveyance, 163. Kelly V. Hendrie, 26 Mich , 355. Injuries to Persons on the Track, 466. Kelsey v. King, 33 Howard's Pr. (N. Y.), 89. Eminent Domain, 346. V. King, 11 Abbott's Pr. (N. Y.), 180. Em- inent Domain, 246. Kendrick v. Boston and New York Central R. R. Co., 8 R. I., 335. Garnishment, 317. Kennard v. Railroad Co., 1 Philadelphia Rep. (Penn.), 41. Process, 591. Kenicott v. The Supervisors, 16 Wallace, 453. Subscriptions by Counties, 688, 689. Kennayde v. Pacific R. R. Co., 45 Mo., 255. Injuries to Persons on the Track, 453, 456, 463. Kennebec R. R. Co. v. Portland R. R. Co., 14 Wallace, 33. Jurisdiction, 490. Kennebec, etc., R. K. Co. v. Kendall, 31 Me., 470. Stock and Stockholders, 634. Kennebec and Portland R. R. Co. v. Jarvis, 34 Me., 360. Subscriptions by Indiviuals, 690, 719, 729. 7. Palmer, 34 Me., 367. Subscriptions by Individuals, 691, 694. V. Portland and Kennebec R. R. Co., 54 Me., 173. Pleading, 579. Redemption, 603. V. Portland and Kennebec R. R. Co., 59 Me., 9. Mortgage, 585. V. Waters, 34 Me., 869. Subscriptions by Individuals, 714. V. White et al., 38 Me., 63. Contracts, 151. Instructions, 479. Kennedy v. Cotton, 28 Barbour (N. Y.), 59. OiBcers, 560. Pleading, 576. V. Dubuque, etc., R. R. Co., 34 la., 431. Highway, 825. Dubuque and Pacific R. R. Co., 3 la!, 521. Eminent Domain, 337. V. Harlem R. R. Co., 3 Duer (N. Y.), 659. ' Costs, 167. V. Milwaukee and St. Paul R. R. Co., 33 Wis., 581. Eminent Domain, 361, 269. r V. North Missouri R. R. Co., 36 Mo., 351. Damages, 171, 173. Negligence, 547. V. St. Paul and Pacific R. R. Co., 3 Dillon (U. S. C. C), 448. Receiver, 601. Kenneth and Gibson v. South Carolina R. R. Co., 15 Richardson's Law (So. Car.), 384. Rates, 598. Kennett v. Plummer, 28 Mo., 143. Mortgage, 543. Trespass, 764. Kenosha and Rockford R. R. Co, v. Sperry, 3 Bissell (U. S. 0. C), 309. Mortgage, 538. Kenosha City v. Lamson, 9 Wallace, 477. Mortgage, 539, 530. Subscriptions by Cities and Towns, 664. Subscriptions by Counties, 675. Kenosha, Rockford and Rock Island R. R, Co. V. Marsh, 17 Wis., 13, Subscriptions by In- dividuals, 720, 733. Kent V. Hudson River R. R. Co., 33 Barbour (N. Y.), 378, Carriage of Live Stock, 66. Carriage of Merchandise, 79, 80. V. New .York Central R. R. Co., 12 N. Y., 638. Construction of Railways, 148. Kentucky Central R. R. Co. v. Dills, 4 Bush (Ky.), 593. Injuries to Passengers, 418, 437. Kerr, In Matter of, 43 Barbour (N. Y.), 119. Eminent Domain, 253. Kerwhaker v. Cleveland, Columbus and Cin- cinnati R. R. Co., 3 Ohio St., 173. Injuries to Domestic Animals, 846. Kesee v. Chicago and Northwestern R. R. Co., 301a., 78. Fires, 303. Kessler v. New York Central R. R. Co., 7 Lan- sing N. Y., 62. Baggage, 39. Ketcham v. New Albany and Salem R. R. Co., 7 Ind., 391. Instructions, 479. Plead- ing, 583. V. Madison, Indianapolis and Peru R. R. Co., 30 Ind., 360. Consolidation, 134. Keyes v. Milwaukee and St. Paul R. R. Co., 35 Wis., 691. Garnishment, 331. Kidwell V. Baltimore and Ohio R. R. Co., 11 Grattan (Va.), 676. Constuction of Rail- ways, 140, 141. 856 TABLE OF CASES. Kiersted v. Orange and Alexandria R. B. Co., 44 Howard's Pr. (N. T.), 379. Appeals, 19. Kimball V. CochecoR. R. Co., 3 Foster (N. H.), 579. Indemnifying Bond, 333. V. Cocheco R. R. Co., 27 N. H., 448. Pri- vate Ways and Crossings, 588. V. Kennebec and Portland R. B. Co., 35 Me., 255. Eminent Domain, 213. V. Reding, 81 N. H., 352. Trustees, 769. V. Butland and Bm-lington R. R. Co., 26 Vt., 247. Carriage of Live Stock, 64. Car- riage of Mercliandise, 77. Pleading, 574. V. "Western R. R. Co., 6 Gray (Mass.), 542. CaiTiage of Mercliandise, 99. King V. Boston and Worcester R. R. Co., 9 Cashing (Mass.), 112. Injuries to Employes , 402. V. Indianapolis and St. Louis R. R. Co., 38 Ind., 266. Subscriptions by Individuals, 703. V. Iowa Midland R R. Co., 34 Iowa, 448. Eminent Domain, 217, 258, 265, 266. V. Macon and Western R. R. Co., 62 Bar- bour (N. T.), 160. Carriage of Merchandise, . 68. Connecting Lines, 133. V. Michigan Southern and Northern Ind., R. R. Co., 16 Mich., 79. Carriage of Merchan- dise, 79, 106. Lease, 504. V. Morris and Essex R. R. Co., 3 C. E., Green's Ch. (N. J.), 397. Fires, 304, 312. V. Paterscn and Hudson River E. R. Co., 5 Dutcher (N. J.), 504. Stock and Stock- holders, 632. V. Paterson and Hudson Kiver R. B. Co., 5 Dutcher (N. J.), 82. Stock and Stockhold- ers, 632, 633. V. Wilmington and Weldon B. B. Co., 66 N. C, 377. Confederate Money, 129. Kingsbury v. Chatham R. R. Co., 66 N. C, 284. Venue, 771. Kinney v. Central R. R. Co., 5 Vroom (N. J.), 513. Injuries to Passengers, 439. V. Central R. R. Co., 3 Vroom (N. J.), 407. Injuries to Passengers, 429. Kitchen v. Bedford, 13 Wallace, 413. Bonds of Railroad Companies, 55. Kittredge v. Peaslee, 3 Allen (Mass.), 235. Contracts, 159. Klein v. Alton and Sangamon R. R. Co., 13 111., 514. Subscriptions by Individuals, 713. V. Central Pacific R. R. Co., 37 Cal., 400. Injuries to Passengers, 423. V. Crescent City R. B. Co., 23 La. An , 727. Street Railways, 652. Knapp V. Central Pacific B. R. Co., 39 Cal., 587. Injuries to Passengers, 417. V. McAuley, 39 Vt., 275. Eminent Do- main, 264. V. New York and Harlem B. R. Co^ 3 Bosworth (N. Y.), 297. Contracts. 150. Kneeland v. Milwaukee, 15 Wis., 454, 691. Taxation, 741. Knight V. Baltimore and Ohio B. R. Co. Taney's Dec, 106. Patents, 568. V. CarroUton R. R. Co., 9 La. An., 284. Eminent Domain, 240. V. New Orleans, Opelousas and Great Western R. R. Co., 15 La. An., 105. Injuries to Domestic Animals, 873. V. Pontchartrain R. R. Co., 33 La. An., 462. Injuries to Passengers, 403. V. Portland, Saco and Portsmouth R. E. Co., 56 Me., 234. Injuries to Passengers, 413, 443. Tickets, 761. V. Toledo and Wabash B. B. Co., 24 Ind., 402. Injuries to Domestic Animals, 367. V. Wilmington and Manchester B.R. Co^ 1 Jones' Law (N. C), 357. Bonds of Bail- way Companies, 54. Biiightstown and Shelbyville B. B. Co. v. Lindsay, 8 Ind., 278. Injuries to Persons Generally, 446. Knorr v. Germantown, etc., B. B. Co., 5 Whar- ton (Penn.), 256. Eminent Domain, 259. Knowles v. Atlantic and St. Lawrence R. R. Co., 38 Me., 55. Bailment, 44. Knowlton v. Erie R. R. Co., 19 Ohio St, 260. Injuries to Passengers, 430. Knox Coimty v. Aspinwall, 1 Black, 886. Sub- scriptions by Counties, 675. Knox V. North Carolina R. K Co., 6 Jones' Law (N. C), 415. Slaves, 618. Koons V. Chicago and Northwestern R. R. Co^ 23 la., 493. Limitations, 509. Pleading, 580. Kramer v. Cleveland and Pittsburgh R. R. Co., 5 Ohio St., 140. Eminent Domain, 238. Kramer v. San Francisco Market Street B. E. Co., 25 Cal., 434. Injuries to Persons Gen- erally, 444, 446. Kroy V. Chicago, Bock Island and Pacific R. E. Co., 32 la., 357. Injuries to Employes, 395. Knter v. Michigan Ceptral R. E. Co., 1 BisscU (U. 8. C. C), 35. Carriage of Merchandise, 95. Kyle V. Auburn and Eochester R. R. Co., 2 Barbour's Ch. (N. Y), 489. Eminent Do- main, 224. V. Laurens R. R. Co., 10 Richardson's Law (So. Car.), 382. Carriage of Merchan- dise, 74, 83, 84. TABLE OF CASES. 857 L. Lackawanna and Bloomsburg R. R. Co. v. Chenewlth, S3 Penn. St., 383. Injuries to Passengers, 431. V. Doak, 53 Penn. St., 379. Fires, 304. Lackland v. North Missouri R. R. Co., 34 Mo., 359. Eminent Domain, 345. Highways, 338. _ V. North Missouri R. R. Co., 31 Mo., 180. Eminent Domain, 345. La Crosse and Milwaukee R. R. Co. v. Seeger, 4 Wis., 368. Eminent Domain, 311, 313. Fraud, 315. V. Vanderpool, 11 Wis., 119. Mechanics' Liens 519. Ladue v. Detroit and Milwaukee R. R. Co., 18 Mich., 380. Mortgage, 533. Lafayette and Indianapolis R. R. Co. v. Adams, 36 Ind., 76. Injuries to Persons on the Track, 463. V. Ehman, 30 Ind., 83. Evidence, 379. Injuries to Domestic Animals, 370. V. Huffman, 38 Ind., 387, Injuries to Persons on the Track, 458, 463, 464. V.Martin, 8 Ind., 351. Injuries to Do- mestic Animals, 368. ■ V. Pattison, 41 Ind., 311. Carriage of Merchandise, 109. V. Shriner, 6 Ind., 141. Injuries to Do- mestic Animals, 351, 370, 381. V. Sims, 37 Ind., 59. Injuries to Pas- sengers, 438. V. Smith, 6 Ind., 349. Eminent Domain, 359. Lafayette, Muncie and Bloomington R. R. Co. V. Geiger, 34 Ind., 185. Subscriptions by Counties, 675, 676. Lafayette Plankroad Co. v. New Albany and Salem. R. R. Co., 13 Ind., 90, Eminent Do- main, 310, 333, 336, 366. Jury, 494. Plank- roadg, 573. Lafferty v. Hannibal and St. Joseph R. R. Co., 44 Mo., 319. Injuries to Domestic Animals, 375. La Grange and Memphis R. R. Co. v.Rainey, 7 Coldwell (Tenn.), 430. Charter, 131. Sub- scriptions by States, 733. La Grange v. State Treasurer, 34 Mich., 468. Mandamus, 516. Directors, 181. Federal Courts, 396. Lake v. Virginia and Truckee R. R. Co., 7 Nev., 394. Bridges, 57. Lake Erie, Wabash and St. Louis R. R. Co. v. Eckler, 13 Ind., 67. Construction of Rail- ways, 147. 415. Subscriptions Lake Erie, Wabash and St. Louis R. R. Co. V. Heath, 9 Ind., 558. Juiy, 493. V. Loveland, 14 Ind., 291. Lakenan v Hannibal and St. Joseph R. R. Co., 34 Mo., 505. Subscriptions by Cities Towns, 673. Lake Ontario, Auburn and New York R. R. Co. v. Marvine, 18 N. T., 585. Appeals, 30. V. Mason, 16 N. Y., by Individuals, 690. Lake Shore and Michigan Southern R. R. Co. V. Chicago, 56 111.. 454. Streets, 643. V. Miller, 35 Mich., 274. Injuries to Per- sons on the Track, 459, 460. V. Perkins, 35 Mich., 339. Carriage of Live Stock, 64. Lake Superior and Mississippi R. R. Co. v. Greve, 17 Minn., 333. Eminent Domain, 365. Lakin v. New York and Erie R. R. Co., 11 Howard's Pr. (N. Y.), 413. Reference, 603. Lalor V. Cliicago, Burlington and Quincy R. R. R. Co., 53 111., 401. Injuries to Em- ployes, 386. Lamb v. Camden and Amboy R. R. Co., 3 Daly (N. Y.), 454. Carriage of Merchandise, 75, 76. -^ — V. Camden and Amboy R. R. Co., 4 Daly, (N. Y), 483. Carriage of Merchandise, 78. V. Camden and Amboy R. R. Co., 46 N. Y, 371. Bill of Lading, 53. Carriage of Merchandise, 75. V. Western R. R. Co., 7 Allen (Mass.), 98. Warehousemen, 775. Lambeth v. North Carolina R. R. Co., 66 N. C, 494. Injuries to Passengers, 407. Lamothe v. St. Louis Marine R. R. Co., 17 Mo., 304. Agency, 14. Lamphear v. Buckingham, 33 Conn., 337. In- juries to Passengers, 434, 441. Lamphier v. Worcester and Nashua R. R. Co., 33 N: H., 495. Rrivate Ways and Crossings, 588. Lance's Appeal, 55 Penn. St., 16. Eminent Domain, 363. Lateral Railroads, 501. Land v. Coffman, 50 Mo., 343. Charter, 134. Land Grant R. Jl. Co. v. Commissioners, 6 Kans., 356. Subscriptions by Counties, 680. v. Commissioners, 6 Kans., 345. Charter, 136. Corporations, 163. V. Staten Island R. R. Co., 14 Abbott's Pr. N. S. (N. Y.), 356. Jurisdiction, 487. Landers v. Staten Island R. R. Co., 53 N. Y., 450. Jurisdiction, 487. 858 TABLE OP CASES. Landers v. Staten Island R. H. Co., 13 Abbott'3 Pr. X. S. (X. T.), 338. Landes V. Pacific R. R. Co., 50 Mo., 346. Car- riage of Merchandise, 99. Lane v. Baughman, etc., 17 Ohio St., 642. Mortgage, 541. V. Brainerd, 30 Conn., 535. Evic'ence, 290. Subscriptions by Individuals, 691, 701. v. Old Colony and Fall River R. U. Co., 14 Gray (Mass.), 143. Lien, 506. V. Seaboard and Roanokg R. R. Co., 5 Jones' Law (N. C), 25. Process, 592. Langdon v. Rutland and Washington R. R. Co., 29 Vt., 212. Constable, 136. Langfitt v. Clintou and Port Hudson R. R. Co., 7 Robinson (La.), 41. Appeals, 18. V. Clinton and Port Hudson R. R. Co., 3 Robinson (La.), 217. Evidence, 283, 288. Langhoflf v. Milwaukee and Prairie du Chien R. R. Co., 23 Wis., 43. Injuries to Persons on theTrack, 450. V. Milwaukee and Prairie du Chien R. R. Co., 19 Wis., 489. Injuries to Persons on the Track, 475. Konsuit, 555. Langlois v. Buffalo and Rochester R. R. Co., 19 Barbour (Is. T.), 364. Injuries to Em- ployes, 394. Langston v. South Carolina R. R. Co., 2 So. Car. (X. S.), 248. Bonds of Railway Com- panies, 54, 56. Langworthy v. Xew York and Harlem R. R. Co., 3 E. D. Smith (N. T.), 195. Carriage of Merchandise, 109. Laning t. Xew York Central R. R. Co., 49 N. Y., 521. Injuries to Employes, 383, 393. Lantz V. St. Louis, Kansas City and Uorthern R. R. Co., 54 Mo., 228. Injuries to Domes- tic Animals, 375. Lapine v. New Orleans, Opelousas and Great Western R. R. Co., 30 La. An., 158. Injuries to Domestic Animals, 345. Largan v. Central R. R. Co., 40 Cal., 272. Ev- idence, 288. Latimer at al. v. New Orleans, Jackson and Great Northern R. R. Co., 16 La. An., 79. Contracts, 150. Latimer v. Union Pacific R. R. Co., 43 Mo., 105. Judgment, 484, 485. Lauderbrun v. Duffy, 2 Penn. St., 398. Con- struction of Railways, 143. Laughlin v. Chicago and Northwestern R. R. Co., 28 Wis., 204. Carriage of Merchan- dise, 104. Lauman v. Lebanon Valley R. R. Co., 30 Penn. St., 43. Dissolution, 183. Transfer of Cor. porate Property, 763. Laurence v. New Jersey R. R. Co., 1 How- ard's Pr. (N. Y.), 250. Attachment, 29. Law V. Illinois Central R. R. Co., 32 la., 534. Injuries to Passengers, 433. Lawrence v. Housatunic R. R. Co., 39 Conn., 390. Negligence, 551. V. New York, Providence and Boston R. R. Co., 36 Conn., 63. Carriage of Merchan- dise, 86. V. Winona and St. Peter R. R. Co., 15 Minn., 390. Carriage of Merchandise, 86. Lawrence County's Appeal, 67 Penn. St., 87. Subscriptions by Counties, 684, 688. Lawrence County v. Northwestern R. R. Co., 32 Penn. St., 144. Subscriptions by Counties, 682, 688. Lawrenceburgh and Upper Mississippi R. R. Co. V. Montgomery, 7 Ind., 474. Evidence, 278. Injuries to Passengers, 440, 443. V. Smith, 3 Ind., 253. Eminent Domain, 305. Lawson v. Milwaukee and Northern R. R. Co., 30 Wis., 597. Subscriptions by Counties, 676. Subscriptions by Cities and Towns, 662, 666, 669, 673. Lawton v. Fitchburg R. R. Co., 8 Cushing (Mass.), 330. Right of Way, 607. Leach v. Western R. R. Co., 65 N. C, 486. Judgment, 485. Leak v. Selma, Rome and Dalton R. R. Co., 47 Ga., 345. Costs, 166. Leary v. Hannibal and St. Joseph R. R. Co., 38 Mo., 485. Eminent Domain, 359. Leavenworth and Des Moines R. R. Co. v. County Court of Platte County, 43 Mo., 171. Subscriptions by Counties, 680. Leavenworth County v. Miller, 7 Kans., 479. Subscriptions by Counties, 675, 676. Leavenworth, Lawrence, etc., R. R. Co. v. Rice, 10 Kans., 436. Injuries to Persons on the Track, 457. Lee V. Marsh, 43 Barbour (N. Y.), 103. Car- riage of Live Stock, 63. V. Tebo and Neosho R, R. Co., 58 Mo., 178. Eminent Domain, 203, 317, 238. Lee County v. Rogers, 7 Wallace, 181. Lis Pendens, 510. Subscriptions by Counties, 675. Leedom v. Plymouth R. R. Co., 5 Watts and Sergeant (Penn.), 265. Sequestration, 614. Lehey v. Hudson River R. R. Co., 4 Robertson (N. Y.), 204. Injuries to Persons on the Track, 470, 476. TABLE OF CASES. 859 Lehigh Coal and. Navigation Co. v. Philadel- phia and Reading R. R. Co., 36 Penn. St., 304. Lohish Valley R. R. Co. v. Hall, 31 Penn. St., 361. Injuries to Persons on the Track, 451, 453. Marriage, 519. V. Lazarus, 28 Penn. St., 203. Eminent Domain, 306, 226. V. Trone, 28 Penn. St., 306. Eminent Do- main, 335. Lehmicke v. St. Paul, Stillwater, etc., R. R. Co., 19 Minn., 4C4. Eminent Domain, 257. Leimer v. Pacific R. R. Co., 26 Mo., 26. Non- suit, 555. Lemmon v. Chicago and Northwestern R. R. Co., 32 la., 151. Injuries to Domestic Ani- mals, 373. Leominster v. Eitchburg and Worcester R. R. Co., 7 Allen (Mass.), 38. Arbitration, 25. Leroy v. East Saginaw R. R. Co., 18 Mich., 233. Taxation, 747, 748. V. East Saginaw City R. R. Co., 18 Mich., 233. Replevin, 605. Le Sage v. Great Western R. R. Co., 1 Daly (N. Y.), 306. Carriage of Merchandise, 104. Leseman v. South Carolina R. R. Co., 4 Rich- ardson's Law (So. Car.), 413. Injuries to Domestic Animals, 381. Lesseps v. PontcharU'ain R. R. Co., 17 La. (O. S.), 361. Injuries to Persons on the Track, 476. Lester v. Georgia R. R. Co., 43 Ga., 244. Chat- tel Mortgage, 126. V. Rome, etc., R. R. Co., 2 N. Y. S. C, 672. Practice, 586. Levering v. Philadelphia, Germantown and Norristown R. R. Co., 8 Watts and Sergeant (Penn.), 459. Eminent Domain, 207. V. Union Ti-ansportation and Insurance Company, 42 Mo., 88. Carriage of Mer- chandise, 78. Levi V. Lynn and Boston R. R. Co., 1 1 Allen (Mass.), 300. Street Railways, 651. Leviston v. Junction R. R. Co., 7 Inl., 597. Contracts, 150. Eminent Domain, 259. Right of Way, 608. Levy V. Pontchartrain R. R. Co., 23 La. An., 477. Carriage of Merchandise, 86. Lewey's Island R. R. Co. v. Bolton, 48 Me., 451. Subscriptions by Individuals, 719. Lewis V. Baltimore and Ohio R. R. Co., 88 Md., 588. Injuries to Persons on the Track, 459. V. Galena and Chicago Union R. R. Co., 40111., 281. Lien, 507. Lewis V. McAfee, 32 Ga., 465. Slaves, 618. V. New York Central R. R. Co., 49 Ba - bour (N. Y.), 330. Legal Tender Act, 505. V. Turner, 40 Ga., 416. State Railways, 6-1. V. Whidbee, Sup't, etc., 36 Ga., 371. In- structions, 479. T(. Wilmington and Manchester R. R. Co., 11 Richardson's Law (So. Car.), 91. Emi- nent Domain, 362. Lexington and Big Sandy R. R. Co. v. Good- man, 15 Howard Pr. (N. Y.), 85. Parties to Actions, 563. V. Goodman, 5 Abbott's Pr. (N. Y.), 493. Parties to Actions, 563. V. Goodman, 25 Barbour (N. Y.), 469. Parties to Action, 563. Lexington v. Butler, 14 AVallace, 283. Limita- tions, 508. Pleading, 583. Subscriptions by Cities and Towns, 672. Lexington and Danville R. R. Co. v. Barbee, 1 Metcalfe (Ky.), 384. Arrest, 26. Lexington and Ohio R. R. Co. v. Applegate, 8 Dana (Ky.), 289. Eminent Domain, 248, 249. Injunction, 340. V. Bridges, 7 B. Monroe (Ky.), 556. Di- rectors, 181. Limitations, 509, 610. Sub- scriptions by Individuals, 724. : V. Kidd, 7 Dana (Ky.), 245. Bailment, 44. V. Ormsby, 7 Dana (Ky.), 276. Eminent Domain, 373. Lexington and West Cambridge R. R. Co. v. Chandler, 13 Metcalf (Mass.), 311. Sub- scriptions by Individuals, 719, 734. V. Elwell, 8 Allen (Mass.), 371. Official Bonds, 561, 563. V. Eitchburg R. R. Co., 14 Gray (Mass.), 266. Charter, 114. Connecting Lines, 131, 133, 133. V. Eitchburg R. R. Co., 9 Gray (Mass.), 226. Lease, 503. Lichtenhein v. Boston and Providence R. R. Co., 11 Cushiug (Mass.), 70. Warehouse- men, 774, 775. Liddle v. Keokuk, Mt. Pleasant, etc., R. R. Co., 23 la., 378. Injuries to Domestic Animals, • 352, 359. Lightuer v. Boston and Albany R. R. Co., 1 Lowell (U. S. C. C), 338. Patents, 567. Lincoln v. Rutland and Burlington R. R. Co., 34 Vt., 689. Interpleader, 483. Lindell v. Hannibal and St. Joseph R. R. Co., 35 Mo., 550. Trespass, 765. Lindsay v. Central R. R. Co., 46 Ga., 447. lu- juries to Passengers, 416. TABLE OF CASES. Linfield v. Old Colony R. R. Co., 10 Cusliing (Mass,), 562. Injuries to Persons on the Track, 457. Lipfoi-d V. Charlotte and South Carolina R. R. Co., 7 Richardson's Law (So. Car.), 409. Carriage of Merchandise, 90. Liscomh v. Xew Jersey R. R. Co., 6 Lansing (N. Y.), 75. Injuries to Passengers, 409. Litchfield v. L-vin, 51 N. Y., 51. Bill of Sale, 53. V. Railroad Co., 7 "Wallace, 270. V. McComher, 42 Barbour (N. Y.), 288. Constitutional Law, 139. Taxation, 737. Little Miami R. R. Co. v. Allen, 13 Ohio St., 428. Appeals, 17. V. Collett, 6 Ohio St., 183. Eminent Do- main, 238. V. Hopkins, 19 Ohio St., 279. Eminent Domain, 209. V. Perrin, 16 Ohio, 479. Eminent Do- main, 204. v. Stevens, 20 Ohio, 415. Injuries to Em- ployes, 386. V. Washburn, 22 Ohio St., 324. Carriage of Merchandise, 71. V. Wetmore, 19 Ohio St., 110. Injuries to Passengers, 415. V. Whitacre, 8 Ohio St., 590. Eminent Domain, 259. Little Miami, etc., R R. Co. v. Dodds, 1 Cin- cinnati Superior Ct. Rep., 47. Bill of Lad- ing, 51. Livingston v. Pittsburgh and Steubenville R. R. Co., 2 Grant's Cases (Penn.), 219. Sub- scriptions by Individuals, 711. Lloyd V. Pacific R. R. Co., 49 Mo., 199. In- juries to Domestic Animals, 375. Locke v. St. Paul and Pacific R. R. Co., 15 Minn., 351. Injuries to Domestic Animals, 350. Lockwood V. New York and New Haven R. R. Co., 37 Conn., 387. Right of Way, 608. Locomotive Engine Co. v. Erie R. R. Co., 10 Blatchford (U. S. C. C), 292. Patents, 569. Logan V. Chicago and Northwestern R. R. Co., 27 Iowa, 564 V. Pontchartrain R. R. Co., 11 Robinson (La.), 34. Baggage, 39, 43. Lngansport, Peoria and Burlington R. R. Co. V. Caldwell, 38 111., 280. Evidence, 287. Injuries to Domestic Animals, 353. Lohman v. New York and Erie R. R. Co., 3 Sandford (N. Y.), 39. Stock and Stockhold- ers, 631, 638. Lohman v. St. Paul, Stillwater, etc., R. R. Co., 81 Me., 1 74. Eminent Domain, 194. Lombardo v. Case, 45 Barbour (N. Y.), 95. Stock and Stockholders, 629. Long V. New York Central R. R. Co., 50 N. Y., 76. Bill of Lading, 53. Long Branch and Sea Shore R. R. Co., In matter of, 9 C. E. Green's Ch. (N. J.), 403. 9 C. E. Green's Ch. (N. J.), 398. Receiver, 601. Long Island R. R. Co., In matter of, 45 N. Y., 364. Subscriptions by Individuals, 725. 19 Wendell (N. Y.), 37. Election of Cor- porate Officers, 187. v. Conklin, 39 N. Y., 573. Conveyance, 161. V. Conklin, 33 Barbour (N. Y.), 381. Conveyance, 161. V. McConochie, 3 Edwards' Ch. (N. Y.), 487. Fences, 299. Loop V. Chamberlain, 30 Wis., 135. Eminent Domain, 273. Louisville and Frankfort R. R. Co. v. Ballard, 3 Metcalfe (Ky.), 177. Injuries to Domestic Animals, 351, 373. V. Brown, 17 B. Monroe (Ky.), 763. Emi- nent Domain, 246. V. Milton, 14 B. Monroe (Ky.), 75. In- juries to Domestic Animals, 347, 349. Louisville and Nashville R. R. Co. v. Buckner, 8 Bush (Ky.), 277. War of 1861, 777. V. Burke, 6 Coldwell (Tenn.), 45. Con- stitutional Law, 138. Injuries to Persons on the Track, 467. Negligence, 549. V. Collins, 2 Duvall (Ky.), 114. Injuries to Employes, 398. Negligence, 548. V. Commonwealth, 1 Bush (Ky.), 250. Taxation, 738, 746, 750, 757. V. County Court, etc., 1 Sneed (Tenn.), 637. Subscriptions by Counties, 676, 680, 683. V. Covingt3 27 27 28 27,38 INDEX. 927 Assignment, etc. — eon, fagb. Preferences, ... 27, 38 Stock subscriptions, - - - 28 Wliat may be assigned, - - 38 Assignor of cliose in action, - - 384 , As a witness, - . 284 Assumpsit. (See Pleading.) Asylum, . - . 254, 355 Taking, property for use of railway, 254, 255 Attachment, - - 29 Bond, - - . . - 29 condition, - - - 39 Bonds of railway companies, 39, 54 Contract of defendant, - - 150 Contractor?, - - - - 39 Certificate of deposit, - 110, 111 Coupons, - - - - 54 Curator, - - - 39 Foreign Corporations, - 39, 30 Garrisliment, - - 317, 331 Laws of the several states, - 30 Locomotives, - . . 30 Nonresident plaintiff, - - 39 Notice, . . - 30 Practice, - - 30 ; Stock of corporation, - 80, 728 Stockholders, - - - - 738 Storage of cars attached, - 30 Trover, 766 Attoknets, - 80 Appearance, - . 31 Appearance for state. 31 Authority, - 30 Change of sides. - 31 Oompentation and lien, - 31 Confession of judgment. - 32 Contingent fee. 664 Contract, . 31 Costs, - . 32 Director as attorney, - 31,32 Fees, .... 31, 543 Foreclosure of mortgage. - 543 Lien, .... . 31 Misconduct, 554 Powers and duties, - 30 Prochein ami, . 31 Release by attorney, . . 31 Besolution of board of directors em. ploying counsel, - - 33 Waiver of process, - 31 Withdrawal of appearance, - 31 Attorney in fact, . - 639 Transfer of stock, - - 629 Audita querela, - - - - 33 Executors and administrators, - 33 Awning, - - - 394 Injury to employes by projection, . 394 B. Backing trains, - - 449,461,549 Injuries to persons on hand car, - 549 Injuries to persons oa the track, 449, 461 Backwater, ... - - 556 Nuisance, ... - 556 PAGE. Baggage, - . 33 AfiBdavit of party, ■ 40 Agent, .... 35, 37, 44 Articles included. 83 Bedding, 33 Checks, 35 rechecking. - 36 refusal to check, . 8G Clothing, 33 Compensation for carriage, • ■ 36 Connecting lines, - 36, 37 38, 39, 40 Damages for loss. 83,40 Express men. 43 Extra charges, . 41 Extra quantity. 41 Delays, - 40 Delivery to carrier. 36, 37, 38 Delivery to passenger. 40 Evidence, 40,41 Foreign corporations, . 88 Forwarding baggage, 35,44 Free carriage. 39,48 Free passes. 43 Gold watches. 38 Interested witness. 40,41 Husband and wife. - 41 Jewelry, 33 Laces, - 38 Lame Passengers, . 43 Larceny, 35,36 Limitation of liability. 39, 40, 43 by notice, 39,40 Married women. 83,43 Merchandise, - 88,34 Money, 34 Neglect of passenger, 43 Package not represented as baggage, 34 Pleading, . . - 43 Public enemy, - 43 Re-delivery to baggage master, 48 Revolvei, ' 35 Specie, . . 34 Statute penalty, - . - 36 Steamboat lines, ■ . - 40 Storage by carrier, . - 43 in baggage room, - 43 Theft, 43, 44 Ticket agent, . . 35 Tickets, ... 44 through ticket, - 87 Unclaimed baggage, 44 Valise containing samples, 35 Value, . . - 493 jurors may estimate, - - 493 What constitutes taggage, 33 - 85 When carrier's liability ceases, 40 Baggage cars, ■ . . 309 Injuries to employes, . 869 Injuries to passengers, - 396 Baggage checks, 35, 86 Baggage master, - . 43, 590 Process served upon, - - 590 Bail bond, - . - 36 Bailment, - . - 44 Apportionment, . - 44 Carriage of goods. . 44,90 Loss of goods, - 44 Negligence, . - 44 Slaves, - . 44, G16 Trover, . . - 44 928 INDEX. PAGE. - 408 - 408 - 44 - 44 - 45 - 277 - 277 45 - 126 45 45 - 45 45 45 45 613 613 777 33 — 00-0-, - 33 Benefits, (see Eminent Domain). Assessments for improving streets, - 736 Berges TmrBTEL, . . 45 Delaware, etc.. Railway, . 45 Erie Railway, - . . - 45 Ballasting, - Injuries to employes, - Baltimoke & Ohio R. E. Co., - Terminns, . . . Banking, . . . Accounts, as evidence, . . . Illegal banking, Banker's checks, - - . Bankruptcy, Acts of bankruptcy, Assignees, Jurisdiction, Petition, Proceedings against a railway com- pany. Barges, Salvage, . . . Bedding, Bills and Xotes, Actions, Agent, - Alterations, Collaterals, Consideration, Consolidation of companies. Corporate powers. Decease of indorser. Drawer of bill. Evidence, Exchange, Failure to present. Form, Garnishment, Indorsers, Interest, Limitations, Masonic corporations, Keglect in collection, New promise, Pleading, Power of corporation to execute, President of corporation. Property, payable in, - Protest, Scrip, . Seal, . Setoff, Signature, denial of. Subscriptions to stock, Trust, Bills of Discovery, Contracts, Equity, Petition, BiLT.s OP Exceptions, . Amendment, Authentication, Evidence, - 4:5 - 564 - 48 - 45 - 46 - 46 - 47 46,47 - 48 - 46 - 47 - 46 - 48 - 49 - 317 - 47 - 46 507 - 46 - 46 - 48 575, 580, 584 46,47 - 46 - 48 ■ 46,48,593 46.48 - 48 - 48 - 48 702, 703, 705 - 767 - 49 - 49 - 49 - 49 49, 580 - 49 - 49 - 50 Bills op Exceptions — con. FiUng, - New trials. Signing, Writs of error, Bills op Lading, Advances, Alterations, As a contract. Assignment, - Collaterals, Construction, - Delivery of bill, Demurrage, Evidence, Form, - Forwarding goods, Limitation of liability. Pleading, Transfer of goods. Bill op Sale, (See Mortgage.) Railway bonds. Blasting rocks. Contractors, Boarding house keeper. Boats, Damages to, Bond. Attachment, - Bail, Embezzlement, Injunction, Official, Super edeas, - - „^ Bonds of municipal corporations, 55, 127, 664, 670, 671, 672, 674, 684, 685, 686, 687 (See Subscriptions by Counties; Sub- scriptions by Cities and Towns; Subscriptions by Townships.) Collaterals, . 127, 684 Counties, - . 127,674 Coupons, . . 684 Discount, - 664, 684 Fi-aud, - - . 686 Guaranty, 685 Interest, . . -685 Negotiability, - . 685, 686, 687 Pleading, . 686 Presumptions, - 686 Sale, - . .127 Townships, 732 733 PAGE. 5J 55! 49 783 51 51 51 53 - 51 52 ■ 68 51,52 176 52 - 68 - 52 53,74 82 - 51 - 53 - 53 159, 764 - 159 - 11 - 53 53 - 29 26 - 189 - 333 561, 763 735 Bonds op Railway Companies, - (See Mortgage.) Bill of sale. Blank bonds, - Bona fide holders, Bonds, Confederate money. Consolidation of companies, Convertibility, Coupons, guaranteed bonds. Demand, Exchange, Guaranty, Interest, ... Limitations, ... 53 - 53 - 53 - 54 - 53 - 129 - 133 55, 627 - 54 56 55 55 - 55 54,56 - 508 INDEX. 929 Bonds op Railway Companies- Negotiability, Personal property, Place of payment, Pleading, Pledge, Purchase of bonds, Sale, Setoff, - Special fund, - Trust, - Usury, - . Warranty, Bondholders, (See Mortgage.) Bight to maintain an action, Bond tax, . . ■- . Bonus, - - - 56, 177, Gift, Location of depot. Boundaries of lands, Public lands, - Biparian rights, Boundaries of states. Brakes, - - - 390, Defects, Injuries to employgs, Injuries to persons on the track. Brake men. (See Injuries to Employfe Branch lines. Location, Branch railways, - (See Lateral railways, Taxation, Brandy. Leakage, Bribery, Lobbying, Bbidoes, - Approaches, - Canals, Charter, Cities, - Commissioners, Contracts, Culverts in streets. Defects, damages, - Definition of bridge. Draws, - Eminent domain, - 60, 322, 235, Federal courts. Floods, Indictment, Injunction, Injuries to employSs, Injuries to persons on the track, Location, Mandamus, Maritime liens. Mechanic's liens, Mills, - - Navigation, - - 58, 59, 60, Negligence, Nuisance, Overflow, Over railways, in streets, - Post routes. Private ways, - 59 .. PAGE. 53,54 - 29 - 55 575, 580 - 585 - 620 158, 545 - 54 - 56 55, 767 - 770 - 56 - 638 - 638 733, 740 178, 689 - 56 177, 178 609, 610 610 609 487 391, 469 469 390, 891 469 511 511 499 750 94 511 511 57 57 60 57 59 57 57, 143 59 142 57 136 59 ,341 58 60 58 58 ,408 469 58 58 58 519 58 ,547 59 69 59 351 639 59 587 BjlIDGES — con. PAGE. Purchase by railway company, - 60 Bepairs, - - - - CO Streets, - - - - 59 Street railways, - - 60, 648, 649 Tolls, 60 Watercourses. - . . - 777 Wharves, - - . - 781 Whistling of locomotive under bridge, 449 Broken rail, .... 409 BUOEER, - - - - 13, 61 Commissions, - - - - 61 Brooklyn city courts, - - - 487 Burden of proof (see Evidence). Burning of passengers, - - 439 Money burned with the deceased, - 439 By-Laws 16, 61 Evidence, - - - 61 Municipal corporations, - - 545 Personal liability of stockholders, - 634 0. Camden and Amboy R. R. Co., Canals, Boats, - mortgage, - Bridges, Construction, - Eminent domain, Injunctions, - Injuries to cattle, Lands, - Limitations, - State canals, - Cancellation of instrument. Carpenters, . Injuries to employls, - Car repairer. Injuries to employes, - Carkiages, . Collisions, Cabbiage op Live Stock, Agency, - - - - 63 Common law, - - - - 64 Contract, - - - 66 Contract limiting liability, - 63, 66 Damages, - - 64, 65, 66 market price, - - .64 Defective vehicles, - - 62, 65 Delays, - - 65,66 Delivery, - - - - 66 Evidence, ■ - - - 64 Evidence of liability, - - 64 Excessive verdict, - - - 64 Extent of cameras liability, - 63, 64 Loss of weight, - - - 66 Mistake, - - - - 66 Mules, 101 Negligence, - - - - 67 Overheating, - - - 63,63,67 Passes, - - - - 67 Poultry, - - - - 67 Bates, - - - ■ - 63 Snow stoi-m, - - - -63 193 61 543 543 60 150 329 335 380 61 507 60,61 374 885 . 385 . 385 885 61 • 61 • 61 930 INDEX. Casbiage of Lite Stock — am. Starvation, Suffocation, Vicious Animals, Cabbiage of Mebchandise, Abandonment, Action for loss of goods, parties. Act of God, PAGE. 62,63 - 63 - 65 - 68 - 109 . 97 ■ 564 88, 90, 93 Agency, - 11, 13, 16, 90 Bailment, - - - - 44 Bill of lading, 51, 68, 74, 77, 94, 103, 103 Brandy, - - - 94 Careless handling, . . .93 Carpet, - . . -98 Cars shipped as freight, - . 103 Change of route, ... 103 Clothing, . . .91 Coal, - - .104 Coal oil, . . . - 94 Commencement of liability, 73, 74 Connecting lines, 68, 70, 74, 80, 92, 94, 97, 108, 107, 129 Consignee, . . > . io8 Contract, 16, 68, 69, 70, 71, 76, 80, 81, 95, 99,104 Contract limiting liability, 74, 77, 78, 79, 80 Conversion, . . 80, 104, 107 Corn, . . .80 Cotton, . . . - 80 Custom, . 69,104,107 Damages, . . . 79,80,81 expenses, . 80 interest, . . .83 rain, . . . ]06 release, .... log Delay, . 70, 80, 81, 109 strike of employes, . - 82 Delivery, 11, 13, 70, 74, 97, 105, 107, 108 misdelivery, . 106, 107, 108 nondelivery, ... 107 order for ffoods, . . 106 place of delivery, . . 108 to agent, . . . lOg to carrier, - . .70, 104, 105 upon wharf, ... 106 Demand, .... i(y7 Elevators, - . . 188,189 Evidence, . . . .91 contract, . . . -71 value, . . . .91 Express company, . . . io9 Fictitious consignee, - . 107 V^^' ■ .. ..- . ■ 73,77,84,104 Former adjudication . . -109 Forwarding, . . .52 Flood, . . . . "93 Ijoir, - . . . s'l, 103 Flour checks, . . . .107 Forwarding, . . .91 Free carriage, . . .90 Freezing fruits, . . .92 Freshet, . . qq Instructions to shippers, . 71, 76 93 Intermediate consignees, . '. ' 93 Leakage, . . 94 Leased Imes, . . - 94 LiuhiUty of carriers generally, 90 97, 103 Lien of carrier, . 94 Limitations, . . 507,509 Loadmg, ... ' g^ Cabbiage os Merchasiiise — Losses lyfire, - Lumber, Machinery, Marks, Missent goods, Mistake, Money, Negligence, . Notice of arrival of goods, failure to give notice. Nursery stock. Order of shipment. con. page. - 84 82 - 80 71, 98, 94, 518 - 95 95, 775 - 95 . 76, 82, 96 - 96 - 96 84 r — — , - 97 Owner accompanying goods, - 97 Ownership, ... 76, 108 Partial loss, - . . .97 Passenger trains, . - .97 Payment to carrier by mistake, 109 Pleading, - . . 93 Possession, right of, . . 97 Powder, - . . 5.6 Bain causing damage, - . 106 Receipt, . 70, 107 Receipt of foreign corporation, 91 Release of damages, • . 79 Running off the track, 93 Seizure on legal process, - 99 Setoff, . . . .72 Sheet iron, ... 10c Shortage, . . - 110 Snow storm, . . 83, 90 Specific performance, . 619 Statutes, . 73 Steamboats, . . .73 Stoppage in transitu, . 639 Streetage, . .73 Street railways, . . 651 Strikes of employes, . . .82 Sunday laws, .... 734 Teamster, . . . 109 Theft, - . 104 Title of goods, . 99 Transportation companies, . .73 Trover, - . . .99 Unexpected rush of business, 81 Unloading, . . 99 "Veal, . . 83 Vendor and vendee, . 99 Waiver of rights of consignee - 109 War, . . . 83,100 Warehouse, 70, 73, 87, 88, 89, 100, 107, 774, 775, 776 n™, . . .774 Jien, . . ij'jg ^ay^ill, - . . 73,133 Weather, - . . . ' gS Wine, .... 92 freezing, ... 93 Whisky, . . .103 Carriage of passengers. (See Baggage; Injuries to Paosengers; Passen- gers; Tickets.) Car drivers, . . . 379 Evidence, . . 279 Car windows, . . . 431 430 Injuries to passengers, - 431,' 432 ^^^\ ... . ■ 103, 110, 343, 612 Colisions, . . 110,343 Freight, ... -103 Sale, . . gj2 Case, action on, . . . . 223 INDEX. PAGE. Cattle, - - - - - 110 (See Carriage of Live Stock ; Inju- ries to Domestic Animals.) Collision with cars, - 110, 433 liability of owner, - - 110 Injuries to cattle by flood, - - 779 Cattle Guakds, - - - 110 Constitutional law, . - 110 Contract, . 110 Eminent domain. _ - 323 Injuries to live stock, 354, 356, 365, 367, 374, 376 snow in cattle guards, . - 360 Injuries to passengers, - 404, 436 falling into cattle guard. 404 Obligation to maintain. - 299 Cattle pens. - 556 Nuisance, , 556 Caveat emptor. - 391 Judicial sale, - - 291 Cawood's patent - 569 Certificates of Deposit, 110,111 Attachment, - 110, 111 Certificate of stock. - 637 (See Stock and Stockholders.) Certiorabi, - - Ill Affidavits, , - Ill Assessments of damages, - Ill Eminent domain. - Ill Equalization of taxes. - Ill Highways, . Ill Justice of the- peace, - 113 Municipal corporations. - 113 Street railways, - Ill Subscriptions to stock by cities and towns. - 666 Challenge, - ■ - 493 (See Jury Trial.) Challenge of vote, - . - 186 At corporate elections, - - 186 Champerty, - - 112 Chancery. (See Equity.) Change of cars. . - 566 (See Passengers.) Change of corporation. - 666 Subscriptions by cities. - - 666 Change of grade, - - 343, 335 Highways, - - 325 Streets, - . 343 Change of location of railways - - 335 Injunction to restrain. . - 335 Change of time. - - 763 Change of Venue, - 113, 771 Charter, . 113 Acceptance, _ - 114 Amendments, 114, 115, 133 687, 688, 720, 731, 733, 733 release of stockholders. 114, 730, 731,733,733 Banking, - 116 Canal companies. - 116 Carriage of goods. - 68 Commissioners, 117,123 Conditions, 117, 126 Conflict of charters, - - 57 Consolidation, - - 135 Charter — con. page. Constitutional law, 1 14,115, 116, 117,11 8,136 Contract, - - - 113 Directors, - - 179 Divisions, - - - 119 Domicil, - - - 119,124 Eminent domain. 111, 133, 135, 191, 193, 193 . Extension of road, - - - 120 FeiTies, - 130, 300 riling articles of association, -' 120 Forfeiture, ... 120 Limitation of stock, - . - 718 Location of railways,' ... 511 Mining companies, - - 110 Monopolies, - - 122 Mortgage, - - - 524 Municipal corporations, - - 545 Name, - - - 117,133 change, - - 117,123 Neglect of duty, - - - 133 Organization, ... 123 Personal injuries, ... 423 Police regulations, ... IS-t Powers, . . 124,125 Plankroads, . . 571,572 Private roads, . - - - 124 Real estate, .... 124 Eepeal, . . - 117 Route, - . .115,135,610 Sale of right of way, . . 12G Services in procuring charter, 150 compensation, - - - 117 Special cases, 114, 115, 116, 121, 123, 124, 126, 749, 750 Statutes, - - - 123 Street railways, - 122, 126, 645, 647 Stock subscriptions, . 117,123,635,690 Taxation, - . - - 126 Terminus, . - - - 758 Tidewater, . . . 126 Time of existence, - - 130, 131 Tolls, - . - 131,659 Transfer of corporate property and' franchises, - - - 126 Void charter, .... 126 Warehousemen, - . - 774 Chattel mortgage, - . - 527, 528 (See Mortgage.) Checks, - - - - .126 Bankers', .... 126 Checks for baggage, - . 35, 36 Children, - 462, 4«3, 464, 465, 466, 548 (See Parent and Child; Injuries to Employ§s ; Injuries to Passengers ; Injuries to Persons on the Track.) Illegitimate, . - - 466 Injuries on the track, - 462-466 Negl igence, - - 463, 464, 548 Street railways, . 653, 653, 657, 658 Churches, - - - 126 Damage for di'sturbanec by trains, 126, 127 Eminent domain, . - 230 Cities and towns. (See Municipal Corpo- rations; Subscriptions by Cities and towns.) Clothing, - - - 33,91 Baggage, ... 33 Carriage of, - - - 91 Coaches, . ... 548 Negligent management, - - 548 932 INDEX. Coal. Carriage of, - Coal cars. Mechanic's lien, Coal mining companies. Right to undermine lands, - Coal oil. Carriage of, - Leakage, ... Coal roads, Lateral railways. Code system of pleading and practice, PAGE. 103, 104 - 519 - 211 . 94 500 576, 586 127 Collateral Secckities, Municipal bonds, - - 137, 670 State aid to railways, - - 730 Trust properhr, ... 707 Collateral proceedings, ... 318 Forfeiture, - • - - 313 Collisions, 896 Burden of proof, - - - 482 Carriages, . - - - 61 Cattle, .... 110,483 liability of owner, . - 110 Ferries, - - - 801 Injuries to employ§s, 396 Street railways, " - - 652, 655 Teams, 488 Vessels, - . - 773,774 Colored persons. Expulsion frcim street cars, - - 658 Ladies car, . - 495 Passengers, . - - 566, 658 Commerce, ..... 136 Constitutional law, ... 136 Commissioner of land office, - . 516 Commissioners. Bridges, - . . - 57 Connecting lines, - . 131, 132 Location of railways, - . 513 Sale of mortgaged property, - 538 Stock subscriptions, - 661, 666, 695, 699, 711, 712 Commissions, - - - 61, 599 Common law, - - . 310, 466 (See injuries to domestic animals.) Fires, . 310 Injuries causing death. . 466 Commons, ... - 230 Eminent domain. . - 280 Commonwealth, . . 274, 593 Party to action, . 274 Process, . 593 Commutation tickets. . - 759 Comparative negligence, - . 137, 548 (See Negligence.) Fires, - . - 306 Injuries to domestic animals, - 344 Injuries to passengers, . 413, 431 Injuries to persons on the track, 458, 460 Team stalled on track. - 477 Compensation, - 127 Agents, - 12 Clerk, - 137 Directors, 127, 179 Free pass for life, - 180 Master in cliancery, . - 519 Stock subscriptions, - 660, 673 Competing Lines, - 128 Eminent domain, - 311 Compromise. Contractors, Offer to compromise. Powers of corporation, Subscriptions by cities and towns, Subscriptions by counties, - Concurrent negligence, Condemnation of land (See Eminent Domain). Conditional Sale, Railway iron, - Conditional stock subscriptions, Damages for breach, - Estoppel, Evidence, Fraud, - Impossible conditions, Individuals, . Location of road. Parol, - Place of expending money. Precedent conditions. Time, Void conditions. Conditions of deeds, Conductor, Duties, - . ' Injuries to employ§s, Money in hands of, . Process served upon, . Profits by sale of tickets, Confederate Money, - Bonds, ... Contracts, Hiring slaves, - Payment, Statute, Confederate soldiers. Injuries to passengers, Confession, Of cause of action, Confessions, Embezzlement, Confirmation of invalid sale. Confiscation, Revenue cases. War of 1861, - Conflict of jurisdiction, . Connecting Lines, Abandonment, Advertisement, Agent's powers. PAGE. - 180 388 - 164 - 673 . 689 - 549 Carnage of merchandise, bill of lading, contract, damages, delays, evidence, fire, instructions of owner, intermediate carriers, joint liability, marks on goods, rates. 128, 612 - 129 669, 670, 683, 684, 701 696 - 696 696 606 - 697 695, 696 697, 698 701 701 - 683 697, 698 703 - 161 - 128 - 128 - 385 - 22 590 128 - 128 - 129 - 138 - 128 128. 129 139 - 439 439 129 139 189 - 189 538 139 129 - 139 - 488 - 129 - 139 - 85 - 130 35, 36, 37, 38, 39 68, 69, 93, 139 - 85 - 130 107. 130 - 70 - 71 - 84 - 71 70 - 71 - 71 INDEX. 933 CoNNKCTiNO Lines — core. PAGE. CONSOMDATION — Mn. PAGE. streetage, - 72 Suits pending before consolidation. 136 teamster, - 86 Taxation, . 750 transportation companies - 72 Consolidation of causes, - 16C waybill, when liability attaches, 133 - 73 Conspiracy — evrdence, - - 41 when liability ends. - 73 Constable, - 136 Charter, - 68 Bond, - 136 Collisions, 435,436 Service, 136 Commissioners, - 131 Contract, 68,69 Constitutional Law, . 136 Crossings, 132 Amendments by implication, 136 Custom, - - 69 Bridges, . . 136 Equity, - - 130 Cattle guards. _ . 110 Future connections, - - 133 Charter, 116, 117 118 ,126 Garnishment, - 318 Commerce, 136 Gauge, - - 132,331 Construction of laws, . 136 -139 Guaranty of bonds, - - 56 Contracts, . 137 Injuries to employgs, - - - 402 Elections, 676, 677 678 ,680 Injuries to passengers. -434,435,436 Eminent domain. 191, 237 266 -369 Injuries to persons on tlie track. - 473 Forfeiture, 121 ,137 Joint liability, 483,484 Injunctions, 137 Location of railway, - 512 Injuries to domestic animals. . 379 Partnership, - - 565 Jury trial. . 214, 493 Presumptions, - 73 Lateral railways. . _ 500 Rates, 133, 596 Legal tender act. . 505 Receipts, - 599 Location of railways, „ 611 Right of connection, - - 132 Mortgage, - • - . _ 138 Rights of carriers, - 73 Municipal aid to railways, 661-664, 675- SetoflE; - - 72 679 680 733 Stage lines. - 435 cities. . 661-664 State railways. - 621 counties, - 675-679 Statutes, 'l.S] , 132, 133 townships. . . 733 Steamboats, 636 Ocean lines, aid to, - . . 136 Street railways, - 131 Organization of corporations, 138 Transportation companies, - 72 Pleading, . . 138 Waybill, 133 Police regulations, . 138 Consequential damages, - 222, 223 Process, - 591 Eminent domain. 233, 233 Quo warranto. - 595 Consideration. Rates, - - 596 Deed, - - 161 Special cases, - - . 138 Failure, 581 State aid to railways, - . 730 Pleading, Principal and surety, - Stock-subscriptiorjs, Consignees, - Bill of lading, - Damages, - 581 State grants, - - 322 - 735 Statute of limitations. . - 508 - 690 - 94 Stock and stockholders. Street railways. ■ 138 720 648 - 94 Taxation, 737,741,743, 743,'751 755 756 - 94 Telegraph lines. - - 758 Consignors, - - 13 Venue, - - - 771 As agent of consignee. - 13 Veto, - - " 189 Consolidation, - - 133 Construction. (See Contracts.) Deeds, 161 Bonds, - - - - 133 Contract, - 133 Constbuction of Railways, - - 139 Effect, - - 134 Abutments, . 142 Eminent Domain, - 333 Books of contractor, - . 142 Estoppel, - 134 Contract, - 49, 141, 142 151 170 Injuries to domestic animals. 380, 381 Directors, . 180 Judgment against consolidated com- Domestic animals, injuries to. . 378 panies. 134 Embankments, . 144 Lease, - . 501 Engineer as arbitrator. 189 -143 Mortgage, - 134 Excavations, - - 144 Patent rights, - - 567 Extra work, - 144 147 Pleading, - 185 Forfeiture by contractor -■ 145 Power to consolidate, - 135 Highways, • 145 Process, - 591 Laborers, 659 660 Record, - 134 injuries to. - 145 Special cases, ■ - 135 statutes. . 146 Stock and stock subscriptions. 627, 633, Mandamus, . 518 710, 730 Mechanic's liens. 519-531 by counties, - . 679, 689 Negligence, - - 148 by individuals, - 710, 730 Payments in stock, - - 146 934 INDEX. CossTBrcTiox OF Railways — con. PAGE. CosTBACTS — can. FAGE. Route, - 147 Land grants, - - 496 Statutes, . - 624 procuring same, - . 496 Street railways, . - 652 Legal tender act, - - 154 Subcontractors, _ 147, 659 Limitations, . - 507 Time of making payments. - 157 Manufacture of property. - - 29 Wharves, , - 781 when title passes. . 29 Construction of statutes, - . 496 Merger, - - 154 Construction trains, , - 440 Misrepresentation, - - 1.54 Injuries to passengers. 440 Modification, - - 143 COSTAGIOTTS DeSEASES, - - - 148 Municipal corporations, pfflcers of corporation. - 545 - 180 Horses, - - 148 director, - . 180 Contemplated organization, . 709, 710 Open account. 154 Stock subscriptions, - 709, 710 Operation of a railway by two com- Contempts, - 334,586 panics, - 154 Continuance, . 148, 149 Organization of new company. - 155 Parol contract of agent, 15 COISTBACTOBS, - 13, 159 Partial delivery of goods by carrier, 106, Attachment, - . - 29 107 Construction of railways. , - 143 Payment in property. - 1.55 Employ^, - 402 Pleading, - 576 injuries to. 384, 386, 402 Pooling earnings, - 151 Estimates, - - 29 Preliminaiy, - - 155 Fires, . 160, 310 Privity, - 155 Garnishment, - 318 Proposals, - 155 Injuries to persons on the track. 472 Public letting. - 1.55 Intoxicating liquors, sale of. 483 Rates, - - 597 Liability of company, - 13 Ratification, - - 156 Negligence, - 160, 549 Release, 143, 156 Personal injuries, - 160 Repair of streets. 649, 6.50 Statute, - 160 Rescission, - 156 Subcontractors, 148, 160 Right of way. 6m Trespass, . - 160 Sales, - - 156 CONTKACTS, - - 149 personal property, real estate. 156 156 (See Construction of Railways; Con- Sleeping cars. - 618 tracts limiting liability.) Specific performance, - 619 Abandonment, . - 149 Stamps, - 13 Acceptance, . - 149 Statute of frauds. - 625 Agent, - . 15, 149 Stock, 146. 157. 628 Arbitration. - . - 49 payment in, taking stock subscripti - 146 Assignment, - - .50 ons. 691, 694, Attachment, - . - 150 695 Charter, - 150 Supply of water. - 158 Consolidation of railway companies, 133 Constitutional law, ... 137 Te egraphic dispatches, Tender, 158, 758 - 158 Construction of cars, . - 151 Term of years. - 159 Construction of railways. 139, 140, 141, Time, - - 159 142.143 151, 157 Ultra vires. - 159 street railways, - 158 Unilateral contracts, - 159 Correspondence, - 152 Use of railway. - 159 Custom, - 152 Wager, - 629 Damages, - 152 Work and labor. . l.'sa Death of party, Delivey of goods, - Dependent contracts, - Engineer as arbitratof. Engineer's acts. Erection of depots, - TlviflpTipp - 152 - 1.52 - 152 , 140, 141 - 153 - 152 Contracts limiting carrier's liability, 53, 62 63. 139 Agency, Bill of lading. Carriage of live stock. Carriage of merchandise. 80, 86, 332, 429 - 62 74,75 62, 67 Excursion trains, Execution of, - - 153 - 153 - 154 Connecting lines. Delay, . Fires 53, 74, 75 - 75 Executory contracts, - Express contracts. Fences, Furnace, contract to build. 153, 613 - 154 298, 299 - 159 Indictment in case of deatl Owner's risk, - Passengers, Rates, - Receipt, Contributory negligence, (See Negligence.) Crossing railway tracks. Fires, - I, 75,86 332 - 76 332, 429 Garnishment, - Illegal contracts. Indemnity, Judicial sale, - Labor, ... - 318 154 - 154 ; - 486 - 152 1 63 - 86 438, 549, 550 451 - 307 INDEX. 935 Contributory Negligence — eon. page. Injuries to domestic animals, 344, 369, 376, 378, 380 Injuries to employes, - - - 397 Injuries to passengers, - 438 Pleading, - . . - 438 Street railways, - 655 Conversion, - 610 Agent, - - 15 Bank notes. - 15 Slaves, - - 616 Conveyances, - 160 Aclinowledgments, - 556 Agency, - 160 Conditions, 161 Consideration, 161 Construction, - - 161 Corporations, - - 165 Covenants, 161, 360 Delivery, - 163 Description, - 163 Estoppel, - 163 Fee simple, - 163 Fences, - 360 Form, - - 163 Husband and wife, - 331 Lease, - - 503 Municipal corporations. - 545 Notice of unrecorded deed. 103 Private way. 588 Reservation, - - 163 Right of way. 163, 606 Specific performance, - 163 Streets, - 039 Corn, - 80 Coroner, 591 Eminent domain, - 311 Sei-vice of process, - 591 Corporate authority. Eminent domain. - 313 Corporate officers, - - 559 COKPORATB POWBKS, - 104 Abuse, • - 104 Collateral issues. 104 Compromise of disputes. - 164 Construction, - - 165 General powers. 164, 105 Misuse, 104 Route, change of. - 104 Steamboats purchased by railway company. . 165, 106 Unauthorized acts. . - 164 Corporate rights, - 639 Stockholders may bring action to preserve corporate rights. - - 639 COKPOKATIONS, . - 164 (See Charter; Election of Corporate Officers ; Federal Courts ; Foreign Corporations ; Municipal Corpora- tions.) De facto, - - - - 164 Domicil, - - . . . 164 Federal courts, - - - 395 Name, ..... 104 Nul tiel, plea of, - - - 580 Pleading, - - - .580 Succession, .... 104 Correspondence, .... 153 Contracts, .... 153 PAGE. Costs, - - . . .166 Agreement, . - . loe Appeal, - . . - 19 Arbitration, - - 34 Arrest of judgment, - . 166 Assessment of damages, 106 Assignment of cause of action, - 106 Consolidation of causes, - . 166 Demurrer, ... igfi Ejectment, - . . - 185 Eminent domain, . - 166, 331 Execution, .... ]g7 Extra allowance, . - 107 Former suit, .... 167 Garnishment, - - - 318,319 Irrelevant testimony, - - 167 Jurisdiction, - . . 488 More than one defendant, - 107 Mortgage, - . - .107 New trial, - . . - 167 Offer of judgment, . . 167 Reference, . . . 167 Security for costs, - - .167 Settlement, - - .168 Sheriff's fees, ... 168 Stay of proceedings, ... 168 Tender, . . . - 168 Witnesses, .... 16S Cotton, . . - - 80, 91, 103 Weight and measurement, - 103 COTOfTERFEITING, . - - .168 Railway tickets, - - . 168 County. (See Subscriptions by Counties.) ~ - - 586 340, 341 363 . 386 Countjr courts. Injunctions, - County lines. Coupling cars. Injuries to employes, ■ Coupons. Attachment of, Bonds, Guaranty, Limitations, . Mortgage, Pledge, Tickets, COUKT, Adjournment, Covenant, - Breach, Deeds, - Dependent, Fences, Pleading, - 54 54 . 54 - 508 538 - .585 - 759 . 169 . 169 26 - 26 - 161 - 161 360, 376 576 Right of way as an incumbrance, 608 Credit Mobilier, - . 743 Cbeditoh's Bill, ... 169 Decree, - - - - 109 Lien, 169 Limitations, - - - 510 Stockholders, ... 169 Subscriptions to stock, - - 510 Supplemental proceedings. - - 169 Creditors of corporation, - - 737, 738 Rights against stockholders, - 727, 728 Criminal law. (See Highways; Indict- ment; Injuries to Passengers.) Larceny of tickets, . - - 499 936 INDEX. Criminal Law — (xm. page. Murder, .... 547 Obstructing track, ... 559 Crops 343 Damages to, - - - - 348 Crossbill, 586 Crossings. (See Private Ways and Cross- ings.) Crossing of two railways, - 133, 335 Eminent domain, - 233, 234, 253 Injunction, .... 335 Jurisdiction, .... 488 Right of way, - - 607 Street railways, ... 653 Streets, - - - - 639 Culverts. (See Bridges.) Injuries to domestic animals, . 374 Injuries ti> passengers, - - 404 Obstructions, .... 169 Personal injuries, - - 404, 454 Bight of way, - . 607 Streets, - . . - 640 Custom. (See Usage.) Carriage of merchandise, - 63, 104 Connecting lines, • - > 69 Contract, .... 152 Delivery of goods, - - 107 Evidence, - . 279 Cuts and embankments, - . - 607 D. DAUAass, - Abandonment of railway Appeal, Arbitration, - 170, 253 9 - 17 - 23 „-oc,-o-, - - 33 Boats, . . . . - 53 Change of time of departure of trains, .... 763 Cliildren, - . 170,429,468,563 Churches, .... 126 Consequential, . . 323 Construction of railways, . . 170 Contracts, - 152, 157, 158, 173 Covenants, .... 161 Crops, - - - . - 343 Death, 170, 399, 425, 436, 437, 438, 444, 468, Ditches, - . . 184 Double damages, - - 170, 343 Eminent domain, . 316, 219, 220, 333 depot grounds, ... 253 Excessive, - - 171,554,604 Exemplary, - 173, 353, 437, 438, 468 assault, .... 415 Expulsion of passengers, - . 419 Fences, . . 235,226 Highways, - . . .325 Horses, .... 172 Injunctions, .... 3,38 Injuries to passengers, . 429, 439 Injuries to persons on railway tracks, 468 lusufQcient, . . . 173 Interest, . . 83, 173 Limitations, .... 508 Lost property, . . 174 time spent in search, . 174 Measure of damages, . 83, 84, 130 Neglect of injured party, . . 550 Nuisance, - . . -557 tf AGES — am. PAGE. Opinions of witnesses. - 438 Parent and child. - 5<}2 Patent rights, - . 568 Partial loss, - - 84 Personal injuries, - 170, 173, 414, 468 pain, - - - - 468 Pleading, - - - - 83 Profits, - - - 178,174 Stock subscriptions; breach of con- dition, - - - - 696 Streets used for railway, - 246 Torts, 174 Trespass, .... 764 Value, 84 Water, .... 174, 730 Weather, - - - - 8:^ Wife, ... - 170 Deaf Persons, - 473 Injuries to persons on the track, - 473 Death. (See Damages ; Federal Courts ; Husband and Wife ; Injuries Caus- ing Death; Injuries to Employes; Injuries to Passengers; Injuries to Persons Generally ; Injuries to Persons on the Track.) Childi-en, - - - 170 Contracts ; death of party, . 152 Damages, - - 170 Husband and wife, - - 331 Indictment, .... 333 Life insurance, ... 431 Limitations, . - - .508 Negligence, ... 550 presumption of care, 550 Pleading, - . . 573 Declarations. (See Evidence.) As evidence, - . 180, 379 Decree. (See Mortgage.) Appeal, - - 17 Creditor's bill, - 169 Injunction, . . . 341 Dedicatioh, - - . 174 Highway, - . 324 Squares, - - 174, 175 Streets, - 243, 640, 641 Deed of tnist. (See trust deed.) De facto corporations, . 728, 739 Stock subscriptions, - 728, 729 De facto officers, - - 180, 560 Subscriptions by cities and towns, 674 Defalcations, . . 175 Official bonds, . . 175 Depatjlt, - Appeal, Dismissal, Judgment, Pleading, - 17,175,573 17 - 175 333 175 Defective roadway and machinery, (See Carriage of Merchandise; In- juries U) Employes; Injuries to Passengers.) Ballasting, . . . .403 Bridges, . 406, 4(^9 Car brakes, .... 459 Fires, ... . gQ-i Injuries to employgs, - - 386, 390 Injuries to passengers, 408, 455, 436, 4ti8 Injuries to persons on the track, 469, 470 Platform, - . . , 4^0 INDEX. 937 Defective Roadway, etc. — cns. individuals, 697, 698, 706, 707, 714, 730 municipal aid. . 673, 683 Terminus, _ 513, 706 change, - . - 706 Watercourses, - . - 513 Locomotives. Attachment, - . - 30 Explosions, . - 551 Use near turnpikes. . - 770 Loss of baggage. (See Baggage.) Lost bonds, - - . 544 Lost Goops, .' - 505 Rights of finder, . - 514 Lost writ, - . - 593 Lumber. Carriage of, - - - 83 M. Machinery. Carriage of, - - - - 80 Defective, ... 389 Injuries to employes, - - ,389 Mortgage, .... 525 Machinist. Injuries to employes, - - 387 Malicious Mischief, . - 514 Malicious Prosecution, - . 514 Mandamus, .... 514 Amendment of writ, - - - 514 Bonds of counties, . - - 688 Bridges, - - - 58 Consolidation of corporations, 135 Contempt, .... 5l5 Elevators, ... - 189 Eminent domain, - - 516 Federal courts, - - - 515 Governor of a state, - - - 515 Mandamus — con. page. Highways, . . - 515 Injunction, - 515 Judgments against municipal cor- porations, - - - 515 Land grants. . - 510 Municipal corporations, 516 , 517, 688 Operation of railways, . - 517 State loans. . - 731 Transfer of stock. - - 518 Mandate, . _ . 518 Of supreme court. - 518 Manufaotujuing Companies, 518 Mail catcher. Collision with employe. . 393, 394 Maps, - . 287 Marine insurance, - . - 482 Marine railways, . . . 518 Maritime lien. Bridges, . - 58 Marks, . - 518 Carriage of goods, '!'l, 86, 94, 95 Market price. 64, 287 Married women. (See Husband and Wife.) Baggage, 33,42 Eminent domain. - 197 Evidence, . - 519 Master and Servant, - . . 519 (See Injuries to Employes.) Master in Chancery, . - 519 Pees, - , 519 Masonic corporations. . - 46 Materials taken to build railway. - 231 Mechanics' Liens, - . 519 Medical experts, . - - 283 Medical Services, . . 531 Damages, 446 Liability of railway company in cases of personal injuries ) " 531 Meetings of directors. - 181 Menrbership of corporation, - 700 Merchandise, . 33,34 (See Baggage ; Carriage of Merchan- rlicp \ ULoCJ Merge'r of contract. _ - 154 Mills and mill power, 232 521, 779 Bridges, - . 58 Eminent domain. . 233 Mines, . 334, 530 Mechanic's liens, . - 520 Minors. (See Parent and Child.) Eminent domain. . . 213 Guardian and ward. . . 332 Parties to actions. - . 564 Personal injuries, . 387, 403, 437, 439 Pleading, . 573 Misapplication of funds, - . - 181 Misdelivery, . 107, 108 Misjoinder, 438, 564, 578 Misnomer, . 522, 578 Appeal, . - 523 Bonds, . - 670 Stock subscriptions, - - . 691 950 INDEX. PAGE. Misrepresentation. - . - - 154 Mistakes, - . - 86 Limitations, - - - 509 Payments, - - - 569 Stock subscriptions, - 691,693,705 Mob. Injuries to passengers, - - 441 Money. (See Baggage ; Carriage of Merclian- dise.) Baggage, - - - - 34 Burned with body of passenger, - 439 - 122, 311, 213, 523 Monopolies, Elevators, Express companies, Kates, - Moktga6:b, - . . . Agency, Appeals, Asiignment and negotiability. Attachment, - Attorney fees, - 188 - 395 - 598 - 533 - 13 538 - 528 80, 531 - 543 Bonds, - - 291, 523, 534, 544, 545 Charter, - - - - 524 ChaUeU, ... 527 Commissioner appointed, - 538 Consolidation, - - 134 Constitutional law, - - 138, 540 Conversion, ... 553 Costs, 167 Coupons and interest, - 508, 538, 533 Division of railways, - . - 543 Eminent domain, - 360, 361, 543 Escrow, - - - 543 Exchange of bonds, - - - 543 Foreclosure, - 138, 385, 533, 544, 783 Fraud, - - - 534, 539 Form and construction, - - 534 IFutwre acquisitions of property, 535 Guaranty, .... 533 Income, . - 331, 543, 544 Injunctions, - . 336, 531, 541 Interest, 18, 538, 529, 530, 531, 534, 543 Internal revenue, ... 544 Land not used for railway purposes, 525 Lease, - . 338,339,503,541 Lien of judgment, . . 535 Limitations, - - . 308, 539 Lost bond, . . . 544 Machinery, .... 525 Municipal corporations, . 674, 688 Place of payment, . . . 529 Pleading, . . 536, 537 Pledge, . . .553 . Power to execute mortgages, - ' - 522 Ratification by statute, . 534 Keceiver, . . 491,531,537,541 Beeor is, notice and priority, - 533, 531 Redemption, - . 537, 539, 603 Release, ... 530 Road situated in two states, . 539 Sales, . . . 538, 540 reorganization, . . 539 Seal, .... 544 Signature, . . . .535 State liens, . . . 544, 545 Stock subscriptions, - . .692 Subrogation, .... 545 Taxation, .... 545 MOETGAGE — con. PAGE. Trover, . . 526 Trust, - . .768 deed, . . 769 Trustees, - . - .540 Usurj', .... 531, 770 Motions, ... 334, 494 (See New Trial.) Injunction, - - - 334 Mount Washington Railway - 191 Municipal bonds. (See Subscriptions by Cities and Towns; Subscriptions by Counties.) Collaterals, ... 127 Pleading, . . . '. 583 Suit in federal courts, - 396 Municipal Cokpobations, . - 545 (See Federal Courts ; Highways ; In- juries to Persons on the Track; Sewers; Supscriptions by Cities and Towns; Subscriptions by Counties; Wharves) Bonds, - . . . - 55 guaranty, - - 53,56 By-laws, ... 545, 540 Charter, . . 545, 546 Contracts, ... 545 Conveyance of land to railway com- pany, - - . 545 Judgments, - - . ' - 515 Mandamus, . . . 515-517 Pleading, ... 540 Sewerage, .... 615 Street railways, - . - 647 Streets, . . .323, 546 speed of trains, ... 546 Wharves, ... TOl MnRDKB, ..... 547 Breaking into ticket office, - . 547 Navigable rivers, . (See Watercourses.) Bridges, Location of railways, 57 57 513 Navigation, .... 547 Nuisance, .... 553 Piles 547 Rivers, - . . . . 773 Negligence, .... 547 Accident insurance, . . . 483 Agreed statement of facts, . . 547 By whom determined, 41 4, 459, 463, 547, 548 Carriage of live stock, . . 67 Carriage of merchandise, - . gg contracts limiting liability, . 76 Children, . . 463, 464, 548 Comparative, - . . 453, 548 Construction of building, . 160 Contributory, 397, 447, 448, 458, 466, 530 Employes, 137, 148, 383, 383, 384, 397, 550 Evidence, . . . 550 Explosions, .... 551 Pires, . ■ . . . .303 Gross neglect, - . 460, 461, 551 INDEX. 951 KBaMGENCE — eon. PAGE. Inference of care, - . . 471 Injuries to domestic animals, 343, 361, 869, 871, 378 Injuries to passengers, 406, 411, 413, 413, 414, 418, 431, 433 Injuries to persons on the track, 447, 451, 458, 463, 466 Neglect of injured pai-ty after injury, 551 Nonsuit, ... 55ij 555 Parent and cliild, - . 464 Pleading, - - . 551, 579 Presumptions, - . 413, 551 Street railways, . - 655 Streets, - - - 348 Trespassers, - - . 551 Two companies using same track, - 553 Warning of danger, . . . 553 Negotiable paper. (See Bills and Notes; Mortgages ; Municipal Bonds.) Net earnings. Taxation, .... 743 New Promise, .... 553 Reorganization of company, - 553 Newspapers. Evidence, - - . - 387 New Trials, .... 553 Accident and misfortune, - - 553 Appeal, . . .17, 18, 558 Bill of exceptions, ... 553 Eminent domain, . . 306, 553 Excessive damages, ... 554 Motion, ... 19, 554 Nitro glycerine. Explosion, - . . 148 Nonresident corporations, (See Poreign Corporations.) Nonsuit, - - - 551, 555, 784 NoTAKT Public, - - . 556 Ackno-ivledgment, - - - 556 Notice, ..... 556 Appeal, ... 17, 18 Depositions, .... 177 Forclosure of mortgage, - - 535 Protest, . - - .48 Stock subscriptions, - - 700 Title, - . - - 341 . possession, - - .. 556 To agent, . - . - 13 Trust, 76t! Nuisance, - - - - 556 Backwatei*, .... 556 Bridges, - - - .59 Damages, ... - 557 Equity, - - - - 557 Highways, . - 336, 557, 558 Indictment, .... 558 Injunction, .... 343 Lease, ..... 558 Municipal corporations, - 558 Navigation, .... 556 Operation of railway, - - 313 Pleading, .... 558 Quo warranto, - - - 558 Streets, - 348, 339, 557, 558, 649 Venue, - - - - 558 Water, - - - 556, 558 o. Oath of viewers, - Obstkuctino Railway Tracks, Street railway. Obstructing streets and highways, Offer to Compromise, - Officers, . Action to test right to office, - Compensation, De facto, ' - - . Evidence of authority. Powers, Suspension, ... Official Bonds, . Omnibus lines, ... Operation of railways. Cities and towns, ordinances, Contract, Leased lines. Mandamus, Receiver, ... Repairs, Trustees, ... Order for goods, - Orders, .... Demand, Ordinances. Evidence, Speed of trains in cities. Organization of Corporation, page. 318 - 559 - 659 337 648, 644 559 - 559 - 559 137 560 - 560 559, 560 . 561 136, 561 - 651 - 546 . 546 . 154 . 630 517, 518 600 . 601 541, 769 106 . 563 563 . 288 449, 454 117, 138, 155, 563 . 779 Overflow of water. Overissues of stock. (See Stock and Stockholders.) Overruled cases. (See table of cases at end of volume.) Oversetting of street cars, . - 656 Pain. Damages, Parent and Child, . 468 463, 468, 464, 465, 466, 563 - 563 445, 446 - /563 Damages, Death, ... Evidence, • . ^ Injuries to employes, - . - 385 Iniuries to persons on railway tracks, 464, 466 Negligence. of children, - - 548 of parents, - 464, 465, 548 Parks, .... 253 Eminent domain, ... 353 Parol contract of Insurance, . - 483 I'artial loss oY goods, - . 84, 97 Parties to Actions, - - 563 Agents, .... 563 Annulling corporation, - 563 952 INDEX. Pasties to Acnoss — con. Assent of plaintiff, Assigned claim, Attorney, Hnsband and wife, - Injunctions, - Lost goods, Mortgage, Partition, Pabtition, . - - Partition fences, - (See Fences.) Pabtnebship, Assignment of contract, Connecting lines, Evidence, Payment to partner, - Stock subscriptions, - PAGE. - 10 26 - 564 - 331 343,564 - 97 535, 536 565 - 565 - 299 - 565 - 565 - 565 - 281 - 565 710, 711 Passesgebs, - 566 (See Baggage; Damages; Injuries to Employes; Injuries to Passengers; Rates; Street Railways.) Carriage beyond destination. Change of cars. 172, 566 566 - 763 495, 566 - 566 - 495 505, 567 - 567 - 567 759-763 Change of time. Colored persons. Delay, - Ladies' car. Payment of fare. Pleading, Steamboat lines. Tickets, Passenger fares, 505, 567, 742 Taxation, - - - - 742 Passenger hoase. Eminent domain, - 2o2 Passenger train. Carriage of freight, - - - 97 Passing from car to car, - 441, 442 Pasturage. (See Eminent Domain; In- juries to Domestic Animals.) Construction of railwaj-s, . . 381 Patents, ... 567 Assignment, .... 567 Consolidation of railways, - 567 Evidence, - 283, 284, 568 Extension, .... 568 Jurisdiction, .... 568 License, . . . 368 Special cases, .... 569 Pavements. Street railways, . 650 Patmest, - . . . .569 Agency, - . 13, 559 Application, . . . 291, 569 Bonds, ..... 291 Eminent domain, . . 264, 265 Evidence, .... 289 Pare, . . - 441, 567 Garnishment, ... 320 Judicial sales, .... 437 Mistake, . . 109, 599 Partnership, . . 565 Pleading, . . 533 Stock. first installment, - . 711^ 7x2 subscriptions paid in land, 693^ 694 Payment — con. page. Stock — payment in, - 146, 147 Time, . ... 157 PEKAiTEES, .... 570 Charter, . - . - 124 Ferries, ... 301 Illegal votes, . . - 570 Injunction to restrain multiplicity of suits for penalties, . - 570 Injuries to domestic animals, 368, 373 Judgment, - 570 Obstruction to highway, 329 Overchai'ges, .... 598 Pleading, . - . 570 Process, . - 593 Rates of fare, . . . .571 Signals, - . . 571 Stock subscriptions, - - 719 Taxation, - - 737,738,747 Personal injuries. (See Contractors; Dam- ages; Injuries to Employes; Injur- ies to Passengers; Injuries to Per- sons causing Death; Injuries to Persons Generally ; Injuries to Per- sons on the Track ; Municipal Cor- porations; Pleading.) Assignment of cause of action, 27 Evidence, . 288 Federal courts — actions in, - 295 Highways, 330 Husband and wife, . 331 Limitations, 508 Nonsuit, 555 Pleading, . . .573 Slaves, - . 617 Statutes, . 295 Trespassers, - - - 551 Personal liability of stockholders, 631, 635, 636 (See Stock and Stockholders.) Personal property. (See Mortgage.) Husband and wife, - 331 Removal of, - . 228 Sales, . . - 611 Taxation, . 747, 748, 757 Petition. Subscriptions by municipal corpora- ^ tions, - - 667, 668 Physician. (See Medical Services.) Piles. Obstruction to navigation, . . 547 Place of existence of corporation, 119, 124 Place of payment Bonds, . . . - 687 Mortgage, . . 529 Plakkroads, . . 57J Plat. Streets, Platforms. Injuries to passengers. Street cars. Pleading, Abatement, Administrators, Agent's services. Amendments, . Appeal, Arbitration, Assignment, . Assumpsit, 640, 641 406, 409, 411, 657 637 573 9 - 572 574 487, 553, 583, 584 19, 20 - 25 572 - 575 INDEX. 953 Pleading — con. PAGE. Bankruptcy, - 45 Carriage of merchandise, 82, 98, 575 Code system, - 576, 583 Consolidation, 135, 580 Constitutional law. - 138 Corporate existence, - 36 Covenant, - 576 Declarations, etc., 574 bill of discoveiy, - - 49 bills and notes 48, 575 bonds. - 575 Default, - 175 Demurrer, - 30, 555, 582 Draft, - 577 Ejectment, - 186 Eminent domain, 198 , 199, 200, 206, 273, 374, 581 Equity, 577 Estoppel, 376 Evidence, . - 583 Expulsion of passengers, - 418 Federal courts. - 296 Fires, - 89 General principles. - 572 Injunction, 334, 337 Injuries to domestic animals, 355-358, 366, 577 Jurisdiction, - 488, 491 Malicious prosecution. . 514 Mandamus, 515 Misjoinder, - - 578 Mortgage, 536, 537 Municipal bonds. - 686 Municipal corporations, 546, 583 Kame, - - 580 Negligence, - 579 Nuisance, - 558 Nul tiel. 580, 581 OflScial bonds, - 561 Overcharges, - - 598 Parties, 535, 578 Passengers, - 413, 567 Payment, 582 Penalties, - 570 Personal injuries, 396, 401, 407, 413, 425, 438, 446, 447, 465, 467, 469, 474, 573, 654 Pleas and answers, - 467, 551, 580, 583 bonds, ... 580 corporation, - 580 Private carriers, - - - 574 Private ways, - - - 588 Quo warranto, - - 595 Replevin, - - . 574 Seplieation and reply, - 583 Setoff, - - 574 Specific performance, . - 620 Stock subscriptions, 579, 582, 714, 719, 737 renaer, Torts, - -too 574, 763 Trespass, 580, 585, 764 Trover, 767 Trusts, . 768 Variance, . 583 Verdict, . 585 Verification, • - 585 Writ of error, - - 583 PTiTIBGE, . 585 Bonds, - 585 Stock, - - 585 Police regulations, . 138 Pop corn vender. PAGE. Injuries to passengers. - 443 Possession, 186, 537, 556 Post route, - _ 59 Potatoes. Carriage of. . : 93, 93 Poultry. Carriage of, - - - 67, 98 POWDBB, . . . 586 Explosion, 586 Power of sale. . - 539 Powers of corporations. - 164 165, 166 Practice, - 586 Change of venue, . 113 Code system, - . 586 Eminent domain. . 200 Equity, . . 587 Supreme court. . _ - 587 Preferred stock, 636, 637, 719, 733, 730, 754, 755 President of corporation. Election, . . - 187 Powers, . 593 Service of process, - 560 Presumptions. Land grants, - - - 497 Negligence, .... 413 Personal injuries, . . - 434 Principal and agent. (See Agency.) Baggage, . - . - 34 Principal and surety, . . 561, 735 Prisoners of war, - . - 442 Private carriers, , . . . 574 Private Wats and Crossings, . 587 Bridges, . - . 587 Deed, .... 588 Depot, .... 588 Eminent domain, - 234 Farm crossing, . . 588 Injuries to domestic animals, 364, 372 Limitations, . - . 509 Pleading, . 588 Private railway, - - . 234 Proceedings to lay out private road, 589 Statutes, - 589 Process, . 20, 136, 328, 485, 495, 589, 727 Prochein amy, . - .31 (See Attorney ; Pleading.) Profile. Contract, .... 143 Profits. Agent, - . - 14 Damages, . - 173 Taxation, . . .738 Promissory note. (See Bills and Notes.) Proposals. Contract, - . 155 Protest, - - - 46, 48, 69;j Proxy. Corporate election, ... 187 Subscription books, . - . 714 Publication of laws, - . - 594 Public enemy. 443 220 Injuries to passengers. Public house. Damage by railway, . 954 INDEX. PtjBLic Lands, (See Land Grants.) Eminent domain, Land warrant. Watercourses, - Public letting, Public meetings. Stock subscriptions. Public squares, Public works, Purpresture, Q. PAGE. iO, 594 254, 255 - 594 - 610 - 155 - 705 175, 559 - 020 248,249 Questions Peopodnded by the Leqis- LATUKE, - 594 Constitutional law, - - 594 Quieting title, Qui tarn actions, Quorum. Legislature, Quo "Warbahto, - 10 - 570 - 138 - 28, 120, 134, 135, 516, 558, 595 E. 14 Eaft, .... Bails. Conditional sale of, - - - 128 Railway crossings, • 132, 488, 770 Railway bonds. (See Bonds of Railway Companies.) Railway yards. Injuries to cattle, Rate of speed. (See Injuries to Persons on the Track ; Street Railways.) Personal injuries. Street cars, 381 475 654 Rates and Facilities, 596 Bribery, . - 183 Charter, . . - 121 Connecting lines, - 132, 596 Constitutional law, . . 595 Contract, ... 597 Discrimination, 182, 183, 597 Evidence, . . 597 Expulsion of passengers, 430 Extra charges, . . 439 Perry tolls, ... 301 Foreign corporations, . . 597 Injunction, . . .336 Leased lines, . . 504, 597 Local freights, . . 182, 511 Legal tender act, . . 593 Penalty, . . . 571, 593 Pleading, - . . .599 Statutes, ... 598 Street cars, - - . . 659 Tariff — printed, - . .597 Ratification. (See Agency.) ^gent, . . 12^708 Contract, .... 155 Mortgage, - . . .524 Stock subscriptions. by individuals, . . . 708 municipal corporations, 669, 679, 683 townships, . . 734 Real Estate, Foreign corporation. Lake shores. Marine railway. Notice of ownership, - PAGE. - 599 29 495, 496 - 518 556 Powers of corporations to hold lands, 124, 165, 599 Rolling stock, . Taxation, Title, . Real Estate Agent, Receipt, Agency, Connecting lines. Construction, Evidence, ... Limitation of carrier's liability, Limitations, ... 294 740, 755 - 294 599 70, 71, 91, 98, 99, 108 599 80 599 78 509 - 600 17, 600 541, 600 316 - 491 491, 531, 537, 541 . 600 359 441 - 328 Receiteks, Appeals, Appointment, - Fraud cases, - Jurisdiction, . Mortgage, Operation of railways, injuries to cattle, injuries to passengers, obstruction of highway, Reconstkuction of States, - 603 Recordari, . . 603 Recobds and Recokd Bntbies, - 603 Consolidation, . 134 Docket, - . 603 Eminent domain, - 200, 206, 207 Lease, . . 504 Mandamus, . 51 g Mechanic's liens, . . 520 Of corporation, . . 290 Stock, - . . 603, 730 Writ of error, - . . 733 Recording Acts, - . . 603 Records op Corporations, . 603 Recovery of real property, 10 Redemption, . 527, 539, 603 (See Mortgage.) Reference, - - - 25 603 Costs, .... 187 Injunctions, . . 338 Refusal to pay fare. (See Expulsion of Passengers.) Registrj^ laws, . . 603, 734 Regulations of company. Evidence, . . . 291 Rehearing, . . . 503 Release, ..... gQ^ Contract, .... i5g Damages, . .79, 233, 331 Injuries to domestic animals, 361 Personal injuries, - . 604 Right of way, . . . gOS Stock subscriptions, - 689 725 726 Torts, . . . .' 31 INDEX. 955 PAGE. Removal of causes to federal courts, 290-298 Kemoval of track, - Mortgage, Renewal of city bonds, Bkoboanization, Corporation, - Repbal, Cliarter, 544 - 544 - 065 604 539, 552, 604 604 116, 117, 125, 604 Counties' subscription to stock, 682, 683 Land grant. Statute, Taxation, 497 004 - 758 574, 004, 747 - 318 156, 605, 687, 689, 694 605 Replevin, Report of viewers, Rescission, Review, - Bill of, - - 605 Foreclosure, - - 537 Remittitur, • ... 604 Renunciation of stock subscription, 709 Residence of corporate o£a.cers, - 592 Process, - - 593 Resulting trust, - - - 768 Riparian rights, - - 609,610 Riprap, .... I'i6 Right oi- Wat, - - - - 605 (See Conveyance ; Corporate Powers ; Eminent Domain; Fires; Fran- chises; Injunction.) Change of location, - - - 605 Contract, - - 531, 606 specific performance, - 163 Conveyance, - - 606 incumbrance, - 608 Crossings, - 607 Culverts, - - - .607 Ditches, - - - - 607 Drains, - - 607 Fences. - - - - 607 Grant, ... - 096 notice of, - - - - 556 Harbors, .... 608 License, .... 608 Release, .... 606 Sale of, - . . - 135 Title, 009 Rivers, .... 777-780 Bridges, . - - 57 Location of Railway, - 513 Kavigatioh, ... . 513, 547 Roadbed; defect ... 408 Robbery of agent, - . 14 Rolling stock. Is real estate, - . - . 294 Mortgage, ... - 537 Taxation, - - 743,755,750 Route, 56, 125, 147, 164, 313, 511, 610, 669, 707 RiTLES AND Regulations, - . 611 Depot grounds, - - - 178 Employgs, - - - - 403 Passengers, . - - 443, 611 Street railways, . . . 656 Tickets, - - - - 761 Usage, . . . - - 611 Runaway teams, . Runners. Expelled from depot. s. Sale of shares. (See Forfeiture.) Sales, Bill of lading. Constitutional law, Contract, real estate. Corporate property, . Delivery, Personal property, Railway, state railway. Right of way, Statute of frauds. Stock, . page. 654, 056 178, 179 104,: 128,611,1 130, 184, J Salvage, Sample valise. Baggage, Scaffolding, Personal injuries, School fund. Mandamus, Scire facias. Mortgage, Scrip. Interest on stock. - 611 51, 53 594 - 156 156, 626 130 105, 106 012,613 533, 013 622 135 - 025 038, 639, 633, 68U 613 - 35 894 - 394 . 517 - 538 - 634 Seal, . . . 613 Adoption, . . 013 Commissioner, . . . 014 Lease, - . 505 Mortgage, 544 Printed seal, . 614 Records, - ,33 Security foe Costs, - 167 614 SBQUBSTaATION, - 614 Setoff,. 615 Bills and notes. - 48 Damages to goods. set off against freight charges, 73 Garnishment, - . 320 Pleading, - 574 Sewers, - . - 015 Street railways. . . 050 Sheet iron. Damage by rain. . . 106 Sheriff. Deputy, . 016 Sheriff's jury. (See Eminent Domain; Jury) Sheriff's sale. (See Judicial Sale.) Shipping marks, . - - 518 Shortage, - 110 Side tracks. . 616 Construction, . . 157 contract, - . 157 Eminent domain. _ . 313 Personal injuries. - 46C ,475 Warehousemen, . 775 956 IXDEX. PAGE. 81GKALS, - - - 616 Frightened teams, - - 616 Injuries to domestic animals, 353, 363 Injuries to persons on tlie track, 449, 452, 468 Leased lines, - 505 Penalties for omission, - - 571 Signature, - - 48, 525 Slander and libel, ... 506 Slaves, - 12. 44, 128, 616 Personal injuries, - 475, 476, 618 Sleeping Cass, . . . 618 Contract for exclusive riglit, - 618 Sloughs. Navigation, .... 780 Smith's patent, .... 539 Snow storm. Carriage of live stock, . 68 Carriage of goods, - . - 92 Crossing track in storm, 460 Street railways, - - 651 Special charters, - . 749, 750 Specific Pebfobmance, - . .619 Carriage of merchandise, . . 619 Contract for cattle guai-ds, . HO Lease, . . - . 620 Pleading, . . ggO Eight of way contract, . . 609 Splintered rail, - . 469 Spontaneous combustion, - - 89 Specialty. Alteration of, . . . 157 Speed. (See Rate of Speed.) Springs of water, . 185, 337 Stamps, Stock subscriptions, - Starting trains. State aid. Constitutional law, Taxation, State BotrxDASiES, State lands, . States, State liens, . State Railways, . Connecting lines, 13, 620 . 62] - 456 332, 690, 749 323 - 749 487, 621 - 780 . 621 184, 544, 545 621 - 621 - 622 442, 465, 621 - 623 - 622 - 745 561 Liability of state. Personal injuries. Precedence of debts. Sale by governor, Taxation, Station agent, (See Agency; Garnishment; Pro cess.) Station GsotrNDS akd Bctlimngs, 622, 623 Statute of Fkaubs, . . , 525 Statute of limitations, (See Limitations.) Statutes, (See Constitutional Law.) 507 628 Btatutet! — con. page. Act of 1789, . - . 397 Amendments, - 136, 137, 624 Authentication, . . 623 Ctmstruetion, - - . 624 Fraud in passage of statute, - - 314 General principlet, - . 633 Title of act, . - - 634 Statutobt Regulations, - . 626 Stay of proceedings, ... 168 Steamboats, .... 626 Baggage, . . 36,37,40 Contract as to earnings, . 151 Injuries to passengers, . . 443 Purchase by railway company, 165, 166, 723 Steamboat lines, . 443, 567 Steamship lines. Contracts, . 183 Municipal aid, . . 136 Stevens' patent, . . . 559 . 627 - 6-38 - 25 377, 634 30, 630 638 - 181 . 62T Stock and Stockholders, Adion^ by stockholders, Arbitrators, ... Attessments, Attachments, . Bondholders, - Cannot sue for corporation, - Certificates, Charter. amendment, . 114^ 115 number of shares, . 635 Consolidation of corporations, 135, 633 Consolidation of stock, - 627 Contracts, . . 174,289,628 Conversion, . 26,627 Convertible bonds, . 637 Distribution of stock, . . 627 Bividends and interest, 322, 631, 633 f ., , 633, 6.36 failure of agent to pay, 633 Dower, . . . . gg^ Elections, . . - 638, 634 Evidence, . Zi& Execution — levy on stock, . . 294 sale on, . . . -629 Foreign corporations, 633, 636 Forfeiture, - ' rv* Fraud,- . . 6|f nlw°*^!, -• - 628,633 JJ'i^gal and spurHms stock, 630 681 637 Increase of stock, . ' aoo Injunctions, . • . jg^ 340 Misapplication of funds, ' «qo ^•"^^e^-, 587, is Municipal corporations, 187 546 547 Oeerissnes, . 637' 638 Payments in stock, 146, 147, 628, 638 Personal habthij, of stockholders, 138 478 479, 634, 636 ffie-o'fiaw, . - «^'«i double liabUity, . . gss execution, . cqJ Pledge, - . : ■ fS. Preferred stock, . ^ Rights of stocklwlders, . ' ao? Route. - u«i change of, . . . jg^ INDEX. 957 Stock and Stockholders — eon. page. Sale, - 157, 158, 174, 639, 633 administrator's sale, 629 delivery, - - . - 629 fraud, - . 3le Scrip, ... 634 Subscriptions by individuals, . 689 Subscriptions by states, 505, 730-733 Taxation, - 740, 741, 756 Transfer and assignments, - 629 books, - - 15,187 mandamus, ... 518 Transfer of corporate property, - . 763 Trustees, - . - .769 Usury, . . 635, 636 Wagering contract, - - 639 Wills, - . - .783 Stock subscriptions. (See Stock and Stockholders ; Subscriptions by In- dividuals.) Stoppage in transitu, - - ■ . €39 Stoppage of trains, 405, 406, 407 Sudden stoppage, . 443 Stopping-ofF tickets, . - 761 Storage charges, ■ . - 30 Streets, - - - 639 (See Eminent Domain ; Street Rail- ways.) Bridge over railway, - 639 Change of grade, - - - 243 Conveyances, . - 639, 640 Crossings, - - 454, 639 personal injuries, 447-453 signals, - 457 Culverts, - . 59, 640 Damages by railway to adjoining lot owners, - - 243-347 Dedication, - 343, 640 Depot grounds, - 252 Drainage, .... 642 Easements, 640 Ejectment, - - .242 Eminent domain, 240, 341, 343, 244, 245, 246, 347, 348, 644 taking railway property, 333 Grant to railway company; 642 Injunction to prevent obstruction, 337, 339, 341 Injuries to domestic animals, 350 Injuries to passengers, . 443 Injuries to persons on railway track, 447- 455, 457, 469 Improvements, - 642, 643 License to build railway, 243 Municipal corporations, - 545 Nuisance, - - 557 Plat, . - - 640, 641 Proceedings to establish streets, 644 Signals, - - 457 Tunneling under, . 246 Turnout, - - 644 Use of steam, - - - 558, 736 Streetage, - . . 73 Street Railways, - - 644 Bridges, - - 60,649 Carriage of baggage and fretgM, - 651 Charter, - - 136, 645 Children — injuries to, 653, 653, 654, 657 Children not paying fare, . 658 Collisions, .... 653 Street Railways — con. paqe. Colored passengers, . - 658 Connecting lines, - 131 Constitutional law, - - 648 Construction of sti-eet railways, 151, 158, 653 Defective construction of cars, 653, 655 Donations to aid street railway com- panies, - - - 659 Eminent domain, - 648 adjoining lot owners, 648 Evidence, - 653 Expulsion of passengers, 419, 658 colored passengers, 658 Extension, 646 Forfeiture, . 646 Grants, - 645 conflicting, - 645 exclusive rights, - 64), 646 Gutters, ■ - 649 Injunction to prevent construction, 337 Injuries to horses, - 659 Injuries to passengers, 419, 654 Injuries to persons on the track, 476, 652, 654 Insolvency, - 478 Joint occupancy of streets, 651 Joint use of tracks, 649 Liability for bite of dog, 184 License, * 646 Mechanic's liens, - 530 Municipal corporations, 647, 649 Negligence, contributory, - 653 Nuisance, - • 649 Obstruction of track, 659 Omnibus lines, - 651 Ordinances, - - - 646, 647 Public buildings erected on track, 659 Railway crossing, 476 Rate of speed, 654 Jtates of fare, 659 Repairs, - 649 Rules and regulations, . 656 Runaway teams, 654, 656 Streets — repairs and improvements, 649 pavements, - - 650 sewers, - - 650, 651 snow, - 651 widening, . 651 Taxation, - - 740, 756 Transfer of railway, - . .659 Turnpike, - - 649 Villages, - - 647 "Willful act of driver, . 657 Streams. (See Watercourses.) Subcontractors, - 147, 530, 659, 660 Subrogation, ■ 545, 660 Subscriptions to Stock, 660 (See Subscriptions by Cities and Towns; Subscriptions by Coun- ties; Subscriptions by Individuals; Subscriptions by Railway Com. panics; Subscriptions by States; Subscriptions by Townships.) Compensation for securing subscrip- tions, - 66C 958 INDEX. PAGE. StnBBCRIPTIOSS BY CiTIES AND ToWSS, 660 Authority to tubscribe, - . 661 Bonds, - - 670 collateral security, - - 670 discount, - - 664 guaranty, - - 55, 670 renewal, ... 665 Certiorari, - - 666 Change of decisions of supreme court, 661 Charter, - - - - 673 Gonditumal subseriptiong, - - 669 Consent ot city, - - 661 Constitutional law, - 139, 661-^64 De facto officers, - 674 Estoppel, - . 674 Federal courts, - - 296 Judgment — res adjudicata, - - 674 Legalizing acts, - 664, 665, 670 Location ^ railway, ■ 670, 673 road between two other cities, 073 Jffiortgage upon land of city, - - 674 Proceedings, - ' - 666 commissioner, - 661, 666 elections, - - 666, 667 irregularities, - - 667 petition, 667, 668 Proceedings to prevent issuance of bonds, . 669 injunction, . 669 RatLBcation, - . . . 669 Renewal of bonds, - . . 665 Taxation, . . 673 SUBSCKIPTIOItS BY CODISTIES, - - 674 Authority to sitbscribe, - . 674 Bends, - 674, 684 coupons, . 684 discount, . . 684 guaranty, - - - 55, 685 mterest, - . 685 negotiability, - . 685-687 place of payment, . . 687 Bonus, - . . . -689 Change of ruling of supreme court, 674 Charter, . 675, 687 Compromise, - - . 689 Conditional subscriptions, 510, 683, 689 route, . - - 684 time, ... 084 Consent of county, . . ($75 Consolidation of railway company, 679 Constitutional law, 675, 676, 677, 678, 679 Creditor's bill, - . 5^0 Estoppel, . . 689 Fraud, 689 Guaranty, - - - 085 Injunction, . . . 688 Legalizing acts, - . - 679 Mandamus, - . . 517,688 failure to levy tax, - . 322 habeas corpus, ... 322 Proceedings, . . . 679 elections, 675, 676, 679, 680, 681, 682 Ratification, . 679, 683 Repeal of law, . . 683, 684 Rescission, - . . 687 Statutory requirements, . 683 Bwamp lands, ... 688 mortgage,- . . 688 Taxation, . 688,758 Illegal tax, . . .683 Township aid, .... 734 PAGE. StnSSCBIPTIONS BY ISDIVrDUALS, - 689 (See Stock and S^ockliolders.) Abandonment of undertaking, - 725 Action against stockholders, - 737 Agency, - 13, 695, 708 Appeal, - - . - 20 Apportionment of stock, 711 Articles of association, - - 728 Assessments, - 716, 723, 727 Assignment for benefit of creditors, 2S Assignment of stock, - 715 AttacJimcnt, - - 7^ Bills and notes, . - 70"i, 713 Books, - - 692, 714 By-laws, . . - 'rl'i Certificates, . . . . 715 Cliarter, 117, 123, 694, 695, 704, 718, liO acceptance, - - - 135 Commissiouer.s, - 695, 711 Conditional subscriptions, - 133, 124, C05 -704,70!! Consideration, - . - . 690 Consolidation, - - 710, 7-^0 Constitutional law, . 730 Construction of contract, 157, 694, 700 joint contract, - - 691 second subscription limiting first, 703 recitals, - 693 to take and fill shares, - 691 Creditor's bill, - 1G9 De facto corporations, - 738, 739 Demand, . 693 Escrow, . - . . 695 Estoppel, 696, 709, 713, 734, 735, 728 Ecidence, 163, 291, 699, 704, 707, 713 Extension of line, . 7o7 Forfeiture, - 723 Eorm of subscription. - . . 690 Vravd, 698, 7*4, 7t5, 711, 735 Guaranty against loss, . 697 Increase of stock, . . 723 Injunction, . . 707 Insolvency of com pan'/, . - 729 Interest, " 697, 707 Judgment, 710 734 Land taken in payment, . 163^ 725 Lease, . . 729 Length of road, . . 7()7 Limitations, . . 509, 510, 726 Location, . 697, 698, 706, 730 depot, ... 714 Misnomer, . . . - 691 Mistake, - 691, 693, 705 Mortgage, - . 69.3 Notice before bringing suit, 700 Number of shares fixed by charter, 720 Organization contemplated, ' . 709 Partnership, - . I 710 Payable in bonds, - . - 13 Payment in property, 124, 162,693-694, 735 Payment of first installment, - 117 711 Pleading - 57U, 583, 713, 714, 723, 727 Preferred stock, . . 733 730 Proxy,. . _'-j4 Public meeting, 705 705 stock subscribed at, . 705 .;yg notification, . .' -qo Receiver, . 602 "730 Reduction of number of shares, . ' 7o.> Release, - . 735 '~~>tt Renunciation of subscriptions, . ' 709 INDEX. 959 Subscriptions by Individuals -~ con. page. Representations made to induce sub- scriptions, .... 704 Rescission, . . - 694 Rights of creditors, . - .737 Route, . . - - 707 SetoflF, 615 Special cases, .... 728 Stamps, - - - - 621 State aid, . - . .690 Statute, - - .692 Steamboats purchased by railway company, Subscriptions payable in property, - SUBSCBIPTIONS BY RAILWAY COMPANIES, 723 692 730 . 730 . 732 . 732 . 733 - 733 733, 734 - 734 Subscriptions by States, Subscriptions by Townships, Bonds, '- Conditional, . Constitutional law, - Elections. Ratification, - "Where county has already subscribed, 734 Sunday Laws, Carriage of goods, Injunction, ' Injuries to passengers, Superintendent. Appointment of agent. Garnishment, - Supersedeas, Appeal, 1 Injunctions, - Writ of error, . Supreme court. Mandamus, . Mandate, Practice, Process, Quo warranto. Surety, Appeal bond, . Usury, ^ . . Surface Water, . Damages, Eminent domain, Limitations, Streets, ,- Surgical examination. Surveys, Constitutional law. Filing, - Locasion, Suspension of officers. Swamp lands. Aid of railways. Land grants. Switch. Injuries to omploySs, Injuries to passengers. Streets, Switchmen, negligence. Turn out, Tanner's patent. . 734 - 734 . 735 - 13 - 321 . 735 - 21 . 342 - 783 - 517 - 518 587, '783 . 593 - 596 - 735 . 21 . 771 . 736 - 228 . 250 - 510 . 246 - 438 - 736 . 736 - 611, - 210 182, 561 . 688 - 498 894, 395 411, 443 . 250 383, 384 - 769 T. page. . 569 Taxation, . - - 73G (See Certiorari ; Cliarter ; Injunction ; Land Grant; Mortgage.) Appeals, - . - .736 Assessments, - ' - - - 736 Benefits, - . - 736 Bond tax, - . . 738, 744 Branch roads, - - 750 ■Charter, - - - 126 Collection of tax, - 746, 757 distress, ... 746 sales, - 747 Consolidation of railways, - 750, 751 Constitutional law, 737, 741, 742, 743, 751, 753, 755, 756 Depot grounds, - 745, ,752, 755 Different kinds of tax, - 738 Dividend tax, - 743, 744 Equalization, 111, 112, 757 Evidence, - - - 737 JSxemption, - - ■ 750 Perries, . - - 756 Foreign corporations, - 754 Franchises, . . . 752 Freight tax, - - 738,739,741,743 General taxes, - - 745' Gross receipts, 741, 744 Income, .... 745 Indian reservation, . . - 757 Injunction, 338, 688 Interest, - - 744 Internal revenue, - - 103, 744 Jurisdiction, .... 757 Land grants, - 498, 748 Levy, .... 68i» License, ■ - - - 757 Mandamus, . - 332,515,516,517 Mortgage, - - 757 Mortgage to United States, - 753 Municipal corporations, - . 756. Net earnings, . - - 742 Nonresidents, - - 756, 75T Over valuation, . . 737 Passenger fares, - - 743 Payment under protest, - - 747 Penalties, - • 737, 747 Personal property, 747, 748, 757 Plac^ of Taxation, 740, 743, 748 Preferred stock, - - 754 Profits, - - - 738 Rate, - - 688,689,755 Real estate, 746, 752, 755, 756 Recovery of tax erroneously paid, 757 Repairs, - - - '''45 Repeal of law, . 758 Replevin, . - - - '747 Road tax, - - -746 Rolling stock, - 743, 755, 756 Special eliarters, - 749 Special tax, ... 758 State railways, - „,„ „' Zfo Stock, - - 740,756,758 Street railways, - 740,744,756 License, - ■ - '''56 Subscriptions by municipal corpora- tions, - 6'''3. 688, 689 INDEX. Taxation — con. page. Tolls, - ■ - - 742, 743 Warrant, - 748 Whisky, - - - 103 Tax sales, - - - 747 Teamster, - 16, 86, 109 Agency, - - 16 Delivery of goods to carrier, - 109 Telegraphic Dispatches, - . 758 Contract, - 158, 758 Telegbaph Ldies, - - 758 Tekasts nf Common, - - 11, 758 Tender, - 758 Contract price of bonds, 158, 159 Costs, - , - - 168 Damages to live stock, - 353 Eminent domain, - 208 Termintjs, - - 44, 706, 758 Texas Cattle Law, - 759 Theft. (See Baggage ; Carriage of Mer- chandise.) Warehousemen, - 775, 776 Ticket Agent, - - 759 Baggage, ... 35 Ticket oflSce. Bra-glaiy, - . . . 547 Tickets, ... 759 37, 44 - 759 - 759 44, 168, 760, 761 432, 759 422, 423, 762 759 420, 421, 422, 423 Extra charges, 759, 760 Larceny, ... 499 Profits made by agents on sale, 128 Bates of fare, - ~ - 420 Stopping off, . 422 Surrender of, - . 761, 763 Checks, Commutation, - Connecting lines. Coupons, Date, - Excursion, Expulsion of passengers. Time, Tide mill, .... Tide water. Charter, Injunction to protect shore righte, Ties. Evidence of quality, . Timber. Eminent domain, Trespass, 762 233 126 235 765 Time, - . 762 Change, . . .762 Contract, .... 159 Mistake in operating train, . 398 Stock. calls for installments, . . 723 conditional subscription, 684, 697, 698 Tickets, . - - 762 Time Table, Title, Bond for deed. - 763 - 768 - 259 Title — con. Ejectment, Eminent domain, Evidence, Goods in transit. Highway, Landlord and tenant. Notice, - possession. Bight of way, - Vendor's lien, - Tolls, Bridges, Sequestration, - Taxation, Wharves, Tools. As baggage, - PAGE. 186 - 263 229, 763 99 330 499 341 - 262 609 - 771 598, 599 60 - 614 742, 743 781 - 44 TOETS, . . - - 763 Admiralty, - - . .10 Damages, . - 174 Employes,' - . - 519,574 Joint torts, . . - 763 Lessor and lessee, - - 502 Limitations, . - 507 Pleading, - . 574, 763 Belease, . 31 Venue, - . 773 Town lots. Eminent domain. Mortgage, Town meeting. Subscriptions by cities and towns. Town plat, - Trackmaster. Process served on, 593 Track repairer, . . 387 Personal injuries, - . 387 Transcripts, . . 21, 23 Transfer books, - . 15, 187, 630, 631 Transfer of Corporate Property, . 763 Fraud, - . 316 Gift, . 763 Transfer of corporate rights, - - 486 Transfer of stock, 518, 629, 631 Transportation companies, - 73 TREAStTRER, 224, 243-247 538 667 287 Trespass, 190, 763 764 (See Injuries to Domestic Animals.) Abatement, . 9, 10 Administration, 272, 273 Blasting rocks, 764 Color of title, - - . . 754 Construction of railway, 329 interference, - . 329 Damages, . 754 Ejectment, - . . 272 Eminent domain, 764, 765 Engineer's order, . ' igo Injunction, . . 273 Joint trespasses, . . 754 Jurisdiction, - . 492 Landlord and tenant, - . 499 Personal injuries. passengers, . . 443 persons on tlie track, 476 to trespassers, 551 Pleading, 576, 580, 585. 764 INDEX. 961 Trespass — con. page. Subcontractors, - - - 160 Venue, .... 763 Wharves, - . . - 783 "Willful acts, - . . .765 Trestle-work, . . 390 Injuries to employes, . . - 390 Trial, .... 493, 765 Tbovbk, . ' - . 44,99,706 (See Carriage of Merchandise.) Tbust, - ... 11, 767 Bills and notes, . - . 767 Bonds 767 Equity, . - . - - 768 Fraud:, 768 Limitations. ... 510 Resulting, . - - - 768 ■Trust Deed, Trustee process. (See Garnishment.) Trustees, - Compensation of. Death, - Eminent domain. Mortgage, Operation of railway by, personal injuries, Qualifications, Quo warranto, Kemoval, Sale of mortgaged property. Stock, - , . Tunnels. (See Bergen Tunnel.) Injunctions to prevent construction. Streets, Under a city, . . . . 769 769 540 540 199 541 540, 540, 540; 769 441, 476 540 596 540 541 769 342 346 843 Turn out, . - . - 769 Crossings, .... 337 Streets, - . - 250, 644 Turnpikes, .... 770 Crossings, .... 770 Eminent domain, . Ill, 235, 353 Street railways, - - 649 Use of locomotives near turnpike, . 770 Turn Table, . - . - 770 Injuries to children, - . . 467 Injuries to employes, - . 393 u. Under estimates. Union Pacific land grant, . Unilateral contract. Usage. Elevators, Highway crossing, . Use of railway. Compensation for, USUKT, . 34 - 499 . 159 - 189 . 473 . 159 531, 770 Y. Value, .... 35,771 (See Baggage ; Carriage of Merchan- dise ; Evidence.) 61 Value — con. Evidence, Injuries to domestic animals. Lease, . . Variance, Veal. Carriage of, . Btalutfi, Vendor and vendee, Carriage of goods, Lien, - . real estate, Vendor's Lien, Venue, . Change, Injuries to domestic animals, Trespass, Verdict, Affidavit of juror. Casting lots, . , . Eminent domain. Excessive, " Must be unanimous, . New trial. Pleadings, Special, Verification of pleadings. Vessels, Collisions, ... Liens, , - Obstructions, - vessels engaged in business Sunday, Veto, Vice president of corporation, View by jury. Viewers, - - - 317, (See Jury; Eminent Domain.) VisiTORiAL Powers, Voluntary conveyance, PAGE. - 363 353, 363 - 505 474, 583 - , 83 83,83 - 15 . 99 . 771 . 771 771 - 771 113, 771 371 - 765 773 - 773 - 773 308, 773 64 . 216 554 - 585 316, 773 - 585 .. 773 773, 774, . 507 735 on - 735 139 13 - 317 318,319 . 774 . 331 "W. Wager, - - - - .774 Contract, . . ... . 629 Waiver of condition in subscription, 704 - 774' . 774 774 - 774. 100. 101 ■ lUl Discrimination against warehouse- men, . - . . 183, 183 ■ " " . - 774 87, 88, 313, 774 . 774 - 775 - 87 . 775 - 775 107, 108 - 775 775, 770 Warehousemen, . Bailment, Burden of proof, Charter, Degree of care required. Depot, Eminent domain, Fires, . Liability, License to build. Limitation of liability. Place of delivery of goods. Side tracks. Storage by carriers, - Storage charges. Theft, - 982 INDEX PAGE. War OP 1861, - 43,129,398,439,442,776 Baggage, - - 42 Confiscation, • - 129,776 Injuries to employes, - - 398 Injuries to passengers, - - 439 WaiTant. Against director, ... 182 Taxes, - . - 748 56,777 Wabkasty, "Watcliman. Wlien required on engine, - 381 Water. Contract for supply of, - . 158 Damages, - - . 174, 228 Eminent domain, . . 266 "Water power, - . 232,233,234 Wateecoubses, .... 777 Bays, 777 Bridges, . - . 547,777 Damages, - . .778 Diversion, . . 778 Easements, .... 773 Eminent domain, 232, 233, 234, 235, 236 Floods, . . 779 Limitations, . . 773 Mills, . . 233,233,234,779 Navigation, . 236, 778, 779 Obstruction, . . . 779 Riparian rights, 235, 236. 609 Route of railway, . . 780 Sewers,- ... 780 Sloughs, . . 780 State lands, . . 730 Water stations, ... 533 WaybUl, . . 73^133 Wem^ and Springs, . . 233, 781 Injuries to animals by falling into ^^ells, . 383 PAGE. Wharves, ..... 781 Bridges, - - . - 781 Construction of railways, - - 781 Eminent domain, ... 781 Ferriage, ... 781 Injunctions, .... 338 Injm-ies to passengers, - . 443 Lateral railways, - 501 Obstructions, ... 781 Tolls, 781 Trespass, .... 782 Wharfage 781 Whisky. Carriage of, . Whistle. Frightened teams, Whitney's patent, - Wills, ... WiUful acts of employes, - 398,443,476,757,765 Winans' patent, - - . 569 Wind. Movement of cars by, . . 447 Wine. Carriage of, ... 93 freezing, . - . .92. Witnesses. (See Evidence.) Costs, . . . . -68 Interest, .... 177 Wood. Contracts for, - . . .15 Sale of,. . . .156 Woodyard. ^ ^res, 313 Workshops, .... 252 Eminent domain, ... 253 Writ CSee Process.) Writ of Assistance, 103 - 449 - 569 783 347, 373, 382, Writ op Error, - 783 19, 208, 209, 783